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MID-YEAR EXAM. 25% OF FINAL GRADE FOR COURSE 75% ESSAY 25% MULTIPLE CHOICE TIME: PROBABLY 3 HOURS. ESSAY FIRST, THEN MULTIPLE CHOICE. MID-YEAR EXAM (CONT.). TEST: WEDNESDAY 10/20 REVIEW: MERRIFIELD HALL OFFICE HOURS: MONDAY DEC. 18: 4 TO 8. TUESDAY DEC. 19: 4 TO 7

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MID-YEAR EXAM

25% OF FINAL GRADE FOR COURSE

75% ESSAY

25% MULTIPLE CHOICE

TIME: PROBABLY 3 HOURS.

ESSAY FIRST, THEN MULTIPLE CHOICE


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MID-YEAR EXAM (CONT.)

TEST: WEDNESDAY 10/20

REVIEW: MERRIFIELD HALL

OFFICE HOURS:

MONDAY DEC. 18: 4 TO 8.

TUESDAY DEC. 19: 4 TO 7

(213) 736-1098 [email protected]


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REVIEW

THE MARKET SHARE THEORY

THE THEORY

THE PRACTICAL PROBLEMS

THE “LOST CHANCE” DOCTRINE

THE THEORY

POSSIBLE RAMIFICATIONS

ALTERNATIVES


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THE FOURTH ELEMENT: INTRO TO PROXIMATE CAUSE

1. REASON FOR PROXIMATE CAUSE:

HYPO: THE NEGLIGENT SURGEON

HYPO: MRS. OLEARY’S COW

2. PROXIMATE CAUSE IS A POLICY QUESTION


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INTRO TO PROXIMATE CAUSE (CONT.)

“PROXIMATE CAUSE DETERMINATIONS INVOLVE CASE-SPECIFIC INQUIRIES INTO WHETHER THE D SHOULD BE HELD LEGALLY RESPONSIBLE TO THE P. EVEN WHEN THE D WAS NEGLIGENT AND IN FACT CAUSED THE HARM, COURTS MAY REFUSE TO IMPOSE LIABILITY FOR REASONS OF POLICY OR JUSTICE.”


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INTRO TO PROXIMATE CAUSE (CONT.)

3. TERMINOLOGY

4. WHEN PROXIMATE CAUSE ISSUES ARISE:

(1) BIZARRE SITUATIONS

(2) UNFORESEEABLE OR UNLIKELY HARM

(3) THE “D1-D2 SCENARIO”


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END OF INTRO TO PROXIMATE CAUSE

TWO QUESTIONS:

  • WHAT IF P FAILS TO GUARD AGAINST A HARM THAT CANNOT BE FORESEEN?

  • WHAT IF D FAILS TO GUARD AGAINST RISK THAT SHOULD BE FORESEEN, BUT HARM OCCURS IN UNANTICIPATED WAY?


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THE RISK RULE

MEDCALF (235)

THE ALLEGED NEGLIGENCE

TEST FOR PROXIMATE CAUSE: THE RISK RULE

APPLYING THE RULE: WHAT WERE THE RISKS THAT MADE D NEGLIGENT?

ABRAMS (237) APPLYING THE RISK RULE

DID COURT HAVE THE CORRECT RISK?


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PRACTICING THE RISK RULE

PAGE 238 NOTE 3:

  • THE WAGON MOUND

  • THE BLOOD TRANSFUSION

  • THE FIRE ENGINE

  • THE OFF-DUTY POLICEPERSON


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PALSGRAF

THE ALLEGED NEGLIGENT ACT

RISKS OF HARM—

PROPERTY DAMAGE

BODILY HARM

OUTCOME: BODILY HARM

WHY NO RECOVERY?


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MORE PALSGRAF

WHAT DOES PALSGRAF DO TO THE RISK RULE? THE “ZONE OF DANGER”

QUOTE #1: PAGE 240

The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension.


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PALSGRAF III

QUOTE #1 PAGE 239:

The conduct of the D’s guard, if a wrong in relation to the holder of package, was not a wrong in relation to the plaintiff, standing so far away. Relatively to her, it was not negligence at all. Nothing in the situation gave notice that the falling package had in it the potency of peril to persons thus removed.


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STILL PALSGRAFING

ANDREWS DISSENT: THE QUESTION

QUOTE 241#1:

Is it [negligence] a relative concept—the breach of some duty owing to a particular person or to particular persons? Or where there is an act which unreasonably threatens the safety of others, is the doer liable for all its proximate consequences, even where they result in injury to one who generally would be though tto be outside the radius of danger?


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PALSGRAF FOREVER

COMPARE: ANDREWS DISSENT

NEGLIGENCE TO THE “PUBLIC AT LARGE” QUOTE 241#2:

The act itself is wrongful. It is a wrong not only to those who happen to be within the radius of danger but to all who might have been there—a wrong to the public at large…

BUT: THERE ARE LIMITS


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POST-PALSGRAF POINTS

P. 245 NOTE 4: FORESEEING NO HARM

P. 245 NOTE 5: CARDOZO LOCUTION

P. 245 NOTE 9: WHAT COURTS HAVE DONE

SITUATION: R/R IS NEGLIGENT TOWARDS A BUT ENDS UP HURTING B.

SOUND FAMILIAR?


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THE RESCUE DOCTRINE

WAGNER (226)

APPLYING THE RISK RULE

CARDOZO’S PRINCIPLE

LIMITS OF THE RESCUE DOCTRINE

  • INSTINCTIVE RESCUE NOT NEEDED

  • UNBROKEN CONTINUITY

  • RESCUER’S CONTRIBUTORY NEG.

    COMPARE: VIOLATION OF STATUTE TO RISK RULE


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RISK RULE: ASSESSING THE SCOPE OF THE RISK

HUGHES (247)

APPLYING THE RULE

CHARACTERIZING THE “MECHANISM” OR MANNER OF OCCURRENCE

COMPARE: DOUGHTY (248)

CAN YOU RECONCILE THE CASES?


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