Lg's Torts Outline

8/3/2019 Lg's Torts Outline

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Chapter One:

Torts generally:

A Tort is a civil wrong, other than a breach of contract, for which the law provides a

remedy.

Insane are liable for their torts but not criminal actions

Mistake is not a defense/excuse

Liability:

Fault basis of liability new way comes from Brown v. Kendall

1. Intent the actor desire to cause the consequences of his act or the actor believes

that the consequences are substantially (restatement 8A) certain to result

2. Negligence unreasonably risky conduct (restatement 291)a. Oliver Wendell Holmes said that the fact that a person

causes injury is insufficient to prove fault (i.e. shift blame)

No fault basis of liability strict liability old way comes from Anonymous

Theories

1.Baker articlei. Blood money extracted from s pocket and rarely pursued in Tort

unless the conduct is extremely egregious or the has deep pockets

ii. Insurance money First party insurance protects s from liability. This

is the money that atty.s go after.

iii. New money money that is left over. Subrogation is the process bywhich the insurance companies recover from the guilty party

3. Way to think about Tort cases as atty.

i. What is the s possible liability?

ii. What is the possible remedy?

iii. Is this remedy enforceable?

1. Determined by liability insurance

4. Tort system is fundamentally biased towards the Repeat Players (Haves) andagainst the One-Shotters (Have nots)

Tort worldviews

1.Compensation Deterrence theory compensate the wronged and deter the

wrongdoers from their actions

2.Enterprise Liability theory protect the interests of laissez-faire capitalism

against its own accidents

3.Economic Deterrence theory use economics to analyze tort law should

provide the maximum efficiency in the system. Maximum product safety for

prudent investment

4.Social Justice theory Retributive justice. If A diminishes Bs status, A shouldmake B whole.

5.Traditional View - Tort System is designed to stop people from taking the lawinto their own hands, compensate for harms, etc...

Real Olde England 15th Century

Fault DOESNT matter

Only defense is I DIDNT DO IT it didnt happen at all

Focus was on COMPENSATION not action

Forms of action:


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o Writ of trespass Available only for DIRECT injury

o Writ of trespass on the case INDIRECT injury

Olde England 17th Century

Fault begins to develop If no fault, best theory is trespass

Defendants best theory of defense is UTTERLY WITHOUT FAULT

1850 Chart:

Defendant NOT negligent/ Plaintiff Negligent Defendant wins because no fault

Plaintiffs negligence does not matter

Defendant Negligent/ Plaintiff Negligent Contributory negligence Both parties

negligent Defendant wins because both are negligent

Defendant NOT negligent/ Plaintiff Not Negligent Defendant wins because no fault Does not matter if plaintiff was negligent

Defendant Negligent/Plaintiff NOT negligent Plaintiff wins because defendant is solelynegligent

Contributory negligence Plaintiffs negligence however slight is a complete bar to recovery

Comparative negligence MAJORITY - reduces plaintiffs damages by percent of his fault. If

Ps negligence is less than all of Ds negligence combined the P recovers all of his percent of

neglgience

Blasting:

NY Strict liability if vibrations do damage

WV NOT strict liability must show based on fault

Chapter Two:

R.S.T. R.T.T. Prosser

Desire to cause consequences of

act

act with purpose of producing

consequence

act with purpose of producing

consequence

OR OR OR

believes that consequences aresubstantially certain to result

knowing that consequences aresubstantially certain to result

believes that consequences aresubstantially certain to occur

Intent Definition: Actordesires to cause consequences of his act or he believes the

consequences are substantially certain to result from it

Majority Intent (Desire/substantially certain) is intentional tort

WV Transferred intent intentional tort

Battery

Batter requires bodily contact & intent


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o Harmful Alteration of the physical integrity of the body

o Offensive Offends a reasonable sense of personal dignity (Objective test)

o Must have:

1. intent to cause harmful or offensive contact

2. actually cause harmful or offensive contact

Majority Must be OFFENSIVE touching to constitute intentional tort Majority Spitting in someones face considered offensive battery

Majority Based on a REASONABLE PERSONs belief as to if offended

Assault

Majority/Minority/WV Must have Immenent Apprehension of battery Impending,

threatening, looming

Majority Obscene gestures and remarks not assault

Majority Loaded/unloaded gun does not matter fear still warranted

WV Same as majority and:o also look at mental anguish, insult considered

o 3d party can recover if member of vics immediate family and saw battery or assault

Intentional infliction of emotional distress:

Majority Minority WV

words never enough Fighting words are enough (insult statute - fighting words)

public utilities or common carriers

are subject to strict liability for

gross insults

can recover for the mentalaftereffects of a tort

must cause a physical injury can recover for IIED where theeffects are purely mental

Four factors:o Conduct must be intentional or reckless

o Conduct must be outrageous and extreme

o Must be a causal connection between act and emotional distress

o Emotional distress must be severe

Being only mildly upset not good enough

WV Must tend to violence or breach of peace or be prohibited under an act HumanRights Act

WV Code provides for cause of action for victims of discrimination in employment and

public accommodations

WV - Vituperative Epithet Discriminated against because of heritage/race. NOT

ALLOWED. NO recovery for emotional distress in property damage

False Imprisonment:

Majority/Minority Person must be aware of their confinement

WV Shoplifters can be detained for 30 minutes


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Confinement can occur by: physical force, threat of physical force, duress, and asserted

legal authority

Trespass:

Majority Minority WVland extends above and below

(within reasonable limits)

same same

can recover both punitive andtreble (actual damage x3 for plantremoval) damages

Does not have to actually be any

damage!! Does not have to actually be any

damage!!

