Professor Weigel          


Exam-3 essay questions.  Read the entire exam first.  I’ll see the emphasis points, Intentional torts, proximate cause.  Don’t create issues if they are not there. 



Reason for law-to give certainty



In intentional torts there is no need for proximate cause.


Can be proven in 2 ways:


1    Specific Intent:  D acted with the purpose of bringing about the result.  The result being some sort of physical or mental effect upon another person.


2        General Intent:  D knew with substantial certainty that such result would occur as a result of his actions.


- Good faith mistake or mental illness does not negate intent so long as the D intended the consequence of his act.


- D does not have to intend to harm the person.

- Recklessness by D is not enough.  If it is highly likely that a bad consequence will occur, then the act is not an intentional tort.  It must be SC that the bad consequence will occur.

- The act must be intentional or substantially certain, but the consequences don’t have to be.




The doctrine allows the P to prove intent, by proving that the D intended to commit one of the 5 intentional torts and accomplished committing one.


If D had the intent with respect to person C, he will be held to have committed an   intentional tort against any other person who happens to be injured.


Example; A intends to hit B, so she throws a punch at him, but misses, and instead of hitting him (which would constitute battery), she only manages to scare him.  A will be liable in assault, even though she did not intend to scare B.


The tort to tort transferred intent may be applied to battery, assault, false imprisonment, intentional infliction of emotional distress, and trespass to land and chattels. In other words, the D intended to commit one of the 5 intentional torts and accomplished committing one. 






1    unlawful act

2        intentional

3        placing of another

4      in apprehension

5         of imminent harmful or offensive contact (objective, ROPP)

6        with the apparent ability to carry it out


Assault is defined as the unlawful intentional placing of another in apprehension of imminent harmful or offensive contact, with the apparent ability to carry it out.


To be liable, D doesn’t need to have the actual ability, just apparent ability for such conduct.




1.  A voluntary/affirmative act


1    Words alone are not sufficient.  Words must be coupled with some conduct by the D. 


Example; Verbal threats immediately followed by reaching into his pocket may create apprehension which might not be reasonable absent the verbal threats or D’s past acts.


1    Physical act alone is sufficient

2        Also, words spoken by the D may negate his conduct or any reasonable apprehension stemming from it.


Example; B violently shakes his fists at A, and says “If you weren’t my friend I would punch you right now.”  B’s words are enough to undue any reasonable apprehension by A.


2.  Intent


1   Purpose/knowledge to cause harmful…OR

2       Substantial certainty that harmful…OR

3        Transferred intent applied across torts (especially between battery and assault) targets


3.  Imminent Apprehension


1    P must have been aware and must have perceived the D’s conduct


P may not recover for her apprehension that someone else will be so touched.

P must have the belief that something undesirable is going to happen, and that they are at risk.  Fear is not a necessary element.


2        The apprehension must be imminent.  Threat of future harm is not sufficient.

3        Apprehension must be reasonable (ROPP)


4.  Causation


1    P must prove that the D’s voluntary act caused the P’s apprehension.





P is a burglar and breaks into D’s house. D says, “If you don’t leave, I’ll throw you out.”  There is no assault on P, since D has the legal right to force P to leave.


D threatens to shoot P and leaves the room for the stated purpose of getting his revolver.  NO ASSAULT                                                                   


A person across the room threatens to kiss you.  NO ASSAULT


A large boxer says to a small man, “I am going to punch your lights out.” ASSAULT








2        intentional

3        harmful or offensive touching – direct/or indirect

4      without justification or excuse


Battery is defined as an intentional harmful or offensive touching without justification or excuse.




1.  An affirmative act.


1    Act must be voluntary.

2        Involuntary or unconscious acts do not qualify.


2.  Intent


1    Purpose/knowledge to cause harmful or offensive touching; OR

2        Substantial certainty that harmful or offensive touch will occur; OR


Example; D shoots at C, intending to miss him, but also intending to make him think that he would be hit.  D has the intent needed for battery.


1    Transferred intent applies



3.  Harmful or offensive touching


1    Objective standard. Would the ROPP find the touching harmful or offensive?


2        Extreme sensitivities of the individuals will not be considered unless the D knew of the sensitivities.


3        Actual awareness at the time of the touching is not necessary.


Example; D kisses C, while she is asleep.  D has committed a battery.


4       Touching must be with the individual’s person (body) or any object which may be considered a natural extension of the individual’s body.  (Fisher v. Carrousel)


5         Harmful:  in that it causes pain or bodily damage

Offensive: if it is damaging to a reasonable sense of dignity


Example; D spits on P.  A battery has occurred because a ROPP of average sensitivity in P’s position would have her dignity offended.


1    Agent – D does not have to come in contact with the person, a ball can act as the agent for the battery.


2        Occurs without consent or justification (as in a boxing match)



4. Causation


1    P must prove the D’s voluntary act caused the harmful touching.


Hypo- blowing smoke into someone’s face of normal health is not a battery but a mental issue.


Hypo- If someone says “lookout there’s a snake!” and the victim fell off the cliff and injured himself.  It is a battery when he hits the ground, but if he only jumps around in fright but doesn’t fall to the ground, then no battery.





2        intentional

3        restraint or confinement

4      through force or threat of force

5         which confines one to a bounded area

6        without justification or excuse

7     and the person is aware of it


False imprisonment is defined as the intentional restraint of another through mental or physical boundaries without legal justification and the person is aware of it.




1.  Affirmative act or omission


1    Physical confinement: actual confinement or restriction of one’s physical mobility.

2        Confinement through taking of a person’s personal property without which they cannot leave (wallet).

3        Mental confinement:  fear of harm forces the individual to remain within the limited space

4      Failure to proved means of egress.


2.  Intent


1    Purpose/knowledge to confine; OR


Example; D a shopkeeper, negligently locks the store while P, a customer, is in the bathroom.  This is not false imprisonment, since D did not intend to confine P.


2        Substantial certainty that act will cause confinement; OR

3        Transferred intent applies to torts or across targets.


3.  Limited Space


1    D’s act must confine P to a limited space with defined boundaries.

2        No FI when an individual is prevented from entering an area or a space (building) because they are not prevented from going anywhere else, so they have not been confined.


4.  Awareness            


1    P must be aware of their confinement at the time of the confinement.

2        Exception:  Some courts waive the awareness requirement if the P suffered physical injury during or as a result of confinement.


Children are excused from the awareness requirement, b/c of their age and maturity.

If unconscious at the time of FI, then you wake up and are aware, than FI.


5.  No Reasonable Means of Escape


4      If there is a reasonable means of escape and the P is aware of it at the time of confinement, NO FI.

5         If P’s escape is reasonable and P is injured in the process of escape, than the D can be liable for the injuries caused to P.


6.  P must be held against their free will & protest


1    Mere obligation to stay is not sufficient.

2        Submission to stay due to persuasion of another is not sufficient.


P must be restrained against his will & protest, b/c if you do not protest than you blow your case.  If P submits to persuasion, and accompanies D to clear up a situation without any implied threat of force, than no FI.


The longer the confinement, the greater the damages the P is entitled to.


Threats of future action are not enough.  There is no FI if the D threatens to call police and have P arrested unless he stays.


Hypo – If a person requests to be let off air plane because they were afraid and pilot refused.  No duty to release unless urgent circumstances exist.


Hypo – A person complains of chest pain on an airplane and dies and the person is required to sit next to the dead body until the flight landed.  Is this a tort?

You must weigh the benefit and risk.  Schedule interruptions, fuel is expensive, many other people to consider.  These are all factors that relay into answering the question of whether or not there is a tort.


Hypo – Passengers sitting on the tarmac in an airplane waiting for takeoff for 6-8 hrs.  False Imprisonment ?  It is a question of common sense.  How are the facts going to sit with the jury?  A pregnant woman wants to get off?  The airline claims, that they can’t let you off because we have a schedule to keep.  Where is the common sense?  What is the jury going to think?


** Shopkeeper’s Privilege**


1    A limited privilege whereby a shopkeeper has the opportunity to temporarily & reasonably detain a suspected violator.


2        May be by direct physical means, but also by threats or by the assertion of legal authority.


** Inaction**

1    An omission to carry out one’s duty to act thereby causing confinement is FI.





False arrest is defined as the arrest and custody by a person who claims but does not have legal authority.


