Torts Outline Essay Example

a. A tort is a civil wrong, other than a breach of contract, for which the law provides a legal remedy. b. Area of law that imposes duties on persons to act in a manner that will not injure other persons c. A person who breaches a tort duty may be liable in a lawsuit brought by a person injured by that tort d. Initially, you had to have a writ from the King in order to have a claim in court. There were two writs – trespass and case. Trespass was actionable due to direct harm; a preview of intentional torts. Case lets you recover on something that isn’t immediate; sort of the precursor to modern negligence.

INTENTIONAL TORTS TO PERSON AND PROPERTY A. TORTS TO PERSON 1. Battery: defendant must act (i. e. a volitional movement) with the (1) intent/desire to cause (2) touch/contact, in a (3) harmful or offensive manner, (4) that was not consented to, and (5) plaintiff need not be aware of the touching at the time of the touching. 1. Intentional 1. : D must act with the desire to cause touching, or the belief/knowledge that the touching was substantially certain to occur (see Garratt v.

Dailey, p. 17-20) 1. Test: for intent is subjective ? not what a reasonable person would have done, but rather what the particular defendant in fact desired or believed. (Intent to intrude = intent to bring about the consequences of the act. ) 1. Mistake does not negate the intent (see Ranson v. Kitner) 2. Mental disease does not negate intent, i. e. capability of entertaining the intent (see McGuire v. Almy) 3. Transferred Intent Doctrine: if D acts intending to cause B/A/FI/TL/TC/C, D will be liable even if the particular harm to P is unexpected (see Talmage v.

Smith, D throws stick and hits other kid). 2. Touching 1. Touching of another person, or object universally accepted/intimately connected to the body, (see Fisher v. Carrousel, snatching plate from hand) (fact for jury). 2. Need not actually touch the person. D drives P off the road, and injures P. 3. Harmful: OR 1. Injures, disfigures, impairs, or causes pain to any bodily organ or function 4. Offensive: If the touching offends a reasonable person’s sense of personal dignity. 1. The standard for offensive is objective (see Fisher). 5. Without Consent: to be PROVEN by P.

6. Awareness: P need NOT be aware of the touching. 1. Example: D kisses P, a stranger, while P is asleep = potential battery. 2. Assault: Defendant (1) intended/desired to (2) inflict/cause a battery, the harmful or offensive touching of P or a third person, OR (3) put P or third person in apprehension of an imminent battery, (4) not consented to, and (5) plaintiff was aware of the assault at the time of the assault. 1. Intent: same as battery, measured by “desire or belief in substantial certainty. ” 1. Transferred Intent Doctrine: Applicable. 2.

Cause a Battery: A harmful or offensive touching (see above). OR 3. Causing a (Reasonable) Apprehension of an Imminent Battery: (see Western Union) 1. To be imminent: D generally needs to have the actual or apparent ability to inflict touching. 1. Example: D says, “I’m going to shoot you,” and points unloaded gun at P = assault. 2. Test for Apprehension: Subjective (? ) 3. Fear is not required 4. D may be liable when arousing the apprehension of harm from someone else. 4. Awareness: P must be aware of the assault at the time thereof. 5. Without Consent.

3. False Imprisonment: Defendant (1) intentionally caused the (2) confinement/restraining of the plaintiff, (3) against their will (no consent), (4) that was unlawful, and (5) P was aware. 1. Intent: D purposely caused the action that restrained the other person, measured by the “desire or belief in substantial certainty” test. 1. Transferred Intent Doctrine: Applicable. 2. Confinement: must be some specific area in which P is completely confined by D’s acts, requires P be restricted to a limited area w/o knowledge of a reasonable means of escape. 1.

There is no confinement if reasonable means of escape are available and known to P. (P under no duty to search for a means of escape or run risk of harm to person/property). 2. Threats alone (i. e. words) to person/immediate family/property may be sufficient for FI. 3. Against Their Will (No Consent): if the person consents to the confinement, no FI (see Hardy v. LaBelle, P said she would have stayed anyway = no FI). 4. Unlawfulness: lawfulness of confinement may not be FI… 1. Legal Authority w/o Lawful Confinement: see Enright v. Groves, police make an unlawful arrest of P ?

