15.00 Proximate Cause
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Proximate Cause Risks That Make Defendant Negligent Other Risks
Negligence – Prima Facie Case • D owed P a Legal Duty • Breach of Duty • Actual Damages • Factual Cause • Proximate Cause Risks that Make Defendant Negligent Other Risks A ? B ? Harm ? D ? C Determining Breach of Duty 1) Would reasonable person have foreseen a risk of harm [to someone]? – If no, then not negligent – If yes, move on to #2 2) Would reasonable person have taken steps to avoid or minimize the risk (identified in #1)? – If no, then not negligent – If yes, then negligent Element Modern Framework (Thompson) Palsgraff (Cardozo) D owes everyone, including P, a D owes P a duty only if: D’s Duty duty of ordinary care conduct creates an unreasonable, foreseeable risk to P • D’s conduct creates a reasonably • D failed to act as a reasonable Breach of foreseeable risk of harm and prudent person would • Reasonable and prudent person Duty would seek to minimize or eliminate this risk • D failed to do so Proximate • D’s conduct creates a N/A Cause foreseeable risk to P • A reasonable and prudent person would seek to minimize or eliminate the risk to P Proximate Cause – Scope of Risk Harm w/in scope of risk if: Reasonable person in similar circumstances would have 1) foreseen harm or risk (a) of same general type, and (b) to the general class of persons that includes the P; and 2) Taken greater precautions to avoid it than D took Multifactor Test (Palsgraf dissent) Proximate cause determined by balancing multiple factors: • Foreseeability of harm to P • Rough sense justice • D’s conduct a substantial factor in causing P’s harm • Natural -
Chapter 2 Proximate Cause
Chapter 2 Proximate Cause Introduction Causation is one of the most difficult concepts occurred but for the defendant' s for many law students to master. This is perhaps conduct? because most of the causation concept is intuitively — and — obvious. What is difficult is not the largely intuitive and obvious part, but the relatively rare (b) Legal cause: was the defendant' s case in which our intuitive faculties fail us. For conduct closely enough related to example, when two cars collide in an intersection, the plaintiff's injury to make it and one of the cars was driven at excessive speed fair to hold him liable? through a red light, it is not difficult for us to Each of these is taken up in turn, after we have assign the cause of the accident to speeding and looked at a California case that abandoned the failure to yield. Although the issue of causation is traditional approach. technically part of the plaintiff' s burden of proof, in practice that issue will occupy almost none of the jury's time in deliberation. MITCHELL v. GONZALEZ The difficulty arises where we are uncertain about what caused a particular accident, or where 54 Cal. 3d 1041, 1 Cal. Rptr. 2d 913, 819 P.2d we are certain of one cause, but uncertain with 872 (1991) respect to another. For example, if an asbestos LUCAS, Chief Justice worker/smoker dies of lung cancer, what must we know about the relationship between lung cancer In this case we decide whether BAJI No. and smoking or between lung cancer and asbestos 3.75,1 the so-called proximate cause instruction, before we can say that one or the other (or both) which contains a "but for" test of cause in fact, caused his lung cancer? Is it enough to note that should continue to be given in this state, or smokers have a significantly higher rate of lung whether it should be disapproved in favor of BAJI cancer than nonsmokers? What about the fact that No. -
Essay Questions and Selected Answers October 2017
