Duty, Breach, Remember: DUI is not negligent if the drinking

was not negligent and the driving was b/c of an

& Actual Cause emergency. Likewise, dangerous instrumentalities
Attack Outline are merely figured into the SoSC.

First: For all but children, phsically disabled, and professionals, (or emergency situation) the duty itself is stagnant.
Level of care exercised by a reasonable and prudent person in the same or similar circumstances (SoSC)
ALSO:
+
No duty to
Second: Extra factors are worked in via SoSC; these change the degree of care (not standard). Relevant factors are: protect ?
Standard Duty
-> Increased knowledge (addtl. training or experience); from "open &
-> Emergency situation, "sudden & unforeseen change in cric which is not ? 's own fault (but see if ? is trained to obvious
work in emergencies) Some states give this its own duty standard, some just work it in here under SoSC. danger"
-> ? 's greater knowledge than ? in a given activity (Non-exhaustive list)
-> Unforeseeable changes in weather/ act of god.

First: Define the Breach - (? failed to _______, the risks of which a RPP would think were foreseeable and too risky to
undertake without precaution). Note: There may be several breaches, some will require independent analysis.
NOTE:
- If cannot think of one, check types. a) ? creates and fails to take reasonable actions to abate hazard; b) ? discovered If alleged
or should have discovered a condition created by others but failed to take reasonable steps to abate; or c) method breach is
of business made it foreseeable that others would create risks & failed to take reasonable measures to discover remedial,
and remove risk. there must
have been
reasonable
Second: Establish a breach through the facts, if custom or regulation provides a guideline. time to
Custom as a sword: Self-imposed standard by ? ? higher duty than RPP in SoSC. BUT these standards can be used discover and
as a factor in demonstrating that the risk was foreseeable to the ? . act
Regulations as a sword: See negligence per se
Custom as a shield: Following industry customs or norms ? excuse for neg/ no breach. CAN be used to show
Breach reasonability of care.
Regulations as a shield: Following minimum regulations ? duty per se. CAN be used to show reasonability.

Third: Assess Structured Means (Hand Test) Unstructured Means

the Breach.
If B < L x P ----> Brch. Social Utility Stndrd Care Involves Risk Burden of Prctn
Use Hand Test If B ? L x P ----> No Brch. Weigh costs of Degree of care req. is weight Probability of
if given B - Brdn of Precaution conduct against both of the risk of precaution to ? harm against
numerous L - Cost of injury (liblty) less risky against the risk of harm from damage harm
variables. P - Probability of accidnt alternatives AND the not doing so. would cause
benefit of act. (ie lawnmower might
explode and hurt)

Fourth: Call a spade a spade. If the risks outweigh the benefits and precautions to RPP, it is a breach of duty.

Single Tortfeasor/ Divisible Injury Multiple Tortfeasors/ Indivisible Injury Rules

But-For Test Pre-Emptive Cause Duplicative Cause Indeterminate Cause

- Sequential rule; no - Forces join; both - Summers v. Tice
liabiilty for 2nd tortfeasr tortfeasors liable - Burden shifts to ? s
? ? breach duty ? breaches duty
- If each ? torts in way - If each ? torts in a - Two separate actions,
which would cause way which would each sufficient to cause
complete damage to ? , cause complete harm, but no evidence
(>50% chance?)
but one ? does so first damage to ? , but their as to which act actually
and causes the acts either join prior to caused said harm, the
complete damage, the reaching ? or reach ? burden will shift to ? s to
Harm? Harm.
2nd ? is NOT LIABLE at same time, BOTH prove their act was not
- Likely argued by 2nd? ARE LIABLE. the injurious one.
even if not tech. apprt. - Even if two causes, - Otherwise, both are
one not neg, one neg, considered duplicative
Actual Harm have this relationship, causes for purpose of
No harm;
Cause anyway; the rule still applies. damage allocation.
breach
No breach
Breach for ? 1; no
Increased Risk Rule: If chance of breach for ? 2. Substantial Factor Test/ R3T 26
harm was initially less than 50%, but
? 's breach put the risk above 50%
then actual cause is met. Apportion Damages:
NOTE Duplicative:
-Maj rule: Apportion based on fault.
Duplicative causation is
-Min rule: If can't fault based, apportion equally. Do
still appropriate when
Loss of Chance Rule: If tort is med. we cannot tell which -Old rule: No actual cause, no recovery. these
mal or infm cnst, and harm reduced sequential event caused after
chance of survival/recovery by a '%', what; ie head hit prox
even if the initial chance was <50%, something twice, but we Each ? 's Total Possible Liability Stage: caus
? can recover for injury which DID don't know which Guaranteed to be joint and several for test. ? can
happen after lost chance (not future) caused the concussion. recover completely from a single ? .
see medical page.
 Additional Duty &
Breach Rules
Atypical Duties

