Negligence

Question 1

Elements of Negligence

Answer 1

1) Duty
2) Breach
3) Actual Cause
4) Proximate Cause
5) Harm

Question 2

Ways of establishing Breach

Answer 2

1) the BPL test
2) ARP: Reasonable Person Standard
3) Violation of custom/professional standards
4) Negligence per se
5) Res Ipsa

Question 3

What is the BPL Test/Hand Formula

Answer 3

Burden (B) < Probability (P) x Loss (L)

Question 4

Steps of the Hand Formula (BPL Test)

Answer 4

1) Identify the precaution at issue: What precautions could have been adopted to prevent the accident?
2) Identify the risks at issue: What is the loss that would be avoided by a precaution and the likelihood that the loss would occur in the absence of the precaution?
3) Careful balancing: How does the burden compare to what is gained by taking a particular precaution?

Question 5

Pervasive Negligence

Answer 5

Pervasive negligence exists and deep precautions are called for whenever a fundamental change in the defendant’s way of doing things will reduce the combined costs of accidents and their prevention to the lowest level.

Question 6

ARP (Reasonable Person Standard)

Answer 6

Defining negligence by the omission to do something that a reasonably careful person, guided by those considerations that ordinarily regulate the conduct of human affairs, would do, or something that a reasonably careful person would not do.

Question 7

Degrees of culpability

Answer 7

1) Ordinary negligence
2) Gross negligence
3) Recklessness
4) Wantonness

Question 8

Ordinary Negligence

Answer 8

inadvertence or error

Question 9

Gross negligence

Answer 9

very great negligence but less than recklessness

Question 10

Recklessness

Answer 10

Proceeding despite a known and substantial risk

Question 11

Wantonness

Answer 11

Actual knowledge of natural and probable injury

Question 12

How do we evaluate people with superior knowledge and skills? (ARP)

Answer 12

If an actor has skills or knowledge that exceed those possessed by most others, these skills or knowledge are circumstances to be taken into account in determining whether the actor has behaved as a reasonably careful person.

Question 13

How do we evaluate external circumstances/emergency doctrine? (ARP)

Answer 13

Three elements must be present for the emergency rule to apply: (1) the party seeking exculpation must be free from negligence contributing to the emergency; (2) there must be a short time interval for reacting; (3) in reacting to the emergency, the party seeking exculpation makes such a choice to avoid harm to self or others as a reasonably careful person in such position might make.

Question 14

How do we evaluate negligence for people with physical disabilities? (ARP)

Answer 14

permanent physical disabilities are taken into account, and the actor is held to the standard of a reasonably careful person with such a disability. Sudden physical disabilities are exculpatory if they are unforeseeable, but not if they can be anticipated.

Question 15

How do we evaluate negligence for people with mental disabilities? (ARP)

Answer 15

Some modern doctrine analogizes sudden mental disabilities to sudden physical ones and imposes liability if the disability ought to have been anticipated. Some other modern doctrine holds that people with certain kinds of permanent psychological disabilities ought to take those into account in governing their behavior and avoid putting themselves in situations that will trigger those disabilities.

Question 16

How do we evaluate negligence for children? (ARP)

Answer 16

Childhood is taken into account through a 2 step process. First there is a subjective step that asks what was the capacity of this particular child given what the evidence shows about their age, intelligence, maturity, training, and experience. Second, the objective step asks how would a reasonable child of like capacity have acted under similar circumstances. The child is negligent if their actions fall short of what may reasonably be expected of children of similar capacity. (This standard only applies if the child is engaged in appropriate activities. Children engaged in adult activities such as driving a car, are held to an adult standard of care).

Question 17

How do we evaluate negligence for elderly people?

Answer 17

Old age, as such, is not taken into account in assessing the negligence of a person’s conduct.

Question 18

Custom and Customary Negligence

Answer 18

Customary negligence attempts to make negligence law more “rule-like.” Customary practice may fix a level of care quite precisely. With customary negligence, violation of a custom can be used to establish liability.