California First-Year Law Students’ Examination Essay Questions and Selected Answers October 2017 The State Bar of California Committee of Bar Examiners / Office of Admissions 180 Howard Street • San Francisco, CA 94105-1639 • (415) 538-2300 845 South Figueroa Street • Los Angeles, CA 90017-2515 • (213) 765-1500 ESSAY QUESTIONS AND SELECTED ANSWERS OCTOBER 2017 CALIFORNIA FIRST-YEAR LAW STUDENTS’ EXAMINATION This publication contains the four essay questions from the October 2017 California First-Year Law Students’ Examination and two selected answers for each question. The answers were assigned high grades and were written by applicants who passed the examination. The answers were produced as submitted by the applicant, except that minor corrections in spelling and punctuation were made for ease in reading. They are reproduced here with the consent of the authors. Question Number Subject 1. Torts 2. Criminal Law 3. Contracts 4. Torts October 2017 ESSAY QUESTIONS California First-Year Law Students' Examination Answer all 4 questions. Your answer should demonstrate your ability to analyze the facts in the question, to tell the difference between material facts and immaterial facts, and to discern the points of law and fact upon which the case turns. Your answer should show that you know and understand the pertinent principles and theories of law, their qualifications and limitations, and their relationships to each other. Your answer should evidence your ability to apply the law to the given facts and to reason in a logical, lawyer-like manner from the premises you adopt to a sound conclusion. Do not merely show that you remember legal principles. -
Positive Externalities and the Economics of Proximate Cause Israel Gilead Hebrew University of Jerusalem
Washington and Lee Law Review Volume 74 | Issue 3 Article 6 Summer 6-1-2017 Positive Externalities and the Economics of Proximate Cause Israel Gilead Hebrew University of Jerusalem Michael D. Green Wake Forest University School of Law Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr Part of the Torts Commons Recommended Citation Israel Gilead and Michael D. Green, Positive Externalities and the Economics of Proximate Cause, 74 Wash. & Lee L. Rev. 1517 (2017), https://scholarlycommons.law.wlu.edu/wlulr/vol74/iss3/6 This Article is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact [email protected]. Positive Externalities and the Economics of Proximate Cause Israel Gilead & Michael D. Green* Table of Contents I. Introduction ...................................................................1518 II. Why is it Efficient to Exclude Harms from the Scope of Liability? ..........................................................1527 III. The Exclusion of Foreseeable Reasonable Risks ...........1530 A. When is a Risk “Reasonable”? .................................1531 B. The “Correlation Problem” ......................................1532 C. The Efficiency of Excluding Reasonable Risks from the Scope of Liability ......................................1535 D. Illustrations .............................................................1539 1. Loaded Gun and Injured Toe .............................1539 2. Landowner Fails to Warn Not to Swim in a Polluted Pond ..................................................1541 3. A Cholesterol-Reducing Drug ............................1542 4. An Overview of the Illustrations .......................1545 IV. Responding to the Critique of HWTRS for Excluding Foreseeable Harms .......................................1546 A. -
Intentional Torts
Torts INTENTIONAL TORTS Intent ‐act intending to produce the harm OR ‐know that harm is substantially certain to result Battery ‐requires dual intent: 1) Act intending to cause harm or offensive contact with person (what is offensive?) 2) harmful contact directly or indirectly results *Vosburg rule used to be only need to intend contact *doesn’t have to know the full extent of the possible harm, just know that it is likely to cause harm *can be liable for any damages, unforeseen or not *thin shin rule *Transferred intent ‐ need not be person who def intended to harm ‐criminal negligence vs. tort negligence ‐small unjustifiable risk vs. big risk, gross deviation from std of care Intentional Infliction of Emotional Distress 1) Intent to harm (can be imputed from facts) Wilkinson v. Downton (93) o Practical joke where guy tells woman her husband badly injured. o Rule: Such a statement, made suddenly and with apparent seriousness, could fail to produce grave effects under the circumstance upon any but an exceptionally indifferent person, and therefore an intent to produce such an effect must be imputed. 