FI. 5. Awareness: There is no confinement unless P knows that he is confined at the time of confinement or is harmed by the confinement (see Parvi v. City of Kingston) 4. Intentional Infliction of Emotional Distress: One who (1) intentionally, or (2) recklessly, by (3) extreme or outrageous conduct, (4) causes (5) severe emotional distress to another person, (6) without their consent. 1. Intentionally: D purposely caused the emotional distress or knew with substantial certainty that emotional distress would result from conduct. (See Taylor v.

Vallenlunga, P’s father beaten in front of her, D did not know P was there). 1. Transferred Intent Doctrine: NOT Applicable. 2. Recklessly: Where D acts in deliberate/conscious disregard of a high probability that his actions will cause emotional distress (essentially “substantial certainty”). 3. Extreme or Outrageous Conduct: conduct that must exceed “all bounds of decent behavior which could be tolerated by society. ” Words alone may be a sufficient act. (See State Rubbish Collectors Ass’n v. Siliznoff, Rubbish made threats of future harm to Siliznoff, words = outrageous).

Legitimize claim, HARD ELEMENT TO PROVE IN COURT. 1. Objective Standard 2. Totality of the Circumstances 4. Causation: the conduct must have directly caused distress. 5. Severe Emotional Distress: must be more than a reasonable person in society could be expected to endure/tolerate. (See Harris v. Jones, P had a speech impediment, D made fun of P, not severe) 1. Mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities, NOT SEVERE. 2. Exacerbation of pre-existing condition may not be severe. 6. Without Consent B. TORTS TO PROPERTY 1.

Trespass to Land: D’s volitional movement of some part of his body or sets in motion a force resulting in the (1) intentional/desire, to (2) interference with (intrude onto) (3) the exclusive rights to possess land of another’s (4) that was not consented to. 1. Intentional: D must act with the desire to do the act that causes intrusion, or knew with substantially certain that his actions would cause entry. 1. Transferred Intent Doctrine: Applicable. 2. Mistake does not negate, Court Presumes Harm 2. Interfering With: may be by personal entry onto land or by causing some third person or thing to enter. 1.

Particles or Substance: when air pollutants accumulate on land and there is actual and substantial damage = TRESPASS. If not, then maybe NUISANCE (See Bradley v. American Smelting and Refining Co. ) 2. Failure to Leave Land/Remove Property, after permission to remain has expired (See Rogers v. Board of Road Commissioners, D failed to remove snow fence posts). 3. Exclusive Right to Possess Land of Another: P must have “actual possession” or “right to immediate possession” of land. 1. Airspace: P’s land extends upwards (See Herrin v. Sutherland, D fired shotgun blast over P’s property). 2. Limitations: Commercial airplanes.

No trespass, may still have action of nuisance. 4. Without Consent: 1. With the consent of the person then in possession of the land, if the actor fails to remove object after the consent has been effectively terminated ? liable, OR 2. If the actor fails to remove it after the privilege has been terminated, by the accomplishment of its purpose or otherwise. 2. Trespass to Chattels: D’s volitional movement, or force set in motion, that (1) intent/desire, to (2) interfere (dispossession of, or intermeddling with) (3) the exclusive right to possess the chattel of another (4) that caused (5) actual damage.

1. Intentional: D intended to deal with the chattel in the manner in which he did deal with the chattel. 1. Transferred Intent Doctrine: Applicable. 2. Using (Dispossession Of): conduct amounting to D’s assertion of a proprietary interest over the interest of the rightful owner 1. Example: theft of the chattel, joyriding OR 3. Intermeddling With: intentionally bringing about contact with the chattel (not actual physical contact, see CompuServe) 1. Example: throwing a stone at a car, beating another’s animal. 4.

