Torts: II. Negligence - 50%

II. Negligence G. Defenses 2. Assumption of risk

1. Actual Damages The plaintiff must prove actual harm, i.e., personal injury or property damage, in order to complete the requirements of liability for negligence. Unlike in actions for intentional torts, nominal damages are not recoverable in negligence actions. a. Emotional distress damages A plaintiff who is the victim of a tort that causes physical injury may also add emotional distress as an element of damages (sometimes known as "parasitic" damages). Most jurisdictions do not allow a plaintiff to recover in negligence for pure emotional distress, though a plaintiff with some physical symptom from the distress may be able to recover through a claim for negligent infliction of emotional distress. See § IV.G.1. Negligent Infliction of Emotional Distress, infra. b. Economic loss In addition, a plaintiff who suffers only economic loss without any related personal injury or property damage cannot recover such loss through a negligence action. However, once a plaintiff has proven non-economic injury, he is entitled to recover both economic and non-economic damages. c. Attorney's fees Attorney's fees and interest from the date of damage are not recoverable in a negligence action. 2. Compensatory Damages The general measure of compensatory damages is compensation that would make the victim whole, as if she had never suffered the injury. 3. Mitigation of Damages, Avoidable Consequences The plaintiff must take reasonable steps to mitigate damages. Although sometimes phrased as a "duty to mitigate," this "duty" is not an obligation that the plaintiff owes to the defendant but instead is a limitation on the plaintiff's recovery due to the failure to avoid harm that could have been avoided by the use of reasonable effort after the tort was committed. For example, if the victim fails to use reasonable care to treat a wound, resulting in infection and the loss of a limb, that failure to mitigate her damages likely will reduce or even eliminate her recovery, depending on the jurisdiction's approach to contributory negligence. 4. Personal Injury: Categories of Damages The typical categories of damages recoverable in a personal injury action include: i) Medical and rehabilitative expenses, both past and future; ii) Past and future pain and suffering (e.g., emotional distress); and iii) Lost income and any reduction in future earnings capacity. 5. Property Damage a. General rule When the plaintiff's real or personal property is injured or destroyed by the defendant's tortious conduct, the general rule is that the plaintiff may recover the difference between the fair market value of the property immediately before the injury and immediately after the injury. b. Cost of repairs In the case of tortious harm to personal property, most courts also allow the cost of repairs as an alternative measure of damages, provided that the cost of repairs does not exceed the value of the property. c. Household items In the case of household items, such as clothing and appliances, courts often hold that replacement value is the measure of damages. 6. Collateral-Source Rule a. Traditional rule Under the traditional rule, benefits or payments provided to the plaintiff from outside sources (such as medical insurance) are not credited against the liability of any tortfeasor, nor is evidence of such payments admissible at trial. b. Modern trend A majority of states have passed statutes that either eliminate the collateral?source rule entirely or modify its application (e.g., cannot be applied in medical malpractice cases). Payments made to the plaintiff by the defendant's insurer are not considered payments from a collateral source, and such payments are credited against the defendant's liability. 7. Punitive Damages The plaintiff may be entitled to punitive damages if he can establish by clear and convincing evidence that the defendant acted willfully and wantonly, recklessly, or with malice. Punitive damages are also available for inherently malicious torts (such as intentional infliction of emotional distress, which requires outrageous conduct).

II. Negligence A. The duty question, including failure to act, unforeseeable plaintiffs, and obligations to control the conduct of third parties

Duty In general, a duty of care is owed to all foreseeable persons who may foreseeably be injured by the defendant's failure to act as a reasonable person of ordinary prudence under the circumstances. Generally, there is no duty to act affirmatively, even if the failure to act appears to be unreasonable. (See § IV.B.4. Affirmative Duty to Act, below.) 1. Foreseeability of Harm While the foreseeability of harm alone does not create a duty, most courts emphasize the foreseeability of harm to the plaintiff when evaluating the existence of a duty. The foreseeability of the type of harm is also relevant to proximate cause. See § IV.E.3. Proximate Cause (Legal Cause), infra. 2. Foreseeability of the Plaintiff a. Cardozo (majority) view The majority rule is that a duty of care is owed to the plaintiff only if she is a member of the class of persons who might be foreseeably harmed (sometimes called "foreseeable plaintiffs") as a result of the defendant's negligent conduct. According to Judge Cardozo's majority opinion in Palsgraf v. Long Island R. R. Co., 162 N.E. 99 (N.Y. 1928), the defendant is liable only to plaintiffs who are within the zone of foreseeable harm. b. Andrews (minority) view The minority view (and the Restatement approach), articulated in Judge Andrews's minority opinion in Palsgraf, states that if the defendant can foresee harm to anyone as a result of his negligence, then a duty is owed to everyone (foreseeable or not) harmed as a result of his breach. The issue of whether the plaintiff is foreseeable is reserved for proximate cause. See § IV.E.3. Proximate Cause, infra. Restatement (Third) of Torts: Liability for Physical and Emotional Harm §29 cmt. n (2010). 3. Specific Classes of Foreseeable Plaintiffs a. Rescuers A person who comes to the aid of another is a foreseeable plaintiff. If the defendant negligently puts either the rescued party or the rescuer in danger, then he is liable for the rescuer's injuries. To the extent that a rescuer's efforts are unreasonable, comparative responsibility should be available to reduce, rather than to bar, recovery by a rescuer. Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 32 (2010). An emergency professional, such as a police officer or firefighter, is barred from recovering damages from the party whose negligence caused the professional's injury if the injury results from a risk inherent in the job ("firefighter's rule"). b. Intended beneficiaries A defendant is liable to a third-party beneficiary if the legal or business transaction that the beneficiary is a part of is prepared negligently, and the defendant could foresee the harm of completing the transaction. c. Fetuses Fetuses are owed a duty of care if they are viable at the time that the injury occurred. See § IV.G.4. "Wrongful Life" and "Wrongful Birth" Claims, infra. d. Anticipated victim of a crime The special relationship between a psychotherapist and a patient can impose upon the therapist an affirmative duty to act to protect a third party. Generally, a psychotherapist owes a duty only to her patient. For example, a psychiatrist who fails to correctly diagnose a suicidal patient is liable only to the patient if the patient commits suicide. However, when a patient has made credible threats of physical violence against a third party, the psychotherapist has a duty to warn the intended victim. Tarasoff v. Regents of the University of California, 551 P.2d 334 (Cal. 1976). The threat must be a serious threat of physical violence against an ascertainable intended victim, determined by the objective standard of a reasonable psychotherapist in the same circumstance. 4. Affirmative Duty to Act In general, there is no affirmative duty to act. However, a duty is imposed in the following situations. a. Assumption of duty A person who voluntarily aids or rescues another has a duty to act with reasonable ordinary care in the performance of that aid or rescue. Note that some states have enacted "Good Samaritan" statutes to protect doctors and other medical personnel when they voluntarily render emergency care. These statutes exempt medical professionals from liability for ordinary negligence; however, they do not exempt them from liability for gross negligence. b. Placing another in peril A person who places another in peril is under a duty to exercise reasonable care to prevent further harm by rendering care or aid. c. By contract There is a duty to perform contractual obligations with due care. d. By authority One with actual ability and authority to control another, such as parent over child and employer over employee, has an affirmative duty to exercise reasonable control. Generally, this duty is imposed upon the defendant when the defendant knows or should know that the third person is apt to commit the injuring act. Example: A parent may be liable for failing to control the conduct of a child who uses a dangerous instrumentality to injure a plaintiff. e. By relationship A defendant with a unique relationship to a plaintiff, such as business proprietor-patron, common carrier-passenger, innkeeper-guest, employer-employee, or parent-child, may have a duty to protect, aid, or assist the plaintiff and to prevent reasonably foreseeable injury to her from third parties.

