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by rmwick

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Breach of Duty - Definition
D's conduct falls short of that level required by the applicable standard of care owed to P.

Question for trier of fact.
Proof of Breach - 3 Theories
1) Custom or usage
2) Violation of statute
3) Res Ipsa Loquitur
Proof of Breach - Custom or Usage
May be used to establish standard of care; but
Does not control the question of whether certain conduct amounted to negligence.
Proof of Breach - Violation of Statute
Breach may be established as a matter of law by proof that D violated an applicable statute (negligence per se).

P must still establish causation and damages.
Proof of Breach - Res Ipsa Loquitur
P must show:
1) The accident causing the injury is a type that would not normally occur unless someone was negligent; and
2) The negligence is attributable to D (the type of accident ordinarily happens b/c of the negligence of someone in D's position).

Often shown by evidence that the instrumentality causing the injury was in the exclusive control of D.

*P must also establish freedom from fault on his part.
Effect of Res Ipsa Loquitur
P has made of prima facie case and not directed verdict may be given for D.

Trier of fact can still reject the inference of negligence.
Res Ipsa Loquitur and Motions for Directed Verdict - General Rules
1) Deny D's motion if P has established res ipsa loquitur or presented some other evidence of breach (violation of statute).

2) Grant D's motion if P has failed to establish res ipsa loquitur and failed to present some other evidence of breach.

3) P's motion should always be denied except in rare case where P has established negligence per se through violation of applicable statute and there are no issues of proximate cause.
Causation - Definition
Once breach is shown, P must establish that D's negligent conduct was the actual and proximate cause of P's injury.
Actual Cause (Causation in Fact) - 2 Tests
1) "But for" test
2) Joint causes - Substantial factor test
3) Alternative causes approach
Actual Cause - "But For" Test
Act or omission is the cause in fact of an injury when the injury would not have occurred but for the act or omission.

Applicable when several acts (each insufficient to cause injury alone) combine to cause injury.
Actual Cause - Joint Causes-Substantial Factor Test
Where several causes bring about the injury, and any one alone would have been sufficient to cause injury, D's conduct was the cause in fact if it was a substantial factor in causing the injury.
Actual Cause - Alternative Causes Appoach
Applies when there are 2 acts, only 1 of which causes injury, but it is not known which one (both Ds acted negligently but only one caused the harm).

Burden of proof shifts to Ds - Each must prove that his negligence is not the actual cause.
Proximate Cause - Legal Causation
Proximate causation is a limitation on liability and deals with liability or nonliability for unforeseeable or unusual consequences of D's acts.
Proximate Cause - Scope of Foreseeable Risk
D generally liable for all harmful results that are normal incidents of and w/i the increased risk caused by his acts (foreseeability test).
Proximate Cause - Liability in Direct Cause Cases
1) Direct cause case - uniterrupted chain of events from D's negligent act to P's injury.

2) D is liable for all foreseeable harmful results, regardless of unusual timing or manner.

3) D is not liable for unforeseeable harmful results not w/i the risk created by D's negligence.

*Most harmful results will be deemed foreseeable in direct cause cases.
Proximate Cause - Liability in Indirect Cause Cases
Indirect cause case - Affirmative intervening force (act by 3rd person, act of God) comes into motion after D's negligent act and combines with it to cause P's injury.
Liability in Indirect Cause Cases - Foreseeable Results Caused by Foreseeable Intervening Forces
D is liable where his negligence caused a foreseeable harmful response or reaction from a dependent intervening force or created a foreseeable risk that an independent intervening force would harm P.
Common Dependent Intervening Forces
Dependent intervening forces that are almost always foreseeable:
1) Subsequent medical malpractice
2) Negligence of rescuers
3) Efforts to protect the person or property of one's self or another
4) Injuries caused by another "reacting" to D's actions
5) Subsequent diseases caused by a weakened condition
6) Subsequent accident substantially caused by the original injury
Independent Intervening Forces
Forces that are not a natural response or reaction to the situation created by D's conduct may be foreseeable if D's negligence increased the risk of harm from these forces.

Independent intervening forces include:
1) Negligent acts of third persons
2) Crimes and intentional torts of third persons
3) Acts of God
Liability in Indirect Cause Cases - Foreseeable Results Caused by Unforeseeable Intervening Forces
D is liable where his negligence increased the risk of a foreseeable harmful result and that result is ultimately produced by an unforeseeable intervening force.

*Does not apply where unforeseeable intervening force was a crime or intentional tort of a 3rd person.
Liability in Indirect Cause Cases - Unforeseeable Results Caused by Foreseeable Intervening Forces
D not liable in rare case where a totally unforeseeable result was caused by a foreseeable intervening force.
Liability in Indirect Cause Cases - Unforeseeable Results Caused by Unforeseeable Intervening Forces
Intervening forces that produce unforeseeable results (not w/i increased risk created by D's negligence) are generally deemed unforeseeable and superseding.

