Prima Facie Negligence Elements

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					                                          Secret Weapon: Torts

                                                             Negligent Infliction of Emotional Distress (CA)
                      DUTY                                       Direct Victims - Recovery for all victims of
                                                                     reasonably foreseeable harm; no physical
Duty (Palsgraf)                                                      manifestion required.
     Maj: Cardozo: “the risk reasonably to be
                                                                 Bystanders (Thing v. La Chusa) - Must be
        foreseen defines the duty to be obeyed.”                     present at site of accident and aware of
     Min: Andrews: a duty owed to one is a duty
                                                                     harm being caused and be shocked by the
        owed to all                                                  harm to a close relative.
Special Duties (COLA-APE)                                                         BREACH
    Control 3rd Persons (Kids, etc.)
    Owner of Land                                           Reasonably Prudent Pers. – Minimum Std. of Care
    Lessee/Vendee                                           RELEVANT ELEMENTS FOR PROVING BREACH:
    Auto Driver                                                  Foreseeability,
                                                                  Likelihood And Severity Of Harm,
       Aid Others                                                Cost To Δ To Avoid The Harm, And
       Prenatal Injuries                                         Social Value Of Δ's Activity.
       Negligent Emotional Distress
                                                             Negligence Per Se – Establishes Duty & Breach
Owner of Land
    No duty to π outside  land                             Statutory Violations
    Duty to inspect artificial condition abutting            EVIDENTIARY VALUE:
       land (excavation ditch)                                    Maj: Negligence Per Se (Duty + Breach)
    Duty to warn if π presence & dangerous                       Min (CA): Rebuttable Presumption of
       condition are known (Laube v. Stevenson;                      Negligence
       Rowland v. Christensen)                                    Min 2: Mere evidence of negligence
                                                              TEST:
Attractive Nuisance Doctrine                                      Is the statute relative to due care?
     Knowledge that children will trespass                       Does it define a clear standard of conduct?
     Condition is dangerous to children                          Is it designed to protect a particular class of
     Children would not realize the risk                            people, of which the π is a member?
     Danger outweighs burden of elimination                      Is it designed to prevent the type of injury
                                                                     actually suffered by the π?
Duty to Auto Driver
     If passenger paid $ as and invitee                     Res Ipsa Loquitur – Establishes Breach & Cause
     If no $ paid, then guest & must warn & RPP              EVIDENTIARY VALUE:
     Guest statutes – if no $ paid, no liability                 Maj: Sends Case to Jury
        unless wanton / reckless                                  Min (CA): Rebuttable Presumption of
Duty to Aid Others                                                Min 2: Mere inference of negligence
     Innkeeper’s duty to guest                               TEST:
     Common carrier to customer                                  Accident normally wouldn’t occur w/out
     Jailer to prisoner in peril                                    negligence- “probably negligence”
     Where  action caused π’s peril                              had exclusive control of injury causing
     Good Samaritan not liable unless reckless                      instrument—“probably ”
                                                                   did NOT contribute to accident – no
Pre-Natal Injuries                                                   contributory negligence.
     Maj: Duty of Care to viable fetus                           Calif: Exclusive control not required in
     Min: Duty extends to non-viable fetus; split in                medical context. (Ybarra v Spanguard)
        authority over stillborn fetus:

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                                             Secret Weapon: Torts

                CAUSE-IN-FACT                                Theories
                                                                 DIRECT CAUSES: if D was negligent, he was
“But For”                                                            liable for all consequences directly caused.
    “But For” ’s act the event wouldn’t happen.                INTERVENING/SUPERSEDING CAUSES: “break”
                                                                     the chain of causation; there was no liability
Substantial Factor (Multiple, Independent Causes)                    if the result was brought about by an
    Based on Anderson v. Minneapolis, St. P. &                      independent intervening cause.
       S. St. M. Railroad Co. where 2 negligent                  CONCURRING CAUSE: not exculpatory; merely
       fires merged and destroyed π’s house.                         combine with D’s negligence
    Use if 2 equally likely causes and you can’t                DEPENDENT INTERVENING. The intervening
       prove “but for”                                               force arises because of Δs negligence and is
    Also can state as “greatly multiplies” chance                   foreseeable, i.e., a normal response to the
       of harm, such as unlit steps greatly                          situation. Second act would not have
       increased chance of falling in Reynolds V.                    occurred but for the 1st act.
       Texas & Pacific Railway                                   INDEPENDENT INTERVENING. The intervening
                                                                     force comes into play but is not in response
Alternative Cause (Multiple ’s, Single Cause)                       to the negligence of Δ #1.
     Based on Summers v. Tice: 2 hunters shot—
         1 hit man’s eye; don’t know which one did it;       Typical Fact Patterns on Exams
         both liable                                          TYPE 1: Rescue cases:  negligently places X in