II. Negligence F. Liability for acts of others 1. Employees and other agents

Vicarious liability is a form of strict liability in which one person is liable for the tortious actions of another. It arises when one person has the right, ability, or duty to control the activities of another, even though the first person was not directly liable for the injury. 1. Liability of an Employer for an Employee's Torts (Respondeat Superior) a. Employer's right of control As a general rule, the employer is vicariously liable for the employee's torts if the employer has the right to control the activities of the employee. Absent a right to control, the person is likely an independent contractor (see below). b. Scope of employment An employer is liable for the tortious conduct of an employee that is within the scope of employment. Conduct within the scope of employment includes acts that the employee is employed to perform or that are intended to profit or benefit the employer. Careful instructions directed to the employee do not insulate the employer from liability—even when the employee acts counter to the instructions—if the employee is acting within the scope of employment. 1) Intentional torts Generally, an employer is not liable for the intentional tort of an employee. For example, if an employee, acting on a personal grudge, punches a customer, the employer probably will not be held liable. There are two exceptions, however. As with negligence, the test is whether the employee was acting within the scope of employment. Restatement (Third) of Agency §7.07. a) Force is inherent When force is inherent in the employee's work (e.g., a bouncer at a bar), the employer may be responsible for injuries the employee inflicts in the course of his work. b) Position of authority If the employer authorizes the employee to act on his behalf, and the employee's position provides the opportunity to commit an intentional tort, the employer may be liable. For example, if an employee with the power to sign contracts enters into a fraudulent contract with a third party, the employer may be liable. 2) Detour and frolic An employer may be liable for a tort committed by the employee during an employee's detour (a minor and permissible deviation from the scope of employment) but not for an employee's frolic (an unauthorized and substantial deviation). The employer and employee will be jointly and severally liable (see §IV.J.1. Joint and Several Liability, infra) for torts committed by the employee within the scope of employment. EXAM NOTE: If you conclude that an employer is not liable under a vicarious-liability theory, then be certain to consider whether the employer is liable in her own right for negligence, e.g., negligent hiring, supervision, or entrustment. 2. Torts Committed by Independent Contractors a. Generally no vicarious liability Those who hire independent contractors are generally not vicariously liable for the torts of the independent contractors. b. Distinguished from employee An independent contractor is one hired to accomplish a task or result but who is not subject to a right of control by the employer. i) Independent contractors tend to have specialized skills or knowledge, e.g., physicians and plumbers; and ii) Independent contractors tend to work for many employers, while employees more often work for a single employer. c. Non-delegable duties The person who hires an independent contractor remains vicariously liable for certain conduct, including: i) Inherently dangerous activities; ii) Non-delegable duties arising out of a relationship with a specific plaintiff or the public (i.e., activities that are inherently risky or that affect the public at large, such as construction work adjacent to a public highway); iii) The duty of a storekeeper or other operator of premises open to the public to keep such premises in a reasonably safe condition; and iv) In a minority of jurisdictions, the duty to comply with state safety statutes. d. Negligence in hiring Even if vicarious liability does not apply, the party hiring the independent contractor may be liable for his own negligence in selecting the independent contractor. 3. Business Partners Partners in a joint enterprise, when two or more parties have a common purpose and mutual right of control, may be liable for the tortious acts of each other that are committed within the scope of the business purposes. 4. Automobile Owners a. Negligent entrustment The owner of a vehicle (or any other object that carries the potential for harm, such as a gun or lawn mower) may be liable for the negligent acts of a driver or user to whom the car or other property was entrusted if the owner knew or should have known of the user's negligent propensities. b. Family-purpose doctrine Many jurisdictions, through either legislative enactments or judicial decisions, have adopted the family-purpose doctrine, providing that the owner of an automobile may be liable for the tortious acts of any family member driving the car with permission. c. Owner liability statutes Many jurisdictions have enacted statutes that provide that the owner of an automobile may be liable for the tortious acts of anyone driving the car with permission. 5. Parents and Their Children a. No vicarious liability The general rule is that parents are not vicariously liable for their minor child's torts. Exceptions to this general rule include situations in which: i) The child commits a tort while acting as the parent's agent; ii) State statutes provide for the liability of parents when children commit specified acts such as vandalism or school violence; or iii) State statutes require that a parent, when he signs for the child's driver's license application, assumes liability for any damages caused by negligent acts that the child commits while driving a car. b. Negligence of the parents Parents, however, are liable for their own negligence with respect to their minor child's conduct. A parent is under a duty to exercise reasonable care to prevent a minor child from intentionally or negligently harming a third party, provided the parent: i) Has the ability to control the child; and ii) Knows or should know of the necessity and opportunity for exercising such control. In such circumstances, a parent who fails to exercise control may be liable for harm caused by the child, even though the child, because of his age, is not liable. Restatement (Second) of Torts § 316 (1965). Example: A father gives a gun to his six-year-old son. Although the son lacks the necessary maturity and judgment to operate the gun independently in a safe manner, the father allows the son to use the gun when the father is not present. The son, while aiming the gun at a toy in his yard, misses and accidentally shoots a neighbor. The father, because of his failure to properly supervise his son, can be liable for the injury suffered by the neighbor that is directly attributable to the son's conduct, even though the son himself will not be liable because of his age. 6. Liability for Another's Alcohol Consumption a. Dram-Shop liability Many states recognize, either by statute (a "dram-shop act") or by judicial decision, a cause of action against the seller of intoxicating beverages when a third party is subsequently injured due to the buyer's intoxication. Most states limit liability to situations in which the buyer was a minor or was intoxicated at the time of the sale. The states are divided as to whether the cause of action is grounded in negligence or strict liability. b. Social host liability Many states extend liability to a social host who serves intoxicating beverages (or substances) to a guest. Liability may be for the intoxicated person's injuries as well as those of a third party injured by the intoxicated person. Laws vary, and some are specifically directed to a person who serves alcohol (or makes it available) to a minor. Liability often extends to the intoxicated guest's torts that occur off premises (e.g., an intoxicated guest hits a pedestrian on the way home from the host's party). 7. Bailment Liability A bailor may be liable for his own negligent actions but generally is not vicariously liable for the tortious acts of his bailee, except for those limited situations described above, such as bailments involving automobiles or parents and children.

