b.
What is the risk (act) creates?
c.
What harm occurred?
d.
Was it foreseeable?
5.
Eggshell/Thin Skull Rule – You take your P as they are
ii.
Intervening Causes and Superseding Causes
1.
Events, not people
2.
Forces that play a role
between
BREACH and HARM
3.
Generally, criminal or tortious conduct by a third party cuts of liability, unless act
was reasonably foreseeable
4.
Dependent and Independent Intervening Causes
a.
Dependent = related
b.
Independent = not related (not always unforeseeable)
D.
Damages
a.
Loss of Chance Doctrine
b.
Future Risk of Harm
E.
NIED Cases
a.
Must be a Sensory/Precipiant Witness
i.
Must be there (cannot see on live tv)
ii.
Proximately there (enough to hear)
iii.
b.
TYPES OF CASES
i.
Near Miss Cases (almost hit by a train, car, etc.) - Compensated for physical
manifestation
1.
Impact Rule (old rule) – some contact/impact required (ie. nicked by train as
passed)
2.
Zone of Danger Rule (new rule) – immediate zone of physical risk (so close, but
does not require contact/impact; had P not acted, would have been struck
ii.
Bystander Cases – witnesses GBI to blood relative or spouse
1.
Dillion Test
a.
Proximity – Must be there
b.
Sensory/Precipitant Witness – Observe, Hear, etc.
c.
Must be GBI to blood relative or spouse
2.
Must have suffered physical manifestations; recovering from physical
manifestations resulting from emotional harm
iii.
Funeral Cases (misreporting who is deceased person)
NOTE: IIED can apply to pets bc based on extreme and outrageous conduct of D; NIED based bystander cases
based on relationship, so cannot apply to pets.
III.
Defenses to Negligence
A.
Plaintiff’s Negligence
1.
Contributory Negligence – If P negligent in any way, cannot recover
a.
Last Clear Chance Doctrine (exception to Contributory Negligence) – Is raised to
as a defense to Contributory Negligence to revive Negligence)
i.
P put self in peril he could not escape
ii.
D saw or reasonably should have seen peril of P
iii.
D had time and means to avoid injury to P
iv.
D failed or refused to use every reasonable means to avoid injury to P
v.
P was injured as a result of D’s failure or refusal to avoid injury to P
2.
Comparative Negligence (partial defense)
a.
Pure
b.
Modified
i.
50 %
ii.
49 %
B.
Assumption of Risk
1.
Express (ie. Waivers, Oral agreements)
i.
Waivers
1.
Are enforceable
2.
Cts don’t like them and they are strictly construed (narrowly applied)
3.
Must be specific, precise, thorough, and clear
2.
Implied – subjective standard
i.
Primary – engaging in inherently dangerous activities
ii.
Secondary
IV.
Strict Liability
– Eliminates element of breach; DO NOT discuss Breach on Exam; reasonable
care not a defense
A.
Traditional Strict Liability
1.
[Engaged in] Abnormally Dangerous Activities
(ie. Demolition) - Because high risk of
harm no matter how careful
i.
Factors
1.
Whether the activity involves a high degree of risk of harm
2.
