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Torts - Outline Part 3

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  • Rescue attempt itself is reasonable
    • Reasonableness always in context of circumstances
  • Professionals = rescue doctrine doesn’t apply
    • Already compensated for rescue
      • Ex: firemen, policemen, etc.
    • (usually) can’t sue for consequences
    • Common law rule
  • Exception to duty to rescue/protect:
    • If D owns instrumentality causing harm = duty to rescue
    • If you undertake rescue/protection/render assistance = must act reasonably (duty of reasonable care)
    • If D placed P in peril (or potential peril) = duty
      • Must behave reasonably under the circumstances
      • Can be innocent in creating situation
        • Still applies
        • Applies to negligence too
        • Even in instance of SD where P places D in peril/potential peril
    • Instances of detrimental reliance
      • Liable if duty not performed
  • Special relationships
    • Spouses
      • Often, more of an idea of a duty owed to children
    • Parents to minor children
      • Not vice versa
    • Employers to employees
      • During course of employment
    • Common carriers to passengers
    • Innkeepers to guests
    • Shipmaster to sailor
    • Jailer to prisoner
      • Custodial relationship
    • Hospital to patients
    • Teachers to students
      • Can be universities to students
Breach
  • Breach of duty = failure to conform to required standard of care
  • Foreseeability of ensuing harm = makes situation blameworthy
  • Creating danger of harm
  • Think of carelessness here
  • REMEMBER = even if a breach of duty (negligence), not actionable unless causation
    • Negligence must be the cause in fact + proximate cause to be actionable
Cause-In-Fact
  • Actual cause; use the but-for test to determine
    • “But for (X), (Y) wouldn’t have occurred”
    • Would P have been injured anyway if D’s negligent act was removed?
  • Proof of Causation
    • Must prove that D’s negligence caused P’s damages
      • Sine Qua Non = indispensable condition or thing; something on which something else entirely depends
  • 2 kinds:
    • General
      • Whether something is even capable of causing damage
    • Specific
      • Did it directly cause the P’s damages?
  • As long as evidence supports conclusion = no error in negligence
  • Concurrent Causes
    • Indivisible Injury
      • Instance where not capable of figuring out who is responsible for injury
        • Ds jointly liable; each liable for full amount of damage to P
          • Difficult to differentiate which D is responsible for each amount
            • Solution = P can determine amount to receive from each out of damage award
              • If possible to apportion = done instead
        • Rule made to protect P
    • Concurrent necessary causes = but for test
    • Concurrent sufficient causes = substantial factor
      • Two factors combined to cause harm, but each would have caused harm acting alone
      • Problem = but-for test fails in application here
        • Solution = substantial factor test
          • Were each D’s act substantial factors?
        • 2 independent acts of negligence combined to cause 1 injury = both held liable
      • Anderson = case of 2 fires burning down P’s house; Summer’s test applied
      • Substantial factor test = will work every time
Proximate Cause
  • Legal cause
  • NOT A FACTOR IN INTENTIONAL TORTS
  • Checklist for attacking issue: policy, foreseeability, + intervening act
  • Measured by foreseeability in relation to the result
    • Limits scope of liability for harm to harm that is foreseeable to D and their conduct
    • Foreseeability = product of breach of duty
      • Breach = before the fact analysis
      • Proximate cause = after the fact analysis
        • Ask what harm made D negligent
          • See if it connects to foreseeability
      • Affirms what happened is what was foreseeable to happen
        • If harm generally foreseeable = sufficient
        • Exact way the harm happened = doesn’t have to be specific
      • Not foreseeable = not liable bc fails proximate cause
        • Total emphasis on blameworthiness
        • Foreseeability matching the breach
      • Generally a jury question
    • P has to prove foreseeability of D
  • Eggshell Skull Rule
    • Factor of proximate cause not related to duty or breach
      • Applied in every jurisdiction
    • Take the P as you find them
    • D liable for all harm if any is foreseeable
      • If you’re liable for foreseeable harm, also liable for the unforeseeable portions of that harm
      • Don’t have to see the full extent of harm to be responsible for it
    • Eggshell psyche rule:
      • D responsible for all mental harm
        • Not accepted by only a minority of jurisdictions
      • If D caused physical harm, mental harm adjoins to this
  • Unforeseeable P
    • If so, case is over
      • Matter of duty
    • Palsgraf
    • No liability because no duty; P was unforeseeable
    • Duty arises as danger presents itself
      • Doesn’t apply until someone put in the zone of danger
    • If damage is foreseeable = unforeseeable P disappears
    • Puts judge in charge of discerning issue rather than jury
    • Most issues about unforeseeable
  • Intervening Causes
    • 2 part analysis:
      1. Did P suffer foreseeable harm?
      2. Was intervening cause foreseeable?
    • If intervening cause was foreseeable = D retains liability
      • If intervening cause not foreseeable = issue of intervening superseding cause + D’s liability cut off
    • Other Ds can trigger the dorman negligence of a D
      • Must come after original D’s negligence
      • Can be anything that triggers D’s negligence to harm P
      • Ask = was causal factor in exist before?
    • Intervening cause + P’s harm must be foreseeable for P to win
    • Things that can apply as intervening causes:
      • Intentional acts
      • Criminal acts
      • Reckless acts
      • Innocent conduct
    • Best example: trench worker (Derdarian)
      • Was the 3rd party’s action foreseeable?
        • If not = liability cut off (superseding cause)
    • Act of nature = intervening cause
    • Irresistible impulse
      • Intentional but not voluntary
        • Ex: suicide
      • Most courts will say no liability here
      • Generally a jury question
Damages
  • Actual damage suffered by P
  • Usually monetary
    • Ex: medical expenses, lost wages, pain + suffering, etc.
  • For exam, only required to recognize that they are present; acknowledge and move on
  • Pure economic loss
    • General rule = D not liable for pure econ loss
      • Out-of-pocket, monetary loss not associated
      • Ex: losing revenue due to negligence of D
        • Exception = malpractice
      • HOWEVER, if P suffers bodily injury or property damage, then able to recover for pure econ loss
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