CHECKLIST modified
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ALWAYS LOOK FOR An intentional act, KWSC act will occur y Any untaken precaution? Reason to sue for negligence? y What steps of elements can knock out the claim? What are the sticky spots? y Play the accordion y Causation issues? LOOK FOR INTERVENING ACTS, NO BUT FOR, IF UNABLE TO TELL WHICH DID IT y Bring up NIED, loss of consortium for EVERY NEG CLAIM y Watch for animals, dangerous activity, non-natural uses y THINK OF EVERY POSSIBLE THAT COULD SUE bystanders? People on road? Family members? Others affected? y BATTERY 1) ACT: a) Volitional movement i) Sleepwalking? ii) Spasm/seizure/relfex? iii) Basically, acting out of conscious mind and will INTENT: a) Intent to contact, intent to harm/offend b) Subjective desire i) Acted w/ desire to cause harm, offense, violate auth decree? Vosburg c) Substantial belief/certainty i) has knowledge that act will cause offensive or harmful contact? Garret d) If both are there, discuss both of these! e) Does Eggshell skull apply? f) Transferred intent? i) 3rd person who gets hit?? Carney v. Thompson BATTERY ATTACK PLAN: Act-volitional movement Cause y Direct/Specific y Joint/Severally Liable y Concurrrent/Successive y Master/Servant relationship? Contact Harmful (subj mental state) or Offensive (obj, RP) Intent (subject desire or KWSC) y Eggshell skull? Person Without Privilege y Consent y Nonconsentual privs o SD, Defense of Property
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CAUSE: a) ACTUAL But for the conduct, the harm/offense would not have occurred i) caused physical harm (1) General causation can the act cause harm? (a) Expert testimony used (Frye , Daubert ) (2) Specific DID s act cause the harm? (a) Here, run into issues if no direct evidence. Use circum (Hoyt), stat prob (Smith, not this alone though) ii) 2 s, one cause, who did it? (1) Joint tortfeasors acting in concert of action, BOTH liable (2) Several/indivisible harm 2 people separately acting neg combine to cause harm both liable (3) Alternate Liability theory shifting burden to to prove NOT cause of harm (a) Summers all possible causes of injury joined, all possible s negligent/liable (b) Ybarra code of silence possibility? If yes, then not all s need to be negligent (c) Sindel is a product generically defective? NO way to tell which one is the cause of harm? Market share liability (i) Is this fair? What about using defective rate instead of market share? iii) 2 causes, indep of each other, would have caused the same harm (1) There is not ³but for´ cause, because another cause came along afterwards/same time and caused the harm (2) There is no time limit exactly value judgment (a) Kingston v. Chicago physical cause of 1st fire, other cause human agency, so liable. If other cause natural, not liable. (b) Exception Dillon v. Twin State if the other cause is natural, you are not liable. b) Vicarious liability issues? i) Is one of the s an employee? (1) Scope of employment, tortious act? ii) Indep contractor? (1) Employer neg in hiring/supervising/training? iii) Joint enterprise? Family purpose? CONTACT a) CONTACT w/ person i) Was contact w/ something closely attached to 's person? (1) Did GRAB SOMETHING FROM HIS HAND? Fisher b) Harmful touching i) Loss or detriment, physical impairment, pain. c) Offensive touching i) Offend RP sense of dignity? d) Contemporaneous knowledge of touching not required e) Did set in motion a force which brings about a harmful/offensive contact?
