TORTS
Northeastern University Nockleby Outline Fall 1998

Intentional Torts	3
Assault	3
Battery	3
Consent	4
False Imprisonment	5
Intentional Infliction of Emotional Distress	5
Trespass and Conversion	6
Nonconsensual Defenses	6
Insanity	6
Self-Defense	6
Defense of Property	7
Recapture of Chattels	7
Privilege of Necessity	8
Introduction to Negligence and Strict Liability	8
Early Cases and Forms of Action	8
Strict Liability & Negligence in the Last Half of the 19th Century	8
The Modern Conflict	9
Negligence	9
Reasonable Person Standard	9
Calculus of Risk	10
Custom	10
Criminal Statutes	11
Judge and Jury	12
Proof of Negligence (res ipsa loquitur)	12
Causation	14
Cause in Fact	14
Proximate Cause	15
DELIBERATE INTERVENTION BY 3RD PARTY	16
DIRECTNESS TEST:	16
FORESIGHT TEST:	16
Defenses to Negligence	17
Contributory Negligence	17
Last Clear Chance	18
Assumption of Risk	18
Comparative Negligence	19
Vicarious Liability	19
Traditional Liability	19
Trespass and Conversion	19
Animals	19
Abnormally Dangerous Activities	20
Strict Products Liability	21
Introduction and Exposition	21
The Restatement	21
Product Defects	21
CONSTRUCTION DEFECTS	22
DESIGN DEFECTS	22
DUTY TO WARN	22
Plaintiff’s Conduct	23
Affirmative Duties	23
Duty to Rescue	23
Duties of Owners and Occupiers	24
TRESPASSERS	24
LICENSEES	24
INVITEES	25
Gratuitous Undertakings	25
Special Relationships	25

Intentional Torts
Assault

There are three elements of assault:
1)	act—more than mere words, if no act, no assault
2)	intent—to cause harm or apprehension
3)	imminent apprehension of harmful contact—is created of harmful or offensive eminent contact

The Restatement of Torts §8(a) defines intent as “actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result form it.  Intent is limited to the consequence of the act. Definition for assault under § 21 is:
(1)	Actor is subject to liability to another for assault if
(a)	he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an eminent apprehension of such contact, and
(b)	the other is thereby put in such imminent apprehension

I. de S. and Wife v. W. de S.—an assault does not require physical contact

Tuberville v. Savage—an assault requires an act intending harmful contact or imminent apprehension or the feeling of apprehension by the third-party.

Allen v. Hannaford—an assault is present.  The act was the pointing of the gun, intent was to cause apprehension of harmful contact.  The gun was pointed at plaintiff and plaintiff was threatened by defendant.  There was a threat of immediate harm.  

Brooker v Silverthorne—mere words do not amount to a threat.  No intent to commit harm was expressed.  “A threat only promises future injury.”

POLICY:  Allan presented imminent threat while the threat in Brooker was not imminent.  The rulings are consistent in this respect.  When a threat is not imminent there is time for actor to change his mind and plaintiff to take precautions.  Court may not want to regulate speech and behavior that is not really threatening.  The tort of assault exists to protect the moment before a battery occurs.
Battery

There are three elements to battery:
1.	act
2.	intent
3.	contact

There is a distinction between assault and battery.  Battery requires contact.  Again in the Restatement of Torts, §§ 15 and 16 “Bodily harm is any physical impairment of the condition of another’s body, or physical pain or illness;”  “If an act is done with the intention of inflicting upon another an offensive but not a harmful bodily contact…and such an act causes bodily harm…[than] actor is liable.”

Vosburg v. Putney--The intention to do harm is the essence of the assault, and the wrong-doer is liable for all injuries resulting directly from the wrongful act, whether they could or could not have been foreseen.  Intent is required for assault and battery.  The court makes a distinction between intentional torts and unintentional torts (negligence).  The act was necessarily unlawful as class had begun.  Implied license is a privilege based on consent to a certain type of contact, usually formed out of customs of a culture.

POLICY:  D takes P as he is found.  It is not relevant whether or not the D knew P had an “egg-shell skull.” 

Garrat v Dailey—intent is not an element necessary for battery.  No intent to harm was found, but this is not a requirement to prove tort.  A five year old can be held liable when there is substantial knowledge of actions taken into account. 

Knowledge with Substantial Certainty

Mohr v. Williams—the consent to operate given to a physician may be exercised with reasonable latitude as required under a doctor’s professional judgment.  Plaintiff understood only right ear needed operating.  Jury found no emergency existed.  If the operation was performed without plaintiff’s consent, and the circumstances were not such as to justify its performance, it was wrongful.  Consent was only given to one ear.  

POLICY:  Defense might be plaintiff would have agreed to operation if informed.  Battery is an act, with intent to complete physical act with knowledge with substantial certainty of the consequences resulting in contact.

Transferred Intent—in Talmage v Smith the court held the right of the plaintiff to recover was made to depend upon an intention on the part of the defendant to hit some body , and to inflict an unwarranted injury upon someone.  Under these circumstances, the fact that the injury resulted to another than was intended does not relieve the defendant from responsibility.
Consent

Must have all relevant facts for consent to be valid.

Kennedy v Parrot—no battery existed even though there was no consent because of imminent danger.  No relief for damages sought, reason and sound common sense dictate that surgeon perform as he did.  Battery performed within area of original incision.

Hudson v Craft—in cases of mutual combat, combatants commit battery on each other, and each can hold the other liable for any injury inflicted even if they both consented to the contest.  If one does not comply with the statutes, did not obtain a license and did not observe the rules and regulations, then they can be liable for damages for another's injuries although the act was volenti non fit injuria (presumption of risk).

POLICY:  paternalism, law is primarily to protect people form inability to appreciate the consequences of actions.

False Imprisonment
Elements for prima facie case:
1.	confinement—act to confine
2.	intent—there is no liability for negligently caused imprisonments
3.	act—act results in confinement; person is aware of being confined (MAJORITY RULE)

Application of force is not required for restraint.  Threats are enough.  Inaction is also enough, i.e. not giving a boat to get to shore;  there must be an understanding that the defendant would do something—not necessarily a written or spoken promise.  (Whittaker v. Sanford, damages reduced because “case lacks the elements of humiliation and disgrace that frequently attend false imprisonment.”  It is irrelevant as to what the time of confinement was.  A bounded area in not inconvenience.  An area is not bounded if there is a reasonable means of escape that the plaintiff knows of.

