Chapter One: Torts generally: A Tort is a civil wrong, other than a breach of contract, for which the law

w provides a remedy. Insane are liable for their torts but not criminal actions Mistake is not a defense/excuse Liability: Fault basis of liability new way comes from Brown v. Kendall 1. Intent the actor desire to cause the consequences of his act or the actor believes that the consequences are substantially (restatement 8A) certain to result 2. Negligence unreasonably risky conduct (restatement 291) a. Oliver Wendell Holmes said that the fact that a person causes injury is insufficient to prove fault (i.e. shift blame) No fault basis of liability strict liability old way comes from Anonymous Theories

1.Baker article i. Blood money extracted from s pocket and rarely pursued in Tort unless the conduct is extremely egregious or the has deep pockets ii. Insurance money First party insurance protects s from liability. This is the money that atty.s go after. iii. New money money that is left over. Subrogation is the process by which the insurance companies recover from the guilty party 3. Way to think about Tort cases as atty. i. What is the s possible liability? ii. What is the possible remedy? iii. Is this remedy enforceable? 1. Determined by liability insurance 4. Tort system is fundamentally biased towards the Repeat Players (Haves) and against the One-Shotters (Have nots) Tort worldviews 1.Compensation Deterrence theory compensate the wronged and deter the wrongdoers from their actions 2.Enterprise Liability theory protect the interests of laissez-faire capitalism against its own accidents 3.Economic Deterrence theory use economics to analyze tort law should provide the maximum efficiency in the system. Maximum product safety for prudent investment 4.Social Justice theory Retributive justice. If A diminishes Bs status, A should make B whole. 5.Traditional View - Tort System is designed to stop people from taking the law into their own hands, compensate for harms, etc...

Real Olde England 15th Century Fault DOESNT matter Only defense is I DIDNT DO IT it didnt happen at all Focus was on COMPENSATION not action Forms of action:

o Writ of trespass Available only for DIRECT injury o Writ of trespass on the case INDIRECT injury Olde England 17th Century Fault begins to develop If no fault, best theory is trespass Defendants best theory of defense is UTTERLY WITHOUT FAULT 1850 Chart: Defendant NOT negligent/ Plaintiff Negligent Defendant wins because no fault Plaintiffs negligence does not matter Defendant Negligent/ Plaintiff Negligent Contributory negligence Both parties negligent Defendant wins because both are negligent Defendant NOT negligent/ Plaintiff Not Negligent Defendant wins because no fault Does not matter if plaintiff was negligent Defendant Negligent/Plaintiff NOT negligent Plaintiff wins because defendant is solely negligent Contributory negligence Plaintiffs negligence however slight is a complete bar to recovery Comparative negligence MAJORITY - reduces plaintiffs damages by percent of his fault. If Ps negligence is less than all of Ds negligence combined the P recovers all of his percent of neglgience Blasting: NY Strict liability if vibrations do damage WV NOT strict liability must show based on fault Chapter Two:
R.S.T. R.T.T. Prosser act with purpose of producing consequence OR

Desire to cause consequences of act with purpose of producing act consequence OR believes that consequences are substantially certain to result OR

knowing that consequences are believes that consequences are substantially certain to result substantially certain to occur

Intent Definition: Actor desires to cause consequences of his act or he believes the consequences are substantially certain to result from it Majority Intent (Desire/substantially certain) is intentional tort WV Transferred intent intentional tort Battery Batter requires bodily contact & intent

o Harmful Alteration of the physical integrity of the body o Offensive Offends a reasonable sense of personal dignity (Objective test) o Must have: 1. intent to cause harmful or offensive contact 2. actually cause harmful or offensive contact Majority Must be OFFENSIVE touching to constitute intentional tort Majority Spitting in someones face considered offensive battery Majority Based on a REASONABLE PERSONs belief as to if offended

Assault Majority/Minority/WV Must have Immenent Apprehension of battery Impending, threatening, looming Majority Obscene gestures and remarks not assault Majority Loaded/unloaded gun does not matter fear still warranted WV Same as majority and:
o o also look at mental anguish, insult considered 3d party can recover if member of vics immediate family and saw battery or assault

Intentional infliction of emotional distress:

Majority words never enough public utilities or common carriers are subject to strict liability for gross insults must cause a physical injury Minority Fighting words are enough WV (insult statute - fighting words) can recover for the mental aftereffects of a tort can recover for IIED where the effects are purely mental

Four factors: o Conduct must be intentional or reckless o Conduct must be outrageous and extreme o Must be a causal connection between act and emotional distress o Emotional distress must be severe Being only mildly upset not good enough WV Must tend to violence or breach of peace or be prohibited under an act Human Rights Act WV Code provides for cause of action for victims of discrimination in employment and public accommodations WV - Vituperative Epithet Discriminated against because of heritage/race. NOT ALLOWED. NO recovery for emotional distress in property damage

False Imprisonment: Majority/Minority Person must be aware of their confinement WV Shoplifters can be detained for 30 minutes

Confinement can occur by: physical force, threat of physical force, duress, and asserted legal authority

Trespass:
Majority land extends above and below (within reasonable limits) Minority same WV same can recover both punitive and treble (actual damage x3 for plant removal) damages Does not have to actually be any damage!! Does not have to actually be any damage!!

Nuisance 2 kinds: Requires proof of harm/damage requires SIGNIFICANT HARM 1. Public any nuisance subjecting population of whole in the area Significant interference with public health, safety, peace, comfort or convenience 2. Private Nontrespassory invasion of anothers interest in the private use and enjoyment of the land WV ANY physical entry into land through air, etc. is trespass Ex. ) firing gun over neighbors property WV Without permission and without notice carrying away of timber/cut down flora (even if along power line). Liable for: o Criminal proceedings o Common law trespass o Statutory trespass o Punitive damages o Statutory treble damages Cut down flora along easement with permission and notice Only theory would be violation of reasonableness Majority trespass to homeowner if you let yourself in anothers house and borrow something but return it