Nuisance 2 kinds: Requires proof of harm/damage requires SIGNIFICANT HARM

1. Public any nuisance subjecting population of whole in the area

Significant interference with public health, safety, peace, comfort orconvenience

2. Private Nontrespassory invasion of anothers interest in the private use and

enjoyment of the land

WV ANY physical entry into land through air, etc. is trespass

Ex. ) firing gun over neighbors property

WV Without permission and without notice carrying away of timber/cut down flora(even if along power line). Liable for:

o Criminal proceedings

o Common law trespass

o Statutory trespass

o Punitive damages

o Statutory treble damages

Cut down flora along easement with permission and notice Only theory would be

violation of reasonableness

Majority trespass to homeowner if you let yourself in anothers house and borrowsomething but return it

Trespass to Chattel:

Kicking owners dog is battery to owner

Trespass to Chattels - Elements: intentionally and harmfully

1. Dispossessing another of the chattel, or2. Using or intermeddling with a chattel in the possession of another


must actually damage chattel same same

or impair the use of the

chattel

same same

recovery is limited to actual

damage

same same


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Conversion:

Different from trespass because conversion involves dominion and control

o Requires complete or very substantial deprivationo Substantial damage

Factors to consider

Extent duration of actors exercise of dominion

Actors good faith

Actors intent

Harm done

Inconvenience to real owner


intentionally taking control of

owner to the extent that it seriously

interferes with owners right to

control

occurs when return is requested

and denied

same

remedy is amount of entire item same same

occurs when return is requested

and denied

same same

Chapter Three:

Consent:

Definition WILLINGNESS to be interfered with intentionally

Every ADULT person of SOUND MIND has right to determine what should be donewith his own body

Majority - if RPP would believe words and conduct as consent, it is

Majority Implied consent if:

o life saving surgery

o Normal violence that is part of the game

Ex.) Football injuries

Majority performing life saving surgery even though refused by patient based on

religious grounds is battery

No consent under misrepresentation, mistake, or duress

Consent to crime does not bar recovery and is not valido Ex) Underage girl consenting to sex does not bar tort action

Parent cannot withhold emergency medical treatment for child Court must override

before doctor can act. Childs wishes do not matter

Self Defense and defense of 3rd party:

WV

o Can use deadly force


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o No need to retreat

o Defense of 3rd person must be correct or must reasonably believe:

Circumstances such that 3rd person has privilege of seld-defense

Intervention necessary for protection

Must use force reasonably necessary

o Cannot use spring loaded shotgun Majority

o Must be correct for defense of 3rd person

o Can use deadly force

o No need to retreat

Defense of property:

Majority

o Deadly force CANNOT be used to defend property

o Must use reasonable force

o

Cannot cause death or serious bodily harm WV

o Can only use deadly force in home or other place of residence if:

Reasonably believe intruder may kill or inflict serious bodily injury to

occupant/others in residence

Occupant reasonably believes intruder intends to commit a felony at theresidence

o Can use deadly force outside residence if attacked

Recovery of property:

WV

o Cannot use deadly force to recover propertyo May use citizens arrest shoplifting statute reasonable detention/investigation

o May use reasonable force to recover property

Majority reasonable force may be used where property taken by force or fraud and

there is fresh pursuit

Public Necessity:

Complete privilege

New Rule: One is privileged to enter land of another if it is or reasonably believes there isto be imminent danger. NO duty to pay.

o Ex.) Destroying one persons house to save town no duty to pay that one person.

Old rule: Individual should bear losses instead of whole. Govt did not have to pay

Private Necessity:

Incomplete Privilege

WV Must pay under unjust enrichment

o Ex) Run out of gas and have to steal gas from farmers tractor or you will die

Must pay


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Majority No trespass because privilege. No intent so NO fault. No negligence

o Have to pay under unjust enrichment

Authority of law:

WV Citizens arrest Peace officer may arrest without warrant if crime committed IN

HIS PRESENCE and a MISDEMEANOR. If you did not see, must get a warrant. Majority - cops have privilege to arrest w/out a warrant if felony & reasonable grounds

Discipline:

WV/Majority Corporal punishment of student by school employee PROHIBITED

o Prohibited by statute

o Includes beating, spanking, whipping, etc.

o Parents/People acting as parents can punish

Justification:

- Majority -Common carriers of passengers are required to protect passengers/property

o May use such force as reasonably necessary within the situation

o Ex.) Kids vandalized bus on school trip so bus driver held them captive and drove

them to police station. Not unlawful if reasonable to protect passengers/property

CHAPTER 4 NEGLIGENCE

Carrol Towing Rest2d 282 Rest3d 3 WV - McMillen

When the burden ofprecaution taken is

less than the

probability that theaccident would occur

times the reasonably

expected extent of theinjury

B=PL =Due Care

The doing of conductthat falls below the

standard established

by law for theprotection others

against an

unreasonable risk ofharm.

A Person acts

negligently if a person

does not exercise

reasonable care under

all circumstances.

Primary factors to

consider in ascertaining

whether the persons

conduct lacks reasonable

care are the foreseeable

likelihood that the

persons conduct willresult in harm, the

foreseeable severity of

any harm that may ensue,

and the burden of

precautions to eliminate orreduce the risk of harm

Doing of an act whicha reasonably prudent

person in the same or

similar circumstanceswould not do, or the

omission of an act

which a reasonablyprudent person in the

same or similar

circumstances wouldhave done

Negligence is:

o Breach of duty of due care

o Unreasonably risky conduct

o Failure to act as reasonably prudent person

o Carelessness


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o Conduct which falls below standard established for protection of others against

harm

o Failure to act with reasonable care

o Fault

o Omission to do act that reasonably prudent person would do

o Departure from standard of careo An element in a cause of action for negligence

Negligence is NOT:

o intent or recklessness

o inevitable accident

o cautious care

o ordinary care

o prudent care

Restatement 3rd and Caroll Towing

o Caroll Towing Hand Formula - B>PL

Where B is the burden of additional precautions P is probability that accident will occur if precaution not taken

L is the valued loss that occurs

BPL = No negligence

BU= Negligent

Factors in determining R, Risk foreseeable severity of the harm

Factors in determining U, Utility Does the persons conduct lack

reasonable care, and is there a foreseeable likelihood that it willresult in harm

o Ex.) Utility of leaving club in yard where child may find itis greater than risk of harm that child might do to another

child with club

WV/Majority Negligence is the doing of an act which a reasonably prudent person

in the same or similar circumstances would not do, or the omission to do an act

which a reasonably prudent person in the same or similar circumstances would

have done


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o Contribution sharing by joint tortfeaser in the liability is allowed. Duty exists

when R is high and cost of prevention low.

o NO contributory negligence in WV now comparative

o Cost benefit analysis Cost of precaution < Benefits = negligence

WV/Majority - Standard is that of a reasonably prudent person unless a child. NO

CONCERN WITH STATE OF MINDo Standard relaxed for children and those with physical disability

Conduct of that of a reasonable man under SAME disability

NO lower standard for mental disability

o Higher the danger, more care required

Majority Rst. 2d WV & minority Rst. 3d

RP child doing similar

activities

if the actor is a child,

standard is RRP of like

age, intelligence and

experience + Similarcircumstances

Rule of 7s:

0-7 - incapable of

negligence

7-14 - rebuttablepresumption of

incapability (and nocontributory)

14+ RPP

if the actor is a child,

standard is RPP of like

age, intelligence and

experience + Similarcircumstances

AND less than 5 yrs.old, incapable of neg.

unless adult activity adult activity exception NO exception for Adult

activity

adult activity exception

Super Six

Conduct

o 1. Duty Reasonably prudent person

o 2. Breach

Causes

o 3. Factual cause was defendants negligence A cause of plaintiffs harm

o 4. Proximate cause

Harm

o 5. Injury

o 6. Remedy

Rstmt 3rd/Majority/WV Compliance with custom of community is evidence thatconduct is not negligent, but does not prevent finding of negligence. Opposite is alsotrue.

o Always admissible (probative) but never determinative

o Customary care is NOT due care

Majority Reasonably prudent person in sudden emergency Reduced standard of care

o Must be in sudden emergency NOT of actors own conduct


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WV Unavoidable accident Plaintiff faced with sudden emergency held to lower care.

