1L Torts: Negligence Causation

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1L Torts: Negligence Causation
2011-08-30 18:14:43
1L Torts Negligence Causation

Torts: Negligence Causation
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  1. but for
    The injury would NOT have occurred but for the negligence of the D
  2. Loss of Chance
    Reduction in the chance of survival/opportunity (IE: failure to diagnose, child birth problems)

    NC does NOT recognize Loss of Chance;

    • Damages limited—awarded damages only caused directly by premature death (IE lost
    • earnings and additional medical expenses)

    • II)
    • Jury
    • determines cause if fact if there is a loss of chance in survival

    • III)
    • Doctrine has
    • not been extended beyond medical malpractice
  3. Substantial test factor
    • D’s act was a material or substantial factor in causing harm to P, they
    • are liable, even though either party’s act alone is sufficient to cause the
    • injury

    • I)
    • Separately
    • act negligent and either could cause injury
  4. Joint and several liability
    • two separate acts of negligence combine to create
    • a single, indivisible harm, both parties are liable even though each party’s
    • act alone did not cause it.

    2 sources of harm, both cause of injury-takes two to tango
  5. Summers
    • two joint acts of negligence but P cannot identify which D caused
    • injury…burden shifts to D to prove they were not responsible for harm
  6. Market Share liability
  7. Market Share Liability (percentages)—Each D is liable for
    • damages that is equivalent to its share of the market, unless it demonstrates that it could not have
    • been the cause of harm
  8. Direct-Cause—Polemis
    Injury caused by the act of D without any intervening causes

    liability for unforeseeable consequences

    P prefers this jurisdiction
  9. Reasonable foreseeability—Wagon Mound — NC
    No liability for unforeseeable consequences; if P's harm was reasonably foreseeable to the reasonable person at the time of the negligent act, proximate cause satisfied
  10. eggshell doctrine
    a defendant takes a plaintiff as he finds him.

    • Once a plaintiff sustains a foreseeable injury, even a trivial one, the defendant
    • is liable for all unforeseen physical, emotional, mental consequences injuries,
    • so long as they do not stem from superseding causes.
  11. Intervening Cause
    • Intervening Cause— any act between the D’s
    • negligence and the P’s ultimate harm.
  12. Superseding Cause
    • Superseding Cause—intervening cause that is
    • unforeseeable or independent of the D’s negligent act.

    ... breaks the chain of causation and severs liability to original negligent D.
  13. Types of superseding causes: Original negligent D not liable for:
    1. Usually criminal acts of 3rd persons

    2. Acts of god

    3. Intentional torts of 3rd persons
  14. Types of foreseeable intervening causes: original negligent D liable for:
    1. Subsequent medical malpractice

    2. Subsequent disease

    3. Subsequent Accident

    4. Attempt to escape danger creted by D

    5. Negligence of rescuer
  15. rescue doctrine
    • (1)
    • Rescue
    • Doctrine—Danger invites rescue.

    • Allows an injured rescuer to sue the party which caused the danger requiring the
    • rescue in the first place…. Allows a P to go to the jury to determine
    • negligence
  16. Rescue doctrine requirements:
    • 1. D was negligent to the person rescued
    • 2. peril/appearance of peril was immient
    • 3. reasonably prudent person would conclude peril existed
    • 4. rescuer acted with reasonable care