     All ’s breached standard of care                          danger;  comes to the rescue and is injured.
     Only 1 caused injury; but π unsure which                 Generally no problem finding liability to .
     Shifts burden to  — if  can’t prove he’s                TYPE 2:  negligently creates a dangerous
         NOT responsible, then he’s liable                       situation. The danger materializes in an
     Joint & Several liability
                                                                 unexpected way.  is generally liable.
                                                                TYPE 3:  negligently injures  and then a
       PROXIMATE (LEGAL) CAUSE                                   subsequent event occurs to aggravate the
                                                                 original injury. Generally,  is liable for the
Foreseeability is the Key                                        aggravated injuries if the aggravating accident
If π's injury results directly from Δ's act or omission          was part of the normal process of rehabilitation.
(w/o intervention of any other force), and is of a kind
and extend that a reasonable person would have                  TYPE 4:  negligently creates a disaster (fire,
foreseen as being threatened by Δ's risk-creating                explosion) that threatens many people and  is
activity, then proximate cause is established.                   injured in an attempt to get away. Liability
                                                                 depends on what  did in his effort to escape and
Scope of Risk – Included in the foreseeability                   the extent to which the effort was a reaction
concept of proximate cause is the notion that the                rather than a voluntary choice.
harm must be within the scope of the risk that makes
                                                                TYPE 5:  creates a dangerous condition and X
Δ's conduct negligent.
                                                                 (a third party) injures  by intentionally causing
      If  speeds and can’t stop car in time, his
        speeding is proximate cause of harm.                     the danger to materialize.  liability depends on
                                                                 the circumstances and the kind of intentional
      But if  speeds and then a tree falls on the
                                                                 intermeddling by the third party.
        car, it’s “but for” cause but not proximate b/c
        “but for” ’s speeding, he wouldn’t have                TYPE 6:  negligently facilitates the negligent or
        been near the tree at that time.                         dangerous conduct of another.
      Proximate cause would be lacking, however,
                                                                 o    SUBTYPE A: facilitating criminal acts:
        because the risk of arriving at a specific
                                                                      intervening criminal act is usually no bar to
        location in time to have a tree fall on top of
                                                                      ’s liability
        her car is not what made her speeding

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                                                     Secret Weapon: Torts

     o     SUBTYPE B: key in the ignition cases:                                           DAMAGE
           generally,  is not liable for common law
           negligence if he leaves his keys in his car, a             Joint Tortfeasors – Multiple ’s Each 100% Liable
           thief steals it, and injures  in his getaway.             Three Ways to Get Joint Tortfeasors:
                                                                           ACTING IN CONCERT: When 1  aides,
     o     SUBTYPE C: negligently inducing dangerous
           intoxicated behavior: traditional rule (that a                     encourages another, both = liable
                                                                           INDEPENDENT ACTS CAUSING SINGLE
           tavern-keeper is not liable for ’s acts if he
                                                                              INDIVISIBLE INJURY: Can’t allocate damage
           keeps on serving  if  is noticeably
           intoxicated) is being changed.
                                                                           VICARIOUS LIABILITY: Respondeat Superior
     o     SUBTYPE D: negligent supervision of
           firearms:  has been held liable for failing to            Comparative Fault
           take precautions.                                              CA – other ’s pay settling ’s portion; joint