2        False arrest may lead to FI if other elements of the tort are satisfied.

3        No action if the person arrested actually committed the crime for which they are arrested.





1    intentional

2        or reckless infliction

3        of severe mental & emotional distress

4      through extreme & outrageous conduct


IIED is defined as the intentional or reckless infliction of severe mental and emotional distress through extreme and outrageous conduct.




1. Extreme & Outrageous Conduct


1    Conduct must be go beyond all bounds of decency


Soliciting intercourse must be persistent & aggravated conduct that goes beyond all reasonable bounds tolerated by a civilized society.  One such illicit request for intercourse does not give rise to the action.


Persistent & intolerable conduct not generally acceptable to normal standards of decency requires no physical damage to P and therefore is sufficient.


2        Conduct must be extreme and outrageous based on a ROPP standard


Example; D threatens that if P, a garbage collector, does not pay over part of his proceeds to D and his henchman, D will severely beat P.  Since D’s conduct is extreme and outrageous, and since he has intended to cause P distress, D is liable for IIED.


Extremely outrageous conduct directed against 3rd parties, intentionally or with reckless disregard of the consequences, which causes emotional distress to P, may be enough if such distress is accompanied by bodily harm.


Example; As a practical joke D tells P that her husband has been badly injured in an accident, and is lying in the hospital with broken legs.  This conduct is sufficiently outrageous.


3        An individual’s sensitivities will not be taken into consideration unless the D is aware of them.


Known vulnerability of P’s age, sex, illness, pregnancy, etc., will be considered by the court.


4      Mere insults are not enough.



2. Intent


1   Purpose/knowledge; OR

2       Substantial certainty; OR

3       Recklessness; OR


Example; D commits suicide, by slashing his throat in P’s kitchen.  D’s estate

is liable because D recklessly disregarded the high risk that distress would occur.


1    Transferred intent applies if;


Family can claim IIED, but they have to be present and actually witness the event, and the actor must be aware that the family is there.  Some jurisdictions require that the family member have suffered physical injury as well.


3. Emotional Distress must be Severe


1    P must show actual severe distress.  Most cases don’t require that the distress resulted in physical bodily harm.


P must show at least that her distress was severe enough that she sought medical aid. 


2        There has to be a causal connection between the conduct and the emotional distress.


TELEGRAPH OPERATORS, COMMON CARRIERS & INNKEEPERS (hotels) have a special obligation to the public and cannot insult their customers.  It is thought that they are in a captive situation.






3        unlawful

4      intentional  (the intent is presumed, even if it was accidental)

5         entry of an individual or an object

6        on to land

7     of another

8      without permission


Trespass to land is defined as the unlawful intentional entry of an individual or an object on to land of another without permission.




1.  Voluntary act.


1    Entry upon the land of another; or

2        Causing another individual or an object to enter the land of another


2.  Intent


1    Purpose/knowledge to enter upon the land; OR

2        Substantial certainty that one will enter upon the land

3        So long as one has the intent to enter upon the land of another.


3.  Damages


1    Does not require actual damages for physical entry.

2        Actual damages required in trespass by intangibles such as gases.

3        The entry must be unauthorized


If D remains on P’s land without the right to be there, even if she entered rightfully is a trespass.


When entry onto the land is just negligent, proof of actual damages is essential to the cause of action.


Scope of “Land”


1    Space above and below the land of which the possessor could make reasonable use.


Example; D, a pilot, loses control of the aircraft, and it lands on P’s property.  This is not trespass to land.


Example; D intentionally decides to land because of some reason or another, than it is a trespass and can also be charged with nuisance.


Particles and gasses:

If D knowingly puts an object on P’s land without permission (or refuses to remove an object).  This includes particles and gases.  If D knowingly allows it to enter P’s property, this is a trespass.

Example; D’s factory spews pollutants onto P’s land.  This is a trespass.


Air space:

It can be a trespass for a plane to fly over P’s property if:  the plane enters into the immediate reaches of the airspace (below federally-prescribed minimum flight altitudes); and if the flight substantially interferes with P’s use and enjoyment of his land (by causing undue noise, vibrations, pollution).


- Hot air balloons landing in another’s property is not a trespass because they do not have control over where they land.  But if you intentionally decide to land because of some reason or another than that is a trespass and you can also charge nuisance.


- When government over-flights have substantially affected habitability of the land below, a court may find a “taking” within the meaning of the 5th A. to the constitution and the government will be required to compensate the owner.


Example; A recreational ranch owner sought compensation for “taking” based on noise from low over-flights by Air Force planes doing touch and go exercises at adjacent airstrip in remote West Texas.  The local government is subject to the same constitutional responsibility.



It is also a trespass to mine under another’s land.  In many western state’s, however, the miner is permitted to follow the vein wherever it may lead, so long as it is unbroken.



Mistake is no defense to this tort.  Because land is very precious to the owner and the owner is entitled to the use (exclusive possession) and enjoyment (security to have the land unimpeded whether you are using it or not) of that land, unfettered by the unlawful trespass of another.  Usufruct is the right to have unfettered use of your property.


Hypo – A customer enters into a room that says “employees only” in a department store.  Trespass


Hypo – A customer opens sliding doors to look for a shirt of a different size.  In the process you tear your hand badly on a nail and bleed.  Are you a trespasser?  A trespasser is owed less care than an invitee and there may be no liability because you were a wrongdoer.


Hypo – Children playing in a garage and were told to stay away from the lighter fluid, but they played with it and started a fire.  The children became intentional tortfeasors when they did something that they were not permitted to do.

* A possible defense –“Attractive Nuisance”, because the lighter fluid was there and available to the children.





2        intentional

3        interference

4      with the right of possession

5        of a person’s chattel

6        or impairs the condition, quality or value.


Trespass to chattel is defined as the intentional interference with the right of possession of a person’s chattel or impairs the condition, quality or value.




1. Intent


1    Purpose/knowledge; OR

2        Substantial certainty

3        Mistake does not negate intent



2.  Loss of Possession


1    If P loses possession of the chattel for any time, recovery is allowed even if the chattel is returned unharmed.


Example; D takes P’s car for a five minute joy ride, and returns it unharmed.  D has committed a trespass to chattels.


3.  Actual Damage


1    Actual damage must be suffered by the owner/possessor of chattel (unlike trespass to land).

2        D is only required to pay damages, not the full value of the property.


ON EXAM – Anytime you have conversion, first begin by explaining trespass to chattel and then progress to conversion (if it has occurred) because it always occurs prior to conversion.


Example; A 4 year old girl saw a dog on the porch of a store and climbed on his back and the dog snapped and bit her in the face.

Held:  The dog is a chattel because it is a moveable object.  The dog was not harmed significantly and she could not be held liable for trespass to the dog.  Concluded, that her conduct did not constitute a trespass which would prevent her from recovering damages for her injuries.


Hypo – If someone flips my page in my open notebook, it is not significant enough to be a trespass to chattel.  But if someone rips my page in the notebook, than it is significant and could possibly be a trespass to chattels.









1    intentional

2        substantial  interference with; or

3        control and dominion

4      over one’s possessory interest

5         in chattel

6        that requires payment for the full value of the chattel


Conversion is defined as the intentional substantial interference with, or control and dominion over one’s possessory interest in chattel that requires payment for the full value of the value.




1.  Intent


1   Purpose/knowledge; OR

2        Substantial certainty

3        Mistake does not negate intent.


All that is required is that D intended to take possession of the property.  Mistake as to ownership is generally not a defense.


Example; D buys an old painting from an art dealer, and reasonably believes that the art dealer has good title.  In fact, the painting was stolen from P years before.  D keeps the painting in his house for 10 years.  D is liable for conversion, regardless of his honest mistake about title.


2. Actual damage is not required


Example; D steal’s P’s car, then seriously (though not irreparably) damages it in a collision.  D is liable for conversion, and will be required to pay P the full value of the car (though D gets to keep the car).



Factors to use in Proving Conversion – Different from Trespass to Chattel


1    Duration & dominion and control

2        Intent of the D

3        D’s good faith or bad faith

4      Extent of the resulting interference or duration of D’s dominion over the party

5         Extent of harm to the chattel; and

6        Inconvenience and expense to the owner





Ways to Convert Chattel


1    Stealing

2        Damaging

3        Using chattel (especially by a bailee)

4      Obtaining possession from a thief

5         Wrongfully selling chattel

6        Delivery of chattel to the wrong person

7     Refusing to return chattel to the rightful owner.










Where a party consents to the intentional conduct of another, the former cannot later bring an action against the other person in intentional tort. 


