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Question 1

What must the plaintiff establish for market share liability?

Answer 1

The culpability of the defendant in that he manufactured and marketed something that was dangerous for use

Question 2

What is the defendant’s burden in a market share liability situation?

Answer 2

Defendant must prove he wasn’t the supplier of the product, and if he can’t, he is responsible for the percentage of the market he had for that product at the time of the injury

Question 3

What is the best example of a market share liability situation?

Answer 3

DES drug used for pregnant women and many years later the babies had reproductive issues, but moms didn’t know which brand they used

Question 4

What is another classic example of when marketshare liability would come into play?

Answer 4

Asbestos manufacturers

Question 5

If a defendant aggravates a pre-existing condition, what should he be liable for?

Answer 5

The aggravation, not the pre-existing injury itself

Question 6

A pre-existing medical condition is not the same thing as what?

Answer 6

A pre-existing injury

Question 7

What is a preemptive cause?

Answer 7

Someone that acts before you and is therefore liable

Question 8

If someone poisoned your tea and another shoots you in the head before you can drink the tea, who is liable?

Answer 8

The person who shot you because the poison wasn’t the cause of death

Question 9

What is the loss of chance approach?

Answer 9

When Defendant makes the plaintiff lose the opportunity for a better outcome, he is liable for the loss he caused

Question 10

The “loss of chance” approach is usually applicable to what situations?

Answer 10

Medical situations

Question 11

If P goes to a doctor who doesn’t diagnose her cancer, but if he had, she would’ve had a 40% cure rate, and when she is finally diagnosed, it is fatal. What is the defendant liable for?

Answer 11

If plaintiff can show that “but for” his malpractice, she wouldn’t have lost a 40% chance of survival, then the loss of chance is the injury that must be compensated for

Question 12

What is fear of further harm?

Answer 12

If a physical injury is present, courts allow recovery for fear of future harm like cancer. If no physical injury is present, it is unlikely you will recover just for the fear of developing an injury later

Question 13

What is the major issue in proximate cause?

Answer 13

Foreseeability and how far the liability runs

Question 14

What is proximate cause?

Answer 14

An act from which an injury results as a natural consequence and without which the injury wouldn’t have occurred

Question 15

What are the ways to establish proximate cause?

Answer 15

If the manner and type of injury are foreseeable and there are no intervening superseding forces to break the chain

Question 16

What are the two major issues that must be discussed when you talk about proximate cause on an essay?

Answer 16

Foreseeability and intervening acts

Question 17

What are intervening acts?

Answer 17

New forces that join with the defendant’s conduct to cause the plaintiff’s injury

Question 18

If an intervening act is unforeseeable, how does that affect causation?

Answer 18

Usually becomes a superseding cause and breaks the chain

Question 19

Proximate cause is a way to determine how far what goes?

Answer 19

Responsibility

Question 20

At some point in negligence, a person can’t be held responsible because why?

Answer 20

The injury is too far removed

Question 21

Proximate cause involves limitations placed on the person’s liability if what?

Answer 21

They couldn’t have possibly anticipated that someone would get hurt

Question 22

What does it mean that the harm must fall within the scope of defendant’s liability for negligence?

Answer 22

Harm must come from the risks that made the defendant’s conduct negligent in the first place

Question 23

Who decides whether the defendant’s conduct was the proximate cause of an injury?

Answer 23

The jury

Question 24

Are intervening criminal acts for proximate cause usually foreseeable?

Answer 24

No

Question 25

Is intervening negligence usually foreseeable for a proximate cause?

Answer 25

Yes, so it wouldn’t be a superseding cause

Question 26

What are the elements of proximate cause for negligence?

Answer 26

• type of harm
• manner of harm
• P

Question 27

What must the type of harm be for proximate cause to be established for negligence?

Answer 27

The type of injury had to be foreseeable based on the negligent act of the defendant

Question 28

If your roommate leaves a jar of rat poison in with the spices and close to the stove, and you are cooking and the heat from the stove makes the rat poison explode, is that a foreseeable type of harm from proximate cause for negligence?

Answer 28

No, you expect the poison to be used as a spice, not for it to explode, so the roommate’s acts were not the proximate cause of your injury

Question 29

What are the two leading cases for unforeseeable type of harm for proximate cause for negligence?

Answer 29

• Polemis: liability for unforeseeable consequences

- Wagon mound: no liability for unforeseeable consequences

Question 30

What is the Polemis view for unforeseeable type of harm for proximate cause for negligence?

Answer 30

Proximate cause is found whenever the injury is a direct result of D’s breach and doesn’t matter if it was unforeseeable

Question 31

Why do most courts reject the Polemis approach to proximate cause for negligence?

Answer 31

Because it is too rigid

Question 32

Which is the majority approach for the type of harm for proximate cause for negligence?

Answer 32

Wagon mound approach

Question 33

What is the Polemis case?

Answer 33

Ship that was negligently loaded and a wooden plank was knocked into the hold that was filled with gas, and a spark ignited the gas and the ship was destroyed. Fire/explosion wasn’t the type of foreseeable injury, but the defendants were liable because the injury was a direct result of their negligent act

Question 34

What is the wagon mound approach to proximate cause for negligence?

Answer 34

Causation is found when the plaintiff’s injury results directly from defendant’s breach only if the type is reasonably foreseeable

Question 35

The wagon mound approach says that if an unforeseeable result occurs, what?

Answer 35

It isn’t fair to hold the defendant liable no matter what causation pattern occurred

Question 36

What is the Wagonmound case about?

Answer 36

A freighter leaked furnace oil into the bay where the P’s dock was, and molten metal falling onto cotton floating on the surface caught on fire and P’s dock was destroyed. D’s act was not the proximate cause because it was unforeseeable the fire would start that way, so he wasn’t held liable since you would only imagine the cotton would clog the dock and cause damage, not a fire would start

Question 37

If the extent of the plaintiff’s injuries is unexpected, how does that affect proximate cause for negligence?

Answer 37

It doesn’t because of the egg shell skull rule, it doesn’t matter what extent the harm was, if the harm was the type that was foreseeable, you’re liable

Question 38

All courts hold the defendant liable for the full extent of what?

Answer 38

Plaintiff’s injuries

Question 39

If you hit an NBA player with your car and have to pay $5 million in lost wages, can you argue that it was an unforeseeable extent of harm and that you shouldn’t be the proximate cause?

Answer 39

No, because it doesn’t matter what the extent of harm was, that doesn’t affect your liability

Question 40

If you have a negligently maintained fence that is likely to fall down in the wind, but instead a deer crashes into it and it knocks down and damages a car, are you the proximate cause?

Answer 40

No, the deer is an intervening cause

Question 41

What is marketshare liability?

Answer 41

When a defective product causes injury and you can’t prove which brand was used