Breach/Causation

Question 1

What is breach based on for “reasonable standard of care”?

Answer 1

Cost-benefit analysis, when the marginal costs are less than the cost of the harm (breached)
Applying the concept of the Hand Formula as well as general societal, emotional, value costs with the losses attributed to negligent behavior
Key Questions
Is this a net benefit?
Would it cost more to prevent negligent behavior?
Community norms, NOT custom as it is based off of societal expectations of what you should do in each situation
There is no established minority or majority, but general expectations for what society how society would want you to act in order to limit negligence and harm

Question 2

What are the three types of evidence that can be used to prove a breach of duty from
most->least convincing
least->most common

Answer 2

Documentary/real->Direct->Circumstantial

Question 3

What is Documentary/Real Evidence?

Answer 3

Most convincing, least common
physical objects, videotapes, photographs

Question 4

What is Direct Evidence?

Answer 4

somewhat convincing, somewhat common
eyewitness testimony, documents

Question 5

What is Circumstantial Evidence?

Answer 5

most common, least convincing
actual and constructive notice
res ipsa loquitur
custom
negligence per se

Question 6

What is active notice?

Answer 6

Defendant was directly warned of the fault or issue and did not address it leading to negligence and liability

Question 7

What is constructive notice?

Answer 7

Non-direct evidence that points to the fact that the defendant should have been aware and fixed the issue.

Question 8

What is the “Business Practice”/”Mode of Operation” Rule?

Answer 8

No need to establish actual or constructive notice when the business practice of the store provided a continuous and foreseeable risk of harm to customers. (if it is a self-service)
The store has a duty to take reasonable steps to reduce the risks that inhere in the use of a self-service operation.

Question 9

What is the basic standard for establishing that the defendant’s act was a cause of plaintiff’s injury?

Answer 9

the basic principle is “cause in fact”. To establish cause in fact P must show that:
more probably than not (Rest 3d 28) but for the defendant’s act, plaintiff would not have been injured. (Rest 3d 26)

Question 10

How did the court modify the standard in Stubbs?

Answer 10

They replaced the first portion “more probably than not” into a “reasoable certainty” but for the defendant’s act, plaintiff would not have been injured. This lowers the threshold of proof.

Question 11

What are multiple sufficent causes of an injury?

Answer 11

Multiple sufficient causes arise when there is more than one cause of a victim’s injury and each one of those causes would have been enough in its own right sufficient unto itself to cause the entire harm.

Question 12

How have courts dealt with multiple sufficient causes in addressing the cause in fact?

Answer 12

The traditional “but-for” causation test cannot apply to these causes because you are unable to determine which singular act was more likley/probable to have caused the victim harm.
The courts then developed the “Substantial Factor Test” where D’s breach is an actual cause if it was a substantial factor in bringing about P’s injury.
You would apply this test if multiple causes bring about P’s injury and any one of them would have caused the injury alone.

Question 13

For the Substantial factor test should it matter whether the relevant causes are all attributable to negligent actors?

Answer 13

In Basko they still apply the substantial factors test and the court states that it is better to effectively deter than letting someone negligent go free.

Question 14

What policy concerns prompt the courts to modify the traditional but-for causation test when there are multiple sufficient cuases?

Answer 14

Deterrence: the defendants face no consequences and are under-deterred from engaging in the harmful conduct again.
Compensation: the innocent victim must absorb all of the costs. Under compensation
Moral Fairness: the defendants are not obligated to make the vicitm whole again. Therefore there is no corrective justice.

Question 15

What is Reduction in Chance?

Answer 15

The negligent diminution in the patient’s prospects for a favorable outcome
value of life TIMES the diminished probability of survival.

Question 16

What is the “loss of original chance”?

Answer 16

Asks whther more probable than not, the negligence deprived the victim of an original chance of a good outcome.
If it does, the P can recover the full value of the OG chance
If not then the P gets nothing

Question 17

Why has “loss of chance” been adopted in medical malpractice cases?

Answer 17

Patients regularly have a 50% or smaller chance of survival.
There will be a very substantial group of patients who have no chance of recovering under the traditional approach
Failure to recognize “loss of chance” places the burden of mistake on the innocent patient.
Patients expect doctors to protect their chance of survival.
There is reliable evidence on the chances of survival in medical settings.

Question 18

How does the adoption of loss of chance affect the goals of torts policy?

Answer 18

Deterrence: Deters doctors from being negligent in cases of survival
Compensation: Increases odds of compensation (depending on approach)
Moral Fairness: YEAH if you die cause a doc fucked up your estate should totally get recovery; says the entirety of society.

Question 19

What is several liability?

