1 ☺ Think BROADLY & OUTLINE ANSWERS ELEMENTS OF A TORT CLAIM: (1) DUTY, (2) BREACH, (3) CAUSE-IN-FACT & PROXIMATE CAUSE, (4) DAMAGES 1. DID SOMEBODY DIE? o o ☺ Think BROADLY Wrongful death—[P] can sue [D] under Grace’s wrongful death statute for past pecuniary losses, future lost earnings (if proved with reasonable certainty), value of decedent’s life, and loss of consortium (Diaz). Consortium: Marriage/Relationship: o For the loss of consortium claim, I would want to know the relationship between [P’s statutorily-specified beneficiary] and [decedent] as some jurisdictions have strict recovery requirements. ▪ If [statutorily-specified beneficiary] and [decedent] are legally married, then [statutorily-specified beneficiary] should be able to recover (Bashaway) ▪ If [statutorily-specified beneficiary] and [decedent] are not legally married, [statutorily-specified beneficiary] may still be able to recover if this jurisdiction has loosened requirements (Ratcliff) Children: o For the loss of consortium claim, I would want to know if [decedent] had/has any children as some jurisdictions do not permit children to recover for loss of consortium claims (Borer). However, if the State of Grace recognizes the deterrence benefits of letting children recover and the unique attachment of parent and child, [decedent’s child] may prevail (Campos). Grandchildren—likely barred (Prager v. Campbell County Memorial Hospital) (pg. 298) Survival statute—P can sue D under the State of Grace’s survival statute, permitting P to recover damages s/he could have obtained had P sued at the moment of her death, including her pain and suffering until time of death. Possible Emotional Distress Claim?—pre-impact terror (Beynon v. Montgomery Cablevision Ltd. Partnership, Shu-Tao Lin v. McDonnel Douglas Corp.) Mention policy—how do we know if person suffered this ED? 2. EMPLOYER/EMPLOYEE—ALWAYS ATTACH EMPLOYEE TO CLAIM: o Is [P] an employee or Independent Contractor (IC)? It is unclear whether [P] is an employee or IC, to determine this issue I would want to know [employer’s] right to control the manner and means of how [P] performs his work (Restatement of Agency §7.07(a)). If the employer has control over the means and methods of how [P] does his/her job, then [P] is an employee, and we can hold [P’s employer] vicariously liable if [P] satisfies all 3 Birkner criteria (Christensen): the conduct o (1) was of the kind the employee was hired to perform, o (2) occurred during working hours and on employer’s property, and o (3) was motivated by purpose of serving employers’ interest OUTLINE ANSWERS ☺ 2 ☺ Think BROADLY & OUTLINE ANSWERS o o o If the employer has control over only the result of the work and not the means or methods used, then [P] is an IC, and we can hold [P’s employer] vicariously liable if the elements of apparent agency are satisfied (Roessler): o Representation by the purported principal o Reliance on that representation by a third party o Change in position by the third party in reliance on that representation Can [P] sue employer directly because employer owed a non-delegable duty (Maloney) or engaged in peculiarly or inherently dangerous activity (Sullivan v. Dunham)? Can [P] sue employer directly for negligent/hiring supervision? [P] can sue [employer] for negligent/hiring supervision as employer’s [INSERT EMPLOYER’S CONDUCT] was negligent (Foster v. The Loft). To prove that [employer’s conduct] was negligent, [P] should introduce evidence that… Can [P] sue employee directly for intentional, “outrageous” conduct? [P] can sue [employee] directly for [INSERT CONDUCT] as [INSERT CONDUCT] was an intentional act/motivated by personal interests/” outrageous conduct” that [P’s employer] should not be held vicariously liable for (Clark v. Pagnan). Mention policy 🡪 Would not hold [P’s employer] vicariously liable because [P’s employer] is unlikely to have control over [P’s conduct], so this may lead to overdeterrence. 3. CAN P PROVE BREACH THROUGH FORESEEABILITY? o [P] can prove [D’s] negligence through foreseeability: In Adams, D was not found liable because P’s injury was unforeseeable, and D took all reasonable precautions to avoid injury. Here, D’s conduct is analogous to Adams because [INSERT FACTS], so the judge may decide D not liable as a matter of law. In Braun, D left wires unexposed but should’ve reasonably anticipated that the humans would come in contact with such wires, so D’s negligence was a question for the jury (Braun). Here, D could have reasonably anticipated [INSERT FACTS], so D’s negligence could also be a jury question. But, cons of approach = can feel impressionistic, fact-based, contextual 4. CAN P PROVE BREACH THROUGH COST-BENEFIT ANALYSIS (B<PL)? o [P] can prove [D’s] negligence through the Hand Formula (Caroll Towing). In proving such, [P] must price each variable to compare the costs of D’s precaution with the expected accident losses that can be prevented by adopting such precaution. Here, o B = burden of precaution (cost of implementing safety precautions) P = probability of harm (must be considered before the accident) L = costs of liability However, P should be aware of the Hand Formula’s conceptual problems: think Acme question (2013) Information Costs = high costs of obtaining reliable information in pricing B, P, and L may cost more than recovery, due to high information costs, Hand Formula judgments are frequently inaccurate Timing = determining when to price these variables is problematic because time of calculation can change the P (will be lower before accident yet higher after accident, making it susceptible to hindsight bias) OUTLINE ANSWERS ☺ 3 ☺ Think BROADLY & OUTLINE ANSWERS o Incommensurability = B, P, and L are not comparable in a common metric, making it difficult for a factfinder to make an accurate comparison among them Policy: For profit-maximizing enterprise: (n.1, p.51) When B > P*L (economically-rational defendants will not incur higher costs of prevention where P*L is lower) (Ford v. Pinto) When B <P*L (economically-rational actors will incur costs of prevention to avoid higher costs of tort judgments) 5. CAN P PROVE BREACH THROUGH REASONABLE PERSON STANDARD? o o o o o o [P] can prove [D’s] negligence through the reasonable person standard (Bethel). Here, [P] should introduce evidence that: [P] undertook conduct that [P] wasn’t trained for/qualified for Reasonable person in P’s position would have [INSERT FACTS] Reasonable Person Standard justified on grounds of: Administrative ease Concerns over fraud and deception Deterrence Community norms Jury comprehension Common Carrier Involved? As an operator of a [plane, train, automobile], [D] should be held to a heightened standard if this jurisdiction still upholds the common carrier rule (Bethel, Andrews). Policy—ensures passenger safety, adopted during Industrial Revolution to protect passengers, ensure “uber” safety Mental ability involved? Under Restatement 3d §11(c), one’s mental or emotional disability is not considered in determining whether conduct is negligent, unless the actor is a child. Thus, despite having a mental disability, the jury should be instructed on holding [P]/[D] to reasonable [INSERT FACTS] standard (Vaughn v. Menlove) (Bashi v. Wodarz). Policy 🡪 o Pros: may be hard to determine whether one is suffering from a mental disability, how do we measure mental disability? We can measure physical ailments but cannot do the same for mental. For example, we think we have a grasp on how a blind person might navigate the world differently from a non-blind person but not the same for schizophrenic person. o Cons: physically disabled people are still held to the standard of reasonableness given their disability, despite the laws’ slow pace, mental illness should be treated the same. Physical disability/Eldery involved? Under Restatement 3d §11, a physically disabled person’s conduct is negligent only if it does not conform to that of a reasonably careful person with the same disability. Here, [P]/[D]’s the jury should be instructed on holding [P]/[D]’s conduct to a reasonable [INSERT FACTS] (Roberts v. Ramsbottom). Child involved? Because [D] is a child, the jury will be instructed on holding him to the standard of a reasonable child of his/her actual age, intelligence, and experience (Restatement 3d). OUTLINE ANSWERS ☺ 4 ☺ Think BROADLY & OUTLINE ANSWERS o If child is under 5🡪 Because [D] is under five, [D] is conclusively presumed to be unable to comprehend risk to be held negligent (Nielsen). If child is over 5 🡪 Because [D] is over five, it is a question for the factfinder whether [D] is capable of comprehending risk to be held negligent (Nielsen) EXCEPTION: IS CHILD ENGAGED IN ADULT ACTIVITY? o Because [D] is a child engaged in adult activity [INSERT FACTS—think driving a car, motoring a boat, shooting a gun], the jury should be instructed on holding [D] to an adult standard (Dellwo). ▪ While children are typically judged by standards equivalent to their age, experience, and wisdom, we recognize this exception because (1) if [D] is engaged in [INSERT ADULT ACTIVITY FROM FACT PATTERN], he is capable of understanding his actions and (2) reasonable adults can avoid being injured by children when they’re engaged in child-like activities, but we lack notice when a kid is behind the wheel of a car/boat. ● Note: if firearm involved, make negligent entrustment argument against the parents (Wood v. Groh). Superior Attributes involved? Under Restatement 3d §12, actors with skills or knowledge that exceed those possessed by most others can potentially be held to a heightened standard. In Miller v. Allman, the court instructed the jury on a higher standard for an emergency vehicle driver because he was a trained police officer, not a conventional driver. Here, the jury can also be instructed on holding [D] to a heightened standard because [INSERT FACTS THAT INDICATE D’S SUPERIOR ATTRIBUTES]. 