Torts Rules

Special Duty - Landowners to Invitees

(1) ARTIFICIAL conditions - Reasonable care to inspect, discover, warn and remedy known dangerous conditions. (2) NATURAL conditions - Reasonable care to inspect, discover, warn and remedy known dangerous conditions. (3) ACTIVITIES - Reasonable care to prevent injury

Special Duty - Landowners to Trespassing Children

(1) ARTIFICIAL conditions - Reasonable care to prevent injury from known/should know dangers when - - highly dangerous to children - foreseeable that children are likely to trespass - child too young to appreciate the danger - risk of danger outweighs its utility (2) NATURAL conditions - No duty (3) ACTIVITIES - Reasonable care to prevent injury

Landowners to Known and frequent trespassers

(1) ARTIFICIAL conditions - Reasonable care to warn of hidden dangers which D is aware of and known trespasser is unaware (2) NATURAL conditions - No duty (3) ACTIVITIES - Reasonable care to prevent injury

Special Duty - Landowners to Licensees

(1) ARTIFICIAL conditions - Reasonable care to warn of known dangerous condition. No duty to inspect. (2) NATURAL conditions - Reasonable care to warn of known dangerous condition. No duty to inspect. (3) ACTIVITIES - Reasonable care to prevent injury; also reasonable care to discover unknown licensees

Landowners - Not on the land but adjacent to it

(1) ARTIFICIAL conditions - reasonable care to prevent injury from unreasonably dangerous artificial conditions which abut or protrude onto adjacent land and to protect passerby on a public street from injury from dangerous artificial condition. (2) NATURAL condition - No duty except native trees in urban areas - reasonable care to protect (3) ACTIVITIES - reasonable care to prevent injury

Landowners to Unknown Trespassers

(1) Artificial conditions - no duty (2) Natural conditions - no duty (3) Activities - no duty

Special Duty

(1) Common Carrier (2) Inn Keeper (3) Landlord (4) Driver / Passenger (5) Land Possessor (6) Government Entity

Special Duty - Government Entity

(1) PROPRIETARY acts: acting in proprietary (business) capacity then same duty as private party (2) DISCRETIONARY acts: if allocating public resources, no duty to individuals while exercising this function (3) MINISTERIAL acts: execution of something that has already been decided/passed then duty of reasonable care (4) PUBLIC DUTY doctrine: (police/fire) duty to everyone, but not to any one individual so failure to adequately/quickly respond is not actionable. EXCEPT (1) Special relationship between Plaintiff and Agency (2) Where agency increased the danger beyond what would otherwise exist

Landowner Categories

(1) Trespasser: on land without permission or privilege (2) Known or frequent trespasser: trespasser D is or should be aware of (3) Licensee: on land with with D express or implied permission; no business purpose (invited guest) (4) Invitee: w/business purpose or member of public who enters the land for the purpose it is held open to the public

Generally applicable to intentional torts

(1) Voluntary Act (2) Intent (3) Causation (4) Harm/Injury (5) No privilege or defense

Actual Cause - But For

Plaintiff would not have been injured but for the defendant's act

Breach of Implied Warranty - parties

Privity relevant when plaintiff seeks pure economic losses; plaintiff and last seller in chain. SELLER MUST BE A MERCHANT; extended to family member or household

SLT - Proximate Cause

Proximate causation requires that the defendant be liable for all consequences reasonably and foreseeably caused by defendant's defective product. *negligent handling after product leaves D;s control is generally foreseeable. *3P criminal or intentionally tortuous conduct is an unforeseeable intervening superseding force.

Negligence Defense - Assumption of the Risk

A bar to P's recovery where P had knowledge of and appreciated the nature of the risk involved and voluntarily chose to accept the risk. (only valid for negligence and injury must be within the scope of release) Waiver void against public policy when regarding a necessity Primary assumption of the risk: certain contexts negligence is inherent risk of that particular activity (often athletic related activities) - D has no duty to act non-negligently.

Breach - Learned Hand

A breach of the duty of reasonable care can be established if the gravity and likelihood of harm created by the D's act outweighs the burden on the D to have acted differently and the utility of the D's conduct.

SLT - Commercial Supplier

A commercial supplier, not a casual seller, owes a duty to supply safe products to any foreseeable user, consumer, or bystander injured by the product. Privity is not required.

Hustler v Falwell

Public figures and public officials may not recover for IIED by reason of publication without showing in addition that the publication contained a false statement of fact which was made with actual malice.

