Actual Causation
What is the question that is posed when establishing actual causation?
Did the defendant's carelessness play a role in bringing about injury?
"But For" Test
What is the question that is posed when establishing proximate cause?
Was the connection between defendant's conduct and plaintiff's injury too remote to hold the defendant responsible for injury?
What two elements make up the "Zone of Danger" that is established in Palsgraff?
What is the majority view from Palsgraff? Minority?
(1) Proximity + Relationship
Majority View = Foreseeability test is a duty question
Minority View = Foreseeability test is a proximate cause question
How does negligence per se help the plaintiff's prima facie case?
What are the prima facie elements of negligence?
1. Injury (physical harm, loss of wealth, emotional distress)
2. Duty
3. Breach
4. Causation (Actual + Proximate)
How does a plantiff establish the injury and breach elements under a loss of chance claim?
(1) Injury = reduction in the victim's chances to escape death or physical injury
(2) Breach = take care NOT TO REDUCE chances for AVOIDING death or bodily harm
Define Superseding Cause.
independent/unforeseeable/extreme event that COMPLETELY relieves the original wrongdoer
What is a DRAM Shop Act? How does a superseding cause affect liability under DRAM shop?
(1) commercial liability for those who over-serve alcohol to a patron that leads to foreseeable harm
(2) No liability if there is a superseding cause
Bonus: Can you remember a case where a superseding cause was found to excuse a bar from liability under the DRAM Shop theory?
What are the two questions for analyzing whether negligence per se is applicable?
Actor is careless if, without excuse:
(1) violates statute that is designed to protect against the type of accident
(2) victim is within class of persons the statute is designed to protect
What does res ipsa loquitor do for the plantiff? Name the elements to establish.
Infers breach for plaintiff's prima facie case
(1) Injury must happen in a way that ordinarly does not occur absent careslessness
(2) Instrumentality causing injury must have been in defendant's exclusive control
(3) Injury must NOT have arisen from acts of carelessness on the part of the plaintiff
What is required by multiple necessary causes to establish actual causation?
What is required by multiple sufficient causes to establish actual causation?
(1) Establishes that the "but for" test be met by ALL defendant's
(2) Each defendant's conduct must be shown to be sufficient on its own
Define intervening act.
Subsequent event that worsens plaintiff's injury but does NOT automatically relieve original wrongdoer
What were the early test for finding proximate cause? Define them. (2)
(1) One-Leap Rule = natural and ordinary consequence (fire example from textbook)
(2) Directness = "directly caused" the injury regardless of foreseeability
T or F: if a plaintiff cannot establish negligence per se, can they still use the violation as evidence for ordinary negligence?
TRUE
What are the duties owed to a invitee, licensee, and trespasser under the traditional approach? Modern approach?
Trad. Approach =
(1) Invitee = reasonable safe premise
(2) Licensee = tell of known, hidden dangers
(3) Trespasser = no duty
Modern Approach =
(1) Invitee + Licensee = to use reasonable care for the safety of all such persons invited upon the premise
(2) Trespasser = no duty of care
(2) Market Share Liability is a type of alternative causation, list the elements to establish actual causation using it.
(1) Burden of proof shifts to the defendant to prove other defendant's, by preponderance of the evidence, cause the injury
(2) Market Share Liability =
(i) defendant's product is identical/substantially similar and harmful;
(ii) inability to identify specific tortfeasor;
(iii) Mandatory joinder of manufacturers representing a substantial market share
Walk through how to analyze proximate cause under the Scope of Risk test.
(1) Identify why the defendant's conduct was negligent
(2) Identify the risks that made the conduct unreasonable
(3) Ask whether the plaintiff's injury falls within those risk
D, a construction company, negligently leaves a large, unsecured metal beam partially obstructing a public sidewalk in a busy urban area in Richmond. The obstruction is not marked with warning signs or barriers.
Later that evening, P, a pedestrian, trips over the beam and falls into the street, suffering minor injuries. As P lies in the road, a driver (M), who is speeding and texting while driving, swerves to avoid P but instead strikes him, causing severe injuries.
Meanwhile, a crowd gathers. One bystander (B), attempting to help, moves P onto the sidewalk but does so roughly, aggravating P’s injuries. Shortly thereafter, an ambulance arrives, but due to a paramedic’s negligent failure to properly secure P during transport, P suffers additional harm.
P brings a negligence action against D, seeking recovery for all injuries.