2) Outrageous Conduct RESTATEMENT 2 ‐ 46 ‐ outrageous conduct causing severe emotional distress ‐extreme or outrageous conduct ‐ who is deciding? JURY ‐intentionally or recklessly causes severe emotional distress ‐liable for emotional distress and/or bodily harm ‐liable to family members who are present regardless of bodily harm ‐liable to third parties present (not family) IF distress results in bodily harm ‐really does have to be OUTRAGEOUS‐ beyond all decency (Jury decides) ‐expansion from battery to IIED shows expansion of tort law ‐serious threats to physical well‐being are outrageous -The extreme and outrageous character might arise from knowledge that the other is peculiarly susceptible to ED by reason of a physical or mental condition or peculiarity (Amish guy). -
What's Unconstitutional About Wrongful Life Claims? Ask Jane
What’s Unconstitutional About Wrongful Life Claims? Ask Jane Roe . By: Bruce R. Parker, Scott C. Armstrong and Thomasina E. Poirot Bruce R. Parker, a Partner in Venable's Products Liability Practice Group, has led the expert and science development in several mass torts including breast implants, latex gloves, diesel exhaust, contact lens solution, Mirapex, Actos, Benicar, injectable iron and proton pump inhibitors. He has tried to verdict cases involving breast implants, latex gloves, Mirapex and Actos. He has argued several MDL Daubert hearings as lead counsel. He is a Fellow in the American College of Trial Lawyers. Mr. Parker was President of the IADC (2006-07), President of the Maryland Defense Counsel (1988), Director of the IADC Trial Academy (August 2004), Dean for the IADC Corporate Counsel College in 2011, and served on DRI’s Board of Directors (2005-08), and Lawyers for Civil Justice (2006-07). Scott C. Armstrong is a member of the Product Liability and Mass Torts Litigation Practice Group at Venable LLP in Baltimore, Maryland. A cum laude graduate of the University of South Carolina School of Law, Mr. Armstrong has significant experience defending complex, multi-party litigation cases and regulatory enforcement matters. His current practice focuses on electronic discovery, legal research and writing, and deposition and trial support for complex multi-district litigation involving vaccines and pharmaceutical drug products. 2 DEFENSE COUNSEL JOURNAL | JULY 2020 Thomasina Poirot is a member of Venable’s Product Liability and Mass Torts Practice Group; her practice concentrates on complex pharmaceutical litigation, medical malpractice, and insurance coverage matters. Ms. -
Tort Law - the Doctrine of Independent Intervening Cause Does Not Apply in Cases of Multiple Acts of Negligence - Torres V
Volume 30 Issue 2 Summer 2000 Summer 2002 Tort Law - The Doctrine of Independent Intervening Cause Does Not Apply in Cases of Multiple Acts of Negligence - Torres v. El Paso Electric Company Cynthia Loehr Recommended Citation Cynthia Loehr, Tort Law - The Doctrine of Independent Intervening Cause Does Not Apply in Cases of Multiple Acts of Negligence - Torres v. El Paso Electric Company, 30 N.M. L. Rev. 325 (2002). Available at: https://digitalrepository.unm.edu/nmlr/vol30/iss2/8 This Notes and Comments is brought to you for free and open access by The University of New Mexico School of Law. For more information, please visit the New Mexico Law Review website: www.lawschool.unm.edu/nmlr TORT LAW-The Doctrine of Independent Intervening Cause Does Not Apply in Cases of Multiple Acts of Negligence-Torres v. El Paso Electric Company I. INTRODUCTION In Torres v. El Paso Electric Company,' the New Mexico Supreme Court abolished the doctrine of independent intervening cause for multiple acts of negligence, including where a defendant and a plaintiff are both negligent.2 An independent intervening cause is "a cause which interrupts the natural sequence of events, turns aside their cause, prevents the natural and probable results of the original act or omission, and produces a different result, that could not have been reasonably foreseen."3 The Torrescourt concluded that the independent intervening cause instruction would "unduly emphasize" a defendant's attempts to shift fault and was "sufficiently repetitive" of that for proximate cause that -