Question 19

Modern Rule Regarding Custom

Answer 19

Custom is merely evidence of due care, but a custom can be given no weight if it is unreasonable (TJ Hooper). Custom is not a complete shield against liability. Custom is now a “floor” not a “ceiling.” Basically, a defendant whose conduct falls below customary practice is likely to be found liable, but one whose conduct complies with custom is not except from liability.

Question 20

When evaluating the reasonableness of a custom, modern law considers the following:

Answer 20

1. How much expertise does the custom reflect?
2. How much impartiality does the custom reflect?
3. How much reliance does the custom engender?
4. How much coordination of activities does the custom enable?

Question 21

Malpractice

Answer 21

Professionals are held to an expert standard of care and professional practice is subject to less scrutiny because “customary care is due care.”

Question 22

Negligence Per Se

Answer 22

In general, negligence per se is when a safety statute is violated and causes injury to someone that is apart the class of persons that the statute was created to protect.

Question 23

The different approaches to negligence per se

Answer 23

a. Violation of statute treated as conclusive proof of negligence
b. Violation of statute treated as presumptive or prima facie proof of negligence - establishes negligence unless that violation is rebutted by competent evidence
c. Violation of statute treated merely as evidence of negligence - the jury may but is not required to draw an inference of negligence from the statutory violation
d. Some courts also distinguish among statutes, ordinances, and administrative regulations.

Question 24

Res Ipsa Loquitur

Answer 24

allows a plaintiff to establish a defendant’s negligence without proving specific facts from which a detailed narrative of culpability may be inferred.

Question 25

Traditional Res Ipsa Loquitur Conditions for Application

Answer 25

1. The accident is of the type that ordinarily doesn’t happen in the absence of negligence.
2. The defendant was in exclusive control of the instrumentality that caused the accident.
3. The plaintiff was not responsible for causing the accident.

Question 26

Modern Res Ipsa Loquitur

Answer 26

The accident is a type of accident that ordinarily happens because of the negligence of the class of actors of which the defendant is a relevant member.

Question 27

Contributory Negligence

Answer 27

A defense that turns the spotlight of negligence assessment on the plaintiff, the person injured in the accident.

Question 28

What is needed to show contributory negligence?

Answer 28

1. Plaintiff’s conduct must be found negligent
2. Plaintiff’s negligence must be found to have contributed to the causation of the accidental injury at issue.

Question 29

Modern Approach to Contributory Negligence

Answer 29

Not to bar recovery by a contributorily negligent plaintiff but rather to reduce recovery in proportion to plaintiff’s comparative fault.

Question 30

Duty in Contributory Negligence

Answer 30

Method for analyzing the reasonableness of a plaintiff’s conduct is the same as that for analyzing the reasonableness of defendant’s conduct. However, duty falls more on a duty to one’s self and it involves failure to take care to protect oneself.

Question 31

Last Clear Chance Doctrine (basic definition)

Answer 31

Last clear chance doctrine relieves victims who were contributorily negligent of responsibility for their own injuries and places that responsibility back on the negligent injurers who had harmed them.

Question 32

4 requirements of last clear chance doctrine

Answer 32

(1) the plaintiff was in a position of danger due to negligence of the plaintiff
(2) the plaintiff was oblivious to the danger or unable to extricate themselves from the position of danger
(3) the defendant was aware of by the exercise of reasonable care should have been aware of the plaintiff’s danger and ignorance or inability to extricate themself from danger
(4) the defendant, with means available to them, could have avoided injuring the plaintiff but failed to do so.

Question 33

Seat Belt Defense (Spier v Barker)

Answer 33

The seat belt defense precludes recovery for the additional injuries that would have been avoided had the plaintiff been wearing a seat belt. While the plaintiff’s recovery is limited by the seat belt defense, the doctrine mitigates the harsh consequences - zero recovery - of contributory fault and is in that sense beneficial to the injured plaintiff. This is similar to the helmet defense.