II. Negligence E. Limitations on liability and special rules of liability 3. Claims for mental distress not arising from physical harm; other intangible injuries

1. Negligent Infliction of Emotional Distress There are three types of cases in which a defendant may breach the duty to avoid negligently inflicting emotional distress upon a plaintiff. Whether a duty exists may depend upon whether the harm and the plaintiff are reasonably foreseeable. Some states deny recovery because one or the other is too speculative and thus not foreseeable. a. Zone of danger A plaintiff can recover for negligent infliction of emotional distress from a defendant whose tortious conduct placed the defendant in harm's way if the plaintiff demonstrates that: i) He was within the "zone of danger" of the threatened physical impact—that he feared for his own safety because of the defendant's negligence; and ii) The threat of physical impact caused emotional distress. b. Bystander recovery Most states allow a bystander plaintiff outside the zone of danger to recover for emotional distress if that plaintiff: i) Is closely related to the person injured by the defendant; ii) Was present at the scene of the injury; and iii) Personally observed (or otherwise perceived) the injury. A majority of jurisdictions would be unlikely to expand liability to an unmarried cohabitant. However, some jurisdictions do allow engaged cohabitants to recover. c. Special relationship The duty to avoid infliction of emotional distress exists without any threat of physical impact in cases in which there is a special relationship between the plaintiff and the defendant. The most common examples are a mortician mishandling a corpse or a common carrier mistakenly reporting the death of a relative. Example: A physician negligently misdiagnoses a patient with a terminal illness that the patient does not have, and the patient goes into shock as a result. d. Physical symptoms required The majority rule is that the emotional distress must be manifested by physical symptoms (e.g., nightmares, shock, ulcers). The severity of symptoms required varies by jurisdiction. A few states as well as the Restatement allow recovery for serious emotional disturbance without a physical manifestation of harm. Restatement (Third) of Torts: Liability for Physical and Emotional Harm §4, comment d. Compare to intentional infliction of emotional distress, under which the plaintiff must prove more than negligence (intentional or reckless extreme or outrageous conduct) but need not prove any physical injury. 2. Wrongful-Death Actions and Survival Actions a. Wrongful-death actions A decedent's spouse, next of kin, or personal representative may bring suit to recover losses suffered as a result of a decedent's death under wrongful?death actions created by state statutes. Under typical statutes, the recoverable damages include the loss of support (income) as a result of the decedent's death, as well as the loss of companionship, society, and affection experienced by the surviving family members, but not pain and suffering. Recovery, however, is limited to what the deceased would have recovered had he lived. Additionally, the decedent's creditors have no right to institute a claim against the amount awarded. b. Survival actions Survival statutes typically enable the personal representative of a decedent's estate to pursue any claims the decedent herself would have had at the time of her death, including claims for damages resulting from both personal injury and property damage. Such claims often involve damages resulting from the tort that injured the decedent and later resulted in her death. Example: If the decedent was negligently injured by the driver of another automobile and lingered—out of work, in the hospital, and in extreme pain—for one year before passing away, his estate would be able to recover for his medical expenses from the time he was injured until his death, for his loss of income during this time, and for the pain and suffering he experienced. Most states do not allow survival of tort actions involving intangible personal interests (such as defamation, malicious prosecution, or invasion of privacy) because they are considered too personal to survive the decedent's death. If a jurisdiction recognizes both wrongful-death actions and survival actions, there is no double recovery. 3. Recovery for Loss Arising From Injury to Family Members a. Spouses One spouse may recover for loss of consortium and services as a result of injuries to the other spouse resulting from the defendant's tortious conduct. b. Parent-child A parent may recover damages for loss of services if a child is injured due to the defendant's tortious conduct. Many jurisdictions allow a parent to recover for loss of the child's companionship in a wrongful-death action if the child is killed, but only a few jurisdictions allow a parent to recover for such damages if the child is injured but lives. Similarly, many jurisdictions allow a child to recover for loss of the parent's companionship in a wrongful-death action, but most do not allow the child to recover such damages if the parent is injured but lives. In a wrongful-death action, the child's claim for loss of support resulting from the decedent's death will be brought by the statutorily designated adult family member as part of the wrongful-death action. c. Limitations The amount of damages recoverable in a derivative action (an action arising solely because of tortious harm to another) for interference with family relationships is reduced in a comparative-fault jurisdiction (and eliminated in a contributory-negligence jurisdiction) by the injured family member's contributory negligence. Thus, if the damages recovered in the injured family member's own action are reduced by the plaintiff's comparative fault, then the damages recoverable by his family members in their derivative action will also be reduced. 4. "Wrongful Life" and "Wrongful Birth" Claims a. Wrongful life Most states do not permit actions by a child for "wrongful life" based on the failure to properly perform a contraceptive procedure or failure to diagnose a congenital defect, even if the child is born with a disability. A few states permit a "wrongful life" action, but they limit the child's recovery to special damages attributable to the disability. b. Wrongful birth Conversely, many states do permit parents to recover for "wrongful birth" (failure to diagnose a defect) or "wrongful pregnancy" (failure to perform a contraceptive procedure). Generally, the mother can recover damages for the medical expenses of labor as well as for pain and suffering. In the case of a disabled child, the parents may be able to recover damages for the additional medical expenses of caring for that child, and, in some states, may recover for emotional distress as well.

II. Negligence Breach

1. Generally A breach of duty occurs when the defendant departs from the required standard of care, such as failure to act as a reasonable person, an unexcused violation of a statute, or, if there is no direct evidence, through res ipsa loquitur. There are two approaches for determining negligent conduct (breach of the general standard of care). a. Traditional approach Most courts determine breach of the standard of care by comparing the defendant's conduct with what a reasonably prudent person under the circumstances would or would not have done (applying an objective standard). b. Cost-benefit analysis The modern trend and Restatement approach set out the primary factors to consider in determining whether the defendant has acted in accordance with the standard of care as follows: i) The foreseeable likelihood that the defendant's conduct would cause harm; ii) The foreseeable severity of any resulting harm; and iii) The defendant's burden (costs or other disadvantages) in avoiding the harm. The Third Restatement defines negligence using these terms rather than the reasonably prudent person standard. Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 3 (2010). 2. Res Ipsa Loquitur Under the doctrine of res ipsa loquitur, the trier of fact may infer the existence of the defendant's negligent conduct in the absence of direct evidence of such negligence. Res ipsa is circumstantial evidence of negligence that does not change the standard of care. EXAM NOTE: Res ipsa loquitur does not apply if there is direct evidence of the cause of the injury. a. Traditional requirements Under the traditional standard for res ipsa loquitur, still used in many jurisdictions, the plaintiff must prove that: i) The accident was of a kind that ordinarily does not occur in the absence of negligence; ii) It was caused by an agent or instrumentality within the exclusive control of the defendant; and iii) It was not due to any action on the part of the plaintiff. b. Modern trends Even under the traditional requirements, courts often generously interpret the "exclusive control" requirement. Example: The defendant hires an independent contractor to clean and maintain his store premises. The plaintiff is injured when she slips on a floor negligently left wet by an independent contractor. Courts will find that the duty to maintain the premises open to the public is a non-delegable duty, such that the defendant continued to be in "exclusive control." Therefore, res ipsa loquitur can be used to find that the defendant breached a duty of reasonable care. 1) Medical malpractice In medical malpractice cases when several physicians, nurses, and other medical personnel have access to the plaintiff during surgery, a small number of jurisdictions apply res ipsa loquitur, finding that each defendant has breached a duty of care unless he can exonerate himself. In the absence of such exonerating evidence, the courts hold all defendants jointly and severally liable. See, e.g., Ybarra v. Spangard, 25 Cal. 2d 486 (1944). 2) Products liability In negligence cases involving products, even if the product passes through many hands—those of the manufacturer, the distributor, the retail store, and the consumer/user—if the manufacturer wrapped the package or it is clear that any negligence took place during the production process, many courts ignore the exclusivity requirement. 3) Comparative-fault jurisdictions Courts in the vast majority of jurisdictions that have adopted comparative fault also are inclined to loosely apply the third requirement—that the harm must not be due to any action on the part of the plaintiff (whether such action constitutes contributory negligence or not)—because such a requirement would otherwise be in tension with the law holding that the plaintiff's contributory negligence is no longer a total bar to recovery. c. Third Restatement In light of the fact that the majority of jurisdictions generously apply the traditional requirements for res ipsa loquitur, the Third Restatement has rearticulated the requirements of the doctrine in the following manner. The fact-finder may infer that the defendant has been negligent when: i) The accident that caused the plaintiff's harm is a type of accident that ordinarily happens as a result of negligence of a class of actors; and ii) The defendant is a relevant member of that class of actors. Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 17 (2010). However, because the Third Restatement was only recently adopted, few courts have adopted this precise articulation of the doctrine. d. Procedural effect of res ipsa loquitur If the plaintiff establishes a prima facie case of res ipsa, then the trial court should deny the defendant's motion for a directed verdict, and the issue of negligence must be decided by the trier of fact. In most jurisdictions, res ipsa does not require that the trier of fact find negligence on the defendant's part. It simply establishes an inference of negligence sufficient to avoid dismissal of the plaintiff's action.