Griffin v Clark—Griffin’s suitcase was put into defendant’s car to force her to come on the trip.  Plaintiff in Griffin had no reasonable way to leave town after losing her ability to leave by missing her train.  Court ruled this constituted imprisonment.

Bird v. Jones— if the party has a way out available to him, another party cannot be guilty of false imprisonment. P could have left, but chose not to. D did not totally restrict his movements. D merely did not allow P to go where he wanted to go. Since P was there of his own volition, he cannot charge D with false imprisonment. a prison must have a boundary.  Imprisonment includes the notion of restraint within some limits defined by a will or power exterior to our own.

Coblyn v Kennedy’s, Inc.— If one is restrained of his personal liberty by fear of a personal difficulty, that amounts to a false imprisonment. Any demonstration of physical power that can be avoided only with submission is equal to false imprisonment. P was an elderly person, with health problems. Confronted by a salesman who put his hand on his arm, it was reasonable for P to feel danger and helplessness. This was sufficient to find D guilty of false imprisonment. D would have been justified in detaining P for shoplifting if he had reasonable grounds to believe it. D would then have been able to detain P for a reasonable amount of time. However, in this case, D did not have reasonable grounds to believe that P was guilty of shoplifting. This is an objective test, not a subjective test, and objectively, there was no reason to suspect P of being a shoplifter.

Intentional Infliction of Emotional Distress
ALI Restatement § 46
1)	act extreme and outrageous (contextually)
2)	intentionally and recklessly
3)	plaintiff experiences distress
extreme and outrageous conduct:
•	Strong arm tactics (State Rubbish v Siliznoff)
•	Bill Collection (George v Jordan)
•	Outrageous professional conduct (Rochill v Pollard)
•	Racial Insults (Patterson v McLean)
•	Sexual Harassment
Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.
Wilkinson v Downton—outrageous conduct that causes physical harm or mental distress to another gives rise to a cause of action. D willfully performed this act, and this act caused harm to P. There was little doubt that D's actions would bring ill effects to P. Therefore, an intention to produce these effects must be assumed.

Bouillon v Laclede Gaslight Co. (parasitic damages)—A trespasser is liable for any injuries resulting naturally, necessarily, directly, and proximately from his wrongful act. D caused fright and mental anguish to P. A mere mental disturbance may not be sufficient for a cause of action, but fright and mental anguish are sufficient if arising out of trespass. Any mental anguish resulting from fright, like the occurrence in this case, must be compensated by the wrongdoer. 
Trespass and Conversion

Conversion can occur from a large amount of damage.  Killing a cat is also conversion.

Maye v Tappan— One's right to recover damages, or the amount of the damages to which he may be entitled, is not affected by the fact that the trespass was not willful in its character. The ruling of the Court upon this question was erroneous. Whether willfully or not, D trespassed on P's land and took his goods. D has injured P The amount that P was injured is not made greater or less by the fact that D's act was not malicious. However, the damages received must be adjusted by D's expenses in mining the land.

Nonconsensual Defenses
Insanity

Almost invariably an insane person is liable for his torts.  Different levels of insanity should not be considered by civil courts.  Courts are loathe to introduce the difficulties in determining mental capacity.

McGuire v Almy— An insane person may be held liable for an intentional battery.

POLICY:
•	As between two innocents, the one who caused the harm should pay
•	Incentive to act in a particular way
•	Incentive for care taker to detain insane person
•	Administrability of a line drawing issue
Self-Defense

There are three possible standards for self defense:
1)	Plaintiff is attacking defendant
2)	A reasonable person would believe plaintiff was attacking defendant
3)	Defendant believes in good faith that plaintiff was attacking her.

Courvoisier v. Raymond—during the course of a riot, if one believes his life to be in danger, he is justified in using self‑defense, even against an innocent victim, if he reasonably believes that the victim posed an immediate danger to him.

Self defense against innocent attacker
Self defense is universally recognized but there is debate on how to limit its use.

Self defense and the innocent bystander
Morris v Platt held that the accidental harming of an innocent bystander by force reasonably intended in self defense is unactionable.

Limitations on Self Defense
The issue is usually who struck the first blow and was the force excessive under the circumstances.  Boston v Muncy

Defense of third parties
Restatement § 76 notes that a person is privileged to defend third party “under same conditions” and by the same means as those under and by which he is privileged  to defend himself if the actor correctly and reasonably believes that the third party is entitled to use force in self-defense and that his own intervention is necessary to protect that party.

Defense of Property

M'ilvoy v. Cockran—in the defense of property without actual force from an intruder, an owner is not justified in committing an assault and battery or wounding an intruder without first requesting that he depart.  It is necessary to distinguish actual and implied force.  In the interest of public policy, this will keep people from harming one another who with or without permission are on another's property but pose no treat or are causing no harm. However, if there is actual force, it is essential that the property owner be able to use significant force to protect his property, his person, and his family.

Actual and constructive force (implied force) The restatement says an actor is not held liable for force which he would be privileged to use if he were present.  §145 provides a two-tiered privilege for the use of force to prevent the commission of a felony.  A person may use force not intended or likely to kill if lessor force will not achieve the same end.  Deadly force is allowed if felon threatens similar force.

Bird v Holbrook—one who sets spring gun trap for the purpose of catching an intruder without posting a notice is liable for damages because no man can do indirectly that which he is forbidden to do directly.  D's motivation for setting the spring gun trap was not to deter intruders, but instead to catch them. D is not justified in wounding someone who enters his close with indirect force, as in the instant case. 

“it is the object of English law to uphold humanity and the sanctions of religion.”
Recapture of Chattels

Kirby v Foster--A mere right of property is not sufficient to justify an owner in committing an assault and battery upon the person in possession, for the purpose of regaining possession.  This is true even if the possession is wrongfully withheld.
use of force required 1) possession by the owner and 2) a purely wrongful taking without a claim of right.  
Law gives right of defense, but not right of redress to maintain public order.
Privilege of Necessity

One may interfere with the real or personal property of another if it is reasonably and apparently necessary to avoid threatened injury  from a natural or other force, and if the threatened injury is substantially more serious than the invasion which seeks to avert it.

Ploof v Putnam—one who encroaches on the property of another will not be a trespasser if the act is based on necessity.  The interests being violated (D's) were less than interests being protected (P's). Even though one can use someone  else's property in order to protect themselves, they are still liable for damage done to the property.

