Torts 32-37 Flashcards
Under the Restatement (Second) Test for Res Ipsa Loquitur, what must the plaintiff show?
That the event typically does not occur in the absence of negligence;
Other responsible causes are sufficiently eliminated by the evidence (incl. plaintiff & third persons); AND
The negligence is within the scope of duty the defendant owed the plaintiff.
*If applicable, the breach element is established.
Priority: Low
Actual Cause vs. Proximate Cause
Actual Cause: The “but for” cause.
Under the substantial factor test → something that is a substantial factor in bringing about the injury ISan actual cause.
Proximate Cause: The legal cause, which means the injury MUST have been a foreseeable resultof the breach.
Priority: HIGH
What is an Intervening Cause?
Any act that occurs AFTER the defendant’s breach that contributes to the harm.
*It absolves the defendant of liability if it resulted in an unforeseeable/unexpectedinjury.
Priority: HIGH
When are Intervening Criminal Acts foreseeable?
When:
The defendant should have anticipated the act; OR
The defendant’s conduct makes the criminal act more likely to occur.
Priority: HIGH
What is the Eggshell Plaintiff Rule?
A tortfeasor takes his victim as he finds him.
The tortfeasor is liable for ALL harm a plaintiff suffers as a result of his conduct, even if plaintiff suffered from a pre-existing condition making the harm greater.
Priority: Medium
Pure Comparative Negligence
vs.
Partial Comparative Negligence
vs.
Contributory Negligence
Pure: P’s negligence/assumption of risk will NOT bar recovery. P’s damages are reduced by % at fault.
Partial: If less than 50% at fault, then P’s damages are reduced by % at fault. If over 50% at fault, then P’s claim is barred.
Contributory: Plaintiff CANNOT recover if he contributed to his own injury in any amount. P’s claim is barred.
Exceptions → when the defendant had the last opportunity to avoid injury OR was reckless.
Priority: HIGH