D who has committed an intentional tort may prevent liability by proving that the P consented to the D’s conduct.


Consent must be knowing & voluntary.


I.  Express Consent – Consent is clearly expressed by the P


II. Implied


1    Implied through P conduct;


2        ROPP standard; would a person in D’s position believe that the P consented.


3        Implied by law; where it is an emergency and there is no time to consent and a ROPP in the P’s position would have consented under the circumstances.


Scope of Consent:  D must stay within scope of consent.  It may be determined based on custom and circumstances of the case.


Consent is ineffective if obtained through fraud or if P is mistaken about a material fact and the D knows of the P’s mistake.  Consent to criminal acts is ineffective (majority).


Consent to criminal acts is effective even if it involves a breach of peace (minority).





Every individual is privileged to use reasonable force to defend against threatened battery by another.


Good faith belief:  individual must reasonably believe that use of force is necessary.

A person may be wrong in their belief, as long as the belief was reasonable.

Threat of harm must be imminent:

1    Harm must be occurring or about to occur.

2        No self-defense allowed for harm which occurred in the past.

3        Once the aggressor has retreated and the threat of harm is no longer imminent, the privilege terminates.


Amount of force allowed:


1    Non-deadly force, no duty to retreat (majority)

2        Deadly force, requires retreat if the party can do so safely, unless the party is in her home. 


3        Reasonable force includes deadly force where it is reasonable to protect against that harm.


Provocations:  Verbal threats alone do not justify self-defense.  The provocations must be accompanied by threat of physical force.





A person may use reasonable force to protect others against imminent threat of harm.


The intervenor must use reasonable force.


Effect of Mistake:

1    Privilege only applies where the 3rd party himself would be allowed to use self-defense.  If the intervenor is mistaken, they may be liable in intentional torts even if the mistake was reasonable.(majority)





A person is privileged to used reasonable force to protect personal or real property.











One may use reasonable force to recover chattel which has been unlawfully taken from them.




May be used when;

2        When the wrongdoer is in the process of taking the chattel; or

3        Shortly after wrongdoer has taken the property, and the rightful owner/possessor is in hot pursuit of the wrongdoer.



Shopkeeper’s Privilege

1    Merchants have the right to detain, for reasonable investigation, an individual whom they believe to have taken a chattel unlawfully.


Elements:  Reasonable belief that the detainee has taken the property; and reasonable time and manner of investigation.  If any of these elements are not fulfilled, the merchant may be liable for false imprisonment.





Public Necessity:


2        Interference with one’s real or personal property is necessary to prevent a disaster to the community or to a large number of people








I.  ELEMENTS OF NEGLIGENCE:   It Is a Prima Facie case


1.     Duty – a legal duty to use reasonable care, so as to avoid unreasonable risk to others.  If you have no legal duty to a person, than you cannot be negligent.  It is closely related to responsibility.


Example; drivers on the highway have a legal duty to other drivers.


2.     Breach – of the standard of care of a reasonable person in those same circumstances.  Thought of as carelessness.


3.     Causation – a reasonably close causal connection between the conduct of the resulting injury. This is proximate cause.  In other words, the proximate cause between the defendant’s act of negligence and harm suffered by plaintiff.  It involves 2 elements; “causation in fact” and “legal or proximate causation.


1    Forseeability


4.     Actual damages or injuries – suffered by plaintiff.  Proof of damage is required.


1    If no harm from the defendant’s negligent conduct, but the plaintiff is threatened, he may be able to obtain an injunction to stop the activity as a “nuisance”





Negligence occurs when the defendant’s conduct imposes an unreasonable risk upon another, which results in injury to that other.  Their mental state is irrelevant.


Plaintiff must show that the defendant’s conduct, viewed as of the time it occurred, without benefit of hindsight, imposed an unreasonable risk of harm.


Courts use a balancing test to determine whether the risk of harm from the defendant’s conduct was so great as to be unreasonable:


1    “Where an act is one which a reasonable person 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 to outweigh what the law regards as the utility of the act or of the particular manner in which it is done.”






A.  Objective Standard:


The reasonableness of defendant’s conduct is viewed under an objective standard.

2        “Would a reasonable person of ordinary prudence, in defendant’s position, do as defendant did?”


B.  Physical and Mental Characteristics:


The question is whether the defendant behaved reasonably “under the circumstances.”   The circumstances generally include the physical characteristics of defendant himself.


3        Physical disability – the standard for negligence is what a reasonable person with that physical disability would have done.


Example; P is blind and is struck while crossing the street using a cane.  If the issue is whether P was contributory negligent, the issue will be whether a blind person would have crossed the street in that manner.


4      Mental characteristics – The mentally handicapped & the insane are held to the same standard as the ordinary person in all types of torts.  The ordinary person is not deemed to have the same particular mental characteristics of defendant.

                The mentally ill pay for there torts because they should pay there way, to make the people                 responsible for them more careful, and b/c we do not know if they are faking.

Example; If defendant is more stupid, or more careless, than an ordinary person, this is not a defense.


5         Children – a child is held to the level of conduct of a reasonable person of that age and experience, not that of an adult.

        Reasonable ordinary Prudent Child

        1) Knowledge

        2) Experience

        3) Maturity

        4) Education

        5) Age

These elements are all subjective

Adult activity:  But where a child engages in an inherently dangerous activity normally pursued only by adults, they will be held to the standard of care that a reasonable adult doing that activity would exercise.

Use of a powered vehicle is normally engaged in by adults (cars, airplanes, ATV’s, tractors etc…)


Example; If the child (defendant) operates a motor boat, an activity that is potentially dangerous and normally pursued by adults, defendant will be matched to the standard of care of a reasonable adult boater.


6        Intoxication – Voluntary Intoxication is no defense.  Even if defendant is drunk, they will be held to the standard of conduct of a reasonable sober person.


Involuntary intoxication is a defense.





C.  Custom:


Courts generally allow evidence as to custom for the purpose of showing presence or absence of reasonable care.  However, this evidence is not conclusive.


7     Evidence by defendant:  Where defendant shows that everyone else in the industry does things the way the defendant did them, the jury is still free to conclude that the industry custom is unreasonably dangerous and thus negligent.


Example; Defendant operates a tugboat without a radio; the fact that most tugboats in the industry do not yet have radios does not prevent the jury for holding that defendant’s lack of a radio was negligent.


8      Proof by plaintiff:  Proof offered by plaintiff that others in defendant’s industry followed a certain precaution that the defendant did not, will be suggestive but not conclusive evidence that defendant was negligent.



D.  Emergencies:


If defendant is confronted with an emergency, and is forced to act with little time for reflection, defendant must merely behave as a reasonable person would if confronted with the same emergency, not as a reasonable person would with plenty of time to think.

As long as, he didn’t create the emergency through his own negligence.

What would a Reasonable Ordinary Prudent Person under the Circumstances do?

If the person is in Imminent Peril then he must act immediately/ It is a reflex action and may be excused

If there is time to reflect goes with the Emergency Doctrine and there is a higher degree of care.


Example; D is a cab driver.  A thief jumps in the cab, points a gun at D’s head, and tells him to drive fast.  D, in a panic, mistakenly puts the car in reverse and injures plaintiff.  The issue is whether a cab driver confronted with a gun-pointing would or might have behaved as D did, not whether a cab driver in ordinary circumstances would have behaved that way.


E.  Anticipating conduct of others:


A reasonable person possesses at least limited ability to anticipate the conduct of others.                                 


9     Negligence:  Defendant may be required to anticipate the possibility of negligence on the part of others.


Example; It may be negligent for the defendant to assume that all drivers near him will behave non-negligently, and that others will not speed, signal properly, etc.


10Criminal or intentionally tortuous acts:  Normally the defendant is entitled to presume that third persons will not commit crimes or intentional torts.


Special knowledge:  But if the defendant has a special relationship with either the plaintiff or the third person, or special knowledge of the situation, then it may be negligence for defendant not to anticipate a crime or an intentional tort.


Example; It may be negligence for defendant, a psychiatrist, not to warn P that a patient of defendant’s is dangerous to P.





A.  Superior Ability or Knowledge:


If D has a higher degree of knowledge, skill or experience than the “reasonable person,” D must use that higher level.


