TORTS OUTLINE -- '95 Cabranes
Definition -- An actor is subject to liability to another for battery if
he acts intending to cause a harmful or offensive contact with the
person of the other or a third person, or cause an imminent apprehension
of such contact, and a harmful contact with the person of the other
directly or indirectly results.
A. Prima Facie Case For Battery
Definition -- The actor desires to cause the consequences of his
act, or that he believes that the consequences are substantially certain
to result from the act.
-- Case on Point -- Garratt v. Dailey
a. If an act is done with the intention of inflicting upon
another an offensive but not harmful body contact, or of putting another
in apprehension of either a harmful or offensive bodily contact, and
such an act causes a bodily contact to the other, the actor is liable to
the other for a battery although the act was not done with the intention
of bringing about the resulting bodily harm.
-Case on Point -- Vosburg v. Putney
b. If an act is done with the intention of affecting a third
person in the manner stated in a., but causes a harmful bodily contact
to another, the actor is liable to such other as fully as though he
intended to so affect him.
Offensive contact defined -- A bodily contact is offensive if it
offends a reasonable sense of personal dignity.
Tortfeasor need not make direct contact with the plaintiff. It is
enough to make contact with plaintiff's clothing, walking stick, horse
on which he/she is sitting, car he/she is riding, etc.
Definition -- Conduct which, under ordinary circumstances, would
subject the actor to liability, under particular circumstances does not
subject him to liability.
Privilege may be based on the consent of the person affected by
the actor's conduct with the following restrictions:
a. One who effectively consents to the conduct of another
intended to invade his interests, cannot recover in an action of tort
for the conduct or for harm resulting from it.
-Case on Point -- O'Brien v. Cunard Steamship Co.
b. To be effective, consent must be:
1. by one who has the capacity to consent or by a person
empowered to consent for him.
2. Consent must be for the particular conduct, or to
substantially the same conduct.
c. Conditional consent or consent restricted as to time, area
or in other respects is effective only within the limits of the
condition or restriction.
d. If the actor exceeds the consent, it is not effective for
e. Upon termination of consent its effectiveness is terminated,
except as it may have become irrevocable by contract or otherwise, or
except as its terms may include, expressly or by implication, a
privilege to continue to act.
f. The fact that the exercise is necessary for the protection
of some interest of the actor or of the public which is of such
importance as to justify the harm caused or threatened by its exercise.
2. Self- Defense
a. Self-Defense by force NOT threatening death or serious
1. An actor is privileged to use reasonable force, not
intended or likely to cause death or serious bodily harm, to defend
himself against unprivileged harmful or offensive contact or other
bodily harm which he reasonably believes that another is about to
inflict intentionally upon him.
2. Self-defense is privileged under the conditions stated in
2.a.1., although the actor correctly or, reasonably believes that he can
avoid the necessity of so defending himself by:
a. Retreating or otherwise giving up a right or
b. Complying with a command with which the actor is under
no duty to comply or which the other is not privileged to enforce by the
b. Self-Defense by force threatening death or serious bodily
1. Subject to the statement in subsection 2.b.3., an actor
is privileged to defend himself against another by force intended or
likely to cause death or serious bodily harm, when he reasonably
a. The other is about to inflict upon him an intentional
contact or other bodily harm.
b. That he is thereby put in peril of death or serious
bodily harm or ravishment, which can be safely prevented ONLY by the
immediate use of such force.
2. The privilege stated in 2.b.1. exists although the actor
correctly or reasonably believes that he can avoid the necessity of so
defending himself by:
a. Retreating if he is attacked within his dwelling
place, which is NOT also the dwelling place of the other.
b. permitting the other to intrude upon or dispossess him
of his dwelling place.
c. abandoning an attempt to effect a lawful arrest.
3. The privilege stated in 2.b.1. DOES NOT EXIST IF the
actor correctly or reasonably believes that he can with complete safety
avoid the necessity of so defending himself by:
a. retreating if attacked in any place other than his
dwelling place, or in a place which is also the dwelling of the other.
b. relinquishing the exercise of any right or privilege
other than his privilege to prevent intrusion upon or dispossession of
his dwelling place or to effect a lawful arrest.
C. Character and extent of force permissible for self-defense
1. The actor is not privileged to use any means of self-
defense which is intended or likely to cause a bodily harm in excess of
that which the actor correctly or reasonably believes to be necessary
for his protection.
2. If the actor applies a force to another which is in
excess of that which is privileged:
a. the actor is liable for only so much of the force as
b. the other's liability for an invasion of any of the
actor's interests of personality which the other may have cause is not
c. the other has the normal privilege to defend himself
against the actor's use or attempted use of excessive force.
Definition -- Did the defendant's conduct in fact cause the plaintiff's
1. Cause-In-Fact can be determined through probability when there
is a track record similar harm from one source.
-Case On Point -- Hoyt v. Jeffers
2. Cause-In-Fact can not be determined through probability when
there is nothing more than a mathematical chance that the defendant
caused the harm.
-Case On Point -- Smith v. Rapid Transit Inc.
B. Circumstantial evidence
-Plaintiff must be certain at the time of the accident that the
particular hazard is the cause-in-fact of the accident. Just because a
hazard exists doesn't make it the cause-in-fact in hindsight.
-Case On Point -- Cuthbert v. City of Philadelphia
C. Joint and Several Liability
-Definition -- When cause-in-fact cannot be distinguished between two
or more parties who act in concert to cause the harm or where they
acted independently but caused indivisible harm. Plaintiff may sue one
or all and collect from one or all.
1. Each joint tortfeasor is liable for the whole damage
-Policy -- Unfair to deny plaintiff redress simply because he
cannot prove how much damage each did when it is certain that between
them they did it all.