     o     SUBTYPE E: negligently releasing a                               liability limited to economic damages
                                                                          % ALLOCATION: Settling ’s fault as
           dangerous patient: liability is supported by
           case law.                                                        determined by Court is deducted from
                               CAUSATION                                    damages awarded; π can end up w/ less if
          1 Cause     2 or More Causes    Sequential Series y y             he settles early and award comes in higher
                                                                          CONTRIBUTION: After one  settles,
Factual   But For     Substantial Factors 1st = May be But For
                                          2nd and on =
                                                                            remaining ’s liable for entire $ amount of
                                          Intervening Must be               award still unpaid – π gets 100% no matter
                                          gross negligence by               what.
                                          the intervening parties.
                                                                          EQUITABLE INDEMNIFICATION: ’s can sue
                                          Look at Andrews
                                          dissent in Palsgraf and           other ’s and/or join other parties as co-’s
                                          the car accident                  in order to recover some dinero.
                                          example. Empirically,
                                          it can go on forever;
                                          but what about the
                                          intervening causes?                             DEFENSES
                                          The purpose is to cut
                                          of the original
                                          tortfeasor’s liability at   Assumption of Risk
                                          some politically            If the π expressly or impliedly consents to relieve the
                                          acceptable point.
                                                                      Δ of an obligation of conduct toward the π and to take
                                                                      his chances of harm from a particular risk, he is held
Legal /   Proximate   Proximate               Superseding Causes      to have assumed that risk and he is barred from
Proxim    Cause       Concurring Causes                               recovering. In a contributory negligence jurisdiction, it
Forsee                Variation #1: Any                               is a complete defense to a negligence claim that the
ability               one cause could                                 π assumed the risk of the injury.
of                    have caused this but
Harm                  they are all
                                                                      1. Express – π, in advance, has given his
(Palsg                discoverable; this is                                 express consent to relieve the Δ of an
raf)                  important if you only                                 obligation of conduct toward him, and to take
But For               have one  with
test                  deep pockets.                                         his chance of injury from a known risk arising
                                                                            from what the Δ is to do or leave undone.
                      Variation #2: No
                      single  could have
                                                                            Requires the following:
                      caused the harm;                                      A. Open And Free Bargaining;
                      but collectively they                                 B. Public Interest Is Not Involved;
                      could have.
                                                                            C. Does Not Cover Willful And Wanton Or
                                                                            Reckless Conduct
                                                                            D. Terms Must Be Know To The Π Or
                                                                            Reasonable Person In Π's Position.

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                                               Secret Weapon: Torts

     There are two basic issues involved when Δ
     asserts that π expressly assumed a risk: (1)
     whether the risk that injured π fell within the
     terms of the agreement and (2) whether the
     contract itself violates public policy and therefore
     should not be enforced.
2. Implied – π voluntarily enters into some
     relation with the Δ, with knowledge that the Δ
     will may stay at home. not protect him against
     one or more future risks that may arise from
     the relation.
Reasonable Implied Assumption of Risk
Think professional athlete. This leads to non-suit.
Unreasonable Implied Assumption of Risk
Willful assumption of risk that makes no sense;
dumb-ass maneuver.
If you take this and add in last clear chance, you
get comparative negligence. See p.203
     Requires the following:
     1. There must be a risk of harm to π caused by
          Δ's conduct or by the condition of the D's
          land or chattel;
     2. π must have actual knowledge of the
          particular risk and appreciate its magnitude;
     3. π must voluntarily choose to enter or remain
          within the area of the risk under
          circumstances that manifests his willingness
          to accept that particular risk.

Contributory Negligence

      Watch out for a question in which Δ is
conducting a clearly abnormally dangerous activity
but the injury to the π was not within the risk created
by the dangerous activity. Keep negligence in mind as
a fall-back claim if π's strict liability claim fails.

      Also, an exam fact pattern might describe
extraordinary precautions taken by Δ while engaging
in an abnormally dangerous activity. Answers that
relieve Δ from liability because of the precautions are
wrong. Remember: if it is strict liability, Δ is liable no
matter how much care was taken.

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                                                                Secret Weapon: Torts

                                                            Product Liability Theory of Recovery
                                                                          (ME SIN)
             M                           E                                  S                              I                               N
Misrepresentation            Breach of Express           Strict Products Liability
                                                                                                Implied Warranty         Negligence
(Restatement 402b)           Warranty (UCC 2-313)        (Restatement 402A)
Elements (MR. MIC)           Same as tort of             Elements                               Elements                 Elements
1. Misrepresentation of a    1.                          1.  caused the product to be          1. Warranty of           1. Duty – commercial sellers owe a
   material fact.                                           placed in the market                   Merchantability          duty of care to any foreseeable π,
                                                                                                   guarantees that          regardless of privity. Standard of
2. π must Rely on the                                    2. At the time the product left ’s       goods are fit for        Care: Manufacturer must use
   representation in using                                  control, in contained an               ordinary purposes        reasonable care in designing &
   product.                                                 UNREASONABLY                           that goods are           assembling safe product & must
3. Representation must                                      DANGEROUS DEFECT.                      used where  is a        provide necessary warnings:
   be Made by  or fairly                                3. π was hurt while using the             merchant of such         wholesalers have no duty to
   chargeable against                                       product in its intended and            goods.                   inspect but retailer must if they
   him.                                                     foreseeable manner.                                             know product is defective.
                                                                                                2. Warranty of
4. Must be Intended /                                    4.  is in the business of selling /      Fitness for a         2. Breach
   expected to reach a                                      supplying the product.                 particular purpose
                                                                                                                         3. Causation
   class of which π is a                                                                           arise if seller
   member                                                                                          recommends            4. Damage
                                                                                                   particular product
5.  must be a                                                                                     after told by buyer
   Commercial supplier of                                                                          of particular
   chattels.                                                                                       needs regardless
Intentional – requires                                                                             of whether  is
scienter                                                                                           merchant.

