Duty
What are the two differing foreseeability concepts rules from Palsgraf?
Cardozo: Owe a duty to a particular plaintiff if that particular injury was foreseeable
Andrews: Owe a duty to everyone for all foreseeable risks
What is the foreseeability inquiry for Breach?
Was there a reasonably foreseeable risk? Need to take into account alllll of the possible foreseeable harms
What are the CIF tests? Loosely explain them all please!
But-for, overdetermined, multiple sufficient causal sets, substantial contribution to the risk, joint tortfeasers/concerted action, alternate liability
What is the general PC inquiry about?
When can you use comparative fault?
When P's culpability is >= D's
What are the 6 nonfeasance exceptions where there is a duty to wpr? (possibly 5 depending on how you categorize things)
List all of the possible circumstances to take into account in determining breach! (include which ones are circumstances and which ones are new standards of care)
Child (SOC), superior knowledge/skill, unforeseen emergency, readily apparent physical disability, industry custom, certified professional (SOC)
What can P recover for when D commits a tortious act preceding a separate harm? (Like P was gonna die in 5 days anyways but they died today because of D's neglience)
Recovery is based on the amount of time you had left but lost. If tortious act happens at the exact same time as "preceding" harm then P recovers everything
Explain foreseeability test and it's scope problem
Was P's injury a foreseeable result of D's negligence? The jury can define P's injury and the scope of harm however they want!
What are all of the defenses for negligence claims? How do you use them on the exam?
Contributory negligence (rare), comparative fault if P even if slightly maybe negligent, express assumption if stated, is there maybe implied? If express, always argue implied too! Don't forget about immunities!
When is a duty owed for 3rd party crimes and what are the various tests for it?
A duty is owed only to Invitees where the dangerous condition is a 3rd party crimes. Some Jx say it's like a licensee (if the crime is known), some jx say prior similar incidents, some say learned hand even though it's for breach (they're stupid)
Explain all of the possible effects of a violation (different types of negligence) (there are 4)
Permissible inference - the jury is permitted but not required to find breach (minority)
Prima Facie (Rebuttable Presumption) - D is automatically negligent unless they can present evidence otherwise
Negligence Per Se - negligent automatically if violate a safety statute
Negligence Per Se with exceptions - negligent automatically unless D convinces a jury that they satisfied an established exception
What do you use relative incidents statistics for? What math do you do with them?
Use them to show that D was more likely than not the cause. Only available in areas with a lot of controlled studies like toxic torts and products liability.
% harm with negligence - % harm without negligence = amount of harm caused by negligence
If amount of harm caused by negligence > harm without negligence, then negligence was more likely than not the cause
Explain the risk rule! how does it fix the scope problem from the foreseeability test?
D's liability is limited to the harms that result from the risks that made their conduct tortious in the first place
This rule defines the scope of harm for the jury
What is the Express Assumption of Risk inquiry?
Do they have a valid contract? Is the harm within the scope of the contract?
Enforceable unless D did IT, it's unenforceable by statute, or transaction involved public interest (Tunkel factors for extra points!)
What are all of the exceptions in NIED when a duty is owed and the requirements for them (if they exist)?
Zone of danger - D puts P in imminent danger of serious physical harm such that a normally sensitive person would suffer SED, actually exposed to a toxin or disease, mishandling of remains, misnotification of death, misdiagnosis of a particularly dreaded disease, Bystander - related to the injury victim by marriage or blood, is present at the scene and sees it happen (varies by jx) and suffer a reasonably normal response but more than a disinterested witness
What are two topics that jurisdictions vary on in RIL?
1. majority RIL is a permissible inference, minority it's a rebuttable presumption
2. Jx differ on whether D needs to have control of the instrumentality of harm at the time of negligence or at the time the injury occured
How would you analyze CIF on the exam? How do you choose which test to use? What process do you go through?
You're so smart! Great job!
What is the intervening cause rule?
If intervening act is foreseeable, still PC. If intervening act is unforeseeable, then it's a supervening cause and no PC
What happens if one D is insolvent? How to you calculate how much everyone pays?
Joint and Several - other D's have to pay the insolvent D's share - calculate the proportion of the insolvent D that they owe and add it to their total
Several - nothing, poor P
Modified joint and several - same as joint and several but P is included in the approtionment
List all of the special relationships in both exceptions and the custodial factors
SR btwn P and D - common carrier with passengers, innkeeper with guests, LO who holds their property open to the public and those lawfully on the land, school with students, landlord with tenants, employers with employees who are ill or helpless, co-adventurers, custodians with those in it's custody
Custodial Factors - D is in a better position to anticipate and mitigate the risks, P is particularly vulnerable and depends on D, P is expects protection from D, D's expectation of financial gain
List the majority and two minority approaches for the reasonable professional SOC
Majority: national standard Rule
Minority: Similar locality - a medical professional in a similar community under similar circumstance
Minority: strict locality - a medical professional in good standing in the community D practices
Explain loss of chance, when you use it, the math you do, and what it results in
If loss of chance > % dying unrelated, then they are a but-for cause
If % dying unrelated > loss of chance, P can recover % loss of chance of damages
Doctor's negligence cannot cut off PC. IT does cut off PC unless it's the time of harm that was foreseeable by D's conduct then there's liability
What are the two different settlement rules and how do they work?
Pro Tanto - If one D settles, the other D gets a credit in the amount that they settled for
Pro Rata - If one D settles, the other D gets a credit in their fault share amount they owed