The Chattel of Another: actual possession or right to immediate possession (same as trespass to land) 5. Caused: must have been legally caused by D’s intentional act. 1. Dispossession of chattel; 2. Impaired it as to its condition, quality, or value; 3. Deprived of the use for a substantial time; 4. Injury to the possessor; 5. Harm to some person or thing in which the possessor has a legally protected interest. 6. Actual Damages: ARE REQUIRED, liable for the harm that results from the trespass. Pay for the damage 7. Without Consent 3.

Conversion (of Chattel): D’s volitional movement, or force set in motion, with (1) intent/desire, to (2) exercise dominion or control over a chattel, that (3) so seriously interferes with the exclusive right of another, to the extent that the law is going to (4) required to pay full value of the chattel (buy the chattel), that was (5) not consented to (Rest. 2d §222A). 1. Intent: D intended to deal with the chattel in the manner in which he did deal with the chattel. (Meant to do what D did) 1. Transferred Intent Doctrine: Applicable. 2.

Exercise of Dominion or Control Over: invasion required is greater than that required for trespass to chattels. 1. Substantial Dispossession: possession by fraud, theft 2. Destroying/Altering: intentionally running over pet 3. Using: violating the terms of the bailment 4. Buying/Receiving Stolen Goods: from a thief 5. Selling/Disposing of Stolen Goods: bailee wrongfully sells the chattel 6. Misdelivering Chattel: delivery to a wrong person by mistake so that the chattel is lost. 7. Refusing to Return/Surrender Chattel on Demand 1. EXCEPTION: investigate claimant’s right to chattel. 3.

Substantially Interferes with the Exclusive Right of Another: (factors influencing conversion) 1. Extent and Duration: two types 1. Of dominion or control; 2. Of resulting interference 2. Actor’s Intent Inconsistent with Other’s Right to Control 3. Actor’s Good Faith: cannot obtain title by theft 4. Harm to the Chattel: not required, but maybe important 5. Inconvenience/Expense Caused to the Other 4. Require to Pay Full Value of Chattel/Damages: equal to the fair market value of the chattel at time of conversion, i. e. “BUY” the chattel. 5. Without Consent .

PRIVILEGES/DEFENSES TO PERSON AND PROPERTY: 1. Consent: Not an Affirmative Defense for purposes, i. e. plaintiff must show that consent was not given. a. Based on P’s Behavior: a. i. Actual Express Consent: communicates willingness to submit to conduct a. ii. Apparent Consent (Implied from Conduct): in light of the circumstances led D to reasonably believe submission of P (O’Brien v. Cunard and Hackbart v. Bengals) b. Consent Goes to Act, NOT Inducement: failure to follow through on inducement to consent does not negate the consent to the act. c. When Consent is NOT A DEFENSE: c. i.

Acts in Excess of Consent Given—in a non-emergency situation, a doctor needs express consent. c. i. 1. MEDICAL EXCEPTION—when it is 1) necessary to preserve life, and 2) it is reasonable to assume the person would consent if conscious, and (3) no reason to believe patient would refuse treatment. c. ii. Consent by Fraud—consent to invasion is ineffective if procured by fraud. c. ii. 1. Collateral Matter: fraud to a collateral matter, consent is still valid c. ii. 1. a. Example: John pretends to be Brian, Cara consents to sex with John thinking John was Brian. When Cara finds out Brian was John, Cara sues.

The fact that John was pretending to be Brian does not negate the intent. c. ii. 1. a. i. Sex is essence of the consent. c. iii. Consent by Coercion—consent invalid c. iv. Consent by Involuntary Intoxication—consent invalid c. v. Consent by Duress—consent given under physical force, or threats of physical force is ineffective. c. vi. Mistake—P’s consent is ineffective if due to a mistake caused by or known to D c. vi. 1. Mistake of Law—? c. vi. 2. Mistake of Fact—If P fails to understand the nature or consequences of the invasion of her person or property, consent is ineffective c. vi. 2. a.

