Hale Timeline. Bushes blocking sidewalk. Looks into street. Decides to leave sidewalk. Trips over concrete

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Antony Hudson
8 years ago
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1 Hale Timeline Bushes blocking sidewalk Looks into street Decides to leave sidewalk Trips over concrete

2 Salinetro Timeline MD no ask if pregnant/when last period Terminates pregnancy/fetus dead X-rays

3 Hypo Timeline Does not check rearview mirror Runs over child Backs-up car

4 Cause in fact and Res Ipsa Loquitur MD negligent Stomach pain Sponges in stomach Stomach cancer

5 Scenario #1 (Divisible Harm) Action D1 s Negligence D2 s Negligence Injury Broken Leg Broken Arm D1 liable for broken leg and D2 liable for broken arm

6 Scenario #2 D1 knocks down tree Tree injures plaintiff D2 crashes into tree

7 Scenario #2 (Indivisible Harm) Action D1 s Negligence D2 s Negligence Injury Broken Leg and Arm D1 and D2 both liable for broken leg and arm

8 Scenario 3 D1 runs red light. Strikes P. D2 runs over P. P breaks leg. P breaks arm.

9 Scenario #3 Action D1 s Negligence D1 and D2 s Negligence Injury Broken Leg Broken Arm D1 liable for broken leg. Both D1 and D2 liable for broken arm.

10 Scenario #4 Scenario #1, but don t know what harm each defendant caused D1 and D2 both liable for full loss (Landers v. East Texas)

11 Scenario 5 D negligently starts fire Fires combine Other fires raging P s property burned

12 Scenario #5 Scenario: (1) Either 2 or more negligent defendants or 1 negligent defendant + other force (2) Neither is a but-for cause In absence of D s negligence, other defendant/force would have caused same harm (and vice versa) (3) Each is a sufficient cause In a world without other defendant/force, D s negligence would have caused P s harm (and vice versa) D s negligence is a cause of P s injury if a substantial factor (Anderson) If both D1 and D2 s negligence are considered a substantial factor, both are jointly liable

13 Revised Anderson Facts Fire of unknown origin reaches P s property Fire negligently set by D reaches P s property Burns down P s house

14 Scenario 6 Two defendants acted negligently, but only 1 caused harm to P. Don t know which one caused the harm. Each D s negligence considered a cause of P s injury (unless one can prove otherwise) (Summers v. Tice)

15 Summary When 2+Tortfeasors When divisible injury (Scenario #1): Apportion damages based on causality, with each D liable only for injuries it alone caused When indivisible injury: Both Ds liable Indivisible when: (1) Single injury and each D a but-for cause (Scenario #2), (2) Single injury and each D/force a substantial factor (Scenario #5), (3) Divisible injury, but don t know which D caused what injury (Scenario #4, Landers) As between Ds, apportion liability based on comparative fault When unknown which negligent defendant caused harm: Ds jointly liable. Apportion liability based on comparative fault. (Summers)

16 Lord Timeline Plaintiff suffered spinal cord injury Plaintiff suffers residual paralysis Injury misdiagnosed, resulting in Plaintiff not being treated properly

17 Lost Opportunity -- Lord Approach #1: Traditional approach Harm: actual injury Causation: P deprived at least 51% chance more favorable outcome (but-for test) Damages: recover for full loss Approach #2: Relaxed causation Harm: actual injury Causation: D s negligence increased P s harm/destroyed a substantial possibility more favorable outcome (substantial factor test) Damages: recover for full loss

18 Lord Timeline Plaintiff suffered spinal cord injury Plaintiff s opportunity to recover lost/reduced Injury misdiagnosed, resulting in Plaintiff not being treated properly

19 Lost Opportunity -- Lord Approach #1: Traditional approach Harm: actual injury Causation: P deprived at least 51% chance more favorable outcome (but-for test) Damages: recover for full loss Approach #2: Relaxed causation Harm: actual injury Causation: D s negligence increased P s harm/destroyed a substantial possibility more favorable outcome (substantial factor test) Damages: recover for full loss Approach #3: Lost opportunity Harm: lost opportunity more favorable outcome Causation: D s negligence reduced possibility more favorable outcome (but-for test) Damages: value of lost opportunity * Calculation: (value full loss) x (% reduction in chance of recovery)

20 Scenario Lost Opportunity Legal Rule Scenario #1 (Lord): P had pre-existing risk of injury D s negligence lowers chance of recovery P does not recover Scenario #2: P had pre-existing risk of injury D s negligence lowers chance of recovery P recovers Scenario #3 (Alexander): P had pre-existing risk of injury D s negligence lowers chance of recovery Don t know yet whether P will recover Scenario #4 (Dillon): P did not have a pre-existing risk of injury D s negligence creates risk of injury Don t know yet whether injury will happen Three approaches (Lord): Traditional but-for test Relaxed causation (substantial factor) Lost opportunity No liability Two approaches: Allow recovery for reduced chance of recovery (Alexander) Require present injury no liability Two approaches: Allow recovery for increased risk (Dillon) Require present injury no liability

Unintentional Torts - Definitions

Unintentional Torts - Definitions Negligence The failure to exercise the degree of care that a reasonable person would exercise that results in the proximate cause of actual harm to an innocent person.