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Negligence, Trespassers, strict liability, As the length of time between…

- - - - If P's negligence in any way contributed to their harm, they are bared from ANY recovery. Does not matter how little or much P negligently contributed.
        
        BUT when P's harm was caused by a reckless D, and P was contributorily negligent, P is protected from being barred from recovery based on the fact they were contributorily negligent.
  - - - Modified less than comparative negligence
        
        P is allowed to recover damages only if their negligence is less than that of Ds—cannot be equal to or more than Ds share. P can only recover if they share less than 49% of responsibility. “49% form of comparative negligence”
      - Modified less than or equal to comparative negligence
        
        P is allowed to recover damages only if their negligence is less than or equal to that of D's. “50% form of comparative negligence”
  - - - Expressed assumption of the risk
        
        P expressly agrees to accept risks created by D's actions. Usually, via written agreement.
        
        How to enforce?
        
        Does public policy permit releases of liability in connection with the activity?
        
        If public policy allows assumption of risk for that activity, does the particular release provided by the P merit enforcement?
        
        Absolute defense for D, bars any recovery by P.
      - Implied assumption of the risk
        
        Not expressed by P, but derived by P's actions or law
        
        2 types:
        
        Primary implied assumption of the risk "Primary assumption of the risk"
        
        When a court or statute states that D has no duty to P or that D has not breached a duty to P.
        
        Nothing to do with P's knowledge of risk or interest of excusing D from liability.
        
        Statutes can have primary assumption of the risk for inherent risks of an activity.
        
        D has no duty when risks cannot be eliminated
        
        because risks are inherent to the activity
        
        1 more item...
        
        cannot be eliminated by use of reasonable care
        
        D may have no duty to P when risks of a harm are unforeseeable.
        
        Secondary implied assumption of the risk
        
        P was aware of a risk and voluntarily encountered it.
        
        Subjective test D must show 1. P knew of the risks, 2. P appreciated the nature of the extent of the risks created by D's wrongful conduct, 3. P voluntarily accepted the risk.
        
        Secondary qualified assumption of the risk test, D must show 1. P knew of the risks, 2. P appreciated the nature of the extent of the risks created by D's wrongful conduct, 3. P voluntarily accepted the risk, 4. it was objectively unreasonable for P to expose themselves to the risk.
        
        1 more item...
        
        Does not matter if P acted reasonably.
    - - Assumption of risk in misusing a product. Bars recovery.
- - - - Cause in fact
        
        Proximate cause
        
        Damages
        
        Joint and severable liability
        
        P is entitled to enforce entire damage judgement against a D.
        
        P is found to be 20% liable and Ds joint and several liable 80%, P can only recover from one D 80% of the total award
        
        Where P is found to be 20% at fault, D1 30%, D2 is 50% P can collect 80% of damages from only one of the Ds.
        
        Since this can cause one D to carry entire burden, and another escape it, common law came up with solution: Contribution/indemnity doctrine
        
        1 more item...
        
        P can only recover once.
        
        Usually applies when there is an invisible injury and multiple Ds, OR there is a concert of action and multiple Ds.
        
        Joint liability
        
        Applies where one of many Ds caused the injury but it is not possible to determine which one
        
        Burden shifts to D to prove who caused injury
        
        P can collect 100% of what Ds are liable for
        
        Severable liability
        
        Each D is assigned an individual obligation to P, P may only collect the assignment amount from each D
        
        Injuries
        
        Divisible injuries
        
        When it is possible to establish which actor cased which harm
        P is required to establish which D caused which harm or else they can’t recover
        
        Indivisible injuries
        
        When it is impossible to establish which actor caused which harm
        D must establish which D caused the harm otherwise, must share the liability between them
        
        Generally not recoverable damages
        
        Economic harm
        
        Neglgiently inflicted emotional distress
        
        GENERALLY, Ps can suffer negligently inflicted emotional distress either 1) as a result of an initial injury, 2) by being in the “zone of impact” in which they might have suffered an initial physical impact, 3) did not suffer an initial physical impact.
        
        3 more items...
        
        Birth of an unwanted child
        
        Did D owe a duty to P?
        
        Generally, only those who are foreseeable plaintiffs.
        
