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72 Cards in this Set

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Res Ipsa Loquitur Rule Statement
When P has no evidence of negligence, Jury may infer it when: 1. D has exclusive control at the time of the negligence, 2. wouldnt happen in ordinary course of events 3. reasonable person thinks its more likely than not caused by D's negligence, 4. in contributory neg. juris-P didnt contribute to their own injury.
Byrne v. Boadle
Res Ipsa:
shifts burden of proof to D due to their superior knowledge
McDougald v. Perry
P doesnt have to eliminate all alternative causes of the injury. Only has to prove that it was more likely D's negligence than not
Larson v. St. Francis Hotel
The hotel didnt have exclusive control over the falling armchair
If there is more than one potential D, cant say that any of them had exclusive control.
Cant have an equally viable alternative cause
Ybarra v. Spanguard
Exception to Larson
where a p receives uusual injuries while unconscious and in the course of medical treatment, all Ds who had control over his body or the instrumentalities may be calle don to prove that they werent negligent
Sullivan v Crabtree
the effect of RIL
doesnt automatically mean that there is negligence
Only creates a presumption in favor of P
D can still rebut it
allows a case to go the jury even though P has not proved all of the elements of neglience
3 Effects of RIL
1. inference of negligence which the jury may draw or not
2. presumption-must find D negligent if he cant prove otherwise
3. Shifts burden of proof to D to disprove by preponderance of the evidence
Sine Qua Non
But For Test: D's conduct caused the event if the harm couldnt have been caused but for the negligence.
there can be more than one but for cause
Perkins v. Texas
escape theory too speculative
If it would have happened even without the negligence, fails the but for test
Substantial Factor Test
alternative approach to the But For test
if there is more than one cause of the harm, but neither is a but for cause, they will still be held liable if the negligence is a substantial factor in bringing about the harm
Anderson v. Minneapolis
forest fires
If either cause could be a substantial factor, liability is established under concurrent causation
Otherwise P would be left without relief because neither is a but for cause
Proof of Causation
Speculation or possibility of causation isnt good enough
Expert Testimony must be good science and relevant
Reynolds v. Texas
Corpulent Woman
mere possibility that the injury would have occurred without the negligent conduct is not a sufficient defense when Ds negligence greatly increases the chances of an accident.
Gentry v. Douglas
accidentally shot woman
Possibility that the negligence caused the harm isnt enough. Must prove that the negligence was the cause of the injury
Kramer v. Wilkins
cancer from cut
Coexistence of negligence and injury is not enough
Herskovits v. Group Health
death from misdiagnosis
Loss of Chance Theory: whether it more likely than not reduced the chance of survival
original chance of survival doesnt have to be higher than 50% for this to apply.
Only need but for or substantial factor test
Daubert v. Marrel Dow
Expert admissibility
1. good science
-accepted in scientific commuity
-subjected to peer review/publication
-can be and has been tested
-acceptable rate of error
2. relevant-logically advances a material aspect of the party's case
Hill v. Edmonds
hit tractor in the middle of street
where separate acts of negligence combine to directly produce single injury, each D is responsible for the entire result even if each act alone might not have caused it.
Summers v Tice
2 quail hunters both shot at friend
If P can prove causation of more than one D, but doesnt know which D actually caused the harm, doesnt mean neither is liable
burden of proof shifts to Ds to show they didnt do it.
If neither can prove they didnt do it, both are held liable
Sindell v. Abbot Labs
DES
Enterprise Liability Theory: if the D's in the case represent a significant portion of the entire market, each D's liability depends on their share of the market
damages should be distributed based on the amount of risk (market share) created by each D
*minority view-special case*
Proximate Causation
after determining causation in fact, a jury may use proximate cause to determine whether D should be held liable. If too remote or unusual, D cant be held liable. If foreseeable or direct, D will be held liable even if P is particularly susceptible to injury, but subject to policy considerations.
Atlantic v. Daniels
prox cause=limit beyond which courts will not look to trace a connection between cause and efffect
Arbitrary, practical limit.
Ryan v. New York
fire from RR spread to other properties
D is only liable for the damages which are foreseeable/natural/expected from the initial negligent act.
*minority rule*
Wagon Mound 1
oil spill ignites
only liable if you can reasonably foresee the kind or type of harm caused, not the fully extent of the injury or the manner in which it occurred.
Wagon Mound 2.
if reasonable person could foresee and prevent the injury, D is liable for that injury
Bartolone v. Jeckovitch
psychotic breakdown from a minor car crash
Eggshell Skull Theory= D must take P as he finds him and may be liable for any aggravation of a preexisting condition
Polemis
Pole fell into a hull full of gas
Direct Cause Theory: D is liable for consequences that follow in an unbroken sequence without intervening causes from his actions even if the exact type of injury was not foreseen
Problem: what if subsequent conduct contributes to the injury
Palsgraf v. Long Island
fireworks and sketchy woman
only have a duty if injury was caused to someone within the zone of a reasonably foreseeable P. If not, not foreseeable and not liable.