Breach w/o direct evidence

RES IPSA LOQUITUR: infers breach of duty absent direct evidence if P can prove: (1) event doesn't normally occur w/o negligence (2) P did not cause or contribute to his injuries (3) D probably responsible party, has control over harm causing instrumentality Slip & Fall: P must show evidence about condition of item he fell on so jury can infer unreasonable conduct; time passed that may indicate failed to inspect or discover.

SLT - Design Defect

A design defect is where the product is manufactured exactly as intended, but still presents a danger of personal injury or property damage to a plaintiff. There are two primary theories used by courts to determine if a product design is unreasonably dangerous. (1) Consumer expectation test (2) Risk-Utility test

Negligent Infliction of Emotional Distress (NIED)

A duty is owed to exercise due care not to subject others to the foreseeable risk of physical injury that might foreseeably cause emotional distress to one who is in the zone of danger and suffered accompanying physical manifestation of the emotional distress. (near miss causes emotional freak out causing heart attack) Bystander claim requires, close relationship, physical proximity & personally observing or perceiving event (serious injury/death to 3P) Some jx require being in zone of danger. Erroneously transmitting announcement of death of loved one or mishandling a corpse always found culpable.

SLT - Manufacturing defect

A manufacturing defect occurs when a product deviates from the intended design and is more dangerous than a properly made product.

Defense of others

A person is entitled to defend another person from an attack by the P to the same extent that the 3P would be lawfully entitled to defend himself from P.

Defenses - Necessity - Private

A person is not liable for torts committed against the property of another where he is acting to prevent a substantially greater harm to himself, his family, or his property. He is however, liable for the actual damages caused in the process.

Defenses - Necessity - Public

A person is not liable for torts committed against the property of another where he is acting to prevent a substantially greater harm to the public. He is not liable for actual damages caused in the process.

Defense - Self-Defense

A person may use reasonable force to defend against immediate bodily harm. Deadly force may be used only if the defendant is threatened with immediate danger to life or great bodily injury. Under the majority view, no retreat is necessary; a minority of jurisdictions require retreat if it is reasonably safe for the defendant to do so. D is not privileged to claim self-defense if he was the aggressor unless there was an attempt to withdraw.

Defense - Property

A person may use reasonable force to prevent the commission of a tort against his real or personal property. Request to leave or desist must precede the use of force unless futile. Deadly force is never reasonable to protect only property.

Breach of Warranty

A person who places a product into the stream of commerce may be liable for damages to the purchaser, his family, or any foreseeable user if the product is not in the sate promised either expressly or impliedly through the purchase of the product.

SLT - Government Safety Standards

A product is deemed to be defective in design or warning if it fails to comply with applicable government safety standards. Alternatively, compliance with such standards is non-conclusive evidence of a safe product. If no government safety standards exist, no inference can be made. *federal standards do not trump state standards - product must be in compliance with both for inference.

SLT - Risk-Utility Test

A product is defective if the risks created by the design outweigh its utility to society, considering the availability and cost of safer alternative designs. *based on technology at the time of design

SLT - Consumer Expectation Test

A product is in an unreasonably dangerous defective condition when it is more dangerous than the ordinary consumer would expect it to be. *food products qualify

Defenses - Shopkeeper's Privilege

A shopkeeper is not liable for F/I or a related tort if he has a reasonable suspicion that P has stolen goods, uses reasonable force to detain the person and detains the P for a reasonable period in a reasonable manner, on the premises or in the immediate vicinity.

SLT - Warning defect

A warning defect occurs where the defendant fails to warn or gives inadequate warning about dangers not apparent to consumers that defendant knew or should have known about. *not necessary to warn of obvious dangers (gun, sharp knife) Warning for allergic/adverse reaction warranted when small number of people, but harm is great (death or serious injury) OR for minor reaction, but large number of people potentially affected.

Standard of Care

Reasonable, ordinary, prudent person measured by objective standard. - same physical characteristics/limitations - average mental ability and knowledge - no accounting for low IQ or mental deficiency - emergency conditions considered unless D created Children: same age, education, intelligence and experience unless engaged in a dangerous adult activity in which they are held to adult standard. (minority finds under 6 to be incapable of negligence)

SLT - Actual Cause

Actual causation requires, but for the defect, in existence at the time if left defendant's control, injury to plaintiff would not have occurred. OR Defect was a substantial factor in plaintiff's harm

Products Liability

An action for a defective product can be asserted based on 4 theories: (1) Strict Product Liability in Tort (2) Negligence (3) Breach of implied warranty (4) Breach of express warranty/misrepresentation.