Example; D, because she is a local resident, knows that a stretch of highway is exceptionally curvy and thus dangerous.  D drives at a rate of speed that one who did not know the terrain well would think was reasonable, and crashes, injuring her passenger, P. Even though D’s driving would not have represented carelessness if done by a reasonable person with ordinary knowledge of the road, D was responsible for using her special knowledge and is negligent for not doing so.


Not responsible for mere errors in judgments.  An error in a stragic decision.  This will not constitute negligence, unless it is a gross deviation from the norm.


B.  Malpractice Generally:


Professionals, including doctors, lawyers, accountants, engineers, etc., must act with the level of skill and learning commonly possessed by members of the same profession in good standing.


11Good results not guaranteed:  The professional will not normally be held to guarantee that a successful result will occur only that she will use the requisite minimum skill and competence.


12Differing schools:  If there are conflicting schools of thought within a profession, D must be judged by reference to the belief of the school he follows.


Example; An osteopath is judged by the standards of osteopathy, not the standards of medicine at large.


1    Specialists:  If D holds out as a specialist in a certain niche in her profession, she will be held to the minimum standard of that specialty.


Example; An M.D. who holds herself out to be as an ophthalmologist must perform to the level of the minimally competent ophthalmologist, not merely to the minimum level of the internist or general practitioner.


2        Minimally qualified member:  It is not enough for P to prove that D performed with less skill than the average member of the profession.  D must be shown to have lacked the skill of the minimally qualified member in good standing.


           - Novice:  One who is just beginning the practice of his special profession is held to the same level of competence as a member of the profession generally. 


Example; A lawyer who has just passed the bar does not get the benefit of a lower standard – he must perform at the level of minimally competent lawyers generally, not novices.   


3        Community standards:  Traditionally, doctors and other professionals have been bound by the professional standards prevailing in the community where they practice, not by a national standard.  However…..


Example; Traditionally, the “country doctor” need not perform with the skill commonly found in cities.


Change in rule:  But this rule is on its way out, and many if not most courts would today apply a national standard.  In “modern” courts, P may therefore use expert testimony from an expert who practices outside of D’s community.


4      Informed Consent:  The rule of “informed consent.”  Imposes a duty on the physician or surgeon to inform patients of options and their risks.  The doctor must disclose to the patient all risks inherent in the proposed treatment which are sufficiently material that a reasonable patient would take them into account in deciding whether to undergo the treatment.


Failure to get the patient’s adequate consent is deemed a form of malpractice and thus a form of negligence.  If a physician breaches that duty, patients consent is defective, and physician is responsible for consequences.  Three elements based on lack of informed consent:  duty to inform, causation, and injury.  Plaintiff requires an expert witness. 


Expert witnesses do not have to testify unless they wish to.     


If treatment is unauthorized, no consent at all, this is a battery.  No expert witness is needed to prove plaintiff’s case.





Generally a minority of states still have “automobile guest statutes” on their books.  These generally provide that an owner-driver is not liable for any injuries received by his non-paying passenger, unless the driver was grossly negligent or reckless.





A. “Negligence per se” doctrine:


This is where a statute or ordinance imposes upon any person a specific duty for the protection or benefit of others (in other words a safety statute).  If an unexcused violation of that statute by D is negligence per se, and thus conclusively establishes that D was negligent.  Use when a safety statute has a sufficiently close application to the facts of the case at hand.


Example; D drives at 65 mph in a 55 mph zone.  While so driving, he strikes and injures P, a pedestrian.  Because the 55 mph limit is a safety measure designed to protect against accidents, the fact that D has violated the statute without excuse conclusively establishes that D was negligent – D will not be permitted to argue that it was in fact safe to drive at 65 mph.


5         Ordinances and regulations:  In most states, the negligence per se doctrine applies to the violation of a statute.  Where the violation is of an ordinance or regulation, courts are split about whether the doctrine should apply.  A few states give lesser effect to ordinances than they do statutes.


B.  Statute must apply to the facts:


The negligence per se doctrine will apply only where P shows that the statute was intended to guard against the very kind of injury in question.


6        Class of persons protected:  This means that P must be a member of the class of persons whom the statute was designed to protect.


Example; A statute requires that all factory elevators to be provided with a certain safety device.  The legislative history shows that the purpose was only to protect injuries to employees.  P, a business visitor, is injured when the elevator fails due to lack of the device.  P cannot use the negligence per se doctrine, because he was not a member of the class of persons whom the statute was designed to protect.         


7     Protection against particular harm:  Second, the statute must have been intended to protect against the particular kind of harm that the statute was designed to protect, and which P seeks to recover for.


Example:  A statute requires that when animals are transported, each breed must be kept in a separate pen.  D, a ship operator, violates the statute by herding P’s sheep together with other animals.  Because there are no pens, the sheep are washed overboard during a storm.  P cannot use the negligence per se doctrine, because the statute was obviously intended to protect only against spread of disease, not washing overboard.    


8      Excuse of violation:  The court is free to find that the statutory violation was excused, as long as the statute itself does not show that no excuses are permitted (strict liability)





Typical reasons:

D was reasonably unaware of the particular occasion for compliance;

D made a reasonable and diligent attempt to comply;

D was confronted with an emergency not of his own making;

Compliance would have involved a greater risk of harm.


Example; A statute requires all brakes to be maintained in good working order.  D’s brakes fail, and he can’t stop, so he runs over P.  If D can show that he had no way to know that his brakes were not in working order, his violation of the statute would be excused, and the negligence per se doctrine would not apply.


                In Texas firing a gun across a road is considered negligence per se.


9     Contributory negligence per se:  If the jurisdiction recognizes contributory negligence, D may get the benefit of contributory negligence per se where P violates a statute.

Clean hands Doctrine-You can’t come into court with dirty hands, or you are out of court.


Example; Cars driven by P and D collide.  If P was violating the speed limit, and the jurisdiction recognizes contributory negligence, D can probably use the negligence per se doctrine to establish that P was contributory negligent.


10Compliance not dispositive:  The fact that D has fully complied with all applicable safety statutes does not by itself establish that he was not negligent – the finder of fact is always free to conclude that a reasonable person would take precautions beyond those required by statute.


Gross Negligence-a lack of slight diligence or care, a conscious, voluntary act or omission in reckless disregard of a legal duty and of the consequences to another party/you can get punitive damages for gross negligence

 Guest Statute-you can not sue unless the other person was grossly negligent

                          -family members can’t sue each other unless of gross negligence

Good Samaritan Statute-exempts from liability a person who voluntarily renders aid to another in imminent danger but negligently causes injury while rendering aid

Slight Negligence-does not exist any more/so we use gross negligence





Plaintiff bears the burden of proof.  This is two distinct burdens.


11Burden of production:  First, P must come forward with some evidence that D was negligent, that P suffered an injury, and that D’s negligence proximately caused the injury, etc.  This burden shifts from P to D, and maybe back again during the trial.


12Burden of persuasion:  P must convince the jury that t is more probable than not that his injuries are due to D’s negligence.  The D can raise the possibility of other causes, they don’t have to prove “more probable than not”


Judge decides all questions of law.  They decide whether reasonable people could differ as to what the facts of the case are; if they could not, he will direct a verdict.


Jury decides the facts.  It is usually the jury that decides whether D’s conduct satisfied the “reasonable person standard.”





A. Generally:  -very cheap evidence, it is only used if nothing else will help you, normally the jury will not be impressed about it because they will be instructed that it is only of inferential value, and they can take it or leave it.  It will rarely be used to prove negligence. 


The doctrine res ipsa loquitor, “the thing speaks for itself” allows P to point to the fact of the accident, and to create an inference that, even without a precise showing of how D behaved, D was probably negligent.


Example:  A barrel of flour falls on P’s head as he walks below a window on the street.  At trial, P shows that the barrel fell out of a window of D’s shop, and that the barrels do not fall out of windows without some negligence.  D had exclusive control.  By use of the res ipsa loquitor doctrine, P has presented enough evidence to justify a jury verdict for him, so unless D comes up with rebuttal evidence that the barrel did not come from his shop or was not dropped by negligence, D will lose.


B. Requirements for:


Courts generally impose 4 requirements.


1    No direct evidence of D’s conduct:  There must be no direct evidence of how D behaved in connection with the event.


2        Seldom occurring without negligence:  P must demonstrate that the harm which occurred does not normally occur except through the negligence of someone.  P only has to prove most of the time negligence is the cause of such occurrences.


Example:  If an airplane crashes without explanation, P will generally be able to establish that airplanes usually do not crash without some negligence, thus meeting the requirement.


