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)
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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)
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​
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:
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​
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);
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​
​
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)
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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.)
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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)
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▪
▪
​
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
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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
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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
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​
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
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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 ☺