Superseding forces break the causal connection between D's initial negligent act & P's ultimate injury, thus relieving D of liability.
Unforeseeable Extent or Severity of Harm
D takes his P as he finds him (eggshell P) - D liable for all damages, including aggravation of existing condition, even if extetnt or severity of damages was unforeseeable.
Essential element of negligence - Damage will not be presumed and nominal damages are not available.
Damages - Personal Injury
P is to be compensated for all damages (past, present, & prospective), both economic damages (medical expenses) and noneconomic damages (pain & suffering).

P suffering physical injury may also recover for emotional distress.
Damages - Property Damage
Measure of damages is the reasonable cost of repair or, if property nearly destroyed, fmv at time of accident.
Damages - Punitive Damages
P may recover punitive damages if D's conduct is "wanton & willful", reckless, or malicious.
Damages - Nonrecoverable Items
1) Interest from the date of damage in personal injury cases; and
2) Attorney's fees
Damages - Duty to Mitigate
P has duty to take reasonable steps to mitigate damages.

Failure to mitigate precludes recovery of additional damages caused by aggravation of injury.
Damages - Collateral Source Rule
Damages are not reduced b/c P received benefits from other sources.
Defenses to Negligence (3)
1) Contributory negligence
2) Assumption of the risk
3) Comparative negligence
Defenses - Contributory Negligence
Negligence on the part of P that contributes to his injuries.

Standard of care - same as for ordinary negligence

P's violation of an applicable statute may be used to establish contributory negligence.
Contributory Negligence - Defense to Defendant's Violation of Statute
Contributory negligence is a defense to negligence proved by D's violation of an applicable statute unless statute was designed to protect this class of Ps from their incapacity and lack of judgment (children).
Contributory Negligence - Defense to Intentional Torts
Not a defense to wanton and willful misconduct or intentional tortious conduct.
Effect of Contributory Negligence
CL - Complete bar to recovery.

Almost all jurisdictions now favor comparative negligence system.
Contributory Negligence - Last Clear Chance
Permits P to recover despite his contributory negligence.

Person with last clear chance to avoid an accident who fails to do so is liable for negligence.

P's rebuttal to defense of contributory negligence.
Last Clear Chance - Helpless Peril
Where P is in "helpless peril", D will be liable if he knew or should have known of P's predicament.
Last Clear Chance - Inattentive Peril
In "inattentive peril" situations (P could have extricated herself if attentive), D must actually have known of P's predicament.
Last Clear Chance - Prior Negligence Cases
D must have been able, but failed, to avoid harming P at time of accident.

If D's only negligence occurred earlier, doctrine will not apply.
Imputed Contributory Negligence
Contributory negligence of a third party will be imputed to a P (and bar his claim) only when the relationship between third party & P is such that a court could find P vicariously liable for third party's negligence.

Negligence imputed: Employer-employee, partners, & joint venturers.

Negligence not imputed: Husband-wife, parent-child, & automobile owner-driver.
Defenses - Assumption of Risk
P may be denied recovery if he assumed the risk of any damage caused by D's act.

P must have: (i) known of the risk, and (ii) voluntarily proceeded in the face of the risk.
Assumption of the Risk - Implied Assumption of Risk
Knowledge may be impled where risk is one that an average person would clearly appreciate.

N/A - No available alternative to proceeding in face of risk or situations involving fraud, force, or emergency.

Common carriers and public utilities may not limit their liability by disclaimer, and members of a class protected by statute will not be deemed to have assumed any risk.
Assumption of Risk - Express Assumption of Risk
Risk may be assumed by express agreement.
Assumption of Risk - Intentional Torts
Not a defense to intentional torts; but
Is a defense to wanton and willful misconduct.
Defenses - Comparative Negligence
P's contributory negligence is not a complete bar to recovery.

Trier of fact weights P's negligence and reduces damages accordingly.
Partial Comparative Negligence
Complete bar to recovery if P's negligence was more serious (or as serious) than D's negligence.

Adopted by majority of states.
Pure Comparative Negligence
Allows recovery no matter how great P's negligence.
Comparative Negligence - Effect on Other Doctrines
1) Last clear chance is not used in comparative negligence jurisdictions.

2) Most comparative negligence jurisdictions have abolished implied assumption of risk defense but have retained express assumption of risk defense.

3) P's negligence will be taken into account even though D's conduct was "wanton & willful" or "reckless", but not if it was intentional.
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