Battery

An intentional act by the defendant that causes harmful or offensive contact to the plaintiff or some extension of the body. Harmful if inflicts pain or offensive if would insult a reasonable person's dignity; physical or mental. Contact can be direct or indirect - Damages are presumed

Trespass to Chattels

An intentional act by the defendant that causes interference or intermeddling with the personal property of the plaintiff. Mistake is no defense - irrelevant if defendant did not intend or recognize legal significance of his act. Intermeddling=causes damage, not affecting possession Actual damages must be shown. Can recover for loss of possession and use. Rental value.

Trespass to Land

An intentional act by the defendant that causes unauthorized entry onto the plaintiff's land by self, a third party, or a physical object. D is liable even if no damages incurred or he believed the entrance was lawful. P's land includes actual land and reasonable airspace above and ground below. Incl. exceed boundaries of consent, asked to leave & remain, or failure to comply with legal duty to remove an object - Damages are presumed.

False Imprisonment

An intentional act by the defendant that unlawfully confines the plaintiff to an identified bounded area with no apparent means of reasonable escape. P must be aware of confinement or if not aware, must suffer actual harm. No duration of confinement required.

Conversion

An intentional act by the defendant, exerting dominion and control over the personal property of the P without consent and thereby causing substantial interference or complete dispossession, often warranting a forced complete sale of the property to the defendant. Mistake is no defense - irrelevant if D did not intend or recognize legal significance of his act. BFP also liable for conversion - No presumed damages.

Assault

An intentional act that causes a person to experience a reasonable apprehension of an immediate harmful or offensive contact. No contact required, but P must be aware of D's act that caused the apprehension. Ability to actually cause harm is irrelevant - Damages are presumed

SLT - Product

Any product in its natural state. Does not apply to services, improper installation, service or use.

Strict Liability in Tort

Anyone in the commercial chain of distribution that introduces into the stream of commerce, an unreasonably dangerous defective product may be strictly liable for damages caused by the defective condition regardless of fault or privity. A SLT claim requires: (1) Strict duty owed by a commercial supplier; (2) Breach of that duty; (3) Causation (actual and proximate); and (4) Damages/Harm

Defenses - Authority

Arrest w/warrant: privilege to act on a duly issued warrant. Felony Arrest w/o warrant: privilege to arrest for felony committed in presence (or about to be) or past felony that has in fact been committed and reasonable grounds to believe person arrested committed it. Citizen is liable for mistake of past felony. Misdemeanor Arrest without warrant: privilege to arrest for misdemeanor ONLY IF involving breach of peace (violent) committed in presence (or about to be). Degree of force reasonably necessary to make the arrest is allowed, but deadly force only allowed to arrest FELON who poses threat of serious harm.

SLT - Breach

Breach occurs where defendant supplies a product with a defect that is unreasonably dangerous when it leaves the defendant's control and reaches the plaintiff without substantial alteration. There are three categories of defects: (1) Manufacturing Defect; (2) Design Defect; and (3) Warning Defect

Breach - Basic Rule

Breach of duty occurs when D fails exercise the appropriate standard of care established by law

SLT - Defenses

CONTRIBUTORY NEGLIGENCE: in SLT, P's negligence is not a valid defense where P merely failed to discover the defect or guard against its existence or where P's misuse was reasonably foreseeable. Supplies are require to anticipate reasonably foreseeable misuses of products. COMPARATIVE NEGLIGENCE: (pure/partial) some jurisdictions allow in SLT. MISUSE: If P uses a product in a manner that is neither intended nor foreseeable, he has misused the product and it cannot be defective. ALTERATION: If P or 3P makes an unforeseeable alteration - no defect. ASSUMPTION OF THE RISK: Prohibits recovery if P recognized and understood the danger and voluntarily chose to encounter it. (P discovers or is warned and voluntarily continues use)

Intentional Tort - Intent

Can be established if the defendant either desires that his act will cause the harmful result, is substantially certain that such a result will occur, or through transferred intent. Transfer between torts, assault, battery, false imprisonment, trespass to land, trespass to chattels or between victims.

