Term
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Definition
| A breach of duty to use the required standard of care that both actually causes and legally causes damages. |
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Term
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Definition
| Any affirmative act owes a duty of reasonable care to those who would foreseeably be inured by the act. |
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Term
| DUTY: What is the standard of "reasonable care?" |
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Definition
| In determining the overall potential for harm the Probability of Damage (P) must be weighed against the Gravity of Injury (G), along with the Burden of acting Safely (B) and the Public Utility (U) of the act. |
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Term
| What are the two different views of DUTY put forth by Palsgraf v. Long Island RR? |
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Definition
| Majority/Cardozo: If the plaintiff was not foreseeable, then no duty was owed to the victim;
Minority/Andrews: Regardless of foreseeability, a duty is owed to anyone in direct and continuous sequence after an act "in hindsight." |
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Term
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Definition
| One's failure to act is generally not liable (as a bystander) unless one has induced reliance by promise (or act) or has a special relationship to the injured party.
*Note: Generally no duty if not involved with creating the risk. |
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Term
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Definition
| No duty of care is owed since no relationship exists and the bystander did not create the situation that imperils the plaintiff. |
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Term
| DUTY: "induced reliance by promise" |
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Definition
| A creation of duty by an assumption of risk, whereby the plaintiff somehow has been injured due to the neglect of that assumption.
*Note: An act or deed that causes the injured party's reliance to their detriment. |
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Term
| DUTY: "special relationship" |
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Definition
| One is obligated to take affirmative steps to effect the rescue of a person who is in danger, when one proceeded against is a master or invitor, or when injury resulted from use of an instrumentality under one's control.
1) Duty to care for plaintiff;
2) Duty to control other defendant;
3) Duty to warn plaintiff. |
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Term
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Definition
| Operation of any mechanism (e.g. car, escalator, carnival ride, etc.) that may put one at risk of injury; creates a relationship (and a duty).
*Note: This obligation exists even if the accident or original injury was caused by the negligence of the plaintiff, a third-party or without any fault of the defendant. |
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Term
| DUTY: What are examples of when there is a "duty to care for the plaintiff?" |
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Definition
| a) Parent/Child
b) Teacher/Child
c) Innkeeper/Guest (aid to escape)
d) Common Carriers (to render service)
e) Business: Invitor/Invitee
f) Business: Employer/Employee
g) If negligent act causes injury, the negligent party has a duty to provide reasonable aid to the injured party. |
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Term
| DUTY: When is the there a "duty to control other defendant?" |
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Definition
| Exists when there is a "particularized foreseeability" of injury AND/OR in cases where the defendant has a special relationship with person who needs to be controlled or the foreseeable victim. |
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Term
| "particularized foreseeability" |
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Definition
| When the defendant has a special reason to believe a specific and identifiable victim, or class of victims, will suffer a particular type of injury. Further, the defendant must know or have reason to know that there was a likelihood of conduct to endanger the safety of another. |
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Term
| DUTY: When is the there a "duty to warn plaintiff?" |
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Definition
| May exist when control of other defendant is not available or applicable, and the victim has "particularized foreseeability" of injury.
*Note: This is a minority view. |
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Term
| What is the duty to Unborn Children? |
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Definition
| No duty exists unless a child is actually born. |
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Term
| Unborn Children: Wrongful Death |
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Definition
| A born child is the standard the court uses whether or not a tort can proceed. Birth is definite and any other standard would be arbitrary. |
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Term
| Unborn Children: Wrongful Life |
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Definition
| But for… the defendant doctor's negligent advice, the child would not have been born (brought on behalf of the child). Virtually no jurisdiction recognizes this cause of action. |
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Term
| Unborn Children: Wrongful Birth |
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Definition
| But for… the defendant doctor's negligent advice and/or or treatment deprived the parents the choice of avoiding conception or terminating pregnancy. |
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Term
| Unborn Children: Wrongful Conception |
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Definition
| But for… the defendant doctor's negligent performance of sterilization or instruction on birth control that causes the mother to get pregnant. |
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Term
| Negligent Infliction of Emotional Distress (NIED) |
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Definition
| As a result of a negligent act emotional distress has been caused to the victim ("direct victim") or an observer ("bystander"). The negligent act must be proven or recovery is barred. |
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Term
| What are the two views on whether a "direct victim" can recover under NIED? |
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Definition
| 1) Majority: Must have an objectively demonstrated physical manifestation.
