If neither d meets burden theyre joint and severally

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If neither D meets burden, they're joint and severally liable ii. Farther you get from 50-50, more difficult to justify J+s liability under Summers 2. Market Share Liability - Sindell (DES drug) a. Multiple Ds, but can't pinpoint which one, even though only 1 D could be responsible b. Jurisdictions: i. Hymowitz (NY) - in DES cases look at national market ii. Some states reject MSL approach completely b. Procedural Effect - percentage of market share caps liability for damages c. Prerequisites i. Underlying assumption that all Ds are negligent AND ii. All caused harm iii. Products were fungible/identical, so risk is the same iv. Need substantial percentage of the market represented in the Ds before the court
Need substantial likelihood that responsible D is before the court ii. Proximate (legal) 1. "Natural and ordinary" a. Sequence of events - not used anymore as general test, but sometimes use this language to support finding 2. Direct/indirect vs. remote - Polemis a. Unforeseeability argument rejected, held liable because "direct cause" of harm i. Direct - without additional events occurring between negligence and harm (i.e. no intervening events or time) 2. "Foreseeability" - Wagon Mound I and II a. Already factor in determining breach element b. Thin-skull doctrine - Smith (metal on lip) - "take victim as you find him" i. Once use foreseeable harm to establish p-f case, measure damages based on everything actually caused, not just proximately 2. Scope of the risk/R3d §29 a. Allbritton (fire and wet pipe) - furnishing a condition/forces come to rest i. "merely furnishing a condition" - breach just put you in right place and right time for an injury to occur that is unrelated to D's negligence (e.g. tree falls on passenger in speeding car) ii. Also looks at whether conditions that caused injury had come to rest by the time injury occurred b. Jolley i. Foreseeable type of injury, not the precise manner in which it came about, or its extent ii. Refines foreseeability test in way reflected in R3d - "scope of the risk" Not general foreseeability, focus on types of risks that make D's conduct negligent in the first place and see if that type of risk is responsible for the injury b. Palsgraf (newspapered fireworks) i. Cardozo - foreseeability - duty to particular P (R3d §7 - case by case rejection) "Relational concept of duty" a la premises liability Views foreseeability to establish duty rather than proximate cause ii. Andrews - proximate cause (R3d §29) duty owed to anyone who might be injured as a result of D's conduct (foreseeability may be relevant to breach though) No single test one can use for proximate cause, look at multiple policy factors: (Substantial, Expediency, Attenuation, Time and space) Foreseeability in hindisght (was it foreseeable in hindsight that injury would occur?) b. Courts don't adopt Cardozo or Andrews approaches today, but sometimes courts still invoke Palsgraf to justify summary judgment for D when deciding where to draw the line for duty and PC i. Helpful to think of relational duty when in premises liability (vs. regulatory

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