        BUT liability further limits to whom you owe a duty, what the duty is, and what the standard of care is
        
        Policy, precedence dictate the scope of liability applied in a particular case in establishing a connection between act and harm to be deemed “proximate”
        
        D breach's of duty was the direct cause of P's injury,
        
        "but for" D's conduct P wouldn't have been injured
        
        Burden of P to prove by a preponderance of the evidence (more than 50% probability) that but for….P’s injuries wouldn’t have occurred OR more likely than not a but for cause
      - Did you fall below the standard of care owed?
    - - Everyone
        
        TO ACT as reasonable prudent person under the same or similar facts and circumstance
        
        Under some circumstances a very high degree of vigilance is demanded by the requirement of ordinary care.
        
        The reasonable person is required to know what everyone in the community knows.
        
        Balancing factors to determine whether an individual owes a duty to another: 1. The relationship between the parties, 2. The reasonable foreseeability of harm to the person injured, 3. public policy concerns.
        
        Where the consequence of negligence will probably be serious injury to others, and where the means of avoiding the infliction of injury upon others are completely within the party’s power, ordinary care requires the utmost degree of human vigilance and foresight.
        
        Generally no duty to ACT in regards to ...
        
        Rescue or Protect
        
        Warn
        
        Common carriers
        
        Inn keepers
        
        2 more items...
        
        Owes a duty to its passengers to
        
        1 more item...
    - - Objective standard
- - - - Owner owes a duty to exercise ordinary care to protect an invitee from risks of which the owner is actually aware of and those risks of which the owner should be aware of after reasonable inspection.
        
        Owner must have actual knowledge of the condition on their premises which creates an unreasonable risk of harm.
        
        Invitee must be unaware of this condition
        
        Invitee must prove
  - - - Owner have actually known of the condition
        
        Licensee must prove
- - - - Product did not work as it was designed to
        
        Product differs from manufacturers intended result OR differs from other identical units in the same product line (direct evidence needed) UNLESS
      - Defendant sold the product to P
        
        Sold product directly to P OR
        
        Sold it to P via sellers in the stream of commerce AND
        
        The product was not substantially changed or altered between when it left the manufacturers direct control and P became in possession of it.
        
        The manufacturing defect was the cause in fact of Ps injury
        
        The manufacturing defect was the proximate cause of Ps injury
        
        Injury
  - - - Defective warning was the cause in fact of Ps injury
        
        Defective warning was the proximate cause of Ps injury
        
        Injury
      - When the foreseeable risks could have been reduced or avoided by reasonable instructions or warnings and the omission renders product not reasonably safe
        
        "Read and heed" law allows seller/manufacturer to assume consumer will read instructions/warnings
  - - - 2 tests the court use for determining if a product had a design defect.
        
        Consumer exepectation test
        
        Risk benefit test
        
        Balances a design’s costs and benefits
        
        A product may be found defective in design, even if it satisfies ordinary consumer expectations, if the products design embodies excessive preventable dangers, that the risk of danger inherent in the challenged design outweighs the benefits of such design.
        
        Test best used when a consumer would not know what to expect of a product in terms of its safety
        
        Product was not designed to perform as safely as the ordinary consumer would expect (objective).
- - - - Personal injury by the wild animal OR
        
        Wild animal trespassed and caused damage to land, possessor, and or chattels.
        
        Public land does not apply
        
        The activity was the cause in fact of the injury
        
        The wild animal is the cause in fact for the injury...“but for the animal”
        
        The activity was the proximate cause of the injury
        
        Is the injury the type of injury that makes the activity subject to strict liability? Nature of the animal was the proximate cause of the injury.
        
        1 more item...
  - - - Animal trespassed on another's land
        
        Animal trespassed on another's land and caused harm to property, household members, chattels, and or the owner.
        
        The activity is the cause in fact of the injury
        
        The activity was the proximate cause of the injury
        
        Is the injury the type of injury that makes the activity subject to strict liability?
        
        Damages
        
        The livestock is the cause in fact for the injury...“but for the animal”
        
        Public land does not apply
  - - - Personal injury by an animal that is viscous or abnormal AND
        
        Owner knew or had reason to know it was viscous or abnormal OR
        
        Owner did not restrain animal
- - - - But for the activity, Ps harm would not have occurred
        
        The activity was the proximate cause of the injury
        
        Injury
        
        Is the injury the type of injury that makes the activity subject to strict liability? Is it the kind of harm, the possibility of which makes the activity abnormally dangerous.
- - - - Is the injury the type of injury that makes the activity subject to strict liability?
        