2) Minority (CA): If foreseeable then will be recoverable even if there is not an objectively demonstrated physical manifestation. |
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Term
| What are the two views on whether a "bystander" can recover under NIED? |
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Definition
| 1) Majority: Must have been in the physical zone of danger, have a close relationship with the victim, and have a physical manifestation.
2) Minority: Utilizes the following as balancing factors. Located near the scene, have a close relationship with the victim and contemporaneously observed the event. |
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Term
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Definition
| THis minority view holds that land occupier/owner owes a duty of reasonable care to all entrants to land. Modern jurisdictions (like CA.) may follow this view. |
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Term
| What is the historical DUTY of "reasonable care" in regards to Land Occupiers/Owners? |
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Definition
| 1) Duty to warn of known dangers;
2) Duty to correct known dangers; and
3) Duty to inspect for unknown dangers. |
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Term
| Under historical Land Occupiers/Owners rules, what would be the duty owed to person outside the premises? |
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Definition
| Natural Condition: No duty owed (except for trees in an urban/rural setting);
Artificial Condition: Historical "reasonable care" owed;
Activity: Historical "reasonable care" owed. |
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Term
| Under historical Land Occupiers/Owners rules, what would be the duty owed to an unknown trespasser? |
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Definition
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Term
| Under historical Land Occupiers/Owners rules, what would be the duty owed to a discovered trespasser or tolerated trespasser? |
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Definition
| Natural Condition: No duty owed;
Artificial Condition: Duty to warn or correct known dangers;
Activity: Historical "reasonable care" owed. |
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Term
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Definition
| A social guest who enters the premises of a land occupier/owner by permission (but for the licensee's own purpose). The duty owed by the LO towards the "licensee" is less than that owed to an "invitee." Public entrants also fall under this category. |
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Term
| Under historical Land Occupiers/Owners rules, what would be the duty owed to a licensee? |
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Definition
| Natural Condition: Duty to warn or correct known dangers;
Artificial Condition: Duty to warn or correct known dangers;
Activity: Historical "reasonable care" owed. |
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Term
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Definition
| A business visitor who enters the premises of a land occupier/owner for the furtherance (conferring a financial benefit) of the owner's business. The duty owed by the LO towards the "invitee" is greater than that owed to a "licensee." |
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Term
| Under historical Land Occupiers/Owners rules, what would be the duty owed to an invitee? |
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Definition
| Natural Condition: Historical "reasonable care" owed;
Artificial Condition: Historical "reasonable care" owed;
Activity: Historical "reasonable care" owed. |
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Term
| When is reasonable care owed to children as trespassers? |
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Definition
| Five points must be met:
1) LO know or has reason to know that kids are likely to trespass;
2) LO knows or has reason to know that the artificial condition is highly dangerous to children;
3) Children, due to age, do not recognize or appreciate danger;
4) Risk to children must be greater than the burden to correct;
5) LO fails to use reasonable care to eliminate danger. |
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Term
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Definition
| The required standard given the circumstances. This standard can be calculated by using the PG+BU "reasonable care" standard. |
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Term
| How can the STANDARD OF CARE be modified by CUSTOM? |
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Definition
| When certain dangers have been removed as a way of doing things safely, this may be proven to show a required standard (e.g. using shatterproof glass doors in showers, driving on the right side of the road, installation of safety bags, etc.), however custom may be found unreasonable. |
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Term
| How can the STANDARD OF CARE be modified by CRIMINAL STATUTE? |
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Definition
| Normally it will provide definite guidelines or clear-cut standard; if the statute has been adopted for negligence, it cannot be ignored, and an unexcused breach may be automatically negligent (negligence per se). This is the majority view. The minority view holds that a violation is only evidence of negligence, which the jury may accept or reject as it sees fit. |
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Term
| How do you know if a CRIMINAL STATUTE is appropriate as a STANDARD OF CARE? |
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Definition
| 1) The plaintiff is in the class designed to be protected;