minority: liable if a direct and natural consequence of negligence. liable to ANYONE harmed
Yun v. Ford
spare tire on highway
Reasonably Foreseeable v highly extraordinary
If highly extraordinary or a matter of policy, it is a question of law for a judge, not a q for the jury as negligency typically is.
united novelty v. Daniels
cleaning machines with gasoline when gas covered rat ran to heater and exploded
As long as its an expected result, it doesnt matter how it happened.
Intervening Causes
an act that contributes to and injury but does not break the causal link
Superceding Intervening Cause
an act that could not be foreseen by a reasonable person, is highly extraordinary, or too remote

Breaks the causal link and ends D's liability.
Derdiarian v. Felix
worker hit by epileptic driver

if the risk of the intervening act is the same as that which renders D negligent, it is not a superceding act

Actor is liable for foreseeable risks even if the manner in which it occurs is not foreseeable
Watson v. Kentucky
sketchy dude drops match on spilled gas

only superceding if done with malice, but if done inadvertently, D is liable because its foreseeable.

Old law-today, criminal doesnt mean unforeseeable
Fuller v. Price
suicide after accident caused multiple seizures

If caused by an irresistible impulse, it may be foreseeable so D would be liable.

suicide does not preclude liability

preplanning is grounds to dismiss.
McCoy v. American Suzuki
rescuing from defective samurai

Rescue Doctrine: allows rescuer to sue the party which caused the danger through their negligence

must still prove prox cause
4 Rescue Doctrine Factors
1. D was negligent to the person rescued
2. peril was or appeared to be imminent
3. reasonable person would have concluded that such peril existed
4. rescuer acted with reasonable care

can be used in products liability and common law
cannot be used by professionals (fire and policemen)
Proximate Cause: Public Policy
Even where proximate case might otherwise been found, if policy considerations are strong enough, courts may decline to impose liability
Kelly v. Gwinnel
drunk social guest

policy of trying to reduce drunk driving deaths outweighs possible negative social effects of imposing liability on a social host.

later limited by statute
Enright v. Lilly
DES from gma to P

liability is cut off at a child exposed in utero

Otherwise liability mught be limitless
Joint Tortfeasors
under the causation element of negligence, if two or more individuals cause P's injuries, they are both liable to P and damages are either in joint and several liability or in several liability
Joint and Several Liability
each tortfeasor is liable to the injured party for her full damages and may be sued for those damages either singly or along with the other tortfeasors

doesnt apply if the tortfeasors cause separate injuries
Biercynski v. Rogers
2 kids racing their cars, 1 hits P

Concert in Action: injury is seen as indivisible and unable to be apportioned so Ds are held concurrently negligent and jointly and severally liable
Coney v. JLG Industries
employer and manuf sued for work platform death

Adoption of comparative negligence does not change the doctrine of JSL.