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CAN CLAIM A PRIVILEGE? a) Consent? i) Express? (1) Informed, capacity issues (fraud, duress, minor, children) ii) Implied? (1) Manifestation, silence/inaction, action RP believes consenting O¶Brien v. Steamship (2) Only to those risks inherent in activity consenting to (Hackbart--no consent to torts outside typical/legal context of activity) Continue«.. iii) Consent valid? 5) 1
Illegal act? Barton v. Bee Line Any reason to viciate consent? Fraud/duress/etc Medical consent? (a) Patient need to be fully informed of what consenting to, did have opportunity to get consent of before operation? (i) Consent only applicable to specifically what was entailed by consent (Bang) (b) Exception: lawful extension of operation w/o consent: 3 regimes (i) Any extension is battery (ii) Emergency action: 1. patient unable to decide, immediate decision necessary, no reason to think would refuse treatment, RP would consent (iii) Kennedy-->extent to remedy abnormal/diseased condition based on Dr sound prof judgment, location of original incision b) Self defense? i) RP standard--act same way in situation? (1) Imminence of harm AND (2) Necessity AND (3) Proportionality b/w amt of harm inflicted and amt of harm prevent ii) Duty to retreat (if possible) before using force, unless it¶s own home iii) Mistaken self-defense? Saunders v. Petrangelo (1) Were beliefs honest and reasonable under the circumstances? (a) Acted as a RP would have in same situation? Fears/Force reasonable? RP of subgroup? (b) 1. Accurate or irrational but excusable by gen pop; 2. Statistically deviant but rational (bring expert); 3. Typical for subgroup (pure excuse) c) NO TRANSFERRED INTENT IN SELF-DEFENSE DOCTRINE!!!! d) Defense of 3rd person? i) Intervenor can use force if reasonable believes its necessary, 3rd person prvd to use SD, must use reas force, measure by what 3rd person couldve used ii) Mistake? (1) Maj--intervenor privilege is derivative--if 3rd person couldn¶t have used force, intervenor didn¶t have privilege (2) Minority--intervenor's privilege is indep, reasonableness std e) Defense of Property? i) Reas amount of force can be used (1) Katko²can¶t use force calculated to cause serious bodily harm to protect mere property f) Necessity? i) Privilege to trespass (1) May impose on another¶s prop if it¶s necessary to save self. (2) Ploof--prop owner has duty NOT to interfere. If he does, you have right to use force to overcome interference (3) Vincent--must pay for damage you inflict on prop. FIRST INSTANCE OF SL. ii) Self defense trumps this NEGLIGENCE ATTACK PLAN: 1. Duty Judge a. If SL, use RIL, warranty, R402 i. non-natural ii. ultrahazardous iii. unnecessary 2. Breach Factfinder. Use BPL, RP, due care a. Safety §, Custom, RIL 3. Cause Factfinder a. Actual (cause in fact, ³but for´) AND b. Proximate i. But for Breach (substantive) AND ii. Foreseeability (flexible) A. Cardozo or Andrews 4. Harm NEGLIGENCE a. NIED, Loss of Cons or Purely Cons Econ Loss 5. Defenses 1) DUTY question for judge a. Contrib negligent/assumed risk a. Has a foreseeable risk been generated? b. custom as shield, necessity b. Special relationship? i. Psych patient? 1. w/ and potential 3rd party victim? and actor (had ability to control actor) Tarasoff ii. Land owners 1. Invitee owe general duty of care public invitee? Business visitor? a. Duty to inspect, discover risk, warn. Natural/artificial conditions 2. Licensee social guest? On land b/c of consent? a. Can simply warn, no duty to discover, artificial/natural, licensee K/HRTK of danger? 