6. ROLE OF JUDGE/JURY? (Goodman, Pokora) o o o o Because this claim ultimately falls on a question of… DUTY 🡪 the judge will decide Breach 🡪 the jury will decide CAUSE-IN-FACT 🡪 the jury will decide PROXIMATE CAUSE 🡪 the jury will decide DAMAGES 🡪 the jury will decide Jury: determines facts, credibility of witnesses, evaluates conduct, makes value judgments, determines breach, proximate cause, damages (see above) Judge: determines legal duties and standards, sufficiency of the evidence, jury instructions If evidence question 🡪 up to the JUDGE 7. CAN P PROVE BREACH THROUGH VIOLATION OF CUSTOM?: o [P] can prove [D’s] negligence by introducing custom as a sword (Trimarco). For the trial judge to permit this evidence to be presented, P should introduce probative evidence that: CUSTOM IS WIDESPREAD—Presenting expert testimony that the way D conducted its business/practice deviated from the customary or safer practices (potentially from competitor); disgruntled employee deposition/testimony confirming unsafe way was way things were done. Here, [P’s] situation is distinguishable from Garthe v. Rupert because [P’s] evidence proves others in the industry have developed safer techniques than [D], so the evidence will likely be admissible. CUSTOM IS SAFETY BASED (Levine)—Presenting evidence that custom was implemented for safety concerns OUTLINE ANSWERS ☺ 5 ☺ Think BROADLY & OUTLINE ANSWERS o CUSTOM IS REASONABLE UNDER ALL THE CIRCUMSTANCES (T.J. Hooper)—Presenting evidence that custom is generally safe/proxy for reasonable standard of care **MENTION IF YOU NEED MORE FACTS TO DETERMINE IF ALL/SOME OF THESE ARE MET However, [D] can rebut by introducing custom as a shield (Trimarco), presenting evidence that: Practice in question is not a custom, [INSERT EVIDENCE SUPPORTING THIS] D did not depart from customary practice Departure should be excused because: (1) D’s compliance with custom dangerous under the circumstances, or; (2) D reasonably believed his/her precautions are superior to customary precautions. 8. CAN P PROVE BREACH THROUGH STATUTES/NEGLIGENCE PER SE?: o [P] can prove [D’s] negligence through D’s violation of a statute/ordinance/regulation/order, etc. Assuming this jurisdiction upholds the majority view, [D] is negligent per se if P can show: (a) the harm resulting from D’s violation was type of harm statute was intended to prevent (DeHaen v. Rockwood); (b) P is a member of the class of person sought to be protected by the statute/ordinance/regulation (Martin v. Herzog); and This is satisfied because [INSERT FACTS] This is satisfied because [INSERT FACTS] (c) D’s violation caused P’s injury. This is satisfied because [INSERT FACTS] o o Cause-in-fact/Proximate Cause analysis required (see below) However, D can argue that the judge should excuse his statutory violation because it was: Restatement 3d §15 Emergency (Bassey) Incapacity Non-compliance safer than compliance (Tedla) 9. CAN P PROVE BREACH THROUGH CIRCUMSTANTIAL EVIDENCE?: o [P] can prove [D]’s negligence by introducing circumstantial evidence (Negri). For [P] to make out a prima facie case, the evidence must support an inference that [D] had actual/constructive notice of [INSERT FACTS FROM FACT PATTERN] and was negligent in failing to eliminate the harm. To meet its burden of production and persuasion, [P] should introduce evidence that [D] was obligated to [INSERT FACTS] (custom/statute)? [D] failed to [INSERT FACTS] [THING THAT CAUSED P’S INJURY] was present for significant period of time. OUTLINE ANSWERS ☺ 6 ☺ Think BROADLY & OUTLINE ANSWERS o If possible, direct evidence of witness testimony, video evidence, accident reconstruction PAST TRANGRESSIONS: In proving [D’s], [P] will be unable to introduce evidence of past transgressions because it is not relevant to [D’s] negligence in this particular circumstance (Moody v. Haymarket Associates). o Thus, the judge should not permit this evidence to be admitted. BUSINESS PRACTICE RULE: IS IT A SELF-SERVING BUSINESS? (“U-Pick” Farm, 2020 Exam) [P] can prove [D]’s negligence, without introducing evidence of constructive notice, under the business practice rule (Kelly v. Stop&Shop). Under the rule, [D] is found liable when his/her business provides a continuous and foreseeable risk of harm to customers. Here, [D’s] business provides such a risk because [INSERT FACTS], increasing the risk of droppage/spillage or taking patrons’ attention away from hazards on the ground. 10. CAN P INVOKE PERMISSIBLE INFERENCE OF BREACH THROUGH RES IPSA LOQUITUR (RIL)?: o Given the lack of/loss of/spoilation of evidence, [P] can establish an inference of [D’s] negligence through RIL if P can prove: (1) this type of accident doesn’t ordinarily occur in the absence of negligence; If there is no/limited evidence indicating [INSERT FACTS THAT CAUSED P’S INJURY] caused [P’s] injury, [P] must argue that this sort of thing doesn’t happen unless there has been some negligence in the way [INSERT FACTS THAT CAUSED P’S INJURY] (MacDougald). (2) the instrumentality causing the accident was in D’s executive control Here, the instrumentality causing the accident was in D’s executive control because [INSERT FACTS] o (3) injury not due to negligence on the part of the P (MacDougald v. Perry) o Think—did instrumentality change hands? (Escola) Here, [P] does not appear to be comparatively at fault for his/her injury because… If this jurisdiction upholds the majority view, P could be awarded a directed verdict/summary judgment if D fails to present rebuttal evidence and create a question of fact for the jury. (Farina) Thus, it may be a good idea for [P] to invoke this inference since the evidence behind the true explanation of P’s injury- more accessible to D, requiring D to “smoke out the evidence” to avoid liability (Ybarra). 11. MEDICAL MALPRACTICE: o Customary standard of care through expert testimony: (Sheeley) [P] can bring a medical malpractice claim against [D]. Since evidence of custom is dispositive in most med mal cases, [P] should present expert testimony from a practicing [INSERT DOCTOR OF SAME SPECIALTY AS D] in a similar or same locality as D (Sheeley). The expert’s testimony will provide the customary, standard [INSERT OUTLINE ANSWERS ☺ 7 ☺ Think BROADLY & OUTLINE ANSWERS o Did D abide by a recognized “school of thought”? o While most med mal cases require expert testimony, [P’s] case may be an exception under the common knowledge rule because the jury could interpedently presume that [INSERT D’S CONDUCT] was negligent. RIL + Med-mal o [P] can establish [D]’s negligence by introducing evidence that [D] failed to abide by a recognized school of thought. If there are multiple “schools of thought” regarding [INSERT PROCEDURE], [D] can rebut this claim by presenting evidence that s/he abided by a recognized school of thought, even in the minority, and other medical professionals abide by the same school of thought (Gala v. Hamilton). However, if [D] cannot present such evidence, the jury may find him negligent for deviating from a customary school of thought. Common knowledge rule (no expert needed) o TYPE OF PROCEDURE/CONDUCT], helping the jury determine whether [D’s conduct] was negligent. However, if [D] could present evidence that s/he followed the custom of a recognized school of thought, even if in the minority, [D] can rebut this negligence claim (Gala v. Hamilton). [P] may want to rely on a theory of RIL because her medical injury is the type that doesn’t necessarily occur without negligence. Given the context of both med mal and RIL, [P] must meet all 3 elements of RIL (see above) and present expert testimony to “bridge the gap” between the jury’s knowledge and an issue common only to experts in medical field. If this jurisdiction adopts the majority view, [P] can proceed on a RIL theory and offer expert testimony (Sides v. St. Anthony’s Medical Center.) Informed Consent (Matthies) [P] can bring a negligence claim against [D] for [D’s] failure to obtain informed consent. Physicians are required to get the patient’s permission to operate/treat, to disclose the operation/treatment’s material risks, to disclose alternative approaches and