Torts Final New

Question 1

Intentional Torts

Answer 1

Battery
Assault
False Imprisonment
Intentional Infliction of Emotional Distress
Trespass to Land
Trespass to Chattels

Question 2

Defenses to Intentional Torts

Answer 2

Privilege
Consent
Insanity
Defense of Property
Recapture of Chattels
Private Necessity

Question 3

General Rule of Extent of Damages for Intentional Torts

Answer 3

● You are liable for what results from the action, not just what is foreseeable
● Once you have the intent to commit, you are liable for any harm that flows directly from that tort, whether foreseeable or not

Question 4

Battery Rule

Answer 4

battery occurs when an actor intends to make a harmful or offensive contact with another AND that harmful or offensive contact occurs

Question 5

Battery Intent

Answer 5

acting with the purpose of producing the consequence or knowing that the consequence is substantially certain to result
 In a SINGLE INTENT jurisdiction, a person must act ONLY act with intent to make contact, regardless if that contact is harmful or offensive
 In a DUAL INTENT jurisdiction, a person must act with the intent to make contact AND for that contact to be harmful or offensive
 TRANSFERRED INTENT: if A intends to hit B, but A unintentionally hits C, then A is liable to C as the intent to hit B transfers
• The required intent is to contact a person, but regardless which person is actually hit you are liable

Question 6

Battery Conduct

Answer 6

any voluntary act that leads to contact with a person, or to an object that closely identifies with that person (can be direct or indirect)

Question 7

Battery Result

Answer 7

harmful or offensive contact to a person, or to an object that closely identifies with that person
 HARMFUL CONTACT: causes actual injury, pain, or disfigurement
 OFFENSIVE CONTACT: contact that would be considered offensive by a reasonable person of ordinary sensibilities

Question 8

Battery Other Rules

Answer 8

o Causing contact to occur between a person and a third party, or a person and an object can still constitute a battery
o Plaintiff does not need to know/have knowledge of the battery in order to make a prima facie case

Question 9

Assault Rule

Answer 9

assault occurs when the actor intends to cause harmful or offensive contact OR an imminent apprehension of such a contact AND the person is put in such imminent apprehension

Question 10

Assault Intent

Answer 10

is acting with the purpose of producing the consequence or knowing that the consequence is substantially certain to result
 Intent to cause imminent apprehension (intent to make P anticipate the contact) OR intent to cause harmful or offensive contact (intent to inflict an actual battery)
 TRANSFERRED INTENT

Question 11

Assault Conduct

Answer 11

an offer or attempt (attempt to strike- could miss) to make contact

Question 12

Assault Result

Answer 12

imminent apprehension of harmful or offensive contact

Question 13

Assault Other Rules

Answer 13

o Mere words/threats or future threats are not assault
o Plaintiff must have knowledge of the assault in order to make the prima facie case
o Imminent: with no significant delay
o Apprehension: believing that the actor is going to inflict contact (anticipation of contact)

Question 14

Assault is designed to protect

Answer 14

your peace of mind & your anticipation of force against you

Question 15

Attempt to contact, person put in imminent apprehension, but miss

Answer 15

Assault

Question 16

Attempt to contact, person put in imminent apprehension, contact occurs

Answer 16

Assault and Battery

Question 17

Contact from behind, person not put in imminent apprehension, contact occurs

Answer 17

Battery

Question 18

False Imprisonment Rule

Answer 18

actor intends to confine another in an enclosed space, resulting in total involuntary confinement of another & the other is aware of confinement

Question 19

False Imprisonment Intent

Answer 19

Intent to confine

Question 20

False Imprisonment Conduct

Answer 20

the act that directly or indirectly leads to a total confinement
 Even if there is a means of escape, if that means is unreasonable it is confinement (injury to yourself, or others, or harm your dignity)

Question 21

False Imprisonment Result

Answer 21

total and involuntary confinement, and the person is aware of that confinement

Question 22

Not False Imprisonment

Answer 22

o As long as there is a safe alternative that the person knows about or there is a reasonable means to escape, you are not imprisoned
o Partial obstruction or disturbance
o Plaintiff has reasonable means to escape
o An area of confinement so large (i.e. United States)- The larger the area, the more likely a court will say you have freedom of movement
o Voluntary submission to confinement (consent)
o Plaintiff’s mere belief that they are confined (without knowledge for sure)
o Restraint that is reasonable under the circumstances

Question 23

Shopkeeper’s Exemption to False Imprisonment

Answer 23

If a shopkeeper suspects someone is shoplifting and detains that person to determine whether they are, no false imprisonment; has to be reasonable suspicion, reasonable circumstances, and reasonable manner

Question 24

Confinement by Omission

Answer 24

failure to release someone when they have an obligation to be freed

Question 25

Intentional Infliction of Emotional Distress Rule

Answer 25

there is IIED when the actor by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another

Question 26

Intentional Infliction of Emotional Distress Intent

Answer 26

intentionally or recklessly causes emotional distress to a person or knows with substantial certainty that emotional distress will occur
 TRANSFERRED INTENT- has to be a family member, and that family member has to be there to witness it- EXTREMELY LIMITED
 RECKLESS- blatant/deliberate disregard to high risk of injury

Question 27

Intentional Infliction of Emotional Distress Conduct

Answer 27

so extreme and outrageous that no reasonable person would expect you to endure such a thing; goes beyond decency in a civilized society
 SPECIAL SENSIBILITY- if you know someone is particularly susceptible
 NOT: mere insult without that person having special sensibility

Question 28

Intentional Infliction of Emotional Distress Result

Answer 28

the plaintiff has to suffer severe emotional distress, and if bodily harm results you can recover for that as well
 Very narrow; difficult to prove- many courts have implied that medical testimony is necessary except in the most egregious cases

Question 29

Intentional Infliction of Emotional Distress Other Rules

Answer 29

o Mere insults, threats, or indignities are not IIED (but possibly if they effect livelihood, & are continuous harassments)
o Usually fails because conduct has to be such a high degree of outrageous
o Can be detected if a person falls within a class or people (ex. minorities) who would be known to be especially susceptible to emotional distress

Question 30

Trespass to Land Rule

Answer 30

The actor intends to enter or cause an object to enter another’s land without permission, resulting in the unauthorized entry of the other’s land.

Question 31

Trespass to Land Intent

Answer 31

intent to act (do the thing that makes you end up in that location; ex. step onto land), not necessarily knowing that it is someone’s land in particular
 You only have to intend to enter the piece of property you in fact enter, do not have to have intent to trespass
 Very low level of intent needed- only need intent to want to be at the place you end up being
 STRICT LIABILITY TORT- even without purpose, if your intent to take the step that puts you on the property, that satisfies the intent element necessary
 TRANSFERRED INTENT

Question 32

Trespass to Land Conduct

Answer 32

Any voluntary act which causes the actor to unlawfully enter another’s land.
 A voluntary act interfering with another’s property rights

Question 33

Trespass to Land Result

Answer 33

unauthorized entry onto another’s land

Question 34

Trespass to Land Mistake

Answer 34

 intent to enter land which happens to be someone else’s property makes you liable
 Plaintiff who mistakenly believes that a land is public, voluntarily enters that land, but the land is actually private property is liable for trespass to land
• You still have the intent to enter onto that specific land

Question 35

Trespass to Land Accident

Answer 35

 If you accidentally enter onto someone’s property (ex. icy road) you aren’t liable for trespass.
• You did not have the intent to enter onto that specific land (pure accidents are not trespass to land)

Question 36

Trespass to Land Protects

Answer 36

exclusive possession of land and its improvement, discourages breach of the peace to protect one’s personal property

Question 37

Trespass to Chattels Rule

Answer 37

The actor intends to physically interfere with, dispossess, or destroy another’s chattel, such interference, dispossession, or destruction occurs, and the other is deprived of the use of his chattel.