Question 34

Comparative Fault

Answer 34

Comparative fault also applies to the careless conduct of victims and their failure to exercise reasonable care for their own protection. The test for determining whether the plaintiff’s conduct was negligent is non-comparative. It becomes comparative only when we subsequently compare the victim’s and the injurer’s conduct. Unlike contributory negligence, which eliminates plaintiff’s recovery, comparative fault reduces the plaintiffs recovery in proportion to the plaintiff’s fault. This requires assigning percentages to the fault of the plaintiff and that of the defendant.

Question 35

Pure comparative fault

Answer 35

pure comparative fault apportions liability in direct proportion to fault in all cases

Question 36

50% schemes of comparative fault

Answer 36

In 50% schemes, which apportion liability based on fault up to the point at which the plaintiff’s fault is equal to or greater than that of the defendant at which point plaintiff is barred from recovery.

Question 37

How do we make judgments of comparative fault?

Answer 37

Many considerations are potentially relevant such as comparisons using the Hand Formula and culpability factors such as knowledge of risk and prevention, etc.

Question 38

Seat Belt Defense Reformulated (Waterson)

Answer 38

In a comparative fault regime, after the jury has found that the failure to use a seat belt constituted negligence and that plaintiff sustained avoidable, second-collision injuries, the jury must then determine the percentage of plaintiff’s comparative fault for damages arising from those injuries.

Question 39

Comparative Responsibility Beyond Fault (Blazovic)

Answer 39

Blazovic discusses 3 types of comparisons involves contributorily negligence plaintiffs:
(1) negligent-negligent
(2) negligent-strict
(3) negligent-intentional
The majority rule authorizes the first two comparisons, but not the third.
Blazovic authorizes the third type of comparison on the ground that the “substantial certainty” required for an intentional tort “is on the same continuum as the highly unreasonable risk of harm required for wanton and willful conduct.

Question 40

Assumption of Risk - Classical Doctrine

Answer 40

Classical assumption of risk is a defense to a breach of duty. A/R relieves injurers from liability for negligent conduct toward victims. Unlike contributory (or comparative) negligence, A/R is concerned with choice not carelessness. The doctrine bars recovery by the victim on the ground that the victim chose to bear the risk of the defendant’s breach of their duty of care by knowingly and voluntarily encountering that breach.

Question 41

Modern Conceptions of Assumption of Risk

Answer 41

The Siragusa case gives 3 reasons for rejecting the classical A/R doctrine:
1) it makes a fiction of the employer’s duty to provide a reasonably safe workplace
2) classical doctrine’s claim of employee consent is a fiction because many employees don’t have a choice.
3) It inefficiently subsidizes industry by permitting industry to externalize its accident costs. Whether this is correct depends on whether wages reflect a proper “risk premium”

Question 42

Primary Assumption of Risk

Answer 42

Doctrine of “no duty” - Defendant never owed plaintiff a duty of care in the first place - complete bar to recovery - but procedurally a defense.

Question 43

Secondary Assumption of Risk

Answer 43

Defense to breach of duty of care - Plaintiff implicitly agreed to accept risk of harm.

Question 44

Implied Reasonable (secondary assumption of risk)

Answer 44

Asks whether the risk was reasonable from the point of view of the plaintiff… recovery unaffected except for the firefighter rule.

Question 45

Implied unreasonable (secondary assumption of risk)

Answer 45

recovery barred or reduced per contributory or comparative negligence

Question 46

Express Assumption of Risk

Answer 46

explicit agreement written by parties. Another example is signing a liability waiver. It is generally a defense to a negligence claim except in certain situations where courts deem the burden of care should not shift from a party better able to take adequate precautions to the party less able to take adequate precautions.

Question 47

Implied (by law) Assumption of Risk

Answer 47

agreement identified by court or jury based on conduct. It involves situations where a victim may not have signed a waiver, but they have opted into a risky activity. There are two types of implied assumption of risk. Primary and Secondary.

