Concepts

Question 1

Reasonable Person Standard

Answer 1

• what a reasonable person ought to do in a like situation
• could be highest duty of care depending on the situation
• emergency situation counts
• mental illness has same standard
• physical disabilities have standard of “similarly situated” person
• children don’t apply unless doing adult activities, otherwise “like child” standard; semi-objective
• unconscious people are not liable unless you can foresee unconsciousness
• not based on your abilities; not individually tailored

Question 2

Custom

Answer 2

• jury question of fact
• expert testimony used to determine existance of custom
• not following custom goes towards evidence of breach, but is not dispositive of breach
• becomes form of self-regulation
• compliance or non-compliance doesn’t demonstrate standard of care
• small companies sometimes exempt if cost burden too high
• policy:used to show people’s experiences with custom, to see if P’s requested action would be feasible, educate jury; not given absolute liability

Question 3

Med Mal Custom

Answer 3

• old rule: locality
• new rule: national standards
• even if there are two diferent schools of thought, the minority opinion may be used if it is well-regarded
• custom is like strict liability
• policy: the lay person wouldn’t know what the proper course of action would be

Question 4

Negligence Per Se

Answer 4

• safety statute
• for the benefit of the class of people to which the P belongs
• directed at the type of injury that occurs

(overboard sheep example)

Question 5

Notice in Negligence Cases

Answer 5

• constructive: defect visible and present long enough for D to remedy it
• actual: first hand knowledge; witness
• business practices: in some cases you don’t need notice (self-serve buffet)

Question 6

Types of Evidence

Answer 6

• Direct: testimony based on personal knowledge and documentation
• Circumstantial: evidence that establishes a fact which leads itself to an inference regarding an occurrence

Question 7

Res Ipsa Loquitor

Answer 7

• the thing speaks for itself
• the accident alone is a PFC, this is a matter of breach
• mere presence is insufficient, these are highly unlikely cases
• Instrumentality
  
  • thing that caused accident was under D’s control
  • event could not occur but-for negligence
  • P wasn’t at fault
• Policy: certain accidents don’t occur w/o negligence; the D has better access to evidence, so they have burden of proof; reduces error costs

Question 8

Duty

Answer 8

• everyone has a general standard of care towards others
• some people have affirmative duties:
  
  • Exception 1: Common law special relationships
  • Exception 2:
    
    • D non-negligently causes risk
    • D non-negligently causes injury
    • D begins a rescue

Question 9

Rationales for No General Affirmative Duty

Answer 9

• basic liberty principle suggests we should not be mandated to help
• slippery slope argument
  
  • if we create duties where does it stop

Question 10

Malfeasance vs Nonfeasance

Answer 10

• acting improperly
• not acting at all

Question 11

Common Law Special Relationships

Answer 11

• common carriers
• teachers-students
• jailors-incarcerated persons
• parent-child
• adults-adults
• someone contracts to care
• power imbalance
  
  • relationship may diminish one party’s ability to protect itself
  • party with a duty may have obtained a benefit from the relationship $$$
  • party w/ duty has voluntarily entered into relationship

Question 12

Third Party Liability

Answer 12

• breach to a third person
• Party owes a duty to third persons if performing an act would present a substantial, foreseeable risk of physical injury to the third persons.
• No obligation to speak, but once started speaking had obligation to be truthful
• (Randi W-teacher letter of rec.)

Question 13

Foreseeability in Negligence

Answer 13

• not for the court to decide whether a particular injury is foreseeable, but evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the harm experienced by the P

Question 14

Special Duty for Doctors

Answer 14

• duty has to begin w/ credible threat
• standard: if one reasonably should have determined that patient poses serious risk of danger or violence to others, has a duty to protect the foreseeable victim of that danger
  
  • must know identity of people or class of people
  • make sure threat is credible, if unsure talk to colleagues
  • person has to pose a threat
  • threat has to be imminent
• Only people that have access to the info

Question 15

Gatekeeper Liability

Answer 15

• D is uniquely positioned to prevent the harm because of their position of power or duty
• Ex. respondeat superior

Question 16

Respondeat Superior

Answer 16

• strict liability case
• action must be reasonably serving employer and take place in scope of employment
• action must be within time and spatial boundaries of the work
• action must not be a personal task of the person

Question 17

Rowland Factors

Answer 17

• high foreseeability of harm to the P
• there is a connection betwen D’s conduct and P’s harm
• there is moral blame ttached to the D’s conduct
• there could be a policy of preventing harm
• the burden on D and the consequences to the community
• availability and costs of insurance

