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 areii.Intervening Causes and Superseding Causes1.Events, not people2.Forces that play a role between BREACH and HARM3.Generally, criminal or tortious conduct by a third party cuts of liability, unless act was reasonably foreseeable4.Dependent and Independent Intervening Causesa.Dependent = relatedb.Independent = not related (not always unforeseeable)D.Damagesa.Loss of Chance Doctrineb.Future Risk of HarmE.NIED Casesa.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 CASESi.Near Miss Cases (almost hit by a train, car, etc.) - Compensated for physical manifestation1.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 struckii.Bystander Cases – witnesses GBI to blood relative or spouse1.Dillion Testa.Proximity – Must be thereb.Sensory/Precipitant Witness – Observe, Hear, etc.c.Must be GBI to blood relative or spouse2.Must have suffered physical manifestations; recovering from physical manifestations resulting from emotional harmiii.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 NegligenceA.Plaintiff’s Negligence1.Contributory Negligence – If P negligent in any way, cannot recovera.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 escapeii.D saw or reasonably should have seen peril of Piii.D had time and means to avoid injury to Piv.D failed or refused to use every reasonable means to avoid injury to Pv.P was injured as a result of D’s failure or refusal to avoid injury to P2.Comparative Negligence (partial defense)a.Pureb.Modifiedi.50 %ii.49 %B.Assumption of Risk1.Express (ie. Waivers, Oral agreements)i.Waivers1.Are enforceable2.Cts don’t like them and they are strictly construed (narrowly applied)3.Must be specific, precise, thorough, and clear2.Implied – subjective standardi.Primary – engaging in inherently dangerous activitiesii.SecondaryIV.Strict Liability – Eliminates element of breach; DO NOT discuss Breach on Exam; reasonable care not a defenseA.Traditional Strict Liability
1.[Engaged in] Abnormally Dangerous Activities(ie. Demolition) - Because high risk of harm no matter how carefuli.Factors1.Whether the activity involves a high degree of risk of harm2.