their risks and, his/her reasons for not pursuing them (Matthies). Here, [INSERT FACTS ABOUT D’S FAILURE TO CONSENT OR DISCLOSE ALTERNATIVES] Policy 🡪 Rationale for basing an informed consent action on negligence rather than battery principles is that the physician’s failure is better viewed as a breach of professional responsibility than as a nonconsensual touching (Matthies) [P] can bring a negligence claim against [D] for [D’s] failure to obtain informed consent. Informed consent supports patient autonomy, providing patient’s the opportunity to make informed choices about his/her life. Thus, under the patient rule, [D] could be found negligent for [INSERT FACTS] because a jury may find a reasonable patient in what the physician knows to be [P’s] situation would have wanted to know the material risks of [INSERT FACTS] before proceeding. However, this standard is vulnerable to hindsight bias as a patient is bound to feel that s/he wouldn’t have taken the risk that materialized. OUTLINE ANSWERS ☺ 8 ☺ Think BROADLY & OUTLINE ANSWERS o Brown v. Shyne argument: [P] can prove [D]’s negligence by holding him to the standard of [INSERT CONDUCT D DID THAT HE WAS NOT QUALIFIED FOR]. While [D] is not licensed to [INSERT CONDUCT], [P] can argue [D] should be held to a higher standard for having engaged in such conduct (Brown v. Shyne). To prevail on this claim, [P] should present evidence that a reasonable [INSERT LICENSED PERSON FOR CONDUCT D DID] would not have [INSERT D’s conduct]. o o o Raises a causation issue—would P have withheld consent to treatment if she had known of relevant risks (similar to hindsight bias issue) Note—this can apply outside the scope of med mal, may want to note that unlikely that the judge will instruct the jury on [D’s UNLICENSED TO DO CONDUCT] to avoid prejudice. Residents—(Arpin v. United States) (pg. 115) LOSS OF CHANCE? (see below) WAS P NEGLIGENT (AVOIDABLE CONSEQUENCES/MITIGAITON OF HARM)? (Fritts v. McKinne) Failure to reveal medical history or providing false information (comes in) Failure to follow doctor’s advice (comes in) Delay or failure in seeking recommended medical attention (comes in) 12. DID D HAVE AN AFFIRMATIVE DUTY TO ACT?: o In favor of individual autonomy and freedom, one does not typically owe a duty to another (baby hypo). However, [P’s] situation is an exception because: SPECIAL RELATIONSHIP (Bjerke v. Johnson, pg. 135)—common carrier, parent/custodians, doctor/patient, warden/prisoner, landlord/tenant, teacher/student, or [P] can’t protect herself and [D] has better means for doing so, or [D] has obtained an economic benefit from [P] Undertaking (see Farwell) Statutes (see Uhr). Non-negligent creation of risk Non-negligent injury o [D]’s conduct, while not negligent, created a risk of foreseeable harm to [P]. Under such duty, [D] was obligated to warn [P] of the risk’s foreseeable harms (Simonsen). [D]’s conduct, while not negligent, caused [P’s] bodily harm, making [P] helpless and in danger of further harm, so [D] is/was under a duty to prevent such further harm (Restatement §322) OR can make argument there was no duty—[D] did not owe [P] a duty of care because superior knowledge of [INSERT FACTS] without a special relationship/affirmative duty to protect, in insufficient to establish a duty of care (Harper), so D’s nonfeasance cannot be negligent. OUTLINE ANSWERS ☺ 9 ☺ Think BROADLY & OUTLINE ANSWERS 13. DID D PARTAKE IN A COMMON UNDERTAKING? o [P] can sue [D] for negligence, alleging [D] owed [P] a duty because they were social companions, and implicit in this undertaking is that one will assist the other when s/he is in peril if [D] can do so without endangering himself (Farwell). o [P] can sue [D] for negligence, alleging [D] owed [P] a duty because: [D] took charge of [P] while [P] was helpless, and [D] failed to exercise reasonable care to secure [P]’s safety (Restatement 2d §324(a)) [D] discontinued his aid or protection by leaving [P] in a worse position than when [D] took charge of [P] (Restatement 2d §324(b)). o However, I would want to know if the State of Grace enforces Good Samaritan Statutes. If so, [P’s] claim may be moot because [D] would be precluded from being held liable for undertaking a rescue. o Note: an undertaking giving rise to a duty may be a factual circumstance to be determined by the jury, taking the duty question away from the judge. o o If want to make this argument with no duty 🡪 Ronald M. v White (pg. 141) o Other relevant cases—Randi W, Fox v. Amazon, Mixon v. Dobbs Houses (pg. 142) (failed to tell about birth) If designated driver/reliance on a DD promise (performance must begin, broken promise means no duty without performance) 🡪 White v. Sabatino (pg. 183) o NOTE HOW THIS CHANGES RULE OF JUDGE AND JURY COUNTER WITH CIVIL IMMUNITY 14. DID D MAKE A (NON-MONETARY) MISREPRESENTATION? o [P] can argue [D’s] [INSERT FACT FROM FACT PATTERN] was a misrepresentation on which [P] relied, establishing a duty owed. In Randi W, plaintiff’s school relied on defendant’s letter of recommendation in hiring Gadams. There, the court recognized a duty owed because defendant negligently provided false information on which plaintiff’s school relied, and defendant could have reasonable expected plaintiff to be put in peril by its actions (Restatement 2d §311). Here, [D] knew or should have known that [P’s] safety might depend on the accuracy of the information provided, establishing a duty owed. o If misrepresentation argument is weak, can make (weak) argument of applying Rowland factors to establish duty owed 🡪 [P] may rely on the Rowland factors to depart from the general no-duty rule: o Foreseeability of harm to π Degree of certainty that π suffered injury Closeness of connection between D’s conduct and injury Moral blame attached to D’s conduct Policy of preventing future harm Extent of the burden to D and consequences to community of imposing duty on D Availability, cost and prevalence of insurance for risk involved Also case of misrepresentation relied on-- Garcia v. Superior Court (pg. 145, 151) OUTLINE ANSWERS ☺ 10 ☺ Think BROADLY & OUTLINE ANSWERS 15. WAS D A PSYCHOTHERAPIST/PHYSICIAN AWARE OF HARM TO AN IDENTIFIABLE THIRD-PARTY? o [D] owed [P] a duty of care because [P] was reasonably at risk of harm from [D’s patient’s conduct]. In Tarasoff, the court held the special relationship between defendant and Poddar sufficiently imposed a limited duty of affirmative care upon Poddar. Here, [D and patient] were also in a special relationship because [INSERT FACTS], and [D’s knowledge of . . .] makes [P] a reasonably foreseeable victim of [patient’s conduct]. If the rationale of imposing a duty in Tarasoff was based on preventing harm, a duty should be imposed on [D] as well because [D’s] disclosure could prevent foreseeable harm. Other physician contexts (note cases) o Duty 🡪 Reisner v. Regents of the University of CA (pg. 158) Duty 🡪 Pata v. Threlekl (pg. 158) Duty 🡪 Safer v. Estate of Pack (pg. 158) However, [D] could argue imposing a duty here is too attenuated because [P] was not a foreseeable, identifiable victim (note cases): No duty🡪 Hawkins v. Pizarro (pg. 159) No duty 🡪 Thompson v. County of Alameda (pg. 160) 16.CAN P ESTABLISH DUTY THROUGH IMPLIED STATUTORY CAUSE OF ACTION? o [P] can argue [D] owed a duty of care because [INSERT STATUTE] imposes an affirmative duty upon [D] to protect others. In making this determination, [P] must establish: (1) [P] is one of the class for whose particular benefit the statute was enacted; (2) Recognition of a private right of action would promote the legislative purpose; (3) Creation of such a right would be consistent with the legislative scheme (Uhr) 17.NO DUTY BECAUSE OF “CRUSHING LIABILITY”? o While [D] played a role in creating the risk that harmed [P], the court may find no duty exists for policy reasons. In Strauss, the court refused to impose a duty because permitting recovery in those in plaintiff’s situation would violate the court’s responsibility to define an “orbit” of duty and would expose Con Ed. to enormous liability. Here, the court may find similarly because [INSERT FACTS]. o o Note: (1) privity element (but not where P fell and), (2) can make business insurer argument (pro) using Justice Meyer’s dissent Moch case (pg. 177) 18. IS D A SOCIAL HOST/ SOCIAL HOST LIABILITY INVOLVED? o o o [P] may sue [D] because [D] was a social host who enabled [INSERT DRUNK DRIVER’S NAME] conduct and [DRUNK DRIVER] ultimately injured P. However, [D] may not owe [P] a duty of care because social hosts are ill-equipped in handling the responsibilities of their guests’ alcohol consumption, and imposing this duty may deter people from gathering (Reynolds). Justice Durham dissent—“majority draws an insupportable distinction between social hosts and commercial vendors by ignoring that both are committing criminal actions when furnish alcohol to a minor.” (pg. 182) Case law supporting this—Kiriakos v. Phillips (pg. 183)—P could make counter argue applying this case if statute prohibits D serving person