1    Exclusive control of defendant:  P must demonstrate that the instrumentality which caused the harm was at all times within the exclusive control of D.


Example:  P, while walking on the sidewalk next to D hotel, is hit by a falling arm chair.  Without more proof, P has not satisfied the “exclusive control” requirement, because a guest, rather than the hotel, may have had control of the chair at the moment it was dropped (Larson v. St. Francis Hotel).


 Multiple defendants – If there are two or more defendants, and P can show at least one of the defendants was in control, some cases allow P to recover (minority approach).  This is especially likely where all of the D participate together in an integrated relationship.


Example:  P is injured while on the operating table, and shows that either the surgeon, the attending physician, the hospital, or the anesthesiologist must have been at fault, but is unable to show which one.  P gets the benefit of res ipsa, and it is up to each individual defendant to exculpate himself (Ybarra v. Spangard).

Joint and Severable liability-when you have several people together they share responsibility but each defendant has the duty to present a defense. 

2        Not due to plaintiff:  P must establish that the accident was probably not due to his own conduct.


3        Evidence more available to D:  Some courts also require that evidence of what really happened be more available to D than to P.


Example:  This requirement is satisfied on the facts of Ybarra, supra, since the Ds obviously knew more than the unconscious patient about who was at fault.


1   Plaintiff was harmed.


C.  Effect of res ipsa:


It permits an inference that D was negligent, even though there is no direct evidence of negligence. 


It allows circumstantial evidence.  When res ipsa is used, P has met his burden of production, and is thus entitled to go to the jury.



D. Rebuttal evidence:


If D can merely show that he was in fact careful (in other words, shows general evidence of due care), this is not enough to give D a directed verdict, and the case will still go to the jury.


But if D’s evidence directly disproves one of the requirements for the doctrine, then D will get a directed verdict (assuming there is no prima facie case apart from res ipsa).          

In other words, the judge will decide the case (direct the case) without the facts going to the jury.


Example:  If D can show that the instrument that caused the harm was not within his control at all relevant times, the doctrine will not apply, and D may get a directed verdict.





It is a form of vicarious liability, “let the superior answer for the tort.”


Borrowed Servant doctrine (Captain of the ship)-makes the nurse the employee per tem of the doctor.  Texas does not have the doctrine.   The captain is responsible for the actions of his employees.  resp ispa is not strict liability, you only get to the jury and hope for the best


In Texas there are only few occasions were Res ipsa works in the medical community:

1) resp ipsa locquitur will apply in cases of x-ray burns,

2) operations on the wrong part of the body,

3) mechanical devices,  

4) foreign objects. 

The reasoning is because the medical science is beyond the grasps of the jury they must have expert testimony to help establish the evidence.


Here an ER is held liable for the negligence of his EE if the ER had control over the actions of his EE when the negligence occurred.  If EE is acting outside of the scope of his employment, ER is not responsible.



- ER has deep pockets

- ER is able to spread the costs to all of society by raising prices

- ER can easily insure against such losses


This is a fair result if one believes that the ER, who controlled the activities of his EE, was partially at fault for failing to keep the work environment safe for third parties.


If the ER is a 5101C3 than they are classified as a charitable entity and are responsible for less (“charitable immunity”).


ER does have the defense of “independent contractor”


Texas still has res ipsa locquitor under other cases.


****Single automobiles are available under res ipsa but multiple vehicles are not because there is a presumption of some control.





P must show that D’s conduct was the “cause in fact” of P’s injury.  In other words, did the negligence increase the likelihood of harm.


P must show that the conduct “more likely than not” caused the harm. 


Each D’s conduct must be a substantial factor in bringing about the P’s injury.  When this is proven, both D’s are liable separately for the P’s damages.


1    Joint & several liability – allows the P to recover all of his damages from one D, or to recover part of his damages from each D.  It is up to the D to seek reimbursement from the other D’s who were also liable.

P must show that there is a causal connection between the injury and the harm.


A. The “But for” test: (cause in fact):


The conduct was a “but for” cause of P’s injuries, or “sine qua non”had D not acted negligently, P’s injuries would not have resulted.


We cannot hold people liable for ever for everything.


Example:  A statute requires that all vessels have life boats.  D sends out a boat without life boats.  P, a sailor falls overboard in a storm so heavy that even had there been a life boat, it could not have been launched.  P drowns. Even assuming that D was negligent per se, D’s failure to provide life boats is not a cause in fact of P’s death, because that death would have occurred even without the failure.  Therefore, D is not liable.

On the exam you must explain the problem and the remedy.  But also you need to explain completely how you got to that point. 


1    There can be multiple “but for” causes of an event.  D1 cannot defend on the grounds that D2 was a “but for cause of P’s injuries – as long as D1 was also a “but for” cause, D1 is viewed as the “cause in fact.”


B. Concurrent Causes:


Sometimes D’s conduct can meet the “cause in fact” requirement even though it is not a “but for” cause.  This happens where two events concur to cause harm, and either one would have been sufficient to cause substantially the same harm without the other.  Each of these concurring events is deemed a cause in fact of the injury, since it would have been sufficient to bring the injury about.


Example:  Sparks from D’s locomotive start a forest fire; the fire merges with some other unknown fire and the combined fires burn P’s property.  Either fire alone would have been sufficient to burn P’s property.  Therefore, D’s fire is a cause in fact of P’s damage, even though it is not a “but for” cause.  (Kingston v. Chicago & N.W.Ry.)


C. Multiple Fault:


If P can show that each of 2 or more D’s was at fault, but only one could have caused the injury, the burden shifts to each D to show that the other caused the harm.



P, D1 & D2 go hunting together.  D1 & D2 simultaneously negligently fire, and strike P.  It is unknown who fired the fatal shot.  Court puts the burden on each D to show that it was the other shot which hit P.  If neither can make this showing, both will be liable (Summers v. Tice).


2        The “market share” theory:  It is used in product liability cases.  If P cannot prove which of 3 or more persons caused his injury but can show that all  produced a defective product, the courts will require each of the D’s to pay that percentage of P’s injuries which that D’s sales bore to the total market sales of that type of product at the time of injury.  The theory is used most often in cases involving prescription drugs.  And use a national (as opposed to local) m.s.



The court held, that any manufacturer who cannot show that it could not have produced the particular doses taken by P’s mother will be liable for the proportion of any judgment represented by that manufacturer’s share of the overall DES market.   (Sindell v. Abbott Laboratories).  The D’s are held liable for their market share.  If have 50% m.s, then they are liable for 50%.  Some courts follow this rule, while others reject it and say that they must prove that the D sold the pill that damaged the P.


Exculpation – Some courts allow each D to exculpate itself by showing it did not make the particular items in question, others hold that once a D is shown to have produced drugs for the national market, no exculpation allowed.


Joint & several liability is rejected by the courts using the M.S. theory.  They allow the P to collect from any D only that D’s proportionate share of the harm caused.


The more socially valuable the product, the less likely the court is to apply a M.S. doctrine.  Example, a court is likely to reject the doctrine where the product is a vaccine.


E. Increased risk, not yet followed by actual damage:


If P’s damage has not yet occurred, but D’s conduct has increased the risk that P will

suffer some later damage, most courts deny P any recovery unless P can show that it is

more likely than not to occur eventually.  But some courts will allow recovery for such


LEGAL OR PROXIMATE CAUSE (-has to do with policy)

Think in terms of proximate result.  How far am I going to track.  Run all five theories to see how they work.


Proximate Cause-a cause that is legally sufficient to result in liability/ a cause that directly produces an event and w/out which the event would not have occurred


In addition to proving cause in fact, p must show that the D’s conduct was the proximate cause of the injury.  Requires a natural sequence, unbroken by intervening causes that results in some injury.  It really depends on the facts & the circumstances surrounding each case.

Generally, D will not be liable for the consequences that are very unforeseeable.


Example; Train is going over the speed limit, however the passengers in vehicle still did not hear the whistle of the train.  Expert testimony showed that the passengers would have gotten in the accident anyway.  Therefore the excessive speed of the train was not the proximate cause.


No proximate cause if the causal chain is overly tenuous. 

Example; A granddaughter with birth defects has no negligence claim against a manufacturer who produced a drug that the grandmother ingested while pregnant.

                (Enright v. Eli Lily & Co.)