Question 38

Trespass to Chattels Intent

Answer 38

an actor must intend to interfere with, dispossess, or destroy another’s chattel, with a purpose of causing trespass or with substantial certainty that a trespass will result

Question 39

Trespass to Chattels Conduct

Answer 39

a voluntary act that interferes with, dispossesses, or destroys another’s chattel
 Even if no physical damages, there can be trespass if unpermitted use is for an extended time
 If the chattel is destroyed, the tort of conversion results and the person has to pay for the value of the chattel

Question 40

Trespass to Chattels Result

Answer 40

chattel is dispossessed or impaired, or the possessor is deprived of the use of the chattel for a substantial time

Question 41

Trespass Other Rules

Answer 41

o Plaintiff must prove actual damage to the chattel (physical damage or loss of use of the chattel for a substantial period of time)
o Reasonable belief that a property is one’s own is not a defense
o an accident is not trespass
o Plaintiff will have to prove that actual damages resulted if their chattels were only interfered with. If they were dispossessed, trespass to chattels will lie for both nominal and actual damages

Question 42

Privilege as a Defense to Intentional Torts

Answer 42

a tort does occur, but it does not matter because it was within the scope because the actor is privileged (prima facie case is met, but defendant has a right to the conduct)
o Defenses to torts are normally called privileges
o A circumstance that justifies and excuses tort liability

Question 43

Consent as a Defense to Intentional Torts

Answer 43

totally negates a tort from occurring, a tort cannot happen if you say you are okay with something

Question 44

Types of Consent as a Defense to Intentional Torts

Answer 44

Express Consent
General Doctrine of Privilege
Pleasantry
Implied Consent
Apparent Consent
Consent to Criminal Conduct
Promoter Liability

Question 45

Express Consent as a Defense to Intentional Torts

Answer 45

can be expressed when the plaintiff has expressly shown a willingness to submit to the defendant’s conduct

Question 46

General Doctrine of Privilege as a Defense to Intentional Torts

Answer 46

any circumstance that justifies or excuses a prima facie tort

Question 47

Pleasantry as a Defense to Intentional Torts

Answer 47

any friendly or casual touching indecent to everyday life

Question 48

Implied Consent as a Defense to Intentional Torts

Answer 48

could occur in the case of major internal operations and in sports settings

Question 49

Implied Consent Emergency Rule as a Defense to Intentional Torts

Answer 49

medical treatment will be lawful when an emergency requires acting to preserve the health or life of the patient
• The plaintiff is not capable of consent and consent cannot be obtained from someone who has the authority to consent for the plaintiff

Question 50

Silence and Action within the Scope of the Situation of Implied Consent as a Defense to Intentional Torts

Answer 50

if everyone else is gesturing a certain way for a certain reason, & you make the same gesture, consent is implied
• if custom or social norms would lead a reasonable person to believe that the plaintiff had given consent

Question 51

Sports as Implied Consent as a Defense to Intentional Torts

Answer 51

if the conduct is such that is within the normal practices of the game

Question 52

Apparent Consent as a Defense to Intentional Torts

Answer 52

in which a reasonable person would infer consent from the plaintiff’s conduct
 Words, actions, or inactions may reasonably manifest consent
 Silence may manifest consent when a reasonable person would have spoken up

Question 53

Consent to Criminal Conduct as Consent as a Defense to Intentional Torts

Answer 53

you cannot consent to a violation of criminal law 
	EXCEPTION: "Where it is a crime to inflict a particular invasion of an interest of personality upon a particular class of persons, irrespective of their assent, and the policy of the law is primarily to protect the interests of such a class of persons from their inability to appreciate the consequences of such an invasion, and it is not solely to protect the interests of the public, the assent of such a person to such an invasion is not a consent thereto"
•	Protects classes if they cannot appreciate the consequences

Question 54

Promoter Liability as part of Consent as a Defense to Intentional Torts

Answer 54

 Promoter is liable where he conducts something in violation of statutory provisions, regardless of the rights as between the contestants, and that the consent of the combatants does not relieve him of liability

Question 55

Other Rules of Consent as a Defense to Intentional Torts

Answer 55

o Consent is not considered a privilege, but it is a defense
o If you consent to a particular kind of contact, the contact is valid and will be the action even if it results in injury

Question 56

Insanity as a Defense to Intentional Torts

Answer 56

generally, not a defense to tortious conduct, but where an insane person, by his act, does intentional damage to the person or property of another, he is liable for that damage in the same circumstances in which a normal person would be liable
o In order to be liable, the insane person must have been capable of entertaining the same intent and must have entertained it in fact (similar to dual intent)
o The intent of an insane person does not need to be rational in order to find him liable
o An insane person can be found liable for their torts, mental insanity is not a complete defense

Question 57

Defense of Property as a Defense to Intentional Torts

Answer 57

one may use reasonable force to prevent the commission of a tort against his property
o If an actor enters without force, the possessor must request that the actor leaves before using actual, reasonable force
 You have to request him to leave and if he does not, then you can use reasonable force to eject him
o If one comes in with force, the possessor does not need to ask him to leave but is allowed to lay hands on his immediately
 It is returning violence with comparable violation
o A possessor may not wound or cause serious bodily harm to another in defense of property

Question 58

Recapture of Chattels as a Defense to Intentional Torts

Answer 58

• RULE: you have a privilege to use reasonable force to recapture your chattels or property taken unlawfully
o Has to be reasonable force, cannot wound or use serious force merely in defense of property
o No violence is necessary or required unless the person used violence
o The dispossession must be by force or fraud, not something you voluntarily gave up
o MISTAKE: your mistake eliminates your privilege
 If you run after someone who you think has stolen something and they have not done anything wrong, you lose the privilege of using reasonable force to recapture the chattel
 Once you are out in public you are upsetting the status quo of the streets, you look like you are putting people in danger, so you better be right
o REQUIREMENT OF HOT PURSUIT: only a valid defense under hot pursuit; you have to immediately go after you notice

Question 59

Private Necessity as a Defense to Intentional Torts

Answer 59

• RULE: a person has the right to enter another’s land without permission in order to avoid imminent serious harm to his life or his property by naturally occurring causes or human causes
o The doctrine of necessity applies with special force to the preservation of human life
 (personal livelihood > personal property)
• CIRUMSTANCES FOR NECESSITY
o Permission to remain on the land of another in response to the threat of imminent harm to person or property; must be reasonable
• OTHER RULES:
o a party who damages property of others while acting with private necessity must compensate the property owner for the resulting damages
o Necessity, actions required to save lives or property, justifies entry upon land and interference with personal property that would otherwise have been trespass.
o You can use other people’s property if it is going to save you or your family or your personal property

Question 60

General Rule of Extent of Damages for Intentional Torts

Answer 60

● You are liable for what results from the action, not just what is foreseeable
● Once you have the intent to commit, you are liable for any harm that flows directly from that tort, whether foreseeable or not

Question 60

General Rule of Extent of Damages for Intentional Torts

Answer 60

● You are liable for what results from the action, not just what is foreseeable
● Once you have the intent to commit, you are liable for any harm that flows directly from that tort, whether foreseeable or not

Question 61

Negligence Definition

Answer 61

CONDUCT, THROUGH ACT OR OMISSION, THAT FAILS TO CONFORM TO A PARTICULAR STANDARD OF CARE NECESSARY TO AVOID UNREASONABLE RISKS OF HARM TO OTHERS

Question 62

Duty Rule

Answer 62

A LEGAL OBLIGATION TO CONFORM ONE’S CONDUCT TO A STANDARD OF CARE NECESSARY TO AVOID CREATING UNREASONABLE RISK OF HARM TO OTHERS

Question 63

The general rule of duty

Answer 63

to conform one’s conduct to a standard necessary to avoid an unnecessary risk of harm

Question 64

Two Views on Duty

Answer 64

 Cardozo: a duty is owed to the reasonably foreseeable plaintiff; must be close enough in time and space to owe a duty
 Andrews: a duty to one is a duty to all; there is a duty to society as a whole; a duty to everyone

Question 65

Affirmative Duties

Answer 65

 Nonfeasance- failure to act

 Misfeasance- wrongful act

Question 66

Exceptions to Duty

Answer 66

 when conduct regularly or negligently created the situation and nothing was done to minimize the risk
 gratuitous undertakings: either began to act on a promise or promised to act, and then they do it either negligently or through stopped performance

Question 67

General Info on Duty

Answer 67

 no duty to aid when you did no create the situation

 duty is not a standard, it is a legal obligation/requirement to line up to the standard of care

Question 68

Duty: Good Samaritan Doctrine

Answer 68

there is no legal duty to protect/rescue a stranger from injury where the defendant was in no way responsible for creating the dangerous situation in the first place
o No duty to render affirmative aid; no duty to act affirmatively to aid of a stranger in an emergency

Question 69

Duty: Exceptions to Good Samaritan Doctrine

Answer 69

 § 39: when the actor’s prior conduct, even if not negligent, creates a risk of harm
• Not liable for initial injuries when conduct was not negligent, just for injuries that result from not exercising reasonable care after non-negligent conduct
 § 327: cannot prevent others from providing aid
• Do not have to affirmatively help, but cannot prevent others from an act of misfeasance
 § 44: taking charge to assist another, despite no duty to do so; must exercise reasonable care
• Cannot worsen the situation for the person

Question 70

Duty: Gratuitous Undertakings

Answer 70

when one owes no duty to act affirmatively to another but gratuitously chooses to, he assumes a duty to exercise reasonable care in performing his undertaking

Question 71

Duty: Undertaking

Answer 71

• UNDERTAKING- performance of a task/rendering a task OR promise/agreement to perform a task voluntarily
• Must not increase the risk of harm to the other
• Must not cause the other to suffer harm in reliance on the undertaking