Trespass to Chattel: Kicking owners dog is battery to owner Trespass to Chattels - Elements: intentionally and harmfully 1. Dispossessing another of the chattel, or 2. Using or intermeddling with a chattel in the possession of another
Majority or impair the use of the chattel Minority same WV same same same must actually damage chattel same

recovery is limited to actual same damage

Conversion: Different from trespass because conversion involves dominion and control o Requires complete or very substantial deprivation o Substantial damage Factors to consider Extent duration of actors exercise of dominion Actors good faith Actors intent Harm done Inconvenience to real owner
Majority Minority WV same intentionally taking control of occurs when return is requested owner to the extent that it seriously and denied interferes with owners right to control remedy is amount of entire item occurs when return is requested and denied same same

same same

Chapter Three: Consent: Definition WILLINGNESS to be interfered with intentionally Every ADULT person of SOUND MIND has right to determine what should be done with his own body Majority - if RPP would believe words and conduct as consent, it is Majority Implied consent if: o life saving surgery o Normal violence that is part of the game Ex.) Football injuries Majority performing life saving surgery even though refused by patient based on religious grounds is battery No consent under misrepresentation, mistake, or duress Consent to crime does not bar recovery and is not valid o Ex) Underage girl consenting to sex does not bar tort action Parent cannot withhold emergency medical treatment for child Court must override before doctor can act. Childs wishes do not matter Self Defense and defense of 3rd party: WV o Can use deadly force

o No need to retreat o Defense of 3rd person must be correct or must reasonably believe: Circumstances such that 3rd person has privilege of seld-defense Intervention necessary for protection Must use force reasonably necessary o Cannot use spring loaded shotgun Majority o Must be correct for defense of 3rd person o Can use deadly force o No need to retreat

Defense of property: Majority o Deadly force CANNOT be used to defend property o Must use reasonable force o Cannot cause death or serious bodily harm WV o Can only use deadly force in home or other place of residence if: Reasonably believe intruder may kill or inflict serious bodily injury to occupant/others in residence Occupant reasonably believes intruder intends to commit a felony at the residence o Can use deadly force outside residence if attacked Recovery of property: WV o Cannot use deadly force to recover property o May use citizens arrest shoplifting statute reasonable detention/investigation o May use reasonable force to recover property Majority reasonable force may be used where property taken by force or fraud and there is fresh pursuit Public Necessity: Complete privilege New Rule: One is privileged to enter land of another if it is or reasonably believes there is to be imminent danger. NO duty to pay. o Ex.) Destroying one persons house to save town no duty to pay that one person. Old rule: Individual should bear losses instead of whole. Govt did not have to pay Private Necessity: Incomplete Privilege WV Must pay under unjust enrichment o Ex) Run out of gas and have to steal gas from farmers tractor or you will die Must pay

Majority No trespass because privilege. No intent so NO fault. No negligence o Have to pay under unjust enrichment

Authority of law: WV Citizens arrest Peace officer may arrest without warrant if crime committed IN HIS PRESENCE and a MISDEMEANOR. If you did not see, must get a warrant. Majority - cops have privilege to arrest w/out a warrant if felony & reasonable grounds Discipline: WV/Majority Corporal punishment of student by school employee PROHIBITED o Prohibited by statute o Includes beating, spanking, whipping, etc. o Parents/People acting as parents can punish Justification: - Majority -Common carriers of passengers are required to protect passengers/property o May use such force as reasonably necessary within the situation o Ex.) Kids vandalized bus on school trip so bus driver held them captive and drove them to police station. Not unlawful if reasonable to protect passengers/property CHAPTER 4 NEGLIGENCE
Carrol Towing Rest2d 282 Rest3d 3 A Person acts negligently if a person does not exercise reasonable care under all circumstances. WV - McMillen

When the burden of The doing of conduct precaution taken is that falls below the less than the standard established probability that the by law for the accident would occur protection others times the reasonably against an Primary factors to expected extent of the unreasonable risk of consider in ascertaining whether the persons injury harm. B<PxL= Negligence
B>=PL =Due Care

Doing of an act which a reasonably prudent person in the same or similar circumstances would not do, or the omission of an act which a reasonably prudent person in the conduct lacks reasonable same or similar care are the foreseeable circumstances would likelihood that the have done persons conduct will
result in harm, the foreseeable severity of any harm that may ensue, and the burden of precautions to eliminate or reduce the risk of harm

Negligence is: o Breach of duty of due care o Unreasonably risky conduct o Failure to act as reasonably prudent person o Carelessness

o Conduct which falls below standard established for protection of others against harm o Failure to act with reasonable care o Fault o Omission to do act that reasonably prudent person would do o Departure from standard of care o An element in a cause of action for negligence Negligence is NOT: o intent or recklessness o inevitable accident o cautious care o ordinary care o prudent care Restatement 3rd and Caroll Towing o Caroll Towing Hand Formula - B>PL Where B is the burden of additional precautions P is probability that accident will occur if precaution not taken L is the valued loss that occurs BPL = No negligence B<PL = Negligence o Restatement 3rd Person acts negligently if the person does not exercise reasonable care under the circumstances. Primary factors include P, B, L. Restatement Second o NEGLIGENCE - Conduct that falls below the standard established by law for the protection of others against unreasonable risk of harm. DOES NOT include conduct recklessly disregardful of an interest of others. o Rstmt: Where an act is one which a reasonable man would recognize as involving a risk of harm
to another, the risk is unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done

RU=Not negligent R>U= Negligent Factors in determining R, Risk foreseeable severity of the harm Factors in determining U, Utility Does the persons conduct lack reasonable care, and is there a foreseeable likelihood that it will result in harm o Ex.) Utility of leaving club in yard where child may find it is greater than risk of harm that child might do to another child with club WV/Majority Negligence is the doing of an act which a reasonably prudent person in the same or similar circumstances would not do, or the omission to do an act which a reasonably prudent person in the same or similar circumstances would have done

o Contribution sharing by joint tortfeaser in the liability is allowed. Duty exists when R is high and cost of prevention low. o NO contributory negligence in WV now comparative o Cost benefit analysis Cost of precaution < Benefits = negligence WV/Majority - Standard is that of a reasonably prudent person unless a child. NO CONCERN WITH STATE OF MIND o Standard relaxed for children and those with physical disability Conduct of that of a reasonable man under SAME disability NO lower standard for mental disability o Higher the danger, more care required

Majority

Rst. 2d

WV & minority

Rst. 3d if the actor is a child, standard is RPP of like age, intelligence and experience + Similar circumstances AND less than 5 yrs. old, incapable of neg.