Vincent v Lake Erie Transportation—a party acting under private necessity is liable for damages incurred to the property of others.  The defense of private necessity supersedes the right of the owner to protect his property.  Privilege is not absolute and party is still responsible for the damage caused.

Law of General Average Contribution—master can choose to jettison some of the cargo in order to save the ship and the cargo that remains (Mouse case).  The interested parties receive a pro rata share of the loss.  This gives incentive for captain to get rid of least expensive items.  At the time of emergency all are treated as joint owners of all the property in question. 

**THE PRIVELEGE OF NECESSITY IS INCOMPLETE**

NOTE:  In both Vincent and Couvosier the defendant destroys another’s legally protected interest, but does so to protect his own interest.  Both acting in socially responsible ways.  Both involve intentional harm.  This makes the cases inconsistent.

Introduction to Negligence and Strict Liability
Early Cases and Forms of Action

Thorns Case—if one does harm to  the person or property of another, he is liable for the damage he causes even if it is an unintentional, lawful act that has caused the damage. D was liable for trespass. One who voluntarily does an act that results in damages to another is responsible for these damages even if the act was lawful. Since D's actions caused P's damages, he is liable in tort.  The court applied a strict liability rule.

Strict Liability & Negligence in the Last Half of the 19th Century

Brown v Kendall-- A plaintiff must show either that the intention of the actor was unlawful or that the conduct of the defendant was free from blame, in order for trespass to lie. A plaintiff must show either that the intention of the actor was unlawful or that the conduct of the defendant was free from blame, in order for trespass to lie.  What constitutes ordinary care will vary with the circumstances.  It generally means that kind and degree of care, which prudent and cautious men would use, such as is required by the exigency of the case and that which is necessary to guard against probable danger.  There is no need to distinguish between acts that are lawful and proper and acts of a legal duty. 

Powell v Fall (sparks from locomotive)—if one is taking actions that are dangerous, he is responsible for any damages caused, even if he is not acting negligently.
The Modern Conflict

Strict Liability (A)
Stone v Bolton—if a risk is reasonably foreseeable, a landowner is liable for injuries.  

Negligence (B)
Bolton v Stone--one owning land on an adjoining highway is held to the conduct of a reasonable, ordinary, prudent person.
Negligence
Reasonable Person Standard

Vaughan v Menlove (rick fire)—liability under negligence is not coextensive with the judgment of each individual. The care taken by a prudent man has always been the rule laid down. Liability for negligence should not be premised on the judgment of each individual because the judgment of each individual is as variable as the length of the foot of each individual.

EXCEPTIONS TO THE REASONABLE PERSON STANDARD:
a.	children/elderly

Elderly are held to the same standard as a reasonably prudent person

Roberts v Ring—the  standard of care usually exercised by the ordinarily prudent man is used to determine if there was negligence even if the person charged with negligence is an old man.  His infirmities do not change the standard of care used.

Children are held to the level of conduct of a reasonable person of that age and experience, not that of an adult.  Exception:  where a child engages in a potentially dangerous activity normally pursued by adults, she will be held to the adult standard of care.

Daniels v Evans—a minor operating a motor vehicle must be judged by the same standard of care as an adult, the standard of an ordinarily prudent person.

b.	disabled/insane

Breunig v American Family Ins.—insanity is not a defense to negligence.

Fletcher v City of Aberdeen—a person with a physical disability is obliged to use the care which a reasonable person with the same or similar circumstance would use. A city is obliged to afford the degree of protection which would bring to the notice of the person so afflicted the danger to be encountered.

Calculus of Risk

Blyth v Birmingham Water Works—negligence is determined by a reasonable person standard. A reasonable man would act with reference to the average circumstances of the temperature in ordinary years. D's precautions against the extreme severity of the frost of 1855 which penetrated to a greater depth than any which ordinarily occurs south of the polar regions proved insufficient. A reasonable person cannot be held liable for extraordinary occurrences.

Eckert v Long Island R.R.—when faced with imminent peril, one can assume extraordinary risks or perform dangerous acts in attempting to avoid the peril of another without being contributory negligent.
POLICY:  A high value is placed on human life and rescue should be encouraged.

Cooley v Public Service—one cannot be held negligent if they use the standard of care to avoid harm to the people that are mostly affected but not towards an injury incidentally suffered as a result.  The duty of care is based on the measure of care that is reasonable under all the circumstances.

THE HAND FORMULA
United States v Carroll Towing—when the magnitude of the risk exceeds the utility of the conduct, there is a duty of care to protect others from harm. The formula for liability of the plaintiff is:

Bp < PLp  (defendant’s burden is less than plaintiff’s loss)

Where B = burden of precautions; P = probability of harm; L = loss
It follows that the calculus for defendant’s liability is:

Bd < PLd  (defendant’s burden is less than plaintiff’s loss)

Rinaldo v McGovern—The essence of tort liability is the failure to take reasonable steps to minimize the chance of harm.  To establish liability in tort there must be both the existence of a recognizable risk and some basis for concluding that the harm flowing from the consummation of that risk was reasonably preventable.
Custom

Titus v Bradford—where there is a custom involved, a practice that is dangerous is not necessarily negligent if it is reasonably safe according to the usage and habits of the business.

Mayhew v Sullivan Mining—in a situation where ordinary care was not used, custom is not a defense for gross negligence.
The T.J. Hooper—Courts must in the end say what is required;  there are precautions so imperative that even their universal disregard will not excuse their omission.

TJ Hooper—custom is not standard of care
		Exception—medical custom is the standard of care (Brune)
			Exception—risks must be disclosed (Canterbury)

Brune v Belinkoff—the proper standard is whether the physician exercised the degree of care and skill of the average qualified practitioner, taking into account the advances in the profession. Some allowance is made for the type of community. A specialist should be held to the standard of care and skill of the average member of the profession practicing the specialty.

Helling v Carey—if a practice does not meet the ordinary standard of care of his community, it is negligent, even if it is an established custom.