Question 48

Primary A/R & Recreational Activities

Answer 48

Primary A/R relieves persons in charge of a risky recreational activity (e.g., ski resorts) and co-participants in various recreational activities (e.g., fellow softball players) of duty of reasonable care. Applies to “inherent” risks of activity and not risks wrongly increased by the injurer’s negligence (Scott, Cooper).

Question 49

What is an “inherent risk” for the purpose of A/R?

Answer 49

Inherent risks are those that are “so intertwined with the underlying activity” that someone engaged in the activity “cannot control or limit the risk without abandoning the activity”(Coomer) or where eliminating the risk “would chill vigorous participation…. and alter the fundamental nature of the activity.” (Sanchez).

Question 50

The Firefighter’s Rule

Answer 50

Demonstrates the survival of a fragment of classical A/R. Firefighter’s cannot recover for breach of duties to exercise reasonable care to prevent fires. With appropriate adjustments, police officers are also covered by the firefighter’s rule.

Question 51

Express Assumption of Risk Exceptions (Contracts against Public Policy)

Answer 51

Tunkl demonstrates that pre-injury release of liability for negligence is only enforceable when the exculpatory provision does not involve the public interest.

Question 52

When does an exculpatory provision involve the public interest?

Answer 52

1) necessity: the party seeking exculpation is engaged in performing a service of great importance, which is often a matter of necessity for some members of the public.
2) public invitation: The party holds themself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards.
3) Unequal bargaining power: the urgent need met by the service provided by the party seeking exculpation may give that party a decisive advantage of bargaining strength against the member of the public who seeks their services.
4) By virtue of their superior bargaining power the party seeking exculpation may be able to (a) get exculpation without giving adequate consideration in return and (b) coerce consent.

Question 53

Assuming the Risk of Increased Injury

Answer 53

The Shorter case upholds a release that partially insulates the defendant from the effects of their own negligence. Plaintiff’s has signed a release refusing to permit blood transfusion because they were Jehovah’s witnesses. The plaintiff is therefore liable for those risks and not the health care provider.

Question 54

No Waiver of a Child’s Right to Reasonable Care

Answer 54

The majority rule, which is illustrated in Cooper, forbids parents from waiving their children’s rights to reasonable care. While Cooper states the majority rule, the case was overruled by statute in Colorado.

Question 55

Primary Implied Assumption of Risk

Answer 55

Where the victim knowingly participates in inherently risky activities, which means there was no duty. This is an accepted defense which is usually a complete bar to recovery.

Question 56

Secondary Implied Assumption of Risk

Answer 56

Is only recognized in some jurisdictions. Where a victim knowingly proceeds despite danger cause by the defendant’s negligence.

Question 57

No Duty To Act (classical rule)

Answer 57

While we have a general duty not to put strangers at unreasonable risk of injury, we have no general duty to protect strangers from perils for which we are not legally responsible.
An Actor who is not legally responsible for putting another in peril is not legally obligated to take any steps to prevent that other from coming to harm.
Persons who do come to the aid of others in peril are under a duty to exercise reasonable care - liability for negligent rescue. (first exception)

Question 58

Justifications for classical no duty to act rule

Answer 58

Actor did not put victim in peril
Individual freedom
Duty to benefit vs duty not to harm
Indeterminacy
Burden may be high

Question 59

Special Duties to Act (modern conceptions)

Answer 59

the modern doctrine is typically thought to accept the same general rule as classical doctrine - no duty to act - but to recognize a large number of distinct circumstances in which exceptions to that general duty take hold.
The 3 categories are:
1) Assumed Duty
2) Custody
3) Control