RP child doing similar if the actor is a child, Rule of 7s: activities standard is RRP of like age, intelligence and 0-7 - incapable of experience + Similar negligence circumstances 7-14 - rebuttable presumption of incapability (and no contributory) 14+ RPP unless adult activity

adult activity exception NO exception for Adult adult activity exception activity

Super Six Conduct o 1. Duty Reasonably prudent person o 2. Breach Causes o 3. Factual cause was defendants negligence A cause of plaintiffs harm o 4. Proximate cause Harm o 5. Injury o 6. Remedy Rstmt 3rd/Majority/WV Compliance with custom of community is evidence that conduct is not negligent, but does not prevent finding of negligence. Opposite is also true. o Always admissible (probative) but never determinative o Customary care is NOT due care Majority Reasonably prudent person in sudden emergency Reduced standard of care o Must be in sudden emergency NOT of actors own conduct

WV Unavoidable accident Plaintiff faced with sudden emergency held to lower care. NOBODY IS AT FAULT. Jury should not be given unavoidable accident instruction. Instead both or no one at fault. o WV sudden emergency doctrine NOT allowed for ordinary traffic accidents Sudden emergency donctrine should be used in limited circumstances

The Professional: o WV Defendant must use most effective means to control coal dust. If state of the art equipment available, defendant must adopt it. o Majority Cannot insert subjective standard into objective standard o Professional negligence based on ordinary prudent person with knowledge, experience, and training found in profession o Nine points about malpractice reform: 1. Malpractice reform lopsided towards limiting lawsuits 2. Must present case to panel before case can go to court a. WV No panel 3. Collateral Source Rule Source of money payment to plaintiff. Rule allows money reduction for defendant of amount owed. Defendant can deduct amount already paid to plaintiff through insurance a. WV Has collateral source rule reductions made based upon payment from plaintiffs collateral sources insurance etc. 4. Periodic payment plans No longer receive lump sum a. WV- Lump sum given, no periodic payment plan 5. Damage Cap a. 2 types of damages: i. Economic wages and medical bills ii. Non economic pain and suffering b. WV damages capped at 250,000/500,000/COLA no matter how many plaintiffs for non-econ loss. i. 500,000 if wrongful death or permanent substantial physical deformity 6. Statute of limitations Two years from date of accident. Discovery rule extends to reasonable discovery or when should have discovered- 2 years from discovery a. WV 2 years from date of injury or discovery. Statute of repose limits 10 years, discovered or not. Thus 10 years and 1 day later you cannot sue. 7. Adenanum clause Dont publicize how much suit is for Not stating amount in complaint a. WV No specific dollar amount may be included in complaint 8. Attorneys fees restrict amount attorney may charge as contingency fee a. WV No limit on attorney fees, must be reasonable 9. Notice of intent to sue Plaintiffs attorney must write letter to defendant that he will be suing a. WV Plaintiffs attorney must file notice of claim including screening certificate of merit that expert has evaluated file and claim has mert

WV o Summary trial comes first to hopefully settle before real trial o 12 out of 12 jurors required for decision o Experts can deliver testimony if they meet elements under statute. Must spend 60% of time practicing what you preach. o OLD RULE negligent defendants found guilty unspecified as to percent negligent are jointly and severally liable. Plaintiff can collect damages anyway he pleases from anyone. o NEW RULE NO joint liability. Only liable for percent of fault. Redistribution allowed in some cases. o Professionals will be judged by negligence for professional services only and not by warranty, contract law, etc. o Malpractice insurance can be obtained from Physicians mutual insurance company in WV for physicians. NO state plan for attorneys must get it from private market. RULE Always try case with expert unless common knowledge case in which departure from standard is so negligent that even jury knows. (Common knowledge exception) o WV/Majority Expert testimony required by Malpractice Reform Act Majority o Doctrine of informed consent ANY treatment requires fully informed consent. Includes full disclosure of ALL material risks and options. o No consent Battery o Not fully informed consent Negligence o Majority - Judge by national standard not standard of community WV - Doctor must disclose: 1. Preferred treatment options 2. Risk of treatment 3. Other treatment options 4. Other treatment risks 5. What will happen if NOTHING done
Majority Same as a RP professional of same trade No locality rule being a novice is irrelevant Rst. 2d must exercise skill and knowledge normally possessed by members of that profession or trade unless he represents otherwise (higher or lower) no locality rule being a novice is irrelevant WV CSL<RPHCP=neg. Rst. 3d 12 if an actor has skill or knowledge that exceed those possessed by if Xs care, skill, and learning is less than a others, these skills or knowledge are reasonably prudent health care provider, X circumstances to be taken into account in is neg. determining whether the actor has behaved as a No locality rule reasonably careful person being a novice is irrelevant no locality rule

Aggravated negligence: 3 grades of negligence: 1. Gross negligence failure to use SLIGHT CARE 2. Ordinary negligence Failure to use DUE CARE 3. Slight negligence Failure to use HIGH CARE o Majority - Common carriers/Innkeepers held to highest degeree of care SLIGHTLY NEGLIGENT Ex. Taxi driver wreck WV Willful misconduct federal homeland security screw-up Intentional/Maliciously inflicted Emergency medical personnel Gross negligence Person operating AED (defibulator) Due Care Authorized emergency vehicles Gross Negligence or willful/wanton injury BAC testing at medical facility Deliberate, willful, wanton, reckless infliction of injury Landowner Due Care Whitewater rafting No care ATV responsibility Act Gross Misconduct Oil Discharge act Normal negligence liability of political subdivision Willful, wanton misconduct (gross negligence) liability of child protective care Must act in good faith Good Samaritan act Must act in good faith Liability of ski patrol DEALERS cannot sale, lease, transfer, trade any passenger car unless equipped with a seat belt o Child passenger safety device required for children under 8 unless child is 4 feet and 9 inches tall then seatbelt is ok Applies to everyone not just parent driver o o o o o o o o o o o o o o o WV CANNOT USE VIOLATION OF SEATBELT LAW TO ESTABLISH NEGLIGENCE OR COMPARATIVE NEGLIGENCE Not buckling seatbelt is secondary offense- Minority/WV Exceptions disabled and rural postal workers Individuals under 18 must buckle up in backseat COMPARATIVE NEGLIGENCE - failure of plaintiff to take precautions before an accident failure to buckle up before accident is NOT negligence FAILURE TO BUCKLE UP CANNOT BE INTRODUCED TO SHOW COMPARATIVE NEGLIGENCE OR NEGLIGENCE NO common law seatbelt defense wreck on private road doesnt allow introducing evidence that P not buckled up