Canterbury v Spence—the physician has the duty to warn the patient of the dangers of the proposed treatment. It is his duty to give information which the patient has a right to expect. A physician should convey the risks of an operation when a reasonable person would be likely to attach significance to the risk in deciding whether or not to forgo the proposed therapy. The standard measuring performance of the duty to disclose is conduct which is reasonable under the circumstances. The patient must have enough information to make an intelligent choice. All risks must be unmasked. There are two exceptions to this general rule: (1) If the patient is unconscious and harm from a failure to treat is greater than any harm threatened by the proposed treatment; and (2) If the risk-disclosure poses a threat to the patients well being.
Criminal Statutes

Statutes give content in establishing context for a negligent standard when determining RPP.  The standard is borrowed from the statute.

Plaintiff must show that (this is a causation analysis):
1.	there was a violation of the statute,
2.	plaintiff was a person within the class of people statute was designed to protect,
3.	injury is of the sort the statute was designed to protect,
4.	violation proximately caused injury.

Osborne v McMasters—violation of a duty imposed by a statute is negligence per se. If a statute imposes upon any person a specific duty for the protection or benefit of others and a party neglects to perform that duty, he is liable to those for whose protection or benefit it was imposed for any injuries of the character which the statute was designed to protect that proximately were produced by the neglect. All that the statute does is to establish a fixed standard by which the fact of negligence may be determined.

Violation of a statute establishes only some of the elements needed for a recovery for negligence. The violation provides conclusive proof of a duty and a breach of that duty; It does not provide conclusive proof of proximate causation and damages. Under the minority, a violation of a statute only creates a rebuttable presumption of negligence or mere evidence of negligence.  To apply violation of statute, the following must be met:  1) Statutory duty clear: The statute must specify exactly what conduct or duty is required, to whom it is required, and what constitutes a breach.2)  Statutory purpose: The purpose of the statute must be to prevent the type of injury that occurred and to protect the class of persons of which plaintiff is a member.3)  Defendant has no excuses for violation.

Martin v Herzog—the un-excused violation of a statutory duty is negligence per se and a jury does not have the power to relax the duty that one traveler on the highway owes under a statute to another on the same highway. Once negligence per se is established, there must still be a determination of causation and injury.
Brown v Shyne (chiropractor case)—if  a violation of statute has no direct bearing on the injury, proof of that violation becomes irrelevant. This statute's intent was to protect the public against persons who are incompetent and not from those who fail to get a license.

Ross v Hartman—if as the result of the violation of a statute, a third party causes damage to another, the person who violated the statute is liable for the sole reason that he violated a statute.
POLICY:  (A) To prevent crimes such as the stealing of cars.

Vesely v Sager—if one violates a statute that is designed to protect a class of people, and that person is injured or causes injury to another, then due care was not exercised and he is liable for damages.

One has not exercised due care if: 
1)	He violated a statute, ordinance, or regulation of a public entity; 
2)	The violation proximately caused death or injury to a person or property;
3)	The death or accident resulted from an occurrence of a nature from which the statute was designed to prevent; and
4)	The person suffering death or injury was of the class of person for whom the statute was meant to protect.

Judge and Jury

B & O R.R. v Goodman—a judge should direct a verdict against one who was injured because he failed to take reasonable precautions to guard against a known risk.

Polkora v Wabash Ry.--there is a duty to stop, look, listen, and reconnoiter before crossing a railroad track, but only in instances whereby sight and hearing become inadequate for a traveler's protection.

Matters of negligence must be determined by a jury unless as a matter of law he was subject to a duty as a matter of law to get out of the vehicle before it crossed the switch, walk forward to the front, and then, afoot, survey the scene. There is no such duty and therefore P's failure to do so must be left to rational and candid minds. The actions of a plaintiff depend on the situation and the circumstances and under that standard it is up to the jury to decide whether a particular course of action was prudent under the circumstances.

Wilkerson v McCarthy—a judge cannot direct a verdict simply because of his personal feelings. If there is sufficient evidence to show negligence, then this evidence must be given to the jury.

If there is sufficient evidence to show negligence, then this evidence must be given to the jury.

Proof of Negligence (res ipsa loquitur)
res ipsa loquitur requires:
1)	the event must be of a kind which ordinarily does not occur in the absence of negligence;
2)	it must be caused by an agency or instrumentality within the exclusive control of the defendant; and
3)	it must not have been due to any voluntary action or contribution on the part of the plaintiff.

The Restatement § 328 (d) says:

1)	it may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when:
a.	the event is of a kind which ordinarily does not occur in the absence of negligence;
b.	other reasonable causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and
c.	the indicated negligence is within the scope of the defendant’s duty to the plaintiff.
2)	it is the function of the court to determine whether the inference may be reasonably drawn by the jury, or whether it must be necessarily drawn.
3)	It is the function of the jury to determine whether the inference is to be drawn in any case where different conclusions may be reasonably reached.

res ipsa loquitur governs only negligence cases and applies with difficulty when defendant’s liability is predicated on grounds other than negligence.

Bryne v Boadle—it is possible for a presumption of negligence to arise solely from the a type of accident that has occurred. (It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out. A barrel could not roll our of a warehouse without some negligence.)

RES IPSA LOQUITUR GOVERNS ONLY NEGLIGENCE CASES AND APPLIES WITH DIFFICULTY WHEN DEFENDANT’S LIABILITY IS PREDICATED ON GROUNDS OTHER THAN NEGLIGENCE.  
In Gallbraith v Bush trial judge held that car skidding off road with good road conditions was sufficient to raise a presumption of negligence which shifted the burden of proof to defendant.  On appeal, court ruled the applicable substantive law precluded the invocation of res ipsa loquitur because plaintiff, as a guest in the car, assumed a certain risk.  Court in Pfaffenbach v White Plains held that whenever a vehicle comes over to the wrong side of the road a prima facie case of negligence is made out, “proof of mere skidding is prima facie evidence of negligence in this case where plaintiff is not a passenger.” 

In Larson v St. Francis Hotel, court ruled hotel was not liable for a chair being thrown out the window because a hotel does not have exclusive control of its furniture.  Court distinguished Larson from Connoly v Nicollet Hotel in noting that Larson involved a surprise celebration while the events in the instant case were the culmination of many days of riotous celebration.  Court ruled “negligence may be inferred from all the facts and surrounding circumstances and a prima facie case may be made.”

ACTS OF GOD DO NOT FALL UNDER RES IPSA LOQUITUR.  
In Walston v Lamberston court refused to apply res ipsa loquitur because of all the hazards of the sea.