Duty of Children
Standard Duty: Care of child of same age,
intelligence, maturity, training, and
experience would exercise in the SoSC.
Rule of 7's: Duty varies by age.
0-7: Incapable of negligence
7-14: Presumed incapable of
negligence (burden shift to ? )
14+: Presumed capable of negligence
(burden on ? to show childness)
Adult Activities: Adult standard RPP.
Duty of Mentally Disabled
To normal people: Held to
RPP in SoSC standard as
regular adults.
To caregiver: No duty to a
caregiver.
Argue that an ambiguous
disability (like ADD) is also a
physical disability and
therefore duty shift.
Duty of Physically Disabled
Standard Duty: RPP with same
physical disability in SoSC.
Argue that an ambiguous
disability (like ADD) is also a
physical disability and therefore
duty shift.
Professional Duty
Minimally competent
practitioner of that profession.
(Lawyers, CPAs, etc)
Superior Physical Prowess
Duty: RPP with same special
abilities. Purely theoretical, never
applied. Usually just scooped up
into the SoSC.
Emergency Situation
There is no duty to act 100%
reasonably in an emergency
circumstance which is

Negligence Per Se
Establishes Duty & Breach

Three Conditions Extra Condition Tip-Offs: If there is a statute in

1. Does the statute clearly define a duty? - If the statute creates its own private right of the fact pattern, prob neg per
Duty 2. To protect the kind of harm caused here? recovery, then neg per se is inappropriate se.
3. Is ? a member of the protected class? Also: Keep on the lookout for
commonly illegal things such
as speeding, trespassing, etc
Did ? violate the statute? Per R2T 288A, was the breach excused? (Not exhaustive)
- Does not matter if -> Violation reasonable due to ? 's incapacity;
criminally convictable; -> ? neither knows nor should no to comply (ie didn't know was
only that person was in shooting a gun); -> Unable to comply after reasonable diligence;
breach of statute. -> Emergency not due to ? 's own conduct; -> Compliance Maj. Duty&Breach, Min1 presm
Breach would involve greater risk to others? of neg, Min2 violation is mere
Common Exceptions: factor in determining dyt &
-DUI not neg per se (nor neg) if drinking was responsible, emergency arises, and no other breach
good means of emerg. transp available.
- Failure to wear a seatbelt not traditionally considered neg per se (for purposes of
contributorily negligent per se)

Back to standard analysis for actual causation and proximate causation

But remember that set-up of neg per se

essentially automatically meets
proximate cause

Only proper if we cannot otherwise articulate a

Res Ipsa Loquitur breach. Either due to lack of evidence or ? cheating
Try to be mechanical in
Establishes Breach application of Res Ipsa
in discovery/ lying in police questioning ??

Duty Utilizes standard duty. Cut and Paste here if enough room.

First: Articulate the inferred breach. -> Despite a lack of evidence, it can be inferred by a jury
that ? breached his duty to ? by _______ which caused injury to ? .
Second: Note if there would be a discrepancy between the old test and the new test. Then
note that the old test is not applied rigidly, its rules are used as guidelines.
Serial control of instrumentality?
Traditional Test R2K 328D Test - Multiple ? s automatically
Breach 1. Accident does not ordinarily 1. Accident does not ordinarily occur in Ultimately, ? invalidates Res Ipsa Loquitur;
occur in absence of negligence; absence of negligence; must be more UNLESS the serial tortfeasors
2. Instrumentality was under 2. Other responsible causes, including ? 's than 50% were acting in concert at same
exclusive control of ? ; conduct, are sufficinelty eliminated; and likely time and place.
3. Act or negligence of ? did not 3. Negligence is w/n scope of ? 's duty to ? . responsible - Argue both that they were in
contribute to the event. for harm. concert and weren't in concert
and pick best argument.

Back to standard analysis for actual causation and proximate causation

 Proximate Cause
& Damages

Was ? 's injury within the scope of the risk of ? 's breach? Bizzare, unforeseeable results do not satisfy.

Safe Harbor?
Was there a change of scenery of some sort? ? will argue a "safe harbor" ? should argue "plight of the
plaintiff" -> the determinate factor is whether or not the harm was a) still in the bosom of time or b) ? 's level of
extra risk had 'reset' to a normal person's again. Always look for this one. Eich likes it.

