Negligence π must suffer an injury actually and proximately caused by ∆’s breach of a duty owed to the π

Duty – ∆ must owe a duty to prevent the injury that occurred owed to the π Default Rule – No Duty of Care for others
GDC– When undertaking affirmative action, there is duty owed to foreseeably injured parties to use reasonable care under the circumstances
Mussivand
GDC Products - Manufacturers must take reasonable care to prevent reasonably foreseeable injuries to reasonably foreseeable persons Macpherson
QDC – Special Relationship (Tarasoff); Freestanding Economic (Aikens/People’s Express); Freestanding Emotional (Gottshall); Premises (Leffler/ Tantimonico/ Rowland)
Imminent Danger Heffern v Perry (Dealer); Voluntary Undertakings Hurd v US (Rescue); Special Relationships Baker(Business); Third Party Tarasoff
(Doctor)
Premises–Leffler Com.Law Invitee- Reasonably Safe Premises & Warn of Hidden Dangers; Licensee- Warn of Hidden Dangers; Trespasser- Don’t Willfully/Wantonly Injure
Tantimonico Mod.Com.Law Licensees - Reasonably Safe Premises & Warn of Hidden Dangers; Rowland - All people are owed a general duty of ordinary care
Pure Econ.Loss-Aikens-Maj.Rule-No duty absent special relationship People’sExpress-Min.Rule-Duty to particular π (1)Identifiable Class (2)∆ knows may suffer econ. injury

NIED- Wyman-Impact Theory Gottshall-Zone of Danger Gottshall Discussed-Bystander Liability Rabideau-Especially Sentimental Property

Breach – when one creates/continues risk of foreseeable harm, that duty requires he protect against - What precise action could ∆ have
done?
Reasonable Person - What would the ordinary person, acting reasonable, due in this circumstance? Vaughan v. Menlove
Custom - T.J. Hooper- Following industry custom is evidence; reviewable Johnson v. Riverdale - Professional custom is not reviewable by the courts
Hand Formula - If probability of injury[P], multiplied by gravity of harm [L] is less than the burden of precaution [B], then no breach—B>PL
Bolton⍢Stone (1) Risk exceedingly small, no obligation (2) Risk not fat-fetched, but still small, must take cost efficient precaution (3) Risk substantial/material, must do everything possible to avoid

Res Ipsa Loquitur-Assume Breach-Certain accidents show negligence, because accident could only occur from failure to take due care Byrne; Kambat
(1) Event only occurs with carelessness (2) Event caused by agent/instrumentality entirely within control of ∆ (3) π didn’t contribute in action/negligence
Neg. Per Se (Assume Breach) - (1) Statute violated (2) Causing harm statute designed to prevent (3) To persons statute designed to protect (4) No excuse
Victor
Excuse - (1) Reasonable Efforts to Comply Busby v. Quail (2) Compliance posed threat to self Tedla v. Ellman ---Statute must set Standard of Conduct, not for record keeping
Dalal
Duty & Breach-Local Breach - Breach must be of duty owed specifically to injured person, and that breach must be cause of injury (Cardozo) Palsgraf
Global Breach - Must be breach of a duty, and that breach must be cause of injury (Andrews) Palsgraf Interpersonal v. Compensation

Cause (Actual/Proximate) The breach of duty owed to the injured party must actually and proximately cause the injury
But-For - But-For the ∆'s breach, would the injury sustained more than likely (+50%) have occurred? Muckler v. Buchl & Butts v. Weisz
But for ∆’s failure to do X, this injury would not have occurred; if same injury would have occurred, absent breach, then not cause
Substantial Factor – Negligence increased the likelihood/risk of injury Hamil v. Bashline (Typically only applied in medical malpractice setting)
Doomed π - ∆ is liable for the difference of inevitable injury, and additional injury, if the additional injury wouldn’t have occurred, but-for ∆’s neg. Dillon v. Twin State Gas
Multiple Necessary Acts of multiple people concur in causing an accident, and but-for such concurrence the accident would not have happened McDonald
In Concert - Tacit understanding to commit, actively take part, further, lend aid/encouragement, or ratify and adopt the wrongdoers tortious act for benefit Sindell
Alternate Causation-(1) Multiple ∆s equally negligent (2) Conduct of only 1 caused injury, (3) only ∆s involved in injury (4) π didn’t negligently contribute to injury Summers v.
Tice
Market Share - (1) Group produces fungible products (2) causing signature injury (3) π has such injury (4) π names bulk of industry (5) evidence unavailable, not π’s fault Sindell
Enterprise Liability-(1) Unable to ID specific actor (2) Small number of total actors (3) Risk management controlled by industry Hall v. Du Pont
Concurrent Causation - Multiple Sufficient Factors come together to contemporaneously cause an injury (Failure of but-for) Andersen v. Minneapolis
Railway
Independently Sufficient - Multiple Sufficient Factors effect π non-contemporaneously Boomer (1) ID Exposure point (2) Show sufficient to injure (3) Compare
suffered/sufficient