 MITIGATION OF DAMAGES failure of plaintiff after accident to mitigate damages Failure to buckle up after accident is negligence o Not more than 5% of damages may be mitigated Seatbelt defense not used because not worth the 5% Majority/WV o No standard of care owed WHILE skiing o Due care if NOT skiing o Skiers o assume all risks of skiing o NO care during equestrian activities Rules of Law: o Pokora Case Cardozo 1. Court must exercise caution in forming new rules 2. More urgent when there is no background of experience out of which the standards have emerged 3. Natural flowerings of behavior in customary forms Cardozo approach: o Ad Hoc after the fact balancing jury decides case by case o Ambiguous unpredictable results o Democratic system of shared power between jury/judge Holmes approach: o Hard Rules of law Judge dominated o Predictable o Anti-plaintiff/compensation WV NO common law seatbelt defense because interferes with goal of loss spreading and recovery for victims WV Assured clear distance ahead rule NO LONGER APPLIES because court should use restraint in formulating rules.
Minority - PA RULE - BAD Stop Look Listen, get out and reconnoiter if necessary HOLMES LOVES BRIGHT LINE RULES Majority - POKORA - Good Cases determined on case by case basis NO BRIGHT LINE RULES WV - Miller
we should not undermine the longstanding goals of loss spreading and recovery for victims as they are the foundation for the modern tort system

NO COMMON LAW RULES - bad

Violation of Statute: o Court may adopt a standard of conduct if: o It protects a class of people o Protects particular invaded interest

o Protects interest against the kind of harm which has resulted o Protects interest against the hazard from which the harm results o Hurley Court Test: o Plaintiff must be member of class protected by statute o Legislative intent considered to determine if private cause of action o Is private cause of action consistent with intent o Would private cause of action intrude into an area best suited for fed gov
Majority Minority WV Any person injured by violation of any statute may recover: test 1. person is member of protected class, 2. consideration of legislative intent 3. is private cause of action consistent with underlying purpose of statue 4. does C/A intrude on area delegated to the federal govt. Rebuttable Presumption of Negligence 1. To protect a class of person same which includes the one who interest is invaded 2. To protect a particular interest which is invaded 3. To protect that interest against the kind of harm which has resulted 4.To protect that interest against the particular hazard from which the harm results. Negligence per se Rebuttable Presumption of Negligence

Majority o Unexcused violation of statute which is adopted by the court as defining conduct of a reasonable man is negligence per se. o If not adopted, may be relevant evidence bearing on issue of negligence WV o No negligence per se rule. Violation of statute creates rebuttable presumption of negligence. Still goes to jury unless defendant can rebut presumption with justifiable reason why defendant violated the statute o Defendant must prove that in violating the statute he did what might reasonably have been expected of a person of ordinary prudence, acting under similar circumstances who desired to comply with the law. o Statutory compliance is only evidence of due care and does not mean that D not negligent Proof of Negligence: Burden of proof Preponderance of the evidence 50.00001% - more likely than not Plaintiff bears burden of proving case o D has presumption of innocence Matter of law determined by judge matter of fact determined by jury Evidence is closely balanced and conflicting 2 types of evidence: o Direct o Circumstantial can win even if only circumstantial evidence and no direct

Syllogism 3 part analysis o Major premise Nasty floor bananas are negligence o D had nasty floor banana o D was negligent MAJORITY Notice requirement D must have notice that the item was there o Ex.) banana peel on floor of grocery store the fresher the peel, the less likely the D has notice so less likely case will succeed o Must show fault WV Judgment notwithstanding the verdict Verdict for P regardless of jury verdict Insurance coverage does NOT require proof of fault only requires being on premises so GO FOR INSURANCE

RES IPSA LOQUITUR: The thing speaks for itself Old version: o Event does not occur in absence of negligence issue for judge o D has exclusive control over cause of injury o P played no part in accident NEW VERSION adopted by WV o Fact finder may infer that D has been negligent when the accident causing the Ps physical harm is a type of accident that ordinarily happens as a result of negligence of a class of actors of which the D is a relevant member Infers negligence You cannot claim to know what happened and claim res ipsa loquitur Res ipsa loquitur allows you to admit you do not know what happened and still recover Helps P get to jury creates INFERENCE of negligence that jury may draw or not If P receives unusual injuries while unconscious and cannot prove them, burden shifts to D to prove not negligent o Disprove negligence Alternative liability WV Notice rule know or should have known MUST PROVE FAULT IN SLIP, TRIP, AND FALL CASES o Easier to go after insurance no fault

Chapter 5 Causation in fact

DO NOT USE LEGAL CAUSE OR SUBSTANTIAL FACTOR Majority/WV Ds NEGLIGENCE must be a cause of Ps injuries not THE cause Cause in facto But for cause (sin qua non) Ps injuries would not have occurred but for Ds negligence o Ds NEGLIGENCE a cause of Ps injuries o D can be negligent and that negligence may not be a cause of Ps injuries Negligence not a cause if injury would have happened anyway

Post hoc ergo propter hoc after this therefore because of this Attribute events based on sequence of events Possibility of a causal connection is NOT ENOUGH to be a cause of the injury o Reasonable degree of medical probability required Expert testimony o Question: Doctor do you have an opinion towards a degree of REASONABLE MEDICAL PROBABILITY as to whether or not the Ds negligent action was a cause of the Ps injury? Answer: The negligence was a cause WV must prove damages with reasonable certainty (reasonable medical probability) Lost chance theory Negligence results in reduced % of survival o Requires proof by more likely than not o Ps recovery limited to % of reduction WV Lost chance theory applies ONLY to medical malpractice o Does NOT apply to concurrent negligence cases
Consort of Action Conspiracy Enterprise Liability Market Share Liability liability apportioned according to market share WV Majority Minority (6 jurisdictions) small industry with all s joined to the in med. procedure when action = all are is unconscious liable No decision on alternative liability in WV no decision on alternative liability reject alternative liability

burden shifted to burden shifted to no burden entire enterprise shifting, just divided

Expert Testimony Federal rules of evidence: o Lay witnesses not allowed to express opinions unless within limited sphere of the common lay person o Expert witnesses can assist trier of fact to understand evidence or determine a fact in issue- fact in issue is causation WV Frye Test applies only to medical experts o Scientific evidence allowed if based on scientific technique GENERALLY ACCEPTED as reliable in the community Federal Court Daubert factors: 1. Generally accepted 2. Subject to peer review 3. Tested 4. Rate of error Majority Daubert test to ALL experts Relevant evidence any evidence with any tendency to make the existence of any fact that is of consequence to the determination of the action more/less probable than it would be without evidence Majority/WV- Concurrent Factual Cause - If multiple acts exist, each of which alone would have been a factual cause, each act is regarded as a factual cause of the harm

