No Act/ Affirmative Duty to act under certain cases
Special Relationship
Responsibility
Undertaken Aid
Reliance on a promise
Duty to warn or control conduct of others
Breech of Duty/Standard of Care
Was the Plaintiff are Foreseeable one. Two Tests
Maj. (Cardozo view) No duty unless reasonable person would have foreseen the risk of the harm to plaintiff
Minority (Andrews view) Duty owed to anyone injured as a proximate cause of defendants negligence
Types of Harm Suffered
Emotional Harm
Prenatal
Economic
Issues to Plaintiff’s Identity
Immune from liability
Public Policy limitations on liability
Public Policy reasons to extend a duty to D
Applicable Standard of Care
Duty to act as reasonable person under same or similar circumstances.
Modifications of General Rule
Physically disabled D
Child D
Professional/Expert
Physician
Emergency
Special Duty Creation
Common Carrier
Innkeeper or Restaurants
Role of Custom
Criminal Statutes
Control of Third Parties
Employer/Employee
Negligent entrustment
Parent/Child
Commercial Establishments/Intoxicated Patrons
Social Hosts/Intoxicated guests
Merchants/protections from Criminal acts
Owner/ Occupier of land
Majority Rule- Categorical approach imposing limited duties and standards of care based upon the status of the plaintiff
Plaintiff is outside land
Unknown adult or child trespasser
Known Adult trespasser
Known Child trespasser
Licensee
Invitee
Minority Rule: Roland factors; Reasonable person standard regardless of entrant’s status.
Landlord/Tenant
Time of Transfer of Property
After Transfer of Property
Common Areas
3rd Party Criminal Acts
Dangerous activities or conditions by tenants
Athletic Activity
Breech of Standard of Care
Types of Evidence
Circumstantial
Malpractice Issues
Res Ipsa Loquitur
Accident doesn’t occur without someone’s negligence
Effect of establishing Res Ipsa
Marginal Utility
1. Likelihood and severity of harm to P balanced against utility, benefits, and necessity of D’s conduct.
Actual Cause of Injuries
But-For Standard
Substantial Factor Standard
Other Possible Causes
Reasonable certainty test
Rule
Alternative Liability Test
Rule
Successive tortfeasors approach
Rule
Concerted action/joint tortfeasors approach
Rule
Market share in DES cases
Rule
Market share in non-DES cases
Rule
Loss of Opportunity
Enhanced Risk of Illness
Damages Issues
Risk of Perspective illness
Emotional Distress
Medical Surveillance
Unnecessary Medical Treatment(without informed consent)
Majority
Objective reasonable patient standard
Minority
Subjective patient standard
Proximate Cause of Injuries
Defendant is generally liable if it was reasonable foreseeable that D’s negligence would cause P’s harm or the risk of P’s harm would be increased by D’s negligence
Extent of Harm foreseeable or Unforeseeable
Did negligence cause a foreseeable type of harm in a foreseeable way.
Did negligence directly cause the harm
Unforeseeable type of harm
Harm in a unforeseeable manner
Did negligence indirectly cause the harm
Unforeseeable type of harm
Harm in a foreseeable manner
Harm in a unforeseeable manner
Near in time and Space from negligence to harm
Fairness/ Public policy
Compensatory Damages
Special Damages
General Dames
Pure economic loss
Pure emotional distress
Wrongful pregnancy, birth, death
Loss of consortium
Defenses
Doctrine of avoidable consequences apply
Contributory negligence
Assumption of risk
Express assumption
Implied assumption
Comparative Negligence(Used to reduce P’s award)
Pure comparative negligence
Effect of comparative negligence on tort doctrines.