Is D liable for P’s full extent of injuries? Analyze whether the actions of M (the driver), B (the bystander), and the paramedic constitute intervening or superseding causes.
M's conduct = intervening (danger of someone being hit after falling into street highly foreseeable) ; D still liable
B's conduct = intervening (rescue efforts are highly foreseeable) ; D still liable
Paramedic's conduct = intervening (medical negligence usually foreseeable) ; D still liable
*Bonus = What type of conduct would the paramedic have to have done to be a superseding cause?
What are some "excused violations" of negligence per se? (5)
(1) Youth or physical incapacity
(2) Reasonable efforts by defendant to comply
(3) Justified ignorance as to the existence of facts rendering the statute applicable
(4) Excessive vagueness or ambiguity in the statutory standard
(5) Compliance posing a greater danger to defendant or others than non-compliance
Define non-feasance. What type of duty arises if found?
Define misfeasance. What type of duty arises if found?
Non-feasance = doing nothing / failure to act ; special duty (if any)
Misfeasance = affirmative act that leads to injury ; general duty
(1) General = is substance capable of causing illness?
(2) Specific = was her exposure to the substance probably sufficient to have caused illness?
*Bonus = Experts are used to establish both the general and specific. Does an expert have to exclude/rule out all other possibilities of injury in order to establish specific cause?
D, a delivery driver, negligently runs a red light in downtown Richmond, Virginia, and collides with P’s car. The collision causes minor damage and no immediate physical injury to P.
However, the crash blocks traffic in the intersection. About ten minutes later, an ambulance responding to an unrelated emergency is forced to take a detour due to the blocked road. As a result of the delay, the patient in the ambulance suffers severe complications that would likely have been avoided had the ambulance arrived on time.
Separately, while P is waiting at the scene of the accident, a bystander (B), attempting to help direct traffic, negligently waves another driver forward, causing a second collision that injures P.
P and the ambulance patient both bring negligence claims against D.
For each plaintiff, is D liable under proximate causation principles?
(B.) Ambulance Patient --> D = injury arises from delay due to traffic blockage ; is this foreseeable risk of running a red light? ; likely too remote/unforeseeable as a superseding cause to satisfy proximate cause
D, a railroad employee, negligently helps a passenger carrying a package board a moving train at a station in Richmond. In doing so, D dislodges the package, which falls onto the tracks. Unknown to anyone, the package contains fireworks, which explode upon impact. The explosion causes debris to fly outward.
P1, standing 10 feet away on the platform, is struck by debris and injured. P2, standing 50 feet away, is not struck but is knocked down by the force of the blast and breaks his arm. P3, standing 200 feet away at the far end of the platform, is startled by the noise, drops a heavy suitcase on his own foot, and is injured.
All plaintiffs bring negligence claims against D. To which plaintiff's, if any, does D owe a duty of care under the "zone of danger" limitation? (Assuming that the explosion was foreseeable)
P1 = within the zone of danger, only 10 feet away
P2 = debatable
P3 = outside the zone of danger, 200 feet away ; dropping the suitcase on his foot was NOT a risk that made D's conduct negligent
A Virginia statute provides that “no person shall operate a motor vehicle on a public roadway while using a handheld mobile device.”
D, while driving through a residential neighborhood, reads and responds to a text message on his phone. At the same time, P, a pedestrian, suddenly crosses the street outside of a crosswalk. D, distracted by his phone, does not see P in time and strikes him, causing serious injuries.
P brings a negligence claim against D and seeks to rely on negligence per se based on the statute. D argues that (1) P is not within the class of persons the statute is designed to protect.
What must P establish to successfully invoke negligence per se, and how should the court rule on D’s argument?
P must establish that
(1) being hit by a car was the type of injury the statute was trying to prevent against
(2) establish that they fall into the class of victims that the statute was trying to protect (pedestrians)
D's argument that P (as a pedestrian) does not fall within the class of victims to satisfy negligence per se, is likely to fail.
What are the four common ways (that we discussed) of analyzing duty? Define them.
Hint: They do not dictate the standard of care, they are only used to establish duty under "a reasonable ordinary prudent person given X, Y, Z"
A. Superior Knowledge Rule = actor with special knowledge or skill to act commensurate with that
B. Profession/Trade Principle = an actor engaged in a profession or trade to act as a reasonable member of such profession or trade
C. Child Standard of Care = Tender Years Doctrine v. Restatement
D. Industry Custom = "which is employed by the medical profession generally"