WV any D 30% or less liable is severally liable only and not jointly liable Can collect amount up to % liable but no more o Ex.) D1 30% negligent. D2 70% negligent. Award is 200,000 verdict. P can collect up to 60,000 from D1 (30% * 200,000) because 30% or less liable P can collect up to 200,000 for D2 because jointly/severally liable Majority Can collect according to % of drivers faults pure comparative contribution o Cannot collect based on joint/several liability Restatement: Damages are to be apportioned among 2 or more causes where: o There are distinct harms or o There is a reasonable basis for determining the contribution of each cause to a single harm o Damages for any other harm cannot be apportioned among 2 or more causes Market share liability manufacturers liability where exact manufacturer cannot be determined. Relaxes plaintiffs burden of proof. Join largest companies into suit and collect based on their percent of market share o NOT adopted in WV but may be adopted based on Spencer case Majority/WV Where 2 Ds are simultaneously negligent but only one defendant actually caused injury, P can recover against either defendant PRESUMPTION TURNS TO DEFENDANTS TO DISPROVE THAT THEY WERE THE CAUSE Alternative liability

Chapter Six Proximate or Legal Cause

Section 435 Restatement If actors conduct is a substantial factor in the harm, the fact that the actor neither foresaw nor should have foreseen extent of harm or manner in which it occurred does NOT prevent him from being liable. NO focus on foreseeability Actors conduct not legal cause of harm to another where AFTER the event and looking back from the harm to the actors negligent conduct, it appears to the court HIGHLY EXTRAORDINARY that it should have brought about the harm Focuses on HINDSIGHT AND HIGHLY EXTRAORDINARY If in hindsight it is NOT highly extraordinary then it is ORDINARY Dont forget to apply thin skull rule take victim as they come Section 29 Restatement 3rd An actors liability is limited to those physical harms that result from the risks that made the actors conduct tortuous Risk Rule or the risk standard the scope of an actors liability is for harms within the risk that made the actors conduct negligent in the first place If harm within risk, then within scope If outside scope then not within risk Dont forget to apply thin skull rule take victim as they come Risk defines liability Risk defines scope of liability Risk creates liability so risk limits liability Liability must be limited because cause and effect is limitless Ryan Case ANEONU Anticipated, natural, expected, ordinary, necessary, usual

Proportionality scope of liability should be proportionate to the act Direct (Proximate) vs. Remote (Not Proximate) Forseeability does not matter Wagon Mound 1&2 WM1 Not foreseeable used Polemis test WM2 Focus on foreseeability Palsgraf Cardozo Duty/Risk Rule Risk reasonably to be perceived defines the duty to be obeyed rejects proximate cause Palsgrafs injury does not fall within the risk perceived so no duty to her. Palsgraf Andrews Practical eclectic factors (10) but for fact cause, natural and continuous, substantial factor, direct, without too many intervening causes, not too attenuated, likely, usual, foreseen, and not too remote in time or space Basically applies ANEONU Believes it should be submitted to jury NOT a matter of law WV Long Case - Efficient cause Majority Proximate cause concerns Legal cause Limit of liability Extent of liability Scope of liability Ambit of liability Proximate cause In dumb jurisdiction, proximate cause concerns: Prox cause, legal cause, nearest cause, efficient cause, direct cause, necessary cause, usual cause, anticipated cause, natural cause, ordinary cause, and expected cause Reality Proximate cause issue concerns Scope of liability Extent of liability Limitation of liability Majority Prox cause necessary because: Law favors haves, repeat players, railroads, and cause in fact issue must be limited NOT law must limit negligence issue Majority proximate means: Next Nearest Close Majority Dumbest way to ask proximate cause is Was the Ds negligence a proximate cause of Ps injury Majority dumbest answer Ds negligence was or was not a proximate cause of Ps injury Majority dumb method to use in solving prox cause issue is: Remote/Direct ANEONU

Direct/indirect Foreseeable Hindsight Direct/foreseeable Majority - Bartelone Case Thin scull rule D must take P as he finds him D responsible for aggravating Ps mental condition from whip lash wreck Restatement 461 Negligent actor is liable to another although physical condition of the other which is neither known nor should be known to actor makes the injury greater than that which the actor as a reasonable man should have foreseen as a probable result of his conduct. P must prove cause in fact of each D where there are distinct acts with distinct harms Restatement: Distinct harms require apportionment Single harms do NOT apportion Defendant has burden of apportioning WV must prove contribution/apportionment Negligence in the air will not do MUST have proximate cause Simply because someone is negligent does not mean they are liable, must show proximate cause

Kinsman I Plaintiffs win proximate cause because direct cause is always proximate cause Indirect cause is only proximate cause when it foreseeably causes the injury Kinsman II Plaintiffs lost Injuries suffered were too remote, indirect, tenuous Yun Foreseeable, highly extraordinary
Intervening Causes: o Original actors negligence is no longer a proximate cause because the new proximate causation supersedes. Superseding cause defined: Section 440 Restatement Act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about Considerations important in determining whether an intervening force is a superseding cause: Section 442 Restatement Restatement 442A Intervening force risked by actors conduct Where the negligent conduct of the actor creates or increases the foreseeable risk of harm through the intervention of another force, and is a substantial factor in causing the harm, such intervention is not a superseding cause Restatement 3rd- Intervening Cause Section 34:

When a force of nature (Act of God) or an independent act is also a factual cause of physical harm, an actors liability is limited to those harms that result from the risks that made the actors conduct tortuous Superseding called cause Intervening called act