DIRECTED VERDICTS.  
The usual effect of res ipsa loquitur is to allow plaintiff’s case to reach a jury.  Imig v Beck court ruled res ipsa loquitur did not allow plaintiff to prevail “since the doctrine gives rise only to a permissive inference, in most cases a directed verdict for the plaintiff will not be appropriate, even where the defendant presents no explanation because it must be left to the jury.  Plaintiff may be entitled either to a directed verdict or a verdict notwithstanding the verdict if all the evidence when viewed favorably to defendant, so overwhelmingly favors the plaintiff that no contrary jury verdict could stand
Colmenares Vivas v Sun Alliance Ins.—liability cannot be evaded by delegating authority to a third party.  All elements of res ipsa loquitur were met.

Ybarra v Spangard—neither the number or relationship of the defendants alone determines whether the doctrine of res ipsa loquitur applies.  Where a plaintiff receives unusual injuries while unconscious and in the course of medical treatment, all those defendants who had any control over his body or the instrumentalities which might have caused the injuries may properly be called upon to meet the inference of negligence by giving an explanation of their conduct.

POLICY: It is manifestly unreasonable for them to insist that he identify any of them as the person who did the negligent act. 

Causation
Cause in Fact

N.Y. Central R.R. v Grimstad—to be guilty of negligence, one's act or lack thereof must be the cause in fact of the accident. It cannot be a matter of speculation.

Kirincich v Standard Dredging Co.—questions of cause must go to the jury

Haft v Lone Palm Hotel—the evidentiary void in this case results primarily from the defendant’s failure to provide a lifeguard.  The burden of proof shifts to the defendants.  POLICY:  Plaintiffs have gone as far as they possibly can and to require more would give the defendants the advantage of not having a lifeguard.  

Stimpson v Wellington Service Corp.—if the cause shown is made to appear the probable cause of the accident, negligence can be found.

Richardson v Richardson-Merrell—to prove that one's negligence was the cause on an accident, the evidence must have a "genuine basis" and cannot be speculative.

Herskovits v Group Health—the showing of a loss of chance of survival is sufficient proof of causation for negligence.

TESTS FOR CAUSE IN FACT
(1)	But for: The plaintiff would not have been injured "but for" the defendant's act.
(2)	Loss of chance: Usually invoked in medical cases for reduced chance of recovery due to acts of the defendant.
(3)	Alternative: Either of the defendants could have committed a "but for" act, but the plaintiff’s unable to show which one did. The burden of going forward with the evidence of causation is thus shifted to each of the "alternate defendants".
(4)	Concurrent: The separate negligent acts of the defendants concur to cause a single injury which would not have happened but for the concurrence of the defendants' acts. Both will then be held liable.
(5)	Substantial factor: The conduct of either defendant alone would be substantial enough to cause the injury, making both liable for the results.
Proximate Cause
Ryan v New York Central R. Co.-- Every person is liable in damages for the proximate results of his own acts, but not for remote damages.
POLICY: (B arguments) To hold that the owner must not only meet his own loss by fire, but that he must guaranty the security of his neighbors on both sides, and to an unlimited extent, would be to create a liability which would be the destruction of all civilized society.

ORDINARY AND NATURAL RESULT
City of Lincoln—the only inquiry is whether the damage is the natural and reasonable result of the defendant’s act.  The test is satisfied if the damage was “such a consequence as in the ordinary course of things would flow from the act.”

RESPONSE TO EMERGENCIES
Jones v Boyce—it is sufficient if placed by the misconduct of the defendant in a situation to adopt the alternative danger, or to remain at certain peril.  If the plaintiff’s act resulted from a rash apprehension of danger, which did not exist, and harm resulted, he cannot recover.

Tuttle v Atlantic City R.R.—if a defendant, by negligence, puts the plaintiff under a reasonable apprehension of personal physical injury, and plaintiff, in a reasonable effort to escape, sustains physical injuries, a right of action to recover arises.

Berry v Borough of Sugar Notch-- Violation of a statute does not prohibit recovery from damage caused by another's negligence. An ordinance was violated, but it did not cause or contribute to the accident. There was no foresight that P could have predicted the accident. There is no contributory negligence because no guide can be given to the jury for them to differentiate between the accident with P speeding and without P speeding.

COINCIDENCE AND CAUSATION
In Central of Georgia RR v Price a railway’s negligence in missing a stop was not found to proximately cause injury by fire in hotel, “there was the interposition of a separate, independent agency [and] the injuries to the plaintiff were not the natural and proximate consequences of carrying her beyond the station.”  In Hines v Garrett defendant was found negligent for plaintiff’s injuries when she was forced to walk one mile in the dark, the court held that defendant is negligent when exposing the injured party to the act causing injury, “whenever a carrier has reason to anticipate the danger of an assault it rests under the duty to protect.”

APPARENT CONDITION OF SAFETY
Pitts. Reduction Co. v Horton plaintiff was denied recovery because dynamite cap was previously handled by an adult who should have realized the danger and this broke the causal chain.

Brower v New York Central-- The acts of a third party do not affect the liability of the original wrongdoer if the act should have been reasonably foreseen. The intervening act of the third party does not excuse the first wrongdoer if the intervening act could have been foreseen. In this case, the railroad usually had two detectives guarding its train. Therefore, they clearly realized that theft was a foreseeable and probable event.

DELIBERATE INTERVENTION BY 3RD PARTY
Watson v Kentucky & Indiana Bridge & Ry. Co.—court ruled “the mere fact that the concurrent cause or intervening act was unforeseen will not relieve the defendant guilty of primary negligence from liability, but if the intervening agency is something so unexpected or extraordinary as that he could not or ought no to have anticipated it, he will not be liable and certainly he is not bound to anticipate the criminal acts of others by which damage is inflicted, and hence is not liable thereof.

Wagner v International Ry.(darkness descends)-- Rescue is a foreseeable act. Continuity in such circumstances is not broken by the exercise of volition. It is enough that the act of rescue is the child of the occasion whether that act is impulsive or deliberate. Whether P in going to the rescue was foolhardy or reasonable in the light of the emergency confronting him, were questions for the jury.

Polemis & Furness, Withy & Co.-- If a breach of duty constitutes negligence, any damages as a direct result of that negligence are not too remote. A tortfeasor is liable for all the damages caused from a negligent act if that damage is directly traceable to the negligent act, and there are no independent or intervening causes. The fact that they did produce an unexpected result does not relieve the person who was negligent from the damage which his negligent act directly caused.