2) The harm is the type designed to be prevented;
3) There is a causal connection between the violation of the statute and the cause of injury; and
4) It is appropriate (fair and helpful) to use the statute as a standard of care. |
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Term
| What is an excused violation of the STANDARD OF CARE set by a CRIMINAL STATUTE? |
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Definition
| Rebuttal Presumption: In defining the proper role of the violation of a statute in a civil action, its application may be rebutted by showing that the violating party had an adequate excuse under the circumstances that may not necessarily be applicable in a criminal action. Such as:
a) Unable after due diligence or care to comply;
b) An emergency not due to his own misconduct;
c) Compliance would involve a greater risk of harm to the actor or others. |
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Term
| What is the STANDARD OF CARE for COMMON CARRIERS? |
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Definition
| Common carriers are held to the higher duty of utmost care and diligence rather than the duty of reasonable care due to a number reasons (including monopolies, bailments, essential needs, etc.) |
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Term
| What is the STANDARD OF CARE for the PHYSICALLY IMPAIRED? |
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Definition
| Normally held to the standard of a reasonable/prudent person with the same physical impairment. |
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Term
| What is the STANDARD OF CARE for the MENTALLY IMPAIRED? |
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Definition
| Departs from the standard, but only slightly; normally will be held to the "reasonably/prudent person" standard. |
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Term
| What is the STANDARD OF CARE for those acting during an EMERGENCY? |
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Definition
| Departs from the standard of a "reasonable/prudent" person, but only slightly; with the understanding of self preservation. |
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Term
| What is the STANDARD OF CARE for CHILDREN? |
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Definition
| Standard is lowered to what a reasonable child of the same age would to, except when the child is performing an adult act (the adult "reasonable person" standard would apply in this instance). |
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Term
| What is the STANDARD OF CARE for PROFESSIONALS? |
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Definition
| Professionals (or those holding themselves out to be professionals) are held to the higher standard of the knowledge, training and skill of an ordinary member of the profession in good standing (in the same or similar area when the Doctrine of Locality applies).
*Note: This is not the "average professional" because one may be below average, yet still have the skills necessary to a be professional. |
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Term
| What is the STANDARD OF CARE for those in the LEGAL PROFESSION? |
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Definition
| Legal professionals are held to the standard of:
1) Possession of knowledge or skill;
2) Exercising best judgment; and
3) Use of due care. |
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Term
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Definition
| This is limited to the medical profession and holds doctors to the standard of other doctors in the same or similar communities.
*Note: There is a plurality opinion in whether this standards applies. The national standard may apply instead. |
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Term
| The STANDARD OF CARE for INFORMED CONSENT |
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Definition
| 1) What a practician in good standing would disclose OR disclosure of all material risks that the reasonable patient would want to know; AND
2) If there are any personal interests that might be involved unrelated to the patient's health. |
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Term
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Definition
| The plaintiff must offer evidence that a breach of duty has occurred (burden of proof on the party bringing the action). |
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Term
| What are the burdens of the plaintiff in a negligence cause of action? |
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Definition
| 1) Burden of Pleading: Sufficient facts must be demonstrated for cause of action.
2) Burden of Going Forward: Substantial evidence must be provided (avoids a directed verdict against the plaintiff).
3) Burden of Proof/Persuasion: Based on the preponderance of the evidence, is the judge/jury convinced? |
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Term
| Direct Evidence of BREACH |
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Definition
| A set of facts that contribute to the favorable argument of negligence. Examples:
1) Nonconformity to reasonable standard (PG+BU);
2) Unexcused violation of statute;
3) Constructive notice. |
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Term
| Circumstantial Evidence of BREACH |
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Definition
| A conclusion that can be inferred from a set of facts by a reasonable person. |
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Term
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Definition
| Negligence is proven when it can be reasonable concluded that ordinarily the event would not occur unless negligence occurred, AND it is more likely than not it was the defendant that was negligent.