injuring P from being liable Dram shop acts (pg. 183, n.6)—Delta Airlines, Inc v. Townsend (pg. 184) (no duty) OUTLINE ANSWERS ☺ 11 ☺ Think BROADLY & OUTLINE ANSWERS 19. DO FACTS INVOLVE D NEGLIGENTLY ENTRUSTING DANGEROUS INSTRUMENTALTIY TO AN INCOMPETENT PARTY? o o o o o [P] may sue [D] because [D] knew or should have known entrusting [PERSON WHO INJURED P] with the [INSTRUMENTALITY] created a risk of engendering [P] (Restatement 2d §390). In Vince, the court held the evidence that defendant knew her grandnephew had no driver’s license, had failed her driver’s test several times, and abused drugs and alcohol made out a prima facie case of negligent entrustment. Here, assuming this jurisdiction upholds the Restatement view, [D’S] knowledge that [INSERT FACTS] does/does not make out a prima facie case because Note—traditional rule of negligent entrustment (An entruster incurs liability when she is the owner and has the right to control the dangerous instrumentality which causes injury to a third party.) Note Cases: West v. East Tennessee Pioneer Oil (pg. 188), Weirum v. RKO General, Inc. (pg. 189) Handguns—Wood v. Groh, Kitchen v. K-Mart (when it comes to firearms, sellers may be required to deliver them only to properly identified buyers who do not appear to be especially dangerous) Keys in the ignition statutes (n.6, p. 188)—Palma v. U.S. Industrial Fasteners, Inc. (pg. 188), Lucero v. Holbrook (pg. 188), Rushink v. Gerstheimer (pg. 86, not a typo) 20. JURISDICTION UPHOLD TRADITIONAL VIEW OF LANDOWNER LIABILITY OR UNITARY?: o o o o As a landowner, [D] owed [P] because [P] was… If this jurisdiction imposes traditional view, [P’s] status as a licensee/invitee invoked a duty to: Licensee—Duty to exercise reasonable care to protect them against both known dangers and those that would be revealed in inspection. (Carter) Invitee—Duty not to create a trap or allow concealed danger to exist on property. Landowner is under a duty to warn when he knows, or has reason to know both (1) the existence of a danger and (2) P’s presence in a place where she might encounter such danger. Duty to make safe dangers of which the possessor is aware. (Carter) But, if this jurisdiction upholds a unitary duty, [D] owes [P] a duty of reasonable care because [P] was his lawful visitor, and an entrant’s status should not determine the duty owed (Heins). Note: duty to trespassers—Duty to avoid willful and wanton misconduct. Duty of reasonable care arises once landowner has discovered trespasser’s presence on the land in circumstances that suggest he might encounter danger, landowner comes under a duty of ordinary care. Attractive nuisance—To be an attractive nuisance, there must be evidence that the landowner had reason to know that children were likely to trespass, as well as evidence that the child-plaintiff did not appreciate the risk involved (Restatement 2d §339) (Holland v. Baltimore & Ohio Railroad Co.) (pg. 194) Hypos—shopper, hotel guest, McDonalds (pg. 58 of outline) 21. CRIMINAL ACTIVITY (OF THIRD PARTY) ON D’S LAND? o [P] can sue [D] for [INSERT CRIMINAL CONDUCT] occurring on [D’s] premises. In Posecai, plaintiff was robbed on defendant’s property after shopping at defendant’s store. There, under the balancing test, the court refused to impose a duty because defendant did not possess the requisite degree of foreseeability. Here, a duty could/could not be imposed under the [INSERT TEST] because Specific Harm Rule—a landowner does not owe a duty to protect patrons from the violent acts of third parties unless he is aware of specific, imminent harm about to befall them. (Tarasoff) OUTLINE ANSWERS ☺ 12 ☺ Think BROADLY & OUTLINE ANSWERS o Similar Incidents Test— foreseeability is established by evidence of previous crimes on or near the premises. (You get one free assault, one free electrified kid). (Adams v. Bullock) Totality of the Circumstances—takes additional factors into account, such as the nature, condition, and location of the land, as well as any other relevant factual circumstances bearing on foreseeability. Balancing Test--addresses the interests of both business proprietors and their customers by balancing the foreseeability of harm against the burden of imposing a duty to protect against the criminal acts of third persons. (B < PL)—this was used in Posecai Unfairness of first person attacked/”one free tort” aspect of the rule 22. ED—RISK OF PHYSICAL INJURY TO P? (raises public policy concerns regarding indeterminate and disproportional liability (i.e. “fraud and floodgates”) o o o o o o Physical manifestation—[P] can bring an emotional distress (ED) claim against [D] because [D]’s negligence put [P] at risk of injury. While [P] is no longer required to show physical impact (Mitchell), [P] must produce evidence of some bodily harm or physical manifestation of fright resulting from a reasonable fear of injury from [D’s] conduct (Falzone). Airplane passengers—Quill v. Trans World Airlines (pg. 267) ED of victims who realize they are doomed—Shatkin v. McDonnell Douglas Corp. (pg. 267), Shu-Tao Lin v. McDonnel Douglas Corp (pg. 267), Beynon v. Montgomery Cablevision Ltd. Partnership (pg. 267) Con—we have no idea if the decedent suffered (but can attach in a survival statute claim) Zone of danger—[P] can bring an emotional distress (ED) claim against [D] because [D]’s negligence put [P] at risk of injury. In Gottshall, SCOTUS permitted plaintiff to recover because plaintiff was placed in an immediate risk of physical harm from defendant’s conduct and presented evidence of such distress manifesting. Here, [P] was also within the zone of danger because…, so to prevail on this claim [P] should present evidence that (hitting the bottle, P’s injury was manifestation of distress, etc.) Note—recovery is limited to ED resulting from negligent conduct that created risk of physical injury “Fear of”— [P] can bring an emotional distress (ED) claim against [D] because [D]’s negligence put [P] at risk of injury, and, as a result, [P] had a reasonable fear of injury. To prevail on this claim, [P] must present objective physical symptoms of ED by introducing evidence that: (Ayers) Hitting the bottle Anxiety—now taking meds? Insomnia POLICY: relevant cases (Potter v. Firestone, Ayers, Buckley) o Difficulty for judges and juries to separate valid important claims from those that are invalid or “trivial” o Threat of “unlimited and unpredictable liability” o Potential for a “flood” of comparatively unimportant or “trivial” claims (pg. 271) (think Strauss) o “But how can one determine from the external circumstances of exposure whether, or when, a claimed strong emotional reaction to an increased mortality risk is reasonable and genuine, rather than overstated—particularly when the relevant statistics themselves are uncertain. . .” (pg. 272) “Window” cases—[P] may be able to recover ED damages from [P] for the “window” of time [P] believed [INSERT FACTS]. I would need to know this jurisdiction’s proof requirements: OUTLINE ANSWERS ☺ 13 ☺ Think BROADLY & OUTLINE ANSWERS Some courts require P to show that s/he was actually in the “zone of danger”/the needle in question contained the virus, which would/would not be granted here because… Others do not impose a “zone of danger” requirement, allowing [P] to recover for the “window” of time between the event that caused her fear and from when [P’s] fear was quelled (Faya v. Almaraz). (Jones v. Howard University—pregnancy context, pg. 275-276) See Hedgepeth v. Whitman Walker Clinic (pg. 280), possibly longer than window? o Courts holds a duty to avoid NIED is recognized when the defendant has an obligation to care for π's emotional well-being or the π's emotional well-being is necessarily implicated by the nature of the defendant's undertaking to or relationship with the plaintiff, and serious emotional distress is especially likely to be caused by defendant's negligence. ▪ Apply to med mal? 23. DID D CAUSE ED WITH NO PHYSICAL HARM TO PLAINTIFF? o o o o Restatement 3d §47(b)—provides for liability when negligently inflicted serious emotional harm “occurs in the course of specified categories of activities, undertakings, or relationships in which negligent conduct is especially likely to cause serious emotional harm.” (pg. 276) Mishandling of corpse/witnessing death of family member due to D’s negligence—[P] can sue [D] for severe ED from witnessing [INSERT FACTS]. In Gammon, the court held, narrowly, that the defendant was liable because its conduct could have reasonably been expected to harm the “ordinarily sensitive person” without creating fraud/floodgates concern. Here, given the familial context of [P’s] claim, [P] should be granted the same recovery because… Note—P in Gammon did not present any medical or psychiatric attention and offered no medical evidence at trial (granted recovery), see Cochran v. Securitas Security Services (pg. 284) But see Sullvan v. Boston Gas Co., Siegel v. Ridgewells (pg. 281, n.7) Food/Compensating disgust—Bylsma v. Burger King (pg. 280) P seeking to