-Case On Point -- Summers v. Tice
2. Anyone who injures plaintiff and anyone charged with
plaintiff's care who so neglected him as to allow injury to occur is
-Case On Point -- Ybarra v. Spangard
III. Vicarious Liability
1. A master is liable for the torts of his servants committed
while the latter are acting within the scope of their employment.
2. If a servant commits a tort beyond the scope of his employment
the master may still be liable for his own negligence in selecting,
instructing or supervising the servant.
3. A master may be directly liable if he participates in or
encourages the wrongful acts of his servants.
1. In determining if one is acting as a servant to another or is
an independent contractor, the following matters of fact, among others,
a. the extent of control which, by the agreement, the master
may exercise over the details of the work
b. whether or not the one employed is engaged in a distinct
occupation or business
c. the kind of occupation, with reference to whether, in the
locality, the work is usually done under the direction of the employer
or by a specialist without supervision
d. the skill required in the particular operation
e. whether the employer or the workman supplies the
instrumentalities, tools, and the place of work for the person doing the
f. the length of time for which the person is employed
g. the method of payment, whether by the time or by the job
h. whether or not the work is a part of the regular business of
i. whether or not the parties believe they are creating the
relation of master and servant
j. whether the principal is or is not a business
2. The kind of conduct within the scope of employment
a. To be within the scope of employment, conduct must be of the
same general nature as that authorized, or incidental to the conduct
b. In determining whether or not the conduct, although not
authorized, is nevertheless so similar to or incidental to the conduct
authorized as to be within the scope of employment, the following facts
1. whether or not the act is commonly done by such servants
2. the time, place and purpose of the act
3. the previous relations between master and servant
4. the extent to which the business of the master is
apportioned between different servants
5. whether or not the act is outside the enterprise of the
master, or, if within the enterprise, has not been entrusted to any
6. whether or not the master has reason to expect that such
an act will be done.
7. the similarity of the act done to the act authorized
8. whether or not the instrumentality by which the harm is
done has been furnished by the master to the servant.
9. the extent of departure from the normal method of
accomplishing an authorized result
10. whether or not the act is seriously criminal
C. Independent Contractors
-Master's are not liable for the torts of independent contractors.
Exceptions: Master is strictly liable for the actions of his
1. When the master is negligent in selecting, instructing or
supervising the contractor
2. When the contractor is engaged in non-delegable duties
3. When the contractor is engaged in work which is specially,
particularly or inherently dangerous.
A. Compensatory Damages
-Definition -- The amount of money necessary to restore the plaintiff
to his pre-injury condition.
Note: Excessive compensatory damages awards may be reversed on
1. Personal Injury
a. Medical Expenses
1. In order to be compensable, the expenses must be
reasonably related to the defendant's wrongful conduct.
2. In order to fully recover expenses, the plaintiff must
take reasonable steps to mitigate the deleterious effect of his injuries
(i.e. get medical attention)
3. Future medical expenses are recoverable but they must be
proven with reasonable certainty.
4. Collateral Source Rule -- Damages may not be mitigated on
account of payments received by the plaintiff from sources other than
the defendant (i.e. insurance)
Exception -- Gratuitous services rendered by relatives,
friends and neighbors are not compensable (Case On Point -- Coyne v.
b. Lost Earnings and Impairment of Earning Capacity
1. Variables that determine the size of award for diminished
earning capacity are:
a. The basic earning capacity of the individual plaintiff
b. the percentage by which his/her earning capacity has
c. the expected duration of the disability, if permanent
then the plaintiff's life expectancy (or in some cases the length of
his/her working life)
d. If working life is shortened then plaintiff recovers
at 100% for the shortened period.
-- So long as the evidence is that more probably than not
(better than 50-50) the plaintiff's injury will be permanent, the jury
may award damages on the assumption that it will be.
c. Pain, Suffering and Other Intangible Elements
1. Per Diem Argument -- The plaintiff's attorney suggests to
the jury a dollar value for the plaintiff's pain for a specified time
2. To recover for pain and suffering the injured person must
be conscious (must have experienced the pain)
3. Loss of enjoyment (controversial) -- may relate to life in
all aspects or just certain ones.
2. Wrongful death
-- Two types of compensation:
a. Survival Statutes -- plaintiff's decedent would have been
able to recover for his injuries had he/she survived.
b. Wrongful Death Statutes -- basic measure of recovery is the
harm caused to the decedent's family by the defendant's conduct.
3. Injury to personal property
-- Award based on difference between the market value of the
property before the injury and the market value after.
B. Punitive Damages
-- Purpose is to punish defendant for intentional tort or gross
negligence, to deter others from engaging in that type of conduct and to
encourage plaintiff's to sue when compensatory damages are likely to be
1. Defendant's wealth is generally held to be relevant to the size
of the award, but may be awarded regardless of defendant's wealth.
2. Punitive damages may be awarded against a master or other
principal because of an act by an agent if and only if:
a. the principal of a managerial agent authorized the doing and
manner of the act
b. the agent was unfit and the principal or managerial agent
was reckless in employing or retaining him
c. the agent was employed in a managerial capacity and was
acting in the scope of employment
d. the principal or a managerial agent of the principal
ratified or approved the act.
3. Insurance is not a shield to punitive damages unless the
liability of the insured is vicariously imposed.
C. Nominal Damages
-- Defendant is guilty but no real damages awarded (i.e. $1 award)
D. Indemnification v. Contribution
1. Contribution -- All tortfeasors share judgment based on
percentage of liability.
2. Indemnity -- 100% reimbursement of tortfeasors by another
(i.e. When one tortfeasor is an intentional tortfeasor and the
other is a negligent tortfeasor, the negligent tortfeasor has the right
to be indemnified by the intentional tortfeasor for his share of the
3. Pierringer Release -- If D1 settles with Plaintiff then
Plaintiff is liable to D2 for contribution.
