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51 Cards in this Set

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  • Back
What is Market Share Liability?
What are its policy justifications?
MSL is a burden-shifting exception to general rule for liability of multiple Ds when only one is the cause-in-fact and when all Ds were negligent. Usually, multiple Ds can be held liable only if there are only a small number.

With MSL, P must sue a large enough number of potential causors-in-fact to constitute a "substantial share" of the market.

It's been applied to pharmaceutical companies (Sindell)

Policy Justifications:
- D's are in best position to prevent the harm.
- D's are able to spread the cost.
- P has evidentiary disadvantage, since problems take time to arise.
What are joint and several liability?
Joint liability is the sharing of a liablity by multiple parties. They are collectively liable.

Several liability is the liability of each party for the same thing. Each can individually sued for the whole.

Joint and Several liability is the combination of both: they can be collectively sued or individually for the whole value of the liability.
In what situations will Cardozo and Andrews analyses of proximate cause disagree?
If there is a direct and immediate, but unforeseeable injury:
- Cardozo analysis will not assign liability.
- Andrews analysis will.

If there is a remote and attenuated, but foreseeable injury:
- Cardozo analysis will assign liability.
- Andrews analysis will not.
What is a Trespass to Chattels?
Intentional intermeddling with a chattel in possession of another, resulting in
- impairment of the quality, condition, or value of the chattel
- possessor is deprived of use of the chattel for a substantial time
- physical harm to the possessor or a person or thing in which the possessor holds a legal interest.
What is a Conversion?
Intentional exercise of dominion or control over a chattel that so inteferes with the owner's right to control it that the actor is required to pay the full value of the chattel.
What is a Battery?
Intentionally causing harmful or offensive contact.
What is an Assault?
Intentionally causing an imminenent apprehension of harmful or offensive contact.
What is Intentional Infliction of Emotional Distress?
Intentional or reckless conduct which is extreme or outrageous, causing in severe distress connected to the conduct.
What is False Imprisionment?
Intentional direct restraint of another without adequate legal justification.
For the intentional tort of Battery, explain the difference in how harmful and offensive conduct are evaluated.
Generally, these things are evaluated by the Reasonable Person standard. For example, what would a reasonable person find offensive? However, the thin skull doctrine is applied to physical harm: here, D takes P as he finds him. If P has a particular medical condition, D is liable for the injury, even if the extent and nature of the harm was not foreseeable.
Usually, what kind of action is required on D's part to constitute an assault (setting aside P's subjective experience)?
The conduct must have some sort of physical manifestation; verbal threats alone are insufficient.
For Assault, what must P percieve?
Subjectively, the harmful or offensive contact must seem imminent (all three elements measured by RP standard.) It also must be believable (by a RP standard) that the contact is possible, or else it would not make any sense to think that the contact was imminent.
For False Imprisonment how is the "adequate legal justification" requirement evaluated?
Purely objectively. If the legal justification did not exist, D is liable, no matter how reasonable or good-willed his belief that he had a legal justification.
What is the Restatement view on Intentional Infliction of Emotional Distress in bystander cases?
If P is a family member, then the harm to the victim need not be physical and D may have been merely reckless in knowing that P was witnessing the act.

If P is not a family member, then the harm must be physical, and P witnessing of the act must be intentional (purpose or knowledge to a substantial certainty).

In any case, the bystander must witness the harm directly.
How is the "extreme and outrageous" element of IIED evaluated?
It takes into account various contextual aspects of the facts, such as demographic traits of P (physical state, race, pregnacy, gender, age, etc.) and the power relationship between P and D.

But it does not take into account P's personal emotional sensitivities beyond this point, except when those sensitivities are specifically targeted by D.
How can IIED be applied to the employer when it is employees who are acting?
The offensive conduct usually has to be sustained, not one-time incident.

Good will is significant in absolving the employer.
What are the privileges that D can argue?
Self Defense
Defense of Other
Defense of Property
Recovery of Propery

(also Authority of Law and Discipline, but we didn't cover those.)
When is Mistake of Fact a privilege that D can claim?
Only in the context of self-defense, where D uses force against another, believing that they were the one that D needed to defend from.
When can apparent consent be invalid?
- children cannot give consent to medical procedures (one needs parental consent)
- consent obtained when D knows or intends for P to misunderstand a material fact is invalied.
- the majority say that consent to illegal activities is invalid (e.g. prize-fighting; minority Jxs allow consent in such cases.)
What torts must one be threatened with to claim the privilege of self-defense?
Battery and False Imprisonment.
When may deadly force be used in defense of property?
- when the property is occupied (borders on defense of self/others)
- when there are clearly placed signs warning of the deadly force
- Miority: in defense of very valuable propery.
What defenses fail when D was mistaken, even though his actions were reasonable?
- Recovery of Property
- Defense of Other