Lack of consent in medical treatment c. vi. 2. a. i. See Above (1, iii, a, a) c. vi. 2. b. Lack of informed consent—If P alleges that she was not adequately informed of the risks and benefits prior to surgery c. vii. Incapacity to Consent—e. g. infant; mentally incompetent c. vii. 1. Children—need consent from parent (exception in the case of emergencies) c. viii. Criminal Acts c. viii. 1. Majority—consent to a criminal act is ineffective if the act involves a breach of the peace c. viii. 2. Minority—consent to a criminal act is effective except where P is a member of a class protected by statute 2. Self-Defense: a.

Existence of Privilege: anyone is privileged to use reasonable force (under the facts and circumstances) to defend himself against a threatened intentional tort on the part of another. b. Retaliation: privilege does not extend to retaliation; when the threat ends, the privilege terminates. Even if you are the aggressor, when you retreat you can now use self-defense against the person you initially threatened. c. Reasonable Belief: privilege exists when D reasonably believes that the force is necessary to protect against threat. d. Provocation: insults, verbal threats, or opprobrious language does not justify the exercise of self-defense.

e. Amount of Force: limited to the use of force that is threatened, or reasonably appears to be necessary for protection against threat. e. i. SERIOUS FORCE: used only when D has a reasonable apprehension of loss of life or GBH. f. Retreat: is not required unless the situation calls for Serious Force, and only then if it is possible to do so without increasing the danger. Do NOT have to retreat before defending yourself g. Injury to Third Party (Transferred Intent): A defending himself against B injures C. Self-defense holds, unless there is some form of negligence 3.

Defense of Others: Similar to that of Self-Defense, the closer questions concern reasonableness of force in the circumstances a. Reasonable Mistake (Mistake of Fact): D is privileged to use reasonable force to defend another even when he is mistaken in his belief that intervention is necessary, so long as his mistake was reasonable. 4. Defense of Property: Involves attempting to stop someone from interfering with property a. Only reasonable force, under the circumstances, may be used to prevent intrusion of land or chattels (D may not use deadly force) a. i. May Use Reasonable, Nondeadly Force If: a. i. 1. Intrusion by P is not privileged;

a. i. 2. D reasonably believes force is necessary to prevent or terminate the intrusion; AND a. i. 3. D, prior to the use of force, makes a demand that the intruder desist or leave (unless demand is futile). a. i. 4. Serious Force (deadly or serious bodily harm) is NEVER appropriate for defense of property alone a. i. 4. a. UNLESS, the defender finds himself in a situation where self-defense requires it in the course of defending the property 5. Recovery of Property (Recapture of Chattel): Involves the recovery of property from one unauthorized to take it. a. Elements a. i. Possession of the Property was Obtained Wrongly.

a. i. 1. Does not include property obtained properly and retained wrongly a. ii. Property Owner in Fresh/Hot Pursuit (time starts on knowledge of dispossession) a. ii. 1. The longer the time period, the less the privilege a. ii. 2. When the privilege expires, a suit must be brought a. iii. Only Reasonable Force Under the Circumstances a. iii. 1. The greater the value of chattel, the more force a. iii. 1. a. More than reasonable, A/B of D a. iii. 2. Serious Force may only be used in Self-Defense a. iv. D Must Have Superior Right to Possession of the Property a. iv. 1. Need not be the owner, only the legal possessor a. v.

D Must Demand the Return of the Property a. v. 1. Unless, such a demand would clearly be futile b. Mistake of Fact is NOT a Defense c. Shopkeeper’s Privilege: c. i. Detention may occur if there is a reasonable belief that P has taken property, for reasonable investigation c. i. 1. On or within the vicinity of the store (fresh pursuit) c. i. 2. Only reasonable force may be used c. i. 3. Must be for a reasonable amount of time c. i. 4. One it has been determined that nothing was taken, the person must be immediately released 6. Necessity: Only applicable to Trespass to Land/Trespass to Chattels/Conversion a. Public Necessity: a. i.