V. Liability Insurance
1. Liability insurance liable for any judgment in excess of policy
limits if a settlement offer within policy limits is rejected (Insurer
should not be permitted to further its own interests at the expense of
-Case On Point -- Crisci v. Security Insurance Co.
2. In the event that a lawyer represents both the insurance company
and the insured, the lawyer owes primary responsibility to the insured
regardless of who hired him.
3. Insurance Company may be sued directly
4. Insurance company has a right of subrogation
-- Insurance companies have a duty and a right to step into the shoes
of the insured in order to defend against a lawsuit.
Definition -- A person is guilty of negligence when he/she acts or fails
to act otherwise than an ordinary person would under similar
-Case on Point -- Brown v. Kendall
1. Prima Facie Case
A. Duty of reasonable care
-- What's the standard of care?
B. Defendant breached his duty
C. Plaintiff was injured
D. Defendant caused the plaintiff's injury
1. Cause-In Fact
2. Proximate Cause
2. Mental Deficiencies of tortfeasor are to be ignored when judging
conduct under the reasonableness standard.
Exception: Children are judged by what a reasonable child of that
age, maturity and intelligence would have done under similar
-Case On Point -- Charbonneau v. MacRury
Exception to exception: Children engaged in adult activities are
judged by adult standards.
-Case On Point -- Daniels v. Evans
3. Individual tortfeasors physical disabilities must be take into
consideration when judging whether his/her conduct has been negligent.
4. But/For test -- But for the actions of the plaintiff did the tort
5. Hand Formula For Determining Liability -- Burden >< (Probability of
Harm x Loss).
Where an act is one which a reasonable man would recognize as
involving a risk of harm to another, the risk is unreasonable and the
act is negligent if the risk is of such magnitude as to outweigh what
the law regards as the utility of the act or of the particular manner in
which it is done.
-Case On Point -- United States v. Carroll Towing
6. Factors considered in determining the utility of actor's conduct:
A. The social value which the law attaches to the interest which
is to be advanced or protected by the conduct.
B. The extent of the chance that this interest will be advanced or
protected by the particular course of conduct.
C. The extent of the chance that such interest can be adequately
advanced or protected by another and less dangerous course of
7. Factors considered in determining magnitude of risk:
A. The social value which the law attaches to the interests which
B. The extent of the chance that the actor's conduct will cause an
invasion of any interest of the other or of one of a class of which the
other is a member.
C. The extent of the harm likely to be caused by the interests
D. The number of persons whose interests are likely to be invaded
if the risks takes effect in harm.
8. Law-Fact Distinction
-The determination of the applicable general standard of care is one
of law for the judge and the determination of negligence is a question
of fact for the jury.
9. Some standards for duty of care:
A. Forseeability -- tortfeasor should have foreseen a particular
-Case On Point -- Clinton v. Commonwealth Edison Co.
B. Duty to third parties -- tortfeasor owes duty of care to third
parties who come into contact with parties influenced by tortfeasor.
-Case On Point -- Weirum v. RKO General Inc.
10. Special Rules Governing the proof of negligence:
A. Unexcused violation of statutes is negligence per se.
-Case On Point -- Martin v. Herzog
B. Defendant may violate statute without being guilty of
negligence if obeying statute puts the defendant at some substantial
risk which runs counter to the spirit of the statute.
-Case On Point -- Tedla v. Ellman
A. Industry custom is a defense against negligence
-Case On Point -- Ellis v. Louisville & Nashville R.R.
B. Courts must have the final decision on whether or not Industry
custom is a defense.
1. In cases where a portion of the industry sees fit to use a
protective device or procedure it can be said that they are right and
the others too slack.
-Case On Point -- The T.J. Hooper
2. In cases where the burden of taking preemptive action is
small compared to the risk involved, custom will not be a defense.
-Case On Point -- Helling v. Carey
12. Res Ipsa Loquitur
Definition -- The mere fact that the accident occurred infers
negligence by the defendant.
A. 3 elements must be present to permit inference of defendant's
negligence under Res Ipsa Loquitur:
1. Exclusive control and management by defendant of the
instrumentality which causes the injury.
2. The occurence is such that in the ordinary course of things
it would not have occured if reasonable care had been used.
3. In cases where the instrumentality has left the defendant's
possession, plaintiff must show that the condition of the
instrumentality had not been changed.
-Case On Point -- Escola v. Coca Cola Bottling Co.
B. 2 applications of the Res Ipsa Loquitur doctrine:
1. Permissive Inference (widely accepted standard) -- Burden of
proof of the cause-in-fact is on Plaintiff. However, if
Defendant fails to respond adequately jury should find for Plaintiff.
2. Rebuttable Presumption (only accepted in 3 states) -- Burden
of proof of the cause-in-fact is on defendant to disprove negligence.
C. If negligence can be demonstrated by conventional means then
Res Ipsa Loquitur does not apply.
-- Case On Point -- Shutt v. Kaufman's Inc.
13. Responsibility of Possessors of Land for the Safety of
Trespassers, Licensees and Invitees.
1. Definition -- A person who enters or remains upon land in
the possession of another without a privilege to do so created by the
possessor's consent or otherwise.
-- Restatement 2d of Torts --
2. Duty -- The only duty of a landowner to a trespasser is to
refrain the intentional, willful or wanton infliction of injury
(although some states have expanded the duty owed to trespassers).
- Exeptions -
a. A possessor of land who knows, or from facts within his
knowledge should know, that trespassers constantly intrude upon a
limited area of the land, is subject to liability for bodily harm caused
to them by an artificial condition on the land, if
1. The Condition --
i. Is one which the possessor has created or
ii. Is, to his/her knowledge, likely to cause death or
serious bodily harm to such trespassers.
iii. Is of such a nature that he has reason to believe
that such trespassers will not discover it.