Restatement 3rd Section 32: Notwithstanding section 29 or 34, if an actors tortuous conduct imperils another or the property of another, the scope of the actors liability includes any physical harm to a person resulting from that persons efforts to aid or protect the imperiled person or property, so long as the harm arises from a risk that inheres in the effort to provide aid. Wagner Case- Cardozo Danger invites rescue Foreseeability and risk does not matter Wrongdoer liable to rescue as long as the actions of the rescuer are not wanton o If rescuer negligent, that does not become a superseding cause Wehner v. Weinstein WV Case Pizza delivery guy blocked other cars in drive way of frat house to go in and deliver pizza. Left keys in car and door unlocked. Frat member wanting to leave pushed car out of gear and let it go down the hill. Car hits 3 girls killing one and injuring two. 6 Defendants sued. Weinstein found 75% negligent due to comparative negligence. Pledge determined 5%. Pizza company owner was 0% at fault. Pizza driver 10% negligent imputed to employer under respondiat superior. Frat found 5%. Owner of frat house 5%. o On appeal liability of frat removed. Pizza delivery claims subsequent negligence of frat brothers were intervening negligence such that the negligence is a superseding cause. Negligence in air because keys left in car, however still need proximate cause WV RULE: o Intervening cause, in order to relieve a person charged with negligence in connection with an injury, must be a negligent act, or omission, which constitutes a new effective cause and operates independently of any other act, making it and only it the proximate cause of injury For an intervening act to become a superseding cause it must become a new efficient cause Unforeseeable intervening act is a superseding cause

Restatement 455 o If the actors negligent conduct so brings about the delirium or insanity of another as to make the actor liable for it, the actor is also liable for harm done by the other to himself while delirious or insane, if his delirium or insanity: Prevents him from realizing the nature of his act and the certainty or risk of harm involved therein, or Makes it impossible for him to resist an impulse cause by his insanity which deprives him of his capacity to govern his conduct in accordance with reason o If suicide is the act of a rational mind then it is an intentional act. The intent breaks the causal connection chain of responsibility between original negligence and the death. o If suicide is not an intentional act because of insanity, delirium, or irresistible impulse, then original defendant is liable because chain

WV KNOWN AS SUICIDE RULE

Majority/WV in Workers Compensation suicide: Chain of causation test: o Injury must have occurred on the job as compensable injury o That injury leads to mental condition o Mental illness without being labeled irresistible impulse leads to the suicide WV o Indirect cause is only proximate when it foreseeably causes the injury o Intervening acts that are not foreseeable break the chain of causation o Suicide Rule -Suicide that is willful, calculated, and deliberate act is considered intervening cause and not foreseeable and breaks the chain of causation o Restatement - Malpractice If D negligently injures P and doctor treating Ps injuries negligently malpractices upon P, D is liable for the original injury and the aggravation and the doctor liable for the aggravation. Malpractice is NOT a superseding cause. There is no uniform majority rule for intervening intentional misconduct Intervening cause must be a superseding act (NOT foreseeable) to break the chain of causation and dismiss liability and make the original negligence NOT a proximate cause o Intervening cause that is foreseeable does not dismiss liability Section 441: o An intervening force is one which actively operates in producing harm to another after the actors negligent act or omission has been committed o Whether active operation of an intervening force prevents the actors antecedent negligence from being a legal cause in bringing about harm to another is determined by rules stated in 442-453. WV o Criminal intervening acts are a superseding cause because NOT foreseeable o Negligence to leave keys in the car o Risk>Utility, B>PL o Defendants negligence in leaving keys in car is NOT a proximate cause because there is an unforeseeable intervening act which is superseding WV - Act of God Defense o Act of God Extraordinary and unusual force of nature NOT anticipated Superseding cause breaking chain of causation so no liability and original negligence not a proximate cause o If usual and ordinary then it is just a force of nature and NOT a superseding cause WV recognizes rescue rule - Allows injured rescuer to sue the party which caused the danger requiring the rescue in the first place even if rescuer is negligent.

Ex.) During a football game on October 28, 2008, at Huntington, WV, a University of Houston football player, Patrick Edwards, ran into a MU band cart that was left off the field but near the end zone after the band had performed at half-time. Player was severely injured and already has had three injuries. Can he sue? Whom? Would you take the case? Why? Briefly outline your answer.

Plaintiff CAN sue Marshall University only. Use Cadys super six to answer the question of negligence. Foreseeability is not to be used here to classify conduct as negligence. An individual would want to take this case even though Marshall is have and a repeat player. The case presents big reward possibilities.

Conduct o 1. Duty
Yes. Marshall and the officials had a duty of due care to make sure the playing surface of the field was reasonably safe. The State of WV is immune unless it has insurance in which case immunity is waived The officials and Marshall were negligent. B<PL or R>U.

o 2. Breach

Causes
o o Factual Cause The negligences of the defendants was a cause in fact of plaintiffs injuries because of the but for test Proximate Cause The negligences were a proximate cause of the plaintiffs injuries Not a superseding cause Injury Remedy Special damages wage loss General damages pain and suffering

Harm
o o

PUBLIC POLICY:
Scope or extent of liability is limited not by the trickery of foreseeability or direct causation or intervening/superseding but rather liability is limited by public policy concerns. We are NOT talking about proximate cause but rather DUTY Majority/WV Social host NOT liable for 3rd person injuries Minority MAY be liable for 3rd person injuries NJ Overruled by legislature WV Statute - Violation of statute to sell liquor to underage individuals Minority (Not WV) DRAM SHOP RULES: Commercial vendors cannot sell liquor to visibly intoxicated people Against statute to sell to underage Employer liable to employees Social host to social guest NJ - overruled Restatement 3rd A) An actor ordinarily has a duty to exercise reasonable care when the actors conduct creates a risk of physical harm

B) In exceptional cases, when an articulated countervailing principle or policy warrants denying or limiting liability in a particular class of cases, a court may decide that the defendant has no duty or that the ordinary duty of reasonable care requires modification o Withhold liability to categorical cases through principle (moral underpinnings) or policy (instrumentality concerns is tort law suitable for control or jusitifcation) Ex.) limited liability Social host liability for drunk driving guests Social host in New Jersey is held liable for the negligence of the drunk driving guest