Action taken to protect the public’s interest a. ii. Must be shown that D reasonably believed that the action taken was immediately necessary to avoid greater harm to community (see Surocco v. Geary, stop spread of fire) a. iii. Complete Defense (No Cause of Action, No Damages may be Recovered) b. Private Necessity: b. i. For D’s own personal safety b. ii. Must be shown that D reasonably believed that action was necessary to avoid greater harm to himself (or his property) (see Vincent v. Erie Transp. Co. , damage to dock caused by ship in storm) b. iii. Incomplete Defense (No Cause of Action for Trespass, but Damages may be Recovered) b.

iii. 1. If you are privileged to trespass on land, the owner’s use of force/harm against you, you may bring a suit for battery, etc. ______________________________________________________________________________ NEGLIGENCE ELEMENTS OF CAUSE OF ACTION (Breach of Duty, Caused Damages) 1. A duty to use reasonable care, requiring the actor to conform to a certain standard of conduct for the protection of others against unreasonable risks. COURT DETERMINES EXISTENCE OF DUTY 2. A failure to conform to the required standard; commonly called breach of duty. These two elements make up what the courts usually have called negligence.

3. Causation—a reasonably close causal connection between the conduct and the resulting injury. Two Types: Causation in Fact and Proximate Causation. 4. Actual loss or damage resulting to the interests of another. THE (OBJECTIVE) STANDARD OF CARE 1. The Reasonable Prudent Person: Negligence is the failure to exercise the care and caution which a reasonable and prudent person ordinarily would exercise under like conditions and circumstances. a. Custom: while the evidence of custom and usage is highly relevant to the reasonable person standard, it does NOT per se define the scope of negligence (see Trimarco v.

Klein). When there is proof of custom and showing that D ignored custom, and this departure was a proximate cause of the accident, might serve to establish liability [i. e. goes to reasonableness]. Emergency Situations: One is less likely to be held liable for negligence if he is acting under an emergency that is: Not his own making; Unforeseen, sudden, and unexpected. The standard of care in an emergency is modified from the typical “reasonable person standard” to “reasonable person in this emergency situation. ” One is required to anticipate an emergency situation if it can be anticipated by a reasonable person.

Hypo: When driving near a school, a reasonable person would anticipate that children may jump out into the street. Thus, a reasonable person will drive slower and more carefully. b. Disabled/Handicapped: a disabled person must take precautions, be they more or less, which the ordinary reasonable man would take if he were similarly disabled (see Roberts v. State of Louisiana) c. Children: generally, a child is held only to the exercise of such degree of care and discretion as is reasonable to be expected from children of similar age, experience, and intelligence (more may be required for a child of superior intelligence) c.

i. HOWEVER, when the minor is engaged in an inherently dangerous activity typically reserved for adults (i. e. adult activity), they will be held to the same adult standard of care (see Robinson v. Lindsay) c. ii. Ex. Rule of 7: (7>14: presumed incapable, but not necessarily) (14+: presumed capable) d. Insanity: generally, an insane person is liable when dealing with a pre-existing insanity of a permanent nature (mental disability) d. i. Includes pedophilia (mental disease) d. ii.

Minority Rule: when one is suddenly subject to a type of insanity or mental illness absent a notice or forewarning is not held to the reasonable person standard (see Breunig v. Amer. Fam. Ins. Co. ) 2. The Professional (i. e. Malpractice): one who engages in a business, occupation, or profession must exercise the requisite degree of learning, skill, and ability of that calling with a reasonable and ordinary care [the knowledge, training and skill (or ability and competence) of an ordinary member of the profession in good standing] ? IF SPECIAL TRAINING, RAISE the standard of care. a.

Expert Witness Testimony: required for professional negligence. b. Attorney: An attorney who acts in good faith and in an honest belief that his advice and acts are well founded and in the best interest of his client is not answerable for a mere error of judgment or for a mistake in a point of law which has not been settled by the court of last resort. c. Physician/Surgeon: in the area of medical diagnosis, treatment, and the like, the duty of care is generally formulated as that degree of reasonable care and skill expected of members of the medical profession under the same or similar circumstances. c.

i. Expert Witness Testimony: required when the negligence is a matter beyond the findings of a layperson [Battle of the Experts] c. i. 1. Locality (Minority) Rule: the conduct of members of the medical profession is to be measured by the standard of conduct of other members of the medical profession in the same locality or the same community (typically, urban v. rural) ? substandard treatment c. i. 1. a. National Certification = National Standard c. i. 2. c. ii. Informed Consent: physician has a duty to full disclosure (inform) a patient of his options/alternatives and their attendant material risks.

