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Unformatted text preview: LEB Test 2 Review Negligence • 4 Elements 1. Duty (of reasonable care) i. Duty of landowners: (majority view) the landowner gets to sue for whatever 2. Breach (of reasonable care) i. Did not call emergency contacts ii. Contact of others iii. Custom 3. Cause i. Proximate Causation (Legal Causation) – direct casual connection between defendant’s acts and plaintiff’s claim • Factual Causation i. Causation in fact (“but for causation”) – Would the injury have occurred but for the defendant’s carelessness? Is it the sole reason? (higher burden) OR ii. Substantial factor – it may not have been “but for” but it was a substantial factor (lower burden) CASE: Court adopted 2 nd restatement of torts, lays out 3 factors to help determine whether defendant constitutes factual cause? i. Number of other actors contributing to harm and extent of each ii. Whether the actor’s conduct (defendant) has created a force or series of forces that are in continuous and active operation until cause of harm iii. Lapse of time • Reasonable Foreseeability • At what point do we let the defendant off the hook? When is the chain of events no longer reasonably linked to defendant’s actions? • Independent Intervening Cause Breaks chain of causation, meaning anyone injured after chain is broken can’t be blamed on defendant Comes from 3 rd party or source that interrupts between the defendant’s careless act and the plaintiff being injured The third party must be unforeseen CASE: When do we cut off liability? • No finding of proximate cause if the negligence, if any, was so remote as a matter of law that the actor (the one who caused the negligence) can’t be justified for causing negligent harm • At the point in the causal chain where the result of negligence is no longer reasonably foreseeable we cut off liability *DEFENDANT must show (1) and (2) are not true to be not guilty – if only one out of the two is proven then the case is over because they BOTH must be proven * 4. Injury – Plaintiff suffered injury i. Physical Injury – obvious, either hurt or not ii. Emotional Injury • Old rule: recovery from emotional distress was only allowed if there was also a physical injury (result of physical injury) • Then “Zone of Danger”: courts allowed for recovery of purely emotional distress if the plaintiff was in the zone of danger – not necessarily physically dangered (Problem: when are you in/out of zone?) • Now “Bystander Recovery” Rule: Not physically injured or in “zone” but simply a bystander. Rules to determine if bystander: i. Was plaintiff near negligence/scene of accident? ii. Did emotional shock/injury result from the person witnessing it? (live and in person?) iii. Were plaintiff and victim of the carelessness (person who suffered physical injury) closely related?...
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- Spring '11
- Tort Law, assault