3. Trespasser no duty, refrain from wanton/willful actions, for artificial conditions a. If constant trespasser? Duty to warn of danger b. Children? Attractive nuisance doctrine i. K/SHK artificial condition attractive to children who wont discover b/c of youth R care to protect iii. Common carriers higher std, hire, extraordinary care. Bethel says don¶t need this, use RP iv. Motor Vehicle non-paying passenger? Lower std often, only gross negligence c. NO DUTY TO RESCUE i. Exceptions: 1. Statute? 2. Begin rescue? Lacey 3. Responsible for injury/instrument under your control and you know about injury? Tubbs 4. Cause reliance on your warning that it is safe? Erie 5. Fiduciary relationship duty to warn/prevent harm Tarasoff 2) BREACH a. RP std (except emergency situation doctrine) (1) (2) (3) 2
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Find what happened/breach, if facts show was unreasonable B<PL burden of fix is less than harm incurred by not implementing this fix Carroll Towing i. Is there a less dangerous alternative? ii. Weighing of interests, of the conduct vs. the harm saved, is it worth it? 1. Utility of risk (social value, effectiveness of conduct in promoting int, existence of LDA) 2. v. magnitude of risk (probability of accident, gravity of inj, # ppl afflicted) iii. Davis, Washington, Weirum Care and concern approach non-instrumental. Mcdonalds coffee. Was there a safety statute that the violated (UNEXCUSED VIOLATION)? i. Did it cause the VERY HARM the statute was designed to prevent? Martin v. Herzog ii. Did it fall w/in the foreseeable legis risk of why they enacted the statute? iii. Can either be: neg per se (Martin), evidence of breach, rebuttable presumption of neg iv. Licensing statute? Brown usually won¶t work v. Is following the statute impossible under the circumstances? Then can be excused. Bush v. Harvey vi. TEDLA EXCEPTION following the statute would cause the very harm the statute was intended to prevent/defeats the purpose of why the statute was enacted Is there a custom is following/breaking through his conduct? i. can use as sword to show breach, if not following Trimarco ii. can use as shield if is following 1. But this not dispositive TJ Hooper 2. Except for Dr and Lawyers (exception is Helling, B than PL) Is there a gap in the evidence of the breach? Is going to have trouble proving what did that was unreasonable? i. RES IPSA LOQUITAR fills in breach gap IF: 1. had exclusive control of instrument that caused accident (this stretched in Escola) 2. Accident normally not the type that occurs without an act of negligence ii. Is the evidence out of ¶s control? Bower v. HS 1. Are the facts not known in some way? iii. RIL is a value judgment (Shutt, City of Louisville) Actual cause, is physical cause of injury Proximate cause i. But for cause? 1. But for the breach, this harm would not have occurred! 2. Lyons would have died even if not speeding. Fort would have drowned despite negligence 3. Did the breach lower chance of survival? Cause a loss of some sort? Loss of chance Cahoon ii. Result w/in the risk? 1. injury foreseeable risk of negligence? 2. Is the injury one of the risks you increase by your negligent conduct? Berry v. Sugar Notch, Texas v. Pac RR, Lear Siegler 3. Nature and circumstances of harm foreseeable? Marshall, Texas peg leg 4. Is a foreseeable victim? Palsgraf a. Cardozo foreseeable p cutoff. b. Andrews rough sense of justice. Gut check test. c. Rescuer foreseeable unless prof rescuer 5. What if there is an intervening force? a. Is it reasonably foreseeable? Anaya v. Superior Ct b. Is the criminal act reasonably foreseeable? Kush NIED i.
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HARM a.
