BERNSTEIN torts attack outline2.docx - Negligence Negligence Prima Facie 1 Injury 2 Duty(obligation to act with reasonable care \u2013 law for judge a

BERNSTEIN torts attack outline2.docx - Negligence...

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Negligence Negligence Prima Facie: 1) Injury 2) Duty (obligation to act with reasonable care) – law for judge a. Rescue; in general, no duty to rescue, except: i. Imminent peril caused by D ii. Voluntary undertaking iii. Special relationships iv. Third parties (STD/Psychologists) b. Premises Liability i. Invitee (highest duty of reasonable care) ii. Licensee (duty to warn from hidden dangers) iii. Trespasser (duty from willful, wanton disregard) c. Pure Economic Loss; in general, no duty except: i. Accountant liability ii. Some legal malpractice d. Policy e. Emotional Distress 3) Breach (did D deviate from the ideal) – fact for jury a. Always use objective standard (did the actor act in a way that a reasonable person of ordinary prudence would under similar circumstances? Except: i. Mentally ill (NOT stupidity) ii. Physical disabilities iii. Children iv. Heightened competence b. Professional custom (as evidence) i. Per se - Held to exercise the care that would be exercised by a member of the medical profession in good standing. ii. Evidentiary standard - adherence to customary practices does not of itself establish that the defendant acted with reasonable care. c. Cost-effectiveness (Hand Formula): i. P = probability that unfortunate event will occur ii. L = value of the loss iii. B = precaution actor could have followed iv. If B ≥ PL then it’s not negligent to forgo precaution v. If B < PL it’s negligent to forgo precaution vi. PL = Expected cost d. Res Ipsa Loquitor (duty, breach, causation inferred) i. The injury must happen in a way that ordinarily does not occur absent carelessness on someone’s part ii. the instrumentality that caused the accident was in exclusive control of the ∆ iii. The injury must not have arisen from acts or carelessness on the part of P (Bernstein doesn’t like this one) 4) Causation (without the act, the injury would not have occurred) – fact for jury a. Actual (But-for test/Substantial factor/multiple sufficient/alternative causation) i. Multiple necessary causes - 2 negligent actors act as an actual cause of P’s injury (each D is but- for cause) ii.
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  • Fall '07
  • Bernstein
  • Tort Law, Prima facie

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