Negligent – requires
misrepresentation in a
business or professional
Defenses (AMC)               except any seller is        Defenses                               Defenses (MANF)          Defenses (ACC)

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                                                                  Secret Weapon: Torts

                                                              Product Liability Theory of Recovery
                                                                            (ME SIN)
            M                            E                                    S                          I                             N
Misrepresentation            Breach of Express             Strict Products Liability
                                                                                               Implied Warranty      Negligence
(Restatement 402b)           Warranty (UCC 2-313)          (Restatement 402A)
                             liable but:
1. Assumption of Risk        1. π a cohabitant &           Feasible Alternative Test           1. Misuse of Product 1. Assumption of Risk
2. Misuse of Product              guest can recover        (DOCBAT)                            2. Assumption of      2. Contributory Negligence
                                  for personal injuries.   Weigh & Balance The Following          Risk
3. Contributory                                                                                                      3. Comparative Negligence
   Negligence – NOT a        2. Extends to anyone          Factors:                            3. Not Following
   defense                      who could be               1. Danger imposed                      Instructions
                                expected to be             2. Obviousness of danger            4. Failure to
                                personally injured by      3. Cost of improved design /           Complain to Seller
                                goods.                         practicality;                      Within a
                             3. Property damage                                                   Reasonable Time
                                                           4. Benefit of product;
                                recoverable.               5. Alternative Design
                             4. Entity can sue.            6. Technology
                             Defenses                      Defenses (MAN)                                            Defenses
                             1. Same defenses as           1. Misuse of Product                                      1.      Contributory Negligence
                                tort of                    2. Assumption of Risk                                          If π caused injury & was
                                misrepresentation +
                                                           3. Not Following Instructions                                  negligent him/herself, recovery is
                             2. failure to give notice                                                                    barred. However, to avoid harsh
                                of breach                                                                                 results the following doctrines are
                             3. & inadequate                                                                              applied:
                                                                                                                          Last Clear Chance doctrine:
                                                                                                                          allows π to recover if  could
                                                                                                                          have avoided accident but did
                                                                                                                     2.      Comparative Negligence
                                                                                                                             a.   Pure – π can always

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                                                                Secret Weapon: Torts

                                                            Product Liability Theory of Recovery
                                                                          (ME SIN)
            M                            E                                  S                          I                              N
Misrepresentation            Breach of Express           Strict Products Liability
                                                                                             Implied Warranty      Negligence
(Restatement 402b)           Warranty (UCC 2-313)        (Restatement 402A)
                                                                                                                            b.   50% - π loses if fault
                                                                                                                                 equal to 
                                                                                                                            c.   50% or less: π loses if
                                                                                                                                 negligence greater than
                                                                                                                   3.       Assumption of the Risk
                                                                                                                        If π expressly/impliedly consented
                                                                                                                        to harm, recovery is barred if π:
                                                                                                                             1. Recognized &
                                                                                                                                understood the danger;
                                                                                                                             2. Voluntarily chose to
                                                                                                                                encounter it
                                                         State of the Art Defense                                  Strict Liability
                                                                                                                        1. Inherently dangerous conduct
                                                                                                                           by  against π.
                                                                                                                        2. “liability imposed for a breach
                                                                                                                           of an absolute duty t make
                                                                                                                           safe which is the actual &
                                                                                                                           proximate cause of π’s
                                                                                                                        3. Domestic animals –  only
                                                                                                                           liable if knows of animal’s
                                                                                                                           propensity for danger. Wild
                                                                                                                           animals –  strictly liable.

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                                                                Secret Weapon: Torts

                                                            Product Liability Theory of Recovery
                                                                          (ME SIN)
            M                            E                                  S                            I                              N
Misrepresentation            Breach of Express           Strict Products Liability
                                                                                               Implied Warranty      Negligence
(Restatement 402b)           Warranty (UCC 2-313)        (Restatement 402A)
                                                                                                                              Trespassers are not
                                                                                                                              protected in the absence of a
                                                                                                                              landowner’s negligence
                                                                                                                              unless the injury is inflicted by
                                                                                                                              a vicious animal.
                                                                                                                         4. Abnormally Dangerous
                                                             1. Was a safer mechanism in                             Defenses to Strict Liability
                                                                                                                         2. Assumption of risk
                                                             2. Why didn’t  use it?
                                                             3. Who did use it? (anyone?)                            Contributory negligence is a defense
                                                             4. Would use of it at that time                         only where π knew of danger &
                                                                adversely affect benefit of                          negligently caused miscarrying
                                                                product?                                             activity. Some states apply
                                                             5. Feasibility/scientific                               comparative negligence.

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