Question 60

Assumed Duty

Answer 60

Assumed Duty: First type of case is where the rescuer has either assumed, explicitly or implicitly, a contractual duty to rescue the victim or has created in the victim a reasonable expectation that he had assumed such a duty.
How to show an assumed duty: (1) the defendant increased danger to the victim, (2) misled the victim into thinking the danger had been removed or passed, or (3) deprived the victim of the possibility of alternative help.
O’Malley Negligent undertaking claim:
-the actor undertook, gratuitously or for consideration, to render services to another
-the services rendered were of a kind the actor should have recognized as necessary for the protection of third persons
-the actor failed to exercise reasonable care in the performance of the undertaking
-the actor’s failure to exercise reasonable care resulted in physical harm to the third persons

Question 61

Custody

Answer 61

Second type of case is where the victim was in the rescuer’s custody and thus without access to alternative rescuers. [maybe add to this]

Question 62

Control

Answer 62

Third class consists of cases in which the victim’s peril had been caused by the putative rescuer himself - even if he had caused it non negligently.
Ex: escalator case (the defendant was in control of the instrumentality that caused the incident)

Question 63

Variable Duty of Landowners

Answer 63

The duty owed by owners and occupiers of land present special problems in part because some of the duties at issue are affirmative duties to act - duties to protect entrants onto one’s property from harm at the hands of third parties, for instance. There are different duties owed to entrants onto one’s property depending on how they are categorized. These categories include:
1) trespassers
2) licensees
3) invitees
4) others

Question 64

Duty owed to trespassers

Answer 64

people who enter upon property without the express or implied consent of the person in possession of the property.
The person in possession of the property has a duty “not to do any willful or wanton or aggressive act with respect to a trespasser’s safety.” This duty has been interpreted to include the duty to not maintain “traps,” which are generally defined as “hidden dangers intentionally placed to injure [trespassers].”
There is an exception for child trespassers. Due care must be exercised to protect child trespassers against attractive nuisances. (ex: pool, carousel, tiger)

Question 65

Duty owed to Licensees

Answer 65

Licensees enter or remain on the property with the implied or express consent of the person in possession, but their presence on the property is not an economic benefit to the landowner. Social guests are licensees.
The duty owed to a licensee: A licensee must take the premises as he finds them… the owner thereof is liable only if he is found to have committed affirmative acts of negligence or if a trap existed or there was concealed danger not likely to be discovered. There is only a duty to warn of known dangerous defects which the defendant should know or suspect that the licensee will not discover himself after a reasonable inspection of the premises.

Question 66

Duty owed to invitees

Answer 66

Under the original “economic benefit” theory, an invitee was a person on the property to transact business with its owner (e.g., a customer). Under the more modern “public invitation” theory, invitees are those who come onto property “at the encouragement of the possessor.”
Landowners owe invitees a duty to exercise reasonable care to keep the premises in a reasonably safe condition.

Question 67

Duty owed to “others” [only applies to some states]

Answer 67

In some states, social guests have been elevated from the licensee to the invitee category. Public employees, such as firemen and policemen, have been placed in a sui generis class, to whom is owed a duty of reasonable care to keep in a safe condition those parts of the premises which are used as the ordinary means of access, and warn such employees, known to be on the property, of unforeseeably dangerous condition.

Question 68

Single standard approach to entrants onto one’s land

Answer 68

restatement 51-52 says a land possessor owes a duty of reasonable care to entrants on the land. Essentially in the single standard approach, they do not distinguish entrants into different categories.
Basso: A “landowner must act as a reasonable [person] in maintaining [their] property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk.”

Question 69

Actual Causation

Answer 69

(also called factual causation or cause in fact) - the element of negligence that is concerned with whether the plaintiff’s injury was the result of the defendant’s breach of its duty of care.

Question 70

Proximate Causation

Answer 70

the element of negligence that is concerned with the extent of a defendant’s liability for injuries it has caused through breach of a duty of care.

Question 71

The question of actual causation

Answer 71

with actual causation we ask “did the defendant’s beach of its duty of care cause an injury to the plaintiff? When there is more than one defendant, it asks if the defendants’ breaches of their duties of care caused injury to the plaintiff.