Question 72

Duty: Exceptions to Gratuitous Undertaking

Answer 72

an actor has no duty to aid EXCEPT when the actor takes charge of another who reasonably appears to be imperiled and helpless/unable to protect himself
o Then, the actor has a duty to exercise reasonable care while the other is within the actor’s charge
o If the actor discontinues aid, they must refrain from putting the person in a worse position than they were prior to when they took charge
o AND if the other person reasonably appears to be in imminent peril of serious harm at the time the actor wants to stop rescuing, they must exercise reasonable care in regard to that peril before stopping

Question 73

Special Relationships Duty

Answer 73

a duty arises to prevent physical harm when there is a special relationship between the actor and the third person which imposes a duty to control, or a special relationship between the actor and the other which imposes a duty to protect
• Generally, a duty arises only if the criminal act was reasonably foreseeable

Question 74

Duty: 4 different tests to determine when a risk is foreseeable/affirmative duty is owed

Answer 74

o Specific Harm- only liable if aware of specific imminent harm
o Prior Similar Incidence- notice of repeated criminal assaults on the same premises; foreseeability is established by incidents on or near the premises
o Totality of Circumstances Test- most commonly used test; takes nature, condition, location of land, and other relevant circumstances into consideration
o Balancing Test- balance foreseeability of harm against the burden of imposing a duty to protect against the criminal act; foreseeability used as a synonym to probability; similar to the hand formula (used in breach)

Question 75

Duty: Owners and Occupiers: 2 ways a Duty can Arise

Answer 75

Active conduct and passive conditions on the premises

Question 76

Duty: Owners and Occupiers: Dealing with Limited Duty

Answer 76

 What category does the person fall into?

 What duty is owed to someone in that category? And was the duty owed breached?

Question 77

Categories on Entrants on Land

Answer 77

Invitee
Licensee
Trespasser

Question 78

Invitee

Answer 78

a business visitor who is invited or permitted to enter or remain on the land for a purpose directly or indirectly connected with business dealings between them; if owner and occupier have a joint interest
• By invitation, express or implied, of the occupier
• Inducement/encouragement to use by the public makes them invitees even without explicitly saying to come
• Owed the Highest Level of Duty
o Occupier has a duty to take reasonable care that premises are safe and not cause unreasonable risk of harm to others; including reasonable inspections to find defects (there has to be sufficient time for the owner to make the premises reasonably safe), and to warn the invitee of any non-open and obvious defects (or making the defects reasonably safe if the warning would not be sufficient)

Question 79

Licensee

Answer 79

a social guest who is not an invitee, but who is privileged to enter or remain upon land by the possessor’s consent; someone invited to enter/remain on land for a purpose, or under a legal privilege
• With the leave and license, express or implied, of the occupier
• Silence implies consent OR if a reasonable person would think that failure of the homeowner to say anything is his consent
• Owed a Less Stringent Level of Duty
o Occupier has no duty to ensure that premises are safe, but is bound to not create traps or injure a licensee by negligent conduct
o There is a duty to warn a licensee of latent concealed dangerous conditions that the owner knows of or should know about and possibly a duty to remedy it

Question 80

Trespassers

Answer 80

someone who enters or remains on the land of another without consent of the owner or without privilege to do so; come onto the premises at their own risk
• If you are originally barred from land by signs you are a trespasser, but no further actions taken against you make you a licensee (as long as the landowner knows you have been habitually trespassing)
• No Duty of Reasonable Care Owed
o Only duty owed is to refrain from acting intentionally or recklessly to harm the trespasser; the trespasser comes onto the premise at his own risk
o Definition of Reckless: actor knows of facts that would lead a reasonable person to find that risk is substantially greater
 A person acts recklessly in engaging in conduct if the person knows of the risk of harm created by the conduct or knows of facts that make the risk obvious to another in the person’s situation AND the precaution that would eliminate or reduce the risk involves burdens that are so slight relative to the magnitude of the risk as to render the person’s failure to adopt the precaution a demonstration of the person’s indifference to the risk.

Question 81

When an Occupier is Liable:

Answer 81

o Where the injury is due to some willful act involving something more than the absence of reasonable care
 There must be some act done with the deliberate intention of doing harm to the trespasser, or at least some act done with reckless disregard of the presence of the trespasser

Question 82

Exceptions to Owner/Occupier Duty

Answer 82

Recklessness
Attractive Nuisance
Discovered/Known Trespasser
Frequent Trespasser on Limited Area

Question 83

Recklessness as an Exception to Owner/Occupier Duty

Answer 83

If the trespasser’s presence is actually known then there is a duty not to injure by using reasonable conduct

Question 84

Attractive Nuisance as an Exception to Owner/Occupier Duty

Answer 84

there is a duty to eliminate danger or otherwise protect children when there are highly dangerous, artificial things on the land because children are too immature to appreciate the dangers
 (a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and
 (b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
 (c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and
 (d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
 (e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.
 Excludes: risks that are obvious to children; known to be dangerous

Question 85

Discovered/Known Trespassers as an Exception to Owner/Occupier Duty

Answer 85

if the owner is aware of the trespasser, the owner has a duty to not injure the trespasser by negligent conduct or to warn the trespasser of non-obvious artificial conditions

Question 86

Frequent Trespassers on Limited Area as an Exception to Owner/Occupier Duty

Answer 86

if the owner is aware that trespassers frequently come on the land in large numbers in a limited area, they are owed a reasonable duty of care; a duty arises not to injure the trespasser by negligent conduct and to warn the trespasser of non-obvious conditions.

Question 87

Negligent Infliction of Emotional Distress

Answer 87

there is generally no duty owed to avoid the negligent infliction of emotional distress (fright or physical injuries resulting from fright) to another. A duty may arise under the following circumstances:
Impact Rule 1
Impact Rule 2
Zone of Danger
Dillon test

Question 88

Impact Rule 1 as a Duty under NIOED

Answer 88

immediate physical personal injury that results from fright following physical contact (along with injuries that result from that fright)
 Can recover damages and parasitic damages
 How you can recover:

Physical Contact–> Immediate Physical Injury –> Fright from anticipating contact, Emotional Distress from fright/injury or physical injuries from emotional distress

Question 89

Impact Rule 2 as a Duty under NIOED

Answer 89

immediate physical personal injury that results from fright following physical contact, BUT contact that results in fright does not have to be that extreme
 Contact can be very slight (ex. slight jolt in a minor crash, mouse hair in a spoonful of soup that touched the roof of P’s mouth)

Question 90

Zone of Danger as a Duty under NIOED

Answer 90

you have to personally potentially be in danger of being struck; fright for yourself and your own personal safety

Question 91

Dillon Test (for bystanders) as a Duty under NIOED

Answer 91

a bystander can now recover if the injury was foreseeable
The main determinant if a duty is owed: foreseeability
3 factors to determine whether there was a foreseeable risk to this particular bystander (factors balanced by the court and determined as a matter of law):
• Bystander was located near the scene of the accident
• Bystander suffered shock soon after as a result from the direct emotional impact from observing the accident
o restatement 3d says hearing about the accident and coming on the scene right away/right after should be okay as well
• Bystander was closely related to the victim

Question 92

Problem with the foreseeability test for Dillon test

Answer 92

open-endedness to the factors
 P’s cause of action is based on an actual physical injury by the original victim
• The ALMOST accident does not count, OR
• If the victim is seen as contributorily negligent then there would be no cause of action

Question 93

Dillon Test: Thing Case Alternative: Bright-Line Rule:

Answer 93

Restricts categories of who can recover and where they need to be BUT also requires severe emotional distress (not physical injury)
• Turns the factors into elements

Question 94

Breach Rule

Answer 94

CONDUCT, BY ACT OR OMISSION, THAT FALLS BELOW THE RELEVANT STANDARD OF CARE NECESSARY TO AVOID UNREASONABLE RISKS OF HARM

Question 95

Elements of Breach

Answer 95

o Standard of Care
o Foreseeability of Risk
o Unreasonableness of Risk
Hand Formula

Question 96

Breach: Standard of Care

Answer 96

o Reasonable Prudent Person- the general standard of care is the kind and degree of care that a reasonable prudent person would use under the same or similar circumstances to prevent foreseeable risk of harm
 Hypothetical person with average mental capacity, abilities, intelligence, perception, memory under similar circumstances

Question 97

Breach: Standard of Care: Special Rules

Answer 97

Children
Physically Disabled
Insanity
Expert/Specialized Knowledge
Beginner
Elderly
Custom
Wavering Standard of Care
Statutes and Regulations

Question 98

Breach Special Rules: Children

Answer 98

a minor is held to exercise the standard of care of the reasonable person of the same age, intelligence (wisdom), and experience.
• Adult Activity Rule- children are held to the Reasonable Prudent Person standard of care of adults engaged in that activity, when they are practicing adult activities
• EXCEPTION: Rule of Sevens- minority rule
o Children under 7: cannot be liable/are incapable of negligence
o Children 7-14: presumed incapable of negligence until evidence proves
o Children 14+: presumed capable of negligence but can be rebutted