2. The possessor has failed to exercise reasonable care
to warn such trespassers of the condition and the risk involved.
-- Sec. 335 Restatement 2d -
b. Attractive Nuisance -- A possessor of land is subject to
liability for physical harm to children trespassing thereon caused by an
artificial condition upon the land if
1. The place where the condition exists is one upon which
the possessor knows or has reason to know that children are likely to
2. The condition is one of which the possessor knows or
has reason to know and which he realizes or should realize will involve
an unreasonable risk of death or serious bodily harm to such children.
3. The children because of their youth do not discover
the condition or realize the risk involved in intermeddling with it or
in coming within the area made dangerous by it.
4. The utility to the possessor of maintaining the
condition and the burden of eliminating the danger are slight as
compared with the risk to children involved.
5. The possessor fails to exercise reasonable care to
eliminate the danger or otherwise protect the children.
-- Sec. 339 Restatement 2d --
B. Licensee and Invitee
1. Licensee Defined -- A licensee is a person who is privileged
to enter or remain on land only by virtue of the possessor's consent (a
-- Sec. 330 Restatement 2d -
2. Invitee Defined -Licensee
A. An invitee is either a public invitee or a business
B. A public invitee is a person who is invited to enter or
remain on land as a member of the public for a purpose for which the
land is held open to the public (a park visitor, etc.).
C. A business visitor is a person who is invited to enter or
remain on land for a purpose directly or indirectly connected with
business dealings with the possessor of the land.
-- Sec. 332 Restatement 2d -
3. Duties the possessor owes to Licensees and Invitees
A. Duty to Licensee -- A possessor of land is subject to
liability for physical harm cause to licensees by a condition on the
land if, but only if -
1. The possessor knows or has reason to know of the
condition and should realize that it involves an unreasonable risk of
harm to such licensees, and should expect that they will not discover or
realize the danger.
2. He/She fails to exercise reasonable care to make the
condition safe, or to warn the licensees of the condition and the risk
3. The licensees do not know or have reason to know of
the condition and the risk involved.
-- Sec. 342 Restatement 2d -
B. Duty to Invitee -- A possessor of land is subject to
liability for physical harm caused to his invitees by a condition on the
land if, but only if -
1. He/She knows or by the exercise of reasonable care
would discover the condition, and should realize that it involves an
unreasonable risk of harm to such invitees.
2. He/She should expect that they will not discover or
realize the danger, or will fail to protect themselves against it.
3. He/She fails to exercise reasonable care to protect
them against the danger.
-- Sec. 343 Restatement 2d -
14. Limitations on Liability
A. There is no general duty to rescue.
There is a Duty to Warn a third party. Balancing test for when
duty to warn comes into play:
1. The forseeability of harm to the plaintiff.
2. The degree of certainty that the plaintiff suffered injury.
3. The closeness of the connection between the defendant's
conduct and the injury suffered.
4. The moral blame attached to the defendant's conduct.
5. The policy of preventing future harm.
6. The extent of the burden to the defendant and consequences
to the community of imposing a duty to exercise care with resulting
liability for breach.
7. The availability, cost and prevalence of insurance for the
-- Case On Point -- Tarasoff v. Regents of University of
B. Proximate Cause
Key Question -- Would the injury have occurred but for the
negligence of the defendant.
But For Defendant's
(Cause In Fact) (Proximate Cause)
1. Forseeability -- The defendant is liable for the foreseeable,
but not the unforeseeable, consequences of his/her negligent conduct.
a. Foreseeable Results
i. Did the defendant's negligence contribute to the
-- Case On Point -- Ford v. Trident Fisheries Co.
ii. "Zone Of Danger" -- Defendant's negligent conduct
creates a zone of danger (time or place) where some type of injury is
foreseeable. Defendant does not have to be the cause in fact of the
injury, it is enough that the injury occur within the zone of danger for
defendant to be liable.
-- Case On Point -- Marshall v. Nugent
b. Foreseeable Plaintiffs
i. Defendant must be negligent to plaintiff or plaintiff
must be in the zone of danger, otherwise no duty is owed.
Example: "The conduct of the defendant's guard, if a
wrong in its relation to the holder of the package, was not wrong in its
relation to the plaintiff, standing far away."
-- Case On Point -- Palsgraf v. Long Island R.R. (Majority
Opinion -- Cardozo)
ii. A duty is owed to everyone. If a negligent act
occurs and someone is harmed he/she may sue in negligence whether or not
they were in the zone of danger. Public policy or justice will force a
court to decline to trace a series of events beyond a certain point.
-- Case On Point -- Palsgraf v. Long Island R.R. (Minority
Opinion -- Andrews)
-- Case On Point -- Petition of Kinsman Transit Co.
-- Case On Point -- Dellwo v. Pearson
C. Prenatal Harm
1. Actions by parents for their own harm
a. A wrongful death action may be brought by parents for the
birth of a stillborn fetus.
Condition -- Fetus must be viable.
Reasoning -- For a tortfeasor not to be held liable he/she
would only be rewarded by allowing him/her to escape liability upon an
increase in severity of the harm (difference between the child being
born defective in which case he/she would be liable and the child being
born dead in which case he/she would not be liable).
-- Case On Point -- Werling v. Sandy
Comment: "If viability has any usefulness in discovering
reasonable answers to the problem -- live birth is crucial."
-- Case On Point -- Todd v. Sandidge Construction Co.
b. Courts will not award damages for wrongful birth.
i. No rearing expenses for a healthy child.
ii. No ordinary rearing expenses for a defective child.
iii. Special upbringing costs associated with a defective
child are recoverable.