NOBODY IS AT FAULT. Jury should not be given unavoidable accident

instruction. Instead both or no one at fault.

o WV sudden emergency doctrine NOT allowed for ordinary traffic accidents

Sudden emergency donctrine should be used in limited circumstances

The Professional:

o WV Defendant must use most effective means to control coal dust. If state of the art

equipment available, defendant must adopt it.

o Majority Cannot insert subjective standard into objective standard

o Professional negligence based on ordinary prudent person with knowledge,

experience, and training found in profession

o Nine points about malpractice reform:

1. Malpractice reform lopsided towards limiting lawsuits

2. Must present case to panel before case can go to courta. WV No panel

3. Collateral Source Rule Source of money payment to plaintiff. Rule allows moneyreduction for defendant of amount owed. Defendant can deduct amount already paid to

plaintiff through insurance

a. WV Has collateral source rule reductions made based upon payment fromplaintiffs collateral sources insurance etc.

4. Periodic payment plans No longer receive lump sum

a. WV- Lump sum given, no periodic payment plan5. Damage Cap

a. 2 types of damages:

i. Economic wages and medical billsii. Non economic pain and suffering

b. WV damages capped at 250,000/500,000/COLA no matter how many plaintiffs

for non-econ loss.

i. 500,000 if wrongful death or permanent substantial physical deformity6. Statute of limitations Two years from date of accident. Discovery rule extends to

reasonable discovery or when should have discovered- 2 years from discovery

a. WV 2 years from date of injury or discovery. Statute of repose limits 10 years,discovered or not. Thus 10 years and 1 day later you cannot sue.

7. Adenanum clause Dont publicize how much suit is for Not stating amount in

complaint

a. WV No specific dollar amount may be included in complaint8. Attorneys fees restrict amount attorney may charge as contingency fee

a. WV No limit on attorney fees, must be reasonable

9. Notice of intent to sue Plaintiffs attorney must write letter to defendant that he will besuing

a. WV Plaintiffs attorney must file notice of claim including screening certificate

of merit that expert has evaluated file and claim has mert


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WV

o Summary trial comes first to hopefully settle before real trial

o 12 out of 12 jurors required for decision

o Experts can deliver testimony if they meet elements under statute. Must spend 60% of

time practicing what you preach.

o OLD RULE negligent defendants found guilty unspecified as to percent negligent arejointly and severally liable. Plaintiff can collect damages anyway he pleases from

anyone.

o NEW RULE NO joint liability. Only liable for percent of fault. Redistribution allowed

in some cases.

o Professionals will be judged by negligence for professional services only and not by

warranty, contract law, etc.

o Malpractice insurance can be obtained from Physicians mutual insurance company in

WV for physicians. NO state plan for attorneys must get it from private market.

RULE Always try case with expert unless common knowledge case in which departure from

standard is so negligent that even jury knows. (Common knowledge exception)o WV/Majority Expert testimony required by Malpractice Reform Act

Majority

o Doctrine of informed consent ANY treatment requires fully informed consent. Includes

full disclosure of ALL material risks and options.

o No consent Battery

o Not fully informed consent Negligence

o Majority - Judge by national standard not standard of community

WV - Doctor must disclose:1. Preferred treatment options

2. Risk of treatment

3. Other treatment options

4. Other treatment risks5. What will happen if NOTHING done

Majority Rst. 2d WV Rst. 3d 12

Same as a RP

professional of same

trade

No locality rule

being a novice is

irrelevant

must exercise skill and

knowledge normally

possessed by members

of that profession or

trade unless he

represents otherwise(higher or lower)

no locality rule

being a novice is

irrelevant

CSL


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Aggravated negligence:

3 grades of negligence:1. Gross negligence failure to use SLIGHT CARE

2. Ordinary negligence Failure to use DUE CARE

3. Slight negligence Failure to use HIGH CARE

o Majority - Common carriers/Innkeepers held to highest degeree of care

SLIGHTLY NEGLIGENT

Ex. Taxi driver wreck

WV

o Willful misconduct federal homeland security screw-up

o Intentional/Maliciously inflicted Emergency medical personnel

o Gross negligence Person operating AED (defibulator)

o Due Care Authorized emergency vehicles

o Gross Negligence or willful/wanton injury BAC testing at medical facilityo Deliberate, willful, wanton, reckless infliction of injury Landowner

o Due Care Whitewater rafting

o No care ATV responsibility Act

o Gross Misconduct Oil Discharge act

o Normal negligence liability of political subdivision

o Willful, wanton misconduct (gross negligence) liability of child protective care

o Must act in good faith Good Samaritan act

o Must act in good faith Liability of ski patrol

o DEALERS cannot sale, lease, transfer, trade any passenger car unless equipped

with a seat belto Child passenger safety device required for children under 8 unless child is 4 feet

and 9 inches tall then seatbelt is ok Applies to everyone not just parent driver

o WV

CANNOT USE VIOLATION OF SEATBELT LAW TO

ESTABLISH NEGLIGENCE OR COMPARATIVE NEGLIGENCE

Not buckling seatbelt is secondary offense- Minority/WV

Exceptions disabled and rural postal workers

Individuals under 18 must buckle up in backseat

COMPARATIVE NEGLIGENCE - failure of plaintiff to take

precautions before an accident failure to buckle up before accident isNOT negligence