II. Negligence C. Problems relating to proof of fault, including res ipsa loquitur

1. Generally A breach of duty occurs when the defendant departs from the required standard of care, such as failure to act as a reasonable person, an unexcused violation of a statute, or, if there is no direct evidence, through res ipsa loquitur. There are two approaches for determining negligent conduct (breach of the general standard of care). a. Traditional approach Most courts determine breach of the standard of care by comparing the defendant's conduct with what a reasonably prudent person under the circumstances would or would not have done (applying an objective standard). b. Cost-benefit analysis The modern trend and Restatement approach set out the primary factors to consider in determining whether the defendant has acted in accordance with the standard of care as follows: i) The foreseeable likelihood that the defendant's conduct would cause harm; ii) The foreseeable severity of any resulting harm; and iii) The defendant's burden (costs or other disadvantages) in avoiding the harm. The Third Restatement defines negligence using these terms rather than the reasonably prudent person standard. Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 3 (2010). 2. Res Ipsa Loquitur Under the doctrine of res ipsa loquitur, the trier of fact may infer the existence of the defendant's negligent conduct in the absence of direct evidence of such negligence. Res ipsa is circumstantial evidence of negligence that does not change the standard of care. EXAM NOTE: Res ipsa loquitur does not apply if there is direct evidence of the cause of the injury. a. Traditional requirements Under the traditional standard for res ipsa loquitur, still used in many jurisdictions, the plaintiff must prove that: i) The accident was of a kind that ordinarily does not occur in the absence of negligence; ii) It was caused by an agent or instrumentality within the exclusive control of the defendant; and iii) It was not due to any action on the part of the plaintiff. b. Modern trends Even under the traditional requirements, courts often generously interpret the "exclusive control" requirement. Example: The defendant hires an independent contractor to clean and maintain his store premises. The plaintiff is injured when she slips on a floor negligently left wet by an independent contractor. Courts will find that the duty to maintain the premises open to the public is a non-delegable duty, such that the defendant continued to be in "exclusive control." Therefore, res ipsa loquitur can be used to find that the defendant breached a duty of reasonable care. 1) Medical malpractice In medical malpractice cases when several physicians, nurses, and other medical personnel have access to the plaintiff during surgery, a small number of jurisdictions apply res ipsa loquitur, finding that each defendant has breached a duty of care unless he can exonerate himself. In the absence of such exonerating evidence, the courts hold all defendants jointly and severally liable. See, e.g., Ybarra v. Spangard, 25 Cal. 2d 486 (1944). 2) Products liability In negligence cases involving products, even if the product passes through many hands—those of the manufacturer, the distributor, the retail store, and the consumer/user—if the manufacturer wrapped the package or it is clear that any negligence took place during the production process, many courts ignore the exclusivity requirement. 3) Comparative-fault jurisdictions Courts in the vast majority of jurisdictions that have adopted comparative fault also are inclined to loosely apply the third requirement—that the harm must not be due to any action on the part of the plaintiff (whether such action constitutes contributory negligence or not)—because such a requirement would otherwise be in tension with the law holding that the plaintiff's contributory negligence is no longer a total bar to recovery. c. Third Restatement In light of the fact that the majority of jurisdictions generously apply the traditional requirements for res ipsa loquitur, the Third Restatement has rearticulated the requirements of the doctrine in the following manner. The fact-finder may infer that the defendant has been negligent when: i) The accident that caused the plaintiff's harm is a type of accident that ordinarily happens as a result of negligence of a class of actors; and ii) The defendant is a relevant member of that class of actors. Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 17 (2010). However, because the Third Restatement was only recently adopted, few courts have adopted this precise articulation of the doctrine. d. Procedural effect of res ipsa loquitur If the plaintiff establishes a prima facie case of res ipsa, then the trial court should deny the defendant's motion for a directed verdict, and the issue of negligence must be decided by the trier of fact. In most jurisdictions, res ipsa does not require that the trier of fact find negligence on the defendant's part. It simply establishes an inference of negligence sufficient to avoid dismissal of the plaintiff's action.

II. Negligence D. Problems relating to causation 3. Questions of apportionment of responsibility among multiple tortfeasors, including joint and several liability

1. Joint and Several Liability a. Definition Under the doctrine of joint and several liability, each of two or more defendants who is found liable for a single and indivisible harm to the plaintiff is subject to liability to the plaintiff for the entire harm. The plaintiff has the choice of collecting the entire judgment from one defendant, the entire judgment from another defendant, or portions of the judgment from various defendants, as long as the plaintiff's entire recovery does not exceed the amount of the judgment. EXAM NOTE: Always apply joint and several liability on the MBE unless the facts instruct you to apply a different test. b. Application Examples of when joint and several liability applies include, among other instances, when: i) The tortious acts of two or more tortfeasors combine to produce an indivisible harm (see § IV.E.1.b.2. Concurrent tortfeasors contributing to an individual injury, supra); ii) The harm results from the acts of one or more tortfeasors acting in concert (see § IV.E.1.b.4. Concert of action, supra); iii) Alternative liability applies (see § IV.E.1.b.3. Alternative causation, supra); iv) Res ipsa loquitur is used against multiple defendants (such as in a surgical setting), and the plaintiff is unable to identify the tortfeasor whose acts were negligent (see § IV.D.2. Res Ipsa Loquitur, supra); and v) The employer and the employee are both held liable (see § IV.H.1. Liability of an Employer for an Employee's Torts (Respondeat Superior), supra). c. Limitations Most states limit the application of joint and several liability (e.g., to a defendant more than 10% at fault), and a few have eliminated it altogether. See §IV.J.3. Several (Proportionate) Liability, below. 2. Contribution If two or more tortfeasors are subject to liability to the same plaintiff, and one of the tortfeasors has paid the plaintiff more than his fair share of the common liability, then he may sue any of the other joint tortfeasors for contribution and recover anything paid in excess of his fair share. Additionally, a person seeking contribution must prove that the person against whom contribution is sought would have been liable to the plaintiff in an amount and share equal to or greater than the amount sought as contribution. See Restatement (Third) of Torts: Apportionment of Liability § 23 (2000). a. Determining fair shares In most jurisdictions, each party's fair share is determined by comparing how far each tortfeasor departed from the standard of reasonable care. b. Intentional tortfeasor Generally, a party who has committed an intentional tort may not seek contribution from another tortfeasor. 3. Several (Proportionate) Liability A majority of states now restrict or reject joint and several liability and instead recognize pure several liability, under which each tortfeasor is liable only for his proportionate share of the plaintiff's damages. In most of these jurisdictions, each defendant's share of liability is determined in accordance with how far each deviated from the standard of reasonable care. In other words, the more culpable defendant pays the higher proportion of the damages. 4. Satisfaction and Release Once a plaintiff has recovered fully from one or a combination of defendants, she is barred from pursuing further action against other tortfeasors. The plaintiff generally may not receive double recovery. If the plaintiff has not been wholly compensated, it is now the usual rule that a release of one tortfeasor does not release the others but instead diminishes the claim against the others, ordinarily by the amount of compensation received from the released tortfeasor. However, a release may bar claims against other tortfeasors if either (i) the release agreement so provides or (ii) the plaintiff has been entirely compensated for his losses. 5. Indemnification Indemnification is the shifting of the entire loss from one joint tortfeasor to another party. a. Vicarious liability Indemnification generally applies when one tortfeasor is vicariously liable for the other's wrongdoing. The tortfeasor who has discharged the liability is entitled to indemnity from the actual wrongdoer who was primarily responsible for the harm (e.g., an employer who pays a judgment for the tort of an employee because of the employer's vicarious liability). b. Complete reimbursement The employer can then seek complete reimbursement (indemnity) from the employee when: i) There is a prior indemnification agreement between the parties (e.g., in the construction industry, a contractor may agree to indemnify a subcontractor for the latter's negligence that may occur in the future); ii) There is a significant difference between the blameworthiness of two defendants such that equity requires a shifting of the loss to the more blameworthy defendant; iii) Significant additional harm is subsequently caused by another tortfeasor (i.e., one defendant pays the full judgment, including for additional harm caused by the malpractice of the treating physician); or iv) Under strict products liability, each supplier has a right of indemnification against all previous suppliers in a distribution chain. Note: Indemnity in degree of blameworthiness is rejected in jurisdictions with comparative-negligence systems. These states apportion damages based on relative fault, although indemnification is allowed in other instances when it is not based on degree of fault.

