*NB: this outline accords with Best et al., Basic Tort Law: Cases, Statutes and Problems (4th ed.)

Overview 1

Negligence 3

Breach 3

Standard of care 3

Hand formula 5

Special standards of care 6

Especially dangerous instrumentalities 6

Emergency 7

Below-average or superior knowledge/skill 8

Youth 8

Physical disability 9

Mental disability 10

Intoxication 11

Proving breach in general 12

Violation of a statute as proof of breach 12

Requirements 12

Specificity 12

Proof of causation 13

Licensing statutes 13

Excuses to negligence per se 13

Procedural effects of proof of violation and excuse 13

Negligence per se versus strict liability: 16

Custom 16

Industry 16

Professional standard 19

Locality rule 20

Res ipsa 20

Elements 21

But-for Cause 23

Alternative tests 24

Multiple sufficient cause, superseding cause, substantial factor 24

Restatement (Third) 24

Restatement (Second) 24

Toxic substances 25

Concert of action 25

Alternative liability, market share liability 27

Policy Limits on Liability (Palsgraf) 28

Proximate Cause 29

Directness 30

Substantial factor 30

Restatement (Second) 30

Foreseeability 32

Foreseeability in hindsight 33

Thin skull / eggshell rule 33

True value / shabby millionaire rule 34

Risk standard 34

Restatement (Third) 34

Intervening and superseding forces 34

Duty 36

Restatement (Third) Approach to Duty 36

Foreseeability 37

Special relations 37

Special duty rules 39

Rescuers 39

Negligence: Defenses 41

Plaintiff’s contributory fault 41

Contributory negligence 41

Modified comparative fault 41

Pure comparative fault 41

Fault as defense 42

Last clear chance doctrine 43

Learned Hand method of calculating 44

Assumption of risk 44

Express assumption 44

Factors for unenforceability 45

Implied assumption 46

Vicarious Liability 47

Respondeat superior 47

Tests for scope of employment 48

Intentional Torts 50

Intent generally 51

Restatement (Second) 51

Restatement (Third) 51

Subjective and objective tests for intent 51

Battery 52

Offensive contact 54

Indirect contact 54

Dual intent 55

Consent as defense 57

Self-defense as defense 58

Factors to determine reasonableness of actions 59

Defamation (libel) 60

Invasion of privacy 61

Types of privacy tort 61

Emotional distress 63

Elements of IIED 63

Outrageousness 63

Severe emotional distress 64

Recklessness 67

Reckless emotional distress 67

Restatement (Third) 67

Restatement (Second) 67

Strict Liability 68

Animals 68

Wild animals 68

Domesticated animals 69

Property damage 69

Defenses 69

Dangerous activities 71

Restatement (Second) 71

Restatement (Third) 72

Defenses 72

Strict Liability: Products Liability 74

Manufacturing defect 74

Intended result test 74

Ostensibly identical test 74

Indeterminate product defect test: 74

Design defect 78

Restatement (Second) Consumer expectation test 78

Restatement (Third) Risk-utility test 79

Choosing between CE and RU tests 79

Mandatory proof of a feasible alternative design 82

Warning defect 83

Restatement (Second) 83

Restatement (Third) 83

Defenses 84

Plaintiff’s carelessness or misuse of product 84

Overview

What is a tort?

• “A tort is when harm is caused by one person or entity against another person or entity, and the law determines that a legal wrong has occurred in a way that makes it appropriate to shift the cost of the harm from the injured party to the party that caused the harm.”

• Three elements: (1) harm caused, (2) legal wrong, (3) appropriate to shift

Four categories of torts:

• Negligence

• Intentional torts

• Recklessness

• Strict liability

What does tort law signal?

• Notion of equity

• Deterrence

• Desirable norms of conduct

	Civil law	Criminal
General purpose	Private individuals, one harmed and one who caused the harm. The question is who should bear the cost. Although there are societal issues at stake because of what tort law signals, it is generally speaking between two private individuals.	Society identifies things that should be subject to a certain kind of punishment.
Case brought by	Plaintiff or representative of person harmed	Government
Decision	Usually decided by judge; sometimes jury	Jury; judge determined legal rules
Standard of proof	Preponderance of evidence; more likely than not.	Beyond a reasonable doubt
Remedy	Usually monetary	Usually incarceration; limits on freedom; death

	Litigation	ADR (private arbitration)	ADR (mediation)
Decision makers	Judge or jury	Arbitrator	Parties
Basis for decision	Legal principles	Whatever the parties decide is the basis	Whatever the parties decide is the basis
Procedures	FRCP	Whatever the parties decide is the basis	Whatever the parties decide is the basis
Precedents	Follow and create precedents	Needn’t follow precedents, unless parties agreed	Needn’t follow precedents, unless parties agreed
Role of law	Principles	Determined by parties’ agreement	Determined by parties’ agreement
Appealable	Yes	No	Not applicable

Formalist v. Realist approach to tort law:

• Formalist

  • Judges are well-versed in the law. Legal principles are discernable, and their application to fact patterns is predictable and reasonable.

• Realist

  • Judges are human. Although socialized in principle, they may bring their human experience to bear on deciding cases, so outcomes are not so predictable.

• Concepts of reasonableness, deterrence, equity and others relate to the formalist/realist debate.

Sources of tort law:

• Tort law tends to be dominated by common law.

• Statutes is next.

• Common law on the statutes.

• Restatement (Second) and Restatement (Third). Second is more common.

Alternative dispute resolution:

• Although many terms are determined by contract, deference to arbitral institutions is increasingly common. One example is American Arbitration Association (AAA). These provide models for resolutions of different types of disputes.

Negligence

Breach

Standard of care

Elements of negligence: plaintiff may recover damages after showing, by a preponderance of evidence,

• Defendant (1) owed the plaintiff a duty to act in a certain way

• ...

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