(Duty to inform, causation, injury) c. ii. 1. Material Risk: a risk that would be likely to affect the patient’s decision. A reasonable person would attach significance to. c. ii. 2. Causation: requires that the (subjective) patient would have chosen no treatment, or a different course of treatment, had the alternatives and material risks of each been known to him. c. ii. 3. Injury: causes injury to P c. ii. 4. Privilege: Physician may have privilege if full disclosure would be detrimental to the patient’s best interest. c. iii.

Fiduciary Duty: physician has a duty to disclose personal interests unrelated to the patient’s health, whether research or economic, that may affect the physician’s professional judgment. 3. Aggravated Negligence: degrees of care, degrees of negligence, “willful, wanton, and reckless conduct” a. Automobile Statutes: the driver of an automobile is liable only for some form of aggravated misconduct to one who is riding as a guest in a car. RULES OF LAW: courts need to exercise caution in framing standards of behavior that amounts to rules of law when there is no background of experience out of which the standards have emerged.

In the default of the guide of customary conduct, what is suitable for the traveler caught in a situation where the ordinary safeguards fail him is for the jury. a. i. 1. Common Law a. i. 2. Statutory Law a. i. 3. And those Standards of Care VIOLATIONS OF STATUTE: where a statute or municipal ordinance imposes upon any person a specific duty for the protection or benefit of others, if he neglects to perform that duty he is liable to those for whose protection or benefit it was imposed for any injuries of the character which the statute or ordinance/regulation was designed to prevent, and which were proximately produced by such neglect.

Statute must FIT to the facts of the case and the circumstances. [Legislation articulates prohibitions on actions for reasonable persons to accept; look into legislative history before incorporating/ determining the fitness of the regulation before applying in civil cases] 1. Negligence Per Se: violation of a statute constitutes conclusive evidence of negligence Applicability of Statute: a. Class Harm Test/Threshold Questions: Violation results in an injury, whether P belongs to the class that the statute was intended to protect, and whether P’s injury is of a type that the statute was designed to prevent? b.

Applicability Absent Common Law Duty (Criminal Statutes)—should be considered in deciding whether to apply negligence per se. Courts use the statute to determine whether D breached his common law duty of care. Courts are reluctant to create a new duty. b. i. Example: at common law, there is generally no duty to protect another from the criminal acts of a third party or to come to the aid of another person in distress. 2. Effect of Statute: to omit, willfully or heedlessly, the safeguards prescribed by law is to fall short of the standard of diligence to which those who live in organized society are under a duty to conform.

Both P and D can argue that a statute establishes negligence and contributory negligence. a. Rebuttable Presumption of Negligence—offer an excuse to rebut the presumption that you were negligent (no excuse = negligent). Jury decides whether excuse is justified. b. Negligence Per Se—any violation of statute = negligence, do not care why violated. Judge decides whether excuse is justified. c. Evidence of Negligence—violation only evidence of negligence, which the jury may accept or reject as it sees fit. PROOF OF NEGLIGENCE: Evidentiary Standards c. i. 1.

Direct Evidence: eye witness testimony c. i. 2. Circumstantial Evidence: which is nothing more than one or more inferences that may be said to arise reasonably from a series of proven facts. c. i. 2. a. Example: no one saw a person walk through the snow, but there are footprints. c. i. 2. b. Problems that might arise when relying on circumstantial evidence… c. i. 2. b. i. Can you prove the case solely based on circumstantial evidence? c. i. 2. b. ii. How much circumstantial evidence is enough? c. i. 3. Res Ipsa Loquitur: Latin for “the thing speaks for itself.