II. Negligence B. The standard of care 2. Rules of conduct derived from statutes and custom

3. Negligence Per Se EXAM NOTE: Negligence per se has been heavily tested on the MBE. The standard of care can sometimes be determined by statute. In most jurisdictions, the violation of such a statute establishes negligence as a matter of law (a conclusive presumption as to duty and breach). A minority of jurisdictions hold that violation of the statute is merely evidence of negligence (a rebuttable presumption as to duty and breach). a. Elements i) A criminal or regulatory statute (or an administrative regulation or municipal ordinance) imposes a penalty for violation of a specific duty; ii) The defendant violates the statute by failing to perform that duty; iii) The plaintiff is in the class of people intended to be protected by the statute; iv) The harm is of the type the statute was intended to protect against; and v) The plaintiff's injuries were proximately caused by the defendant's violation of the statute. b. Effect of a defendant's compliance Generally speaking, compliance with a statute, a regulation, or an ordinance does not prove the absence of negligence. However, sometimes, if the defendant's conduct complies with certain types of federal regulatory statutes, such as those establishing comprehensive regulatory schemes, compliance with the federal requirements may preempt common-law tort actions. c. Defenses An excused violation of an applicable statute can be a defense to negligence perse under the following circumstances. 1) Greater risk of harm The defendant may be able to avoid liability by proving that compliance would have involved a greater risk of physical harm to the defendant or others than noncompliance would have (e.g., it was an emergency). 2) Incapacity The violation of a statute may not be negligence if the violation is reasonable in light of the defendant's physical disability or incapacitation, or if the defendant is a child. 3) Reasonable care It is a defense that the defendant exercised reasonable care in attempting to comply with the statute. 4) Vagueness If the requirements of the statute at issue were presented to the public in a confusing manner (e.g., extremely vague or ambiguous), then the defendant's violation is excused. 5) Reasonable ignorance If the statute imposes an obligation only under certain factual circumstances that are not usually present, and the defendant is not aware that these circumstances are present and further proves that his ignorance was reasonable, then the defendant's violation of the statute is excused for the purposes of negligence per se. d. Violation by a plaintiff The violation of a statute, a regulation, or an ordinance by a plaintiff may constitute contributory negligence per se. The same requirements apply. 4. Standards of Care for Specific Classes of Defendants A discussion of the traditional standards of care for special defendants follows, but note that the modern trend has been to move away from distinctions in the level of care and instead measure the parties' conduct in light of what is reasonable under the circumstances. a. Common carriers and innkeepers Under the common law, a majority of jurisdictions held both common carriers (e.g., planes, trains, buses) and innkeepers to the highest duty of care consistent with the practical operation of the business. Under this approach, common carriers and innkeepers could be held liable for "slight negligence." A majority of courts continue to hold common carriers to this higher standard. However, most courts today hold that an innkeeper (hotel operator) is liable only for ordinary negligence. Note, however, that the Third Restatement approach is slightly different: common carriers and innkeepers are treated alike and must exercise reasonable care toward their passengers and guests. Although generally there is no affirmative duty to act, common carriers and innkeepers have a duty to act based upon the special relationship they have with their customers. Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 40 (2010). EXAM NOTE: Be certain to apply the carriers and innkeepers standards only to customers or guests. b. Automobile drivers In most jurisdictions, automobile drivers owe ordinary care to their guests as well as their passengers (those who confer an economic benefit for the ride). However, a minority of jurisdictions distinguish between the two with "guest statutes," which impose only a duty to refrain from gross or wanton and willful misconduct with a guest in the car. Proof of simple negligence by the driver will not result in recovery by the plaintiff-guest. c. Bailors and bailees A bailment occurs when a person (the bailee) temporarily takes possession of another's (the bailor's) personal property, such as when a driver leaves his car with a valet. The duty of care that must be exercised by a bailor or bailee varies depending on the type of bailment. 1) Bailor's duty The bailor has a duty to inform the gratuitous bailee only of known dangerous defects in personal property but must inform a bailee for hire of defects that are known or should have been known by the bailor had he used reasonable diligence. 2) Bailee's duty When a bailor receives the sole benefit from the bailment, the bailee has a lesser duty to care for the property and is liable only if he has been grossly negligent. In contrast, when a bailee receives the sole benefit from the bailment, he must exercise extraordinary care for the bailor's property. Slight negligence on the bailee's part will result in liability for any injuries to the property from failure to properly care for or use it. In a bailment for mutual benefit, the bailee must take reasonable care of the bailed property. d. Emergency situations The applicable standard of care in an emergency is that of a reasonable person in the same situation. In other words, less may be expected of the reasonably prudent person who is forced to act in an emergency, but only if the defendant's conduct did not cause the emergency. 5. Possessors of Land The term "possessors of land" as used here includes owners, tenants, those in adverse possession, and others in possession of land. The fact that a plaintiff is injured while on someone else's land does not affect the liability of a defendant other than the land possessor. Only land possessors are protected by the rules limiting liability to trespassers or licensees. Everyone else—for example, easement holders (e.g., a utility company with power lines on the land) or those licensed to use the land (e.g., hunters)—must exercise reasonable care to protect the trespasser or the licensee. In general, possessors of land owe a duty only to those within the boundaries of their land. The duty to entrants on the land includes: i) Conduct by the land possessor that creates risks; ii) Artificial conditions on the land; iii) Natural conditions on the land; and iv) Risks created when any of the affirmative duties discussed in § IV.B.4. Affirmative Duty to Act, supra, are applicable. a. Two approaches 1) Traditional approach Approximately one-half of all jurisdictions continue to follow traditional rules that provide that the standard of care owed to land entrants depends upon the status of the land entrant as an invitee, a licensee, or a trespasser. 