Question 99

Breach Special Rules: Physically Disabled

Answer 99

a person with a physical disability is required to exercise the same degree of care as a reasonable and prudent person with the same or similar physical disability under the same or similar circumstances

Question 100

Breach Special Rules: Insanity

Answer 100

a person who is mentally insane must exercise the kind & degree of a RPP (insanity not a defense except in intentional torts)
• EXCEPTIONS: a complete defense to negligence
o A sudden mental aberration or hallucination without any forewarning that affects a person’s ability to understand & appreciate the duty of ordinary care or to control his actions

Question 101

Breach Special Rules: Expert/Specialized Knowledge

Answer 101

a person who is an expert in his field is expected to exercise the skill & knowledge of an expert in the same field with similar knowledge and skill

Question 102

Breach Special Rules: Beginner

Answer 102

beginners are generally required to exercise the standard of care of those who are reasonably skilled and practiced in the area

Question 103

Breach Special Rules: Elderly

Answer 103

a person of old age is held to the standard of care of a reasonable prudent person, but physical infirmities associated with old age may be taken into consideration

Question 104

Breach Special Rules: Custom

Answer 104

A custom is a way of performing a particular activity that is very well-defined and widely accepted amongst a group of people, trade, or profession
• “the usual practices and methods of a given industry in ordinary/common use”
• custom may be used as evidence of the standard of care but does not set the standard of care.
• Evidentiary weight of custom: custom is used as evidence that the defendant is negligent when the defendant does not comply with custom; custom is used as evidence that D was not negligent when D complies with custom.
• Rule: A general custom, use, or practice by those in the same business or trade may be considered some evidence of what constitutes reasonable conduct in that trade or business.
o An actor’s compliance with or departure from the custom of the community is evidence that the actor’s conduct is or is not negligent but does not conclusively determine the actor’s negligence.
• Either party may want to show custom
o P- to show D failed to conform OR D- to show conformity & use of reasonable care

Question 105

Breach Special Rules: Custom: Medical Malpractice

Answer 105

in the medical field, custom sets the standard of care
o The standard of care for medical professionals is set by customs in the field, and established through expert testimony
o Physicians are held to the degree of care, skill, and learning possessed and used by physicians of good standing in a similar practice
 Physicians have a duty to disclose information to a patient regarding the procedure in order for consent to be given; unless it is an open and obvious result that could occur (such as an infection)

Question 106

Breach Special Rules: Custom: Medical Malpractice: Locality Rule

Answer 106

 Modern age of national medical standards have made the “similar locality” requirement obsolete, Drs. are judged by national standard of custom
 Quasi-exception: Drs. with limited resources (e.g. rural locale) may be exempted from custom in certain emergencies

Question 107

Breach Special Rules: Custom: Medical Malpractice Elements

Answer 107

 The basic norms of knowledge and medical care applicable to general practitioners or specialists (must be by expert testimony)
• Dr. must “possess and use the knowledge and skill common to members of the profession in good standing, in a similar practice, & under like circumstances”
 proof that the medical professional failed to follow these basic norms in the treatment of the patient (breach of customary standard)
• here may be more than one acceptable custom – ∆ can introduce his own expert evidence to establish alternative methods of treatment as long as the alternate approach is “accepted by a significant number of other Drs., and reputable”
 a causal relation between the act or omission of the medical professional & the patient’s injury (established only through expert testimony)
• If more than one acceptable custom is shown through expert testimony - jury does not decide which school of thought is better - Jury only decides which expert’s testimony is more credible
• Relevant school of thought can be a minority; if Doctor’s conduct falls within one of the schools then he is not liable.

Question 108

Breach Special Rules: Custom: Two Schools Ideas

Answer 108

 Competing customs of procedures
 As long as you proceed in a way that is acceptable to a recognized school of thought, that is a complete defense
 School of thought: a respected minority; NOT just one person

Question 109

Breach Special Rules: Custom: Breach of Informed Consent (“Duty to Disclose”)

Answer 109

ormed Consent: Medical professionals have a duty to disclose material risks of procedures to patients in order to obtain their consent.
• A risk is material when a reasonable person in what the medical professional knows or should know to be the patient’s position would be likely to attach significance to the risk in deciding whether to undergo the procedure.
o If the patient would have changed his mind and foregone the procedure had he known the risk, then the risk is material.

Question 110

Breach Special Rules: Custom: Breach of Informed Consent (“Duty to Disclose”) Elements

Answer 110

 Nondisclosure: Medical professional must inform the patient of the risks of the proposed treatment, any alternatives to the proposed treatment, and the results if the patient remains untreated.
 Causation: Must show that the nondisclosure of the risk resulted in the patient having the procedure.
 Patient cannot recover if disclosing the risk would not have changed his mind.
 Injury: Procedure resulted in the patient’s injury.

Question 111

Breach Special Rules: Custom: Breach of Informed Consent (“Duty to Disclose”): Decision Causation

Answer 111

(if P was informed of the risk, she has to say she wouldn’t have had the procedure before the procedure) and Injury Causation (P must suffer kind of harm from risk she was not warned of) are both needed

Question 112

Breach Special Rules: Custom: Breach of Informed Consent (“Duty to Disclose”): Prima Facie case of malpractice by failure to disclose a risk when:

Answer 112

• Defendant physician does not disclose risk
• Harm to plaintiff
• Harm is directly from the risks that defendant did not disclose to plaintiff or warn plaintiff of
• Defendant’s nondisclosure must be cause in fact of plaintiff’s injury- no cause of action for malpractice if plaintiff would have had the procedure with or without the disclosure of risk
• Reasonably prudent person in plaintiff’s position would have refused treatment if informed of the risk

Question 113

Breach Special Rules: Custom: Breach of Informed Consent (“Duty to Disclose”): General Rule

Answer 113

All material risks of a procedure must be disclosed by doctors (patient does not have to ask)
• Material Risk: “The reasonable person, in what the physician knows or should know to be the patient’s position, would be likely to attach significance to the risk(s) in deciding whether or not to forego the proposed therapy”
o If divulging the risks would have changed the patient’s mind in having the procedure, then it’s material
o reasonable person in the patient’s circumstances - e.g. if a procedure risks a 1/10,000 chance of paralysis of the left index finger, this may be material to a concert pianist, but not to ordinary persons
• What should be disclosed: hazards of proposed treatment, benefits of treatment, alternatives to treatment, risks of non-treatment
• Material Risks, e.g.: any risk of death; small chance of blindness or hearing loss; a 40% chance of paralysis
• Immaterial risks, ex: a chance of infection; 1/400,000 chance of kidney failure (you have 2 kidneys); loss of hair from chemotherapy

Question 114

Breach Special Rules: Custom: Breach of Informed Consent (“Duty to Disclose”): Exceptions to informed consent/disclosure:

Answer 114

• Emergency Situation – plaintiff is unconscious and needs emergency procedure (consent from someone in the family should be sought, if available; otherwise okay)
• “Therapeutic Privilege” – Dr. determines that a “complete and candid disclosure” would have a detrimental effect on the psychological/physical well-being of patient - disclosure would prevent plaintiff from helpful treatment

Question 115

Breach Special Rules: Custom: Breach of Informed Consent (“Duty to Disclose”): Topics that do not have to be disclosed

Answer 115

• infection & if a person of average sophistication would be aware of the possibility

Question 116

Breach Special Rules: Wavering Standard of Care

Answer 116

• Sudden Emergency Doctrine- a person in a sudden emergency has the same standard of care as a reasonable prudent person would in the same sudden emergency
o A very narrowly applied doctrine, the person must make an IMMEDIATE decision

Question 117

Breach Special Rules: Statutes and Regulations

Answer 117

statutes and regulations set the applicable standard of care when (1) the Plaintiff is in the class of people that the statute was intended to protect and (2) the plaintiff suffered the type of harm that the statute was intended to prevent 
•	A jurisdiction may use a regulation to set the standard of care or just of evidence of the standard of care

Question 118

Breach Special Rules: Statutes and Regulations: Negligence Per Se

Answer 118

federal and state statutes that satisfy both of the requirements are treated by courts as negligence per se, which is negligence as a matter of law or conclusive evidence of negligence
o Local ordinances that satisfy both requirements are usually treated by the courts as some evidence of negligence
o Even if a statute isn’t accepted as the standard of care, the statute can still be used as evidence of common law negligence
o Statute- provides a measure of legal duty; establishes a standard of reasonable care and replaces the general reasonable prudent person standard
 If the court finds the statute inapplicable, the standard of care shifts back to that of a reasonably prudent person standard
 Does not give rise to a legal action, the court just adopts is to set a standard of reasonable care
 Without a statute, there still may be a cause of action

Question 119

Breach Special Rules: Statutes and Regulations: Negligence Per Se: What Plaintiff must prove with statutory negligence:

Answer 119

 Violation of a statute (a regulation of public entity)
 The violation proximately caused death or injury
 The harm that actually occurred was the type of harm that the statute intended to protect against
 The person who suffered harm was the person/property that was the class of people who the statute was adopted to protect

Question 120

Breach Special Rules: Statutes and Regulations: Negligence Per Se: Excuses for Violations of Statute

Answer 120

 the actor exercises reasonable care in attempting to comply with the statute
 the actor’s violation of the statute is due to the confusing way in which the requirements of the statute are presented to the public
 the actor’s compliance with the statute would involve a greater risk of physical harm to the actor or to others than noncompliance
 the actor is confronted by an emergency not due to his own misconduct

Question 121

Breach Special Rules: Statutes and Regulations: Negligence Per Se 2nd

Answer 121

Uses a statute to set the standard of care. Under negligence per se, a defendant’s violation of a statute results in conclusive liability of negligence if:
o	The plaintiff is in the class of people the statute intended to protect.
o	The resulting harm was of the type the statute sought to prevent.