recover ED for indirect harm (not as bystander)—[P] can bring a ED claim against [D] for indirect harm, but this is a weak claim. In Johnson, the court refused to impose a duty between defendant and plaintiff because the injury alleged was sustained by the plaintiff’s child, not plaintiff, and permitting plaintiff to recover would invite open-ended liability for indirect ED suffered by families in similar situations. Here, the court would have a similar floodgates concern because permitting [P] to recover would… Note: This is indirect harm because parents are not in the zone of danger (Gotshall), abductor was never coming to get them, so no reasonable fear of physical harm. Note cases—switched babies (Larsen v, Banner Health Systems, pg. 285), damage to property (Lubner v. City of LA, pg. 285) 24. WAS P A BYSTANDER? o [P] may bring an ED claim against [D] rooted in a bystander theory. To prevail on this claim, [P] must establish: (1) close relationship to injured; (2) physical proximity; (3) contemporaneous visibility; (4) severity of physical injury causing ED (Portee). However, jurisdictions differ on the stringency of these requirements. Here, [INSERT ELEMENT] is at issue because... If the State of Grace abides by [INSERT NOTE CASE] then [P] will be unable to recover, but if the State of Grace abides by [INSERT NOTE CASE] then [P] may be able to recover. This will come down to a discretionary decision by the judge if s/he believes [P] meets the spirit of the law. Note Cases/Factors: Close Proximity—Scherr v. Las Vegas Hilton (pg. 290, no recovery); OUTLINE ANSWERS ☺ 14 ☺ Think BROADLY & OUTLINE ANSWERS Familial Relationship—Elden v. Sheldon (pg. 290, unmarried, no recovery); Maximm Shared Services, LLC v. McGraw (pg. 291, coworkers, no recovery); Dunphy v. Gregor (fiancé, recovery, pg. 291) Sensory Perception element—Ochoa v. Superior Court (pg, 292, mother, recovery); Thing v. LaChusa (pg. 292, mother, no recovery); Entergy v. Acey (pg. 293, mother, no recovery) Note: [P] should still present evidence of physical manifestation of ED by… 25. LOSS OF CONSORTIUM CLAIM: o Consortium: Marriage/Relationship: For the loss of consortium claim, I would want to know the relationship between [P’s statutorily-specified beneficiary] and [decedent] as some jurisdictions have strict recovery requirements. o If [statutorily-specified beneficiary] and [decedent] are legally married, then [statutorily-specified beneficiary] should be able to recover (Bashaway) o If [statutorily-specified beneficiary] and [decedent] are not legally married, [statutorily-specified beneficiary] may still be able to recover if this jurisdiction has loosened requirements (Ratcliff) Children: For the loss of consortium claim, I would want to know if [decedent] had/has any children as some jurisdictions do not permit children to recover for loss of consortium claims (Borer). However, if the State of Grace recognizes the deterrence benefits of letting children recover, [decedent’s child] may prevail (Campos). 26. WAS P ECONOMICALLY HARMED? o o o [P] can bring sue [D] for economic harm. To prevail on this claim, [P] must demonstrate that [D] supplied false information and [P] foreseeably, justifiably relied upon such information (Nycal). Here, [D] had/did not have knowledge of [P] and of the specific transaction [P] was involved at the time of [D]’s misrepresentation. Thus… Can also argue for minority tests (foreseeability, near privity) Note: Beyond accountants’ cases (pg. 305, n.5) Attorney malpractice to third party—Biakanja v. Irving (pg. 308) 27. FACTS INVOLVE APPLICATION OF ECONOMIC LOSS RULE? o o o Economic Loss Rule— no general duty to avoid the unintentional infliction of economic loss” in cases where contract law governs (Eby) K is preferred because (1) forces P to figure out in advance how to manage the risks; (2) money is a complete remedy and K’s are good at allocating money; (3) Liability exposure is limited by the parties themselves EXCEPTION: Restatement 3d §4—professional is subject to liability in tort for economic loss caused by the negligent performance of an undertaking to serve a client o Failed Defense at med mal claim? GA Bar Exam—Murray v. ILG Techs., LLC (pg. 317) Data breaches—Community Bank of Trenton v. Schnuck Markets, Inc. (pg. 319) // California Consumer Privacy Act, Cal. Civil Code §1798.100 to 1798.199, provides a private right of action for data breaches that occur due to the defendant’s failure to reasonably protect person information. (pg. 319) OUTLINE ANSWERS ☺ 15 ☺ Think BROADLY & OUTLINE ANSWERS 28. WRONGFUL CONCEPTION, WRONGFUL BIRTH, WRONGFUL LIFE? o Wrongful Birth—parents not given chance to abort a wanted but unhealthy fetus. Suing D for failure to inform of risks, perform prenatal tests, or report results of tests, lack of informed consent (Matthies) Damages = costs of caring for the child, as well as ED damages Causation problem—would parents have terminated if they knew? o Wrongful Life— claim asserted by an impaired child. Claim asserted by a child suffering birth defects such as a painful and debilitating disease. Claim is not that the physician caused the disease or defect. It is rather that the physician negligently allowed the child to be born at all and that the child has a claim for the suffering he must undergo as a result. Note: NOT A CLAIM THAT DR’S NEGLIGENCE CAUSED DEFECT Problems with this claim: Most courts reject this claim owing to the compensation challenge since, as one court puts it, “what the P has ‘lost’ is not life without pain and suffering, but rather the unknowable stats of never having been born.” o See Willis v. Wu (pg. 331) (rejecting the cause of action while further opining that “even a jury collectively imbued with the wisdom of Solomon would be unable to weight the fact of being born with a defective condition against the fact of not being born at all, i.e. non-existence) o Hard to survive motion to dismiss, parents typically bring both wrongful life and wrongful birth actions o Wrongful Conception—asserts that the defendant physician was negligent in giving genetic advice or performing a medical procedure or dispensing contraceptives to prevent conception and that as a result the mother bore a child, with the added expense of child rearing Distinguished from wrongful birth because here, the pregnancy and delivery are the wrong, not the child. Does not rest on a claim that the mother had a right to terminate her pregnancy. Claim thus escapes the bar of those statutes that prohibit suits based upon the mother’s loss o opportunity for an abortion. Does not necessarily involve an unhealthy or genetically damaged child. Instead, the mother or the parents had decided against enlarging the family for personal or economic reasons. Traditional med mal claim for failure to use due care in performing sterilization, leading to unwanted pregnancy If jurisdiction recognizes a cause of action for a sterilization procedure (Emerson), then [P] can recover damages can be recovered under either limited recovery rule (majority) or full-recovery rule (minority) Limited Recovery Rule— majority view, includes: Medical expense of ineffective sterilization, Medical and hospital costs of pregnancy, Expenses related to prenatal and postnatal care, Cost of subsequent sterilization procedure, Loss of wages, and [Emotional distress due to unwanted pregnancy and loss of consortium to spouse]—sometimes Full Recovery Rule—with or without offsets, minority view, includes: Full recovery rule allows for all itemized damages under limited recovery PLUS costs of child rearing (NM, WI), Restatement §920 allows full recovery, but offsets economic damages against emotional benefits from having a child (MA, CT) 29. TOXIC TORT EXPOSURE? (litigation concerning asbestos, tobacco, breast implants, etc.) OUTLINE ANSWERS ☺ 16 ☺ Think BROADLY & OUTLINE ANSWERS o o o Statute of Limitations: What kind of SOL does this jurisdiction use—I would want to know whether this jurisdiction imposes a discovery or exposure statute of limitations. In Hymowitz, the court amended the SOL for DES cases to start the clock at the moment of discovery rather than the moment of exposure. If the legislature in this jurisdiction would consider a similar amendment, [P] may not be barred Can P prove but-for cause?: To prove but-for cause, [P] must prove (1) exposure; (2) general causation, and (3) specific causation. Stubbs approach (“reasonable certainty”) Here, specific causation is at issue, so “but-for” may fail, akin to Stubbs. There, the court applied a less rigorous causation test because plaintiff introduced evidence that provided reasonable certainty that the direct cause of his typhoid was the one for which the defendant was liable. Here, [P] should also introduce evidence that [INSERT CREATIVE EVIDENCE IDEAS] to give the court reasonable certainty that [D’s] conduct was the direct cause of his injury. Zuchowitz approach (“substantial factor”). Here, general/specific causation are at issue, so “but-for” may fail, akin to