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Temple University School of Law
McClellan, Frank M.

Law simply assumes a duty of ordinary care.
Basic Issues
(1)     D OC
(2)     p OC
(3)     D OC caused p’s harm
(4)     damages
Other Issues
(1)     proximate cause – weird events (PC)
(2)     duty to rescue (DTR)
(3)     negligent infliction of emotional distress (NIED)
(4)     pure economic loss (PEL)
General Expansion of Liability: Where to draw the line?
PRO: When innocent p is injured, no expansion leads to p bearing the full cost of the harm inflicted
(1) increases safety, promotes prevention
(2) insurance companies will have the incentive to identify potential injurers w/ low probability of mishaps and will expend the resources to obtain the necessary information to make differentiation 
CON: Courts generally are concerned with open-ended liability [slippery slope] as well as unclear and vague rules because they can lead to a flood of merit less claims, fraudulent claims.
(1) increase in # of cases litigated –> potential increase in false claims
(2) increase in complexity of cases makes mistakes by juries more likely
I.  BATTERY:  intentional, unprivileged, and either harmful or offensive contact w/ person of another
A. RSMT §13 / §18: Harmful Contact / Offensive Contact
1.      Actor acts intending to cause harmful or offensive contact w/ the person of the other or a third person, or an imminent apprehension of such contact, AND
2.      an offensive contact with the person of the other directly or indirectly results
B.     Prima Facie Case
1. Intent: a DESIRE to cause a harmful of offensive contact or to cause an apprehension that such a contact is imminent, or BELIEF that such a contact or apprehension is substantially certain to result.
a.      less malicious states of mind than intent may support liability for harm
b.      objective facts may be introduced to prove one’s subjective mental state
case on point: Garratt v. Dailey    p. 23
Court remanded case to find out whether Dailey, a child of 6, knew with substantial certainty that the p would sit down where the chair which he moved had been. The mere absence of of any intent to injure p or the play a prank on her would not absolve D from liability if he knew she would sit where the chair used to be. When a reasonable person would believe that harm would result from acts, that person would be found liable. 
2. Contact: a harmful or offensive contact w/ p’s person
a. As in Garratt, indirect contact also suffices
C.  Unlawful Act
case on point: Vosburg v. Putney    p. 14
Court held that Putney did not have to prove Vosburg intended the harm that resulted. Putney can show that Vosburg committed an unlawful act or had an unlawful intention to commit harm: since the boys were not playing at recess, there was no implied license (permission) of the playgrounds. Since incident occurred during school hours, school laws applied. Kick was against school rules, so Vosburg is liable for battery that resulted from unlawful conduct. The fact that Putney’s knee was in a diseased condition and more susceptible to injury did not mitigate liability. 
II. Privileges: defenses–means of escaping liability by proving existence of a privilege to inflict contact
A.     Consent: willingness for conduct to occur; can be expressed (as in words) or implied (as in acts reasonably understood to mean consent) or implied-in-law or custom
1. Objective consent: when p acts in such a way to give appearance as would be understood by a reasonable person to be consent (e.g., silence or failure to raise an objection)
case on point: O’Brien v. Cunard Steamship Co.    p. 36
Doctor believed p consented to smallpox vaccination when she lifted arm and did not object any further. Court held that under the circumstances, it was reasonable to believe p consented by her non-objection and silence. Court guided by objective perception of acts and not the subjective state of mind of p as to whether consent was given.  
2. Subjective consent: p actually consents or had full understanding of the quality or nature of her act irregardless of what D knows, p is barred from recovery.
case on point: Barton v. Bee Line    p. 41
Despite consent by p, criminal statute makes D liable for statutory rape. Court decided policy behind statute was to protect innocent females and p not considered innocent b/c she consented. Court believed policy would be frustrated by encouraging females to become seducers in order to collect damages in civil actions.
3. Implied-in-law or CUSTOM
a. Medical profession: Doctors are generally subject to same rules as others regarding invasion of rights, but certain exceptions have developed. 