Question 72

The “but for” question

Answer 72

but for the defendant’s breach of duty of care what injury would the plaintiff have suffered?

Question 73

The counterfactual question

Answer 73

In the absence of the defendant’s breach of their duty of care, what injury would the plaintiff have suffered? The answer to the counterfactual question will tell you whether the defendant’s breach of their duty of care is the cause of additional injury.

Question 74

Third Restatement section 26. Factual Cause

Answer 74

An actor’s tortious conduct must be a factual cause of another’s physical harm for liability to be imposed. Conduct is a factual cause of harm that would not have occurred absent the conduct.

Question 75

Multiple Causation and the Problem of Indivisible Injury

Answer 75

The issue of multiple causation is inseparable from the issue of “indivisible injury.” If each injurer allegedly causes an indivisible injury, we have a multiple causation problem. Conversely, if each injurer causes a divisible injury, there isn’t a multiple causation problem because each injurer is potentially liable for a separate portion of the harm suffered by the plaintiff.

Question 76

Loss of Chance Doctrine - Alternative Sufficient Causes

Answer 76

When the defendant’s negligence or a preexisting condition may have caused the plaintiff’s ultimate injury - either is sufficient but neither is necessary - we award “lost of chance of recovery” damages. The elements are (1) if a plaintiff introduces evidence that demonstrates increased risk of harm from negligent treatment within a reasonable degree of medical probability,” (2) it becomes a jury question whether that increased risk was a substantial factor in producing the injury, and (3) if that increased risk was a substantial factor in producing the injury, the measure of damages is the “lost chance of recovery”
Alternative Approach: allows plaintiffs to recover damages for the total harm suffered if they can prove that the increased risk was a substantial factor in producing the ultimate harm.

Question 77

Some injurer’s wrongdoing as necessary cause (multiple causation)

Answer 77

These cases involve two negligent injurers either of whom acting along would have inflicted the entire harm suffered by the plaintiff (they are both sufficient causes) but neither of whom is the “but for” (the necessary) cause of injury.

Question 78

Each and Both Injurer’s wrongdoing as necessary causes (multiple causation cases)

Answer 78

These cases also involve two negligent injurers but in this circumstance both injurers’ breaches are necessary to the infliction of the harm and neither breach alone is sufficient to inflict that harm.

Question 79

Is any one necessary? (multiple causation cases)

Answer 79

Multiple injurers inflict an indivisible injury, but no single insurer’s breach is necessary and sufficient to inflict the harm. The question is how should we award damages?

Question 80

Alternative Liability and Causation as Identification

Answer 80

Two negligent injurers breach their duty of care to a plaintiff who suffers an indivisible injury inflicted by only one of them. The question is what do we do when we can’t identify the injurer?

Question 81

The Substantial Factor Test

Answer 81

A legal cause of injury is a cause which is a substantial factor in bringing about the injury.

Question 82

Joint and several liability under common law

Answer 82

Each defendant contributing to the same harm is liable to the victim for the whole amount of the recoverable damages.

Question 83

Proportionate Liability

Answer 83

Where each defendant contributing to the same harm is liable to the victim only in proportion to his or her tortious responsibility for the victim’s injury.

Question 84

Contribution

Answer 84

is a right that exists between or among two persons who are jointly and severally liable upon the same indivisible claim for the same injury, death, or harm, whether or not judgment has been recovered against all or any of them. Contribution involves equitable sharing of the loss.

Question 85

Indemnity

Answer 85

Indemnity is also a right that exists between or among parties liable to the same victim for an indivisible harm. Unlike contribution, which is an equitable sharing of the loss, indemnification is a shifting of the entire loss from one tortfeasor to another, either (a) by prior agreement or (b) by operation of law based on equitable considerations such as “where one party has primary or greater liability or duty which justly requires [them] to bear the whole of the burden as between the parties.