Question 122

Breach Special Rules: Statutes and Regulations: Exceptions to Negligence Per Se

Answer 122

 The violation is reasonable in light of the actor’s childhood, physical disability, or physical incapacitation
 The actor exercises reasonable care in attempting to comply with the statute
 The actor neither knows nor should know of the factual circumstances that render the statute applicable
 The actor’s violation of the statute is due to the confusing way in which the requirements of the statute are presented to the public
 The actor’s compliance with the statute would involve a greater risk of physical harm to the actor or to others than noncompliance
 The actor is confronted by an emergency not due to his own misconduct

Question 123

Breach Special Rules: Statutes and Regulations: • Presumption/Prima Facie Evidence

Answer 123

A defendant’s violation of a statute results in conclusive liability of negligence unless the defendant can rebut with sufficient evidence of his exercising reasonable care.

Question 124

Breach Special Rules: Statutes and Regulations: Inference

Answer 124

A defendant’s violation of the statute is only some evidence of negligence and does not conclusively set the standard of care. A jury may find for the defendant even if he presents no rebutting evidence.

Question 125

Breach Special Rules: Judge and Jury

Answer 125

A judge can control the standard of care through its jury instructions or by a determination of sufficient evidence to go to a jury.

Question 126

Breach: Calculus of Risk: Foreseeable Risk/Foreseeability

Answer 126

was the risk foreseeable?
 A risk is foreseeable
• when it is more probable than not that the risk would occur
• a reasonably prudent person could expect some kind of harm to result from his conduct
 A person cannot breach a standard of care if the risk would be unforeseeable by a reasonably prudent person

Question 127

Breach: Calculus of Risk: Unreasonable Risk

Answer 127

was the risk unreasonable?

 an unreasonable risk occurs based on the probability and gravity of the situation

Question 128

Breach: Calculus of Risk: Unreasonable Risk: Hand Formula

Answer 128

the main method courts use to determine whether a risk is unreasonable
• Elements of the Hand Formula:
o Burden of Precaution (B)- can be determined by looking at the steps the actor must take to avoid the harm and how burdensome those precautions would be
 Measures the value of the interest to be sacrificed to avoid the harm
• Consider: the costs of avoidance, alternatives and their feasibility, inconvenience of avoiding, etc.
• Defendant does not need to take all possible precautions- only reasonable ones to make the activity safer and lower the risk of harm
 Social Utility of Taking a Risk (B2)- social utility of non-avoidance
• Posner believed that social utility should be added to the Hand Formula as B1 + B2
o The social utility of saving a life is much too important to exclude from the calculus of risk
o Probability of the Risk (P)- can be determined by looking at how likely/foreseeable it is that injury occurs
 If P is minute, there will be no breach even if a harm occurs
o Gravity/Severity of the Harm (L)- can be determined by examining how serious the consequences might be
 Measures the likely harm, and the potential extent thereof, that would follow from the injury-causing event if it occurred
 What a reasonable person would foresee as the likely harm- the likely harm, NOT the actual harm that occurred
 If P is low, this may not matter much
• Reasonable Risk- when the burden of precaution is higher than the probability of risk times the gravity of harm, the risk is not unreasonable
• Unreasonable Risk- defendant’s conduct is unreasonable if the burden of avoiding harm (B) is less than the probability of the harm (P) multiplied by the likely severity/gravity of the harm (L)
o B < P*L

Question 129

Breach: Res Ipsa Loquitor

Answer 129

“the thing speaks for itself”
o a doctrine of law that one is presumed to be negligent if he had exclusive control of whatever caused the injury even though there is no specific evidence of an act of negligence, and without negligence the accident would not have happened.
o RULE: when there is a lack of evidence, a jury can infer negligence from the very fact that the accident or injury occurred
 a type of circumstantial evidence used to establish proof of defendant’s negligence
 you sue for negligence and use RIL as evidence to prove it
 used to aid the plaintiff in proving breach of duty
o a doctrine of proof of defendant’s negligence not a theory of liability itself
 establishes a presumption of evidence and it is up to the defendant to prove that it was not negligent
o A Defendant charged with a nondelegable duty of care to maintain an instrumentality in a safe condition effectively has exclusive control over it for the purposes of applying RIL

Question 130

Breach: Res Ipsa Loquitor: At trial, plaintiff needs evidence to make out a prima facie case to get to the jury

Answer 130

 Direct evidence/eyewitness testimony
 Documentary/physical evidence
 Circumstantial evidence

Question 131

Breach: Res Ipsa Loquitor: Multiple Parties

Answer 131

P cannot always get a RIL against multiple parties. Even if you assume one party was negligence you do not know which had control without more evidence so you cannot conclude either party was negligent
 Exception: P did not have to prove which D or who had exclusive control- P was unconscious, at some point all D had control of one or more instrumentality

Question 132

Breach: Res Ipsa Loquitor: RIL establishes…

Answer 132

a presumption of evidence and it is up to the defendant to prove that they were not negligent
o There is no inference of negligence simply from a slip and fall

Question 133

Breach: Res Ipsa Loquitor: Elements

Answer 133

1. Event does not ordinarily occur unless someone has been negligent
   • When this event occurs- most probable explanation is someone is negligent
   • More probable than not, negligence of some kind is the cause
   • If it is just as likely or more likely to be a cause, then the first element is not met
2. Defendant must be in exclusive control of the instrumentality or agency
   • Rule out other causes
   • Merely one way of proving defendant’s responsibility
3. Event not due to contribution of conduct/voluntary act from plaintiff
   • Actions 2 and 3 are a causal element and rules out plaintiff as a cause of the injury
   • Not just someone but the defendant is causally negligent
    Technology: higher/newer safety technology makes RIL cases easier to prove because they rule out many alternatives
    Most jurisdictions say that if RIL is in the case, the jury is permitted but not required to infer defendant’s negligence from the circumstantial evidence (if all factors are met)
   • If defendant can demonstrate exactly how the accident occurred and that it had nothing to do with their negligence, then RIL can be rebutted

Question 134

Cause in Fact Rule

Answer 134

BUT-FOR RULE: CAUSE IN FACT EXISTS IF BUT FOR THE DEFENDANT’S NEGLIGENT CONDUCT THE HARM/INJURY TO THE PLAINTIFF WOULD NOT HAVE OCCURRED

Question 135

Cause in Fact: But-For Test

Answer 135

cause in fact exists if plaintiff’s injury would not have occurred BUT FOR defendant’s negligent conduct
o But-For has to be by a preponderance of evidence (51%+)- more probable than not
o Includes: defendant’s conduct as a cause when harm would not have occurred if defendant was not acting negligent
o NOT: when the harm/accident would have occurred even if defendant was not acting negligently
o Tortious conduct needs to only be one of the factual “but-for” causes; not necessarily the only
o When the negligence of the defendant greatly multiplies the chance of accident to the plaintiff, and it is something that would naturally lead to injury to the plaintiff, that is enough
o If negligent conduct creates a foreseeable risk of a kind of harm, and that harm occurs, that is enough
o it is up to the negligent party to bring a rebuttable presumption
 rebuttable presumption: evidence denying “but-for” cause and suggesting that wrongful conduct was not a substantial factor

Question 136

Cause in Fact: Multiple Sufficient Causes

Answer 136

more than one possible cause of plaintiff’s injury
o AKA: more than one possible defendant
o burden of proof shifts to the defendants to prove that one & not the other was the cause of the injury
 if multiple acts occur, each of which would have been sufficient causes of the physical harm, each act is regarded as a factual cause of the harm

Question 137

Cause in Fact: Joint Liability

Answer 137

where there are multiple defendants whose conduct caused the plaintiff’s indivisible harm each may be liable for plaintiff’s entire damage award
 plaintiff may recover her whole award from any one defendant or part from each
 plaintiff may not recover their whole damage award more than once; she cannot recover her whole damage award two or more times