Intervention of Third Parties

Did somebody attempt to rescue ? , but gave him more injuries? -> Rescue doctrine 'danger invites rescue'

In receiving professional treatment, was there malpractice? -> med malpractice always w/n scope of risk
Eichner's 'Fact Pattern Wrinkles'

Did a third-party committ a criminal act? Two rules. 1) Marcus - Was the criminal act itself foreseeable
(railroad rape case)? -> prox cause met. 2) Collins - So long as general harm itself is foreseeable, intervening
criminal act need not be (arson burning apartments).

Proximate Non-rescue intervening negligent act? -> Apply manner of harm unforeseeable test to see if the intervening
Cause neg act was itself foreseeable. Also apply manner of harm test for intentional act of third party?

Very Duty Rule: When ? 's breach is failure to protect against the risk of harm of another's actions omissions, Prox Cause Met
there is NO proximate cause limitation. (ie plane designer cannot say we may have negligently manufactured
plane cockpits, but the 9/11 hijakers were an intervening cause - preventing this was their 'very duty')

Foreseeability of Harm Issues

Was the manner of harm unforeseeable? -> So long as the type of harm was foreseeable this is still
proximate cause. (If the kind of harm is too bizzare, then probably not) ??

Was the 'force unleashed' far beyond the kind which was foreseeable? If too much beyond, no proximate
cause; ? cannot be responsible for a totally unknown result of his action (ie fear of a splash, but explosion
occurs because of unknown chemistry). (but an open flame causing a large fire would be considered forsbl)

Eggshell Skull: If the ? has significantly increased damages due to a pre-existing condition and the harm
incurred by ? would have hurt a normal person in some way, ? is responsible for all damages. ? must take
the ? as he finds her. This can also be applied to land in an environmental spill.

No Trespassory Negligence, Must have Actual Harm

Compensatory Damages Punitive Damages Apportionment

- Lost wages or earning capacity
Could be super tricky for a
student (average grad's
wage?)
Damages - Medical Expenses
Both past and *guaranteed*
future
- Pain and Suffering
Both emotional and mental
Protects 'freedom from pain'
- Special Damages
Others which do not fit neatly
- Awarded when a ? acts wilful
or wantonly to provide
measure of deterrence and
punishment for wrongdoer's
serious misconduct.
- When multiple ? s contribute to
an issue, the portion each much
pay will be apportioned via fault.
- Younger people less culpable
- Very elderly less culpable
- Never said in class, but the
further your characteristics stray
from the RPP, the less culpable
you'll likely be.
- Likewise, the more your actions
stray from the RPP, the more
culpable you'll likely be.
 Medical Negligence Remember: Keep in mind that these are two
Informed Consent distinct causes of action. Eichner has taken
Neg. Cause of Action off points in the past for confusing them.

Reasonable Doctor Standard: Reasonable Patient Standard:

- Would a reasonable Dr. have informed a - Would a reasonable patient have informed
patient of the risks? a patient of risks?
Duty - Requires Expert testimony - If risked effects are "material" to patient
then no expert testimony required. S.S. will treat performing an operation
w/o IC as a BATTERY; but a claim
Discuss if there is only a duty to war of risks of undergoing a procedure OR if there is
against a Dr. for not informing of
also a duty to inform patients of an additional treatment on which Dr was silent.
available treatment would not satisfy.

Breach Information not given = breach Only if other, more skilled dr's are
available must a dr give info on success
rate & personal experience
Subjective Causation Objective Causation
- Would ? have foregone the procedure - Would both ? and the RPP have foregone Loss of chance is
with the additional knowledge? the procedure with the additional distinguished from future
knowledge? chance of harm in that the
harm has ALREADY occurred
Be Careful: Is this a future causation issue?
Actual in loss of chance scenario.
-Is part of the injury only a future increase of risk? If not more-likley than not (50%+), then
Causation Now we are just figuring out
court will NOT consider the future harm as actionable. ? will need to wait until the
what part of fault goes to this
actual harm occurs.
particular defendant who DID
BUT: Old exams say to analogize this to a loss of chance, even though you will still say
NOT have a greater than 50%
that it is a no until the injury is discovered/ occurs.
increase of bad outcome
Source of Liability Issue: Even if the pain/ injury appears later, ? MUST be able to link
the damage back to ? 's lack of informed consent.
Loss of Chance Rules
(Applies to both Infm Cnst & Med Mal)
Prox. Assume $100k total damages, 30% LoC
Causation Should be pretty automatic but keep on lookout for general prox cause issues. 1. Traditional but-for cause.
No recovery
2. Relaxed Causation (Cur Min.)
Only responsible for damages beyond the initial injury. If ? would have been paralyzed Full $100k recovery
Damages anyway, then Doc cannot be sued for the paralysis; only for additional pain of having the 3. Loss of Chance (Cur Maj.)
bad procedure. Liability will be shared w/ initial ? based on fault. Proportional $30k recovery

