John_Stephenson_Torts_Outline - John Neil Stephenson TORTS...

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John Neil Stephenson TORTS II PROFESSOR HERBERT KRIMMEL SPRING 2004 TEXT: Cases and Materials on Torts, 7 th Edition. Epstein Negligence Part I – Establishing Negligence: Standards of Conduct, Negligence Per Se, Res Ipsa 0.. THINGS TO REMEMBER! θ Always, always get an EXPERT (this applies to both D and P) θ Not getting an expert = Malpractice θ When suing multiple linked Ds, and P settles w/ a particular D, then P must insert a “Reservation of Rights Clause” allowing him to sue the remaining Ds (or link broken!) θ Not inserting a Reservation of Rights Clause = Malpractice θ Labels (ideally w/ symbols since some Ps are illiterate) are very cheap cost of prevention! θ Safety features = sometime unsafe (too easily accessible escalator buttons --> Mischief) θ Contingency plans? θ Events that smell strongly of neglig: o (a) poor maintenance / construction; o (b) repeated problems; o (c) gross defects in construction; o (d) failure to replace parts; o (e) dangerous event puts D “on notice”; o (f) failure to properly inspect, and defect would not have been apparent to a casual inspection (dodges Contrib Neglig rebuttal!) θ D can, and should, use Custom and Calculus of Risk to defend himself – Shield Analysis (these doctrines are not for Ps sole use!) – Great for showing P might be Contrib Neglig θ Always review injured Ps actions for evidence of Contributory Neglig! θ Always review 3 rd pty actions as possible Supervening Causes breaking Ds potential liability. θ There is a silent double std that punishes rich D who create a risk, in favor of poor P who act neglig upon that risk (see mental patients w/o drink Drano, in unlocked hosp cabinet) θ In injury cases, juries are usually pro P (especially if D was negligent). In liability cases, juries are usually pro D. 1
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John Neil Stephenson θ Using the word “Always” or “Never” in Torts is legal suicide (millions of variables always destroy bright line rules – thus Reasonable std prevails) θ When D breaks the law (statutory violations), look for Negligence Per Se. θ D was negligent because, a reasonable actor would have done Z instead of Y. A reasonable actor would have done Z because the probability of harm resulting from Y act is high, the magnitude of potential harm from doing Y is high, and the cost of prevention is low, under like circumstances. θ To win a Tort of Negligence Cause of Action, P must show: (1) D acted negligently; (2) as a proximate result of which; (3) P suffered physical injury. [And refute any Contrib Neglig counter attacks] 1.. BROAD BRUSH OUTLINE Rule: θ D is guilty of the Tort of Negligence, when D’s conduct imposes an unreasonable risk upon the P, and the P is injured as a result. D’s mind state is irrelevant. θ
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This note was uploaded on 09/21/2009 for the course LAW All taught by Professor All during the Fall '09 term at University of the West.

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John_Stephenson_Torts_Outline - John Neil Stephenson TORTS...

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