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2010-11-20 20:45:44

Torts-NCCU - Corbett
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  1. Two Methods of Proximate Cause
    Polemis: Direct Cause

    Wagon Mound: Reasonably Foreseeable
  2. egg shell doctrine
    • Take the Plaintiff as you find them.
    • This includes physical, mental, and emotional conditions that will cause an increase in damages
  3. 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
  4. 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
  5. Summer Test
    • 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.
  6. 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
  7. Substantial Factor
    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
  8. 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.
  9. 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
  10. Breach: general rule
    Ordinary Prudent Person
  11. Breach: Child
    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
  12. Breach: Mental Handicap
    Held to ordinary prudent person

    > Small exception for the Breuing Jurisdiction: unforeseen and unexpected
  13. 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
  14. Breach: Physical Disability
    Ordinary Prudent Person with the disability

    > Voluntary intoxication is not an excuse
  15. 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>
  16. Breach: Attorney Mal-practice
    • Possession of knowledge or skill
    • Exercise of best judgment
    • Use of Due Care
  17. Breach:Medical Mal-Practice: General Mal-Practice
    • General Mal-Practice
    • >Duty: Doctor to patient
    • >Breach: jurisdictional standard:
    • locality, national (board certified, specialist), similar community
    • >Causation:
    • >Injury:

    "usually need a expert witness to testify of what the jurisdictional standard would have done"
  18. 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
  19. Material Risk
    Any information that would alter the patients decision

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