*Note: Defendant must have exclusive control of the instrument of negligence at the time the negligence occurs. |
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Term
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Definition
| This is a case with a unique application of RIL where the plaintiff is unconscious/vulnerable, in the care of the defendants and has been harmed, yet the defendants all deny wrongdoing (e.g. patient under anesthesia during and operation, all medical professionals are expected to watch over one another). Defendants may step forward to disprove their own liability. |
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Term
| What weight does RIL have in evidence of BREACH? |
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Definition
| Majority: A jury can utilize as some evidence of negligence, and it may warrant an inference of negligence, but it is not necessarily negligence per se. It does raise the presumption of negligence that requires defendant to rebut (shifts burden). |
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Term
| What are the different views of RIL when pleading specific acts of negligence? |
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Definition
| No less than four views have been taken by the courts:
1) Cannot rely on it at all;
2) Can use it as an inference that supports allegations;
3) May rely on it if the pleading is accompanied by an allegation of negligence (majority view);
4) It is available without regard to form of pleading. |
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Term
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Definition
| The plaintiff must show that the negligent act would increase the risk of the accident occurring. Preponderance of evidence must reached. It is not enough to only show the accident occurred after the negligent act (post hoc ergo propter hoc). |
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Term
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Definition
| If defendant had not been negligent, would the accident still have occurred? |
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Term
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Definition
| If separate acts of negligence combine to produce a single injury, each contributor is responsible for the entire result, even though their act alone may not have caused it (both acts become ACTUAL CAUSES). |
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Term
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Definition
| When two separate parties' acts are important or significant contributors to an accident, and either act would have caused the accident there is joint liability. |
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Term
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Definition
| When it cannot be determined which of two parties (or multiple parties) caused harm, then both are jointly liable unless they can individually disprove liability (shifts the burden of proof to the defendants). |
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Term
| AC: Sindell v. Abbott Labs. (Market Share) |
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Definition
| This applies the percentage of market of each defendant as the percentage of injury/damages. |
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Term
| AC: Did the chemical agent cause the injury (Toxic Torts)? |
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Definition
| Some courts have adopted a "twice as likely" test to determine whether whether an agent can be considered an "ACTUAL CAUSE." |
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Term
| LEGAL or Proximate CAUSE (LC) |
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Definition
| Once actual cause has been established, a standard of limiting liability based on precedent, public policy and a sense of fairness, that asks if an action's consequences, unbroken by superseding causes, justifies liability. |
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Term
| LC: Victim Predisposition |
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Definition
| Even if a victim is predisposed to certain injuries, actor of negligent act is liable for those injuries; the defendant take the plaintiff as they find them (the extent of damage is irrelevant; will be liable for all). |
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Term
| LC: Wagon Mound Jurisdiction |
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Definition
| Liability held only for those types of damages that a reasonable person could foresee (the court will determine how broadly or narrowly to interpret). |
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Term
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Definition
| Liability held for all damages of direct and continuous sequence after an act (regardless of the manner it occurred). A plaintiff can recover for any damage not too extraordinary in hindsight. |
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Term
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Definition
| An act of a third part that occurs between the defendant's negligent act and the plaintiff's injury. |
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Term
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Definition
| An intervening force that cuts off the defendant's liability and/or creates a second defendant. |
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Term
| LC: Pre-existing condition |
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Definition
| A non-active force (e.g. trees, electrical poles, parked cars, etc.) that is on the scene before the incident occurs. These are not considered "intervening forces." |
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Term
| LC: Independent Intervening Force |
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Definition
| The act of the third-party is not in response to the original defendant's negligent act (although it could be a concurrent cause). |
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Term
| LC: Dependent Intervening Force |
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Definition
| The act of the third-party is in response to a situation created by the negligent original act. The third-party will not be held liable unless the dependent intervening force is abnormal enough to become a "superseding force." |
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Term
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Definition
| Duty is not only owed to people who may be injured by a negligent act, but also to those who will likely come to assist the injured. |
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Term
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Definition
| Injuries to an employed rescuer in response to an emergency are not recoverable; injuries due to negligence that have nothing to do with the emergency may be recoverable. |
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Term
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Definition
| The plaintiff must have suffered harm due to the negligent act. |
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Term
| DAMAGES: "pure economic loss" |
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Definition
| If property (e.g. goods) is not destroyed and could have been sold elsewhere, loss is not recoverable in most jurisdictions under negligence or strict liability (when it is the only damage suffered).
*Note: The exception is medical malpractice. |
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