2) Modern trend Courts in the other half of jurisdictions (as well as the Third Restatement) require that a reasonable standard of care be exercised for all land entrants except trespassers, abolishing the distinction between invitees and licensees. (In the case of the Third Restatement, the rule applies to all land entrants except for "flagrant" trespassers.) The land possessor must use reasonable care to prevent harm posed by artificial conditions or conduct on the land. As for natural conditions, the general rule is that there is no duty to remove or protect against the condition, although there is an exception for rotting trees in densely populated areas. b. Trespassers A trespasser is one who enters or remains upon the land of another without consent or privilege to do so. 1) Traditional approach A landowner is obligated to refrain from willful, wanton, reckless, or intentional misconduct toward trespassers. a) Spring-guns and other traps The use of a spring-gun or other trap set to expose a trespasser to a force likely to inflict death or grievous bodily injury will lead to liability for the land possessor. The land possessor cannot do indirectly what he would be forbidden to do directly (e.g., shoot the trespasser). b) Discovered trespassers Land possessors owe a duty toward discovered or anticipated trespassers to warn or protect them from concealed, dangerous, artificial conditions. There is no duty to warn of natural conditions or artificial conditions that do not involve risk of death or serious bodily harm. Land possessors also have a duty to use reasonable care while conducting activities on their land, as well as to control the activities of third parties on their property. When a land possessor should reasonably know that trespassers are consistently entering his land (e.g., frequent trespassers using a footpath to cut across the corner of the property), the possessor owes a duty to the anticipated trespasser, regardless of the land possessor's actual knowledge. c) Undiscovered trespassers Land possessors generally owe no duty to undiscovered trespassers, nor do they have a duty to inspect their property for evidence of trespassers. d) Attractive nuisance EXAM NOTE: Attractive nuisance has been heavily tested on the MBE. Under the "attractive nuisance" doctrine, a land possessor may be liable for injuries to children trespassing on the land if: i) An artificial condition exists in a place where the land possessor knows or has reason to know that children are likely to trespass; ii) The land possessor knows or has reason to know that the condition poses an unreasonable risk of death or serious bodily injury to children; iii) The children, because of their youth, do not discover or cannot appreciate the danger presented by the condition; iv) The utility to the land possessor of maintaining the condition and the burden of eliminating the danger are slight compared to the risk of harm presented to children; and v) The land possessor fails to exercise reasonable care to protect children from the harm. Restatement (Second) of Torts § 339 (1965). 2) Minority and Third Restatement approach A few states now take the approach that land possessors owe trespassers, like all other land entrants, a reasonable standard of care under all the circumstances. Of course, the fact that the land entrant is trespassing, particularly if he is undiscovered, is one fact that the jury may consider in deciding whether the land possessor has exercised reasonable care. The Third Restatement § 52 provides that although a duty of reasonable care is owed to trespassers, only the duty not to act in an intentional, willful, or wanton manner to cause physical harm is owed to flagrant trespassers who are not imperiled and unable to protect themselves. A burglar in a home would be a flagrant trespasser, but someone injured while walking in a public park at midnight, despite the presence of a posted notice that the park was closed after dusk, would not be. This distinction has not been widely adopted by the courts. c. Invitees: traditional approach An invitee is either: i) A public invitee—someone invited to enter or remain on the land for the purposes for which the land is held open to the public; or ii) A business visitor—someone invited to enter or remain on the land for a purpose connected to business dealings with the land possessor. A land possessor owes an invitee the duty of reasonable care, including the duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and protect the invitee from them. However, the duty of reasonable care owed to an invitee does not extend beyond the scope of the invitation, and the invitee is treated as a trespasser in areas beyond that scope. 1) Non-delegable duty The land possessor's duty to invitees is a non-delegable duty. For example, even if a store owner hires an independent contractor to maintain the escalator in her store, she will remain liable if the contractor negligently fails to properly maintain the escalator. This same principle of non-delegable duty applies under the modern approach (discussed below), under which the land possessor owes most land visitors a duty of reasonable care. 2) Recreational land use In some jurisdictions, a land possessor who opens his land to the public for recreational purposes is not liable for injuries sustained by recreational land users so long as he does not charge a fee for the use of his land, unless the landowner acts willfully and maliciously or, in some jurisdictions, with gross negligence. d. Licensees: traditional approach A licensee is someone who enters the land of another with the express or implied permission of the land possessor or with a privilege. Examples of licensees include: i) Social guests—note, they may be "invited," but they are still licensees, not invitees; ii) Those whose presence is tolerated by the land possessor such as children who routinely cut across the land on their way home from school; and iii) Emergency personnel such as police, firefighters, and emergency medical technicians. The land possessor has a duty to either correct or warn a licensee of concealed dangers that are either known to the land possessor or that should be obvious to her. The land possessor does not have a duty to inspect for dangers. In addition, the land possessor must exercise reasonable care in conducting activities on the land. e. Liability of landlords and tenants Because the obligations associated with property are owed by the possessor of the land, a lessee assumes any duty owed by the lessor once the lessee takes possession. 1) Landlord's liability The landlord remains liable for injuries to the tenant and others occurring: i) In common areas such as parking lots, stairwells, lobbies, and hallways; ii) As a result of hidden dangers about which the landlord fails to warn the tenant; iii) On premises leased for public use; iv) As a result of a hazard caused by the landlord's negligent repair; or v) Involving a hazard that the landlord has agreed to repair. 2) Tenant's liability As an occupier of land, the tenant continues to be liable for injuries to third parties arising from dangerous conditions within the tenant's control, regardless of whether the land possessor has liability. f. Off-premises victims A landowner generally does not owe a duty to a person not on the premises (e.g., passerby, owner of adjacent land) who is harmed by a natural condition on the landowner's premises. An exception exists, however, with respect to trees in urban areas. With respect to an artificial condition, the landowner generally owes a duty to prevent an unreasonable risk of harm to persons who are not on the premises. Similarly, with respect to an activity conducted on the premises by the owner or by someone subject to the owner's control, the landowner generally owes a duty of reasonable care to persons who are not on the premises. g. Sellers of real property Sellers of real property owe a duty to disclose to buyers those concealed and unreasonably dangerous conditions known to the seller. These are conditions that the buyer is unlikely to discover upon reasonable inspection. The seller's liability to third parties continues until the buyer has a reasonable opportunity, through maintenance and inspection, to discover and remedy the defect.

II. Negligence B. The standard of care 1. The reasonably prudent person: including children, physically and mentally impaired individuals, professional people, and other special classes

