Actual Causation Element of Negligence
It is equally likely that it was either of the two defendants who caused an injury. It is not the plaintiff's fault that they don't have evidence for which of the two it is. [actual cause analysis framework]
What is alternative causation?
An element asking about the degree to which the causal relationship between the defendant's breach and the plaintiff's injury may be too attenuated or fortuitous for liability to attach
What is proximate cause?
General rule taken from Palsgraf
What is: A defendant owes a duty of care to a plaintiff only if the plaintiff is in the zone of reasonably foreseeable harm resulting from the defendant's actions?
What is true?
If the plaintiff is at fault, they cannot recover
The three requirements for alternative causation analysis
What are a closed universe, equally likely [defendants], and not the plaintiff's fault?
The three basic tests for proximate cause, and an indication of which is the default test
Directness Test [no longer viable]
Foreseeability Test
Scope of the Risk [the queen of all tests - la reina, the one and only] ?
A statutory supplement to negligence. It stands in for duty and breach. Matt is always calling it "statutory negligence, oh baby"
What is negligence per se?
The three types of comparative fault regimes
What are contributory negligence, pure comparative negligence, and modified comparative negligence?
The plaintiff can recover as long as their percentage of fault falls below the bar to recovery provided in that state
The plaintiff can recover even when they are mostly responsible for the damages. There is no bar to recovery
What is modified comparative negligence?
What is pure comparative negligence?
When defendants are engaging in the same breach conduct. It doesn't matter if Defendant B didn't case the injury, only that he was engaging in the same breach conduct as Defendant A, and the plaintiff can't find A. [actual cause analysis framework]
What is concert of action?
What it means to be in the scope of the risk
The 5 requirements for negligence per se
What are:
- a statute or regulation regulating conduct
- a violation of that by the defendant
- the plaintiff is in the class the statute seeks to protect
- the injury is from the type of occurrence the statute contemplates
- the defendant has no excuse ?
The core concept of assumption of risk
What is "a competent plaintiff who adequately appreciates the risk of a given activity, and who voluntarily chooses to encounter risks, cannot - if those risks are realized - seek redress from the defendant on a claim that he breached a duty owed to her by exposing her to those risks"?
What are implied and express assumption of risk?
The test for a concert of action analysis?
What is but-for the concern of action of the defendants...?
Even where actual and proximate cause can be made out for two or more tortfeasors, the acts of the second may be seen as of greater significance for purposes of imposing liability, so that the tortfeasor who acted earlier in the sequence is absolved of liability
What is superseding cause?
These actions are brought by the estate for the suffering of the decedent
What are survival actions?
A contract made by one party and signed by another, with the individual signing the contract usually in a weaker position of bargaining power than the other.
A clause in a contract that prevents one party from holding the other accountable for damages related to the contract
What is an adhesion contract?
What is an exculpatory clause?
If a plaintiff is unreasonable in choosing to encounter risk, is implied assumption of risk effective
What is "No, if the plaintiff was unreasonable in choosing to encounter negligence, it is possible to recover partially, so long as she was below any relevant modified comparative fault bar"?
DAILY DOUBLE
I don't know about you
But I'm feeling _________
_____ will be _______ if
You keep _____ next to _____
What is:
I don't know about you
But I'm feeling 22
Everything will be alright if
You keep me next to you ?
Two situations where the initial tortfeasor will be absolved of liability with superseding cause
What is: because the second actor's conduct was unforeseeable from the perspective of the first, or because the fault of the second actor was somehow overwhelming?
These actions are brought by the next of kin allowing certain family members to sue for pecuniary losses flowing from the decedent's death
What are wrongful death actions?
DAILY DOUBLE
Dalisha's favorite color (If ur Dalisha, Matt's favorite color)
What is yellow? (What is green?)
A statute that requires the plaintiff to file suit within a certain amount of time after a given date (1-3 years is a typical range for torts) after the act and harm have occurred
A statute that requires the plaintiff to file suit within a certain amount of time after a given date (a sale, a date of recall, a plaintiff's reaching the age of majority) without regard to when the harm is experienced or discovered
A rule that states when the person knows or should have known about the harm, the clock for the statute of limitations starts running
A notice that triggers the need to investigate; from some piece of information the plaintiff got
A rule that signifies the clock on a negligence claim starts to run as soon as two things happen 1. The defendant acts carelessly, and 2. That act caused some harm to the plaintiff
What is a statute of limitations?
What is a statute of repose?
What is a discovery rule?
What is inquiry notice?
What is an accrual rule?