Final Countdown

Question 1

What are the elements of negligence? (Feldman) (Themis)

Answer 1

The elements of negligence are duty, breach, causation (both actual and proximate), and damages.

Question 2

How do you establish duty? (Themis)

Answer 2

Defendants owe foreseeable plaintiffs a duty to exercise reasonable care in conduct that risks physical harm. (30)

Question 3

Do people usually have a duty to act?

Answer 3

No.

Question 4

What are the exceptions to the no duty to act rule? (Feldman)

Answer 4

The exceptions of the no duty to act rule are assumed duty, custody, and control.

Question 5

What is assumed duty? (Feldman)

Answer 5

In assumed duty cases, defendants are held to have duties to act – to rescue or protect persons whose peril they are not legally responsible for creating – because they have deliberately or inadvertently brought that responsibility upon themselves.

Question 6

What is custody? (Feldman)

Answer 6

Custody cases involve an exception to the “no duty to act” rule justified by the dependence of the person in custody on the care and protection of the party with custody.

Question 7

What is a landowner’s duty to invitees? (Feldman)

Answer 7

Landowners owe invitees a duty to exercise reasonable care to keep
the premises in a reasonably safe condition.

Question 8

What is a landowner’s duty to licensees? (Feldman)

Answer 8

A possessor of land is liable for harm to a child trespasser caused by an artificial condition if the possessor knows or has reason to know that children are likely to trespass near the condition, the possessor knows or has reason to know that the condition causes an unreasonable risk of serious injury to child trespassers, the children because of their youth do not discover the condition or recognize the risk involved, the utility of the condition to the possessor and the cost of eliminating the danger are slight compared to the risk to child trespassers, and the possessor fails to exercise reasonable care in eliminating the danger or in protecting the child trespassers.

Question 9

What is a landowner’s duty to trespassers? (Feldman)

Answer 9

The person in possession of the property has a duty “not to do any
willful or wanton or aggressive act with respect to [a trespasser’s] safety.” This duty has been interpreted to include the duty to not maintain “traps,” which are generally defined as “hidden dangers intentionally placed
to injure [trespassers]

Question 10

What is a landowner’s duty to a child trespasser? (Feldman)

Answer 10

Due care must be exercised to protect child trespassers against attractive nuisances.

Question 11

What makes a nuisance attractive? (Feldman)

Answer 11

An artificial condition upon the land is an attractive nuisance if “(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and (b) the condition is one which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and (c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or incoming within the area made dangerous by it, and (d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and (e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.” (481)

Question 12

Are landowner’s able to keep open and obvious risks? (Feldman)

Answer 12

Yes, but if they are unreasonable they may be required to eliminate the risk.

Question 13

How do you establish a breach of duty? (Feldman)

Answer 13

BPL Formula, ARP Standard, or Customary standard for the industry.

Question 14

What is negligence per se? (Feldman)

Answer 14

A. The statute must be a safety statute (contrast the skating rink case [Pelkey] with the liquor case [Schooley]

B. directed against the kind of injury that occurred (contrast being pinned by a moving
car with being harmed by fire or explosion [De Ponzia]), and

C. for the benefit of the class of persons of which the plaintiff is a member (see the fire
code case [Snapp]).

Safety Statute
Against the Kind of Injury
For the benefit of the persons being injured

Question 15

What is res ipsa loquitor? (Feldman)

Answer 15

1. The accident must be of a kind that ordinarily does not occur in the absence of someone’s negligence. RIL permits the use of general evidence to establish the specific negligence of the defendant. (Not Ordinary)
2. It must be caused by an agency or instrumentality within the exclusive control of the defendant. Exclusive control may involve either physical possession or legal responsibility (ownership of the plane in Newing). (Defendant in control?)
3. It must not have been due to any voluntary act or contribution – i.e., causal precipitation – on the part of the plaintiff. (Plaintiff contribution?

Doesn’t happen without fault
Defendant in exclusive control
Plaintiff did not contribute

Question 16

What do you need to prove for the causation element of negligence?

Answer 16

Actual and proximate cause.