New York Fire Rule – An owner who has had his property destroyed by fire through his own negligence will be liable for the next property over, but not for damages to property beyond that point.  Ryan v. New York Central R.R. Co.  If you own the nest property, you’re resp. to yourself.  The next property owner that is not the D. 


Learnered intermediary doctrine-a doctor prescribes a drug for a patient.  If there is something wrong with the drug, the doctor is the learnered intermediary and his responsibility is to tell the patient the risks of the drugs and he cuts out between the drug company and the FDA.  Up until now the drug company was not liable because the doctor was the one who was responsible for telling the patient about the risks of the drugs.  The question of warnings is very subjective.  This is just a way for the drug companies to insulate themselves from liability for defective products.  This is not going to fly says Weigold b/c doctors only spend only a few minutes with the patients and that just isn’t enough time to make the patient fully aware of the risks.  This doctrine will soon go away. 









Multiple Proximate Causes: An occurrence can have more than one proximate cause.


Example; Each of 2 drivers drives negligently, and P is injured.  Each driver is probably a proximate cause of the accident.




Polemis (Direct Tracing) Rule – this test makes D liable for all damages which could be traced directly back to the D’s act of negligence.  Under this test, you are responsible for the consequences as far as they reach.   If some damage is foreseeable, you pay.   You look back and draw a line around all of the damage. 

You would trace the cause all the way back until where it starts. 

4         D driving carelessly collides w/ a car driven by X.  Unbeknownst to D, the car contains dynamite, which explodes.  Ten blocks away, a nursemaid was carrying infant P and dropped her.  D not liable b/c the injury could not be directly traced to D’s negligence.


Wagon Mound #1 – (a rejection of Polemis)

-which states that proximate cause must be reasonably foreseeable.  Consequences too remote will not be considered a direct result.

Discharge of furnace oil was against harbor rule—neg. as a matter of Law?  No—rule was made to prevent pollution.

                                                D is liable only for those consequences of his negligence which were                                                                      reasonably foreseeable at the time he acted.


Example; D’s ship spills oil into a bay.  Some of the oil adheres to P’s wharf.  The oil is then set afire by some molten metal dropped by P’s worker, which ignites a cotton waste floating on the water.  P’s whole dock then burns.  Held, D is not liable, because the burning of P’s dock was not the foreseeable consequence of D’s oil spill, and thus the oil spill was not the proximate cause of the damage.  This is true even though the burning may have been the “direct” result of D’s negligence.  (Wagon Mound No.1)


Wagon Mound #2 – increased the liability of Wagon Mound #1 to any damage that is remotely foreseeable.  Small risks not worth ignoring—possibility of fire should’ve been foreseen.

                                                The foresee ability of consequences depends on the balancing between the                                                          likelihood of risk and the magnitude of damages flowing there from.  (Wagon                                      Mound No 2). 


They have moved from direct tracing to reasonably foreseeable and then back towards direct tracing through what is remote foresee ability. 

We are also talking about standard of care because you look back to see what would a reasonable ordinary prudent person.









Palsgraf (fireworks package explodes on the way on to train and injures a woman) 2 views:

To recover, plaintiff must show that defendant owed him a duty that was then breached by defendant.



1.  CARDOZO (Majority) – A defendant is only liable to those persons who are within the D’s foreseeable zone of danger.


·              Zone of danger- what the “eye of reasonable vigilance” sees—sees to whom you owe a duty.

·              Manner of determining what plaintiffs are possible—duty is owed to whom you could foreseeable   harm.

·              Only responsible to the man whose package it was—only what is foreseeable, not every possible P.


a)  The plaintiff must show a wrong to herself; i.e., a violation of her own right, not merely a wrong to someone else or an unsocial act.


b)  The reasonably perceivable risk defines the duty to be obeyed.  The risk extends to those within the range of reasonable apprehension.


c)  The purpose of the guard's act was to make the passenger safe.  If there was a wrong at all, it was to the safety of the package.  There was nothing in the situation to suggest to the most cautious mind that the parcel would spread wreckage through the station.


d)  Negligence itself is not a tort; it must be negligence in relation to the plaintiff.


2.  ANDREWS (Minority) – All plaintiffs are foreseeable.

2.             Justice Andrews (Dissent-Minority; more favorable to courts)-

·              Duty is not to individual but to society at large

·              Owe a duty to everybody

·              Hints:

                a.             Natural & continuous sequence?

                b.             Substantial factor of other?

                c.             Without too many intervening causes?

                d.             Can you foresee the result?—is the effect of cause on result too thin


a)  Where an act unreasonably threatens the safety of others, the wrongdoer is liable for all proximate consequences regardless of whether they are unforeseeable or unexpected.


b) The doctrine of proximate cause is a tool which allows the law to arbitrarily decline to trace a series of events beyond a certain point.


c)  Due care is a duty imposed on everyone to protect society from unnecessary harm.  To say that there is no negligence unless there is a legal duty owed to the plaintiff himself is too narrow a conception.  Where there is an unreasonable act, there is negligence.










Kinsman I—P.’s house flooded due to river backup.  Court followed Cardozo, awarded almost limitless damages (deep pocket theory).

Kinsman II—court drew a line to limit damages, followed Andrews.



Measurement of Duty/Damages

1.  Polemis—damage as far as it reaches

2.  W. Mound I—damage that is foreseeable

3.  W. Mound II—what is remotely foresee.

4.  Cardozo—“Zone of Danger”




1   Egg Shell Skull    (Thin Skull)


Thus if P, unbeknownst to D, has a very thin skull, and D negligently inflicts a minor impact on his skull, D will be liable if, because of the hidden skull defect, P dies.  The D “takes the P as he finds him.”  Thin skill rule is for negligence not intentional torts. 


2       General class of harm but not the same manner


As long as the harm suffered by P is of the same general sort that made D’s conduct negligent, it is irrelevant that the harm occurred in an unusual manner.


Example; D gives a loaded pistol to X (an 8 yr old), to carry to P.  X drops it injuring the barefoot of Y (his playmate).  The fall sets off the gun, wounding P.  D is liable to P, since the same general kind of risk that made D’s conduct negligent (the risk of accidental discharge) has materialized to injure P.  The fact that the discharge occurred in an unforeseeable manner – by dropping the gun – is irrelevant.  But D is not liable to Y, since Y’s foot injury was not foreseeable, and the risk of it was not one of the risks that made D’s conduct initially negligent.


Where it is reasonably foreseeable that the D’s N conduct would cause damages to the P, the D is liable even though the exact extent of the damages is not foreseeable


Going to the jury is a matter of law.  Once it is in the juries hands then it is a matter of fact. 


3       P part of the foreseeable class


The fact that injury to the particular P was not especially foreseeable is irrelevant, as long as P is a member of a class as to which there was a general foresee ability of harm.


Example; D negligently moors its ship, and the ship breaks away.  It smashes into a draw bridge, causing it to create a dam, which results in a flood.  The Ps, various owners whose property is flooded, sue.  Held, these owners can recover against D, even though it would have been hard to foresee which particular owners might be flooded.  All of the Ps were members of the general class of riverbank property owners, as to which class there was a risk of harm from flooding.  (Petition of Kinsman Transit Co.)





An intervening cause is one which is set into motion after the original negligence of the D.

If an intervening cause is foreseeable, then the causal chain is not broken and the D is liable.


If it is not foreseeable, it breaks the causal chain between the original negligent conduct, and harm to the P.  An intervening cause which breaks the causal chain is known as a superseding cause.


Rule ***If the act is criminal in nature, the subsequent (intervening act) it is by definition unforeseeable.  This is not all ways the case. 

                Exp. I negligently leave a key in the ignition.  Along comes a thief and steals the car.  There was a statute prohibiting leaving keys in a car.  Leaving a key in the car is foreseeable that a thief will steal the car and may cause harm. 

                Exp.  If I leave a gun in view in my car and a person breaks in and  uses the gun to kill someone, it is foreseeable that my gun  may be used to cause harm.  Foresee ability can be seen in some criminal cases and my liability may still be there even if another person causes the harm through my negligence. 


A. Superseding Cause:


Intervening causes that are sufficient to prevent D from being negligent are called “superseding” causes, since they supersede or cancel D’s liability.


4      Foresee ability Rule:  The Test


If D should have foreseen the possibility that the intervening cause (or one like it) might occur, or if the kind of harm suffered by P was foreseeable (even if the intervening cause was not itself foreseeable), D’s conduct will nonetheless be the proximate cause.  But if neither the intervening cause nor the kind of harm was foreseeable, the intervening cause will be a superseding one, relieving D of liability.