Answer 19

Several liability refers to the individual liability of each defendant in a tort action.
When defendants act independently of one another (no common plan) to produce divisible injuries each is severally liable.
They will only be responsible for that identifiable divisible injury that was caused by their independent act

Question 20

What is joint and several liability?

Answer 20

Joint and several liability applies if
Defendants act in concert, that is, pursuant to a common plan or agreement; They will be jointly and severally liable for any injuries that occur due to acts that fall within the scope of that plan or agreement
Defendants’ independent acts concur to produce an indivisible injury
An injury that cannot be disaggregated and then measured separately

Question 21

What is the burden-shifting technique used in Summers?
When is it available?

Answer 21

The burden-shifting is a test when there is several possible causes of P’s injury. It is available when multipls D’s conduct (usually simultaneously) cause P’s injury but only one act causes serious damage but it is unclear which D caused the injury.
It is when the burden of proving actual cause shifts to Ds and if neither D can prove the other was responsible then all Ds are jointly and severally liable

Question 22

How does burden-shifting advance tort’s policy goals?

Answer 22

Deterrence: each D will be deterred based on risk-creation rather than materialization of harm
Compensation: the P will recieve the appropriate level of compensation and maximizes the chances that the P can collect the full amount of damages
Moral Fairness: This results in corrective justice for the innocnet P but creates some horizontal inequality between the Ds however it is less harsh to let a negligent co-defendant who created a risk absorb the costs than a fully innocent P.

Question 23

How does the approach in Summers compare with the substantial factor test used in Basko?

Answer 23

The difference between these two cases is here we have two actors one negligent and one innocent and you cannot tell which actor was the cause. In Basko we have one actor who commited botha negligent and innocent act. In Summers we cannot use substantial factor because it automatically places the 50/50 burden onto the Ds when there is a possibility that they themselves could determine who was the negligent actor then the damages get split. In Basko regardless of the innocent act the actor can be held liable for the negligent act.

Question 24

What is alternative liability?

Answer 24

It is the same as burden shifting. When a P can’t pinpount which of multiple Ds caused their injury which allows them to shift the burden of proof to each D requiring them to prove they were not responsible.

Question 25

What is “in concert” liability?

Answer 25

It is when two or more Ds act in pursuant of a common plan or agreement and injure the P
Note: this applies even if injury and Ds culpability is divisible (burden shifting)

Question 26

What is enterprise liability? Why has it been rejected by DES cases?

Answer 26

Enterprise liability is when Ds are the basis of a shared enterprise where the industry as a whole could be held liable for any injuries that result from failing to use reasonable care to mitigate risks of injury.
It was rejected by DES cases because the industry was decentralized with over 200 manufacturers (vs 6 in Hall), the drug industry was regulated by the FDA (in Hall the industry voluntarily delegated safety to a trade association) and the drug industry did not engage in the same industry-wide cooperation that made imposition of collective liability appropriate.

Question 27

What is market share liability?

Answer 27

Market share liability holds a manufacturer liable based on its share of the market of a harmful product during the period that the harm occurred.

Question 28

How is the “market share” defined?

Answer 28

NY courts use the national market so however much of their share was in the national market is the portion the D may be held liable for in damages.

Question 29

How does market share liability define the victim’s injury?

Answer 29

It goes from a ex post harm standard to a creation of ex ante risk standard so a lower threshold for Ps to be exposed to.

Question 30

How are damages measured under market share liability?

Answer 30

There are mulitple ways one being proportional several liability: a defendant’s several share would be adjusted based on the departure of some firms from the drug industry.
Tradtional model: a plaintiff can recover in full from ex post harm
The mix and match: compensates for both ex post harm and ex ante risk creation.

Question 31

How does proximate cause differ from cause in fact?

Answer 31

Cause in fact: involves an emprical inquiry into relations tracing back in time and space between defendant’s act and plaintiff’s injury so we can attribute more probable than not the defednant’s negligent conduct.
Proximate cause: involves policy judgment about the propriety and fairness of imposing liability on the defendant, even if the act was an actual cause of plaintiff’s injury. We have already decided that the defendent is a cause and fact then we use proximate cuase to establish that it is fair under the law to hold the defendant fully responsible for P’s injuries.

Question 32

What is the “eggshell plaintiff” rule?

Answer 32

The “eggshell plaintiff” rule says that a defendant who makes a careless mistake must take his or her victim as he finds that person and is liable for the full extent of the victims injuries, regardless of whether they are foreseeable.

Question 33

How does the “eggshell plaintiff” rule differ from the “precipitating factor” approach?