FAILURE TO BUCKLE UP CANNOT BE INTRODUCED TO

SHOW COMPARATIVE NEGLIGENCE OR NEGLIGENCE

NO common law seatbelt defense wreck on private road doesnt

allow introducing evidence that P not buckled up


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MITIGATION OF DAMAGES failure of plaintiff after accident

to mitigate damages Failure to buckle up after accident is negligence

o Not more than 5% of damages may be mitigated Seatbelt

defense not used because not worth the 5%Majority/WV

o No standard of care owed WHILE skiingo Due care if NOT skiing

o Skiers

o assume all risks of skiing

o NO care during equestrian activities

Rules of Law:

o Pokora Case Cardozo

1. Court must exercise caution in forming new rules2. More urgent when there is no background of experience out of which the standards have

emerged3. Natural flowerings of behavior in customary forms

Cardozo approach:

o Ad Hoc after the fact balancing jury decides case by case

o Ambiguous unpredictable results

o Democratic system of shared power between jury/judge

Holmes approach:

o Hard Rules of law Judge dominated

o Predictable

o Anti-plaintiff/compensation

WV NO common law seatbelt defense because interferes with goal of loss spreading and

recovery for victims

WV Assured clear distance ahead rule NO LONGER APPLIES because court should use

restraint in formulating rules.

Minority - PA RULE - BAD Majority - POKORA - Good WV - Miller

Stop Look Listen, get out and

reconnoiter if necessary

Cases determined on case by case

basis

we should not undermine the longstanding goals of

loss spreading and recovery for victims as they are

the foundation for the modern tort system

HOLMES LOVES BRIGHT LINE

RULES

NO BRIGHT LINE RULES NO COMMON LAW RULES - bad

Violation of Statute:

o Court may adopt a standard of conduct if:

o It protects a class of people

o Protects particular invaded interest


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o Protects interest against the kind of harm which has resulted

o Protects interest against the hazard from which the harm results

o Hurley Court Test:

o Plaintiff must be member of class protected by statute

o Legislative intent considered to determine if private cause of action

o Is private cause of action consistent with intento Would private cause of action intrude into an area best suited for fed gov


1. To protect a class of personwhich includes the one who

interest is invaded

2. To protect a particular interest

which is invaded

3. To protect that interest

against the kind of harm which

has resulted

4.To protect that interest against

the particular hazard from whichthe harm results.

same Any person injured by violationof any statute may recover: test

1. person is member of protected

class,

2. consideration of legislative

intent

3. is private cause of action

consistent with underlying

purpose of statue

4. does C/A intrude on areadelegated to the federal govt.

Negligence per se Rebuttable Presumption of

Negligence

Rebuttable Presumption of

Negligence

Majority

o Unexcused violation of statute which is adopted by the court as defining conduct of a

reasonable man is negligence per se.

o If not adopted, may be relevant evidence bearing on issue of negligence

WV o No negligence per se rule. Violation of statute creates rebuttable presumption of

negligence. Still goes to jury unless defendant can rebut presumption with justifiable

reason why defendant violated the statute

o Defendant must prove that in violating the statute he did what might reasonably

have been expected of a person of ordinary prudence, acting under similar

circumstances who desired to comply with the law.

o Statutory compliance is only evidence of due care and does not mean that D not negligent

Proof of Negligence:

Burden of proof Preponderance of the evidence 50.00001% - more likely than not

Plaintiff bears burden of proving caseo D has presumption of innocence

Matter of law determined by judge -

matter of fact determined by jury Evidence is closely balanced and conflicting

2 types of evidence:

o Direct

o Circumstantial can win even if only circumstantial evidence and no direct


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Syllogism 3 part analysis

o Major premise Nasty floor bananas are negligence

o D had nasty floor banana

o D was negligent

MAJORITY Notice requirement D must have notice that the item was there

o Ex.) banana peel on floor of grocery store the fresher the peel, the less likely theD has notice so less likely case will succeed

o Must show fault

WV Judgment notwithstanding the verdict Verdict for P regardless of jury verdict

Insurance coverage does NOT require proof of fault only requires being on premises so

GO FOR INSURANCE

RES IPSA LOQUITUR: The thing speaks for itself

Old version:

o Event does not occur in absence of negligence issue for judge

o D has exclusive control over cause of injury

o P played no part in accident

NEW VERSION adopted by WV

o Fact finder may infer that D has been negligent when the accident causing the Ps

physical harm is a type of accident that ordinarily happens as a result ofnegligence of a class of actors of which the D is a relevant member

Infers negligence

You cannot claim to know what happened and claim res ipsa loquitur

Res ipsa loquitur allows you to admit you do not know what happened and

still recover

Helps P get to jury creates INFERENCE of negligence that jury may draw or not

If P receives unusual injuries while unconscious and cannot prove them, burden shifts toD to prove not negligent

o Disprove negligence Alternative liability

WV Notice rule know or should have known

MUST PROVE FAULT IN SLIP, TRIP, AND FALL CASES

o Easier to go after insurance no fault

Chapter 5 Causation in fact

DO NOT USE LEGAL CAUSE OR SUBSTANTIAL FACTOR

Majority/WV Ds NEGLIGENCE must be a cause of Ps injuries not THE cause

Cause in fact-

o But for cause (sin qua non) Ps injuries would not have occurred but for Ds

negligence

o Ds NEGLIGENCEa cause of Ps injuries

o D can be negligent and that negligence may not be a cause of Ps injuries

Negligence not a cause if injury would have happened anyway


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Post hoc ergo propter hoc after this therefore because of this Attribute events based on

sequence of events

Possibility of a causal connection is NOT ENOUGH to be a cause of the injury

o Reasonable degree of medical probability required

Expert testimony

o Question: Doctor do you have an opinion towards a degree of REASONABLE

MEDICAL PROBABILITY as to whether or not the Ds negligent action was a cause ofthe Ps injury?

Answer: The negligence was a cause

WV must prove damages with reasonable certainty (reasonable medical probability)

Lost chance theory Negligence results in reduced % of survival

o Requires proof by more likely than not

o Ps recovery limited to % of reduction

WV Lost chance theory applies ONLY to medical malpractice

o Does NOT apply to concurrent negligence cases

Consort of

Action

Enterprise

Liability

Market Share

Liability

WV Majority Minority

(6 jurisdictions)

Conspiracy

in med.

procedure when

is unconscious

small industry

with all s

joined to the

action = all are

liable

liability

apportioned

according to

market share

No decision on

alternative

liability in WV

no decision on

alternative

liability

reject alternative

liability

burden shifted to

burden shifted to

entire enterprise

no burden

shifting, just

divided

Expert Testimony

Federal rules of evidence:o Lay witnesses not allowed to express opinions unless within limited sphere of the

common lay person

o Expert witnesses can assist trier of fact to understand evidence or determine a fact in

issue- fact in issue is causation

WV Frye Test applies only to medical experts

o Scientific evidence allowed if based on scientific technique GENERALLY ACCEPTED

as reliable in the community

Federal Court Daubert factors:

1. Generally accepted

2. Subject to peer review

3. Tested

4. Rate of error Majority Daubert test to ALL experts

Relevant evidence any evidence with any tendency to make the existence of any fact that is of

consequence to the determination of the action more/less probable than it would be without

evidence

Majority/WV- Concurrent Factual Cause - If multiple acts exist, each of which alone would have

been a factual cause, each act is regarded as a factual cause of the harm


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WV any D 30% or less liable is severally liable only and not jointly liable Can collect amount

up to % liable but no more

o Ex.) D1 30% negligent. D2 70% negligent. Award is 200,000 verdict.