Kelly v. Gwinnell NJ

Bailey v. Black WV Commercial vendors of liquor (seller) cannot sell liquor to person already drunk because it violates WV statute. Commercial vendor is liable to the person injured by drunk and the drunk Liquor liability case NO statute to private individuals Anderson v. Moulder WV Violation of statute to sell liquor to underage individuals. Seller liable to 3rd party injured by underage drinker Overbaugh v. McCutcheon WV Employer not liable for liquoring up person because employer is not commercial vendor of liquor Heaven v. Pender Duty Everyone engaged in affirmative conduct (doing something) owes a duty of ordinary care and skill to avoid danger Duty is based upon a foreseeability of risk The common law seeks to control activity but never compel it No duty to rescue or aid CORRECT: A duty arises whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances, he would cause danger of injury to the person or property of the other No Conduct, no duty Robertson v. LeMaster - WV Foreseeability of injury/harm through negligent conduct creates duty o WRONG Hamilton v. Accu-Tek/Beretta 2 cases NY Issue: Do hand gun manufacturers owe a duty of care in marketing and distribution of handguns? Judge Weinstein states law of NY, uses super six, then analyzes according to IRAC (CREAC) o Quotes Heaven v. Penders duty definition Public risk shifting policies in a modern economy used by BOTH COURTS in analyzing duty issue: o Reasonable expectations of how to order society o proliferation of claims Opening of the floodgates o likelihood of unlimited or insurer-like liability

o disproportionate risk and reparation allocation o public policies affecting the expansion or limitation of new channels of liability Weinstein says there is a DUTY but Court of Appeals of NY said NO DUTY o District Court DUTY Jury found for P and awarded damages based on Market share liability o Court of Appeals recognizing duty would subject gun manufacturers to limitless liability for the acts of another Proportionality (Ryan case) NO DUTY

Lemongello v. Will Company, Inc. WV Lawsuit against pawn shop which negligently sold firearms to buyer who used gun to commit crime Settlement in which pawn shop agreed to pay one million to two NJ police officers shot by criminal ONLY duty gun case in WV Evans v. Oliver WV Both parties claim that the other party ran the red light and thus caused a collision NEVER TAKE THIS KIND OF CASE Jury finds P more negligent than D 55% vs. 45%. WV has comparative negligence P cant recover anything because P was MORE negligent than D D could have recovered 55% o Rule is amount of recovery is reduced by own fault of 45% thus 100%-45% = 55% o Ex.) D suffered damages of 1 million dollars and counterclaimed for the 1 million. D was 45% negligent and P was 55% negligent. D can recover only 550,000 (total claimed (percent at fault times total claimed)) or (1,000,000 (45% x 1,000,000)) = 550,000. P claims jury failed to give remote causation instruction and as a result % at fault was higher for P than it would have been. On appeal, judge affirmed because jury was fully instructed on comparative negligence Comparative negligence makes it unnecessary for the court to discuss or instruct jury on remote causation o District Court Judge was unfamiliar with remote cause in WV RULES OF PROXIMATE CAUSATION WERE CREATED IN THE 19TH CENTURY AND DEVELOPED IN THE EARLY PART OF THE 20TH CENTURY ARTICULATED BY RESTATEMENT FIRST AND PERPETUATED IN RESTATEMENT 2ND. In this context of a tort regime where 1. There was no comparative negligence and no opportunity for jury to attribute fault to negligence and 2. There was no such thing as several liability where tortfeasors are liable to plaintiff equal to percentage of tortfeasors fault (each was liable for all of plaintiffs damages even if only modestly at fault). Superseding cause insulated tort feasor from liability where his negligence contribution was minor/modest. 3. There was no contribution among jointly and severally liable tort feasors. One party might have to pay it all and could not collect any contributing share from the other party because no such thing as contribution. Contribution evolved later in the 20th century. OLD Rules of proximate cause among tortfeasors was a protective device of a modestly negligent original tortfeasor. Used intervening/superseding Proximate cause NOW is being exercised improperly. Judge made decisions for what jury should be doing case by case. We need a new system: o 1. Dumbest way Ryan - ANEONU

o o

2. Risk rule better way Best way according to Cadys proposal eliminate proximate cause and scope of liability because juries cannot understand it and judges cant explain it Adopt proportionate comparative liability according to the jury lumping Lump it all together and assign a percentage of fault to each party based upon the amount of negligence and amount of causal connection thus a remote tortfeasor may be found to be 5% causally fault related to injury then he would pay 5% of damages, no more no less. Pure several liability and eliminate scope of liability. Thus allocate based on % of fault and individual is liable only for that percentage. NO MORE ALL OR NOTHING RULES!!! Eliminates superseding/intervening RTT suggests Cadys proposal

Nemo v. New River WV o D negligently ran over P employee and Ps boss corporation sued D for loss of services of P employee o Sued for NIEL negligently inflicted economic loss o Ds negligence not a proximate cause of Ps injury because of all dumbest rules Not foreseeable, no duty, etc. o Court SHOULD HAVE decided case based on DUTY Section 7 of the RTT Principle/policy NO duty of due care to a landowner to a trespasser No duty to second generation woman because of DES No duty of manufacturer to exercise due care and recall No duty for NEIL No duty to aid No duty to government public duty doctrine o Ex.) cannot sue city for failing to inspect building of negligent landlord Defendant is NOT liable if he NON-NEGLIGENTLY runs over P o Being insured doesnt matter still not liable o Insurance company is NOT liable either o Insurance company NOT liable even if D NEGLIGENTLY ran over P If Ds negligence not a cause or a proximate cause of Ps injury then D NOT LIABLE If D negligently kills herself and P in an accident, usually estate is liable for Ds negligent accident. SOMEONE IS DEFINITELY LIABLE If both D and P negligent but D more negligent then D is liable to P and P NOT liable to D Owner of car is NOT liable if driver negligently drives over P however DRIVER IS LIABLE Defendant is liable if he INTENTIONALLY drives over plaintiff o Even if he has no insurance If employee, acting within scope of employment, negligently injures P, the EMPLOYER is liable Kroger is not liable if P slips on Krogers CAREFULLY MAINTAINED FLOOR Majority/WV Drunk driver liable for negligently running over plaintiff o No proximate cause problem verdict for P Majority/WV Social host liquors up guest who negligently runs over plaintiff. Social host NOT liable