Proximate Cause- Act must (1) Be foreseeable result of breach/within scope of risk presented by breach [Jolley/Ventricelli] (2) Not occur after risk has
come to rest [Union Pump] (3) Not superseded by another cause [Fast Eddie] Except: When danger is sufficiently large Zokhrabov Injuries to Rescuers
Included
Superseding Cause - Independent intervening act which operates upon, but does not flow from original act - Port Authority of NY
(1) Intervening Acts not Foreseeable [Fast Eddie’s] (2) Communication of New Danger/Risk [Pollard] (3) Intentional Act & Knowledge of Danger [Pollard]
Wrongful Death Actions - Only monetary losses from death may be recovered (dependents) Nelson Survival Action – Carry over claims after death Nelson

Defenses –Even after π prove prima facia case of negligence, ∆ may plea affirmative defense and limit, or escape liability
Contributory Negligence-Any neg. by π kills claim - Drop of Carelessness Cotterill v. Starkey (Last Clear Chance Exception)
Comparative Fault/Responsibility - Damages apportioned according to party’s responsibility in causing the injury Reliable Transfer Pure – 0-99% apportionment Reliable Transfer Modified - π barred from recovery if +50% responsible Hunt

Assumption of Risk - π voluntarily assumed risk & injury realized is the type expected from that risk—Express - Exculpatory Clause Jones (Tunkl)
Implied - Smollett Rule - (1) π Knew the risk (2) Appreciated its character (3) Voluntarily Accepted Risk (4) Decision was reasonable (Not Careless)
Not Reasonable-(1) Knew Risk (2) Appreciated Character (3) Voluntarily Accepted No Assumption of Risk - Never implied assumption of risk barring
recovery
Sovereign Immunity - Federal Tort Claim Act (Gov Waives Immunity) Liable for torts agent's commit during employment;
Unless, conduct is discretionary, involving element of judgment or choice grounded in social, economic, or political policy Riley
Public Duty Rule - Where duty is owed to public at large, it’s not owed to anyone in particular Riss (Acid) Unless affirmative undertaking Kircher
Extension: When failing to provide service/utility, and liability may be enormous, duty only owed to those in privity with provider (Gov. Regulation) Strauss