Question 86

The Uniform Contribution Among Tortfeasors Act

Answer 86

This is a standard mid-20th century contribution scheme. Contribution is: (1) a right that one tortfeasor has against another; if (2) the tortfeasor has paid more than their pro rata share; of (3) a common liability; for (4) the amount in excess of the pro rata share that they have paid. Also (5) “No tortfeasor is compelled to make contribution beyond [their] pro rata share.”
1) The act retains joint and several liability and does not recognize a right of contribution in favor of any willful or wanton tortfeasor.
2) Because joint and several liability enables plaintiffs to hold tortfeasors liable for more than their pro rata share of a common liability, the existence of joint and several liability raises contribution as an issue.
3) Pro rata division only makes sense in the absence of precise apportionment of degrees of relative fault of the sort generated by comparative fault regimes.
[no contribution among tortfeasors no matter what the nature of the tort.]

Question 87

The Uniform Comparative Fault Act [another stage in the evolution of joint and proportionate liability law]

Answer 87

This act assumes pure comparative negligence. The basic rules are:
1) plaintiff’s damages are diminished in proportion to their degree of fault
2) joint and several liability is retained
3) contribution is retained, but modified so that proportionate fault replaces pro rata share [proportionate shares of liability] as a measure of contribution
Therefore, in the absence of joint and several liability, each defendant is financially liable for a percentage of the plaintiff’s total damages equal to that defendant’s comparative responsibility for the injury (percentage of fault).
This act applies just to negligence and strict liability.

Question 88

Proximate Cause Question

Answer 88

whether the defendant owed a duty to prevent the harm that befell the plaintiff in this current situation. There are two main approaches to evaluating proximate cause - foreseeability and hindsight tests.

Question 89

Palsgraf Foreseeability Test

Answer 89

The risk reasonably to be perceived defines the duty to be obeyed. The foreseeability test requires you to freeze the film at the point where the negligence takes place and ask yourself why it was negligent - what is the risk (the PL in the Hand formula)? Now run the film forward and see if the accident is what was foreseen.

Question 90

Palsgraf Dissent Hindsight/Directness Test

Answer 90

“a natural and continuous sequence - direct connection…” For the hindsight/directness test, we run the film to the end and examine the causal chain between the negligent conduct and the harm. The tortfeasor is liable for all consequences that are “proximate” whether or not they are “unusual, unexpected, unforeseen, and unforeseeable.”

Question 91

Duty case vs Proximate cause case

Answer 91

in a duty case, the refusal to recognize the plaintiff’s claim means that the defendant does not owe anyone a duty of care. In a proximate cause case, even if no proximate cause is found on the ground that the defendant did not owe a duty to prevent the harm that befell the plaintiff, the defendant remains in breach of a tort duty of care to someone.

Question 92

Which consequences are proximate? considerations include the following

Answer 92

1) Time and distance. The greater the distance either in time or space, the more likely other causes will intervene to affect the result.
2) Substantial Factor. Is negligence a substantial factor in producing the harm?
3) Direct Connection. Was there a direct connection without too many intervening causes?
4) Attenuation. Is the effect of cause on result weak or even coincidental?
5) Likelihood. Is the negligent conduct likely, in the judgment of a reasonable person, to cause the harm?
6) Stream Analogy. A stream is joined by various tributaries with different tinges to their water, and at some point you can’t tell the tinges apart because they all get mixed together. At this point, causal connection in no longer close (proximate) enough for liability.

Question 93

Aggregation - part of BPL analysis (BPL 201)

Answer 93

this concept is important in cases like Wagon Mount that involve both a high probability risk of a relatively low magnitude harm (fouling boats and structures with oil) and a very low probability of risk of high magnitude harm (starting a fire in the harbor). This is basically advanced BPL. In big B cases, you look to see whether this big B protects a big class of people and you calculate all the people the B might aggregate and then B becomes less than PL. Aggregation takes a B that is not cost justified and you turn it into a B that is justified.

