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Torts

Negligence Part 2

TermDefinition
Causation: Cause in Fact - 3rd Res. 3rd Res: Tortious conduct must be a factual cause of physical harm for liability to be imposed. Conduct is a factual cause of harm when the harm would not have occurred absent the conduct
Causation: Cause in Fact - "But For" Test - Def. But for D's conduct, would the harm have occurred?
Causation: Cause in Fact - "But For" Test - Expert Testimony Frye Test: Expert testimony is admissible only when "generally accepted" as reliable by the scientific community Daubert Rule: Rejects Frye Test; have to show the "fit" between evidence presented and the charge to be proven
Causation: Cause in Fact - "But For" Test - Other Evidences When you can't rule out other causes 1) D's neg increased chances of injury 2) Injury actually occurred Lost Chance Doctrine: P can maintain an action when the D's neg. reduced his chances of survival
Causation: Cause in Fact - Joint and Several Liability - Def. and Rule Def: Situations where injury results form more than one neg act and if you remove just one of them, accident wouldn't have occurred Rule: As long as D's act is a "but for" cause of the injury, he may be held liable
Causation: Cause in Fact - Joint and Several Liability - Damages Each joint tortfeasor is fully responsible for undivided consequences of the injury caused by his actions If we can only find one tortfeasor - he is liable for 100% of damages If we can find multiple tortfeasors - damages apportioned appropriately
Causation: Cause in Fact - Special Circumstances - Multiple Ds Part 1 1) Each of whom could have caused injury on their own "Substantial Factor" Test: Was D's neg a substantial factor contributing to injury? Rationale: Unfair to allow each D to claim it was other D's fault
Causation: Cause in Fact - Special Circumstances - Multiple Ds Part 2 2) Each of whom commit similar acts, one of which caused injury but it cannot be determined which act was the "but for" cause "Alternative Liability" Test: Burden to prove causation shifts to the D (has to prove that he is not the "but for" cause)
Causation: Cause in Fact - Special Circumstances - Market Share Liability Sindell Test: Hold the entire industry liable Elements: 1) Absence or paucity of records (less likely today) 2) Fungible (identical) harmful component 3) No fault of victim Guns, asbestos, and blood products have failed
Causation: Proximate Cause - Approaches Forward-Looking Approach: Whether the chain of events was sufficiently foreseeable/probable for D to be held liable for the ultimate cause Directness Approach: Whether any act of P, a 3rd party, or any natural event has severed the causal connection
Causation: Proximate Cause - Principles of Foreseeability 1) If injury P suffers is not the type of harm expected from D's act, P can't recover 2) If it is a foreseeable injury, D is liable to the full extent of the injury 3) D is liable for foreseeable consequences even if they occur in an unforeseeable way
Causation: Proximate Cause - Superseding/Intervening Acts Def: Acts that sever causal connection Natural Disasters Criminal Activity: That D didn't know his act would cause Rescues: D liable for P and P's rescuer when: Ds neg caused the peril or app of such Peril or app was imminent Rescuer acted reasonabl
Causation: Proximate Cause - Change of Harms Tests - Polemis As long as there is a direct relationship between act and harm, P can recover based on Ds neg Superseding acts sever causation But, foreseeability is irrelevant
Causation: Proximate Cause - Change of Harms Tests - Wagon Mound The harm to P must have been reasonably foreseeable by D Significant change of harm severs the chain of causation
Causation: Proximate Cause - Unforeseeable Plaintiff Tests (Palsgraf) Cardozo: D is liable to all Ps within reasonably foreseeable zone of harm. If P is not in zone, he can't recover Andrews: D is liable to anyone actually injured due to the neg act. As long as there is a direct relationship, P can recover
Affirmative Duties: Duty to Rescue Unless you are the cause of P's injury, no duty to rescue P Criticized by feminists Posner says this is inefficient Do have a dut to warn if you create a risk of harm
Affirmative Duties: Owners & Occupiers - Tresspassers Trespassers: No duty, UNLESS (only extends to artificial conditions likely to cause death or SBI) 1) Attractive Nuisance (Children) 2) Anticipated or Discovered Trespassers - Duty to warn of hidden, but not overt, danger
Affirmative Duties: Owners & Occupiers - Licensees Social guest; enters with D's permission Duty to warn of discovered hidden dangers
Affirmative Duties: Owners & Occupiers - Invitees Public or business invitee Duty to warn and take reasonable measures to make safe
Affirmative Duties: Gratuitous Undertakings Bailments - moving toward a standard of reasonable care
Privileges Priest-worshipper Attorney-client Exceptions: withholding info about a crime, putting lying client on stand Husband-wife Doctor-patient Tarasoff: Psych-patient priv broken if essential to avert a danger to others Journalist-informant: Shield laws
Respondeat Superior An employer is liable for whatever an employee does within the scope of his employment (not if it is a frolic or detour)
Creating a Danger: Promotional Liability Weirum Rule: D is liable if it was foreseeable that D's actions would lead to the third party's illegal actions (ex. using advertising to create scarcity, which creates panic)
Creating a Danger: Dram Shop Liability Liability of those who were alcohol to others P must prove neg by the dram shop Corp parties and social hosts usually not held liable (but could still be neg)
Created by: corey.combs