                                                               i.      If doctor discovers a condition that requires immediate attention OR
                                                             ii.      Requires an additional surgical procedure, consent is considered implied-in-law b/c patient is assumed to have consented based on what a reasonable person would want under similar circumstances
case on point: Bang v. Charles T. Miller Hospital     p. 47
Unauthorized surgery: p’s spermatic chords where severed during surgery. p consented to surgery, but did not fully understand what would be involved in the surgery when doctor asked for consent. Court held that when a doctor knows of alternatives to a surgical procedure and no emergency situation exists, a patient should be informed of alternatives and given opportunity to decide which alternative to go with.
case on point:   Kennedy v. Parrott    p. 50
Patient underwent surgery for appendicitis, but during surgery doctor discovered cysts on her ovaries, which he proceeded to remove. Patient developed complications to surgery, but court found that doctor exercised due care in the procedure based on custom. Court held that doctor had a duty to extend surgery to remedy a newly discovered condition b/c (1) patient is incapable of consenting at the time, (2) an immediate decision in necessary, (3) no reason to believe patient wouldn’t consent, (4) a reasonable person would consent under similar situation.
B.     Self-Defense: §63 (p. 59)– one is entitled to use reasonable force when there’s a reasonable belief of the need to protect oneself against unprivileged harmful or offensive contact which one reasonably believes another is about to intentionally inflict. May have a duty to retreat if one can avoid the necessity of defending oneself unless one is in own home.
1. §70 – Permissible Force: one cannot use force in excess of that which once believes necessary for protection. 
case on point: Courvoisier v. Raymond    p. 65
D slept over a jewelry store that was being robbed. D fired shots to scare rioters away. Shots caused p, a policeman, to approach. D believed officer was a rioter b/c he did not have his glasses on nor did he hear officer identify himself, so he shot officer claiming self-defense. Court held that w

ctually shot p. Each D has burden of proving the other D was sole cause of harm b/c it would be unfair to deny p redress simply b/c he cannot prove how much damage each did, when it was certain between them they did it all.
case on point: Ybarra v. Spangard    p. 121                               [burden shifts to D to show OC] p underwent surgery for appendicitis, but came out w/ pain in right arm and shoulder. p was rendered unconscious, so it was manifestly unreasonable for D to insist that p identify any one of the Ds as the person who did the negligent act (res ipsa loquitur case). Every D whose custody p was placed for any period was bound to exercise OC to see that no unnecessary harm came to him and would be liable for failure in this regard.
2. Enterprise Liability [industry-wide liability]: several Ds acting independently adhere to an industry-wide standard w/ regard to the safety features of a product. They had delegated some functions of safety investigation and design, such as labeling to a trade association or risk management association. There was industry-wide cooperation and collaboration in the manufacture and design of the product. Under these circumstances the Ds all jointly controlled the risk and thus, could be liable for all injuries caused by the product by virtue of adherence to an industry wide standard. This theory applies to industries composed of a small number of units. If ps can establish by a preponderance of the evidence that product was manufactured by one of Ds then burden of proof as to causation shifts to all the Ds.
case on point: Hall v. E. I. Du Pont de Nemours & Co.    p. 160 in Sindell handout
ps were injured by the explosion of blasting caps in 12 separate incidents occurring in 10 different states. Ds were 6 manufacturers, comprising nearly the entire industry. ps argued that the practice of the industry to omit a warning on individual blasting caps and of failing to take other safety measures created an unreasonable risk of harm.
D. Market Share Liability: When 3 or more parties can’t prove which caused actual harm, but can show that all were negligent, burden shifts to Ds to probe they’re not at fault. If Ds cannot prove they didn’t cause the injury, court can require them to pay by the % of their market sales. 
case on point: Sindell v. Abbott Laboratories    handout supplement
There were 200 manufacturers of DES and p sued 5 of them, who comprised 90% share of market. Each D can show that they did not manufacture p’s particular DES, but if they cannot, they will be responsible for their share of the market. DES is interchangeable product produced w/ an identical formula, so it can’t be traced back to a specific manufacturer. As in Summers, between an innocent p and negligent D, the latter should bear the