        Damages
        
        Harm is caused by a characteristic that the owner has reason to know or should have reason to know
- - - - In most cases reasonable prudence is in fact common prudence; but strictly it is never its measure; a whole calling may have unduly lagged in the adoption of new and available devices.
        Industries may never set its own tests, however persuasive be its usages. Courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission.
      - Hand rule ultimately can reject custom because sometimes customs ignore cautions that are so imperative because they cost less to prevent than to ignore (negligent).
      - A custom is a widespread and, for some courts, nearly universal practice.
      - Evidence of an industry custom might be introduced to show that an actor’s failure to follow it amounts to negligence or might be introduced to show that conduct in conformity with custom meets a standard of care but following custom cannot excuse a finding of negligence.
      - You can set standards for yourself that exceed ordinary care and the fact that you’ve done that shouldn’t be used, as evidence tending to show the degree that you believe is ordinary care because there are other factors that go into deciding to set standards that exceed ordinary care. Cannot be held to the standards you set that are above and beyond reasonable ordinary care.
      - A court should not admit a custom into evidence if the custom does not extend to the type of conduct at issue in the litigation.
      - If a person knows what a custom is, that person is qualified to testify to that custom. 2) Parties can prove negligence by expert testimony or by custom.
      - Breach of custom does not shift burden to D once P introduces evidence
  - - - 4 elements traditionally necessary for P to establish in order for court to invoke this doctrine"
        
        Type of injury is usually associated with negligence (does not occur in the absence of negligence)
        
        D had exclusive control of whatever caused the injury.
        
        P did not casually contribute to their injury.
        
        D's access to information about the event is superior to the P's.
        
        THESE ARE ONLY NECESSARY ELEMENTS to be proven. Other 2 may be required in some jurisdictions.
        
        Doctrine allows jury to infer negligence.
        
        P cannot rely on the doctrine of res ipsa loquitur when plaintiff produces direct evidence of the cause of the accident.
        
        It is not necessary for the D be in control of the causative instrumentality at the moment of injury SO LONG AS the D was the last person in control of the instrumentality under circumstances permitting an inference of negligence.
        
        P can establish by common knowledge, expert testimony.
        
        Circumstantial evidence admitted in absence of direct evidence.
        
        All that is needed is evidence from which reasonable people can say that on the whole it is more likely that there was negligence associated with the cause of the event than that there was not (preponderance of the evidence).
        
        P is NOT required to eliminate with certainty all other possible causes or inferences.
- - - - Burden shifts to Ds to prove which one of them did or did not do the harm.
  - - - When both Ds are concurrently negligent, and either one of them could have caused Ps harm, and P cannot prove which D caused their harm, P had been harmed many years later by Ds fungible product (unreasonably dangerous) and all the Ds who could have caused Ps harm do not need to be included.
- - - - Nature of the tortious act
        
        Kind and amount of assistance.
        
        Party's relationship to the tortious actor.
        
        Was the party present or absent when the tortious act occurred?
        
        Party's state of mind.
- - - - Custom and practice are relevant but not conclusive
      - Geographical scope to setting the standard
        
        Local standard
        
        Modified local standard
        
        National standard
  - - - Doctors breach this duty when they withheld ay facts which are necessary to form the basis of an intelligent consent by the patient of the proposed treatment.
        
        Standard for showing causation: but for compliance with standard, P wouldn’t have had procedure, and injury wouldn’t have occurred.
  - - - Only required to make reasonable efforts to warn
- - - - PROXIMATE CAUSE
        
        HARM
        
        Violation of statute was un excused.
        
        Ds violation of the statute was the cause of Ps harm that the statute was designed to protect against.
      - But for Ds violation of the statute Ps harm would not have occurred.
- - - - When a statute is violated, the injured party is entitled to an instruction that the party violating is guilty of negligence, and if that negligence proximally caused or contributed to the injury, then the injured party is entitled to recover.
        