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Zone of danger 1. Waube is w/in the Z of D of being injured/harmed? ii. Bystander victim 1. Dillon sliding scale. Near scene, contemp observance, close relationship 2. Thing 3 required close relationship, contemp observance, harm more than anticipated of a RP iii. Direct victim 1. Is there a consensual relationship b/w and ? Duty owed to by ? a. even if not harmed/no contemp occurance, can recover. Get around Thing bystander you are foreseeable victim 2. Burgess, Marlene, Johnson b. Loss of Consortium i. Fam member bring claim for L of C, loss of personal relationship, companionship ii. Married? Hitaffer iii. No children, domestic partners (Borer, Feliciano) c. Was there only eco loss? i. Barber Lines w/o physical contact, cant recover ii. J¶Aire only eco loss, not barred, consider factors. 1. Extent of intended effect on , foreseeability of harm, certainty of inj, conn b/w conduct and inj, moral blame, social policy iii. People Express is in an identifable, foreseeable class of s? 1. if no, then use Andrews test, fairness? DEFENSE a. Contrib negligence (Meistrich) i. Did you reasonably undertake the risk? Then you can recover, even if you assumed risk ii. Last clear chance rule neg not excused by neg if has last chance to use due care b. Restatement Rejects Meistrich i. 496b who expressly Ks to accept risk cant recover, unless K contrary to public policy ii. 496c who knows risk caused by conduct & chooses to enter/remain cant recover, unless contrary to public policy
STRICT LIABILITY 3
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This just knocks out breach and duty, still need to prove cause Was there an animal involved? a. Wild? i. also an owner? ii. Did the injury occur as a result of the dang propensity of the class of animal or due to the dangerous characteristic K/HRTK about? 1. Exception is it a zoo keeper for public zoo? b. Domestic? i. SL for harm if K/HRTK about vicious tendencies of animal 1. Dog bite exceptions most states liable even if don¶t know about tendencies c. Livestock? SL for damage to prop Did it involve an abnormally dangerous activity? a. Did bring something onto his dangerous onto his land, use it in a non-natural way? i. Duty to prevent its escape Fletcher ii. Exception is the activity necessary and common? Turner b. Is the activity you engage in abnormally dangerous? Siegler i. Balancing of interests value to community, high degree of risk, gravity of harm, not matter of common usage, risk cant be elim w/o exercise of reas care, inapprop place where harm occurred ii. Is the harm that occurred caused by the very risk which makes activity abnormally dang? Foster
TORT POLICY: 1) Judicial subsidy a. SL v. negligence b. Weighing interests--we value industry in these cases over the intersts that are imperiled by the activity i. See this in SL, what is classified as an abnormally dang activity Evil Diety a. Anytime there is a cost/benefit q b. Paying for gift c. HOW MANY LIVES ARE WE WILLING TO SPEND d. Loss spreading e. Poor pay the higher cost f. Being wealthy provides you protection from being picked by the evil deity g. Worth sacrificing? h. Full participation? Capt torts Care and concern of others-fem approach to negligence Vincent--fairness aspect Instrumental aspect² Negligence v. strict liability--where losses lie a. Is there a difference--theoretically the same? i. But company might end up leaving the mkt 1. Certain industries might just not go forward, might not be worth it. a. Price would be too high, ppl not willing to pay to cover the loss (price ups) b. Market more, try to find better, cost effective alternatives to avoid not being in the mkt at all? c. SL encourages research into more cost effective fixes b. It¶s a matter of where the losses lie i. SL--everyone eats the losses ii. Neg--that person eats the loss, the one who was the reasonable/unforeseeable risk Judge v. Jury Standards v rules a. Making new law, going away from precedent b. Exceptions--see the writings on the wall c. When do we worry about slippery slope? Say its better to draw the arbitrary line?
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CAUSE: a) ACTUAL But for the conduct, the harm/offense would not have occurred i) caused physical harm (1) General causation can the act cause harm? (a) Expert testimony used (Frye , Daubert ) (2) Specific DID s act cause the harm? (a) Here, run into issues if no direct evidence. Use circum (Hoyt), stat prob (Smith, not this alone though) ii) 2 s, one cause, who did it? (1) Joint tortfeasors acting in concert of action, BOTH liable (2) Several/indivisible harm 2 people separately acting neg combine to cause harm both liable (3) Alternate Liability theory shifting burden to to prove NOT cause of harm (a) Summers all possible causes of injury joined, all possible s negligent/liable (b) Ybarra code of silence possibility? If yes, then not all s need to be negligent (c) Sindel is a product generically defective? NO way to tell which one is the cause of harm? Market share liability (i) Is this fair? What about using defective rate instead of market share? iii) 2 causes, indep of each other, would have caused the same harm (1) There is not ³but for´ cause, because another cause came along afterwards/same time and caused the harm (2) There is no time limit exactly value judgment (a) Kingston v. Chicago physical cause of 1st fire, other cause human agency, so liable. If other cause natural, not liable. (b) Exception Dillon v. Twin State if the other cause is natural, you are not liable. b) Vicarious liability issues? i) Is one of the s an employee? (1) Scope of employment, tortious act? ii) Indep contractor? (1) Employer neg in hiring/supervising/training? iii) Joint enterprise? Family purpose? CONTACT a) CONTACT w/ person i) Was contact w/ something closely attached to 's person? (1) Did GRAB SOMETHING FROM HIS HAND? Fisher b) Harmful touching i) Loss or detriment, physical impairment, pain. c) Offensive touching i) Offend RP sense of dignity? d) Contemporaneous knowledge of touching not required e) Did set in motion a force which brings about a harmful/offensive contact?
