In order for Plaintiff to recover in negligence s/he must plead and prove duty, breach, actual causation, proximate causation and damages.

A. DUTY

1. General Duty:

Defendant has a duty to act as a reasonable person would in like or similar circumstances to avoid causing unreasonable risk of harm to others.

2. Special Duty Issues:

a. AGE, MENTAL AND PHYSICAL DISABILITIES

Children -- Are held to standard of care of a reasonable child of like age, intelligence and experience.

Adults with Mental Disabilities -- Are held to the same standard of care as non-disabled.

Adults with Physical Disabilities -- Are held to standard of care of reasonable blind, deaf or differently abled person in like or similar circumstances.

b. PROFESSIONALS

Doctors
(i) Specialists -- Are held to a national standard of care and must conduct themselves as a reasonable specialist would nationally.
(ii) Generalists -- Are held to standard of care of reasonable physician in same or similar locality.

Other Professionals
Must possess the minimum, common skill of members in good standing in the profession. Professionals must act as a reasonable expert would in like or similar circumstances.

Example: Architects, lawyers, accountants, engineers.

Problem with celebrities.

Test: Publications which are so intimate as to outrage the average person's notions of decency and which disclose facts which did not occur in public are not privileged.

Matters of Public Record. Absolute Constitutional privilege -- Cox.
c. VIOLATION OF CRIMINAL / CIVIL STATUTE OR "EXPRESS RULES"

For criminal statute, civil statute or "express rule of employer" to establish a civil standard of care you must establish that:

(i) Plaintiff was in the class of persons the statute or rule was designed to protect, and;
(ii) The injury was the type the statute or rule was designed to protect against, and;
(iii) Defendant violated the statute and Plaintiff's injury was caused by violation of the statute.

Jurisdictions vary in how they treat violation of a criminal statute in setting the civil standard of care. Some treat it as:

(a) Negligence Per Se -- Violation of statute amounts to negligence per se. Defendant may not argue conduct was reasonable.
(b) Rebuttable Presumption of Negligence -- Violation of statute raises inference of negligence but Defendant can rebut with evidence of reasonable behavior.
(c) Mere evidence of negligence.

d. GUESTS AND COMMON CARRIERS

Common Carriers --

Are held to a higher standard of care to prevent risk of harm to others.
Automobile Guests -- The standard of care will depend on the jurisdiction and whether the guest is paying or gratuitous.

(i) Common Law -- Driver owed full duty of care in operation of vehicle.
(ii) Paying Passenger -- Driver owes full duty of care.
(iii) Gratuitous Passenger -- Driver held liable only if grossly negligent.

e. OWNERS AND OCCUPIERS OF LAND

Liability rests on the status of the person coming into the land:

Adult Trespasser -- No duty is owed by land occupier to make premises safe.

Modernly: Roland v Christian -- Full duty is owed even to trespassers.

Known Adult Trespasser -- Land occupier had duty to warn of dangerous conditions on the land.

Child Trespassers -- "Attractive Nuisance Theory." Land occupier is liable to children if:
(1) Possessor knows or has reason to know that children are likely to trespass.
(2) Land occupier knows or has reason to know condition is dangerous to children.
(3) The risk to the child outweighs the utility of maintaining the condition and the burden of eliminating the danger.
(4) The child is too young to appreciate and understand the risk.

Licensees -- People who come onto the land for their own benefit (Social guests, Charity Workers, Police). The duty is to warn the licensee of a known dangerous condition on the land.

Note: owner/occupier has no duty to inspect or repair known defects.

Invitees -- People who come onto the land to confer some benefit on the occupier e.g.( paying customer). Duty is to inspect, warn and make safe dangerous conditions on the land.

People outside the Land -- Land Occupier is required to correct conditions which are unreasonably dangerous to those outside the land.

f. OMISSIONS TO ACT

ISSUE: Will Defendant's failure to act result in liability being imposed on Defendant?

RULE:
As a general rule, Defendant's failure to act will not result in liability being imposed on Defendant for injury caused thereby. However, liability will be imposed if there was an affirmative duty to act and Defendant failed to act.

Bar Exam Hint: Whenever a fact pattern indicates that the culpable conduct may be that of an omission to act, give the general rule of "no duty" then examine the facts for an exception.

Exceptions: Affirmative Duty to Act

1. Duty to Aid Others:
Common Law: Defendant is never under a duty to go to the aid of Plaintiff where the Plaintiff's predicament was in no way Defendant's fault (However, if Defendant is at fault, Defendant must aid).

Modernly: Some statutes make it a criminal offense for drivers of autos to fail to aid any person involved in an accident even though Defendant was not involved in any way.

