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Two Methods of Proximate Cause
Polemis: Direct Cause
Wagon Mound: Reasonably Foreseeable
egg shell doctrine
- Take the Plaintiff as you find them.
- This includes physical, mental, and emotional conditions that will cause an increase in damages
Cause in fact test:
- But for: single cause
- Substantial Factor: 2 concurring causes
- Summer Test: 2 sources, but only one cause
- Joint Liability: 2 inseparable causes
- Market Share: Multiple business sources
- Loss of Chance: causes a decreased in opportunity
But for test
Used for a single source of harm.
"But for the defendants negligent act, the plaintiff would not be harmed."
But for the defendants actions, the plaintiff chance of harm would not of been greatly mutiplied
- Two sources of harm, but only one caused the harm.
- "Hunting, two shoot in the same direction, and only one hits P's eye"
Unable to determine which one caused.
Defendant has the burden of proving he was not responsible. If unable--then liable.
Joint Severance Liability
Two inseparable causes of harm. The P can bring suit against both, or either for the full amount of damages.
Runner is hit by two cars at the same time, and dies.
The liability can not be separated
Two possible sources of harm. Must prove the D's actions were the substantial factor to the P's harm.
- "Two fires merge, must prove the D's fire was the substantial factor to the P's harm."
- > Prove it was the greater to the other fire, by speed or destructive path
Market Share Liability
Used when an industry of business are liable for a product, and the exact business is unknown.
"The industries percent of market share, is the percent of liability held"
The collective small percent goes without liability.
Loss of Chance
Without the D's action, P would of had a high chance to live.
"If the D, doctor, would of diagnosed on time, P would of had a high chance of survival"
Only recover a portion of damages
Breach: general rule
Ordinary Prudent Person
Majority: Age Intelligence Experience
- Minority: (NC): Rule of Sevens
- 0 - 6 not capable of negligence
- 7 - 14 presumed incapable, but rebuttable
- 15 - 17 presumed capable, but rebuttable
- 18 - up ordinary prudent person
Breach: Mental Handicap
Held to ordinary prudent person
> Small exception for the Breuing Jurisdiction: unforeseen and unexpected
Breach: Child Exception
activity which is normally undertaken only by adults and for which adult qualifications are required
Not relevant for minority jurisdiction from 0 - 6
Breach: Physical Disability
Ordinary Prudent Person with the disability
> Voluntary intoxication is not an excuse
Breach: Professional Negligence, mal-practice
Ordinary Prudent (occupation) in good standing with the same skill knowledge and training
Accountant, lawyer, architect, engineers, pharmacist, designers of group health insurance
<Same standard when offering pro bono work>
Breach: Attorney Mal-practice
- Possession of knowledge or skill
- Exercise of best judgment
- Use of Due Care
Breach:Medical Mal-Practice: General Mal-Practice
- General Mal-Practice
- >Duty: Doctor to patient
- >Breach: jurisdictional standard:
- locality, national (board certified, specialist), similar community
"usually need a expert witness to testify of what the jurisdictional standard would have done"
Breach: Mal-Practice: Informed Consent
> Duty: Doctor to Patient
> Breach: Failure to fully inform of all material risks, or material facts (doctors bias interest)
> Causation: patient would of chosen different care or no care; Canteberry (reasonable patient) Scott (single patient) Traditional (reasonable doctor)
> Injury: the injury sustained was a product of failure to inform
Any information that would alter the patients decision
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