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CAN CLAIM A PRIVILEGE? a) Consent? i) Express? (1) Informed, capacity issues (fraud, duress, minor, children) ii) Implied? (1) Manifestation, silence/inaction, action RP believes consenting O¶Brien v. Steamship (2) Only to those risks inherent in activity consenting to (Hackbart--no consent to torts outside typical/legal context of activity) Continue«.. iii) Consent valid? 5) 1
Illegal act? Barton v. Bee Line Any reason to viciate consent? Fraud/duress/etc Medical consent? (a) Patient need to be fully informed of what consenting to, did have opportunity to get consent of before operation? (i) Consent only applicable to specifically what was entailed by consent (Bang) (b) Exception: lawful extension of operation w/o consent: 3 regimes (i) Any extension is battery (ii) Emergency action: 1. patient unable to decide, immediate decision necessary, no reason to think would refuse treatment, RP would consent (iii) Kennedy-->extent to remedy abnormal/diseased condition based on Dr sound prof judgment, location of original incision b) Self defense? i) RP standard--act same way in situation? (1) Imminence of harm AND (2) Necessity AND (3) Proportionality b/w amt of harm inflicted and amt of harm prevent ii) Duty to retreat (if possible) before using force, unless it¶s own home iii) Mistaken self-defense? Saunders v. Petrangelo (1) Were beliefs honest and reasonable under the circumstances? (a) Acted as a RP would have in same situation? Fears/Force reasonable? RP of subgroup? (b) 1. Accurate or irrational but excusable by gen pop; 2. Statistically deviant but rational (bring expert); 3. Typical for subgroup (pure excuse) c) NO TRANSFERRED INTENT IN SELF-DEFENSE DOCTRINE!!!! d) Defense of 3rd person? i) Intervenor can use force if reasonable believes its necessary, 3rd person prvd to use SD, must use reas force, measure by what 3rd person couldve used ii) Mistake? (1) Maj--intervenor privilege is derivative--if 3rd person couldn¶t have used force, intervenor didn¶t have privilege (2) Minority--intervenor's privilege is indep, reasonableness std e) Defense of Property? i) Reas amount of force can be used (1) Katko²can¶t use force calculated to cause serious bodily harm to protect mere property f) Necessity? i) Privilege to trespass (1) May impose on another¶s prop if it¶s necessary to save self. (2) Ploof--prop owner has duty NOT to interfere. If he does, you have right to use force to overcome interference (3) Vincent--must pay for damage you inflict on prop. FIRST INSTANCE OF SL. ii) Self defense trumps this NEGLIGENCE ATTACK PLAN: 1. Duty Judge a. If SL, use RIL, warranty, R402 i. non-natural ii. ultrahazardous iii. unnecessary 2. Breach Factfinder. Use BPL, RP, due care a. Safety §, Custom, RIL 3. Cause Factfinder a. Actual (cause in fact, ³but for´) AND b. Proximate i. But for Breach (substantive) AND ii. Foreseeability (flexible) A. Cardozo or Andrews 4. Harm NEGLIGENCE a. NIED, Loss of Cons or Purely Cons Econ Loss 5. Defenses 1) DUTY question for judge a. Contrib negligent/assumed risk a. Has a foreseeable risk been generated? b. custom as shield, necessity b. Special relationship? i. Psych patient? 1. w/ and potential 3rd party victim? and actor (had ability to control actor) Tarasoff ii. Land owners 1. Invitee owe general duty of care public invitee? Business visitor? a. Duty to inspect, discover risk, warn. Natural/artificial conditions 2. Licensee social guest? On land b/c of consent? a. Can simply warn, no duty to discover, artificial/natural, licensee K/HRTK of danger? 