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NEGLIGENCE ANALYSIS: MAIN ISSUE: Whether the Plaintiff has a prima…

- - - - SUB-RULE: Proximate Cause is more about Policy than causation. The court asks whether
        it is fair to hold the defendant liable even where that Defendant is the factual cause of the Plaintiff's harm. For a Defendant's breach to be a proximate cause of the plaintiff's injury, the type of harm suffered by plaintiff must be a foreseeable consequence of the Defendant's breaching conduct.
        
        SUB-ISSUE: UNEXPECTED HARM - "EGGSHELL RULE". The issue is whether the plaintiff suffered from a pre-existing condition that caused an unexpected harm.
        
        SUB-RULE Defendant takes Plaintiff as is. Where a plaintiff has a pre-existing condition that makes her suffer more injury that would be expected/foreseeable from Defendant's breaching conduct, the breaching conduct is the proximate cause of the Plaintiff's injury, such that the Defendant bears the cost of the Plaintiffs damages.
        
        ANALYSIS:
        
        Was the harm a foreseeable consequence of the D’s breach? Make sure to specify that the type of harm IS FORESEEABLE! Discuss foreseeability of harm generally & discuss specific facts provided in fact pattern; make sure to also specify if Eggshell doesn’t apply)
        
        If more than one intervening cause, do an analysis for each one & look at each separately. If any of them are superseding, the chain of causation is broken.
        
        SUB-RULE: INTERVENING CAUSE However, if it an intervening act is unforeseeable to the D, then it is superseding and cuts off D’s liability. Generally, there are four categories of unforeseeable intervening causes: (1) acts of nature; (2) intentional torts of third parties; (3) criminal acts of third parties; and (4) gross negligence of third parties. Ordinary negligence is typically foreseeable. However, the foreseeability of all intervening acts (including the above) must be determined by a factual analysis.
  - - - 3 ALTERNATIVES TO "BUT-FOR" TEST:
        The law allows for alternatives to the "but-for" test
        
        SUBSTANTIAL FACTOR TEST: Where multiple Defendant's are a factual cause of an indivisible injury to the Plaintiff, the Defendant's may be found to be jointly and severally liable to the Plaintiff, and therefore 100% responsible for the damages.
        
        The factual Cause element is satisfied when: (1) there are 2 or more successive or concurrent events, each of which on their own would have caused the Plaintiff's entire harm and, (2) the plaintiff suffered a single indivisible harm
        
        ALTERNATIVE CAUSATION/LIABILITY: An alternative to the “but for” and “substantial factor” test is the Alternative Causation/Liability test. Under this test, the factual cause element is satisfied for each Defendant, where the following elements are satisfied: 1) Two or more Ds, all of whom are before the court; 2) All Ds breached the duty of the care; 3) Injury was caused by only one of the Ds and 4) Impossible to tell them from the facts which D caused the injury.
        
        MARKET SHARE Where multiple manufacturers of a fungible good are named as defendants in a negligence action and it cannot be determined which manufacturer caused the precise harm complained of, the manufacturers will be held proportionately liable in accordance with their market share in the market of the good that caused the injury.
        
        Under Market Share Theory, the factual cause element is satisfied, where" (1) There are 3 or more Defendant's, (2) each of whom negligently produced identical product that caused the injury that the Plaintiff suffered, and (3) The Plaintiff cannot prove which specific defendant caused the injury.
        
        ANALYSIS
        
        “But for” the breaching conduct, the Plaintiff would have been harmed. Therefore, “but for” is satisfied.
- - - - We must first see wether the Defendant owed the Plaintiff a duty of care.
      - SUB-RULE A
        
        COMMON LAW DUTY OF CARE (REASONABLE PERSON STANDARD): GENERAL RULE. A Defendant owes a Plaintiff a duty of care if the Plaintiff is foreseeable. If a defendant is not foreseeable, then there is no negligence.
        
        FORESEEABILITY: To be foreseeable, the Plaintiff must be within the Zone of Danger created by the Defendant's allegedly breaching conduct.
        
        ZONE OF DANGER: In order to determine whether the Plaintiff is in the Zone of Danger one must consider...
        
        ANALYSIS
        
        CONCLUSION As evidenced above, the Defendant owed the Plaintiff a duty of care because the plaintiff was a "foreseeable" by being within the zone of danger created by the Defendant's alleged breach.
        
        1 more item...
        
        GENERAL APPLICATION: Analyze the relationship with the Defendant and how the Defendant is close to the time and space of the alleged breach; does their relationship weigh heavily in favor of duty? Could the D expect its level of care to impact P? (This relates to foreseeability as well)
        
        2 more items...
        
        (1) the relationship between the Plaintiff and the Defendant.
        
        (2) the time and space between Plaintiff and Defendant's alleged breach.
- - - - To replace a common law duty of care with a duty of care from a statute, a plaintiff must prove 3 elements:
        (1) the statute clearly defines the required standard of conduct applicable to the facts in the case,
        (2) the statute was intended to prevent the type of harm the defendant's act or omission caused, AND
        (3) the plaintiff is a member of the class of persons the statute was designed to protect.
        If any of these is not met negligence per se fails & one must default back to the reasonably prudent person standard.
        
        ANALYSIS
        
        (1) DOES THE STATUTE/REGULATION CLEARLY DEFINE THE REQUIRED STANDARD OF CARE APPLICABLE TO THE FACTS IN THE CASE?
        
        Example: YES/NO, the statute says it is unlawful to (insert act here) and the driver (did/did not do something to break the law).
        
        YES :check:
        
        (2) WAS THE STATUTE INTENDED TO PREVENT THE TYPE OF HARM THE DEFENDANT' S ACT OR OMISSION CASUED?
        
        YES :check:
        
        1 more item...
        
        :red_flag: Be careful what you argue. Do not to think of statutes in terms of protecting the general pubic from all harms because that would pretty much make everything negligence.
        
        Example: NO, the statute was designed to protect people from (specific harm D's act created)
        
        NO :no_entry: Finish analysis and conclude NO, but then proceed to go through the Common Law / Reasonable Person Standard.
        
        NO :no_entry: Finish analysis and conclude NO, but then proceed to go through the Common Law / Reasonable Person Standard.
        
        :red_flag: Before you dive into the analysis identify the allegedly breaching conduct. The allegedly breaching conduct is...