Answer 33

The precipitating factor approach is like the substantial factor test where the negligent conduct of the defendant enhanced the risk of the inflicted damages but was the direct cause that what created the damages.
The difference between the two is that the “eggshell” rule is that it focuses on the conduct that is the cause of harm to a person while “precipiating factor” is the enhancement of risk that such harm occurs.

Question 34

Why is the defendant liable for the exacerbation of P’s injuries due to medical malpractice?

Answer 34

Rest (3d) §35: the defendant is liable for the harm the plaintiff suffers due to a third parties efforts to render aid so long as the enhanced harm arises from a risk that inheres in the effort to render aid. This would also apply to medical malpractice since the doctor is a third party rendering aid reasonably required by the plaintiff’s injury.
NOTE: the Defendant can seek contribution from the doctor for the amount related to the exacerbation of the original injury.

Question 35

When is the defendant liable for injuries that plaintiff sustains while riding in an ambulance on the way to the hospital for treatment after an accident?

Answer 35

the defendant is only held liable so long as the enhanced harm while driving the ambulance arose from a risk that inheres in the effort to render aid.

Question 36

What is the rule in Polemis for deciding whether a defendant can be held liable for an unforeseeable type of harm?

Answer 36

A plaintiff can recover from an unforeseeable type of harm if the harm was a direct result of the defendant’s negligence.

Question 37

What is the rule in Wagon Mound I for determining when a defendant can be held liable for an unforeseeable type of harm?

Answer 37

If it is an unforeseeable type of harm you will not be liable whether it is inflicted directly or indirectly as a result of your negligence

Question 38

How does Wagon Mound II affect the ruling in Wagon mound I?

Answer 38

As long as the risk was at least remotely foreseeable the defendant could be held liable. WM II stretches the concept of foreseeability to allow plaintiffs to recover

Question 39

Which rule is best from the standpoint of deterrence, compensation and moral fairness?

Answer 39

WM II promotes deterrence, compensation and moral fairness more so than WM I and Polemis.

Question 40

What are the circumstances in which unforeseeable manner can insulate a defendant from liability?

Answer 40

An “independent intervening cause” could insulate a defendant from liability.
An “independent intervening cause” is a cause which interrupts the natural sequence of events and prevents the probable results from the negligent act to occur and producces a different result that could not have been reasonably foreseen

Question 41

When are relations in time and space too attenuated?

Answer 41

The lapse in time and space is not too attenuated as long as the conditions that the defendant created remained unchanged during this period. (Polemis)

Question 42

When does an intervening act become a superseding cause?

Answer 42

An intervening act become a superseding cause when it breaks the chain of causation and defeats proximate causation. If it is not foreseeable it then supersedes the defendant’s mistake and insulates the defendant from liability

Question 43

How do claims of unexpected manner turn on the degree of specificity or generality with which the relevant facts are described?

Answer 43

Rest (3d) §29
whether the harm arose from the “risks that made the actor’s conduct tortious” focusing on the foreseeabe risks associated with the defendant’s conduct which is the actual cause not trivial details
Rest (3d) §30
“An actor is not liable for harm when the tortious aspect of the actor’s conduct was of a type that does not generally increase the risk of that harm.”
what is critical is evaluating what teh categorical risks are that inhere in the tortious mistake.
Rest (3d) §36 (multiple causes)
If the defendant commited a trivial mistake that was not inherently the cause of the more catastrophic injury as a result of the multiple cuases then the harm is not within the scope of the actor’s liability.

Question 44

How does Justice Cardozo limit liability in Palsgraf?

Answer 44

Ex ante the P was an unforeseeable victim since the compact with respect to the P was not violated because any risk that was created through the guard’s carelessness did not endanger. Shared understandings about risk were not violated by a wholly unforeseeable invasion of the plaintiff’s interests.

Question 45

How does Justice Andrews’ approach differ?

Answer 45

He argues that under an enhancement of risk the duty is owed not just to a foreseeable victim but to the public at large. This emphasized an ex post approach relying on a legal fiction so once a defendant enhances the risk of harm to the public anyone who suffers an injury can recover. No need to have foreseeability ex ante

Question 46

What does Kinsman I reveal about the relative influence of Polemis and Wagon Mound in defining the scope of liability?

Answer 46

By finding that the risk of flooding was at least remotely foreseeable, but it also emphasized the influence of Polemis. Even if it was unforeseeable we still think it was direct and responsible for it
Here, the injury was direct, regardless of whether it was foreseeable.
Essentially allowing both approaches to define the scope of liability.

Question 47

What is the purpose of custom (non professionals)

Answer 47

Establish whether the defendant had succeeded or failed to do what is custimarily done to label as negligent ot not
If a practice is customary, then the defendant could easily learn about it but also implement it

Question 48

What are the elements of Custom? (Non professional)

Answer 48

Scope: is it one that is in the same calling or profession as the defendant?
Frequency: How common is the practice? Does it constitute a substantial minority?

