When Defs confuct falls short of that level that is required by the applicatilbe standard of care (i.e. by the community) owed to the Pl, she breaches her duty;

Whehter duty has been breached it is a question of fact for the fact finder (i.e. jury or judge).

In a bench trial, the judge willl be finder of fact.

In jury trial, it will bye jury trial.

This element is heard and determined by Jury 99.9% of time (not frequently resolved in SJ).

1) (first hurdle) actual cause (casation in fact)- thisi s what ACTUALLY happened

2) (second hurdle) Proximiate Cause (Legal Causation) this is where most neg cases falled down.

So to prove breach, the pl must show both of these factors

Pl may show breach through direct or circumstantial evidence.

Evidence can be shown outiside of facts to show that breach of duty- such as through custom or usage the duty was breached.

So i.e. if the custom is for invidid to necessarily bump into one another on the metro, that does not mean that someone can plow into you

If the defendant violated a statute, does this act as proof of breach?

What is this called?

You can show breach of duty if the defendant has violated a statute that establishes that duty and this is proof of breach.

this is called neglience Per se

the thing speaks for itsel- the fact  that particular injury occurred may itself establish the breach of the duty owed

Res ipsa requires

a. inference of negligence- this inference is the type of injury that would not normally have occurred unless someone was negligent.

b. Negligence attributable to defendant- you must be able to connect the defendnant to the negligent act b/c that instrument was in soul control of the defendant. The  was in last and sole control of the instrument that caused the injury

C. And the plaintiff was free of any neligenece and the injury was so unsual that then doctrine of res ipsa is available to them.

What kind of situation do you have to have to use res ipsa loquitor?

It is an unusual situation that the facts so strongly indicate that the injury was caused by the defendants breach  and that it is inferrable that the duty was breach.

So this means if you have this, you don’t have to prove causation (where most neg cases are lost). So basically you can go past the causation and go right to damages. B/c of this the courts are a little hesitate to apply res ipsa loquitor

So if a lawn mower on a high display is not displayed correctly and falls and hits you then the injury is so unusual that it could only have been caused by negligent.

Res Ipsa is a “but for” – but for the  defendant’s negligence this would never had happened.

1) actual cause

2) proximate cause

Actual cause- what is it?

   actual cause (causation in fact)- this is what ACTUALLY happened. Before def can be considered liable we have to show that their actions actually caused the injury

In order to establish that the pl’s injury was caused in fact that caused by the def we have to present evidence that either but for the def’s act of failure to act the injury would not have occurred.

OR we can use the substantial factor test (in cases where there are joint causes of injury)- so when there is more than one cause of injury, which of the causes was more substantial to the plaintiff where anyone of the causes could have been sufficient to cause injury if the defendant  were a substantial factor, then we can hold that def liable.

What is the substantial factor test?

What kinds of situations can it be used in?

In cases where there are joint causes of injury)- so when there is more than one cause of injury, which of the causes was more substantial to the plaintiff where anyone of the causes could have been sufficient to cause injury if the defendant  were a substantial factor, then we can hold that def liable.

So. .i.e. you are skiing and there are  teens come flying down hill on snow board and you’re trying to get down hill and one comes across front and one comes across back and you panic and fall and break your leg. There are two causes that behind and front of you- so you can use the substantial factor test to determine which one of the defendants caused the injury

When using the substantial factor test, can you have two different theories?

Who will apply these theories to the facts usings the substantial factor test?

In a complaint you can have more than one theory of how your injury occurred and we can identify def 1 as substantially causing the injury and then in the next count alternatively plead that the second snowboarded caused the injury. Then jury will then have to decide and apply the substantial factor test

When you use the substantial factor test and put forth two different theories, to whom does the burden of proof shift?

What does the plaintiff have to show?

Who resolves this issue?

This is where the burden of proof actually shifts to the defendants when there is more than one def and there is uncertainty. As plaintiff all we have to show is that one of them caused it and then the defendants can fight out who caused it. So strategically we want to create a break between defendants and then we can say that the jury must decide.

Most neg cases fall down on the second hurdle of the cause element:

Proximate Cause (Legal Causation) 

So in addtion to demonstrating cause in fact the defendant's cause must be the proximately caused.

Is every injury that is actually caused also legally caused?

What is the kind of limitation that is used?

Not all injuries actually caused may be proximately caused. This is therefore a limitation of liability and it deals with the liability or non-liability for unforeseeable or unusual consequences of one’s act.

