DUTY (Inc. Special Duty)
A reasonable prudent person under the circumstances. Act the way a community is expected not as a typical/average person
Negligence Per Se
(1)D violated a statue that was intended to prevent against the harm
(2) P was of protected persons for whom that statue was intended to provide protection
"But-For" Test
But for D’s misconduct, P would not have suffered the injury
Foreseeability Test
Whether the nature of the accident and harm that occurred was within the intended scope of risk that could exist
Compensatory
make plaintiff whole (lost wages/earning capacities, medical expenses)
Child Standard
of others in like age, intelligence and experience *Exception* Child participating in an adult reserved activity that is ‘inherently dangerous’, then standard of RPS
Res Ipsa Loquitor
nature of accident suggests it was negligence.
D had exclusive control over whatever cause the accident
P lacks direct verdict evidence
Multiple Sufficient Independent Causes
causes are sufficient on their own to cause damages” as long as (1) party is negligent & could have caused damages on their own that party is liable
Substantial Factor Test
Whether the actors conduct has created a series of forces which are continuous and active operations up to the time of the harm or has created a situation harmless unless acted upon by other forces for which the actor is not responsible
Special Damages
= Economic
standard of physical disability/mental illness and higher skill?
Physical Disability = ‘RPS’ of similar disability
Mental Disability= RPS
Exceptional Skill/Knowledge = RPS + Higher Expectation
Grossly Negligent
(1) the defendant's conduct created an extreme risk of harm and
(2) the defendant was aware of the extreme risk.
Alternative Liability
Liability (all parties need to be named): causes are sufficient on their own to cause damages-aware that it was one or the other and there is no evidence to prove who did it but hold both liable and shift burden to D’s to sort it out:
***Modified Alternative Liability:***
Market Share Manufactures will be held proportionally liable in accordance with their market share in the market of the good that caused the injury
Intervening Cause
D Liable?Foreseeability?Chain of Causation
D Liable: Yes
Foreseeable: Yes
Chain of Causation: Not Broken
Comes into active operation; In producing the result; After defendant's negligent act; From a source independent of defendant's negligence.
General Damages
Damages = non-economic (no market value)
Increased Risk of Future Harm
No claims on future illness
would take away from legitimate claims on actual harm
Superseding Cause
D Liable?Foreseeability?Chain of Causation
D Liable: NO
Foreseeable: NO
Chain of Causation: Broken
D Liable: Yes
Foreseeable: Yes
Chain of Causation: Not Broken
creates a fatal kink in the causation, and no way we could have known this is foreseeable.
Wrongful Death Statue
Provides for recovery by certain statutory beneficiaries (usually immediate family)
To compensate for their losses associated with the death of their loved ones.
Ie:. Covers harm to others beginning now of the victim's death.
Damages include:
Lost earning capacity
Love support and care
Mental and emotional pain & suffering
Loss of consortium
Lost inheritance
Loss of Chance
: D’s negligence more likely than not “increased the harm” to the P or “destroyed a substantial possibility” of achieving a favorable outcome.
"Need to Know's"
Direct Test/Eggshell Plaintiff/ Shabby Millionaire
Eggshell Plaintiff Rule: a negligent tortfeasor takes his victim as he finds him
Direct Cause Test -(not used) “direct connection” between D’s negligent act and the harm to P without too many intervening causes
Shabby Millionaire Rule: liable in civil court for damages resulting from the plaintiff's loss of income—no matter how much that income was.
Survival Statutes
Claim survives for the benefit of the estate.
Claim is owned by the state of the descendent
Provided for recovery for damages suffered by decedent from time of the tort until his death.
Damages might include:
Pain and suffering
Medical expenses
Lost wages