-- Case On Point -- Fassoulas v. Ramey
2. Actions on behalf of children for their own harm
a. Children's' claims for pain and suffering or other
general damages should be denied because:
i. It is impossible to determine whether the plaintiff
has in fact suffered an injury in being born impaired rather than not
ii. It is impossible to assess general damages in any
fair, non-speculative manner.
b. Children can claim damages for specialized medical care
-- Case On Point -- Turpin v. Sortini
3 Categories of Immunity:
A. Governmental (Shrinking)
1. Qualified Immunity
-- Qualified Immunity can be overcome if it can be demonstrated
that defendant acted in bad faith.
2. Absolute Immunity
a. Government acting in a proprietary function (something
that is not a government function [e.g. owning ballpark, etc.]) -- No
b. Government acting in a government -- a government function
is one that only the government can engage in -- police, fire, etc.])
c. Government acting in a discretionary function (the
conduct of administrators in establishing plans, specifications or
schedules of operations). Can be overcome by bad faith.
d. Government acting in a ministerial function -- a
ministerial function is one where a governmental official has a duty to
act in a certain way. If he/she fails to act in that way the government
e. Current Wisconsin Law = No absolute immunity. State and
Local governments liable in tort with certain restrictions.
i. Must give notice of claim within 120 days of the
ii. Recovery against municipality limited to $50K
iii. Recovery against the State limited to $250K
iv. No punitive damages allowed (unless bad faith is
v. Government is still immune if acting in discretionary
vi. If government employee is acting in a ministerial
function (employee is directed by law to do something) and negligence
arises then liability exists.
B. Charitable Immunity (Historical but disappearing)
C. Intra-Family Immunity (Historical but disappearing)
VII. Strict Liability
Under strict liability, the actor who proximately causes accidental
losses is exposed to liability for all those losses, regardless of
whether he has exercised reasonable care, even if he has done everything
anyone could have done to try to prevent the accident. Strict liability
is a matter of law -- the judge decides.
1. Abnormally Dangerous Activities
A. The person who for his own purposes brings on his lands and
collects and keeps there anything likely to do mischief if it escapes,
must keep it in at his peril, and, if he does not do so, is prima facie
answerable for all the damage which is the natural consequence of its
-- Case on Point -- Fletcher v. Rylands
B. The policy of law does not impose the rule of strict liability
to protect against harms incident to the plaintiff's extraordinary and
unusual use of the land.
-- Case On Point -- Foster v. Preston Mill Co.
C. Strict liability applies to abnormally dangerous activities
1. One who carries on an abnormally dangerous activity is
subject to liability for harm to the person, land or chattels of another
resulting from the activity, although he has exercised the utmost care
to prevent such harm.
2. Such strict liability is limited to the kind of harm, the
risk of which makes the activity abnormally dangerous.
-- Sec. 519, Restatement 2d -
D. Factors to be considered when deciding if an activity is
1. Whether the activity involves a high degree of risk of some
harm to the person, land or chattels of others.
2. Whether the gravity of the harm which may result from it is
likely to be great.
3. Whether the risk cannot be eliminated by the exercise of
4. Whether the activity is not a matter of common usage.
5. Whether the activity is inappropriate to the place where it
is carried on.
6. The value to the community.
-- Sec. 520, Restatement 2d -
E. Transportation of highly volatile and flammable substances upon
public highways in commercial quantities and for commercial purposes is
an abnormally dangerous activity.
-- Case On Point -- Siegler v. Kuhlman
VIII. Products Liability
1. 3 Types of flaws make the manufacturer liable under products
A. Manufacturing Flaws -- Inadvertent imperfections that cause
products to fail to perform their intended functions.
1. Bases of Liability
i. Manufacturer owes a duty of care to all, not just
those involved in the contractual relationship if (1) there is a
probable danger of serious injury if the product is negligently made
(forseeability) and (2) it is foreseeable that the product will be used
by someone other than the immediate buyer.
ii. Manufacturer of finished product is responsible for
each piece that goes into the product whether he/she makes it or not.
iii. In a case involving a defective product that breaks
in normal use causing injury, to recover in negligence the plaintiff
must prove not only that the breakdown and resulting injuries were
proximately caused by a product defect, but also that negligence
attributable to the manufacturer caused the defect to be present
-- Case On Point -- MacPherson v. Buick Motor Co.
b. Breach of Warranty -- retailer is held strictly liable to
the customer (but retailer can implead distributor).
-- Case On Point -- Cushing v. Rodman
-- Case On Point -- Vandermark v. Ford Motor Co.
i. Unless excluded or modified, a warranty that the goods
shall be merchantable is implied in a contract for their sale if the
seller is a merchant with respect to goods of that kind. Under this
section the serving for value of food or drink to be consumed either on
the premises or elsewhere is a sale.
ii. Goods to be merchantable must be at least such as (a)
pass without objection in the trade under the contract description; and
(b) in the case of fungible goods, are of fair average quality within
the description; and (c) are fit for the ordinary purposes for which
such goods are used; and (d) run, within the variations permitted by the
agreement, of even kind, quality and quantity within each unit and among
all units involved; and (e) are adequately contained, packaged, and
labeled as the agreement may require; and (f) conform to the promises or
affirmations of fact made on the container or label if any.
iii. Unless excluded or modified other implied warranties
may arise from course of dealing or usage of trade.
-- U.C.C. 2-314 -
c. Strict Liability in Tort -- Implicit in the product's
presence on the market is a representation that it will safely do the
jobs for which it is built. To establish the manufacturer's liability
it is sufficient that the plaintiff prove that he/she was injured while
using the product in a way it was intended to be used as a result of a
defect in design and manufacture of which plaintiff was not aware that
made the product unsafe for its intended use.
-- Case On Point -- Greenman v. Yuba Power Products, Inc.
