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Flashcards in Page 22 Deck (41):
1

What must the plaintiff established for market share liability?

The culpability of the defendant in that he manufactured and marketed something that was dangerous for use

2

What is the defendant's burden in a market share liability situation?

Defendant must prove he wasn't the supplier of the product, and if he can't, he is responsible for the percentage of the market he had for that product at the time of the injury

3

What is the best example of A market share liability situation?

DES drug used for pregnant women and many years later the babies had reproductive issues, but moms didn't know which brand they used

4

What is another classic example of when marketshare liability would come into play?

Asbestos manufacturers

5

If a defendant aggravates a pre-existing condition, what should he be liable for?

The aggravation, not the pre-existing injury itself

6

A pre-existing medical condition is not the same thing as what?

A pre-existing injury

7

What is a preemptive cause?

Someone that acts before you and is therefore liable

8

If someone poisoned your tea and another shoots you in the head before you can drink the tea, who is liable?

The person who shot you because the poison wasn't the cause of death

9

What is the loss of chance approach?

When Defendant makes the plaintiff lose the opportunity for a better outcome, he is liable for the loss he caused

10

Loss of chance approach is usually applicable to what situations?

Medical situations

11

If P Goes to the doctor who doesn't diagnose her cancer, but if he had she would've had a 40% cure rate, and when she is finally diagnosed it is fatal. What is the defendant liable for?

If plaintiff can show that but for his malpractice, she wouldn't of lost a 40% chance of survival, so the loss of chance is the injury that must be compensated for

12

What is fear of further harm?

If a physical injury is present, courts allow recovery for fear of future harm like cancer. If no physical injury is present, it is unlikely you will recover just for the fear of developing an injury later

13

What is the Major issue in proximate cause?

Foreseeability and how far the liability runs

14

What Is proximate cause?

An act from which an injury results as a natural consequence and without which the injury wouldn't have occurred

15

What are the ways to establish proximate cause?

If the manner and type of injury or foreseeable and there are no intervening superseding forces to break the chain

16

What are The two major issues that must be discussed when you talk about proximate cause on an essay?

Foreseeability and intervening acts

17

What are Intervening acts?

New forces that join with the defendant's conduct to cause the plaintiff's injury

18

If an intervening act is unforeseeable, how does that affect causation?

Usually becomes a superseding cause and breaks the chain

19

Proximate cause is a way to determine how far what goes?

Responsibility

20

At some point in negligence, a person can't be held responsible because why?

The injury is too far removed

21

Proximate cause involves limitations placed on the person's liability if what?

They couldn't have possibly anticipated that someone would get hurt

22

What does it mean that the harm must fall within the scope of defendants liability for negligence?

Harm Must come from the risks that made defendant's conduct negligent in the first place

23

Who Decides whether the defendant's conduct was the proximate cause of an injury?

The jury

24

Are intervening criminal acts for proximate cause usually foreseeable?

No

25

Is intervening negligence usually foreseeable for a proximate cause?

Yes, so it wouldn't be a superseding cause

26

What are the elements of proximate cause for negligence?

type of harm, manner, P

27

What must the type of harm be for proximate cause to be established for negligence?

The type of injury had to be foreseeable based on the negligent act of the defendant

28

If your roommate leaves a jar of rat poison in with the spices and close to the stove, and you are cooking and the heat from the stove makes the rat poison explode, is that a foreseeable type of harm from proximate cause for negligence?

No, you expect the poison to be used as a spice, not for it to explode, so the roommate's acts were not the proximate cause of your injury

29

What are the two leading cases for unforeseeable type of harm for proximate cause for negligence?

A. Polemis: liability for unforeseeable consequences
B. Wagon mound: no liability for unforeseeable consequences

30

What Is the Polemis view for unforeseeable type of harm for proximate cause for negligence?

Proximate cause is found whenever the injury is a direct result of D's breach and doesn't matter if it was unforeseeable

31

Why do most courts reject the Polemis approach to proximate cause for negligence?

Because it is too rigid

32

Which is the majority approach for the type of harm for proximate cause for negligence?

Wagon mound approach

33

What is the Polemis case?

Ship that was negligently loaded and a wooden plank was knocked into the hold that was filled with gas, and a spark ignited the gas and the ship was destroyed. Fire/explosion wasn't the type of foreseeable injury, but the defendants were liable because the injury was a direct result of their negligent act

34

What is the wagon mound approach to proximate cause for negligence?

Causation is found when the plaintiff's injury results directly from defendant's breach only if the type is reasonably foreseeable

35

The wagon mound approach says that if an unforeseeable result occurs, what?

It isn't fair to hold the defendant liable no matter what causation pattern occurred

36

What is the Wagonmound case about?

A freighter leaked furnace oil into the bay where the P's dock was, and molten metal falling onto cotton floating on the surface caught on fire and P's dock was destroyed. D's act was not the proximate cause because it was unforeseeable the fire would start that way, so he wasn't held liable since you would only imagine the cotton would clog the dock and cause damage, not a fire would start

37

If the nature of the plaintiff's injuries is unexpected, how does that affect proximate cause for negligence?

It doesn't because of the egg she'll skull rule, it doesn't matter what extent the harm was, if the harm was the type that was foreseeable, you're liable

38

All courts hold the defendant liable for the full extent of what?

Plaintiff's injuries

39

If you hit an NBA player with your car and have to pay $5 million in lost wages, can you argue that it was an unforeseeable extent of harm and that you shouldn't be the proximate cause?

No, because it doesn't matter what the extent of harm was, that doesn't affect your liability

40

If you have a negligently maintained fence that is likely to fall down in the wind, but instead a deer crashes into it and it knocks down and damages a car, are you the proximate cause?

No, the deer is an intervening cause

41

What is marketshare liability?

When a defective product causes injury and you can't prove which brand was used