Non-superseding Causes:


Foreseeable Negligence – The negligence of 3rd persons that is sufficiently foreseeable will not relieve D of liability.


Example; D is a tavern owner, who serves too much liquor to X, knowing that X arrived alone by car.  D also does not object when X gets out his car keys and leaves.  If X drunkenly runs over P, a court will probably hold that X’s conduct is negligently (drunkenly) driving, although intervening, was sufficiently foreseeable that it should not absolve D of liability.


Example; A host is liable for the negligence of an adult social guest who has become visibly intoxicated at the host’s home, provided the risk of harm is foreseeable.


Criminally or intentionally tortuous conduct  D’s are not responsible for the intentional, malicious intervening acts of a 3rd party which are not reasonably foreseeable. (Watson v. Kentucky & Indiana Bridge & R.R. Co.)


An intervening act of a 3rd party that is a normal and foreseeable response to the D’s act, the act will not be considered superseding.


5         Escape:  If in response to the danger created by the D, P or someone else attempts to escape that danger, the attempted escape will not be a superseding cause so long as it was not completely bizarre.


A railway car is over loaded and a boy fell over the back because the train lurched forward and there was only a chain there to hold people in.  The kids cousin jumped over to help save him.  You look at the rescue doctrine, good Samaritan doctrine-which gives rise to duty, contributory, comparative, emergency doctrine, and assumption of risk doctrines.


6        Rescue:  A negligent D is also liable to a 3rd party rescuer who is injured in an attempt to rescue the originally injured party and may be liable to the person being rescued (even if part or all of his injuries are due to the rescuer’s ordinary negligence).


7     Aggravation of Injury by Medical Treatment:  If D negligently injures P, who then undergoes medical treatment, D will be liable for anything that happens to P as the result of negligence in the medical treatment, infection, etc.


Except for gross mistreatment that is so unusual and bizarre that it will be considered superseding.


1    Suicide:  Committed by a person who was driven insane by a D’s tortuous act, is not a superseding cause which precludes liability.  But D can not be responsible for everything forever.  It must be foreseeable that the suicide would occur.  Use common sense.  


Unforeseeable intervention that leads to foreseeable results:  Is one that leads to the same type of harm as that which was threatened by D’s negligence, is usually not superseding.


Example; A telephone pole is negligently maintained by D and becomes infested with termites.  X drives into the pole and it breaks and falls on P.  Even though the chain of events is bizarre, X’s intervention is not superseding, because the result that occurred was the same general type of harm as that which was threatened by D’s negligence – that the pole would somehow fall down.


Unforeseeable intervention that has unforeseeable results:  Is one that produces results that are not of the type that made D’s conduct negligent in the first place, the intervention will probably be superseding.


2        Extraordinary acts of nature


A 3rd persons’ failure to discover and prevent a danger will almost never be superseding.  For instance, if a manufacturer negligently produces a dangerous product, it will never be absolved merely because some person further down the distribution chain negligently fails to discover the danger, and thus fails to warn P about it.


But, if the 3rd person does discover the defect, and then willfully fails to warn P, D may escape liability if D took all reasonable steps to remedy the danger.


B.  Dependent v. Independent Intervening Causes:


3        Dependant           

- Occurs only in response to D’s negligence

- They are more foreseeable, and less likely to be superseding

- But they can be superseding, e.g., a grossly negligent rescue attempt.


4      Independent

– it would have occurred even if D hadn’t been negligent, but can be non-superseding.


C.  Unforeseeable Plaintiff:


D is liable only for foreseeable plaintiffs.  In other words, only to those P’s who are in the reasonably foreseeable zone of danger.  That is, if D’s conduct is negligent as to X (in the sense that it imposes an unreasonable risk of harm upon X), but not negligent as to P (i.e., does not impose an unreasonable risk of harm upon P), P will not be able to recover if through some fluke he is injured.


Example;  Palsgraf v. Long Island R.R. Co.)



4 Ways to get to Proximate Cause:


You have already established that you are the actual cause, but you are trying to cut off liability.


1.  Public policy   

2.  The consequences were not foreseeable

3.  There is an intervening superseding act.  It cannot just be an intervening act, because it could bring about the exact act that was going to happen.  It must be a superseding act, one that is so bizarre that it was not foreseeable, this is not an intervening cause.

4.  The acts of 3rd parties by actions or inaction relieves the D because the responsibility shifts from the D to the 3rd party.

















5         Specific Intent – acted with  purpose or knowledge

6        General Intent – acted with substantial certainty




1    D acted with the purpose of commit an intentional tort and accomplished committing one of the 5 intentional torts.  (assault, batter, false imprisonment, IIED, trespass to land).




Assault is defined as the unlawful, intentional placing of another in apprehension of an imminent harmful or offensive contact.




Battery is defined as the unlawful, intentional harmful or offensive contact of another without justification or excuse.


Harmful if it causes bodily injury.

Offensive if it injures dignity (like spitting).

Agent – can be accomplished through an agent.

Close intimate object connected to the person.




False imprisonment is defined as the unlawful, intentional restraint or confinement of another in a bounded area without justification or excuse and the person is aware of it.


Children – awareness factor is waived

Serious injuries – awareness factor is waived




IIED is defined as the intentional or reckless infliction of severe emotional distress through extreme or  outrageous conduct. 


Seeking medical attention for physical manifestations (sleeplessness) aids in proving your case.

Known vulnerabilities and children, pregnant women, illness, the court is more lenient.

If acting reckless, punitive damages awarded




Trespass to land is defined as the unlawful, intentional entry on to land by an individual or an object without permission.








Trespass to chattel is defined as the unlawful intentional interference with the right of possession of a person’s chattel that impairs the condition, quality, or value of that chattel.




Conversion is defined as the intentional substantial interference or dominion and control over the possessory rights of a person’s chattel which results in payment for the full value of the chattel.





Negligence is defined as the duty of a certain standard of care and the breach of that duty causes harm to the P.



The standard of care is to act as a ROPP would in those same circumstances.


The standard of care is to act as;

2        a Professional

3        Emergency situations

4      Physically impaired person

5         Children doing an adult activity = adult standard


Acts / Omissions;


1. Duties of Land Owners


1    Landowner – duty to use reasonable care to protect those around the premises.  No duty to go beyond common methods of inspection.


2        Urban LO – duty to inspect trees, since the burden imposed is small.  There is more of a duty for urban artificial or natural conditions.


3        Rural LO – duty to make safe or eliminate known dangers to those outside of the premises.  But once you create an artificial condition, there is more of a duty to keep it up and protect others.


4      Trespassers – no duty to anticipate the presence of T.  They take the land as they find it.

Discovered T – where the lo has reasonable cause to know of the T presence they must exercise due care in their activities.

Anticipated T – where the lo knows that the property is used by T especially along a certain path, they have a duty to look out and warn them of any dangers.


1    Licensees – they have legal authority to be on the land or permission, but it is for their own purpose or benefit.

Land owner has a duty to warn of any known or hidden dangerous conditions, either natural or artificial or make safe.  If obvious, than no need.

                                Social guests, police & firemen (unless they were called by the owner), salesmen


2        Invitees – Are there for the benefit of the owner.  There is more of a duty to make safe all conditions. (“wet floor signs”)

Customers are invitees, but if they go into a back room to get an item, they might become a licensee although the owner is going to benefit if the customer goes back there so she is still an invitee.


An account holder in a bank there to conduct business is an invitee.  If they then go into the lobby to look at a painting they become a licensee.

Child Trespassers – duty of reasonable care.  Can be liable for “attractive nuisance”



2.  Special Relationships;


The duty is to warn and prevent harm to the 3rd party.


Psychiatrist & patient – the Psych has a duty to exercise reasonable care to protect the foreseeable victim.

Parent & child

Landlord & tenant


3.  Duty to Rescue;


“Good Samaritan rule” – A pure volunteer acting with no duty, but once you start to help, you create a duty.

No duty unless; you create the peril, or you undertake the act, and cannot prevent 3rd party aid or act with gross negligence.


“Danger invites rescue doctrine” (Cardozo) – anyone who goes to the rescue of someone in danger is foreseeable and the party that created the danger is liable for any injuries to the rescuer as long as they were exercising reasonable care in their actions.


4.  Gratuitous Undertakings;


Liable for any gratuitous act or promise that increases the risk or harm, due to reliance upon the undertaking.