Question 49

Is custom dispositive? (non professional)

Answer 49

Rest (3d) § 13
Not dispositive but is relevant evidence to determine whether standard of reasonable care was met
Why not?
Because custom can lag behind new developments and information access costs may leave defendants unaware
compliance is not a guarantee of reasonable care

Question 50

What is the standard of care (Nature) for Negligence Per Se?

Answer 50

An existing statute may establish the standard of reasonable care in which case the statutory standard imposed by the statute will replace the general common law standard of reasonable care.
Note: they can be adjusted/disregarded for safety or other reasons justifying the violation

Question 51

What are the exceptions to Negligence Per Se (when statutory standard of care does not apply)?

Answer 51

Generally:
Compliance is more dangerous than non-compliance
Compliance is impossible under the circumstances
Specific Restatement Section 15:
Reasonable in light of the actor’s childhood, physical disability, or incapacitation
Reasonable in attempting to comply
Neither knows nor should know of the factual circumstances that render the statute applicable
Violation is due to confusing way requirements are presented
Compliance poses a greater risk of physical harm than noncompliance

Question 52

What are the elements of res ipsa loquitor?

Answer 52

This is the kind of accidet that typically does not occur in the absence of negligence and the instrumentality that caused harm was in the defendant’s exclusive control.
Some states use a three-part test;
1. Is this kind of accident that typically does not occur in the absence of negligence
2. The instrumentality that caused the harm was in the D’s exclusive control
3. The plaintiff did not voluntarily contribute to the accident. (the plaintiff did not have access to the instrumentality)

Question 53

What is the evidentiary effect of Res Ipsa Loquitur?

Answer 53

Rest (3d) § 17: Factfinder may infer the defendant has been negligent but jurisdictions will have different approaches to inferring negligence.
Burden of Production: Establish the facts of the case for which jury will decide on (no evidence = auto loss)
Burden of Persuasion: Carry the weigh of convincing the jury of their position. Must be more than likley they are negligent or not in the suit. If it falls on the defendant, it must be overwhelming in their favor for non-negligence
the evidentiary effect of res ipsa loquitur varies from jurisdiction to jurisdiction
New York, res ipsa loquitur gives rise to an inference.
California, res ipsa loquitur gives rise to a weak presumption.
Louisiana, res ipsa loquitur gives rise to a strong presumption.
Inference: Neither the burden of production nor the burden of persuasion shifts. Res ipsa loquitur merely gets the plaintiff to the jury.
Weak Presumption: The burden of production shifts to the defendant, but the burden of persuasion remains on the plaintiff.
Strong Presumption: Both the burden of production and the burden of persuasion shift to the defendant.

Question 54

What are the policy reasons for allowing a plaintiff to invoke res ipsa loquitur?

Answer 54

Deterrence: Prevents defendants from witholding evidence as the doctrine shifts the focus to the probabilities of negligence inherent in the event
Compensation: ensures that P can get recovery even without access to to direct evidence
Moral Fairness: It allows the P to be made whole again when the D commited a neligent act whether there was direct evidence or not.

Question 55

Should the plaintiff be allowed to rely on res ipsa loquitur when specific evidence of negligence is available?

Answer 55

yes but you use it when you cant establish a prima facie case and you are missing the evidence since the defendant has the rest.
Do not have to choose between them as their evidence is not enough for a prima facie case and the defendant has the rest of the necessary evidence. They can bring forth what they have but use res ipsa to obtain the rest.

Question 56

What are Wigmore v. Prosser’s view on Res Ipsa?

Answer 56

Wigmore: to be used only as an information-generating device
Posser: even without evidence possible but for outcome-dispositive goals, it is a better option as most of the time it is due to negligence so this creates more “fair” “correct” outcomes than not

Question 57

How can Res Ipsa Loquitur effect medical malpractice? Include Examples

Answer 57

Patients are often left in the dark during surgery so they can rely on res ipsa to fill in the gaps of evidence for medical malpractice suits
Conspiracy of Silence: doctors and nurses are treated as a team so any liability goes to all if they do not speak up
Exclusive Control: all members of the team echibit exclusive control as they all understanf the procedure and are aware of what should be the care taken and where operation should occur
Missing Defendant: For res ipsa, there cannot be any missing defendants in the suit of a team as then there would be no way of spreading liability on all parties. Every defendant must be included to have a viable suit.
Texas Limitations allowed cases: misusing mechanical instrument, operating on the wring part of the body, leaving instruments or sponges inside the body