Medical Malpractice
Neg. Cause of Action

"Minimally competent doctor": In light of accepted medical standards, the Dr. was unskillful If the negligent was obvious and
or negligent AND that this want of skill or care caused an injury to the ? . Expert test. eggregious, such as not giving a
simple blood test or amputating wrong
Strict Locality Rule Modified Locality Rule National Standards Rule limb, RPP standard w/o expert
Duty - Only experts who practice - Only experts who practice - Any expert can testify. testimony is sufficeint under normal
in the SAME locality may in a SIMILAR locality may - Level of care is for methods, negligence.
testify to establish duty & testify to establish duty & a Dr. will not be penalized for
breach. breach. Large room for not having state of art equip.
debate of "similar." - Specialists ALWAYS nat stan In some states an
apology by the Dr
is sufficeint to
Established by the expert. Still articulate it as the initial malpractice for purposes of using in establish both a
Breach but-for causation. duty and breach

Would the injury have occurred from the initial malpractice rather than how the patient
recovered? Use But-For test.
(ie if there was a negligent surgery which then caused perm pain due either to stitches or
Actual chronic pain; doesn't matter - the pain would not have occurred w/o the surgery)
Causation
BUT Beware: If the 'initial' malpractice would have determined on the locality rule, then Beware of same loss of
note if the subsequent malpractice (stitches) would have been enough. chance problems as in
informed consent cases.

Proximate
Causation If actual cause met, then prox cause should be fairly automatic.

Dr. is only responsible for the additional injuries presently incurred by the malpractice. See above for loss
Is NOT responsible for chance of future increased pain. of chance
Damages Can be sued for loss of chance if and when the speculative problem emerges. damages.
Will share fault with the initial ? through J&S li. Will be apportioned based on FAULT.
 Negligence
Affirmative Defenses

Impact of Rebuttal on ? 's

? 's Affirmative Defense Impact on ? 's Liability ? 's Response Recovery

Bexiga - Duty to protect ? from ? 's own fault

Where foreseen neg. is ? 's own fault, contrib neg does not apply. Always complete
Ex) Metal stamp press saftey feature OR unprotected stairwell

Christinesen - Special Relationships (Pub Pol Very Duty)

In a contributory negligence state, this - As matter of pub pol, students have no duty to protect
completely bars any recovery by ? . themselves from teachers. Nor do others in certain special Always complete
relationships (prob mental health profssnls)
In a comparative fault state, this bars
recovery by ? per % of ? 's own fault ? 's Right to Use own Property
Contributory Negligence - ? has right to maintain neg. affair of own propety if it would only
In a modified comparative fault "not as harm him. Ex) haystacks near railway. NOT APPLIED Complete when permitted
(did ? not get off the bus, great as" state, if ? 's negligence is UNIVERSALLY Ex) Rapper wearing jewlery in ghetto dnq.
did ? agree to an activity, 50/50 split then complete bar to
did ? do anything which Rescue Doctrine - If ? is rescuing initial ? of ? , rescuer's Contrib -> Complete unless
recovery
could somewhat be negligence cannot be taken into account unless it was wilful or wilful or wanton
considered a but-for wanton. SPLIT. Maj -> cmplte bar Comp -> S.S. roll into fault
In a modified comparative fault "not
cause?) Min -> not a complete bar.
greater than" state, if ? 's negligence is
50/50 split then recovery at 50% Last Clear Chance Doctrine If ? discovered or should have
permitted. discovered ? 's negligence on two elements, then barred Contrib -> complete
(1) Could or should have discovered AND (2) could have Comp -> rolled into fault
May need to elaborate on the responded in time (? must be unable to rescue self) comparison
calculation rules here. Minority: Discovered Peril - Removes "should" only "could" qlfs
? 's Reckless or Intentional Misconduct - ? cannot use
? here trying to use a neg
negligence defense on an intentional tort claim. If ? 1 negligently
defense on an intent. Invalid.
armed ? 2 to intentionally injure ? , this is permissible.