Palsgraf v Long Island R.R.-- A duty that is owed must be determined from the risk that can reasonably be foreseen under the circumstances. If no hazard is apparent to the eye of ordinary vigilance, an act innocent and harmless does not become a tort because it happened to be wrong with reference to someone else.
DISSENT: If an act has a tendency to harm someone it harms him a mile away as surely as it does those on the scene. Everyone owes the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others. In determining proximate cause the court must ask itself whether there was a natural and continuous sequence between the cause and effect.

Cardozo: negligence is based on the foreseeability of the harm between the parties. Even if an act is negligent, there can be no liability for that act if there is no foreseeability of harm to the injured party. Cardozo is the majority  view.  Andrews: each person owes an absolute duty of care; each person must refrain from acts (foreseeable or not) that unreasonably threaten the safety of others.

DIRECTNESS TEST:  
the negligence of the defendant is that nothing should have been allowed to fall into hull because some damage—other than a spark—was foreseeable.  Once a duty is breached, and there is some injury, actor is liable for all injuries in direct of causation.  Under this test, the harm does not have to be that which was foreseen.

FORESIGHT TEST:   
limits the liability to damages foreseen.

Two basic tests:
-	foresight test (B)
-	directness test (A)

(1)	Does person have to be within scope of risk?
F = yes (Palsgraff)
D = no (Andrew’s dissent)
Cardozo looks at proximate cause as a question of duty:  does the defendant have a duty to the plaintiff?  This is a question of law to be decided by judges

(2)	Is the injury of the same type risked?
F = yes (wagon mound)
D = no (Polemis)

(3)	Extent of the injury (a further test of 1 and 2)  (Kinsman Transit p. 542)
F = yes (wagon mound)
D = no

(4)	Manner of the injury
F =
D = don’t have to foresee

Marshall v Nugent-- Negligence does not end at the completion of D's direct act. Any extra risk created by the wrongdoer is still within the proximate cause of his negligence if it is reasonably foreseeable. Until both P and D were returned to safety, D's negligence would continue and thus was the proximate cause of P's injury. The car driver was not an intervening cause to break the causal chain. The proximate cause was limited to the foreseeability of the consequences of D's action. This is a decision that the jury should make.

The Wagon Mound (No. 1)-- A tortfeasor is not liable for all damage directly resulting from a negligent act. A tortfeasor is responsible for the reasonably foreseeable or probable consequences of his negligent acts.
Defenses to Negligence

COMPLETE BARS
Contributory Negligence

Contributory negligence is a complete and total defense.  The defendant has the burden of proof.  To prove contributory negligence the defendant must show:
1.	plaintiff acted unreasonably with respect to his own safety; and
2.	plaintiff’s negligence was actual and proximate cause of his harm.

Exceptions to contributory negligence at common law are:
a)	emergency
b)	custodial situations
c)	statutory violations
d)	last clear chance
exceptions:  helpless plaintiff or inattentive plaintiff

Beems v Chicago, Rock Island & Peroria R.R. Co.—if there is no contributory negligence by the plaintiff, then all liability falls on a negligent defendant.

Gyerman v U.S. Lines Co.-- In cases involving contributory negligence, the defendant have the burden of proving that the plaintiff was contributorily negligent. The fundamental question is whether P as a negligent actor has produced the harm to himself for which he is held responsible. His conduct must be a substantial factor operating with D's negligence in bringing about P's harm. P did not use ordinary care in deciding to keep unloading the sacks even though it was dangerous, but the record did not indicate that the problem would have been remedied if P had brought the danger to the attention of the union.

LeRoy Fibre Co. v Chicago, Milwaukee & St. Paul Ry.-- One's rights in the use of his property cannot be limited by the wrongs of another. One has the duty to use his property so it does not injure others, but does not have the duty to use his property so that it may not be injured by the wrongs of another. D was using his property for a legitimate use. Other property in the vicinity may suffer inconveniences and risk, but a risk from a wrongful operation is not one of them. That the uses by one owner of his property may be limited by the wrongful use of another owner is a contradiction.

Last Clear Chance

Fuller v Illinois—the party who last has a clear opportunity of avoiding the accident, notwithstanding the negligence of his opponent, is considered solely responsible for it.
Assumption of Risk

Assumption of risk can be both express or implied:
1)	plaintiff had knowledge of the risk
2)	plaintiff accepted the risk (voluntary assumption also applies)

There is a distinction between primary and secondary assumption of risk:
1.	primary—defendant is under no duty to plaintiff
2.	secondary—defendant would ordinarily have a duty to plaintiff, but plaintiff’s assumption of the risk causes the duty to dissipate

Lamson v American Axe & Tool Co.— If an employee knowingly works in a dangerous situation, the employer is not liable for any accident that may occur, because the employee is assuming the risk.
POLICY:  worker is in a better position to know of the risk.  CON:  employee is in an unequal bargaining position.

Murphy v Steeplechase Amusement Co.(The Timorous Should Stay At Home!)— If a patron of an amusement park sees and understands the dangers of a ride but goes on the ride anyway, the amusement park is not liable for any damages that may occur because the patron has assumed the risk. P knew the dangers of the ride; they were not obscure or unobserved. He therefore took the chance of being injured.

Russo v Range—plaintiff riding down giant slide and had warning on back of ticket.  Court held no written contract and plaintiff alleged no knowledge of specific risk.

Obstetrics & Gynecologists v Pepper— There can be no assumption of risk when signing an agreement on behalf of a patient if she does not remember signing it and it was never explained to her.

POLICY:  six criteria are used to identify the kind of agreement in which an exculpatory clause is invalid as contrary to public policy:
(1)	it concerns a business of a type generally thought to be suitable for public regulation
(2)	the party seeking exculpation is engaged in a service of great importance to public which is a matter of necessity
(3)	the party is willing to perform this service for any member of the public
(4)	the party invoking the exculpation possesses a decisive advantage of bargaining strength
(5)	the party confronts the public with a standardized adhesion
(6)	the person or property of the purchaser is placed under the control of the seller

Comparative Negligence

Li v Yellow Cab Co.-- Under the doctrine of comparative negligence, if both parties in an accident are negligent, there liability is based on the percentage of their fault.