P can collect up to 60,000 from D1 (30% * 200,000) because 30% or less liable

P can collect up to 200,000 for D2 because jointly/severally liable

Majority Can collect according to % of drivers faults pure comparative contributiono Cannot collect based on joint/several liability

Restatement: Damages are to be apportioned among 2 or more causes where:

o There are distinct harms or

o There is a reasonable basis for determining the contribution of each cause to a single

harm

o Damages for any other harm cannot be apportioned among 2 or more causes

Market share liability manufacturers liability where exact manufacturer cannot be determined.Relaxes plaintiffs burden of proof. Join largest companies into suit and collect based on their

percent of market share

o NOT adopted in WV but may be adopted based on Spencer case

Majority/WV Where 2 Ds are simultaneously negligent but only one defendant actually caused

injury, P can recover against either defendant PRESUMPTION TURNS TO DEFENDANTSTO DISPROVE THAT THEY WERE THE CAUSE Alternative liability

Chapter Six Proximate or Legal Cause

Section 435 Restatement

If actors conduct is a substantial factor in the harm, the fact that the actor neither foresaw

nor should have foreseen extent of harm or manner in which it occurred does NOT

prevent him from being liable.

NO focus on foreseeability

Actors conduct not legal cause of harm to another where AFTER the event and

looking back from the harm to the actors negligent conduct, it appears to the courtHIGHLY EXTRAORDINARY that it should have brought about the harm

Focuses on HINDSIGHT AND HIGHLY EXTRAORDINARY

If in hindsight it is NOT highly extraordinary then it is ORDINARY

Dont forget to apply thin skull rule take victim as they come

Section 29 Restatement 3rd

An actors liability is limited to those physical harms that result from the risks that made

the actors conduct tortuous

Risk Rule or the risk standard the scope of an actors liability is for harms

within the risk that made the actors conduct negligent in the first place

If harm within risk, then within scope

If outside scope then not within risk Dont forget to apply thin skull rule take victim as they come

Risk defines liability

Risk defines scope of liability

Risk creates liability so risk limits liability

Liability must be limited because cause and effect is limitless

Ryan Case

ANEONU Anticipated, natural, expected, ordinary, necessary, usual


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Proportionality scope of liability should be proportionate to the act

Direct (Proximate) vs. Remote (Not Proximate)

Forseeability does not matter

Wagon Mound 1&2

WM1 Not foreseeable used Polemis test

WM2 Focus on foreseeability Palsgraf Cardozo

Duty/Risk Rule Risk reasonably to be perceived defines the duty to be

obeyed

rejects proximate cause

Palsgrafs injury does not fall within the risk perceived so no duty to her.

Palsgraf Andrews

Practical eclectic factors (10)

but for fact cause, natural and continuous, substantial factor,

direct, without too many intervening causes, not too attenuated,

likely, usual, foreseen, and not too remote in time or space

Basically applies ANEONU

Believes it should be submitted to jury NOT a matter of law

WV Long Case - Efficient cause

Majority Proximate cause concerns

Legal cause

Limit of liability

Extent of liability

Scope of liability

Ambit of liability

Proximate cause

In dumb jurisdiction, proximate cause concerns:

Prox cause, legal cause, nearest cause, efficient cause, direct cause, necessary cause,

usual cause, anticipated cause, natural cause, ordinary cause, and expected cause

Reality Proximate cause issue concerns

Scope of liability

Extent of liability

Limitation of liability

Majority Prox cause necessary because:

Law favors haves, repeat players, railroads, and cause in fact issue must be limited

NOT law must limit negligence issue

Majority proximate means:

Next

Nearest

Close

Majority Dumbest way to ask proximate cause is Was the Ds negligence a proximate cause

of Ps injury

Majority dumbest answer Ds negligence was or was not a proximate cause of Psinjury

Majority dumb method to use in solving prox cause issue is:

Remote/Direct

ANEONU


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Direct/indirect

Foreseeable

Hindsight

Direct/foreseeable

Majority - Bartelone Case Thin scull rule D must take P as he finds him

D responsible for aggravating Ps mental condition from whip lash wreck

Restatement 461 Negligent actor is liable to another although physical condition of the

other which is neither known nor should be known to actor makes the injury greater than

that which the actor as a reasonable man should have foreseen as a probable result of hisconduct.

P must prove cause in fact of each D where there are distinct acts with distinct harms

Restatement:

Distinct harms require apportionment

Single harms do NOT apportion

Defendant has burden of apportioning

WV must prove contribution/apportionment

Negligence in the air will not do MUST have proximate cause

Simply because someone is negligent does not mean they are liable, must show

proximate cause

Kinsman I

Plaintiffs win proximate cause because direct cause is always proximate cause

Indirect cause is only proximate cause when it foreseeably causes the injury

Kinsman II

Plaintiffs lost Injuries suffered were too remote, indirect, tenuous

Yun

Foreseeable, highly extraordinary

Intervening Causes:

o Original actors negligence is no longer a proximate cause because the new proximate causation

supersedes.

Superseding cause defined: Section 440 Restatement

Act of a third person or other force which by its intervention prevents the actor from being liablefor harm to another which his antecedent negligence is a substantial factor in bringing about

Considerations important in determining whether an intervening force is a superseding cause: Section

442 Restatement

Restatement 442A Intervening force risked by actors conduct Where the negligent conduct of the

actor creates or increases the foreseeable risk of harm through the intervention of another force, and is a

substantial factor in causing the harm, such intervention is not a superseding cause

Restatement 3rd- Intervening Cause Section 34:


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When a force of nature (Act of God) or an independent act is also a factual cause of physical

harm, an actors liability is limited to those harms that result from the risks that made the

actors conduct tortuous

Superseding called cause

Intervening called act

Restatement 3rd Section 32:

Notwithstanding section 29 or 34, if an actors tortuous conduct imperils another or the

property of another, the scope of the actors liability includes any physical harm to a person

resulting from that persons efforts to aid or protect the imperiled person or property, so

long as the harm arises from a risk that inheres in the effort to provide aid.