Special Liability of Seller of Product for Physical Harm to User or
i. One who sells any product in a defective condition
unreasonably dangerous to the user or consumer or to his property is
subject to liability for physical harm thereby caused to the ultimate
user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a
product, and (b) it is expected to and does reach the consumer without
substantial change in the condition in which it is sold.
ii. The rule stated in subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and
sale of his product, and (b) the user or consumer has not bought the
product from or entered into any contractual relation with the seller.
Comment g. Defective Condition
The rule stated in this section applies only where the
product is, at the time it leaves the seller's hands, in a condition not
contemplated by the ultimate consumer, which will be unreasonably
dangerous to him. The seller is not liable when he delivers the product
in a safe condition, and subsequent mishandling or other causes make it
harmful by the time it is consumed. The burden of proof that the
product was in a defective condition at the time it left the hands of
the particular seller is upon the injured plaintiff; and unless evidence
can be produced which will support the conclusion that it was then
defective, the burden is not sustained. Safe condition at the time of
delivery by the seller will, however, include proper packaging,
necessary sterilization, and other precautions required to permit the
product to remain safe for a normal length of time when handled in a
Comment i. Unreasonably Dangerous
The rule stated in this section applies only where the
defective condition of the product makes it unreasonably dangerous to
the user or consumer The article sold must be dangerous to an extent
beyond that which would be contemplated by the ordinary consumer who
purchases it, with the ordinary knowledge common to the community as to
Comment m. "Warranty."
The liability stated in this section does not rest upon
negligence. It is strict liability. The basis of liability is purely
one of tort.
-- Sec. 402A Restatement 2d -
Section 402A also applies to non-users and non- consumers
Reasoning: Bystanders have no chance to inspect or limit
purchases to reputable manufacturers.
-- Case On Point -- Elmore v. American Motors Corp.
2. The Plaintiff's Prima Facie Case: Causation -- The cause-in-
fact and proximate cause requirements apply in products liability cases
regardless of whether the theory relied on is negligence, warranty or
strict liability in tort.
Exception: Market Share Approach -- When a plaintiff is harmed
by a defective unit of a type of product manufactured and distributed by
many companies, under circumstances where the plaintiff cannot prove
which company actually produced and distributed the defective, harm
causing product unit, the plaintiff may join as defendants all, or most,
of the companies manufacturing and distributing the product during the
time period relevant to the case.
-- Case On Point -- Sindell v. Abbott Laboratories
Defense to Market Share Approach -- Defendant must be able to
demonstrate that it did not manufacture or distribute the product during
the time in question or did not distribute it in the geographic area in
3. Affirmative Defenses Based on User's Conduct -- To the extent
that plaintiff relies on traditional negligence principles in a products
liability case, presumably he will be barred from recovery or have his
recovery reduced, if he is found to be comparatively negligent.
B. Liability for Failure to Instruct or Warn -- If adequate
instructions and warnings are not provided to purchasers and users, the
seller may be liable for supplying a defective product even if the
product in question is free from flaws and even if the product design is
not, judged on its own merits, unreasonably dangerous. Two causes of
1. Negligence -- defendant's duty of care has been breached.
2. Defective product -- see Comment g., supra
Comment j. Directions or warning
In order to prevent the product from being unreasonably dangerous,
the seller may be required to give directions or warning, on the
container as to its use.  Where the product contains an
ingredient to which a substantial number of the population are allergic,
and the ingredient is one whose danger is not generally known, or if
known is one which the consumer would reasonably not expect to find in
the product, the seller is required to give warning against it, if he
has knowledge, or by the application of reason, [etc] should have
knowledge, of the presence of the ingredient and the danger. Likewise
in the case of poisonous drugs, or those unduly dangerous for other
reasons, warnings as to use may be required. But a seller is not
required to warn with respect to products, or ingredients in them, which
are only dangerous, or potentially so when consumed in excessive
quantity, or over a long period of time, when the danger, or
potentiality of danger is generally known and recognized.  Where
warning is given, the seller may reasonably assume that it will be read
and heeded; and a product bearing such warning, which is safe for use if
it is followed, is not in defective condition, nor is it unreasonably
-- Sec 402A Restatement 2d -
C. Liability for Defective Design
2 Main categories:
1. Flawed design -- If the plaintiff can show that the design
caused the product to fail to perform its intended function -- if the
design was self-defeating in a dangerous way so as to cause injury --
courts can treat the design defect the same as if it were a flaw.
2. Express Warranties -- The courts have traditionally imposed
liability for defective designs when the seller has expressly warranted
that the product would perform safely and not cause injuries of the sort
suffered by the plaintiff.
Express Warranties by Affirmation, Promise, Description, Sample
1. Express warranties by the seller are created as follows:
a. Any affirmation of fact or promise made by the seller to
the buyer which relates to the goods and becomes part of the basis of
the bargain creates an express warranty that the goods shall conform to
the affirmation or promise.
b. Any description of the goods which is made part of the
basis of the bargain creates an express warranty that the goods shall
conform to the description.
c. Any sample or model which is made part of the basis of
the bargain creates an express warranty that the whole of the goods
shall conform to the sample or model.
2. It is not necessary to the creation of an express warranty
that the seller use formal words such as "warrant" or "guarantee" or
that he have a specific intention to make a warranty, but an affirmation
merely of the value of the goods or a statement purporting to be merely
the seller's opinion or commendation of the goods does not create a
-- U.C.C. 2-313 -
Examples: McCormack v. Hankscraft Co. -- Vaporizer
tipped over and spilled near boiling water over child. Court
of Appeals held that Hankscraft had failed to exercise reasonable care
to inform users of the scalding temperatures of the water and to warn of
the dangers reasonably foreseeable in the use of the vaporizer.
Hankscraft was also found negligent in adopting an unsafe design and a
breach of the express warranty that it was safe for the vaporizer to run
unattended all night in a child's room.