Zuchowitz. Due to the rarity of plaintiff’s overdose, the Zuchowitz court applied a less rigorous causation test, holding that plaintiff proved causation through a substantial factor (i.e., when a negligent act increases the risk of harm, that’s sufficient to provide an inference of causation). Here, [D’s conduct] supports a similar inference to [P’s injury] because… See also Anderson, Basko v. Sterling Drug, Inc., fire hypos (pg. 352) o Note: but-for is required here if science is not impossible Note: if there is limited understanding of biological mechanisms of disease development (long latency periods, cascading disease)—[P] may need to provide expert testimony to ensure experts can prove causal links, but testimony must meet Daubert requirements (testability, peer review, error rate, general acceptance) (pg. 362) Can proportional liability apply? (pg. 347, n.5) 30. DO FACTS INVOLVE FUTURE HARM FROM AN EXPOSURE? (causation lens) o P was exposed to a toxin, but unclear if s/he will develop disease. What recovery now? “FEAR OF” future illness from exposure: Most courts deny such recovery, at least during in the indeterminate period before P actually suffers bodily injury (most courts uncomfortable with future harm because not meeting burden on causation) (See Buckley, ) o EXCEPTIONS: ▪ Potter v. Firestone Tire—permits recovery for fear if P has been exposed and it’s more-likely-than not that P will develop cancer ▪ Norfolk v. Ayers—permits recovery for fear of cancer if P is already suffering from asbestosis (i.e., recovery if fear is parasitic) “INCREASED RISK” created by D’s conduct: Most courts will not allow recovery for “increased risk” of future harm o 3 Approaches: ▪ Two Lawsuit Approach—P may only sue for the more serious thing if/when it develops (most common, exception to single judgment rule) BUT out of luck if way outside SOL (can argue for change in SOL—Hymowitz) ● Simmons v. Pacor (pg. 348, n.6) OUTLINE ANSWERS ☺ 17 ☺ Think BROADLY & OUTLINE ANSWERS ▪ ▪ Probability Approach (only available when D has acted recklessly/willfully)—P can recover full damages now if > 50% chance of getting serious thing ● Mauro v. Raymark Hybrid Approach—recovery allowed,, even if serious thing not-more-likely-than-not, provided (1) some impact and (2) compensated discounted to reflect low proability ● Dillon v. Evanston Hospital (pg. 348) o Note: Demonstrates this is a problem for the law, weak causation proof. Struggle because we have a sick P, may have negligent D, but lack evidentiary basis to connect P and D. MEDICAL MONITORING: P’s seek recovery for the extra costs incurred while getting diagnostic treatment necessitated by D’s tortious conduct; awarded where the P can prove that the D’s negligence has significantly increased the risk that the P will suffer a serious disease in the future. o Can a P who has been exposed to a toxin but who does not allege a present physical injury assert a claim for medical monitoring costs if the toxin is known to cause a significantly increased risk of a serious latent disease? In Caronia v. Philip Morris USA, Inc. (pg. 350) 31. DO WE LACK INFORMATION AS TO WHAT CAUSED P’s INJURY? o o o Wolf v. Kaufmann (pg. 358)—denied recovery for death of P’s decedent who was found unconscious at foot of stairway, which, in violation of a statute, was unlighted, because the P had offered no proof of “any causal connection between the accident and the absence of light.” Cardozo changes this with substantial factor—” if (a) a negligent act was deemed wrongful because the act increased the chances that a particular type of accident would occur, and (b) a mishap of that very sort did happen, this was enough to support a finding by the trier of fact that the negligent behavior caused the harm. Where such a strong causal link exists, it is up to the negligent party to bring in evidence denying but for cause and suggesting that in the actual case the wrongful conduct had not been a substantial factor.” (pg. 359) Williams v. Utica College—three factors bear on whether a P can satisfy burden of proof on causation based only on occurrence of a negligent act and presumption: (1) circumstantial evidence; (2); relatively ability of the parties to obtain evidence about what happened; and (3) whether the case is one in which there is reason to have different concerns about errors favoring P’s as opposed to D’s (pg. 360) 32. DO WE KNOW WHAT HAPPENED BUT NOT SURE IF NON-NEGLIGENT BEHAVIOR BY D WOULD HAVE AVOIDED INJURY? o Loss of Chance—requires that P prove her lost chance by a preponderance of the evidence. P cannot combine the “substantial factor” rule with the lost chance doctrine to further reduce her burden of proof. Allowed recovery in cases where D caused reduced chance of recovery, even where that loss is <50% [P] can bring a malpractice claim against [D] for “loss of chance.” In Matsuyama, plaintiff established D’s negligence caused plaintiff’s “loss of chance” by a preponderance of the evidence through statistics and expert testimony. The court adopted the doctrine given the context of OUTLINE ANSWERS ☺ 18 ☺ Think BROADLY & OUTLINE ANSWERS o o patient/doctor relationship and because the doctor is the more capable party of preventing the harm. Here, [P] could establish loss of chance by a preponderance by….and the court should permit recovery given [INSERT POLICY CONCERNS (pg. 371)] o Note: “loss of chance” must be a but-for not a substantial factor in P’s injury (pg, 373) Calculations in loss of chance—(pg.372) Mostly limited to malpractice—“reliable expert evidence establishing loss of chance is more likely to be available in medical malpractice case than in other domains of tort law” (pg. 371) Hardy v. Southwestern Bell Telephone Co. (pg. 374) Policy behind this 🡪 This is a pretty typical limitation. Courts tend not to believe these statistics because they are one-offs, but in a med-mal case, more likely to have background statistical information. Most courts do not permit recovery for loss of chance if death/adverse event is averted (Alberts v. Schultz, pg. 374, n.5) Informed Consent—would P have withheld consent to treatment if she had known of relevant risks? (Matthies) Inadequate Warnings—would P have heeded the warning, had adequate warning been supplied (think—product labeling, wrongful birth) 33. DO WE KNOW WHAT HAPPENED BUT HAVE MULTPLE DEFENDANTS? o o o o Joint and several liability—Liability that may be apportioned among two or more parties, or just one, such that each liable D is deemed responsible for the entirety of the damages, subject to a potential right of contribution from joint D’s and a bar against P recovering more than 100 percent of the total damages awarded. (Ybarra, respondeat superior) Several Liability—makes each defendant liable for only its “share” of P’s harm. To receive full recovery in a several liability system, P must establish liability against all responsible tortfeasors, and each one of these D’s must have the resources to pay for its share of the judgment Since [P] has the burden of proof on causation, [P] must trace his injuries to a single [FACTOR] from a specific [D] or else [P’s] case should fail. In Garcia v. Joseph Vince, there was no evidence pointing to either defendant’s negligence, so plaintiff could not meet its burden on causation. Similarly, here, [P] cannot meet its burden because… See Garcia v. Joseph Vince (pg. 380, n.3) Alternative Liability—P is injured but can’t prove which of several possible defendants was more probably than not the actual cause of her injury [P] may seek to use the alternative liability theory, shifting the burden of proof on causation to the two [D’s] when their negligent, but independent conduct caused harm to [P], but [P] cannot establish which [D’s] negligence caused the harm (Summers). Note—this requires both D’s were negligent, for alternative liability to apply all D’s must be before the court (Restatement 3d §28(g)). o INCONSISTENT WITH J&S where J&S would permit a P to sue one of the D’s, regardless of other tortfeasors, and recover full damages from that D (then D can collect through contribution (pg. 379, n.1)) Note—increasing number of D’s may be make it too difficult to apply alternative liability (car crash hypos) Market-Share Liability (Hymowitz)— Holds all manufacturers of a product identical to the one that harmed the plaintiff liable in shares proportional to their share of the market at the OUTLINE ANSWERS ☺ 19 ☺ Think BROADLY & OUTLINE ANSWERS o o time the plaintiff’s injury occurred. Market-share liability is appropriate if the following factors are present: (1) all the named defendants are potential tortfeasors; (2) the allegedly harmful products are identical and share the same defective qualities, i.e., are fungible; (3) the plaintiff is unable to identify which defendant caused her injury through no fault of her own; and (4) substantially all of the manufacturers that created the defective products during the relevant time are named as defendants [P] can bring a claim against all [D], manufacturers, under a market-share theory. In Hymowitz, the court approved a market-share theory of liability because (1) all named DES manufacturers were potential tortfeasors; (2) DES was fungible; (3) plaintiff was unable to identify which defendant caused her injury through no fault of her own; and (4) substantially all of the manufacturers of DES during the relevant time were named as defendants. Here, similar justifications for market-share apply because… If she mentions states: California Approach 🡪 Sindell, Brown v. Superior Court (outline pg. 112) NY Approach 🡪 (outline pg. 113) o Note: alternative liability does not apply because don’t know if we can get all tortfeasors before the court Failed attempts at market-share—asbestos, lead paint, childhood vaccine (pg. 392, n.7) Concerted Action—A type of vicarious joint liability in which one defendant is held liable for the acts of others because he expressly or impliedly agreed to engage with the tortfeasors in the activity that caused the harm, even though he did not actually cause the harm to the plaintiff. (Orser v. Vierra, pg. 389, n.2) Note: not applicable in Hymowitz because need more than parallel activity (outline pg. 112) Enterprise Liability (rare)— imposed where manufacturers: (1) exhibited industry-wide cooperation in products’ manufacture and design, and (2) limited in number. If so, burden of proof on causation shifts to D, and any D who cannot exonerate itself will be jointly and severally liable. Hall v. E.I. Du Pont De Nemours & Co. (pg. 390, n.3) 34. PROXIMATE CAUSE—when the chain of causation is so attenuated that—even though D owes P a duty, which was breached and is the cause in fact of P’s harm—courts will find a proximate cause limitation for precluding liability o o o Fairness principle of tort law—there must be an end to one’s responsibility to another for ordinary, careless behavior TESTS: Foreseeability/substantial factor (Wagon Mound) Harm-within-the-risk Direct consequences (In Re Polemis) Unexpected Harm: includes the idiosyncratic reactions of the eggshell plaintiff, as well as unexpected harms to the fully-expected victim (Wagon Mound, Polemis) [P] can sue [D] for his injuries because [P]’s injury is traceable to [D’s] negligence without an intervening cause. So, under the eggshell plaintiff rule, [P] is permitted to recover for the harm actually suffered, even though the precise nature and extent of [P]’s injuries, as they finally developed, were more severe than may have been foreseen (Benn v. Thomas) Secondary Harm OUTLINE ANSWERS ☺ 20 ☺ Think BROADLY & OUTLINE ANSWERS o o [P] can sue [D] for his aggravated injuries under the medical aggravation rule because [P] was exposed to an additional risk s/he would not otherwise been exposed to but-for [D’s] negligence. o Cases—Stoleson v. United States, Miyamoto v. Lum, Pridham v. Cash & Carry Building Center, Wagner v. Mittendorf (pg. 409-410) o Psychological Injuries?—Steinhauser v. Hertz Corp (pg. 408, n.3) Intervening/Superseding Causes: when 3rd party conduct cuts off original D’s liability (Torres) Restatement of Torts §442(b): A negligent defendant, whose conduct creates or increases the risk of a particular harm and is a substantial factor in causing that harm, is not relieved from liability by the intervention of another person, except where the harm is intentionally caused by the third person and is not within the scope of the risk created by the defendant’s conduct. Intervening Cause—foreseeable intervention by 3rd party; D1 still liable (Bartender who continues to serve intoxicated patron (who then drives drunk and injures victim cannot point to the drunk driver as the proximate cause of these foreseeable injuries.) Superseding Cause—D1’s negligence not a proximate cause of P’s harm b/c 3rd party breaks causal chain (Liquor store owner who sells to a group of young men (who then rape and murder the victim can point to the criminal conduct as the proximate cause of these unforeseeable injuries.) Would want to know if superseding cause complete bars D from liability under jurisdiction’s comparative fault statute o Because of adoption of comparative fault, innocent and negligent superseding causes should have no independent significance. Thus, so long as the harm was within the scope of the risk, negligent intervening actors could not be superseding causes and original D still comparatively liable (Torres). Here, [ORIGINAL D] could still be liable if jurisdiction upholds… Key-In-The-Ignition Application: Herrera v. Quality Pontiac (pg. 426) Snell v. Norwalk Yellow Cab, Inc. (pg. 427) Unexpected Victim: Palsgraf –If D’s conduct creates an unreasonable risk of harm upon X, but is not negligent as to P (i.e., does not impose an unreasonable risk of harm upon P), P will not be able to recover if through some fluke s/he is injured. [D] may argue [P’s] case should be dismissed because any injury that [P] suffered is too remote and therefore falls outside the scope of [D’s] negligence (Palsgraf). o Court may side with D for policy considerations: ▪ Consequence extremely remote? 35. DEFENSES: o Contributory Negligence—affirmative defense where D establishes that P failed to exercise reasonable care to protect him/herself from harm I would want to know if this jurisdiction still upholds contributory negligence. If so, [P’S CONDUCT] may bar him from recovering. (Butterfield v. Forrester) EXCEPTIONS: Even if this jurisdiction does uphold contributory negligence, these facts may present an exception to the rule: o Safety Statutes—D’s negligent conduct did not bar P’s recovery if the D, simultaneously, violated a safety statute enacted to protect OUTLINE ANSWERS ☺ 21 ☺ Think BROADLY & OUTLINE ANSWERS o o o members of a group in which P is a member (Chainani v. Board of Education) (pg. 447) o Last Clear Chance Doctrine—permits P to recover, despite P’s own negligence, if there is evidence that: (Ramona, 2020 Exam) ▪ P was in a position of danger caused by the negligence of both P and D; ▪ P was oblivious to the danger or unable to extricate herself from it; ▪ D was or should have been aware of the P’s danger and of her obliviousness to it or her inability to extricate herself from it; and ▪ D could have avoided injuring P after becoming aware of the danger and her inability to extricate herself from it, but failed to do so. Comparative Negligence—negligent P’s recovery depends on how serious P’s negligence was in comparison to the D’s Pure— the jury is instructed to apportion fault between P and D’s, and P recovers an amount corresponding to the percentage of fault that the jury apportions to D’s. Modified 1 (50%)— P recovers so long as her negligence was less than or equal to D’s Note: Most P friendly because P can at least recover 50 Modified 2 (49%)— P recovers so long as P’s negligence is “no greater than” D’s (P < D) Note: Here, P collects nothing on 50/50 fault finding Aggregation v. Non-Aggregation of D’s Fault? Most states aggregate to make sure P is getting a fair shot, aggregation helps the plaintiff. o Why? ▪ Relationship between deterrence and compensation, we don’t want D’s who may be quite responsible to walk away Avoidable Consequences—even if the accident is D’s fault, P’s recovery may be reduced for failure to mitigate harm (i.e., failure to wear seatbelt) Can arise in other contexts: Medical—P’s failure to obtain medical attention or to follow medical advice. Religious Beliefs—Munn v. Algee (pg. 472) BUT sometimes P’s negligence not relevant to D’s later negligence (Fritts v. McKinne) Express Assumption of Risk: “exculpatory agreements” Since [P] signed an exculpatory agreement, [D] will argue she cannot recover because she expressly assumed the risk of [INJURY]. However, [P] may be able to render the agreement unenforceable for public policy reasons. In Hanks, defendant’s exculpatory agreement was rendered unenforceable under the Tunkl factors: Business is a type suitable for regulation; D is performing a service of “great importance” to the public/practical necessity; D’s business open to the public; D has bargaining power D uses standard adhesion K, offering no negotiation or insurance against negligence; P is placed under D’s control, subject to risk D’s negligence OUTLINE ANSWERS ☺ 22 ☺ Think BROADLY & OUTLINE ANSWERS o o Similarly, here, the exculpatory agreement [INSERT TUNKL FACTORS], and should thus be rendered unenforceable. But note, does agreement mention the condition that caused P’s injury? Implied Assumption of Risk: Primary: Did D breach a duty of care to P? o Can be framed as either no duty or no breach (City warnings, 2020 exam) ▪ When established, this operates as a complete bar to recovery ▪ Essentially finding that D wasn’t negligent (see sports cases) ▪ See Murphy v. Steeplechase Amusement Co. Secondary: did P consciously & voluntarily mistake an unreasonable risk? Unlike primary assumption of risk, this is a true defense (i.e., focuses on P’s conduct in taking the risk). But most jurisdictions adopting comparative fault have abolished this form of implied assumption of risk. Essentially finding that P assumed an inherent risk. Firefighter/Professional Rescuer Rule—The policy underlying this rule that professional firefighters are paid to undertake the risks they face when responding to emergencies, which are often caused by the negligence of others. To allow them to recover damages as well would be to compensate them twice, once in their wages and once by damages. 