Question 17

What are the ways you can establish actual causation?

Answer 17

Actual causation can be established using the but-for test, the substantial factor test, joint liability, alternative causation, and loss of chance.

Question 18

What is the but-for test for determining actual causation? (Feldman)

Answer 18

When we have a single negligent injurer, we ask “but for the defendant’s breach of
their duty of care, would the plaintiff have suffered the same injury?” This can also
be stated “in the absence of the defendant’s breach of their duty of care, would the plaintiff have suffered the same injury?” If the answer is “yes,” then the defendant’s breach is not the “but for” cause of the harm.

Question 19

What is the substantial factor test for determining actual causation? (Q)

Answer 19

Under the substantial factor test, each defendant’s negligence can be considered an actual cause of the harm if that defendant’s negligence was a substantial factor in the injury. It is not necessary that either act of negligence be the sole cause of the harm, as long as each act of negligence played a significant role in bringing the harm about.

Question 20

What is the loss of chance doctrine? (Feldman)

Answer 20

The loss of chance doctrine states that the defendant’s malpractice increases the plaintiff’s chance of suffering some harm (e.g., death) from a preexisting condition or disease. There is only one breach of duty, but the harm that it causes is hard to distinguish from the harm inflicted by the preexisting condition or disease. In other words, either the breach or the background risk may have caused plaintiff’s injury; either cause is sufficient to cause some such injuries and neither is necessary to cause any particular injury.

Question 21

What is joint liability? (Feldman)

Answer 21

Because each and both A’s and B’s negligence together is the “but for” cause of the injury and the harm is indivisible, each wrongdoer is severally liable for the whole harm, and both are jointly liable for the whole harm

Question 22

What is alternative liability? (Feldman)

Answer 22

Alternative liability is the court shifts the burden of proof to the defendants: each defendant must come forward with evidence that the shot which struck the plaintiff was not fired from their gun.

Question 23

What is the purpose of alternative liability? (Feldman)

Answer 23

The purpose of alternative liability is: (1) if we don’t shift the burden of proof we confer a windfall benefit on a negligent defendant at the expense of an innocent plaintiff and (2) each defendant is in the best position to exculpate
themself.

Question 24

What is the doctrine of joint and several liability? (Feldman)

Answer 24

The doctrine of joint-and-several liability means that each defendant contributing to the same harm is liable to [the victim] for the whole amount of recoverable damages.

Question 25

What is contribution? (Feldman)

Answer 25

Contribution is a right that exists between or among two persons who are jointly and severally liable upon the same indivisible claim for the same injury, death, or harm, whether or not judgment has been recovered against all or any of them.

Question 26

What is indemnity? (Feldman)

Answer 26

Indemnity is also a right that exists between or among parties liable to the
same victim for an indivisible harm. Unlike contribution, which is an equitable sharing of the loss, indemnification is a shifting of the entire loss from one tortfeasor to another, either (a) by prior agreement or (b) by operation of law based on equitable considerations such as “where one party has primary or greater liability or duty which justly requires [them] to bear the whole of the burden as between the parties.”

Question 27

What is proportionate liability? (Feldman)

Answer 27

Proportionate liability means that each defendant contributing to the same harm is liable to the victim only in proportion to their
tortious responsibility for the victim’s injury.

Question 28

What two tests are used to determine proximate cause? (Feldman)

Answer 28

The foreseeability and the hindsight/directness tests.

Question 29

What is the purpose of the proximate cause doctrine? (Feldman)

Answer 29

The effect of proximate cause doctrine is to cut off responsibility for consequences at some point, even though the consequences would not have happened but for the tortious conduct of the defendant.

Question 30

What is the foreseeability test for determining proximate cause? (Feldman) (Q)

Answer 30

“The risk reasonably to be perceived defines the duty to be obeyed ….”

Imagine a film of the accident. The foreseeability test requires you to freeze the film at the point where the negligence takes place and ask yourself why it was negligent –
what is the risk (the PL in the Hand formula)? Now run the film forward and see if
the accident is what was foreseen.