Intentional Torts – Infer intent from circumstance

Battery (1) ∆ acts; (2) With intent to cause contact; (3) Such contact must be harmful or offensive; and (4) Such contact is suffered
Single Intent (Favored, Touching considered OBJ Wrong; Deter)- Intend to cause bodily contact, that in fact causes harm or offense Wagner
Double Intent - Intent to cause harmful or offensive bodily contact White v. Muniz Specific Double Intent - Intend to cause specific kind of harmful/offensive contact Spivey
If Unique Preference is Communicated and violated, that is offensive Holbrook : Cohen v. Smith π's religion made improper to touch head, ∆ knew this but touched during surgery
Extended Personality of Person is Protected Fisher v. Carrousel Motor Hotel (Plate Taken Due to Race; Battery)
Intangible Touching like smoke, fumes, radiation, can be touching Leichtman v. Jacor Comm. (Blew Smoke in Face)
Directly Causes Other Person/Object to complete harmful/offensive contact Garratt v. Dailey (Pull Chair Out) [Blind Guy v. Cliff]
Was there any contact whatsoever between anyone?
Assault (1) ∆ acts (2) intending to cause harm/apprehension of harm (3) π apprehended imminent (4) harmful or offensive contact (5) and apprehension was reasonable
Vetter
Would a reasonable person would feel that harm would occur, unless intervening force prevents it, or they are able to flea? Hancock (Brandishing)
IIED (1) Conduct Outrageous ‘Beyond Bounds of Decency’ (2) Intended to cause severe emotional distress (3) causes such distress
McGuffey
Property Torts --- Intent required is only to act on the property
Trespass (1) ∆ acts intentionally (2) to enter, cause entry by object, or exceed scope of consent (3) land lawfully possessed by another Burns Philp
Trespass to Chattel (1) Intentional act (2) Interfering with exclusive rights of owner to use and enjoy chattel (3) that causes harm/deprivation
Any interference with owner’s access, use or enjoyment to their property or the Causation of any harm to another's property
Conversion of Chattel (1) Intentional act of (2) substantial dominion or control over chattel (3) to the exclusion of the proper owner's rights Thyroff
Nuisance (1) ∆’s conduct (2) causes (3) non-trespassory (4) unreasonable (ongoing) interference (5) with π’s use or enjoyment of land
Typically occurs when there are two incompatible uses of bordering parcels of land : More burdensome than the landowner should have to endure
Nuisance Factors - (1) Location of Nuisance (2) Character of the neighborhood (3) Nature of the nuisance (4) Frequency of intrusion (5) Effect on π's life, health, and property Penland
Abnormally Dangerous Activities (1) Creates foreseeable & highly significant risk of physical harm (even if reasonable care is
exercised by all) and (2) activity is not of common usage – Strict Liability Pyrodyne Alteration of land's natural state that leads to damage Rylands
Factors: (a) high degree of risk of harm to persons or property (b) high likelihood of harm (c) unable to eliminate risk by use of reasonable care (d) activity is not a matter of common
usage (e) appropriateness of place activity is done (Relation to Time/Place) (f) extent to which its value to the community is outweighed by its dangerous attributes Pyrodyne
Affirmative Defenses
Consent to Touching A person who consents, explicitly or implicitly, to conduct that would otherwise be a tort cannot recover damages for those
acts
π consents if words or acts lead ∆ to reasonably believe she consented O'Brien v. Cunard SS Co. (Vaccine Line)
∆ must actually and reasonably believe that π consented to contact, based on their conduct O'Brien
If one has a valid reason to believe that there was consent, they may not be liable Mullins (Student Given Mistaken Consent)
Party falsely providing reason to believe, may be liable Mullins (Doctor Knew Limited Consent)
Consent limited in scope and time Garnett; Mohr v. Williams (Surgery on Non-Consented to Ear)
Circumstances of Contact relevant; playground implied consent Vosburg
History of Dealings between the parties can amount to implied consent Hibberd
Consent to Property Only actions of property owner can give consent to entry – May be Implicit or Explicit – Copeland
Must be from owner, even reasonable belief of consent from 3rd party is not sufficient Copeland
Custom of Land may make for implied consent (Residential Area? Package Carrier?)
Consent only applies within the scope of consent given: May be geographically / temporally restricted Copeland
Consent to entry can be exceeded by crossing of physical boundary or by exceeded consented purpose Copeland
Self-Defense Use of force must be (1) Reasonably Proportionate to threat that is (2) reasonably believed to be harmful & (3) imminent
Haeussler
One who is involved in an altercation has a right to use as much force as is necessary to protect himself, in proportion to the imminent amount Haeussler
 One must objectively and reasonably believe that self-defense is necessary to avoid imminent injuries or harmful contact to self Haeussler
Defense of Property Possessor of land may use minimum level of force necessary to repel a trespasser, but cannot use deadly
force
Assault is privileged to deter trespass Traps – Land Owner may not intentionally arrange premises to cause death or serious bodily harm to a trespasser
Recapture of Property Once item is lost and held in peaceful possession, one may not use force or threat; while being stolen only minimal force is allowed Katko
Necessity Private - Actions taken to preserve human life, not property, in the face of serious imminent threat are privileged Vincent
Even when trespass is privileged by necessity, one is liable for property damage caused Vincent
Public (1) ∆ commits tort to protect public interest (2) reasonably believes action was needed (3) action was reasonable in response to perceived threat
Damages & Apportionment
Compensatory Damages - Damages must fairly and reasonably compensate plaintiff for injuries sustained Kenton v. Hyatt Hotels (Skywalk Damages)
Eggshell Skull - Tortfeasor takes his victim as he finds him Leech Brain No limit on damages of type foreseeable because victim was uniquely susceptible
Punitive Damages - Where ∆ acted wantonly to cause injury, or with such indifference that malice may be inferred National By-Products v. Searcy
Wanton Conduct - Knowledge, or reason to know, that action's natural and probable consequence is injury to others and indifference to that fact Searcy
Inferred Malice - Despite knowledge of approach of danger likely to injury others, tortfeasor proceeds consciously indifferent of likely consequences Searcy
Vicarious Liability - Trad. – Acts performed for purpose of Employer : Modern – Activities characteristic of employment or customary Taber Instrument of Danger
Apportionment – Causal – When multiple tortfeasors cause logically divisible harms, apportionment of damages should apply Ravo
Fault Based – Single indivisible injury & loss can’t be reasonably allocated, damages may be apportioned according to comparative responsibility
Ravo
Joint & Several Liability - Any ∆ may have full judgment taken from them; ∆ that pays more than fair share must pursue other ∆s in contribution action
Applied: (1) Single Indivisible Injury - One injury, can’t be logically divided (2) Actions in Concert - (3) Vicarious Liability - One party vicariously liable for another, J&S
Ravo