*For additional information regarding the criterion for inclusion or membership for lawyer associations, awards, & certifications click image for link.

Torts - Outline Part 3

Download the PDF version of this outline

<< Part 2 | Part 4 >>

  • 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 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
  • 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
  • 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
  • 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
Client Reviews
I am so fortunate to have had Bill Powers on my case. Upon our first meeting, Bill insisted that through the emotions of anger, sadness, confusion, and betrayal that I remain resilient. He was available to answer questions with researched, logical, truthful answers throughout our two-year stretch together. I went to any lengths for my case because he won my trust almost immediately. JR
I contacted over 20 attorneys and Bill Powers was the only one that got back to me and was willing to help. He was kind and professional. He helped me get answers that I have been trying to get for years. I am so thankful for all his help and would recommend him easily. Simply FANTASTIC. EP
Bill Powers contacted me very shortly after I submitted an inquiry. He is incredibly knowledgeable about laws and all the requirements in North Carolina. When working with him, he patiently answered any and all questions I had in great detail. I always had the feeling he was looking to help ME, and not all about business. I would HIGHLY recommend Bill Powers and his law firm to anyone needing help in the area. You will be very happy with the result! CL