Generally  def is liable for all harmful results that were in the normal incident of and within the increase caused by the def’s act or his failure to act- This test is based on FORESEEABILLITY.

Proximate Cause (legal causation) working definition.

1)Proof of an injury caused by the defendant

2) In a natural, unbroken, and continuous sequence.

3) Uninterrupted by any intervening causes

4) Produced plaintiff’s injuries

5) Without which the result would not have occurred.

What happens with proxmiate cause and an intervening factor?

How does this relate to foreseeability?

So if you start a motion and then an intervening force interrupts the action and changes it so that it hurts something else, then original actor is no longer liable if it was not foreseeable that the action would cause damage.

So we are looking for the foreseeable harm that the def’s actions could have caused. So if it unforeseeable then the def will not be held liable

Proximate cause (legal causation) – we must draw a line betwn the def’s act and pl’s injuries as long as there is no break or interference with the def’s act, and then the defendant will be held liable.

So proximate cause requires close connection btwn def’s action and pl’s injuries

So the pl must show defendant is responsible for injuries w/o interference.

Under proximate cause, what is the defendant held liable for?

What test is used to determine this?

General rule: def is liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts.

Test: foreseeability

What are two different kinds of direct causes (with respect to an injury)

1) Forseeable harmful results

2)    Unforeseeable harmful results

Intervening forces- dependent intervening forces are almost always foreseeable.  – such as subsequent medical attention so the original tortfeasor is usu. Liable for the aggravating forces of the malpractice of the pl’s treating physician

Are rescures viewed as foreseeable intervening forces?

Who is held liable for their negligence?

What does this mean for the transferability of liability

Generally, rescuers are viewed as foreseeable intervening forces and the original tortafesor will be liable for their negligence. The def will also be held liable for the neg efforts on the part of persons who try to protect the life or property of themselves or a third party endangered by the def’s actions.

So therefore there are certain actions and liability that can be transferred back to the defendant (i.e. injury to the rescuer) this is so that the person who caused all this harm takes responsibility for this harm, that they are held liable for their actions whereas the good Samaritan tying to rescue is not

Part of a prima facie elements for neg. you have to show facts that there clearly indicate that there was a legal duty, that there was a breach of the duty, that the def actually cased the injury and was legally responsible and have to plead facts to support damages. If you have no damages, you don’t have a case. Have to show that there was actual harm or injury to the plaintiff.

Have to show that there was actual harm or injury to the plaintiff.

Negligence MUST show actual harm.

Without the actual harm- there is no negligence

Damages in neg sets it apart from any other area of the law n that we can ask for past, present, and future damages whereas in contracts we are limited to asking for the court to put us back into the position we would have been in but for the K.

This includes:

1) a fair and adequate compensation for medical expenses,

2) money that was taken out of the plaintiffs pocket for med expense,

3) lost earnings, pain and suffering/emotional distress (anxiety, sleeplessness, loss of appetite.)

4) In addition, we can ask for monetary damages related to any increase in pl’s healthcare premium that occurred directly as a result of the injury,

5) can ask for impaired future earnings capacity, beyond loss wages but include 401k contributions from company.

6) If person can no longer perform their job, we can ask for the difference in their salary. 

Who do we ask to make decisions regarding damages?

What kinds of experts are used to make these determination?

In negligence, do you get damages for what you actually lost?

Are these losses mitigated?

Example?

In neg. your actual damages are made of what you actually lost. Changing to a less stressful job unless medically required, then the damages stop there. So therefore, the mitigation damages will never stop whereas in K’s they stop after a certain period of time.

Are damages presumed in Negligence cases?

Damages are not presumed in neg cause, you actually have to prove them out.

There are no nominal damages allowed in neg cases so an award of $1 will not work.

Can you have damages for personal injury?

What about damage to property?

There are different injuries for damages such as personal injury, property damage in neg.

The Def’s intent to cause harm is entirely irrelevant.

How are damages for to property determined in negligence torts?

Example?

The measure of damages as far of property damages are concerned is the reasonable cost of repair or if the property has been or is nearly completely destroyed, then its fair market value at the time of the neg. act.

So if car is totaled, then it will have the property value of the fair market value of the time of accident.

Punitive damages are allowed so the plaintiff can also recover punitive damages if def’s conduct was wanton, willful, reckless, or malicious.

Unless provided by statutes, typically atty’s fees and interests form the date of the damage in a personal injury case are not allowed.

Again, pl has the duty to reasonable mitigate and to preserve and safeguard property and seek appropriate care and continued care of the personal injury.