? 's Duty to Mitigate If ? 's conduct made recovery NOTE: S.S. say this prevents ? from even having caus of act. If eggshell succeeds, no
Damages impossible -> no recove in contrib state ? could argue he had an eggshell skull if were an addict or reduction. If eggshell fails, in
ex) Smoker doesn't stop In comp. state -> no gen rule. may have otherwise had condition that made mitigation difficult comp state will be rolled into
& neg inj bcms worse recovery reduced for failure to mitigate (but ? could argue ? had gotten to a safe harbor) fault analysis

If ? 's conduct was "seriously" illegal,
then recovery will be barred in contrib.
? 's Illegal Conduct - If not "seriously illegal" will be rolled
into comp fault analysis.
? would need to argue that his conduct was not "seriously illegal"
If conduct not seriously
and that it was innocuous. REMEMBER: Being a child or
illegal, then rolled into
otherwise unconvictable does not mean shit in permitting
comparative fault
recovery.

Formerly Assumption of the Risk Below - Note that this is what it was and then proceed to how it is treated today.
Express Assumption of
Risk/ Waiver of Rights
against negligence
Contrib. Neg.
"Secondary Assumption
of the Risk"
? should argue that public policy factors would weigh against
enforcement. 1) Ability to obtain a substitute; 2) essential nature
Completely bars ? 's recovery, even in a of services (hospital or pub. housing); 3) extent of bargaining If ? can get around waiver,
comparative state. process; 4) could ? pay more and not waive rights; 5) special full recovery for ? .
relationship (employer employee or tenant landowner).
6) Waiver must SPECIFICALLY waive the harm caused to ? .
Situation: ? knowingly confronts a risk
created by ? (housekeeper cleaning
toys), but minimally contributes own
neg (does not look down stairs). ? was contrib neg, look to those affirmative rebuttals.
Effect: Rolled into comparative fault
analysis.

Situation: ? neg put own child into

? not at fault, ? at fault
danger, ? assumes a risk to aid the
child. ? must argue that she was not unreasonable/ wilful or wanton in
Effect (Old): Would totally bar recovery. ? gets full recovery.
confronting the risk created by ? .
Effect (New): Would not bar any
recovery, via rescue doctrine, unless
unreasonably dangerous.

Situation: ? runs a ski slope and takes

reasonable measures to make it safe. ?
injured on part of slope which it would
? did not breach a duty have been unreasonable to remediate;
therefore there was no duty to remove
the hazard.
Effect: Complete bar on ? 's recovery.
? must show that there was a duty to ameliorate the situation,
? if successful, ? could
doing so was reasonable, and that ? 's failure to do so was
have reg neg suit back.
unreasonable.
 All intentional torts must be
voluntary. An involuntary jerk ??
Battery
or automatic reaction will not
Motive, knowledge, or knowledge of substantial certainty that H meet the necessary level of
or O contact will result culpability; check negligence.
---------------------------------------------------------------------------
If no, is there an intent to assault or confine which could
Intent

transfer? Or an intent to batter a nearby person?

---------------------------------------------------------------------------
If yes to either, did ? consent in such a way as to deomnstrate Remember that children, mentally ill, and Borat will have
an objective consent which would undermine intent ? different intent. Will need to analyze both dual and single
(mention here, in-depth analysis in Aff. Def.) intent per first outline.
Prima
Facie
Case
Par. 1
Harmful or offensive contact results.
Elm. 2

-------------------------------------------------------------------------------
An assault which causes a trip onto a spike does not satisfy
contact; would merely be assault + ELP

Extended Liability principle goes HERE. Note which extraneous

ELP

Differences in application to False Imprisonment

acts the ? would still be liable for.
- Intent to confine (effect of confinement may be enough)
- Knowledge of confinement
- FI also has common law citizens arrest as an Aff. Deff.
- FI also has shopkeeper's privilege available.
Consent. Analyze via RPP in ? 's SoSC; objective standard.
Spcl. Cnst.

-> Was consent limited; ->Was it withdrawn; -> Did context of

situation invalidate; -> Nature v. Happening (underestimation of Differences in application to Assault
the risk); -> Legally incapable; -> Power relationship? - Be sure to note a case where a battery would be raised
but insufficient

Self-D Do3 DoP DoChttl

-Force is -Force is rsnbl -Force is rsnbl -Force is
Aff. rsnbl -RPP would -RPP would see rsnbl
Deff. -RPP would have "imminent neccsry to prvnt -Fresh
Privileges

Par. 2 have threat" prop dmg pursuit?

"imminent -Mistake rules -Pssry Intrst -Shpkprs
threat" Priv? Keep in mind rules
-No deadly about deadly force
reasonable mistake

Public Necessity? Private Necessity?

? 's Rebuttal
Was the plaintiff under the privilege of public or private
to ? 's
necessity at the time of ? 's assault or battery?
Privileges
If so, ? did NOT have the protection of the above privileges
Par. 3