Tort Law - to Be Or Not to Be: the Rw Ongful Life Cause of Action Mary Beth Forsyth
Campbell Law Review Volume 5 Article 7 Issue 2 Spring 1983 1983 Tort Law - To Be or Not To Be: The rW ongful Life Cause of Action Mary Beth Forsyth Follow this and additional works at: http://scholarship.law.campbell.edu/clr Part of the Torts Commons Recommended Citation Mary Beth Forsyth, Tort Law - To Be or Not To Be: The Wrongful Life Cause of Action, 5 Campbell L. Rev. 435 (1983). This Note is brought to you for free and open access by Scholarly Repository @ Campbell University School of Law. It has been accepted for inclusion in Campbell Law Review by an authorized administrator of Scholarly Repository @ Campbell University School of Law. Forsyth: Tort Law - To Be or Not To Be: The Wrongful Life Cause of Action TORT LAW-TO BE OR NOT TO BE: THE WRONGFUL LIFE CAUSE OF ACTION-Turpin v. Sortini, 31 Cal.3d 220, 643 P.2d 954, 182 Cal. Rptr. 337 (1982). INTRODUCTION "To be or not to be" 1-a dilemma Shakespeare's Hamlet struggled with centuries ago. Now it seems American courts must also resolve this question. The action for "wrongful life," once un- known, is fast becoming a common cause of action. More than sixty wrongful life cases have been decided with more than one- third of these cases occurring since 1976.2 The essence of a wrong- ful life cause of action is the allegation that due to the negligence of another, birth occurred.3 Wrongful life suits are to be distin- guished from "wrongful birth" or "wrongful pregnancy" cases in that the former are actions brought by the child, whereas the latter refer to suits in which the parents -
Foreseeability in Contract and Tort: the Problems of Responsibility and Remoteness
Case Western Reserve Law Review Volume 36 Issue 2 Article 5 1985 Foreseeability in Contract and Tort: The Problems of Responsibility and Remoteness Banks McDowell Follow this and additional works at: https://scholarlycommons.law.case.edu/caselrev Part of the Law Commons Recommended Citation Banks McDowell, Foreseeability in Contract and Tort: The Problems of Responsibility and Remoteness, 36 Case W. Rsrv. L. Rev. 286 (1985) Available at: https://scholarlycommons.law.case.edu/caselrev/vol36/iss2/5 This Article is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Law Review by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. FORESEEABILITY IN CONTRACT AND TORT: THE PROBLEMS OF RESPONSIBILITY AND REMOTENESS Banks McDowell* The concept offorseeability is used in rules and legal analysis as if its meaning is clearand nonproblemati. Many lawyers, teachersand judges, however, do not share this comforting conclusion. This Article presents a theoreticalanalysis of what fore- seeability ought to mean and its implicationsfor civil law. The authorproposes that foreseeability actuallyfunctions similarly in contract and tort, even though the con- ventional doctrine of those disciplinespoints to the contrary. Foreseeabilityserves two purposes:first, in traditionalfault-based theory, foreseeability implies some form of sanction, helping civil law fulfill its normative -
Eliminating Proximate Cause As an Element of the Prima Facie Case from Strict Products Liability
Digital Commons @ Touro Law Center Scholarly Works Faculty Scholarship 1995 Eliminating Proximate Cause as an Element of the Prima Facie Case from Strict Products Liability Peter Zablotsky Touro Law Center Follow this and additional works at: https://digitalcommons.tourolaw.edu/scholarlyworks Part of the Torts Commons Recommended Citation 45 Cath. U. L. Rev. 31 (1995-1996) This Article is brought to you for free and open access by the Faculty Scholarship at Digital Commons @ Touro Law Center. It has been accepted for inclusion in Scholarly Works by an authorized administrator of Digital Commons @ Touro Law Center. For more information, please contact [email protected]. ELIMINATING PROXIMATE CAUSE AS AN ELEMENT OF THE PRIMA FACIE CASE