Powers Law Firm PA Home
Torts - Outline Part 3
Download the PDF version of this outline
- 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
- Already compensated for rescue
- 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
- Spouses
- 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
- Must prove that D’s negligence caused P’s damages
- 2 kinds:
- General
- Whether something is even capable of causing damage
- Specific
- Did it directly cause the P’s damages?
- General
- 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
- Solution = P can determine amount to receive from each out of damage award
- Difficult to differentiate which D is responsible for each amount
- Rule made to protect P
- Ds jointly liable; each liable for full amount of damage to P
- Instance where not capable of figuring out who is responsible for injury
- 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
- Solution = substantial factor test
- Anderson = case of 2 fires burning down P’s house; Summer’s test applied
- Substantial factor test = will work every time
- Indivisible Injury
- 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
- Ask what harm made D negligent
- 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
- D responsible for all mental harm
- Factor of proximate cause not related to duty or breach
- 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
- If so, case is over
- Intervening Causes
- 2 part analysis:
- Did P suffer foreseeable harm?
- 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)
- Was the 3rd party’s action foreseeable?
- Act of nature = intervening cause
- Irresistible impulse
- Intentional but not voluntary
- Ex: suicide
- Most courts will say no liability here
- Generally a jury question
- Intentional but not voluntary
- 2 part analysis:
- 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
- General rule = D not liable for pure econ loss