P must prove that the D’s N conduct was the cause in fact of the injury, and also the proximate cause or the legal cause of the injury.


I.  Cause in Fact:


Sine Qua Non


It is the “but for” causation.  The P must prove the injury would not have occurred “but for” the D’s N.

If it passes the “but for” test, than it is a substantial part of the injury.

Therefore, N is the cause in fact of the harm if it was a substantial factor in bringing about the harm. 


Can only have 1 cause in fact.

Probability – means it is more likely than not (a possibility is insufficient)

Med. Mal. Cases – N and the injury must be established by expert testimony that no other cause could have caused the injury.


“Loss of chance rule” – If the P has a < 50% chance of survival and the M.D misdiagnosis the disease and is found N at the time of the misdiagnosis.  The court says you had only a chance or a possibility of survival and therefore you have lost your chance b/c it is not probable that P can survive anyway.  Therefore, the M.D is only held liable for the percentage of life that P lost as a result of the misdiagnosis (<50% chance minus the delay in diagnosis the P lost 14% of her chance of survival, courts take the difference and award damages for that amount = 36%).


                TEXAS – doesn’t recognize.  If you don’t have at least a 50% chance, you don’t have a case b/c

                there is no probability that you would have survived anyway.  If > 50%, there is a probability that

                you would have survived.


Concurrent Causes


Separate acts of N combine to cause indivisible harm each D is liable for the entire result even if each D’s act alone may not have caused the result.  And if 2 events are independently sufficient to cause an injury, each D is still liable for the full extent of the injury. 

Example; If either fire alone was a “substantial factor” in causing the damage than they would both be held liable.

3        Joint & several liability & Joint tortfeasors

Two or more act in concert or independently, and cause indivisible harm both, each D is liable for the entire harm (each are jointly and severally liable).  The court may find one liable for the whole percentage of the damage if the other has no resources.  If the harm is divisible, each D pays for the harm he himself caused.



4      Market Share Liability


Each D will be held liable for their share in the market place to award damages.  Unless they can demonstrate that they could not have been the one to make the product which caused the P’s injuries.



II. Proximate Cause (the legal cause & the scope of liability)


It is the cause which in the ordinary and natural sequence of events, is unbroken by any independent factors, and causes a certain consequence. 

It deals with the foresee ability of the risk of harm and the foresee ability of plaintiffs.  If an independent factor is not foreseeable and it breaks the causal chain than it is a superseding cause and the D is not liable.  If an independent factor is foreseeable, it does not break the causal chain and the D is liable.

There are several views on to whom does the D owe a duty. 


It is a policy determination of whether or not to hold the D liable where cause in fact has been established.

It is a concept that can cut of liability even though there is cause in fact.


“A pebble dropped into still water” – It produces a ripple effect and PC deals with how long the courts are willing to imply liability.  How far out from the center do you find liability?


5         Cardozo (majority) – D is liable for those persons within the “foreseeable zone of danger” (red ball in the center)

6        Wagon Mound I – D is liable for what is reasonably foreseeable P. (inner white ring)

7     Wagon Mound II – D is liable for those remotely foreseeable.  D must know general type of harm will occur. (inner ring)

8      Andrews (minority) – All P are foreseeable, but there is a point at which liability is cut off.  Same test as in duty. 

9     Polemis – If the injury is a direct cause of the D’s N, than the D is liable even though the exact extent of damages is not foreseeable.  (the outer ring)



“An intervening act of a 3rd party” does not break the causal chain if it is a natural and foreseeable consequence of the risk of harm created by the D’s N.


“Thin skull rule” – D takes the P as he finds them and is liable for any aggravation of a pre-existing illness as a result of his N. 

P can recover for suicide of a tortuously inured person driven insane by the consequences of the tortuous act.  When the suicide is preceded by a history, it is a fair issue of fact.


“New York fire rule” – there is a certain amount of foreeeability.


“Malpractice is foreseeable” (Cardozo) – If B causes an accident in which A is injured, and is transported to the hospital, and in the E.R. the M.D is negligent in their care and causes further injuries to A.  Than B is liable for the malpractice as well.





1.  Nominal Damages:  are awarded in recognition that some kind of legal injury occurred, but do not compensate for the injury.


2. Compensatory Damages:  are those that directly stem from tortuous conduct.


3. Punitive Damages:  an additional sum, over & above, are awarded to punish, and set an example rather than compensate.  If the D intentionally causes harm or acts in reckless disregard of P safety.

- Factors considered; cost of reducing the risk, D’s awareness, reasons for failing to discover the danger, and others.

- The award must be reasonable and not excessive.  For each day of pain the court will do a remitteur.

- Parties can purchase insurance that covers punitive damages & even with insurance the D suffers indirect punishment (higher rates, loss of driver’s license, etc.).




Compensatory damages for PI fall into theses categories:  past pain, future pain, future medical expenses, loss of earning capacity, and permanent disability.  *Must be plead and proven.

“Collateral source rule”- allows the injured P to recover from his insurance co. & from the D, even if double recovery results.

An injured P cannot recover for an injury that could have been lessened by reasonable treatment.

Court can review a jury’s award to determine if it exceeds the max. amount that the jury could reasonably award.


TEXAS – “Stower’s Doctrine”:  N rule applies if insurance co. could have settled and paid but did not.  They are then responsible for how much the D has to pay out.






1    State – “Texas Claims Act” – can sue for property or motor vehicle damage.

2        Federal – “Fed. Torts Claims Act” – can sue gov’t for N.

3        Legislature – Generally complete immunity.


No more family immunity.


Charitable:  Available in TEXAS to protect funds & donor money.



1    Absolute – Judges, prosecutors, President

2        Qualified – Executive officials, EE’s making policy






1    Contributory Negligence *n/a TEXAS

If P was at all N and did not exercise reasonable care to avoid injury is completely barred from recovery.

EXCEPTION – A D who has the “last clear chance” of avoiding injury may still be liable even though the D was contributorily N.


2        Comparative Negligence *n/a TEXAS

It is apportionment of the damages.  The P receives a portion of the damages from the D, for which they are not responsible.




Impure or Partial CN:  TEXAS

If P is 51% or more responsible they lose everything and it goes back to contributory N.

If 50/50 situation the P recovers half of the damages suffered in the loss.


3        Assumption of the Risk *n/a TEXAS

P assumes a known risk of N in relation to a contract (as long as it doesn’t violate public policy), or where the P voluntarily encounters a known danger (implied).  The P must be aware, and their actions manifest consent to the particular risk.

EXCEPTIONS – Emergencies, more extreme forms of N, of or any intentional tort, or of the N violation of a public safety statute.





Consent – a complete defense

4      Express – P expressly consents

5         Implied – P consents through conduct



1    Can use reasonable force if they reasonably believe that imminent force is going to be used on them.  (mistaken belief is OK)

2        Can use deadly force if they believe deadly force is going to be used on them.

3        No duty to retreat (majority)


Defense of Others

1    If reasonable & immediately necessary.

2        Can use as much force as that person would have been justified in using to protect  themselves.   However if the rescuer is mistaken, than he is liable for any damages caused.


Defense of Property

1    Reasonable, non-deadly force to protect one’s land


Recovery of Chattel

2        Reasonable, non-deadly force to recover chattel which has been unlawfully taken. 

3        When the wrongdoer is in the process of taking the chattel; or shortly thereafter and the owner is in “hot pursuit” of the wrongdoer.


“Shopkeeper’s Privilege” – Have a right to detain a person they reasonably believe has taken chattel.  For a reasonable time and manner of investigation.



1    Public – Interfering with another’s personal or real property if it is necessary to prevent a disaster to the public or a large no. of people.  Person is not liable for the damage.

2        Private – Interfering with another’s personal or real property to prevent more harmful injury to himself or a 3rd party. 

3        Courts consider the harm done & the harm prevented.  If harming the property is the least harmful, then the person can use this privilege.  Person is liable for damages caused.



Authority of Law

1    If authorized by law to commit an action, not liable in intentional torts. 

Example; Arrest – May be done by a citizen or a police officer.

A citizen can arrest for breach of peace or a warrant if they reasonably suspect, and it is committed in their presence.



Example; Parent/child – Parent has privilege to exercise reasonable restraint and force on their child.




2        Used if D’s conduct doesn’t fall into any of the other categories.

3        Conduct is viewed in light of the circumstances to determine if they acted reasonably.