o Contrary to public policy to hold social host liable Social Host will win
Majority/WV Bartender liquors up patron who negligently drives over P. Patron liable o No proximate cause problem verdict for P o Already intoxicated before coming to bar does NOT matter Proximate cause still good Majority/WV - Bartender liquors up patron who negligently drives over P. Bartender Liable o FAVORABLE Public Policy o For Plaintiff Proximate cause, indirect but foreseeable o DOES NOT MATTER IF PATRON ALREADY DRUNK BEFORE COMING IN Proximate cause is still good Favorable public policy WV D negligently injures P and P sues D. If Ds trial strategy is to attack on the duty issue D should assert unforeseeable o If D asserts no duty and moves to dismiss trial court judge should rule UNFORESEEABLE No duty to act If bystander watches while D beats up P, bystander not liable. No duty to aid Bystander does not have to help half-dead P. WV Company operates railroad and negligently runs over P. Company moves to dismiss because no duty. Ruling Motion Denied Heaven v. Pender Rule WV Gun maker negligently markets and sells gun to hoodlum who shoots P. P sues gun maker. Gun maker cannot dismiss because one unreported circuit court settlement.
Ryan (Better) Polemis bad good
We determine Proportionate whether it is remote liability: Extent of liability should or proximate: equal basis for Analysis is: Anticipated Natural Expected = Ordinary Proportionality Necessary Usual =Foreseeability =foreseeability liability There is Proximate Cause b/c the damage was in fact directly traceable to the negligent act. If the cause is direct it is that which is test is was it within the scope foreseeable - yes of liability is that which is manner of foreseeable occurrence does not matter There is no P/C issue. Instead we look at duty. To find the scope of liability we look at the risk reasonably to be perceived defines the duty to be obeyed that means that negligence would entail liability for any and all consequences no matter how extraordinary that were within the original risk we want perfect symmetry between RISK and SCOPE THIS IS A GOOD WAY TO ANSWER THIS QUESTION =the risk rule P/C issue is was the s neg. a P/C of s injury. It cannot be said as a matter of law that the RR was not the P/C of s look at it is all a matter of expediency but there are 7 hints:

Ryan (BAD)

Wagon Mound #1

Wagon Palsgraf Mound #2 Cardozo

Palsgraf - Andrews ok

Is the imposition of proximate liability economically feasible?

1. 2. 3. 4. 5. 6. 7.

=Direct Cause

a but for cause and natural and continuous sequence substantial factor direct connection w/out few intervening causes is the effect of the cause on result not to attenuated is the cause likely in usual judgment of mankind to produce the result Is the result foreseeable? not too remote in time or space

Use all the hints

R.T.T. 29 best
An Actors liability is limited to those physical harms that result from the risk that made the actors conduct tortious in the first place

Yun Case WV bad bad

R.T.S 435(2)
If the injury was highly extraordinary when looking back on the negligence, than the neg. was not a P/C

Better way to ask

Cadys proportionality rule

Q: was the Was the s negligence a s P/C of s injury? negligence a P/C of s Dumb Answer injury?

Is the imposition of liability proportionate or disproportionate? Is the imposition of liability within the risk? Was s injury within the scope of liability resulting from s negligence

an efficient cause OR A: was the (June 05) the last negligent act without (The risk reasonably to s injury which the injury would be perceived defines highly extraordinary not have occurred the scope of liability) from a position of hindsight 1. ID the risks that made the conduct tortious(B<PL) 2. Was the harm for which recovery is sought a result any of those risks

Impose proportionate liability. If the jury can assign percentages of fault, then that percentage should be the damages that they pay. is 70% at fault, pays 70% of damages if jury decides that is 0% at fault, pays nothing. find the proportionate contribution of the s negligence to the s damages. (jury) then s pay the relevant contribution of the fault to the accident as determined by the jury

P/C
Majority Was the s negligence a P/C of s injury takes as he finds him Minority Was the s negligence a P/C of s injury takes as he finds him WV Was the s negligence a P/C of s injury takes as he finds him

Intervening Causes
Majority intervening acts of a 3d party breaks the causal connection between s negligence and s injury if they are not reasonably foreseeable Acts of God that are completely unforeseeable (i.e. not an act of nature) Rescue: is liable for injuries to a rescuer it is always completely foreseeable that Dr. will aggravate s injury Minority WV

Suicide is not prox. result unless result If Suicide is foreseeable then it is a P/C of irresistible impulse caused by s result of the negligence neg. same same

same

recovery for rescuers is allowed. person has a right to rescue a 3d party put in danger by s negligence same

same

Public Policy - withhold liability to a whole class of s for reasons of principle or policy (weighing test)
Majority Liqueur liability: no liability for social host for 3d party injury Minority WV

NJ: social host may be liable for same as majority negligence of intoxicated adult social guest for injuries to 3d party

Commercial Purveyors: no Dram Dram Shop Acts provides a statutory common law dram shop liability: Shop Act but at common law, liable basis for imposing liability if patrons for 3d party injuries resulting from were illegally served 1. 11-18-18 it shall be unlawful to the negligence of intoxicated patrons sell intoxicating beer to anyone who were illegally served under 21 2. 60-13-22 forbids the sale of intoxicating beer or liqueur to 1. less than 21 2. anyone who is a habitual drunkard 3. anyone already intoxicated 4. addicted to a controlled substance 5. mentally incompetent 3. 60-7-12 unlawful for a licensee having a license to operate a private club to give alcohol to 1. under 21

2. already drunk
employer not liable to employee for employer liable to employee for liqueuring them up liqueuring them up same as majority Minor can recover against commercial purveyor o

Gun Manufacturer Liability Issue: whether the handgun manufacturers had a duty to use due care in marketing their handguns For reasons of principle and Policy, yes in the Dist. Ct. for the E.D. of N.Y.

R.T.T. 7 Duty (a) An actor ordinarily has a duty to exercise reasonable care when the actors conduct creates a risk of physical harm (b) in exceptional cases, when an articulated countervailing principle or policy warrants denying or limiting liability in a particular class of cases, a court may decide that the has no duty or that the ordinary duty of reasonable care requires modification (lowering)

R.T.T. on Scope of Liability 29 Adopts Cardozos Risk Rule (duty as the basis for liability) as the rule for Scope of Liability - The scope of an actors liability is for harm that made the actors conduct tortious. positive statement of the risk rule 30 If the actors negligence does not increase the risk to the plaintiff, then the plaintiff is outside the scope of liability (outside of factual cause). 31 Pre-existing conditions (Bartolone thin skull plaintiff rule) - Unforeseen consequences are within the scope of liability. 32 Rescue rule - Exception to the normal risk rule. Original is liable to rescuer. 33 Rule for Intentional and Reckless Interveners - Is their intervention an intervening rule or superseding cause? Answer: Risk rule. 34 The advent of more refined tools for the proportionment of liability (comparative negligence) and several liability has undermined one important rationale of the all or nothing nature of saying is or is not liable when there is an intervening conduct or superseding cause. 35 Enhanced harm due to efforts to render medical or other aid - Original tortfeasor is liable because it is so common. 7 DUTY A rule of no liability because of special problems of principle or policy.

o o o o

Unforeseeable Consequences Intervening Causes Public Policy Shifting Responsibility