        Where a statute contains a general, abstract description of a duty, a plaintiff proving that a defendant violated the statute must nevertheless prove each of the elements of negligence in order to prevail
- - - - Objective standard
- - - - Respondeat superior
        
        An employer is liable for negligent acts committed by an employee within the scope of the employment regardless of whether or not employer was negligent themselves
        
        DOES NOT APPLY TO independent contractors UNLESS
        
        Factors in determining if there is an employer-employee relationship: 1. the extent of control exercised by the master over details of the work and the degree of supervision, 2. the distinct nature of the worker's business, 3. specialization or skilled occupation, 4. materials and place of work, 5. duration of employment, 6. method of payment, 7. relationship of work done to the regular business of the employer, 8. the belief of the parties.
        
        the activity is inherently dangerous.
        
        Does not bar P from suing employees for negligence in addition to suing for vicarious liability.
        
        Employers typically cannot sue under right of contribution, but can sue employee for indemnification.
        
        A special errand is incidental to employment, so the employer is liable for acts occurring during that special errand.
    - - Ps injured by negligent use of automobiles or other vehicles can recover from vehicle owners even if the owner wasn’t negligent
        
        A car owner is found vicariously liable when: 1. there is death or injury to a person or property, 2. the harm is a result of the operator's negligence, 3. the negligence arose from use or operation of the vehicle, and 4. the operator was using the vehicle with the owner's permission.
        
        OR 1. the accident arrows out of the inherent nature of the automobile, 2. the accident arose within the natural territorial limits of an automobile and the actual use, loading or unloading must not have been terminated, 3. the automobile must not merely contributed to the cause or condition but must itself product the injury or be the proximate cause of the injury.
- - - - If D’s conduct is a cause in fact for P’s harm and there were no intervening forces between D’s conduct and P’s harm
        
        Direct in time and space
        
        Failing the directness test
        
        failing to show there was a direct connection between D's conduct and P's harm
        
        Most courts do not use directness test on its own. Often used in conjunction to another test.
        
        D is liable for unforeseeable consequences of their act that was directly related to P’s injury/harm. Why? b/c injury and harm must be foreseeable not consequences.
      - Who proves elements of this test? P
      - Duty foreseeability analysis
        
        Whether or not P is a foreseeable party to whom D owes a duty to.
    - - Direct causes
        
        Direct in space and time
      - Intervening causes
        
        Occur when a third party’s conduct comes after the original tortfeasors act in the chain of events leading to P’s injury/harm
        
        An intervening act is reasonably foreseeable, and will not break the casual connection between the original negligence and the later injury, IF the subsequent force or conduct is within the scope and or a normal consequence of the original risk the tortfeasor created.
        
        The original tortfeasor does not need to foresee the specific conduct and consequences which makes up the intervening force. It is sufficient if the risk of harm attributable to the intervening act is foreseeable.
        
        OR original tortfeasor should have realized a third person might so act, and a reasonable person would not regard the act of the third person as highly extraordinary.
        
        Original tortfeasor is liable for the harm/injury caused by the intervening cause.
      - Superseeding causes
        
        Occur when a third party’s conduct comes after the original tortfeasors act in the chain of events leading to P’s injury/harm
        
        Superseding/Intervening Causes Test
- - - - PROXIMATE HARM
        
        HARM
        
        Proof of harm.
        
        Each D created a substantially similar risk of harm AND all of the Ds who could have caused the harm are being sued by P.
      - Only one caused the harm and P cannot prove which one.
- - - - PROXIMATE HARM
        
        HARM
- - - - PROXIMATE HARM
        
        HARM
- - - - PROXIMATE HARM
        
        HARM
        
        P's harm occurred a substantial time after consuming Ds products
        
        joinder of enough of the manufacturers of the fungible or identical product to represent a substantial share of the market.
      - inability to identify the specific manufacturer of the product or products that brought about P's injury or illness
    - - A P must prove that Ds products produced a singular risk factor in order for market theory to be equitable enough for Ds to be held liable.
        
        Singular risk factor means that the same harm/injury would have occurred to P from any of the D products regardless of which D produced it. Products can be different, but they must then EQUALLY share the same amount of risk for harm/injury.
- - - - PROXIMATE HARM
        
        HARM
- - - - PROXIMATE HARM
        
        HARM
- - - - PROXIMATE HARM
        
        HARM
        
        Owner's failure was the proximate cause of injury to the licensee.
      - But for owner's failure P wouldn't have been harmed.
    - - Failed to use ordinary care to warn
      - Failed to use ordinary care to make danger reasonably safe.
- - - - PROXIMATE HARM
        
        HARM
- - - - PROXIMATE HARM
        
        HARM