Good Samaritan Rule: One who, though under no legal duty to do so, aids a person who is hurt or in peril, must exercise due care not to worsen the victim's situation.

2. Duty to Control Third Persons:

Bailment Cases:
If the owner of chattels permits a third person to use his chattel, the bailor will be liable for failure to exercise due care to prevent intentional or negligent acts of bailee if committed in his presence, or if he knows or has reason to know that such bailee is likely to commit such acts.

Public Premises Cases:
Those who hold premises open to public must use due care to protect persons coming onto the premises from theft of property, attack, etc. from other persons on the premises. (This includes restaurants, innkeepers, common carriers).

Duty to Control Children Cases:
Parent will be liable for acts of child if parents know or should have known of the child's dangerous propensities and had an opportunity to exercise control over the child. Otherwise, parents are generally not vicariously responsible for acts of child committed in their presence or otherwise.

Special Relationships:
Defendant may be under a duty to act where there is a special relationship such as school-pupil, hospital-patient, jail keeper- prisoner.

B. TO WHOM THE DUTY IS OWED

Bar Exam Hint: Discuss this issue only when the injured Plaintiff is arguably outside the zone of danger created by Defendant.

Palsgraf
(a) Cardozo -- A duty is owed to foreseeable Plaintiffs in D's physical zone of danger.
(b) Andrews -- One owes a duty to the whole world to behave in a manner so as to not create unreasonable risk of harm.

NOTE: This entire analysis is not a proximate cause analysis. Do not confuse this with proximate causation!

C. BREACH OF DUTY

1. Breach of duty is basically a factual discussion. You simply take the standard of care you have established in duty and apply it to the facts to determine if Defendant breached his duty to Plaintiff.

(Bar Exam Hint: Always discuss what a reasonable person would have done in the same circumstances.

2. Where the facts are silent: Often in a question the facts are silent as to exactly how the accident occurred or what the Defendant did. This usually requires discussion of Res Ipsa Loquitur.

(A) Res Ipsa Loquitur -- To apply this doctrine you must establish:
(a) The accident would not have occurred in the absence of someone's negligence.
(b) The event was caused by an instrumentality in the exclusive control of Defendant.
(c) Plaintiff did not contribute to her own injuries.

D. ACTUAL CAUSATION

1. But-for Test -- Where the facts only involve one defendant, state: "Defendant is the actual cause of Plaintiff's injuries because but for _____ (Defendant's act), the accident would not have occurred."

2. Substantial Factor Test -- Where several causes/defendants concur to bring about an injury -- and any one alone might have been sufficient to bring about the injury, state: "Each (act or defendant) was a substantial factor in causing Plaintiff's injuries. Either of act/Defendant's operating alone would have been sufficient to produce the results."

E. PROXIMATE CAUSATION (Only do full analysis below when proximate cause is a MAJOR issue)

ISSUE: Did anything intervene between Defendant's negligent act and Plaintiff's injuries such that Defendant will be relieved of liability?

RULE: Proximate cause is a policy consideration that in certain instances will limit Defendant's liability.

Sub-Issue: Was causation direct or indirect?
Did anything intervene between Defendant's act and Plaintiff's injuries?

DIRECT CAUSATION - MINOR ISSUE:

Sub-Issue: Direct Causation -- Where causation is direct, proximate cause is ALWAYS A MINOR ISSUE.

State on The Bar: "Causation is direct here, since there were no intervening acts between P's injury and D's Act. Further, it is foreseeable when D did ___________someone would be injured."
(State the above and then move on to the next issue

INDIRECT CAUSATION- MAJOR ISSUE

Sub-Issue: Indirect Causation -- (something intervened between Defendant's negligent act and Plaintiff's injuries), you must then discuss whether the intervening force was dependent (define) or independent (define). Then discuss if the intervening act was foreseeable or unforseeable. If the intervening act was unforseeable, then the chain of causation is broken (MAJOR ISSUE).

First Ask is Causation Direct or Indirect?

F. DAMAGES

Plaintiff is entitled to recover all compensatory damages, including general damages such as pain and suffering, and special damages, which must be specifically pleaded and proved. Punitive damages are NOT recoverable for negligence.

G. DEFENSES

Bar Hint: You must always raise these defenses, even if briefly in a sentence or two.

1. Contributory Negligence -- Plaintiff has a duty to act as a reasonable person would in like or similar circumstances to prevent an unreasonable risk of harm to himself.

2. Contributory Negligence Per Se -- If PLAINTIFF violates a statute or express rule of employer (see Duty Section-negligence) then same standard applies. Watch out for this situation. Often the facts are given which show that the PLAINTIFF violated a statute or express rule of employer.