Question 94

Hypersensitive Plaintiffs

Answer 94

the hypersensitive victim case is one where there has been a breach of duty toward this plaintiff, but the plaintiff is hypersensitive and their damages are therefore more extensive than those that a typical victim would suffer. So the harm is more than the tortfeasor would expect. The rule is that “tortfeasors take their victim as they find them” - that the injurer is liable for all of the harm that they have inflicted. This is also referred to as the hypersensitive plaintiff or thin skull rule. Watson justifies this rule as an instance of directness recovery: “the rule is that the perpetrator of a tort is responsible for the direct and immediate consequences thereof, whether they may be regarded as natural or probable, or whether they might have been contemplated, foreseen, or expected.

Question 95

Intervening Cause

Answer 95

an intervening cause is an event that occurs after a tortfeasor’s initial act of negligence and causes injury/harm to a victim. It is both a cause in fact and a proximate cause of the harm. If the likelihood of an intervening act was one of the hazards that made defendant’s conduct negligent – that is, if it was sufficiently foreseeable to have this effect – then defendant will generally be liable for the consequences.

Question 96

Superseding Cause

Answer 96

an intervening cause that breaks the chain of causation and absolves the tortfeasor of liability for the victim’s injury. The problem of superseding cause is figuring out when an intervening cause is a superseding cause.

Question 97

When is gross negligence a superseding cause

Answer 97

Gross negligence is a superseding cause “when knowledge of the latent danger or defect is actually possessed by the original vendee, who then deliberately passes on the product to a third person without warning. [this maybe should go under product liability??]

Question 98

Rule regarding original negligence and subsequent malpractice (Purchase)

Answer 98

ordinary negligence of a healthcare provider is within the scope of risk created by a negligent tortfeasor - it is both direct and foreseeable - whereas gross negligence is not. This rule DOES NOT APPLY if the plaintiff fails to exercise reasonable care in selecting the physician.

Question 99

The problem of excessive liability

Answer 99

applies to cases where liability is limited due to policy reasons. For example, in Strauss, there was foreseeable harm issuing from the defendant’s gross negligence. Normal principles of proximate cause call for the imposition of liability, yet the court cuts off liability on “public policy” grounds. The court did this because at some point defendants cannot be held liable for the foreseeable harm caused by their tortious conduct simply because that liability becomes too great.

Question 100

Liability for purely economic losses

Answer 100

Barber Lines states and applies the rule that plaintiffs cannot “recover damages negligently caused financial harm, even when foreseeable, except in special circumstances.” The same rule does not apply to plaintiffs who suffer physical injury or property damage; those plaintiffs can recover for accompanying economic losses. This rule is subject to many exceptions, so much so that People Express takes the position that the exceptions are so numerous they undermine the general rule; it therefore turns the exception into the rule and permits recovery when harm to a limited class of plaintiffs is particularly foreseeable and can fairly be limited.

Question 101

Liability for Purely Emotional Harm

Answer 101

General Rule is that there is no liability for pure emotional harm. However, this does not apply to plaintiffs who suffer physical injury; those plaintiffs can recover for accompanying emotional losses.

Question 102

Zone of Danger Test (liability for emotional harm)

Answer 102

This is the most common rule limiting liability for negligent infliction of emotional distress. It allows recovery for purely emotional injury where there is either (a) an immediate physical invasion of the plaintiff’s person or security or (b) a direct possibility of such invasion.

Question 103

Dillon test for pure emotional harm (rejection of the zone of danger test)

Answer 103

The Dillon case thinks the zone of danger test limits recovery that does not make sense if reasonable foreseeability of injury determines liability. Therefore, their test is that a plaintiff can recover even though she was not within the zone of danger because she was a reasonably foreseeable plaintiff and it is much more than foreseeable that a mother who sees her child killed will suffer physical injury from the shock.
Dillon’s rule is: reasonable foreseeability of harm should determine liability taking into account the follow 3 factors: (1) plaintiff is closely related to the injury victim, (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim; and (3) as a result suffers serious emotional distress - a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal reaction to the circumstances.