Question 138

Cause in Fact: Several Liability

Answer 138

where there are multiple defendants whose negligent conduct caused plaintiff’s injury each defendant would be liable to plaintiff for only a proportionate share of damages
 Apportionment of damages among defendants may be done on the basis of causation where the harm to plaintiff is capable of division (i.e. where each defendant has caused only a separable part of the plaintiff’s injuries)
o If there are 2 human, or 1 human & 1 natural cause of harm: the negligent human known should be held liable

Question 139

Cause in Fact: Indeterminate Causes

Answer 139

Alternative Liability
General Rule
Loss of Chance of Survival

Question 140

Cause in Fact: Indeterminate Causes: Alternative Liability

Answer 140

when one or the other party is the cause of the injury to the plaintiff, but NOT BOTH, if neither defendant was held liable it would be unfair to the plaintiff to let two negligent parties off the hook
 If defendant cannot prove by a preponderance of the evidence that they were not the cause, then they can both be found liable
 The more parties, the less the probability that any particular party was the cause

Question 141

Cause in Fact: Indeterminate Causes: General Rule

Answer 141

you have to identify which defendant caused the injury

Question 142

Cause in Fact: Indeterminate Causes: General Rule: Market Share Liability

Answer 142

When there are two or more negligent defendants but only one was the cause in fact of plaintiff’s harm and the plaintiff cannot identify which defendant caused the harm, the burden of proof of causation shifts to the defendant to prove that they were not the cause
• joint defendants must have a significant market share
• Plaintiff proved all parties were negligent but could not prove causation (which defendant caused the injury)

Question 143

Cause in Fact: Indeterminate Causes: General Rule: Market Share Liability Theory

Answer 143

measures the likelihood that any defendant was the one who caused the injury
o % of the market is the probability that any one of the multiple defendants was the one who caused the harm to the plaintiff
o plaintiff has to join in the action by bringing together defendants whose total market share added together is a substantial share of the market
 this is so the likelihood that one of the defendants is liable is higher than not
 it avoids finding a defendant liable who most likely was not the cause
o from there, the burden of proof is shifted to each defendant to prove they were not the cause
o each defendant is liable for the % of the market they own
 it also dictates the amount of damages each defendant owes and gives the probability of the odds that each defendant is liable

Question 144

Cause in Fact: Indeterminate Causes: General Rule: Market Share Liability Theory: Limitations on Recovery

Answer 144

 product needs to be generic/fungible/each unit identical to others
 plaintiff has to prove each defendant was a tortfeasor
 plaintiff has to join a substantial share of the market before the court

Question 145

Cause in Fact: Indeterminate Causes: Loss of Chance of Survival

Answer 145

courts are split on this
 Majority- a plaintiff who establishes that but for the defendant’s negligence, the decedent had a 51% (more probable than not) chance of survival, can recover.
• on the other hand, a plaintiff who establishes that but for the defendant’s negligence, the decedent had a 49% chance of survival, plaintiff recovers nothing
 Minority- an issue of loss of chance survival may go to the jury if the defendants deprived the decedents of a significant chance to survive and recover

Question 146

Cause in Fact: Indeterminate Causes: Loss of Chance of Survival: Damages Calculated: Types of Damages that can be Recovered

Answer 146

• Types of damages that can be recovered:
o Lost earnings and additional medical expenses
o You do not necessarily get 100% of the damages (not a total recovery) but 100% of the damages you can recover
o Does not work where injury has not occurred yet
• just because something may be a cause in fact, does not automatically make it a proximate cause

Question 147

Proximate Cause (Scope of Liability): Rule

Answer 147

Proximate cause exists if there is a sufficiently close relationship between the defendant’s negligent conduct and the plaintiff’s injury or harm.

Question 148

Proximate Cause (Scope of Liability): General Notes

Answer 148

o Relationship must be close enough between defendant’s negligence and the plaintiff’s injury that the court will believe it is just or useful to impose liability
o Must first determine that defendant is negligent (breached their duty) and then that there was a sufficient relationship between the negligence and the harm
o It is a doctrine of policy and fairness
o Harm that comes from a risk different than the harm that was a “but-for” cause, resulting from the negligence
o Note - Exam: the proximate cause issue may not arise in some cases; e.g. if someone runs a red light and rams into a car, he is liable for negligence because this is the very foreseeable result or risk that made the defendant’s conduct negligent in the first place, so proximate cause not a relevant issue to discuss here

Question 149

Proximate Cause (Scope of Liability): Intervening Cause

Answer 149

an independent act that occurs after the defendant’s negligent conduct but before the plaintiff’s injury (not a preexisting condition)

Question 150

Proximate Cause (Scope of Liability): Intervening Cause: Superseding Cause

Answer 150

If the intervening cause breaks the chain of causation between the defendant’s negligent conduct and the plaintiff’s injury, it is a superseding cause
o All superseding causes are intervening causes but not all intervening causes are superseding

Question 151

Proximate Cause (Scope of Liability): Intervening Cause: Superseding Cause: Intervening acts that do not break the chain of causation:

Answer 151

 Criminal acts that the negligent actor could have reasonably foreseen/intentional or deliberate acts of a third party
• Rule: The act of a third person intervening & contributing a condition necessary to the injurious effect of the original negligence, will not excuse the first wrongdoer, if such act ought to have been foreseen
 Foreseeable negligent acts of a third party (negligence is generally foreseeable)
 An intervening plaintiff acting in good faith to minimize the risk from defendant’s negligent conduct

Question 152

Proximate Cause (Scope of Liability): Intervening Cause: Rescuer Doctrine

Answer 152

The negligent actor owes a duty and is liable to the injured person’s rescuer, just as he is liable to the injured, so long as the rescuer does not act rashly or recklessly (it’s foreseeable someone will try and rescue someone imperiled by defendant’s negligence - “danger invites rescue”)

Question 153

Proximate Cause (Scope of Liability): Direct Causation

Answer 153

requires the plaintiff’s injury to be a direct result of the defendant’s negligent conduct without any superseding acts

Question 154

Proximate Cause (Scope of Liability): Foreseeable Causation

Answer 154

a negligent defendant is the proximate cause for all the general kinds of harm that he should have reasonably foreseen as a risk of his conduct (does not have to be the first immediate cause before the harm happens)
o Rule: proximate cause exists if defendant’s negligence caused harm IF BUT ONLY IF the particular type of injury to plaintiff was foreseeable to the reasonable person
 Extent of harm need not be foreseeable
 Manner/Method in which foreseeable harm occurs need not be foreseeable (need not foresee the way/chain of events that lead to the harm)
o Note: Only the general nature of the harm needs to be foreseeable (ex. burning- general type, 3rd degree- extent)

Question 155

Proximate Cause (Scope of Liability): Foreseeable Causation: Sub Rules

Answer 155

Rescue

Third Party

Question 156

Proximate Cause (Scope of Liability): Foreseeable Causation: Sub Rules: Rescue

Answer 156

A tortfeasor is liable to everyone injured in reasonable rescue attempt resulting from their negligent conduct
• Defendant may be liable for injuries suffered by 3rd party attempting to rescue because rescue is a foreseeable act
• If you injure someone/put them in danger, it’s foreseeable someone will rescue them
• Act of rescue- not a superseding cause
• Must be one transaction; rescue must be immediate
o If not, then the causal chain is broken

Question 157

Proximate Cause (Scope of Liability): Foreseeable Causation: Sub Rules: Third Parties

Answer 157

defendant is liable for the extent of damages caused by intervening 3rd party when their negligent conduct injures P and the injuries are worsened by foreseeable action

Question 158

Proximate Cause (Scope of Liability): Takeaway

Answer 158

 Plaintiff is going to define harm as broadly as possible- minimize the unusualness
 Defendant is going to try to define harm as narrowly as possible, arguing that they could not have possibly foreseen any of the results

Question 159

Proximate Cause (Scope of Liability): Thin Skull Rule

Answer 159

defendant is liable for aggravation of preexisting injuries or conditions.
 if defendant’s negligence causes greater extent or different harm than defendant could have foreseen because it aggravates a plaintiff’s preexisting condition- defendant is still liable for all harm
 if the kind of harm is foreseeable, the extent of harm by defendant’s negligent conduct is irrelevant and the conduct is still the proximate cause
 Defendant must “take the plaintiff as he finds him” aka: defendant is still liable even if plaintiff’s injury ends up way more serious than was anticipated
 Note: the thin skull rule only comes into play if defendant has been negligent. It does not increase the duty of care owed to a (unknown) vulnerable plaintiff