The Standard of Care 1. Reasonably Prudent Person In most cases, the standard of care imposed is that of a reasonably prudent person under the circumstances. This standard is an objective one, measured by what a reasonably prudent person would do, rather than whether a particular defendant is acting in good faith or using her best efforts. A defendant is required to exercise the care that a reasonable person under the same circumstances (i.e., in her position, with her information and competence) would recognize as necessary to avoid or prevent an unreasonable risk of harm to another person. a. Mental and emotional characteristics Under this standard, the defendant is presumed to have average mental abilities and the same knowledge as an average member of the community. The defendant's own mental or emotional disability is not considered in determining whether his conduct is negligent, unless the defendant is a child. In other words, a mentally disabled person is held to the standard of someone of ordinary intelligence and knowledge. Most courts hold that if a defendant possesses special skills or knowledge, she is held to a higher standard, i.e., she must exercise her superior competence with reasonable attention and care. b. Physical characteristics A defendant's particular physical characteristics (e.g., blindness) are taken into account and the reasonableness of the conduct of a defendant with a physical disability is determined based upon a reasonably careful person with the same disability. Restatement (Third) of Torts: Liability for Physical and Emotional Harm §11 (2010). For example, a blind pedestrian must act as any other reasonable blind person would act under the circumstances. c. Intoxication Intoxicated individuals are held to the same standards as sober individuals unless their intoxication was involuntary. d. Children The standard of care imposed upon a child is that of a reasonable child of similar age, intelligence, and experience. Unlike the objective standard applied to adult defendants in negligence actions, the standard applicable to minors is more subjective in nature because children are unable to appreciate the same risks as an adult. However, a child engaged in a high-risk activity that is characteristically undertaken by adults, such as driving a car, is held to the same standard as an adult. Courts regard children of a particularly young age as incapable of negligent conduct. Under the Third Restatement, children under the age of five are generally incapable of negligent conduct. Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 10 (2010). 2. Custom a. Within a community or an industry Evidence of a custom in a community or an industry is admissible as evidence to establish the proper standard of care, but such evidence is not conclusive. The entire community or industry may be negligent. b. Safety codes Safety codes promulgated by industries, associations, and government bodies for the guidance of operations within their respective fields of interest are admissible to prove custom. c. Professionals A professional person (e.g., doctor, lawyer, or electrician) is expected to exhibit the same skill, knowledge, and care as another practitioner in the same community. A specialist may be held to a higher standard than a general practitioner because of his superior knowledge. d. Physicians 1) Local versus national standard Traditionally, physicians were held to the "same or similar locale" rule of custom: did the physician's actions comport with those customarily employed by doctors in the same locale or in similar localities? During the past 40 years, however, many jurisdictions have changed to a national standard: did the physician conform her conduct to the customary practice of other physicians in similar circumstances? Some jurisdictions now require medical specialists to comply with the national standard while holding general practitioners to the "same or similar locale" standard. 2) Informed consent Physicians are under a specific obligation to explain the risks of a medical procedure to a patient in advance of a patient's decision to consent to treatment. Failure to comply with this "informed consent" doctrine constitutes a breach of the physician's duty owed to the patient and is actionable as medical malpractice (medical negligence). A majority of jurisdictions hold that the required level of disclosure of risks is governed by custom among medical practitioners. However, a significant minority holds that the physician must disclose any "material risk"; that is, any risk that might make a difference to a reasonable person in deciding whether to proceed with the surgery or other medical treatment. Doctors are not under an obligation to disclose when: i) The risk is a commonly known risk; ii) The patient is unconscious or otherwise incapable of giving consent (e.g., emergency treatment); iii) The patient waives or refuses the information; iv) The patient is incompetent (although the physician must make a reasonable attempt to secure informed consent from a guardian); or v) The disclosure would be detrimental to the patient (e.g., would upset the patient enough to cause extreme illness, such as a heart attack).

II. Negligence D. Problems relating to causation 1/2. But for and substantial causes, harms traceable to multiple causes

The plaintiff must prove that the defendant's actions were both the actual cause (also known as the factual cause or "cause in fact") and the proximate cause (also known as the legal cause or, under the Restatement, the "scope of liability") of the plaintiff's injury. 1. Actual Cause (Cause in Fact) a. "But-for" test If the plaintiff's injury would not have occurred but for the defendant's tortious act or omission, then the defendant's conduct is a factual cause of the harm. If the injury would have occurred despite the defendant's conduct, then there is no factual cause. b. Multiple and/or indeterminate tortfeasors The but-for test of causation often will not work if: i) There are multiple tortfeasors and it cannot be said that the defendant's tortious conduct necessarily was required to produce the harm; ii) There are multiple possible causes of the plaintiff's harm, but the plaintiff cannot prove which defendant caused the harm; or iii) The defendant's negligent medical misdiagnosis increased the probability of the plaintiff's death, but the plaintiff probably would have died even with a proper diagnosis. 1) Substantial factor When but-for causation does not work, the majority of courts substitute a "substantial-factor" test. In cases in which several causes or acts may have contributed to the plaintiff's injury, each of which alone would have been a factual cause of that injury, the test is whether the defendant's tortious conduct was a substantial factor in causing the plaintiff's harm. Under the minority rule of the Third Restatement, each cause or act is regarded as a factual cause of the harm. Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 27 (2010). Note: The substantial-factor test is still used in most jurisdictions, at least in some context. 2) Concurrent tortfeasors contributing to an individual injury When the tortious acts of two or more defendants are each a factual cause of an indivisible injury to the plaintiff, the defendants are jointly and severally liable. 3) Alternative causation If the plaintiff's harm was caused by (i) one of a small number of defendants—usually two and almost never more than four or five, (ii) each of whose conduct was tortious, and (iii) all of whom are present before the court, then the court may shift the burden of proof to each individual defendant to prove that his conduct was not the cause in fact of the plaintiff's harm. 4) Concert of action If two or more tortfeasors were acting pursuant to a common plan or design and the acts of one or more of them tortiously caused the plaintiff's harm, then all defendants will be held jointly and severally liable. Example: Two defendants agree to a drag race and one of them injures another driver or a passenger during the race. Both will be held jointly and severally liable to the plaintiff. c. Loss of chance of recovery Some jurisdictions apply the "loss of chance" doctrine. The doctrine is usually applied in a medical malpractice case (e.g., failure to diagnose) when a plaintiff cannot meet the preponderance standard (i.e., more likely than not) for causation because the chance of recovery was already less than 50% before the defendant's negligent conduct. Under this theory, courts allow the plaintiff to recover reduced damages, often measured by an amount equal to the total damages recoverable as a result of the decedent's death multiplied by the difference in the percentage chance of recovery before the negligent misdiagnosis and after the misdiagnosis. Example: If the plaintiff's total damages are $1,000,000, and his chances of survival were 40% without the negligent misdiagnosis and 25% after the misdiagnosis, then the plaintiff will recover $150,000: ($1,000,000 × (40% - 25%)). 2. Causal Linkage Most often, when the plaintiff proves that the defendant's tortious conduct was a but-for cause of his injury, he also implicitly proves that the defendant's conduct increased the probability that the plaintiff would be harmed. However, in a few cases (including some used in past MBE questions), it is purely coincidental that the defendant's tortious conduct was the but-for cause of the plaintiff's injury. Example: If a passenger in a car is injured because the wind happens to blow down a tree and the car is positioned under the tree at the moment it falls only because the driver has been traveling at an unreasonably unsafe speed, then it can technically be stated that the passenger would not have been injured but for the driver's negligent speeding. However, most courts would find that the driver should not be found to be a cause of the accident under the doctrine of causal linkage, i.e., the driver's conduct did not increase the probability that the plaintiff would be harmed. 3. Proximate Cause (Legal Cause) In addition to proving actual causation, the plaintiff must prove that the defendant's tortious conduct was a proximate cause of her harm. Proximate cause is a legal limitation on actual cause, focusing on foreseeability. Some courts and the Third Restatement prefer the phrase "scope of liability." The majority rule for proximate cause requires that the plaintiff suffer a foreseeable harm that is not too remote and is within the risk created by the defendant's conduct. a. Foreseeability of harm 1) Majority rule A defendant is liable for reasonably foreseeable consequences resulting from his conduct. The type of harm must be foreseeable, though the extent of harm need not be foreseeable, see §IV.E.3.c. Extent of damages, below. A defendant's liability is limited to those harms that result from the risks that made the defendant's conduct tortious, within the scope of liability of the defendant's conduct. Restatement (Third) of Torts: Liability for Physical and Emotional Harm §29 (2010). 2) Minority rule Some courts follow the Andrews test from Palsgraf and find proximate cause for all consequences that flow directly from the defendant's conduct, considering factors including the number of intervening causes and the remoteness of the cause from the effect. Other courts find proximate cause if the defendant's conduct was a direct cause of the plaintiff's injury, regardless of foreseeability. b. Indirect causation The second proximate cause issue is whether the injury resulted without any unforeseeable or extraordinary events that will serve to break the chain of the defendant's liability. 1) Direct cause A plaintiff can recover when the defendant's tortious acts are the direct cause of the plaintiff's harm without the intervention of independent contributing acts. 2) Indirect cause An indirect cause results from an act or event occurring after the defendant's tortious act and before the plaintiff's injury (i.e., an intervening event). A superseding cause is any intervening event that breaks the chain of proximate causation between the defendant's tortious act and the plaintiff's harm. Whether an intervening cause will be superseding depends upon its foreseeability. The fact that an intervening cause occurred at all is considered to be foreseeable. A defendant is liable if the type of harm is foreseeable, even if it occurred in an unforeseeable manner. a) Foreseeable intervening causes A foreseeable intervening cause will not cut off a defendant's liability. Examples of foreseeable intervening forces include subsequent medical malpractice, disease, or accident; negligence of rescuers; normal forces of nature; or efforts to protect a person or property. As a general guideline, negligent intervening acts are usually regarded as foreseeable and do not prevent the original defendant from being held liable to the plaintiff. Example: The defendant negligently injures the plaintiff in an auto accident. The plaintiff seeks treatment for the resulting broken leg, and the treating physician commits malpractice that results in the amputation of the leg. Because the original driver-defendant's negligence was a but?for cause of the amputated leg and because medical malpractice is foreseeable, the driver's negligence is also a proximate cause of the amputated leg, and he may be held liable for the damages caused by the entire injury, including the consequences of the amputation. b) Unforeseeable intervening causes Most courts hold that an unforeseeable intervening cause is a superseding cause that therefore breaks the chain of causation between the defendant and the plaintiff. Examples of unforeseeable superseding causes include extraordinary acts of nature ("act of God") and criminal acts and/or intentional torts of third parties. Criminal acts of third parties are generally regarded as unforeseeable superseding causes and therefore break the chain of causation between the original defendant's negligence and the plaintiff's harm. However, if the duty breached by the defendant is one of failing to use reasonable care to protect the plaintiff and the plaintiff is harmed by a criminal act, then the original defendant remains liable. Example: If a middle-school student is assaulted during a field trip and her parents are able to prove that her teacher failed to use reasonable care to protect her, then the fact that the intervening cause of her harm, the assault, was criminal will not preclude the student and her parents from holding the school liable. c) Effect of non-superseding intervening causes If the intervening negligent act is not a superseding cause, then the original defendant and the actor responsible for the intervening negligent act can be held jointly and severally liable to the plaintiff. EXAM NOTE: Remember that the original tortfeasor remains liable unless the results of an intervening act are unforeseeable. In particular, keep in mind that negligence (e.g., medical malpractice) is foreseeable, and therefore it is not a superseding cause that breaks the chain of causation and insulates the defendant from liability. c. Extent of damages Under the "thin-skull" or "eggshell-skull" rule, the extent of the damages need never be foreseeable. The defendant is liable for the full extent of the plaintiff's injuries that may be increased because of the plaintiff's preexisting medical condition or vulnerability, even if the extent is unusual or unforeseeable.