Wagner Case- Cardozo

Danger invites rescue

Foreseeability and risk does not matter

Wrongdoer liable to rescue as long as the actions of the rescuer are not wanton

o If rescuer negligent, that does not become a superseding cause

Wehner v. Weinstein WV Case

Pizza delivery guy blocked other cars in drive way of frat house to go in and deliver pizza. Left

keys in car and door unlocked. Frat member wanting to leave pushed car out of gear and let it go

down the hill. Car hits 3 girls killing one and injuring two. 6 Defendants sued. Weinstein found

75% negligent due to comparative negligence. Pledge determined 5%. Pizza company ownerwas 0% at fault. Pizza driver 10% negligent imputed to employer under respondiat superior.

Frat found 5%. Owner of frat house 5%.

o On appeal liability of frat removed. Pizza delivery claims subsequent negligence of frat

brothers were intervening negligence such that the negligence is a superseding cause.

Negligence in air because keys left in car, however still need proximate cause

WV RULE:

o Intervening cause, in order to relieve a person charged with negligence inconnection with an injury, must be a negligent act, or omission, which constitutes a

new effective cause and operates independently of any other act, making it and only

it the proximate cause of injury

For an intervening act to become a superseding cause it must become a new

efficient cause

Unforeseeable intervening act is a superseding cause

Restatement 455

o If the actors negligent conduct so brings about the delirium or insanity of another as to

make the actor liable for it, the actor is also liable for harm done by the other to himself

while delirious or insane, if his delirium or insanity: Prevents him from realizing the nature of his act and the certainty or risk of harm

involved therein, or

Makes it impossible for him to resist an impulse cause by his insanity which

deprives him of his capacity to govern his conduct in accordance with reason

o If suicide is the act of a rational mind then it is an intentional act. The intent breaks the

causal connection chain of responsibility between original negligence and the death.

o If suicide is not an intentional act because of insanity, delirium, or irresistible impulse,

then original defendant is liable because chain


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o WV KNOWN AS SUICIDE RULE

Majority/WV in Workers Compensation suicide: Chain of causation test:

o Injury must have occurred on the job as compensable injury

o That injury leads to mental condition

o Mental illness without being labeled irresistible impulse leads to the suicide

WV

o Indirect cause is only proximate when it foreseeably causes the injury

o Intervening acts that are not foreseeable break the chain of causation

o Suicide Rule -Suicide that is willful, calculated, and deliberate act is considered

intervening cause and not foreseeable and breaks the chain of causation

o Restatement - Malpractice If D negligently injures P and doctor treating Ps injuries

negligently malpractices upon P, D is liable for the original injury and the aggravationand the doctor liable for the aggravation. Malpractice is NOT a superseding cause.

There is no uniform majority rule for intervening intentional misconduct

Intervening cause must be a superseding act (NOT foreseeable) to break the chain of causationand dismiss liability and make the original negligence NOT a proximate cause

o Intervening cause that is foreseeable does not dismiss liability

Section 441:

o An intervening force is one which actively operates in producing harm to another after

the actors negligent act or omission has been committed

o Whether active operation of an intervening force prevents the actors antecedent

negligence from being a legal cause in bringing about harm to another is determined by

rules stated in 442-453.

WV

o Criminal intervening acts are a superseding cause because NOT foreseeable

o Negligence to leave keys in the car

o Risk>Utility, B>PL

o Defendants negligence in leaving keys in car is NOT a proximate cause because there is

an unforeseeable intervening act which is superseding

WV - Act of God Defense

o Act of God Extraordinary and unusual force of nature NOT anticipated

Superseding cause breaking chain of causation so no liability and original

negligence not a proximate cause

o If usual and ordinary then it is just a force of nature and NOT a superseding cause

WV recognizes rescue rule - Allows injured rescuer to sue the party which caused the

danger requiring the rescue in the first place even if rescuer is negligent.

Ex.) During a football game on October 28, 2008, at Huntington, WV, a University of Houston football

player, Patrick Edwards, ran into a MU band cart that was left off the field but near the end zone after the

band had performed at half-time. Player was severely injured and already has had three injuries. Can he

sue? Whom? Would you take the case? Why? Briefly outline your answer.


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Plaintiff CAN sue Marshall University only. Use Cadys super six to answer the question of negligence.

Foreseeability is not to be used here to classify conduct as negligence. An individual would want to take

this case even though Marshall is have and a repeat player. The case presents big reward

possibilities.

Conduct

o 1. Duty

Yes. Marshall and the officials had a duty of due care to make sure the playing

surface of the field was reasonably safe.

The State of WV is immune unless it has insurance in which case immunity is

waived

o 2. Breach

The officials and Marshall were negligent. BU.

Causeso Factual Cause

The negligences of the defendants was a cause in fact of plaintiffs injuries

because of the but for test

o Proximate Cause

The negligences were a proximate cause of the plaintiffs injuries

Not a superseding cause

Harmo Injury

o Remedy

Special damages wage loss

General damages pain and suffering

PUBLIC POLICY:

Scope or extent of liability is limited not by the trickery of foreseeability or direct causation or

intervening/superseding but rather liability is limited by public policy concerns.

We are NOT talking about proximate cause but rather DUTY

Majority/WV Social host NOT liable for 3rd person injuries

Minority MAY be liable for 3rd person injuries NJ Overruled by legislature

WV Statute - Violation of statute to sell liquor to underage individuals

Minority (Not WV) DRAM SHOP RULES:

Commercial vendors cannot sell liquor to visibly intoxicated people

Against statute to sell to underage

Employer liable to employees

Social host to social guest NJ - overruled

Restatement 3rd

A) An actor ordinarily has a duty to exercise reasonable care when the actors conduct creates a

risk of physical harm


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B) In exceptional cases, when an articulated countervailing principle or policy warrants denying

or limiting liability in a particular class of cases, a court may decide that the defendant has no

duty or that the ordinary duty of reasonable care requires modification

o Withhold liability to categorical cases through principle (moral underpinnings) or policy

(instrumentality concerns is tort law suitable for control or jusitifcation)