” The doctrine simply recognizes that in rare instances, an injury may permit an inference of negligence if coupled with a sufficient showing of its immediate, precipitating cause. c. i. 3. a. Elements (4), P MUST PROVE ALL [SEE NOTE 3 on pg. 244] c. i. 3. a. i. Accident was of a nature that it would not have happened in the ordinary cause of events if D was using reasonable care, i. e. not negligent. c. i. 3. a. i. 1. See McDougald, “more likely than not”; expert witness testimony may afford sufficient basis for inference.

c. i. 3. a. ii. The object or instrumentality that causes the accident must have been under the exclusive control and management of D (or other sources of the negligence have been sufficiently eliminated) c. i. 3. a. ii. 1. A chair thrown from a hotel room is not under the exclusive control of the hotel, but under (partial) control of the guest. c. i. 3. a. ii. 1. a. Unlike the case where a warehouse/employer has control of its employees c. i. 3. a. ii. 2. Narrow Exception to Exclusive Control c. i. 3. a. ii. 2. a.

Physicians: where P receives unusual injuries while unconscious and in the course of medical treatment, all those defendants who had any control over his body or the instrumentalities that might have caused the injuries, may properly be called upon to meet the inference of negligence by giving an explanation of their conduct. c. i. 3. a. ii. 2. a. i. Either all defendants were negligent, or know who was c. i. 3. a. ii. 2. a. ii. Shifts the burden; D must prove non-negligence. c. i. 3. a. iii. The purported negligence is within a duty owed to the ? by the ? c. i. 3. b.

Procedural Possibilities When RIL Relied on by Court: (1) allow creation of inference of negligence (most), (2) as creating a rebuttable presumption of negligence (D presume negligent unless D rebuts presumption), (3) shift the burden to D of proving non-negligent conduct. [Quantum difference between 2 and 3] c. i. 3. b. i. Just because the res ipsa loquitur doctrine is applicable, it is up to the jury to choose the inference of D’s negligence in preferences to other permissible or reasonable inferences. CAUSATION (both cause in fact AND proximate cause must be met) CAUSATION IN FACT.

1. Sine Qua Non: But for D’s negligence the injury would not have been sustained. If injury would have happened anyway, there is no liability 2. Proof of Causation: c. i. 3. b. i. 1. a. Standard—Preponderance of the Evidence (50% + 1, “more likely than not”) c. i. 3. b. i. 1. a. i. Possibilities do not prove causation (probabilities do), though they are admissible c. i. 3. b. i. 1. a. ii. Suspicion, regardless of how particularized it may be, is NOT sufficient to sustain an action. Unsupported conclusory or speculative statements do not raise a genuine interest of material fact.

c. i. 3. b. i. 1. b. “Substantial Factor” Rule: if either one of 2 acts was sufficient to cause the injury, both actors are liable if each person’s conduct was a substantial factor. c. i. 3. b. i. 1. c. Chance of Survival: depends on the jurisdiction… c. i. 3. b. i. 1. c. i. Dismiss Case: More likely than not, P would have died anyway. c. i. 3. b. i. 1. c. ii. Case to Jury: Lost (reduction) chance of surviving as a consequence caused by negligence, did D reduce chance of surviving? 1. Hard to determine the damages (proportionate? ) c. i. 3. b. i. 1. d.

Daubert v. Merrell Dow Pharmaceuticals, Inc. Two-Prong Test: overruled the old Frye test (scientific evidence was admissible if it was based on a scientific technique generally accepted as reliable within the scientific community). c. i. 3. b. i. 1. d. i. First, a court must determine 1. Whether the experts’ testimony reflects “scientific knowledge” 2. Whether their findings are “derived by the scientific method” 3.

Whether their work product amounts to “good science” c. i. 3. b. i. 1. d. ii. Second, the expert testimony is “relevant to the task at hand” (i.e. , that it logically advances a material aspect of the proposing party’s case. c. i. 3. b. i. 1. d. iii. Factors for Determining Whether to Admit Expert Testimony 1. Whether the theory or technique employed by the expert is generally accepted in the scientific community. 2. Whether it’s been subjected to peer review and publication 3. Whethe