Negligence (general definition)

Conduct that falls below the standard established by law for the protection of others against unreasonable risk of harm, wherein the defendant owed a duty, breached the duty, and that breach was the actual and proximate cause of the plaintiff's damages.

Strict Liability - Abnormally dangerous activity defined

Considered abnormally dangerous if (1) creates risk of serious injury to P/land/chattels, (2) risk cannot be eliminated by due care, (3) activity is not usually conducted in that area. Still need causal connection; liability not normally imposed when P is trespasser.

Strict Liability - Possession of Animals

D can be held strictly liable for personal injuries inflicted by his animal if it has "known dangerous propensities". Wild animals are assumed to have "known dangerous propensities". Domestic animals have "known dangerous propensities" if a reasonable owner would realize that the animal presented a danger of death or injury. (one bite rule)

Strict Liability - Trespassing Animals

D is held strictly liable for any trespass to the land or chattels of P by wild animals or livestock possessed by D.

Strict Liability - Abnormally Dangerous Activities

D is held strictly liable for harm caused by abnormally dangerous activities he engages in or is in control of even if he used the utmost care to prevent the injury; provided that the type of injury is the type that makes the abnormally dangerous activity dangerous.

Defenses - Discipline

D is privileged by virtue of position to use necessary, justified and reasonable force for discipline and control. (parent, teacher)

Proximate Cause - Extent of Injury; Thin Skull P

D takes the victim as she finds him. Courts do not require that the extent of injury suffered be foreseeable.

Defenses to intentional torts

DARN COPS (1) Discipline (2) Authority (3) Recapture of property (4) Necessity (public and private) (5) Consent (6) Defense of others (7) Defense of property (8) Self-defense

SLT - Damages/Harm

Damages require some proof of actual harm in the form of personal injury or property damage that is foreseeable, certain, and unavoidable. Cannot recover for pure economic loss; must have physical injury or property damage to recover and then economic loss is derivative. Damage to product itself is not recoverable.

Driver / Passenger

Duty of ordinary care owed to non-paying passenger. Refrain from gross negligence, wanton and willful misconduct.

Conversion - Degree of Interference

Factors (1) extent of damage (2) length of deprivation (3) actor's motive (4) inconvenience and expense to owner in getting property back

Breach of Implied Warranty - Fitness for a particular use

Seller knows or has reason to know that buyer is purchasing goods for a particular purpose and buyer is relying upon seller's skill or judgment to furnish appropriate goods, fit for that particular purpose.

Actual Cause - Concurrent

Separate negligent acts of defendants concur to cause single injury which would not have happened but for the concurrence of the D's acts; both will be held liable.

Wrongful Life

Severely disabled child sues for the fact of life (injury for being born). Majority bars recovery; cannot return P to pre-injury state - never born.

Statutory Negligence / Standard of Care

Statute can provide standard of care and party to whom duty is owed - overrides common law NEGLIGENCE PER SE - A statute may establish the standard of care, violation of which would be a breach if plaintiff can show that: (1) designed to protect from type of harm suffered; (2) plaintiff was in the class protected by the statute; (3) violation was not excused. Not applicable to licensing statutes

Strict liability - Domestic animals that are normally dangerous

Strict liability does not apply to possession of domestic animals as to which dangerous propensities are normal, such as bulls, stallions, mules, rams, and bees.

Damages - Collateral Source Rule

If P is compensated for losses by a source independent of D (insurance, medical, worker's comp) D's liability is not reduced by this amount.

SLT - Learned Intermediary

If a manufacturer provides a warning to a doctor, they can rely on the doctor to pass it on to the patient and if he does not, the doctor is a superseding cause, relieving manufacturer of liability.

SLT - Intermediate Handler

If an intermediate handler discovered the defect and knowingly passes it on (responsibility shifted from D to intermediate handler), the same effective D warned handler of dangers and handler failed to communicate warning to P.

Consent

The P's effective, express or implied consent is defense to all intentional torts. Reasonable interpretation of P's objective conduct; D's reasonable belief. Invalid if obtained by mistake, fraud, duress, legally incapable to consent (minor or mentally incompetent), by statute or when the act is illegal. Implied by law, emergency where P unable to consent and a reasonable person would have consented and no indication that P would have objected.

Intentional Tort - Voluntary act

The act must refer to a volitional movement by defendant. Unconscious and reflexive acts are excluded, but acts by incompetents are considered to be volitional.