Knight v Jewett—distinguishes between two types of assumption of risk.  Primary assumption is when the defendant owes no duty or owes a lesser duty.  Secondary is when defendant owes some care, but the plaintiff reasonably assumed risk.  This is an affirmative defense to a prima facie case negligence case.  Primary assumption of risk modifies the duty element by either lessening or eliminating.
Vicarious Liability

Ira S. Bushey v United States-- Even if an employee's conduct is not motivated by his employer's interests, an employer is still vicariously liable for an employee's negligent acts if the employee's conduct was
reasonably foreseeable and within the scope of his employment.

Hardy v Brantley-- A hospital is held vicariously liable if one enters it and is treated by a staff physician who is negligent and causes him harm.  
Traditional Liability
Trespass and Conversion

Moore v The Regents of UC--
Animals

Baker v Snell-- Unless the animal is shown to be either harmless by its very nature, or to belong to a class that has become so by what may be called cultivation, it falls within the class of animals as to which the rule is, that a man who keeps one must take the responsibility of keeping it safe.

Abnormally Dangerous Activities

Restatement § 519
(1)	One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm
(2)	This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous

Restatement § 520
In determining whether an activity is abnormally dangerous, the following factors are to be considered:
(a)	existence of high degree of risk of some harm to the person, land or chattels of others;
(b)	likelihood that the harm that results from it will be great;
(c)	inability to eliminate the risk by the exercise of reasonable care;
(d)	extent to which the activity is not a matter of common usage;
(e)	inappropriateness of the activity to the place where it is carried on and;
(f)	extent to which its value to the community is outweighed by its dangerous attributes.

Fletcher v Rylands-- If a person brings something onto his own property for his own purpose, he keeps it at his own peril and is responsible for any damage that it causes if it escapes. In other words, if a person has something that he keeps and through no negligence of his own it escapes, the owner is responsible for any damage that it causes.

Brown v Collins-- If one is totally without fault, he is not liable for damages caused by anything escaping from his land. Anything brought onto one's property is capable of escape. It is unreasonable to expect the landowner to be responsible for everything.
POLICY: To make a man liable for natural consequences arising from the escape of anything brought on land would hinder progress and improvement.

Spano v Perini Corp.-- A party is absolutely liable for damages caused by blasting.
POLICY: if there is an activity that cannot be made safe even with the use of utmost care, then strict liability applies to the damages caused by that activity. These types of activities are labeled as ultrahazardous. Strict liability has been extended to products (foods, drugs, merchandise) in the stream of commerce; if a defect exists in the product when it left the manufacturer, that manufacturer and those in the stream of commerce will be held absolutely liable for the foreseeable damages that are caused by the use of that product. 

Madsen v East Jordan Irrigation (Minks Case)-- If one uses a substance in a non-negligent manner, he is not responsible for any damages resulting that cannot reasonably be expected.

Indiana Harbor Belt R.R. Co. v American Cyanamid Co.—one might want to distinguish between the shipper who merely places his goods on his loading dock to be picked up by the carrier and the shipper who participates actively in the transportation.   No cases recognize so sweeping liability.

Strict Products Liability
Introduction and Exposition

Prima facie case for Strict Products Liability:
1.	Defendant is in the business of selling products for use or consumption and product is expected to and does reach the consumer without substantial change.
2.	The product is in a defective condition
3.	The product is unreasonably dangerous to the user and the consumer or by-stander.
4.	The defect results in physical harm to user or consumer or by-stander.

Winterbottom v Wright—there must be privity of contract in order for a plaintiff to sue for negligence from a breach of that contract.

MacPherson v Buick Motor Co.-- The manufacturer of a product owes a duty of care to any foreseeable user of that product. There need be no privity of contract between the plaintiff and the defendant. We think the defendant was not absolved from a duty of inspection because it bought the wheels from a reputable manufacturer.

Escola v Coca-Cola-- If a product causes damages, and this product would not cause damage normally without negligence, an inference of negligence is assumed.

McCabe v Ligget Drug (Lucifer Lifetime)—if a product has been purchased, an it proves to be ineffective, an implied warranty has been breached due to the incapability of the product to do its intended task.
The Restatement

Casa Clara v Toppino—courts distinguish between economic harm and physical harm.

Murphy v E.R. Squibb—one who provides a service and does not sell a product is not held strictly liable in products liability cases.
POLICY:  if pharmacies were held strictly liable for the drugs they dispense it would restrict availability by refusing to dispense drugs which pose even a potentially remote risk of harm.

Product Defects

Three types of product defects:
1.	construction or manufacturing defect—non-generic flaw
2.	design defect—deviation, unintended from design, beyond tolerances.  Present in product when it left the manufacturer
3.	inadequate warning

CONSTRUCTION DEFECTS

Pouncey v Ford Motor Co.—if there is direct evidence of an actual product defect in the record, a jury can infer manufacturer negligence from circumstantial evidence.

Welge v Planters Lifesavers Co.—the plaintiff in a product liabilities case is not required to exclude every possibility
DESIGN DEFECTS

Two definitions of design defects (Barker v Lull Engineering Co.):
1)	Consumer Expectation Test—product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.
2)	Risk Utility Test—product’s design embodies excessive preventable danger;  if the risk of danger inherent in the challenged design outweighs the benefits of such design.  Relevant factors include:
a)	the usefulness and desirability of the product—its utility to the user and to the public as a whole
b)	the safety aspects of the product—the likelihood that it will cause injury, and the probable seriousness of the injury
c)	the availability of a substitute product
d)	the manufacturer’s ability to eliminate the unsafe character
e)	the user’s ability to avoid danger by the exercise of care
f)	the user’s anticipated awareness of the dangers
g)	the feasibility of spreading the loss

Micallef v Miehle Co. (chasin’ the hickie)—a manufacturer is not necessarily relieved from liability if its product causes harm merely because the defect is open and obvious to the user.
POLICY:  plaintiff can take steps to protect against harm

Two tests:
1.	whether the open and obvious nature of an asserted defect is sufficient to negate all liability or whether it only dispenses with the need for a warning;
2.	whether any design requirements should be imposed by legislation or whether these changes can be imposed by judges and juries in common-law adjudication.

Linegar v Armour of America—cannot allow recovery from a blameless defendant on the basis of sympathy for the plaintiffs.  To hold Armour liable for Linegar’s death would cast it in the role of insurer for anyone shot while wearing an Armour vest.