II. Negligence Immunities

Traditionally, government entities, charities, and family members were immune from liability. Today, these immunities have been largely eliminated, but the rules governing the liability of these defendants continue to differ from those governing other tortfeasors. 1. Liability of the Government and Its Officers a. Federal government Under the Federal Tort Claims Act (FTCA), the U.S. government waives immunity in tort actions, with the following exceptions: i) Certain enumerated torts (assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel and slander, misrepresentation and deceit, and interference with contract rights), although intentional torts committed by law-enforcement officers are not excepted; ii) Discretionary functions (i.e., planning or decision making, as opposed to operational acts); iii) Assertion of the government's immunity by a government contractor in a products-liability case if the contractor conformed to government specifications and warned the government of any known dangers in the product; and iv) Certain traditional governmental activities (i.e., postal, tax collection or property seizure, admiralty, quarantine, money supply, and military activity). When the U.S. government waives its sovereign immunity under the FTCA, it is liable in the same manner and to the same extent that a private person under the same circumstances would be liable, but it is not liable for punitive damages. b. State governments Most states have waived sovereign immunity, at least partially, through legislation. Simultaneously, however, they have imposed limits on the amount of recovery and the circumstances under which the state can be held liable. They also have created procedural barriers to recover that do not exist in claims against private defendants. State tort claims acts vary greatly and therefore each act must be read carefully. Unless otherwise provided in the legislation, the same terms and conditions apply to the liability of state agencies—including prisons, hospitals, and educational institutions—as to the state itself. c. Municipalities 1) Usually governed by the state's tort claims act Today, the liability of municipalities, other local governments, and their agencies usually is governed by the provisions of state tort claims acts. 2) Governmental versus proprietary functions Traditionally, immunity attached to the performance of traditional governmental functions (such as police and court systems) but did not attach when a municipality was performing a "proprietary" function that often is performed by a private company (such as utilities and parking lots). 3) Public-duty rule The public-duty rule provides that there is no liability to any one citizen for the municipality's failure to fulfill a duty that is owed to the public at large, unless that citizen has a special relationship with the municipality that creates a special duty. A special relationship can be shown by: i) Promises or actions on the part of the municipality demonstrating an affirmative duty to act on behalf of the injured party; ii) Knowledge by the municipality's agents that failure to act could lead to harm; iii) Direct contact between the municipality's agents and the injured party; and iv) The injured party's justifiable reliance on the municipality's affirmative duty. d. Government officials 1) Discretionary functions When a government official is personally sued, immunity applies if she is performing discretionary functions entrusted to her by law so long as the acts are done without malice or improper purpose. 2) Ministerial functions There is no tort immunity for carrying out ministerial acts, such as driving while on government business. 3) Highly ranked officials Many highly ranked government officials, such as legislators performing their legislative functions, judges performing their judicial functions, prosecutors, and some upper-echelon officials of the executive branches, are usually absolutely immune from personal liability. 4) Federal immunity Under the so-called "Westfall Act," 28 U.S.C. § 2679(b)(1), the remedy against the United States under the FTCA for torts committed by federal employees precludes any personal liability on the part of a federal employee under state tort law. 2. Intra-family Immunity Intra-family immunity applies only to personal injuries, not to property damage. a. Interspousal immunity Traditionally, interspousal immunity prevented one spouse from suing the other in a personal-injury action. In most jurisdictions today, however, interspousal immunity has been extinguished, and either spouse can now institute a cause of action for personal injury against the other spouse. b. Parent-child immunity Traditionally, parents were immune from tort claims brought by their children. In recent decades, however, there has been a clear trend toward abolishing or greatly restricting parental immunity, but abrogation has proceeded more slowly than in the case of interspousal immunity. Courts generally allow parents to be held liable in areas other than core parenting activities. For example, most states allow children to sue parents: i) For injuries arising from automobile accidents; ii) In extreme cases, such as those involving sexual abuse and intentional tortious conduct; and iii) When the parent is acting in a dual capacity, such as when the parent is a physician treating the child for an injury (medical malpractice claim allowed). 3. Charitable Immunity Most states have either totally or partially eliminated the common-law rule of charitable immunity. Some states cap the amount of damages recoverable from a charitable institution.