Jurisdictional Splits

Question 1

Intent

Answer 1

Single: intent to cause contact

Double: intent to cause contact and intent to cause a specific harm

Question 2

IIED

Answer 2

Courts are split on what is considered to be extreme and outrageous conduct, as well as what constitutes as severe emotional distress (subjective standard)

Question 3

Implied Consent in Sports

Answer 3

1. within the rules
2. within the norms - rough play is foreseeable
3. whatever happens on the field is consent

Question 4

Relativizing for Children

Answer 4

• 5 and above relativize
• 14 is the cut off

Question 5

Statutory Duty to Rescue

Answer 5

Most courts will create a duty from a criminal statute

Question 6

Negligence per se

Answer 6

Strong Majority:
- judge decides if statute is relevant
- if they find it important to the case, a directed verdict is given on the standard of care
* jury then determines whether the actor violated the statute and if there is a causal link to the harm

Fair Number:
- deviation/compliance with the statute is relevant to show negligence, but it is NOT conclusive

Handful:
- violation of a statute creates a prima facia case for negligence which can be rebutted by proof that a reasonable person would have acted the same way (MAR-CAM CORP)

Question 7

Res ipsa

Answer 7

ELEMENTAL SPLIT
Common Law:
1) accident normally does not occur without negligence
2) must be caused by agency or instrumentality within the agent’s exclusive control
3) Plaintiff did not act or voluntarily contribute to the accident

3rd Restatement:
- only requires 1) and 3)

APPLICATION SPLIT
1) treat as evidence
2) creates presumption, but can be rebutted
3) creates super presumption - burden shifts to defendant

Question 8

Admissibility of Expert Testimony

Answer 8

State courts are not bound by either the Frye or Daubert test, they can pick
- Frye is the traditional test but it is less favorable

Question 9

Loss of Chance Recovery

Answer 9

Courts vary on allowing full, partial, or zero recovery - WONNELL likes partial
- also are undecided about if the defendant has to die as a result

Question 10

Substantial Factos

Answer 10

2nd: “act of god” = defendant is NOT liable

3rd: multiple sufficient causes = liability

Question 11

Market Share Liability

Answer 11

Courts doe not like this because it is hard to distinguish between who actually did what [unfair]

Question 12

Proximate Cause

Answer 12

• 2nd Restatement - rarely accepted by Courts
• Cardozo
• Andrews / 3rd Restatement

Question 13

Pure Emotional Distress

Answer 13

1) impact rule
2) zone of danger rule
3) 3rd Restatement and the THING test
4) physical manifestation
5) incorrect handling
6) recklessness

Question 14

Physical Manifestation

Answer 14

Some courts require physical manifestation to prove severe emotional distress

Question 15

Wrongful Birth

Answer 15

Abortion controversy is quite relevant because courts in pro-life states normally do not allow recovery for these suits

Question 16

Wrongful Life

Answer 16

Courts struggle to conceptualize non-existence and some even refuse to recognize these suits altogether
- abortion controversy is also relevant

Question 17

Wrongful Death

Answer 17

Not all courts accept wrongful death suits
- those that do recognize them, limit it to only viable fetuses that would have a higher chance of survival if not for the negligent conduct

Question 18

Wrongful Pregnancy

Answer 18

Some courts say parents can only recover for extraordinary medical expenses

Question 19

ROWLAND modern approach to owner liability

Answer 19

• some states have adopted ROWLAND but most have not
• the majority of states have instead removed the distinction between licensee and invitee
  – trespasser category still exists since they are the cheaper cost avoider

Question 20

Landlord Liability

Answer 20

Traditional Approach (common law): a landlord has no duty to look after the safety of their tenants except in certain situations

Untraditional Approach: landlords owe a general duty of reasonable care to their tenants (SARGENT)
- enforced by the “implied warranty of habitability”
– if there are hazards that make a place uninhabitable the landlord can be held liable
– can sometimes concern a statutory argument based on building codes = negligence per se

Question 21

Third Party Liability

Answer 21

Specific Harm Rule: owner has no duty to protect visitors from violent third parties unless they are aware of specific, imminent harm prior

Previous similar incidents: no duty unless there is evidence of previous/similar crimes and other circumstances

Balancing Test [California] - addresses interest of owners and customers by balancing foreseeability of harm vs. burden of imposing duty of care (WAL-MART)

Question 22

Design Defects

Answer 22

Courts will either apply CET, RAD or some mix of both
- if clear consumer expectations exist they will use CET
* plaintiff can prevail even if there was no RAD
* does not require expert testimony
- if there is no clear consumer expectations they will use RAD
* plaintiff has to prove there was a RAD to meet their prima facie case
* requires expert testimony

Question 23

Strict Liability and animals

Answer 23

3rd Restatement states the a negligence standard should apply when the animal has not shown dangerous tendencies but MANY courts disagree with this

Question 24

Contributory Negligence and Comparative Fault

Answer 24

Contributory negligence is very rare nowadays; majority of states follow a comparative fault framework

Question 25

Comparative Fault and Joint and Several Liability

Answer 25

Most states that have adopted comparative fault no longer recognize joint and several liability

Question 26

Comparative Fault Types

Answer 26

Pure and impure/modified

Question 27

Comparative Fault and Intentional Torts

Answer 27

Majority: tortfeasor bears 100% of the loss

Minority: defense if there was reckless conduct or the plaintiff is suing a third party for failing to protect them

Question 28

Avoidable Consequences - Mitigating Damages

Answer 28

Some courts think it is fair to lower damages if the plaintiff did not take basic safety steps, like wearing a seat belt - looking a pre-accident behavior to determine who was the cheaper cost avoider - but MOST courts disagree, claiming that the focus should be on the fact that they got hurt and deserve compensation

Question 29

Statute of Limitations

Answer 29

Courts are uncertain what triggers the clock to actually start
* e.g., discovering part of the injury OR discovering negligent behavior

Question 30

Statute of Repose

Answer 30

Split is between the legislature and the state courts as some state courts have been reluctant to accept statutes of repose because it does not account for situations in which the plaintiff has NO idea they have even been affected yet

Question 31

Nuisance and the Cost Benefit Analysis

Answer 31

Injunctions: harm is greater than benefit
* some jurisdictions do NOT allow injunctions to terminate the activity

Damages: benefit is greater than harm