Liability Flashcards
Sine qua non causation is…
A test to determine liability commonly called the “but for” test
The “but for” test can be used for X defendant(s)
Generally only 1 defedant
Rinaldo v. McGovern
Even though a golf ball had caused the accident, shouting fore was so unlikely to have provided any warning or changed the outcome that the golfer was not liable.
Stubbs v. City of Rochester
If there are several possible causes for a plaintiff’s injury, and the defendant is responsible for only one of them, the plaintiff may recover if the plaintiff establishes facts that show with reasonable certainty that the injury resulted from a cause for which the defendant was responsible.
Mitchell v. Person Enterprises
The possibility that a hotel was negligent by allowing in someone who later killed a guest was insufficient to show causation because the killer’s name and motive were unknown so it was not known how or why they got into the hotel room
Burgos v. Aqueduct Realty Corp.
A management company was liable when their negligently maintained gate allowed the entrance of a stranger who assaulted a guest
If an exposure occurs without immediate onset of the injuring disease, how can recovery be accomplished?
There are three ways,
1. pure risk
2. fear of disease
3. medical monitoring
Pure risk is (often/rarely) sucessful for recovering after exposure
Rarely. There is no accompanying injury so courts are hesitant to award damages for a loss that might never occur
Fear of disease is (often/rarely) successful for recovering after exposure
Rarely successful. Most courts deny recovery until the injury arises out of hesitanty to give awards for losses that may never occur
Medical monitoring is the (most/least) likley recovery method to be sucessful for exposure claims
The most likely to be successful, though it is sometimes limited for public policy reasons, as was the case for this against tobacco companies
Dillion v. Evanston Hospital
Damages were awarded for current injures and the risk of possible future issues, though they had not yet arise because the risk of the injury was more likely than not to occur
Petriello v. Kalman
If the risk is not substantial the plaintiff could sue with a similarly low reward
Lamping v. American Home Products, Inc.
Generally recovery is allowed for the cost of monitoring for a disease after exposure without preventing a future claim should it arise and require more treatment
In re Paoli Railroad Yard PCB Litigation
A cause of action for medical monitoring can be established by proving:
(1) Plaintiff was significantly exposed to a proven hazard substance through the negligence of the defendant
(2) As a proximate result, the plaintiff suffers a significantly increased risk of contracting a serious latent disease
(3) That increased risk makes periodic diagnostic medical testing necessary
(4) Monitoring and testing procedures exist which make early detection and treatment possible and beneficial
Minority rule
Caronia v. Philip Morris USA Inc.
NY decided to extend liability for testing expenses to a cigarette maker for policy reasons
(1) if allowed tens of millions of people could file similar suits
(2) it could take money way from those with physical injuries to those who never develop serious issues
(3) the system needed to supply funding would need to extremely complex
A dissent argued that it was important to allow testing before the disease develop to the serious point of needing more care
Mink v. University of Chicago
Simply having an enhanced risk of cancer because of exposure without physical injury is insufficient for a claim under the idea of pure risk
Simmons v. Pacor Inc.
The court adopted a two disease rule where a plaintiff could sue for their current illness related to asbestos while still being allowed to recover for a secondary illness if it arose
This falls under a special asbestos exception and does not expand
The “substantial factor” test can be used for X defendant(s)
2 or more since it accounts for the fact that one cause may play off the other while keeping all guilty parties accountable
In re an Arbitration Between Polemis & Another & Furness, Withy, & Co. Ltd.
A negligent actor can be held liable for all damages his negligent act caused, even if not reasonably foreseeable
Minority view countered by Wagon Mound
Overseas Thankship Ltd. v. Mort’s Dock & Engineering Co. Ltd. (The Wagon Mound)
A defendant is only liable for the consequences flowing from his negligent act that are foreseeable to a reasonable person at the time of the negligent act.
Majority view countered by Polemis
Wagner v. International
Danger invites rescue rule
When someone tries to rescue the initial victim of a tort, the tortfeasor is liable as an exception even if they were not within the inital zone of danger
Moore v. Shah
A son was not entitled to recover after medical malpractice left his father in need of a kidney which he donated
Define recklessness
General definition: Aware of a high degree of fault and disregarded it
Under a theory of contributory negligence what percent of fault bars recovery?
1%
(Contributory/comparative) negligence is the majority rule
Comparative. Contributory is only left in a few states because it was considered extremely harsh
Last Clear Chance Doctrine
The doctrine considers which party had the last opportunity to avoid the accident that caused the harm. Therefore, a negligent plaintiff may recover damages if they can show that the defendant had the last clear chance to avoid the accident.
Example: Yes I was driving a slow vehicle on a highway, but you had the last chance to prevent the accident because you hit me
It is an exception to contributory negligence because it limits liability
Makes no longical sense but still exists
When can a plaintiff be reckless and still recovery under contributory negligence?
When there is a statute meant to protect that class from themselves, like children
Generally contributory negligence (does/ doesn’t) impute negligence to others innocently involved
Does not, so passangers of a reckless bus driver are not barred from recovery though there are exceptions
Exceptions to the rule against imputing contributory negligence
(1) Employers under respondent superior
(2) Spouses for loss of consortium
(3) Wrongful death
(4) Some states impute for bystanders but not all
Allowing some subjectivity with the plaintiff is a (new/old) trend under contributory negligence
New and only some states do this
A resonable person standard applies to (one/both) party(s) in a comparative negligence action
Both
How does a plaintiff assume the risk
Important
They actually and subjectively knew of the risk and appreciated its unreasonableness, nature and magnitude, then voluntarily proceeded reasonably or not
How does assumption of the risk affect a lawsuit?
It limits liability, but does not negate unreasonable conduct by the defendant
Butterfield v. Forrester (British)
The court refused liability because the plaintiff was acting recklessly by riding his horse too fast where a reasonable person going slower could have avoid the injury altogether
Davies v. Mann (British)
The contributory negligence of a plaintiff will not defeat his negligence claim if the defendant, by the exercise of reasonable care, could have avoided the consequence of the plaintiff’s negligence.
Washington Metropolitan Area Transit Authority v. Johnson
Allowed full recovery for a plaintiff with no adjustments for their own behavior because of the last chance doctrine 9
Only has this effect in the minority of states that still follow the older negligence rules
How is comparative negligence different than contributory negligence?
it allows the plaintiff to recover even with some fault and adjusts damages afterwards
There are three types that determine the maxiumum amount of plaintiff fault
What are the three types of comparative negligence?
(1) Pure comparative fault [least common]
(2) “Not as great” fault
(3) “No greater than” fault
When does “not as great” fault limit liability?
Recovery is only allowed when the defendant has more fault than the plaintiff
When does “no greater than” fault limit liability?
Recovery is only allowed when the plaintiff has less fault than the defendant
States that switched to comparative negligence via statute tend to use what theory of the system?
Tended to use a modified system
States that switched to comparative negligence via judicial decision tend to use what theory of the system?
Pure systems
How is the cost of recovery dispersed between guilty defedants?
It can differ originally, but ultimately they owe their precentage of fault
How can one liable party recovery from another?
Indemnity
Coleman v. Soccer Ass’n of Columbia
The Maryland court refused to switch to a comparative system, saying the change is so complex it is best undertaken by the legislature rather than a court
Alibrandi v. Helmsley
Juries often use a comparative negligence structure to determine damages, even in states that still use contributory negligence