FOR STRICT PRODUCTS LIABILITY Peter Zablotsky* Section 402A of the Restatement (Second) of Torts articulates the ba- sic principles of the strict products liability cause of action.' It is a signifi- cant section; perhaps more than any other section ever drafted, it has come to be regarded as critical black letter law.2 Section 402A is cur- * Associate Professor of Law, Touro College Jacob D. Fuchsberg Law Center. B.A., Pennsylvania State University, 1977; J.D., Columbia University School of Law, 1980. The author would like to thank Ramon Javier, Amy Siegel, and Alan Shuchatowitz for their assistance with research. 1. RESTATEMENT (SECOND) OF TORTS § 402A (1965). This section states: (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. -
Supreme Court of the United States ______
Nos. 19-675 & 19-688 IN THE Supreme Court of the United States ________________ BANK OF AMERICA CORP., ET AL., Petitioners, v. CITY OF MIAMI, FLORIDA, Respondent. ________________ WELLS FARGO & CO. AND WELLS FARGO BANK, N.A., Petitioners, v. CITY OF MIAMI, FLORIDA, Respondent. ________________ On Petitions of Writ of Certiorari to the U.S. Court of Appeals for the Eleventh Circuit _________________________________________________ BRIEF FOR THE CATO INSTITUTE AS AMICUS CURIAE SUPPORTING PETITIONERS _________________________________________________ ILYA SHAPIRO Counsel of Record TREVOR BURRUS SAM SPIEGELMAN CATO INSTITUTE 1000 Mass. Avenue, N.W. Washington, D.C. 20001 (202) 842-0200 December 20, 2019 [email protected] i QUESTIONS PRESENTED In its prior decision in this case, this Court held that the Fair Housing Act requires proof of proximate cause in the same way as other federal statutes with common-law roots. Following the relevant “directness principles,” the Court held, generally limits recovery to injury at the “first step” of the causal chain. Bank of America v. City of Miami, 137 S. Ct. 1296 (2017). On remand, the Eleventh Circuit held that the governing “directness principles” do not limit the length of the causal chain, but instead require only some “logical bond” or “meaningful and logical continuity” between a statutory violation and the claimed injury. Miami alleges that the terms of loans made to individual borrowers led, through a lengthy causal chain, to lost tax revenue. The Eleventh Circuit held that claim sufficiently “direct.” The question presented by the cert petitions is: 1. Whether the FHA’s proximate-cause element requires more than just some “logical bond” between a statutory violation and the claimed injury. -
Torts Mnemonics
TORTS MNEMONICS 1) Torts are done IN SIN: I – INTENTIONAL harm to a person (e.g., assault, battery, false imprisonment, or the intentional infliction of emotional harm) N – NEGLIGENT conduct causing personal injury, wrongful death, or prop damage S – STRICT tort liability (see the mnemonic A SWAN) I – INTENTIONAL harm to property (e.g., trespass, conversion, or tortious interference with a contract) N – NUISANCE 2) Tortious conduct makes you want to SING: S – STRICT tort liability I – INTENTIONAL conduct N – NEGLIGENT conduct G – GROSS negligence a/k/a reckless conduct 3) A D’s FIT conduct is unreasonable/negligent when P was within the foreseeable zone of danger: F – FAILURE to take reasonable precautions in light of foreseeable risks I – INADVERTENCE T – THOUGHTLESSNESS 4) To establish a negligence claim, P must mix the right DIP: D – DUTY to exercise reasonable care was owed by the D to the injured P and the D breached this duty (for a negligence claim the duty is always to conform to the legal standard of reasonable conduct in light of the apparent risks) I – Physical INJURY to the P or his property (damages) P – P’s injuries were PROXIMATELY caused by the D’s breach of duty 5) A parent is liable only for the torts of a SICK child: S – in an employment relationship where a child commits a tort, while acting as a SERVANT or agent of the parent I – where the parent entrusts or knowingly leaves in the child’s possession an INSTRUMENTALITY that, in light of the child’s age, intelligence, disposition and prior experience, creates an unreasonable