The general test for proximate cause asks whether the harm was a reasonably foreseeable consequence of the defendant’s conduct. Foreseeability, in this context, refers to the general type or character of the harm, not to the exact manner in which the harm occurred, or the scope of that harm.

Question 31

What do you need to remember about proximate causation? (Feldman)

Answer 31

Don’t be too quick to conclude that a low P case does not warrant a precaution,
especially when the low P risk is accompanied by other risks. Lots of cases are in a gray area, so we need to rely on policy, logic, and evaluative judgments to make a decision. (Wagon Mound)

Question 32

What is the hindsight/directness test for determining proximate cause? (Feldman)

Answer 32

“a natural and continuous sequence—direct connection….”

For the hindsight/directness test, we run the film to the end and examine the causal
chain between the negligent conduct and the harm. The tortfeasor is liable for all consequences that are “proximate” whether or not they are “unusual, unexpected,
unforeseen, and unforeseeable.”

Question 33

Who is the hypersensitive plaintiff? (Feldman)

Answer 33

The hypersensitive victim case is one where there has been a breach of duty toward this plaintiff, but the plaintiff is hypersensitive and their damages are therefore more extensive than those that a typical victim would suffer. So the harm is more than the torfeasor would expect.

Question 34

What is an intervening cause? (Feldman)

Answer 34

An intervening cause is an event that occurs after a tortfeasor’s initial act of negligence and causes injury/harm to a victim. It is both a cause in fact and a proximate cause of the harm.

Question 35

What is a superseding cause? (Feldman)

Answer 35

A superseding cause is an intervening cause that breaks the chain of causation and absolves the tortfeasor of liability for the victim’s injury. The problem of superseding cause is figuring out when an intervening cause is a superseding cause.

Question 36

When is gross negligence a superseding cause? (Feldman)

Answer 36

Gross negligence is a superseding cause “when knowledge of the latent danger or defect is actually possessed by the original vendee, who then deliberately passes on the product to a third person without warning.”

Question 37

Is ordinary negligence of a healthcare provider within the scope of the risk created by a negligent tortfeasor? (Feldman)

Answer 37

Yes. – it is both direct and foreseeable – whereas gross negligence is not.

Question 38

Where negligence breaches a preexisting duty of care that arises out of a contractual or fiduciary relationship, is recovery for pure emotional distress is permitted? (Feldman)

Answer 38

Yes.

Question 39

What is ordinary contributory negligence? (Feldman)

Answer 39

Inadvertently and carelessly exposing oneself to an abnormally dangerous risk—is not recognized as a defense.

Question 40

What is comparative fault? (Feldman)

Answer 40

Restatement Third § 25 takes the position that fault and strict liability are “incommensurate” and instructs us not to think of “comparative responsibility” but about “assigning shares of responsibility” after “considering the relevant factors.”

Question 41

What is an assumption of risk?

Answer 41

Did they voluntarily and unreasonably confront a known risk?

Question 42

What is vicarious liability? (Themis)

Answer 42

Vicarious liability is when the defendant is liable for another’s negligence.

Question 43

What is the doctrine of respondeat superior? (Q)

Answer 43

The doctrine of respondeat superior holds an employer vicariously liable for torts committed by its employee if (1) the employer and employee have a master-servant relationship, and (2) the employee commits the tort within the scope of employment.

Question 44

What are the steps of determining vicarious liability? (Feldman)

Answer 44

1. What is the underlying tort?
2. What is the scope of the employment?

Question 45

What tests do courts use when evaluating scope of employment? (Feldman)

Answer 45

The benefits test, the substantial control test, the in the service of test, the motive test, and the fairness test.

Mnemonic: M-FIBS or Morgan FIBS (Motive, Fairness, In the Service, Benefits, Substantial Control)

Question 46

What factors are used to determine scope of employment? (Themis)

Answer 46

(1) Acts employed to perform; (2) activities that profit/benefit employer; or (3) acts intrinsic to the employment relationship

Question 47

What is an independent contractor? (Feldman)

Answer 47

An “independent contractor” is an agent whose “physical conduct” the principal
does not have the right to control. “If the employer’s right to control the activities of
an employee extends to the manner in which a task is to be performed, then the
employee is not an independent contractor.”

