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Business Law Exam 2 - Negligence unintentional tort your...

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Negligence : unintentional tort; your recklessness caused injury Elements of Negligence 1) Duty 2) Breach of duty 3) Causation a. Elements of Proximate Causation (Must Show Both Elements) i. Factual Causation 1. Causation in fact (“but for” causation); Plaintiff would not have injury but for defendant’s recklessness 2. (OR) Substantial factor ii. Reasonable for-see ability b. Independent Intervening Cause i. Defendant is responsible up until the point where the 3 rd party/source enters the act c. No Finding of Proximate Cause If… i. It’s so remote ii. The consequence of the act is no longer reasonable for-see able that there would be injury d. Three Factors of Proximate Cause i. The number of other actors contributing to harm and extent of each ii. Whether the actors conduct has created a force or series of forces that are in continuous and active operation to the point of harm iii. Lapse of time 4) Injury a. Recovery for Emotional Distress i. Old Rule : allowed only if there was also physical injury ii. Zone of Danger : no physical injury, but must be in the zone of danger (the careless act occurring) iii. Now : Bystander Recovery Rule: must only show that you were a bystander 1. Three Questions to Qualify a Bystander a. Plaintiff was near the accident, carelessness, recklessness b. Did emotional shock result from witnessing the accident? Were they there? c. Are plaintiff and the physical victim close? Related? Close connection? Defenses of Negligence 1. Plaintiff’s Part a. Old Rule : Contributory Negligence i. If plaintiff is even 1% at fault then no recovery at all. Thus, defendant gets off completely b. New Rule : Comparative Negligence
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1. If plaintiff is more at fault than the defendant, then the plaintiff gets no recovery 2. But if plaintiff is less than 50% at fault, he gets the difference (25% at fault, 75% recovery) ii. Pure Comparative : if defendant is 1% at fault then plaintiff gets 1% recovery 2. Statute of Limitations (SOL) a. General rule : you have 2 years to sue someone or else you lose the right to bring it to trial i. EXCEPTION
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