Two Prong Test if P violates a STATUTE OR EXPRESS RULE OF EMPLOYER

a. Class of Persons -- Is plaintiff within the class of persons the statute or rule was designed to protect?
b. Type of Injury -- Is plaintiff's injury the type the statute was designed to protect against?

3. Comparative Negligence -- Some jurisdictions will assign a percentage of fault attributable to P's negligence and reduce P's damage award by that percent.

4. Assumption of Risk -- The test is whether Plaintiff knew of the risk and voluntarily assumed it.

a. Rescue Attempts -- Exception
Where Defendant voluntarily attempts a rescue of one in peril, the court will not find the rescuer either contributorily negligent or to have assumed the risk. Public policy encourages rescue attempts. Particularly where the Plaintiff is forced to make an emergency decision concerning saving the life of a fellow human being. Technically, the Plaintiff did not "assume the risk" in such a situation but only reacted to the emergency before him.

A. NEGLIGENCE -- Products Liability

Remember "ordinary negligence" focuses on the defendant, while products liability focuses on the defective product.

1. PROPER PLAINTIFF (Briefly state why P is a proper plaintiff in one sentence.)

ISSUE: The first issue in any products liability analysis is who is the proper plaintiff.

RULE: The Plaintiff can be anyone within the foreseeable use of the product -- that is, all persons who are endangered by the defective product.

State on the Bar: Here, Johnny is a member of the household and is therefore a foreseeable user of the product. Johnny is a proper P.

2. PROPER DEFENDANT (Briefly state why D is a proper defendant in one sentence)

Manufacturers, Product Designers, Wholesalers, Retailers. Note: The standard of care for Manufacturers and Designers is different that the standard of care for Retailers (see below).

State on the Bar: Here Acme is the manufacturer of the product and is therefore a proper D.

3. DUTY

a. Manufacturers, Designers

Rule: Standard of care for the manufacturer or designer is that they must act as a reasonable manufacturer or designer would act in the same or similar circumstances in designing and manufacturing the product.

Manufacturer and Designer may also have a duty to inspect, discover and correct defects, which a reasonable inspection would reveal. This also includes a duty to warn if the product is unavoidably unsafe.

b. Retailers, Wholesalers

Rule: Retailer has no duty to inspect unless s/he knows or has had reason to know that the product is likely to be dangerous.

Minority Rule: Retailer has a duty to inspect and discover defects that a reasonable inspection would show.

4. TO WHOM IS DUTY OWED?

Is a duty owed to this particular Plaintiff? (This is Andrews'/Cardozo Analysis)

5. BREACH OF DUTY

a. PLAINTIFF MUST SHOW THAT BREACH OF DEFENDANT'S DUTY RESULTED IN A DEFECTIVE PRODUCT.

Rule: There are three types of breach. They are:

(i) DEFECT OF MANUFACTURE (error in production line)
(ii) DEFECT IN DESIGN (inadequate testing and safety checks)
(iii) DEFECT IN WARNING (lack of adequate warning)

Test: The central question is how would a reasonable manufacturer or designer with the same skill, knowledge and experience act in like or similar circumstances.

b. Proving Breach of Duty

Use the Facts: Discuss what a reasonable manufacturer/designer would have done in like or similar circumstances.

RES IPSA LOQUITUR -- Sometimes the facts are silent as to how the breach occurred. In these situations apply res ipsa if all of the following requirements are met:
(i) Injury would not have occurred in the absence of someone's negligence.
(ii) Instrumentality was defectively made while under the exclusive control of Defendant.
(iii) Plaintiff did not contribute to her own harm.

6. ACTUAL CAUSATION

Use the "But-for-test" or the substantial factor test.

7. PROXIMATE CAUSATION

Same discussion as for ordinary negligence.

8. DAMAGES

Plaintiff may recover for pain and suffering. Economic damages alone are insufficient. (Damages resulting from product's failure to perform as well as expected are not recoverable.)

9. DEFENSES

Contributory Negligence -- same discussion as for ordinary negligence.

Assumption of Risk -- same discussion as for ordinary negligence.

Misuse of Product -- Determine whether Plaintiff properly used product for intended purpose. If not, this is an extremely valuable defense. Not a defense if misuse foreseeable.

B. STRICT PRODUCTS LIABILITY

This theory does not focus on fault. Liability attaches where persons involved have exercised all possible care. Under Strict Liability the focus is on the product and not on the conduct of the defendant. (Discussion of theory is optional on exam). Plaintiff may recover from any commercial supplier (manufacturer, retailer, wholesaler, lessor) who places an article on the market which is in a defective condition unreasonably dangerous to users, consumers, bystanders. (Strict liability does not apply to suppliers of services).

l. PROPER PLAINTIFF (Discuss briefly in one sentence)

Rule: All persons who are endangered by the defective product.