Question 48

What are the differences between employers and independent contractors? (Feldman)

Answer 48

“the employee surrenders to the employer the right to direct the details of
[the] work, in exchange for receiving a wage” whereas the independent contractor is committed to providing a specified output and
the principal monitors the contractor’s performance by inspecting that output.

Question 49

What are the justifications as to why principals are not liable for the torts of independent contractors? (Feldman)

Answer 49

(1) to place liability on the party best able to
bear and distribute the loss (2) to assign liability to the party best able to control the
underlying risk and (3) to assign liability so that the costs of accidents are borne by
those who benefit from the activities that precipitate them

Question 50

What is the incompetent contractor exception majority rule? (Feldman)

Answer 50

Robinson is the general rule. Becker concludes that the general contractor is in the best position to ensure that subcontractors carry adequate liability insurance. Robinson objects, noting that not all principals are in a position to monitor the insurance coverage of the independent contractors that they hire.

Question 51

What is the apparent agent theory? (Feldman)

Answer 51

In Search, apparent authority is said to “depend upon the third-party’s perception of the agent’s authority,” which “may be based upon written or spoken words or any other conduct of the principal which, reasonably interpreted, causes the third person to believe that the principal consents to have the act done on [their] behalf” by the apparent agent.

Question 52

When does strict liability effect animals? (Feldman)

Answer 52

The strict liability extends to harms caused by the “dangerous propensities” of the animal that are (1) “abnormal” (taking the risks of ordinary domestic pets as normal) and (2) either (a) typical “of [the animal’s] class” or (b) of which the “possessor” has “reason to know”

Question 53

What is an abnormally dangerous activity?

Answer 53

Conduct that is so inherently hazardous that it cannot be made less risky by the exercise of due care. Someone who engages in an abnormally dangerous activity may be held strictly liable for injuries that foreseeably result from the activity.

Question 54

What are the danger factors for an abnormally dangerous activity?

Answer 54

Hand Formula
(a) Existence of a high degree of risk (P)
(b) Likelihood of great harm (L)
(c) Inability to eliminate risk by reasonable care (B)

Mnemonic: DIL (Degree, Inability, Likelihood)

Question 55

What are the abnormality factors for abnormally dangerous activity?

Answer 55

(risk/benefit/fairness):
(d) Extent to which activity is not common – as compared to common activities like driving create reciprocal risks
(e) Whether the activity is inappropriate to the place it is carried on
(f) Extent to which the activity’s value to the community

Mnemonic: VAC (Value, Appropriate, Common)

Question 56

What are the most common ADA activities? (Feldman)

Answer 56

Disposal of hazardous wastes, storing or using explosives, storage of natural gas, storage of poisonous substances, and fumigation.

Question 57

What are the defenses to ADA? (Feldman)

Answer 57

Assumption of risk, and/or contributory negligence, comparative negligence, superseding cause, abnormal sensitivity.

Question 58

What is the definition of product liability? (Q)

Answer 58

An area of law in which manufacturers, distributors, suppliers, retailers, and others who make products available to the public are held liable for injuries caused by those products under theories of negligent design, manufacture, or failure to provide adequate warnings.

Question 59

When is strict products liability applied? (ES)

Answer 59

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused t the ultimate user or consumer, or to his property, if: (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition which it is sold. (2) The Rule Stated in (1) applies although: (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought product from or entered into any contractual relation.

Question 60

What is a manufacturing defect? (Q)

Answer 60

A claim that a particular product received a defect during its manufacture resulting in the product’s deviation from its manufacturing specifications and causing injury to the plaintiff.

Question 61

How can a plaintiff recover for manufacturing defects? (MEG)

Answer 61

A plaintiff can recover for a manufacturing defect if (1) the product physically departs from its intended design (2) in a way that makes the product unreasonably dangerous, and (3) the defect actually and proximately causes harm to the plaintiff. A product is considered to be unreasonably dangerous when the defect renders the product dangerous beyond the expectations of the reasonable consumer.