DUTY TO WARN

Four types of issue (not a PFC):
1)	does defendant have duty to warn?
2)	If so, to whom is the duty owed?
3)	Was the warning adequate?
4)	Did lack of warning cause plaintiff’s injuries?

MacDonald v Ortho Pharmaceutical Corp.-- A manufacturer of birth control pills owes a direct duty to the consumer to warn her of the dangers inherent in the use of the pill. Usually, a prescribing physical acts as a "learned intermediary" between the manufacturer and the patient, and the duty of the ethical drug manufacturer is to warn the doctor. Since in contraceptive cases, the consumer is a healthy, active person, he is less likely to consult a physician or pharmacist concerning proper use and risks.
Plaintiff’s Conduct

Daly v General Motors-- Comparative negligence is a valid defense in strict liability actions. By extending and tailoring the comparative principles to the doctrine of strict products liability, we will move closer to a goal of equitable allocation of legal responsibility for personal injury. This is more preferable to the complete bar for a finding of voluntary assumption of the risk.
Affirmative Duties
Everyone has a duty to ACT reasonably under the circumstances.  Affirmative duties deal with a duty to take action.
Duty to Rescue
Generally there is no duty to rescue.  Exceptions:
1.	creation of a dangerous situation
2.	if someone is hurt by non-negligent act
3.	if an affirmative action is taken

Buch v Amory Manufacturing Co.-- P was a trespasser and a trespasser is owed the following duties: 1) May eject him but no additional force is warranted.; 2) Not bound to warn of hidden or secret dangers or damages, or to protect him from his own acts.; 3) If the owner does not interfere with a trespasser, there can be no action against the owner.; 4) Trespasser is liable for all damage he may cause to the owner's property. It does not make a difference if the trespasser is an adult of a minor. There is a legal duty to do no wrong but no legal duty to protect against a wrong. There is no legal duty to protect strangers. An infant is liable for his trespasses.

Yania v Bigan—defendant is no liable, “the result of plaintiff’s ignorance, or of his mistake, must rest with himself—and cannot be charged to the defendants.”

Montgomery v National Convoy & Trucking-- Liability exists if the omission of a duty owed to another was the proximate cause of the injury.

Louisville & Nashville R. Co. v Scruggs—if the defendant’s use of its land was “merely passive,” the law imposes no duty on one man to aid another in the preservation of the latter’s property, but only the duty not to injure another’s property in the use of his own.

Restatement § 322—if the actor knows or has reason to know that by his conduct he has caused bodily harm to another as to make him helpless and in danger of further harm, the actor is under a duty to exercise reasonable care to prevent such further harm.

Black v New York, N.H. & H. R.R.—in a voluntary undertaking the actor has a duty to have reasonable regard for safety.

Zelenko v Gimbel Bros.—if a defendant undertakes a task, the defendant must not omit to do what an ordinary man would do in performing the task.

Restatement § 324—one who, being under no duty to do so, takes charge of another who is helpless adequately to aid or protect himself is subject to liability to the other for any bodily harm caused to him by:
(a)	the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor’s charge, or
(b)	the actor’s discontinuing his aid or protection, if by so doing he leaves the other in a worse position than when the actor took charge of him.

Duties of Owners and Occupiers

TRESPASSERS
As a general rule, the landowner owes no duty to a trespasser to make the land safe, to warn of its dangers, to avoid dangerous activities, or to protect the trespasser.  Exceptions:
1.	Constant trespass on a limited area—if the owner has reason to know that a limited portions of the land is frequently used by various trespassers, he must use reasonable care to make the premises safe or at least to warn of dangers.
2.	Discovered trespassers—once the owner has knowledge that a particular person is trespassing, the owner is then under a duty to exercise reasonable care for trespasser’s safety.
3.	Children (Restatement § 339)—owner owes a duty of reasonable care to trespassing children if:
(a)	the owner knows that the area is one where children are likely to trespass;
(b)	the owner has reason to know that the condition poses an unreasonable risk of serious injury to trespassing children;
(c)	the injured child either does not discover the condition or does not realize the danger due to his youth;
(d)	the benefit to the owner of maintaining the condition in its dangerous form is slight weighed against the risk to the children; and
(e)	the owner fails to use reasonable care to eliminate danger
There is less liability for a natural condition and there is no duty of inspection for children.

Robert Addie & Sons v Dumbreck-- Toward a trespasser, the occupier has no duty to take reasonable care for his protection or even to protect him from concealed danger.
LICENSEES

A licensee is a person who has the owner’s consent to be on the property, but who does not have a business purpose for being there, or anything else entitling him to be on the land apart from the owner’s consent.

The owner does not owe a licensee any duty to inspect for unknown dangers.  If the owner knows of a dangerous condition, she must warn the licensee of that danger.

INVITEES

Restatement § 332
(1)	an invitee is either a public invitee or a business visitor
(2)	a public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public
(3)	a business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealing with the possessor of the land.

Rowland v Christian-- Ordinary principles of negligence may be used to determine the liability of a landowner to a person coming onto the property.

Gratuitous Undertakings

Coggs v Bernard—any man that undertakes to carry goods is liable to an action if through his negligence they are lost.  The owner’s trusting him with the goods is a sufficient consideration to oblige him to careful management

Erie R.R. v Stewart—where a practice is known and established, the defendant has an absolute duty to maintain that standard of care.

Marsalis v LaSalle-- If one agrees perform a duty, and fails to reasonably perform this duty, then he is negligent, and liable for any resulting injuries.

Moch Co. v Rensselaer Water Co.-- One who undertakes to perform a duty for another, and fails to adequately perform this duty, owes no special duty to any third party harmed by his non-performance, unless he specifically agreed to perform for the third party also.
Special Relationships

Kline v 1500 Mass. Ave.-- A landlord is under a duty to protect tenants from foreseeable criminal acts committed by third parties.

Tarasoff v Regents-- A psychologists relationship with a patient does create duties for the benefit of third persons.  “A defendant owes a duty of care to all persons who are foreseeably endangered by his conduct, with respect to all risks which make the conduct unreasonably dangerous, however, when the avoidance of foreseeable harm requires a defendant to control the conduct of another person, or to warn of such conduct, the common law has traditionally imposed liability only if the defendant bears some special relationship to the dangerous person to the potential victim.

Once a real threat is determined to exist, a psychologist owes a duty to take all reasonable actions to prevent that harm to intended victims. This duty does not breach the doctor-patient privilege because there is a greater duty to protect the public.