Duty
Default- 3 Factors Court Uses to Determine if Duty Exists
1. the relationship between the parties
2. reasonable foreseeability of harm
3. public policy considerations
Default test for breach
Learned Hand test
what is the default test?
But-for
what are the two tests for proximate cause?
foreseeability and direct consequences
Describe the theories included in NIED
1. Impact theory: duty exists if there was physical impact that doesn't cause physical injury
2. Zone of Danger Theory: duty exists if P was in immediate area of physical danger
3. Dillon Theory: duty exists if (1) P was near the scene of accident, (2) sensory and contemporaneous observance of the accident, and (3) close relationship between P and person who accident happened to
Duty when the plaintiff is a trespasser
what is no duty owed?
When can RIL be used?
(1) occurrence is one that doesn't usually happen unless there's some unreasonable conduct
(2)defendant has exclusive control of instrumentality
List alternatives to but-for causation test
Market share liability, lost chance of recovery (med mal only), future injuries, alternative liability
describe eggshell plaintiff
D takes P as they are
Majority Rule for Economic Loss doctrine
no duty
is there a duty owed by a landowner to protect invitee/licensee from a criminal act by a third party?
(include default and exceptions)
Default - no duty to 3rd parties
exceptions - foreseeability (prior to similar incidents, totality of circumstances)
Name all possible steps to determine if D breached
Learned Hand, negligence per se, custom, accepted practice, RIL, medical malpractice
what test is need for multiple sufficient causes?
substantial factor test
If an intervening act is foreseeable, does proximate exist?
proximate cause still exists
describe duty, med mal, and injury of wrongful pregnancy
Duty: Yes
Med mal: in sterilization
Injury: healthy baby that P did not want
Is there a duty to help, aid, or rescue another?
(include exceptions)
No duty UNLESS there is a special relationship or duty is voluntarily assumed
Requirements needed for negligence per se
(1) statute must be specific to what is required or prohibited
(2) P must be member of class statutes was designed to protect
(3) harm that occurred must be type statute was intended to prevent
describe alternative liability
two actors acted with the intent to harm the P, and there's no way of knowing which one actually caused the particular harm
if an intervening act is unforeseeable, does proximate cause exist?
it is a superseding cause and negates proximate cause
describe duty, med mal, and injury in wrongful birth
Duty: Yes
Med mal: failure to disclose defects
Injury: birth of baby w/defects and loss of chance to abort
is there a duty to control a 3rd party to protect a plaintiff?
(include exceptions)
No duty UNLESS
there is a special relationship
Describe components of Learned Hand test
B< PL
Burden = burden of prevention or avoidance
P = probability of loss
L = severity of injury
describe the majority and minority rules for lost chance of recovery
Majority: lost chance of recovery - but for the malpractice, would P still have a lost chance of surviving? (if no, Dr pays damages for % of survival before med mal)
Minority: all or nothing - P comes in with 40% chance of surviving before malpractice, then dies, then she can’t recover because more likely than not death was inevitable
describe direct consequences test
proximate cause exists if there's a direct relationship between D's act and injury
describe duty, med mal, and injury in wrongful life
Duty: no
Med mal: failure to disclose defects
Injury: being born