Question 160

Proximate Cause (Scope of Liability): Harm within the Risk

Answer 160

defendant’s liability for negligent conduct is limited to harms that result from the operation of the risks, or a bundle of risks, that made the conduct negligent
 No proximate cause if the risk that materialized was unrelated to the general harm that is foreseeable from that object
 A plaintiff’s breach may not be causally connected to their injuries if the breach did not increase the risk of harm occurring (the harm of the injury was not within the risk of the negligent conduct)
 With a bundle of risks, it must be determined when the risk is over
• Risk can be seen as ongoing if all consequences are related to the negligent conduct

Question 161

Proximate Cause (Scope of Liability): Unforeseeable Plaintiff Test (Palsgraf)

Answer 161

defendant is liable only to those plaintiffs who he reasonably could have foreseen would be harmed by the risks his negligent conduct created

Question 162

Proximate Cause (Scope of Liability): Unforeseeable Plaintiff Test (Palsgraf): Zone of Danger

Answer 162

dangerous area created by defendant’s negligent conduct, whether or not the risk was perceived to be foreseeable (how far the danger extends)

Question 163

Proximate Cause (Scope of Liability): Unforeseeable Plaintiff Test (Palsgraf): Majority

Answer 163

analyzed through breach of duty element; never reached proximate cause element
• Cardozo said: a duty is owed to the foreseeable plaintiffs; it is not enough that a duty was owed to another person, it must be a duty owed to that person specifically
• No duty to someone unless there is a foreseeable risk (within the scope of the risk)
• Cardozo takes foreseeability away from the jury and makes it a duty issue for the court

Question 164

Proximate Cause (Scope of Liability): Unforeseeable Plaintiff Test (Palsgraf): Dissent

Answer 164

analyzed in terms of proximate cause, with direct causation, determining that the duty element was satisfied because a defendant owes a duty of due care to all of society
• Andrews said: he does not agree that you have to have a duty to a particular plaintiff
• Restatement 3d adopted his view
• Duty exists to prevent unreasonable risk of harm to others as a whole
• There only has to be negligence towards someone
• In order to recover for proximate cause, you need direct causation
o You can recover from something unforeseeable as long as there is no superseding events
• Proximate cause is a question of public policy and the fairness of imposing liability on defendants

Question 165

Cause in Fact v Proximate Cause

Answer 165

●	Cause in Fact 
○	Prove it is a But-For Cause
○	Does not prove liability 
●	Then go to Proximate Cause- Scope of Liability (To Prove Liability)
○	Foreseeability
○	Direct causation

Question 166

Damages Rule

Answer 166

RESULT FROM A LOSS IN PROPERTY OR INJURY

Question 167

Affirmative Defenses to Negligence Rule

Answer 167

CONDUCT OF PLAINTIFF THAT MAY CONSTITUTE A DEFENSE EVEN WHEN DEFENDANT MAY BE LIABLE OF NEGLIGENCE

Question 168

Affirmative Defenses to Negligence

Answer 168

Contributory Negligence by Plaintiff
Comparative Negligence
Assumption of Risk
Implied Assumption of Risk

Question 169

Affirmative Defenses to Negligence: Contributory Negligence by Plaintiff

Answer 169

conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection and is a legally contributing cause to his injury
o Plaintiff’s negligence must be both cause in fact and proximate cause
 Plaintiff’s negligence must still be a harm within the risk
o Not a defense to intentional torts and generally not to recklessness
o Refers to plaintiff’s negligence that is both a cause in fact and proximate cause of plaintiff’s injury
o Just because plaintiff’s negligence was the cause does not mean defendants cannot be the cause too
o Defendant has the burden of proof on plaintiff’s negligence and the causal relation of that negligence
o Plaintiff was barred completely at common law if he was found contributorily negligent, it was complete defense for the defendant (likely not summary judgement for D, ends up being a jury issue)
 It was thought to be too hard to apportion loss, so the loss must fall on one party- did not want to give the negligent plaintiff 100% recovery when he was proven responsible for some
o Plaintiff’s negligence is analyzed in the same way as defendant: under the reasonably prudent person objective standard

Question 170

Affirmative Defenses to Negligence: Contributory Negligence by Plaintiff: If defendant violates a statute, does that statutory violation (negligence per se) mean that defendant cannot raise the defense of contributory negligence?

Answer 170

YES: if statute is found to establish a general standard of reasonable care
 NO: special kinds of statutes result in absolute protection & banning contributory negligence

Question 171

Affirmative Defenses to Negligence: Contributory Negligence by Plaintiff: Two Issues

Answer 171

 Was plaintiff negligent?

 Did plaintiff’s negligence causally contribute to injury?

Question 172

Affirmative Defenses to Negligence: Contributory Negligence by Plaintiff: Belt Defense

Answer 172

A plaintiff’s failure to wear a seatbelt is usually not contributory negligence because the absence of a fastened seatbelt did not contribute to the accident itself
 As a practical matter, plaintiff’s contributory negligence cannot occur before defendant’s negligence

Question 173

Affirmative Defenses to Negligence: Contributory Negligence by Plaintiff: Exception: Last Clear Chance Doctrine:

Answer 173

the party who has the last clear chance of avoiding that accident, notwithstanding the negligence of the other, is considered solely responsible
 this doctrine will bar a defendant from raising the defense of contributory negligence
 when the plaintiff, through his own negligence, has gotten into a helpless position and the defendant, after becoming aware of the plaintiff’s helpless position, fails to exercise reasonable care to avoid injuring the plaintiff, the plaintiff can recover all damages
 this is abolished in comparative negligence jurisdictions because there is no need when damages can be apportioned

Question 174

Affirmative Defenses to Negligence: Comparative Negligence

Answer 174

used by most states rather than contributory negligence
o What is it? Apportions plaintiff’s damages relative to his negligent contribution to the accident
 Plaintiff and defendant’s negligence is compared
 Plaintiff reward is reduced depending on their % of negligence
 Assesses liability in proportion to fault. Plaintiff’s recovery is the amount that the defendant is responsible for his injury

Question 175

Affirmative Defenses to Negligence: Comparative Negligence: Why adopt this standard?

Answer 175

 Fairness- under a regime of contributory negligence, an only slightly negligent plaintiff was barred from any recovery
 Logic- each party should be responsible for the harm that they are responsible for
 Practical experience- juries are already practicing a form of comparative negligence by finding for only slightly negligent plaintiffs.

Question 176

Affirmative Defenses to Negligence: Comparative Negligence: Pure Form

Answer 176

apportions liability on a pure percent basis of damage for which you caused regardless of if the plaintiff caused over 50%. (ex. if P caused 75% of damages, they recover 25% of damages)

Question 177

Affirmative Defenses to Negligence: Comparative Negligence: Modified Form

Answer 177

(majority of states use one of these forms)- apportions liability based on fault up to the point where the plaintiff’s negligence is equal to or greater than the defendant’s negligence

Question 178

Affirmative Defenses to Negligence: Comparative Negligence: Modified Form: Greater Fault Bar System

Answer 178

plaintiff may only recover if their negligence is less than or equal to the defendant’s (plaintiff’s negligence has to be < 50%)
• Plaintiff is not barred if 50%, barred at 51%

Question 179

Affirmative Defenses to Negligence: Comparative Negligence: Modified Form: Equal Fault Bar System

Answer 179

plaintiff may only recover if their negligence is less than the defendant’s (plaintiff’s negligence < 50%)
• Plaintiff is barred if her % negligence equals or exceeds defendants (50% bar)

Question 180

Affirmative Defenses to Negligence: Comparative Negligence: Modified Form: Examples: A, who is 10% negligent, suffers $10,000; B, who is 90% negligent, suffers no damage

Answer 180

o Pure: A recovers $9,000 (90% of her damages)

o EFB and GFB: A recovers $9,000

Question 181

Affirmative Defenses to Negligence: Comparative Negligence: Modified Form: Examples: A, who is 30% negligent, suffers $2,000; B, who is 70% negligent, suffers $8,000

Answer 181

o Pure: A recovers $1,400 (70% of damages), B recovers $2,400 (30% of damages)
o EFB and GFB: A recovers $1,400; B recovers nothing

Question 182

Affirmative Defenses to Negligence: Comparative Negligence: Modified Form: Examples: A and B are equally negligent; A suffers $10,000 damages, while B suffers no damage

Answer 182

o Pure: A recovers $5,000
o GFB: A recovers $5,000
o EFG: A recovers $0

Question 183

Affirmative Defenses to Negligence: Assumption of Risk: Traditional Assumption of Risk Elements

Answer 183

(a) Plaintiff must know of specific risk
(b) Plaintiff must understand/appreciate the specific risk that causes the harm.
(c) Plaintiff must voluntarily encounter risk (Marshall v. Ranne where P was hurt by D’s boar but risk was not voluntary b/c P either had to face the danger or surrender his rights to leave his home)
(d) (Under all the circumstances, plaintiff consents to affirmative risk) – Only some courts hold this

Question 184

Affirmative Defenses to Negligence: Assumption of Risk: A subjective defense:

Answer 184

Not would a reasonable person know of the risk, but whether this person knew in this instance?