Reduce the damages by % of P's fault, then each D is JSL for that amount.
Bartlett v. New Mexico
car pile up

Under New Mexico comparative negligence laws, JSL id not applicable to force 1 D to pay the entire amount of damages

concept of one indivisible wrong is obsolete

courts moving away from JSL-only 16 remain.
Successive-not related acts
JSL usually not available because dmg can be apportioned
P has the burden of proving that it was not one sole cause

if not able to be apportioned, 2nd tfeasor may be held liable for the entirety
Bruckman v. Pena
injuries from first accident aggravated by later accident

1st D cannot be held liable for any subsequent injury even if they cannot be apportioned.
successive-related
D has burden of proving who caused the injury and the apportionment of dmgs

1st tfeasor will be held liable for all injuries, but 2nd will be liable only for the aggravation of injuries.
Concurrent
all ds have burden of proof and each is liable for the full injury
Michie v. Great Lakes Steel
canadian complainers

where the negligence of two or more persons concur to produce a single, indivisible injury, they are JSL even when there is no common design, duty, or concert of action

Burden of proof shifts to Ds once P proves injury and causation
Restatement 26
divide damages into indivisible component parts and then separately apportion for each D
Dillon v. Twin states Gas
kid electrocuted on bridge

Probable future of P bears on apportionment of liability as well as damages

Determine P's fault and then make Ds prove how to allocate remaining dmgs among D's.
Satisfaction and Release
even though P may recover from multiple Ds, P may only recover a single sull satisfaction
Bundt v. Embro
blocked stop sign

the act and its consequences are indivisible and the injured person is therefore limited to a single satisfaction.

Once you collect a judgment, it is deemed fully satisfied
Partial satisfaction
settlement
allows you the possibility of suing again later
after settlement, your recovery in later litigation will =(total damages-amount of settlement)-% of P's fault.

Wont be allowed if it is against policy-fraud, mistake, undue influence, perverse incentive
Release 3 views
1. release necessarily releases other tfeasors, but covenant not to sue does not unless full compensation has been made
2. a release with express reservations to sue other tfeasors is treated as a covenant not to sue
3. a release without express reservations will not be held as a release unless that is its clear intent.
Cox v. Pearl Investment
Covenant not to sue is not the same as a release

A release also releases principals of vicarious liability and successive tortfeasors
Elbaor v. Smith
Mary Carter Agreement
If Ds stay in the case after a settlement, the settlement is void even if made known to the court, jury, and opposing party

wrong as a matter of policy-confuses juries, no adversarial process, conflict of interest
Contribution
One JTF can sue or join another for their contribution to the damages awarded to P

Only in JSL
Knell v. Feltman
crash with taxi

Just because P only sued one D doesnt mean that D can join or later sue other JTF for contribution
Yellow Cab v. Dreslin
husband and wife crash with taxi

Cant collect contribution from an immune tfeasor
Contribution for Settlements
may seek contribution without a judgment

D must prove:
1. other person is a JTF
2. the settlement was reasonable
Slocum v. Donahue
floormat caused childs death

a low settlement figure alone is not evidence of a bad faith settlement when that settlement releases that tfeasor and bars contribution
Indemnification
Requires Vicarious or Derivative liability
Only when principal doesnt join in negligent activity

Example: employer can seek indemnification from employee when employee is able to pay some of the damages.
Duty of Care: Privity of K
Ks may create a duty where it otherwise might not exist, but a duty may be found even when there is no privity.
nonfeasance
failure to act at all.

usually tort actions wont lie, only k actions will

exceptions: common carriers, someone who makes a k without intention to perform it
misfeasance
when you attempt or go beyond mere preparation to perform, but fail.
Winterbottom v. Wright
mail coach repair

Duty arose solely from k with Postmaster General

No duty to driver

Policy: limit liability
HR Moch v. Rensselear
insufficient water/pressure in hydrant

intended no duty to the public and doing so would open them up to crushing liability.

Majority Rule
Clagett v. Dacy
failed foreclosure sale

privity only with attorney's client, not the D bidders

would be a conflict of interest
Macpherson v. Buick Motor Co.
wooden wheel collapsed

Duty because danger was foreseeable/reasonably certain even thought there was no k.

took on the duty to make a safe car for consumers, but failed
Failure to Act
usually there is no duty imposed on someone to take affirmative action