A warning is not enough to avoid liability -- Mass. court declined
to adopt any rule which permits a manufacturer or designer to discharge
his/her total responsibility to workers by simply warning of the danger
of the product. Warnings will be considered as a factor in negligence,
but warnings will not absolve the manufacturer or designer of all
responsibility for the safety of the product.
-- Case On Point -- Uloth v. City Tank Corp.
Seven Factors that should be weighed in determining whether a
given product is "reasonably safe"
1. The usefulness and desirability of the product -- its utility
to the user and to the public as a whole.
2. The safety aspects of the product -- the likelihood that it
will cause the injury, and the probable seriousness of the
3. The availability of a substitute product which would meet
the same need and not be unsafe.
4. The manufacturer's ability to eliminate the unsafe character
of the product without impairing its usefulness or making it too
expensive to maintain its utility.
5. The user's ability to avoid danger by the exercise of care
in the use of the product.
6. The user's anticipated awareness of the dangers inherent in
the product and their avoidability, because of general public knowledge
of the obvious condition of the product, or of the existence of suitable
warnings or instructions.
7. The feasibility, on the part of the manufacturer, of
spreading the loss by setting the price of the product or carrying
In some instances the risk is inherently unreasonable and no
balancing test is necessary.
-- Case On Point -- Troja v. Black and Decker Manufacturing Co.
In the type of case in which there is no evidence, direct or
circumstantial, available to prove exactly what sort of manufacturing
flaw existed, or exactly how the design was deficient, the plaintiff may
be able to establish his/her right to recover, by proving the product
did not perform in keeping with the reasonable expectations of the user.
In deciding what a reasonable consumer expects, the jury is not
permitted to decide how strong products should be, . The jury is
supposed to determine the basically factual question of what reasonable
consumers do expect from the product. (Different type of safety test
than the one above.)
-- Case On Point -- Heaton v. Ford Motor Co.
IX. Violations of Civil Rights
1. Civil Rights fall into 2 categories:
A. Substantive Civil Rights -- Free Speech, Fair Trial, etc.
B. Procedural Civil Rights -- Due Process Clauses:
1. 5th Amendment -- Federal Due Process
2. 14th Amendment -- State Due Process
2. Most modern civil rights actions are based on Sec. 1 of the Civil
Rights Act of 1871:
Every person who, under color of any statute, ordinance,
regulation, custom or usage, of any State or Territory or the District
of Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for redress. -- 42
U.S.C. 1983 -
3. In the event of conflict between Federal and State Law, Article 6
of the Constitution [the supremacy clause] states that "The laws of the
Federal Government are the supreme law of the land."
4. In any given Sec. 1983 suit, the plaintiff must still prove a
violation of the underlying constitutional right; and depending on the
right, merely negligent conduct may not be enough to state a claim.
-- Case on Point -- Daniels v. Williams
5. Historically, [the] guarantee of due process has been applied to
deliberate decisions of government officials to deprive a person of
life, liberty or property.
-- Case On Point -- Daniels v. Williams
6. A jury may be permitted to assess punitive damages in an action
under Sec. 1983 when the defendant's conduct is shown to be motivated by
evil motive or intent, or when it involves reckless or callous
indifference to the federally protected rights of others.
-- Case On Point -- Smith v. Wade
7. Punitive damages may be awarded even if there are no compensatory
8. Damages based on the abstract value or importance of individual
constitutional rights are not a permissible element of compensatory
damages in such  cases.
9. 42 U.S.C. 1988 provides for attorney's fees to prevailing 1983
1. Basic Elements of an action for defamation:
A. A defamatory statement -- To be defamatory, a statement must
hold the plaintiff up to "hatred, ridicule or contempt."
B. Publication -- The basis for the plaintiff's cause of action is
the harm he/she suffers from the reaction of others and not his/her hurt
feelings. The defamatory statement must be communicated to a third
party verbally, in print or by other means.
1. There is no communication if the third party doesn't
2. A person who publishes the statement is liable even if
he/she is only repeating it. The person he/she heard it from is also
liable, however, he/she is not liable for any unauthorized repetition of
the defamatory comment unless it is the natural and probable consequence
of the original communication.
3. If the plaintiff publishes the defamatory statement then the
defendant is not liable (except in rare cases).
4. Each successive publication in newspapers and magazines
gives rise to a new cause of action.
C. Harm -- The plaintiff must prove that he/she has suffered harm
because of the defamatory statement.
2. Defenses to an action for defamation:
A. Privilege -- Two types:
1. Absolute -- A privilege available in situations in which the
interest in free expression totally outweighs interests in reputation.
Limited to situations in which the communication is with the consent of
the plaintiff, or is by a government official in the performance of
his/her governmental duties (judicial [includes lawyers in court, court
reporters, etc.], legislative and executive), is between a husband and
wife or is a political broadcast required under federal "equal time"
2. Qualified -- A privilege that rests on a more limited
interest of permitting free expression between the publisher and the
a. Qualified Interest of the Defendant -- He/she may protect
his/her own interests by calling the plaintiff a liar but may not attack
the plaintiff's credibility by charging him/her with conduct that does
not serve to explain the plaintiff's motives.
b. Qualified Interest of the Audience
i. An occasion makes a publication conditionally
privileged if the circumstances induce a correct or reasonable belief
that: (a) there is information that affects a sufficiently important
interest of the recipient or a third person, and (b) the recipient is
one whom the publisher is under a legal duty to publish the defamatory
matter or is a person to whom its publication is otherwise within the
generally accepted standards of decent conduct.
ii. In determining whether a publication is within
generally accepted standards of decent conduct it is an important factor
that: (a) the publication is made in response to a request rather than
volunteered by the publisher or (b) a family or other relationship
exists between the parties.
