Harm - Rescue Doctrine - Shifting Responsibility Flashcards
When evidence establishes that different acts of tortious conduct causes separate and distinctive harm
Divisible Harm
When evidence cannot establish which tortious act caused P’s harm and
either act alone could have caused the harm or
together the acts combined to cause P’s harm
Indivisible Harm
Once P has established a prima facie case, burden of showing _______ ______ and an allocation of damages shifts to defendant(s) who is (are) seeking to show that D(s) should be responsible for less than all the harm.
divisible harm
If harms is found to be ______,
D1 may only be responsible for initial harm it caused
D2 may only be responsible for the aggravating or additional harm.
Remember, ________ also applicable where P was negligent
divisible
If D2 is considered an _________ ______, D1 can be held responsible for all the harm.
intervening cause
If D2 is considered a ________ _______ ______, D1 can only be held responsible for the initial harm , if any, which can be attributed to its negligent conduct.
superseding intervening cause
Rescuers will not be held liable for their negligent acts in the course of a rescue attempt where
Victim (V) is at risk of imminent peril caused either by his/her own negligence or that of a third party (TP)
Objective test used to determine imminence (apparent and not actual risk); and
Rescuer (R ) does not act “rashly or imprudently”
But, once R has commenced rescue efforts, cannot terminate or leave V worse off without facing liability
Victim v. Rescuer
TP will be liable for all injuries sustained by V, including enhanced injuries resulting from a rescue meeting standard (Why? What doctrine of proximate cause is at issue?)
V v. TP
Alternative approach used to determine whether initial D1 should be allowed to shift responsibility to D2. Factors include
Whether D1 has shifted responsibility by contract
Difference in magnitude of harm
Ability of D2 to take remedial action
Shifting Responsibility