General Duty of Care

In general, one who acts affirmatively owes a duty to act as a reasonably prudent person under same or similar circumstances to all foreseeable P in the foreseeable zone of danger.

Damages - Negligence

In order to prevail on a negligence claim, P must prove he suffered cognizable personal injury or property damage. To be recoverable, damages must be reasonably FORESEEABLE, proven w/reasonable CERTAINTY, and UNAVOIDABLE. General & Special allowed Punitive not allowed; some jx allow for reckless Nominal not available; cognizable injury is a required element of negligence Loss of Consortium can be attached

Special Duty - Landlord

LATENT DEFECTS: duty to inspect, warn, repair which ends once tenant has had reasonable opportunity to inspect; if actively concealed, duty ends once tenant discovers condition. REPAIRS: duty to non-negligently make repairs he has undertaken or covenanted to make. COMMON AREAS: exercise reasonable care to make common areas safe (inspect, discover, remedy) and are liable for negligent repairs to such areas. Tenant is responsible to invitees, licensees and trespassers.

Nonfeasance - General Rule

Liability for negligence may be predicated on a volitional act or on a wilful omission to act where there is a legal duty to act. No affirmative duty to act for protection of others except where a duty to act is triggered by: [SCRAP] (1) STATUTORY obligation; (2) CONTRACTUAL obligation; (3) RELATIONSHIP - special; family, common carrier, inn keeper, employer, invitee, Tarasoff-to warn (4) ASSUMPTION (once undertaken, cannot leave victim in worse condition); (5) PERIL created by D.

Negligence Defense - Comparative Fault

Majority Rule - A plaintiff's contribution to his injury will reduce his recovery based on the percentage of fault apportioned to his fault. PURE comparative fault: no limit to proportioning (Majority) MODIFIED comparative fault: if P is as much or more at fault, then P is not entitled to recover.

Actual Cause - Market Share

Manufacturer of a generic product causes P's injury, but P cannot show which of a large group of negligent defendants is responsible. P can sue those who might have caused the harm and each is liable for their market share of P's recovery.

Negligence Defense - Contributory Negligence

Minority Rule - Negligence on the part of the P, no matter how slight, bars recovery. Does not apply to rescuers unless reckless rescue. Defense barred when D recklessly (aware of risk his actions created) injures the P, or has the last clear chance to avoid the injury.

Intentional Infliction of Emotional Distress

The defendant intentionally or recklessly engages in extreme and outrageous conduct that causes the P to suffer severe emotional distress. Extreme and outrageous is conduct that is beyond the bounds of decency that a civilized society will not tolerate and distress is more than a reasonable person can be expected to endure. offensive or insulting language not sufficient unless common carrier, inn keeper, or plaintiffs with known sensitivities. The elderly, children, or pregnant person.

Intentional Tort - Causation

The defendant's act or a force set in motion by that act must cause the plaintiff's injury

Standard of Care - Professional

Must act with the level of skill and knowledge commonly possessed by members of their profession in good standing in the relevant geographic community; evidenced by expert testimony. General Practitioner = Local Community Standard Specialist = National Standard

Wrongful Conception

The parents are suing for the birth of a healthy unwanted child in the medical malpractice setting; Majority bars recovery. Some jurisdictions allow medical expense / pain & suffering for birth related expenses only.

Breach of Implied Warranty - Merchantability

The product is for its ordinary and intended use - may be disclaimed by sufficiently conspicuous writing with use of the word merchantability

Breach of Implied Warranty - Notice and Damages

NOTICE - Plaintiff buyer must notify a seller of the breach of warranty within a reasonable time after buyer discovers or should have discovered it; not applied to users/bystanders DAMAGES - Pure economic losses are recoverable; loss of profits, cost of obtaining replacement equipment

Medical Malpractice - Informed Consent

Negligence for insufficient informed consent: doctors must divulge those risks that are customarily divulged; those that a reasonable patient would want to know in deciding whether to undergo a specific procedure. Failure to disclose a material risk = malpractice if patient can show he would have refused procedure had he been informed of the risk. Battery: gross deviation from consent can result in liability for battery.