-- Restatement of Torts 2d, Sec. 595 -
c. Qualified Interest of both Publisher and Audience -- Fair
comment on current political issues, endeavors in the arts, sciences and
sports are privileged insofar as the comment is one of opinion.
d. Qualified Privilege may be lost if:
i. Abuse of privilege -- Defendant abuses privilege if he
does not believe the truth of the defamatory matter, or even if
believing it, he does not have reasonable grounds for his belief.
ii. Excessive Publication.
iii. If defendant publishes defamatory matter which he
does not reasonably believe to be necessary to accomplish the purpose
for which the privilege is given, he/she may be held to have abused the
Note regarding ii & iii: If the harm done by the abuse is
severable and can be distinguished from the harm done by the properly
privileged matter, the publisher is liable only for the excess harm
resulting from the abuse.
B. Truth -- Truth is a complete defense to a suit for defamation.
Truth can be substantial or literal. Example: Statement that plaintiff
mayor had squandered $80K of public funds found to be true even though
the actual amount was $17.5K.
C. A public official may not recover damages for defamation
relating to his official conduct unless he/she proves that the defendant
published the statement with actual malice.
-- Case On Point -- New York Times v. Sullivan
Public Official Defined:
1. A public official designation applies to government
employees who have or appear to the public to have, substantial
responsibility for or control over the conduct of
2. To governmental positions important enough that the public
has an independent interest in the qualifications and performance of the
person who holds it beyond the general public interest in the
qualifications and performance of all government employees.
D. New York Times rule extends to "public figures."
1. Because many who are not public officials are nevertheless,
intimately involved in the resolution of important public questions or,
by reason of their fame, shape events in areas of concern to society at
2. Because they have access to the media.
-- Case On Point -- Cutris Publishing Co. v. Butts
-- Case On Point -- Associated Press v. Walker
E. New York Times rule extends to "private persons."
-- Society's interest in being informed about certain issues does
not diminish because private individual, however involuntary, is
-Case On Point -- Rosenbloom v. Metromedia
3. Defamation -- The General Standard:
A. A communication is defamatory if it tends so to harm the
reputation of another as to lower him/her in the estimation of the
community or to deter third persons from associating or dealing with
B. The statement doesn't have to be taken as defamatory by the
general public to be actionable. It suffices if the statement is
perceived to be defamatory by a smaller community such as the one in
which the plaintiff works.
4. Defamation -- Interpretation of the Statement
A. General Rule -- If the statement about the plaintiff is capable
of several meanings, one of which is not defamatory, the plaintiff must
establish that the audience would take the statement in its defamatory
B. Innocent Construction Rule (Illinois) -- The plaintiff cannot
recover if the statement is capable of a non-defamatory meaning.
5. Defamation -- Definitions:
A. Inducement -- extrinsic facts necessary to make the statement
B. Innuendo -- The defamatory meaning based on the inducement.
C. Colloquium -- Proof that a statement was taken to refer to the
plaintiff when the defamatory statement makes no direct reference to the
D. Example: Defendant publishes a story that C has announced his
engagement to X. Plaintiff (Mrs. C) proves that she lives with C as his
wife (the inducement). The story then has the meaning that she is an
immoral woman in that she lives with C as his wife without being married
A. If a plaintiff makes a defamatory statement about a group of
which the plaintiff is a member and the group is sufficiently small so
that the plaintiff is identifiable as the one defamed, then the action
will be sustained.
B. If the group is larger than 25, members of the group cannot
recover based on defamatory statements about that group (absent
circumstances pointing to a particular plaintiff as the person defamed).
7. Damages -- Two types
1. Special -- limited to financial losses directly caused by the
reaction of others to the defamatory statement ( Example: people
refusing to do business with him/her). Pain, suffering, humiliation and
physical illness are not elements nor are financial losses caused by
Problem -- Often all the plaintiff has to prove special damages
is a decrease in business. Traditionally, courts don't think that's
2. General -- If the plaintiff has shown special damages, or if
the case is such that he/she can recover without having to prove them
then he/she is entitled to general damages. General damages include
mental anguish and associated losses that are not included under special
Awards -- General damages are presumed to flow from certain
kinds of defamation, and little in the way of proof has to be presented
to support an award. Unless the award shocks the judicial conscience or
is the obvious result of passion or prejudice the result will stand.
B. Punitive -- If plaintiff can demonstrate that defendant
published the defamatory statement with malice then he/she may be
entitled to punitive damages.
1. Malice defined -- Bad Faith, Ill Will, Hatred, Intent to
Injure, Vindictiveness and Wanton or Reckless Indifference to
plaintiff's rights. For Constitutional purposes (1st Amendment issue)
malice does not refer towards defendant's attitude towards the
plaintiff, but rather to his attitude toward or knowledge of the falsity
of the statement.
2. Indications of Malice -- Defendant's knowledge of the falsity
of the statement or his/her failure to try to verify the truth of the
statement, failure to publish a retraction, excessive publication of
the statement or the presence of an overall scheme of harassment.
A. Retractions affects the calculation of both punitive and
B. Some states limit damages unless a retraction is asked for and
C. Some states make a demand for a retraction a prerequisite for
bringing an action.
9. Liability -- aside from the malice necessary to defeat conditional
privilege, liability is strict. Two exceptions:
A. if defendant neither intends to publish nor is negligent in
publishing, he is not liable.
B. One who delivers or transmits defamatory matter published by a
third person is subject to liability if, but only if, he knows or has
reason to know of its defamatory character.
C. Constitutionally (First Amendment Issue), the plaintiff can
recover only if he/she establishes that the defendant knew the statement
was false, or published it with reckless disregard of its falsity.
Burden Of Proof = Plaintiff must prove actual malice (reckless disregard
of the truth) by the defendant clearly and convincingly.
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