Ex.) limited liability

Kelly v. Gwinnell NJ

Social host liability for drunk driving guests

Social host in New Jersey is held liable for the negligence of the drunk driving guest

Bailey v. Black WV

Commercial vendors of liquor (seller) cannot sell liquor to person already drunkbecause it

violates WV statute. Commercial vendor is liable to the person injured by drunk and the drunk

Liquor liability case

NO statute to private individuals

Anderson v. Moulder WV

Violation of statute to sell liquor to underage individuals. Seller liable to 3rd party injured by underage drinker

Overbaugh v. McCutcheon WV

Employer not liable for liquoring up person because employer is not commercial vendor of liquor

Heaven v. Pender Duty

Everyone engaged in affirmative conduct (doing something) owes a duty of ordinary care and

skill to avoid danger

Duty is based upon a foreseeability of risk

The common law seeks to control activity but never compel it

No duty to rescue or aid

CORRECT: A duty arises whenever one person is by circumstances placed in such aposition with regard to another that every one of ordinary sense would at once recognize

that if he did not use ordinary care and skill in his own conduct with regard to those

circumstances, he would cause danger of injury to the person or property of the other

No Conduct, no duty

Robertson v. LeMaster - WV

Foreseeability of injury/harm through negligent conduct creates duty

o WRONG

Hamilton v. Accu-Tek/Beretta 2 cases NY

Issue: Do hand gun manufacturers owe a duty of care in marketing and distribution of handguns?

Judge Weinstein states law of NY, uses super six, then analyzes according to IRAC(CREAC)

o Quotes Heaven v. Penders duty definition

Public risk shifting policies in a modern economy used by BOTH COURTS in analyzing

duty issue:

o Reasonable expectations of how to order society

o proliferation of claims Opening of the floodgates

o likelihood of unlimited or insurer-like liability


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o disproportionate risk and reparation allocation

o public policies affecting the expansion or limitation of new channels of liability

Weinstein says there is a DUTY but Court of Appeals of NY said NO DUTY

o District Court DUTY Jury found for P and awarded damages based on Market share

liability

o Court of Appeals recognizing duty would subject gun manufacturers to limitless

liability for the acts of another Proportionality (Ryan case) NO DUTY

Lemongello v. Will Company, Inc. WV

Lawsuit against pawn shop which negligently sold firearms to buyer who used gun to commit

crime

Settlement in which pawn shop agreed to pay one million to two NJ police officers shot by

criminal

ONLY duty gun case in WV

Evans v. Oliver WV -

Both parties claim that the other party ran the red light and thus caused a collision

NEVER TAKE THIS KIND OF CASE Jury finds P more negligent than D 55% vs. 45%.

WV has comparative negligence P cant recover anything because P was MORE negligent than

D

D could have recovered 55%

o Rule is amount of recovery is reduced by own fault of 45% thus 100%-45% = 55%

o Ex.) D suffered damages of 1 million dollars and counterclaimed for the 1 million. D

was 45% negligent and P was 55% negligent. D can recover only 550,000 (total claimed

(percent at fault times total claimed)) or (1,000,000 (45% x 1,000,000)) = 550,000.

P claims jury failed to give remote causation instruction and as a result % at fault was higher for

P than it would have been.

On appeal, judge affirmed because jury was fully instructed on comparative negligence

Comparative negligence makes it unnecessary for the court to discuss or instruct jury on remote

causation

o District Court Judge was unfamiliar with remote cause in WV

RULES OF PROXIMATE CAUSATION WERE CREATED IN THE 19TH CENTURY

AND DEVELOPED IN THE EARLY PART OF THE 20TH CENTURY ARTICULATED

BY RESTATEMENT FIRST AND PERPETUATED IN RESTATEMENT 2ND. In this

context of a tort regime where 1. There was no comparative negligence and no opportunity

for jury to attribute fault to negligence and 2. There was no such thing as several liability

where tortfeasors are liable to plaintiff equal to percentage of tortfeasors fault (each was

liable for all of plaintiffs damages even if only modestly at fault). Superseding cause

insulated tort feasor from liability where his negligence contribution was minor/modest. 3.

There was no contribution among jointly and severally liable tort feasors. One party mighthave to pay it all and could not collect any contributing share from the other party because

no such thing as contribution. Contribution evolved later in the 20th century.

OLD Rules of proximate cause among tortfeasors was a protective device of a modestly

negligent original tortfeasor. Used intervening/superseding

Proximate cause NOW is being exercised improperly. Judge made decisions for what jury

should be doing case by case. We need a new system:

o 1. Dumbest way Ryan - ANEONU


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o 2. Risk rule better way

o Best way according to Cadys proposal eliminate proximate cause and scope of

liability because juries cannot understand it and judges cant explain it

Adopt proportionate comparative liability according to the jury lumping

Lump it all together and assign a percentage of fault to each party based

upon the amount of negligence and amount of causal connection thus aremote tortfeasor may be found to be 5% causally fault related to injury

then he would pay 5% of damages, no more no less. Pure several liability

and eliminate scope of liability. Thus allocate based on % of fault and

individual is liable only for that percentage. NO MORE ALL OR

NOTHING RULES!!!

Eliminates superseding/intervening

RTT suggests Cadys proposal

Nemo v. New River WV

o D negligently ran over P employee and Ps boss corporation sued D for loss of services

of P employee

o Sued for NIEL negligently inflicted economic losso Ds negligence not a proximate cause of Ps injury because of all dumbest rules Not

foreseeable, no duty, etc.

o Court SHOULD HAVE decided case based on DUTY Section 7 of the RTT

Principle/policy

NO duty of due care to a landowner to a trespasser

No duty to second generation woman because of DES

No duty of manufacturer to exercise due care and recall

No duty for NEIL

No duty to aid

No duty to government public duty doctrineo Ex.) cannot sue city for failing to inspect building of negligent landlord

Defendant is NOT liable if he NON-NEGLIGENTLY runs over P

o Being insured doesnt matter still not liable

o Insurance company is NOT liable either

o Insurance company NOT liable even if D NEGLIGENTLY ran over P

If Ds negligence not a cause or a proximate cause of Ps injury then D NOT LIABLE

If D negligently kills herself and P in an accident, usually estate is liable for Ds negligent

accident. SOMEONE IS DEFINITELY LIABLE

If both D and P negligent but D more negligent then D is liable to P and P NOT liable to D

Owner of car is NOT liable if driver negligently drives over P however DRIVER IS LIABLE