Question 18

Privity of Contract

Answer 18

contract cannot confer rights or impose obligations arising under it on any person or agent except the parties to it

Question 19

Duty of Land Owners

Answer 19

• Previously: (Carter)
  
  • trespassers: no general duty, but owner cannot willfully injure
  • invitee- has material benefit, brings material benefit; must do inspection
  • licensee- social guest; duty regarding dangers the possessor is aware
• Currently:
  
  • flagrant trespassers- no duty, cannot willfully injure them
  • general trespassers- stop immediate dangers
  • nontrespassers- duty of reasonable care; do not have to take any more precautions than you would for yourself

Question 20

Heins Factor

Answer 20

1. Foreseeability or possibility of harm
2. Purpose for which the entrant entered the premises
3. The time, manner, and circumstances under which the entrant entered the premises
4. The use to which the premises are put or are expected to be put
5. The reasonableness of the inspection, repair, or warning
6. The opportunity and ease of repair or correction or giving of the warning
7. The burden on the land occupier and/or community in terms of inconvenience or cost in providing adequate protection

Question 21

Formalist vs Instrumentalist

Answer 21

• try to fit into existing categories
  
  • advantages: firm predictable outcomes
  • disadvantages: may not reflect social norms; doesn’t allow judges to make new law
• looking to the social consequences, creates new categories if old categories don’t work
  
  • advantages: flexibility, ability to do justice
  • disadvantages: lack of preditability, judges could overreach

Question 22

Attractive Nuisance

Answer 22

• artificial
• children may not appreciate the danger due to youth
• danger may be unseen
• ex. put fence around a pool

Question 23

Two Types of Causation

Answer 23

• Actual causation- scientific fact that something occurred
• Proximate causation- scope of cause, how far removed from inital negligent act is the harm?
• Jury question
• (But-for a nail example)

Question 24

Loss of Chance

Answer 24

• only in med mal cases
• basic rule: P must prove physician’s negligence contributed to their chances of achieving a more favorable medical outcome being produced
• theory of injury, not causation
• percentage chance you had – percentage chance you have now
• ex. 35% chance survival, now 2% chance survival, recover 33% loss
• loss of chance considered an injury

Question 25

Substantial Factor

Answer 25

• test for causation if there are multiple sufficient causes
• alternative for but-for causation

Question 26

Traditional Joint and Several Liability

Answer 26

• Two people acting in concert; or
• harm is indivisible
• burden shift to each D to prove innocence
• each D is liable for full damages, but can recover partial damages from other Ds
• ex. damages of $2,000, D1 80%, D2 20%
  
  • can collect $2,000 from D2, then D2 may sue D1 for $1,600

Question 27

Modern Joint and Several Liability

Answer 27

• the nature of the D’s conduct creates moral blameworthiness
• each D is only responsible for their portion of the harm
• in some states, if fault more than 50%, can owe entire amount and sue other Ds

Question 28

Joint vs Independent Tortfeasor

Answer 28

• two or more individuals who act in concert or concurrently to cause a harm
• two or more individuals who do not act in concert, and whose actions do not combine to cause a single indivisible.

Question 29

Divisible vs Indivisible Harms

Answer 29

• have different harms that can be attributed to each D (one D stabs P in the chest, the other shoots P in the arm, P does not die of his wounds.)
• harms are not able to be attributed to inidividual Ds, ex. 1 car hits pedestrian, 2nd car hits 1st car, pedestrian dies, don’t know who was actual cause of death.

Question 30

Market Share Liability

Answer 30

• when the harm to the public overall is reflected in the national market, the percentage of risk caused by each manufacturer is reflected in the percentage of liability
• they can exempt themselves if they can prove they did not make the specific product or did not make it for a specific use
• minority rule: can exonerate themselves if they can prove that their pill did not look the same as harmful product, or was not sold in the area the harmful product was sold

Question 31

Four types of causation-in-fact cases

Answer 31

• Causal uncertainty:
  
  • empirical link between Ds breach and injury is not clear. (Stubbs)
• Alternative liability:
  
  • Ds are negligent in the same way, P injured, not clear by which D.
• Cases where multiple Ds are negligent
  
  • Sometimes in the same way, sometimes different ways. Q is how to apportion and assign damages. Joint & several liability is the historic rule; modern approaches are more nuanced
• Market share liability

Question 32

Fungibility

Answer 32

all products are made to the same formula

Question 33

Signature Harm

Answer 33

the harm that arises can only arise from a specific thing, so the cause is very clear

ex. Asbestos

(apparently not Typhoid)