Get documents about "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
Negligence
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
negligent.
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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
separately
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
yy
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
ate
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
EXAM TIP:
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
misrepresentation
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
capacity.
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:
warning.
Last Clear Chance doctrine:
allows π to recover if could
have avoided accident but did
not.
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)
recover
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
(WWWWF)
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
injuries.”
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
Activities
1.
1. Was a safer mechanism in Defenses to Strict Liability
existence?
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.
knowledge/practicality
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