Defendant is liable if he INTENTIONALLY drives over plaintiff

o Even if he has no insurance

If employee, acting within scope of employment, negligently injures P, the EMPLOYER is liable

Kroger is not liable if P slips on Krogers CAREFULLY MAINTAINED FLOOR

Majority/WV Drunk driver liable for negligently running over plaintiff

o No proximate cause problem verdict for P

Majority/WV Social host liquors up guest who negligently runs over plaintiff. Social host NOT

liable


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o Contrary to public policy to hold social host liable Social Host will win

Majority/WV Bartender liquors up patron who negligently drives over P. Patron liable

o No proximate cause problem verdict for P

o Already intoxicated before coming to bar does NOT matter Proximate cause still good

Majority/WV - Bartender liquors up patron who negligently drives over P. Bartender Liable

o

FAVORABLE Public Policyo For Plaintiff Proximate cause, indirect but foreseeable

o DOES NOT MATTER IF PATRON ALREADY DRUNK BEFORE COMING IN

Proximate cause is still good Favorable public policy

WV D negligently injures P and P sues D. If Ds trial strategy is to attack on the duty issue D

should assert unforeseeable

o If D asserts no duty and moves to dismiss trial court judge should rule

UNFORESEEABLE

No duty to act If bystander watches while D beats up P, bystander not liable.

No duty to aid Bystander does not have to help half-dead P.

WV Company operates railroad and negligently runs over P. Company moves to dismiss

because no duty. Ruling Motion Denied Heaven v. Pender Rule

WV Gun maker negligently markets and sells gun to hoodlum who shoots P. P sues gun maker.Gun maker cannot dismiss because one unreported circuit court settlement.

Ryan

(BAD)

Ryan (Better) Polemis

bad

Wagon

Mound #1

Wagon

Mound #2

Palsgraf -

Cardozo

good

Palsgraf - Andrews

ok

We determinewhether it is remote

or proximate:

Analysis is:

Anticipated

Natural

Expected

Ordinary

Necessary

Usual

Proportionateliability: Extent ofliability should

equal basis for

liability

Is the imposition ofliabilityeconomically

feasible?

=

Proportionality

There isProximateCause b/c the

damage was infact directly

traceable to thenegligent act.If the cause is

direct it is

proximate

=Direct Cause

that which iswithin the scopeof liability is that

which is

foreseeable

=Foreseeability

test is was itforeseeable - yes

manner ofoccurrence does

not matter

=foreseeability

There is no P/C issue.

Instead we look at duty.

To find the scope ofliability we look at therisk reasonably to be

perceived defines theduty to be obeyed

that means that negligencewould entail liability forany and all consequences

no matter howextraordinary that werewithin the original risk

we want perfect symmetrybetween RISK and

SCOPE

THIS IS A GOOD WAY

TO ANSWER THISQUESTION

=the risk rule

P/C issue is was the s neg. a P/C

of s injury.

It cannot be said as a matter of lawthat the RR was not the P/C of s

look at it is all a matter ofexpediency but there are 7 hints:

1. a but for cause andnatural and continuous

sequence2. substantial factor

3. direct connection w/outfew intervening causes

4. is the effect of thecause on result not toattenuated

5. is the cause likely inusual judgment ofmankind to produce the

result6. Is the result

foreseeable?7. not too remote in time

or space

Use all the hints


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R.T.T. 29

best

Yun Case

bad

WV

bad

R.T.S

435(2)

Better way to ask Cadys proportionality rule

An Actors liability is

limited to thosephysical harms that

result from the risk thatmade the actorsconduct tortious in thefirst place

(The risk reasonably tobe perceived defines

the scope of liability)

1. ID the risks thatmade the conducttortious(B


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Public Policy - withhold liability to a whole class of s for reasons of principle or policy

(weighing test)


Liqueur liability: no liability for

social host for 3d party injury

NJ: social host may be liable for

negligence of intoxicated adult socialguest for injuries to 3d party

same as majority

Commercial Purveyors: no Dram

Shop Act but at common law, liable

for 3d party injuries resulting from

the negligence of intoxicated patronswho were illegally served

Dram Shop Acts provides a statutory

basis for imposing liability if patrons

were illegally served

common law dram shop liability:

1. 11-18-18 it shall be unlawful tosell intoxicating beer to anyone

under 212. 60-13-22 forbids the sale of

intoxicating beer or liqueur to

1. less than 212. anyone who is a

habitual drunkard

3. anyone alreadyintoxicated

4. addicted to acontrolled substance

5. mentally incompetent3. 60-7-12 unlawful for a licensee

having a license to operate aprivate club to give alcohol to

1. under 21

2. already drunk

employer not liable to employee for

liqueuring them up

employer liable to employee for

liqueuring them up

same as majority

Minor can recover against commercialpurveyor

o Gun Manufacturer Liability

Issue: whether the handgun manufacturers had a duty to use duecare in marketing their handguns For reasons of principle and Policy, yes in the Dist. Ct. for the E.D.of N.Y.

o R.T.T. 7 Duty -

(a) An actor ordinarily has a duty to exercise reasonable carewhen the actors conduct creates a risk of physical harm

(b) in exceptional cases, when an articulated countervailing

principle or policy warrants denying or limiting liability in a

particular class of cases, a court may decide that the has no duty or

that the ordinary duty of reasonable care requires modification

(lowering)


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R.T.T. on Scope of Liability

29

Adopts Cardozos Risk Rule (duty as the basis for liability) as the rule for Scope of Liability

- The scope of an actors liability is for harm that made the actors conduct

tortious. positive statement of the risk rule

30

If the actors negligence does not increase the risk to the plaintiff, then the plaintiff is outside the

scope of liability (outside of factual cause).

31

Pre-existing conditions (Bartolone thin skull plaintiff rule)

- Unforeseen consequences are within the scope of liability.

32

Rescue rule - Exception to the normal risk rule. Original is liable to rescuer.

33

Rule for Intentional and Reckless Interveners

- Is their intervention an intervening rule or superseding cause? Answer: Risk

rule.

34

The advent of more refined tools for the proportionment of liability (comparative negligence)

and several liability has undermined one important rationale of the all or nothing nature of

saying is or is not liable when there is an intervening conduct or superseding cause.

35

Enhanced harm due to efforts to render medical or other aid - Original tortfeasor is liable because

it is so common.

7 DUTY

A rule of no liability because of special problems of principle or policy.


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o Unforeseeable Consequences

o Intervening Causes

o Public Policy

o Shifting Responsibility

Lg's Torts Outline

Documents

Transcript of Lg's Torts Outline