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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25% OF FINAL GRADE FOR COURSE
25% MULTIPLE CHOICE
TIME: PROBABLY 3 HOURS.
ESSAY FIRST, THEN MULTIPLE CHOICE
THE MARKET SHARE THEORY
THE PRACTICAL PROBLEMS
THE “LOST CHANCE” DOCTRINE
1. REASON FOR PROXIMATE CAUSE:
HYPO: THE NEGLIGENT SURGEON
HYPO: MRS. OLEARY’S COW
2. PROXIMATE CAUSE IS A POLICY QUESTION
“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.”
4. WHEN PROXIMATE CAUSE ISSUES ARISE:
(1) BIZARRE SITUATIONS
(2) UNFORESEEABLE OR UNLIKELY HARM
(3) THE “D1-D2 SCENARIO”
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?
PAGE 238 NOTE 3:
THE ALLEGED NEGLIGENT ACT
RISKS OF HARM—
OUTCOME: BODILY HARM
WHY NO RECOVERY?
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.
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.
ANDREWS DISSENT: THE QUESTION
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?
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
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.
APPLYING THE RISK RULE
LIMITS OF THE RESCUE DOCTRINE
COMPARE: VIOLATION OF STATUTE TO RISK RULE
APPLYING THE RULE
CHARACTERIZING THE “MECHANISM” OR MANNER OF OCCURRENCE
COMPARE: DOUGHTY (248)
CAN YOU RECONCILE THE CASES?