2. PROPER DEFENDANT (Discuss briefly in one sentence)

Rule: All persons engaged in the commercial distribution of products are liable.

3. IS THE PRODUCT DEFECTIVE? (MAJOR ISSUE)

BAR HINT: You must discuss all of the following three tests to get full points on bar).

MAJOR ISSUE: What is a defective product -- Separately headnote A, B, C.
TESTS:

A. Consumer Expectation Approach -- RS 402 (a)

1. Product must be defective -- Product is defective when product is unreasonably dangerous in its normal intended use.

The tests are:

(a) Product may be dangerous beyond the expectation of the ordinary consumer and;

(b) Manufacturer must have been able to foresee the dangers of the product.

B. Feasible Alternative Test -- Cost-Benefit Analysis

The court will balance what it would cost to market the product as it is against what it would have cost to market the product free of danger. If a safer product would require unreasonably high costs, the product is not defective. If a safer product could be produced at a reasonable cost, the product is defective because there was a "reasonable alternative" and the Defendant failed to choose it.

C. California Test --Barker v. Lull Engineering Co.
California Combined Approach Test: California and at least one other state consider a product defective if the product is unreasonably dangerous beyond the expectation of the ordinary consumer (i.e. Consumer Expectation Approach) AND plaintiff proves that the defect proximately caused her injury. The burden of proving that the utility outweighed the danger shifts to the defendant.

1. There was a defect in the product (Consumer Expectation Approach) and;
2. This defect was the proximate cause of Plaintiff's injury.
(Foreseeability not an issue).

4. ACTUAL CAUSE

a. The defect which injured P was in existence at the time it left the defendant’s control. (You may need to show that distributors and suppliers did not mistreat or alter the product.)

b. D’s acts must have been at least a substantial factor in bringing about P’s injuries.

5. PROXIMATE CAUSATION

Look at wrongfulness of intermediate handler’s conduct to determine whether such conduct will be superseding. (Criminal or intentional tortious conduct will relieve D of liability. (Rare to find break in chain of causation).

6. DEFENSES

(a) Misuse of product-product may be safe if used as intended-may involve serious dangers if used in other ways. Note: Suppliers must anticipate reasonably foreseeable uses.
(b) Scientifically unknown risks-Problems with the product can't be known until product is marketed.
(c) Allergies- if allergic group is significant, manufacturer must warn if they know there is a danger of allergic reaction. (Note: unique allergic reactions not recoverable for plaintiff).
(d) Assumption of the Risk-knew of risk and voluntarily assumed it.

7. DAMAGES

(a) Under Strict Liability there is no recovery for economic losses.
(b) There is recovery for pain and suffering.

C. EXPRESS WARRANTY

DEFINITION
Express Warranty requires an affirmation of fact made by the seller to the buyer relating to the goods which is the basis of the bargain.

1. Affirmation of fact must be misrepresentation of material fact concerning character or quality of the product.
2. Representation must be made to the public by label or advertising.
3. Justifiable reliance on representation must influence the transaction.

D. IMPLIED WARRANTY

1. DEFINITION
Under this theory a commercial seller is liable to an ultimate user if the product fails to satisfy the implied covenant of fitness for intended purpose (UCC 2-314).

(a) Implied to every sale of goods is a warranty that the goods are of a quality equal to that generally acceptable among those who deal in similar goods and;
(b) Goods are fit for the ordinary purpose for which they are foreseeably used -- warranty of fitness for a particular purpose.

2. PRIVITY
UCC 2-318 (a) and in the majority of states, privity is required between the seller and the injured party. This theory is extended to the purchaser and his family and is sometimes extended to guests in his home. (i.e. privity is extended to buyer's family, household members and guest injured by the product).

3. DEFENSES
(a) Assumption of the Risk-UCC 2-715
(b) Contributory Negligence-After discovery of defect, plaintiff acts unreasonably
(c) Timely Notification of the Breach under UCC-
(i) UCC 2-607 Buyer must within reasonable time after s/he discovers or should have discovered the defect notify seller or be barred.

E. MISREPRESENTATION

1. DEFINITION
For Plaintiff to recover for a cause of action of misrepresentation, she must plead and prove misrepresentation of a material fact, reasonable reliance, scienter, intent or negligence, causing damage. (This theory is very difficult to prove and is generally not a major issue on an exam.)