Question 185

Affirmative Defenses to Negligence: Assumption of Risk

Answer 185

In theory, P must consent, but traditional assumption of the risk has been applied as a matter of law to situations like spectators at baseball games (apply Hand formula to putting nets up to impeding spectators’ enjoyment/thrill of seeing open filed)

Question 186

Affirmative Defenses to Negligence: Implied Assumption of Risk

Answer 186

is a defense that bars recovery when the plaintiff knows of the risk, understands and appreciates the nature of the risk, and voluntarily encounters the risk

Question 187

Affirmative Defenses to Negligence: Implied Assumption of Risk: Volenti Non Fit Injuria

Answer 187

to the willing no harm is suffered; one who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary

Question 188

Affirmative Defenses to Negligence: Implied Assumption of Risk: Volenti Non Fit Injuria: Primary Assumption of Risk

Answer 188

• Actually, not an affirmative defense, but a failure of plaintiff to make out his prima facie case of negligence because the defendant either (a) had no duty or (b) did not breach the duty he had
• A plaintiff who cannot prove that the defendant owed her a duty of care or breached that duty cannot recover
• Plaintiff engages in an activity with a knowledge that it entails certain risks by its inherent nature and that it cannot be conducted without risk of some injury
o EG: Horseback riding, ice skating rink, amusement park ride, rock climbing
• By choosing to engage in inherently risky activity, they assume the risk of injury, D not liable or negligent
• It is accurate to say P assumed the risk whether or not he was at fault.
• If P can prove D owed and breached a duty of care, then P is said to “negate” primary assumption of risk, and P potentially can recover.

Question 189

Affirmative Defenses to Negligence: Implied Assumption of Risk: Volenti Non Fit Injuria: Secondary Assumption of Risk

Answer 189

(is objective)
• The true affirmative defense where defendant has been negligent by breaching the standard of due care by creating an unreasonable risk, and plaintiff has either made an unreasonable or reasonable choice to encounter the risk, anyway
o Ex: D gives P his car, she notices car swerves to left while braking, drives anyway, crashes (D negligent for lending messed up car, P negligent for driving in face of obvious malfunction)
o D waxes part of floor while open for biz, P sees wet floor, but anxious to get food, rushes across the floor and falls
• A plaintiff who has proved that the defendant breached a duty owed, but knowingly and voluntarily encountered the risk created cannot recover
• It is incorrect to say P assumed the risk whether or not he was at fault.
• If P does prove that the duty was owe and breached, this defense is still available.
• D’s argument: P’s free choice to encounter the negligently created risk should bar her
o Policy: Individualistic common law held P, by knowingly encountering a danger created by D’s neg., “assumed the risk” of resulting injury and thus barred

Question 190

Affirmative Defenses to Negligence: Implied Assumption of Risk: Can have assumption of risk alone without contributory negligence

Answer 190

(if P sees a slippery sidewalk as she walks into the mall but decides to walk over it carefully and falls rather than go another way)

Question 191

Affirmative Defenses to Negligence: Implied Assumption of Risk: can have contributory negligence without assumption of risk

Answer 191

(P doesn’t see ice but an RPP would have and decides to unnecessarily run in the mall when there is low temperatures)

Question 192

Affirmative Defenses to Negligence: Implied Assumption of Risk: can have contributory negligence AND assumption of risk

Answer 192

(P sees ice and runs across it unnecessarily). BUT it can be argued that D owed P (as a business invitee a duty to remedy the dangerous condition so D breached that duty of care toward P i.e., primary assumption of risk is negated, and P would not be barred by assumption of risk.

Question 193

Affirmative Defenses to Negligence: Implied Assumption of Risk: Elements of Traditional Approach

Answer 193

(subjectively assessed, relative to the specific plaintiff)
 The plaintiff must know of the risk
 The plaintiff must appreciate and understand the risk
 The plaintiff must have knowledge of the specific risk involved
 The plaintiff’s engagement in the activity must be voluntary

Question 194

Affirmative Defenses to Negligence: Implied Assumption of Risk: Primary Assumption of Risk

Answer 194

A plaintiff who cannot prove that the defendant owed her a duty of care or breached that duty cannot recover.

Question 195

Affirmative Defenses to Negligence: Implied Assumption of Risk: Secondary Assumption of Risk

Answer 195

A plaintiff who has proved that the defendant breached a duty owed, but knowingly and voluntarily encountered the risk created cannot recover.

Question 196

Affirmative Defenses to Negligence: Implied Assumption of Risk: Example: There is an icy walkway with a sign posted that says, “Be careful, icy.” The plaintiff sees and reads the sign but walks across the walkway anyway.

Answer 196

 Traditional Approach: The plaintiff is barred from recovery due to the elements above.
 Primary Assumption of Risk: Even though the risk is obvious with the warning sign, there may be a higher duty to protect against the known risk.

Question 197

Affirmative Defenses to Negligence: Contributory Negligence and Assumption of Risk Compared Example

Answer 197

Assumption of Risk: There is an icy walkway, you see it, you walk across it
Contributory Negligence: There is any icy walkway, you don’t see it, you run across it
Both: There is any icy walkway, you see it, you run across it

Question 198

Strict Liability Definition and Rule

Answer 198

• Liability without fault
• Rule: One who carries out an abnormally dangerous activity is subject to liability for harm to the person, land, or chattels resulting from the activity, although he has exercised the utmost care to prevent the harm. This strict liability is limited to the kind of harm which makes the activity abnormally dangerous.

Question 199

Strict Liability: Factors to be balanced to determine if an activity is abnormally dangerous:

Answer 199

 Existence of a high degree of risk of harm to the person, land, or chattels of others
 Likelihood that the harm that results will be great
 Inability to eliminate the risk by the exercise of reasonable care
 Extent to which the activity is not a matter or common usage
• Common usage of activities has been broadened, resulting in less strict liability
 Inappropriateness of the activity to the place where it is carried on
 Extent to which its value to the community is outweighed by its dangerous attributes

Question 200

Strict Liability: One carrying on an abnormally dangerous activity is subject to strict liability for the resulting harm, although it is caused by the un-expectable

Answer 200

 Innocent, negligent, or reckless conduct of a third person, or
 Action of an animal, or
 Operation of a force of nature

Question 201

Defenses to Strict Liability

Answer 201

Assumption of Risk
Proximate Cause
Contributory Negligence
Comparative Responsibility

Question 202

Defenses to Strict Liability: Assumption of Risk

Answer 202

The plaintiff’s assumption of the risk of harm from an abnormally dangerous activity bars his recovery for the harm.

Question 203

Defenses to Strict Liability: Proximate Cause

Answer 203

This strict liability is limited to the kind of harm which makes the activity abnormally dangerous.

Question 204

Defenses to Strict Liability: Contributory Negligence

Answer 204

Generally, not a defense to strict liability.
 However, there is a defense to strict liability if the plaintiff knowingly and unreasonably subjected himself to the risk of harm from the activity.

Question 205

Defenses to Strict Liability: Comparative Responsibility

Answer 205

If the plaintiff has been contributorily negligent in failing to take reasonable precautions, the plaintiff’s recovery in a strict liability claim for physical or emotional harm is reduced in accordance with the share of comparative responsibility assigned to the plaintiff.

Question 206

Vicarious Liability General Rule

Answer 206

A master is liable for the torts committed by his servants when the tort is committed within the scope of the employment, serving a purpose of the master.

Question 207

Vicarious Liability: Foreseeability Rule

Answer 207

Vicarious liability should be imposed on the master when the risks imposed by the servants were foreseeable.

Question 208

Vicarious Liability: Frolic vs. Detour Test:

Answer 208

o There is vicarious liability for brief detours taken from work
 Example: Deliveryman commits a tort while traveling a few blocks from his route
o There is no vicarious liability for “frolicking”
 Example: Deliveryman commits a tort while traveling several miles from his route

Question 209

Vicarious Liability: Independent Contractors

Answer 209

Generally, there is no vicarious liability for torts committed by independent contractors.
o Must ask:
 Who has control over the details of the work?
 How are they getting paid?
 Who has the right to fire the employees?
o Exception: There is vicarious liability if the independent contractor is hired for unusually dangerous activities where there is a special risk due to the way the job is performed.

Question 210

The traditional defense of assumption of risk requires that the plaintiff

Answer 210

(1) know of the specific risk that results in her injury, (2) understand (appreciate) the nature of the risk, (3) voluntarily encounter the risk, and (some courts would add) that (4) plaintiff’s conduct under all the circumstances indicates that she consents to relieve defendant of the duty to protect her
• If plaintiff both sees the ice & unnecessarily runs across it, she may have both assumed the risk & been contributorily negligent.