also, with False Imprisonment, the "adequte legal justification" requirement is purely objective as well.
What is the privilege of Necessity?
General privilege, when there is an emergency and D had a reasonable belief that he had to commit the tort in order to serve greater good.
In negligence determinations, what are the characteristics of the Reasonably Prudent Person (RPP), given a particular D?
- RPP takes on the physical characteristics of the D
- RPP takes on superior capabilities of the D
- RPP takes on the age and experience of D if D is a child. Except, however, when the child if participating in an inherently dangerous activity/activity reserved for adults.
- RPP who is mentally disabled is held to a NORMAL RPP standard
In negligence determinations, what are the policy justifications for holding a mentally ill person to the normal RPP standard?
As laied out in Breuning:
- incentive for caretakers to be more prudent.
- decrease in false claims of insanity.
When does the calculated risk (B < PL)/Learned Hand formula for determining negligence most make sense?
It makes the most sense when B is very low and both P and L are very high. This would be clear evidence that there is a duty.
When do market failures make Trade Custom and B<PL analyses of duty diverge?
Basically, when there is a market failure. For example:
- when those affected do not have an economic relationship with the actor.
- when transaction costs (usually imperfect information) are high.
What is the professional standard for Attorneys?
- they must give reasonable advice; mere errors of judgment where other qualified attorneys could disagree do not cause liability.
- "requisite degree of learning and skill"
When can the jury rather than medical expert make the determination of a Physician's negligence?
When the negligence is so egregious that expert testimony is required (e.g. amputation of wrong body part.)
Describe what must be established to show that a physician's has breached her duty to obtain informed consent.
Physician must obtain consent for medical procedures, making sure that all material risks are communicated to the patient.
- "Material" is determined by the profession in majority of Jx's. Minority: Jury determines what risks are "Material"
- "Material" may vary if patient has particular needs.

The patient must show that they would not have consented had they known of the risk.

The injury must be of the same type as the undisclosed, material risk.
What are a physician's defenses for not having disclosed a material risk in obtaining consent for a medical procedure?
- Risk was commonly known
- Emergency
- P was particularly distressed, and disclosure could have complicated the procedure.
- Benefit of the procedure far overshadows the injury.
What kinds of statutes cannot be used to establish a statutory standard of care?
- statute designed to benefit the state (in cost, or in general governance, requiring actors to take on state duties)
- licensing statutes
- statute designed to secure an individual's rights reserved for the general public.
What are D's defenses against a statutory standard of care?
- that the statute was not designed to prevent the kind of harm that resulted
- that the statutes was not designed to protect the class of people to which P belongs.

There are also five automatic defenses that work in negligence per se Jxs:
- incapacity of D
- reasonable diligence to comply already made, exhausted
- compliance created a greater danger to D than violation
- no way to know of occasion to comply
- emergency not of D's making
What are the elements of Res Ipsa Loquitor (RIL)?
- that the instrumentality was in exclusive control of D
- that the harm would not likely have occurred without negligence on someones's part
How can D respond to negligence established by Res Ipsa Loquitor?
- contributory negligence from P
- present evidence specific to the harm at issue, showing that D was not negligent
- show that the harm was not proximate to anything that D might have done.
- present enough alternative expanations for the occurance
In Res Ipsa Loquitor cases, who has the burden of proof?
- Minority: rebuttable presumption. burden of proof on D
- Majority: allowable inference. only gets it to the jury; P must present case and jury can still decide that there was no negligence even if D has no evidence.
- In CA, jury is required to find negligence if elements of RIL are established.
What is the exception to the general rule where Substantial Increase in Likelihood is used to determine causation?
Usually, must be substantial increase of a harm that was not otherwise likely.

In medical negligence cases, however, substantial increase in risk of an already likely harm is still a cause in fact.
Causation in fact.
Distinguish amongst the the various evidentiary failure situations where there are multiple D's, and court cannot determine which one was the cause of the harm.
Generally, if all D's were negligent in the same manner and there are only a small number of them, then they are all jointly and severally liable (though there are also comparative fault Jxs.)

There is a special case of Market Share liablity, which allows suit against a large number of manufacturers in this situation. Here, P must bring suit against a large enough number of Ds to constitute a substantial share of the market. Ds may be found severally, or jointly and severally liable.

There is also the Ybarra exception, which allowed for group res ipsa loquitor finding of negligence. Exceptional because we know that not all Ds were negligent.
When can there be causation in fact even though there is not but-for causation?
- substantial increase in likelihood of harm
- multiple, sufficient causes
- multiple causes that merge
- one sufficient cause, but where harm would have resulted due to a second D's negligence even if the first had not been negligent.
How does D's liability vary with the foreseeability of the ultimate harm and the foreseeability of the intervening cause?
If the ultimate harm is foreseeable, the foreseeability of the intervening cause doesn't matter: D is liable.

If the ultimate harm is unforeseeable and the intervening cause is unforeseeable, then D is not liable. If the intervening cause is foreseeable, then don't use intervening cause analysis, here; use other proximate cause doctrines.
How do intervening criminal or reckless acts change liability?
Criminal or reckless acts are independent and thus superseding causes, except when they are foreseeable.
What are the special situations that arise under Intervening cause? What are the rules and their exceptions?
Second Accident: not intervening, except where there has been a return to normalcy

Suicide: intervening, unless there was an "irresistible impulse" caused by the initial negligence.

Rescuer doctrine: Rescuer who is injured in emergency caused by D can sue, except:
- professional rescuers
- unreasonable rescue
- unreasonable rescue of property (depends on value)

Social Host Serving Alcohol: no liability
- Minority: hold D liable anyway
Wagon Mound I
Application of Cardozo-style proximate cause analysis
Application of Andrews-style analysis of proximate cause
Flaming Rat case; unforseeability of intervening cause doesn't matter if the ultimate harm was foreseeable.
multiple D's case; shooting out of P's eye; unclear whose birdshot caused the injury; all D's liable.
DES case: Market Share Liability
Market Share Liability, but made D's only severall liable according to market share, not jointly and severally liable.
Group Res Ipsa Loquitor
Kinsman II
application of foreseeability analysis, with directness used as a way to temper the infinite causation chain.
in pari delicto
comes up in mistake of fact situations with self defense. no liability, because both parties are of equal blame; both innocent.