Question 62

What is a design defect? (Feldman)

Answer 62

Design defects are harder to identify because (1) they affect an entire product line and so can’t be identified by comparing the allegedly defective product to a “normal” product, and (2) they can’t be identified with design features that cause injury (there’s nothing wrong with a knife just because it can cut or kill you).

Question 63

What are the consumer expectation test factors? (Feldman)

Answer 63

The manufacturer is liable because the gloves are (1) “in a condition not contemplated by the ultimate consumer,” and (2) “dangerous to an extent beyond that which would be
contemplated by the ordinary consumer.”

Question 64

What is the consumer-expectation test? (Q)

Answer 64

A test used to determine liability in products-liability actions. In cases involving manufacturing defects, a product will be found unreasonably dangerous under the consumer-expectation test if the product is dangerous beyond the expectations of an ordinary, reasonable consumer if used or misused in a reasonably foreseeable manner. In cases involving design defects, a product will be found to have a defective design under the consumer-expectation test if the product as designed is dangerous beyond the expectations of an ordinary, reasonable consumer if used or misused in a reasonably foreseeable manner. The consumer-expectation test is also known as the consumer-contemplation test.

Question 65

What is the Risk-Utility (RU) test? (Q)

Answer 65

A comparison of the usefulness of a product with the risk of danger it poses to consumers.

Question 66

What are the factors of the Risk-Utility (RU) test? (Feldman)

Answer 66

Courts applying the R-U test have considered a variety of factors including: (1) the usefulness and desirability of the product; (2) the likelihood that it will cause injury and the probable seriousness of the injury; (3) the availability of a substitute product that would meet the same need and not be as unsafe; (4) the manufacturer’s ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive; (5) the user’s ability to avoid danger by the exercise of care in the use of the product; (6) the user’s anticipated awareness of the dangers inherent
in the product; and (7) the feasibility of the manufacturer spreading loss by setting the price of the product or by carrying liability insurance.

Question 67

What is the Barker test for products liability? (Feldman)

Answer 67

Originating in Barker, some jurisdictions use a two-pronged test that holds if either the CE or RU test for design defect are satisfied then the design is defective. There is only one requirement to pass one of the tests, not both.

Question 68

What questions are asked to establish warning liability? (Feldman) (ES)

Answer 68

Did the defendant fail to adequately warn or instruct about the dangers of a product? The central inquiry is what is the alleged warning defect that caused the plaintiff’s harm? Duty extends to all foreseeable persons who will come into contact with and consequently be endangered by that product except if the danger is open and obvious. A manufacturer of product, which a manufacturer knows or should know is dangerous by nature or is in a dangerous condition is under a duty to give warning of those dangers to persons who it is foreseeable that will come in contact with and consequently be endangered by that product.

Question 69

What is an unreasonably dangerous product? (Feldman) (ES)

Answer 69

Unreasonably dangerous products are those that are dangerous beyond what would be contemplated by the ordinary consumer with the ordinary knowledge common to the community as to its characteristics. A defective condition makes a product unreasonably dangerous. A seller is under an obligation to warn and instruct against any dangers that the seller has knowledge of or should reasonably foresee. Bilateral precautions are required for unreasonably dangerous products because all parties can reduce the product’s risk.

Question 70

What is an unavoidably unsafe product? (Feldman)

Answer 70

Unavoidably unsafe products are those which in the present state of human knowledge are incapable of being made safe for their intended and ordinary use. These products only require unilateral precautions from the seller to warn because they are the only party in control of the safety of the product.

Question 71

What constitutes a failure to warn?

Answer 71

A manufacturer is not “held strictly liable for failure to warn of risks inherent in a drug even though it neither knew nor could have known by the application of scientific knowledge available at the time of distribution that the drug could produce the undesirable side effects suffered by the plaintiff”

Question 72

What are available to defenses to a seller?

Answer 72

User conduct, contributory negligence, open and obvious

Question 73

User conduct defense

Question 74

Open and obvious

Answer 74

There is no duty to warn about open and obvious risks because the product does the warning. (Belling case- shallow pool)