3. Trespasser no duty, refrain from wanton/willful actions, for artificial conditions a. If constant trespasser? Duty to warn of danger b. Children? Attractive nuisance doctrine i. K/SHK artificial condition attractive to children who wont discover b/c of youth R care to protect iii. Common carriers higher std, hire, extraordinary care. Bethel says don¶t need this, use RP iv. Motor Vehicle non-paying passenger? Lower std often, only gross negligence c. NO DUTY TO RESCUE i. Exceptions: 1. Statute? 2. Begin rescue? Lacey 3. Responsible for injury/instrument under your control and you know about injury? Tubbs 4. Cause reliance on your warning that it is safe? Erie 5. Fiduciary relationship duty to warn/prevent harm Tarasoff 2) BREACH a. RP std (except emergency situation doctrine) (1) (2) (3) 2
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Find what happened/breach, if facts show was unreasonable B<PL burden of fix is less than harm incurred by not implementing this fix Carroll Towing i. Is there a less dangerous alternative? ii. Weighing of interests, of the conduct vs. the harm saved, is it worth it? 1. Utility of risk (social value, effectiveness of conduct in promoting int, existence of LDA) 2. v. magnitude of risk (probability of accident, gravity of inj, # ppl afflicted) iii. Davis, Washington, Weirum Care and concern approach non-instrumental. Mcdonalds coffee. Was there a safety statute that the violated (UNEXCUSED VIOLATION)? i. Did it cause the VERY HARM the statute was designed to prevent? Martin v. Herzog ii. Did it fall w/in the foreseeable legis risk of why they enacted the statute? iii. Can either be: neg per se (Martin), evidence of breach, rebuttable presumption of neg iv. Licensing statute? Brown usually won¶t work v. Is following the statute impossible under the circumstances? Then can be excused. Bush v. Harvey vi. TEDLA EXCEPTION following the statute would cause the very harm the statute was intended to prevent/defeats the purpose of why the statute was enacted Is there a custom is following/breaking through his conduct? i. can use as sword to show breach, if not following Trimarco ii. can use as shield if is following 1. But this not dispositive TJ Hooper 2. Except for Dr and Lawyers (exception is Helling, B than PL) Is there a gap in the evidence of the breach? Is going to have trouble proving what did that was unreasonable? i. RES IPSA LOQUITAR fills in breach gap IF: 1. had exclusive control of instrument that caused accident (this stretched in Escola) 2. Accident normally not the type that occurs without an act of negligence ii. Is the evidence out of ¶s control? Bower v. HS 1. Are the facts not known in some way? iii. RIL is a value judgment (Shutt, City of Louisville) Actual cause, is physical cause of injury Proximate cause i. But for cause? 1. But for the breach, this harm would not have occurred! 2. Lyons would have died even if not speeding. Fort would have drowned despite negligence 3. Did the breach lower chance of survival? Cause a loss of some sort? Loss of chance Cahoon ii. Result w/in the risk? 1. injury foreseeable risk of negligence? 2. Is the injury one of the risks you increase by your negligent conduct? Berry v. Sugar Notch, Texas v. Pac RR, Lear Siegler 3. Nature and circumstances of harm foreseeable? Marshall, Texas peg leg 4. Is a foreseeable victim? Palsgraf a. Cardozo foreseeable p cutoff. b. Andrews rough sense of justice. Gut check test. c. Rescuer foreseeable unless prof rescuer 5. What if there is an intervening force? a. Is it reasonably foreseeable? Anaya v. Superior Ct b. Is the criminal act reasonably foreseeable? Kush NIED i.