Negligence - Products

Negligence requires (1) duty; (2) breach; (3) causation (actual and proximate); and (4) damages/harm. DUTY: D owes a duty of care to all who may be foreseeable injured by manufacturing/supplying a defective product, without any privity requirement. BREACH: Breach of duty occurs when D fails to exercise the appropriate standard of care established by law. -- Question if D was reasonable in designing, marketing or failing to discover dangers; failing to inspect -- It is not unreasonable not to inspect goods from reputable source, but may be if questionable source. -- Products include reconditioned or used products, leased real property, services and franchises -- Think res ipsa loquitor for manufacturer *causation, damages, and defenses all the same as negligence.

Duty to control behavior of 3P

No duty unless special relationship btwn D/3P based on ability of D to exercise control over 3P behavior AND D has actual or constructive knowledge of the need to control the 3P. (guard/prisoner; parent/child) Dram Shop Acts: impose liability on alcohol providers who know/should know persons are intoxicated & then drive Negligent Entrustment: duty owed to any foreseeable P when D gives something to one whom D should know is incapable of handling the object given to them. (gun/car)

Landowner Categories - Privileged entrant

No express or implied permission or invitation, but privileged to enter (police or fire fighter in emergency, census taker, or private person avoiding greater harm) (1) PUBLIC entrant: public purpose has connection with D's activities conducted on premises is given INVITEE status. (2) POLICE or Fire fighter; given LICENSEE status. Firefighter rule. May not recover in negligence on duty. (3) PRIVATE entrant - private person under some legal privilege is LICENSEE.

Strict Liability - Animals & Trespassers

No liability (strict or otherwise) for unknown trespasser for injuries by D's animals while on D's land. Other type of trespasser, D is liable only for negligence if P can establish that D failed to exercise due care to warn or protect. *except vicious watchdogs regarded as mechanical device.

Defenses - Recapture of Property - Chattels

OWNER may use reasonable force to recapture chattel if wrongfully dispossessed of chattel and prompt action is taken (hot pursuit). Owner must first make timely demand for return of property unless futile. Mistake is no excuse.

Proximate Cause

P is required to show that her injuries were a foreseeable consequence of D's conduct and that no unforeseeable intervening acts occurred after D's negligent act, that contributed to the harm, breaking the chain of causation and relieving D of liability. Foreseeable: negligent rescue or medical care, subsequent illness or accident, protection or reaction forces. Unforeseeable: acts of god, 3P, or animal (criminal acts, intentional torts, gross negligence)

Damages - Avoidable consequences

P is under a duty to mitigate damages, and these efforts must be reasonable. D will not be liable for aggravation of injuries due to P's failure to mitigate.

Actual Cause - Alternative liability (Summers v Tice)

Two or more independently acting D's only one of whom can actually be responsible and P is unable to establish which one is in fact responsible; each/all are but for cause and the burden going forward is shifted to the D to prove he was not a cause in fact.

SLT - Unavoidably Unsafe Products

Under comment K, some products are exempt from being found defective in design under SPL because of their extraordinary social utility and no alternatives *vaccines, rx drugs, knives

Defenses - Recapture of Property - Land

Under majority law, there is no privilege. Minority requires a tortious dispossession or a dispossession by fraud, force, or duress and permits reasonable non-deadly force if used promptly upon discovery.

Special Duty - Common Carriers and Inn Keepers

Use the utmost care and diligence to protect customers from harm. *Take affirmative action to act for the protection of their customers.

IIED - bystander case

When defendant intentionally causes severe physical harm to 3rd person and P suffers emotional distress because of relationship to 3rd person, P is required to show: (1) P was present when injury occurred to victim (2) P was close relative of victim; and (3) D knew that the P was present and a close relative need not establish presence or family relationship if can show that D had a design or purpose to cause severe distress to P. (usually required to show mental distress manifested in physical harm)

Breach of Express Warranty

Where the D makes a representation as to the nature or quality of the product beyond the act of distributing the product; can be through a brochure, face to face or through a sample. *Cannot be disclaimed and includes mislabeling

Wrongful Birth

Where the parents sue for the birth of a wanted but severely disabled child where doctor's failure to diagnose disability when there was a chance to terminate the pregnancy. Majority bars recovery; Minority allow to recover special expenses due to disability offset by benefits of having the child.

Actual Cause - Loss of Chance

Where there is a misdiagnosis and a consequence lessened chance of survival; MAJ: no recovery where P still more likely to die than not; MIN: injury is actual cause to a portion of the injury (proportional to loss of chance)

Actual Cause - Substantial Factor

With two or more D's, the conduct of either D ALONE would be substantial enough to cause injury; both will be liable for the results.