36. COMPARATIVE FAULT MATH: o o o Avoidable Consequences: STEPS: What would P have recovered if mitigated harm (i.e., wore seatbelt) Multiply that number by (100-P’s % fault) = Recovery under avoidable consequences D is INSOLVENT Approach 1—P does not share in reallocation STEPS: o Denominator = (100-(P) + (Insolvent D’s fault %)) o Multiplier = Total Award less (P’s % fault) o Take remaining parties (numerator stays the same), divide that by new denominator, and multiply that by new multiplier Approach 2—Several liability, all D’s pay original fault percentage Approach 3—P shares in reallocation STEPS: o Denominator = (100-(Insolvent D’s fault %)) o Multiplier = Original Damage Award o Take reminaing parties (plus P), numerator stays the same, divide that by new denominator, and multiply that by original damage award Set-offs: STEPS: What does injured D owe P? (multiply injured D fault % by damage amount) What does P owe injured D (multiply P’s fault % by injured D’s damage amount) OUTLINE ANSWERS ☺ 23 ☺ Think BROADLY & OUTLINE ANSWERS o Now, deduct (how P owes injured D) from (amount D owes injured P) = set off o OR deduct (how much injured D owes P) from (amount P owed injured D) Settlements: (See printed slides) 37. COMPARATIVE FAULT POLICY QUESTIONS/IMPLICATIONS: o Pure vs. modified 1 vs. modified 2; Make a difference, especially at 50% mark. In bilateral litigation, often we will have o o o 50% trials. Aggregation vs. non-aggregation of D’s fault Clearly pro-P or anti-P. If we allow aggregation, very different impact if we do not allow aggregation. Dealing with insolvency; Should we just say to everybody you pay what the jury finds, do we force you to pay more b/c of a insolvent defendant, or do we force plaintiff to participate? Comparative contribution; If in a J&S liability regime, decide to go after one D, can sue for all of my damage and that D can go after other D’s for comparative contribution. Offloads risks from recovering from other D’s from P to the D you do go after. Settlements; Settlements; o 38. STRICT LIABILITY: o o o o o Liable 🡪 Rylands v. Fletcher Not Liable 🡪 Losse v. Buchanan (note cases pg. 526) Liable 🡪 Sullivan v. Dunham Not Liable 🡪 Indiana Harbor Posner’s reasoning (pg. 536) 2nd Restatement §520: Abnormally Dangerous Activities: Decided as a matter of law by the judge Degree of risk Probability of harm Inability to eliminate the risk by exercise of reasonable care; Definition of negligence, hinting that this is a strictly a negligence question Inappropriateness of the activity to the area Extent to which the value of the activity to the community is outweighed by its dangerousness How is this different from negligence? Balancing factors in every single case: o Pros—ability to draw fine distinctions depending on the facts of the case o Cons—makes it impossible to know when an activity will qualify as abnormally dangerous 39. PRODUCTS LIABILITY: o o Erosion of privity—Macpherson v. Buick Rationales—foreseeability, “inherently dangerous,” privity was unfair and anti-consumer Design defect (problem with the entire product line, conception of the product in an unnecessarily dangerous manner) OUTLINE ANSWERS ☺ 24 ☺ Think BROADLY & OUTLINE ANSWERS o o o o [P] could bring a design defect claim against [D, MANUFACTURER]. Under Restatement 3d §2, this is no longer an act which [D, MANUFACTURER] can be held strictly liable. Thus, [P] will need to prove [D’s] negligence through: Introducing evidence that [D, MANUFACTURER] unreasonably failed to inspect/poor quality control: o Depose disgruntled employee o Collect evidence of how many people have been injured by this product o Potential violation of a Consumer Protection Agency (regulation), negligent per se (Martin) o Custom? (Trimarco) Manufacturing defect (one-off problem with this blanket, physical production of the product in an unnecessarily dangerous manner, inconsistent with design specifications) [P] could bring a manufacturing defect claim against [D, MANUFACTURER]. Under Restatement 3d §2, given the difficulty of [P] proving negligence in manufacturing, this is the only aspect of defective products litigation that has retained a strict liability element since Traynor’s dissent in Escola/Greenman. Thus, [D] could be found strictly liable. Policy 🡪 proof-related issues, reliance (Traynor in Escola) (pg. 577) Failure to Warn or Provide Instructions: [P] could bring a failure to warn claim against [D, MANUFACTURER]. Under Restatement 3d §2, this is no longer an act which [D, MANUFACTURER] can be held strictly liable. Thus, [P] will need to prove [D’s] negligence through: Presenting the label/instruction menu and showing its omission from danger occurred Collecting evidence of how many people suffered similar injuries by the product Potential violation of a Consumer Protection Agency (regulation), negligent per se (Martin) Custom (Trimarco) Warranty? (Ryan v. Progressive Grocery Stores, Inc) (pg. 576) §402A (short lived though), see (outline, pg. 147) 40. DAMAGES: o Future medical expenses—including the cost of providing the specialized medical attention o o and additional care that [P] will require for the remainder of [P’s] life. To recover, [P] should present expert medical testimony concerning the costs of prospective medical care Pain and Suffering—[P] should present evidence of pain and suffering by potentially showing a video of [P’s] life before the accident and [P’s] life after the accident, or presenting testimony from a [FRIEND, COWORKER] to give credence to [P’s injury], or presenting medical testimony that the injury is painful (Seffert) PER DIEM: Beagle v. Vasold (pg. 732, n.9)—would want to know if jurisdiction permits the argument Loss of Enjoyment of Life—I would want to know if this jurisdiction requires loss of enjoyment of life to be combined with pain and suffering. If it does not, [P] can recover damages for loss of enjoyment of life separately if [P] is cognizant of his/her injury (MacDougald). To recover, [P] should present evidence that: Loss of ability to perform daily tasks OUTLINE ANSWERS ☺ 25 ☺ Think BROADLY & OUTLINE ANSWERS o Loss of ability to participate in the activities which were a part of the person’s life before the injury Future Lost Earnings—evidence must be presented to a reasonable certainty (3rd year associate hypo) [P] can present evidence that Loss of Consortium—(see above) o 41. EVIDENCE: o o Prejudicial/Probative Issue: As the judge, I would/would not admit this evidence because (a) it’s relevant/not relevant; and (b) its probative value does/does not outweigh any prejudice to P/D. The evidence is relevant because: does evidence show P was comparatively negligent? (i.e., not take doctor’s advice) does evidence show P could have mitigated harm? (i.e., failed doctors order) does the evidence impeach P (catch P in a lie)? Elements of damage issue: As the judge, I would/would not admit this evidence because (a) it is/is not a proper element of damages; and (b) it is relevant/not relevant to the determination of such damages. The evidence is/is not a proper element of damages because: Does the jurisdiction recognize [X] (i.e., hedonic damages) as a separate element of damages from pain and suffering? Has the evidence been proved to a reasonable certainty (3rd year associate hypo)? Attorney’s fees? Not a recoverable element of personal injury claim HEREDITYARY – LOOK AT 2020 EXAM MEMO The evidence is relevant/not relevant because: does evidence show P was comparatively negligent? (i.e., not take doctor’s advice) does evidence show P could have mitigated harm? (i.e., failed doctors order) does the evidence impeach P (catch P in a lie)? Is the evidence potentially more prejudicial than it is probative? 42. PROCEDURE: o o o Summary Judgment— I would [grant/not grant] the motion because, viewing facts in light most favorable to nonmovant party, [P]/[D] [is/is not] entitled to judgment as a matter of law. Mention nonmovant should be able to reach the jury Motion to dismiss— I would [grant]/[not grant] the motion because, these facts, presumably alleged in [P’s]/[D’s] complaint, it [do]/[don’t] appear plausible that [D] is liable. Precedent—If there is precedent establishing that [INSERT FACTS], I would want to know if [P]/[D] could have prevailed on a motion to dismiss or summary judgment. To determine this, I would need to know: How “established” the precedent is How fact-specific are the prior cases establishing this rule Was the precedent decided at a co-equal court or at the state supreme court (i.e., is it binding or influential?) OUTLINE ANSWERS ☺