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Zone of danger 1. Waube is w/in the Z of D of being injured/harmed? ii. Bystander victim 1. Dillon sliding scale. Near scene, contemp observance, close relationship 2. Thing 3 required close relationship, contemp observance, harm more than anticipated of a RP iii. Direct victim 1. Is there a consensual relationship b/w and ? Duty owed to by ? a. even if not harmed/no contemp occurance, can recover. Get around Thing bystander you are foreseeable victim 2. Burgess, Marlene, Johnson b. Loss of Consortium i. Fam member bring claim for L of C, loss of personal relationship, companionship ii. Married? Hitaffer iii. No children, domestic partners (Borer, Feliciano) c. Was there only eco loss? i. Barber Lines w/o physical contact, cant recover ii. J¶Aire only eco loss, not barred, consider factors. 1. Extent of intended effect on , foreseeability of harm, certainty of inj, conn b/w conduct and inj, moral blame, social policy iii. People Express is in an identifable, foreseeable class of s? 1. if no, then use Andrews test, fairness? DEFENSE a. Contrib negligence (Meistrich) i. Did you reasonably undertake the risk? Then you can recover, even if you assumed risk ii. Last clear chance rule neg not excused by neg if has last chance to use due care b. Restatement Rejects Meistrich i. 496b who expressly Ks to accept risk cant recover, unless K contrary to public policy ii. 496c who knows risk caused by conduct & chooses to enter/remain cant recover, unless contrary to public policy
STRICT LIABILITY 3
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This just knocks out breach and duty, still need to prove cause Was there an animal involved? a. Wild? i. also an owner? ii. Did the injury occur as a result of the dang propensity of the class of animal or due to the dangerous characteristic K/HRTK about? 1. Exception is it a zoo keeper for public zoo? b. Domestic? i. SL for harm if K/HRTK about vicious tendencies of animal 1. Dog bite exceptions most states liable even if don¶t know about tendencies c. Livestock? SL for damage to prop Did it involve an abnormally dangerous activity? a. Did bring something onto his dangerous onto his land, use it in a non-natural way? i. Duty to prevent its escape Fletcher ii. Exception is the activity necessary and common? Turner b. Is the activity you engage in abnormally dangerous? Siegler i. Balancing of interests value to community, high degree of risk, gravity of harm, not matter of common usage, risk cant be elim w/o exercise of reas care, inapprop place where harm occurred ii. Is the harm that occurred caused by the very risk which makes activity abnormally dang? Foster
TORT POLICY: 1) Judicial subsidy a. SL v. negligence b. Weighing interests--we value industry in these cases over the intersts that are imperiled by the activity i. See this in SL, what is classified as an abnormally dang activity Evil Diety a. Anytime there is a cost/benefit q b. Paying for gift c. HOW MANY LIVES ARE WE WILLING TO SPEND d. Loss spreading e. Poor pay the higher cost f. Being wealthy provides you protection from being picked by the evil deity g. Worth sacrificing? h. Full participation? Capt torts Care and concern of others-fem approach to negligence Vincent--fairness aspect Instrumental aspect² Negligence v. strict liability--where losses lie a. Is there a difference--theoretically the same? i. But company might end up leaving the mkt 1. Certain industries might just not go forward, might not be worth it. a. Price would be too high, ppl not willing to pay to cover the loss (price ups) b. Market more, try to find better, cost effective alternatives to avoid not being in the mkt at all? c. SL encourages research into more cost effective fixes b. It¶s a matter of where the losses lie i. SL--everyone eats the losses ii. Neg--that person eats the loss, the one who was the reasonable/unforeseeable risk Judge v. Jury Standards v rules a. Making new law, going away from precedent b. Exceptions--see the writings on the wall c. When do we worry about slippery slope? Say its better to draw the arbitrary line?
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