Technical Questions about the Exam
Will we be told in the jurisdictional rules whether we should use contributory or comparative negligence or what form of comparative negligence?
Should we only focus on using the Second Restatement’s definition for strict liability?
Negligence
How does duty vary from an affirmative duty?
^ In general, the law imposes a legal duty when someone’s actions create a risk of harm. With an affirmative duty, the defendant’s actions did not create the risk of harm. Nonetheless, the law will impose a legal duty on the defendant. In the past, I have found it helpful to think of affirmative duty as being a “duty to intervene.”
How can I define non-negligent injury and non-negligent creation of risk?
^ Non-negligent injury means that the defendant injured the plaintiff but was not negligent. So let’s say I was being very careful flying a kite but a gust of wind came through and my kite nosedived and hit someone in the eye. I am not liable for that initial injury because I was not negligent. But I now have a legal duty to that person whom I injured. I can’t just say, “The law does not impose affirmative duties” and let them suffer. If there is no one else around and I just let them flail about and their injury gets worse because I didn’t get medical assistance, then I will be liable for the aggravation of their injuries — even though I am not liable for the initial injury itself.
^ Non-negligent creation of risk is very similar to non-negligent injury. It means that if the defendant created a risky situation but not due to their own negligence, they have a duty to take reasonable care to reduce that risk. So if your car breaks down on the highway and you pull onto the shoulder of the road, that’s a non-negligent creation of risk. Your car on the side of the road is a risk to other drivers, even if that risk is not the result of you failing to live up to any standard of care. You now have a duty to take reasonable care to reduce that risk, if possible.
How do we differentiate when to analyze using the negligence framework and when to separately analyze duty and breach?
^ Well… this is what make negligence hard. Duty and breach really run into one another.
^ For your attack outline, you want to make sure that first and foremost you’re answering the question of whether the defendant owed a legal duty to the plaintiff. Most of the time this is clear, but you’ll want to check every time, and you’ll want to do a full analysis if the tort system would be imposing an affirmative duty on the plaintiff.
^ Once you’ve established that the defendant owed the plaintiff a legal duty, then the questions of, “What was the scope of that duty?” “What was the standard of care?” and “Did the defendant breach that duty?” all run into one another. I think it’s cleanest and most efficient to address that as one analysis of “duty and breach” in which you use the best methods available to establish what the standard of care was and then apply that to the facts of the case to determine whether the defendant breached.
When we’re analyzing harm for the elements of negligence, do we need to do a full IRAC to prove harm or can we just say there was an injury so harm occurred?
^ Harm is not usually an issue in itself. The question is whether the plaintiff suffered a legally cognizable injury. For negligence and strict liability, personal injury or injury to property suffices. NIED and IIED address emotional injuries. For intentional torts, the harm must be the harm that the tort is there to protect. For battery, that’s harmful or offensive touch. For assault, that’s apprehension of harmful or offensive touch. For false imprisonment, that’s apprehension of confinement or being harmed by that confinement.
Factual Cause
What’s the deal with the but-for test and the substantial factor test?
^ To prove causation, a plaintiff needs to prove factual cause. The test for factual causation in a given jurisdiction is either substantial factor, but-for, or a combination of the two. The tests all result in identical outcomes. There’s no difference. They are different labels for the same inquiry. The only reason we have multiple tests is that they represent different attempts to try to deal with problem of multiple sufficient causes.
^ For determining factual cause, jurisdictional rules tend to dictate using either the but-for test or the substantial factor test or some combination of both. You just follow whatever the rule is in the jurisdiction. It doesn’t matter. They all result in the same thing. The substantial factor test was created to replace the but-for test to deal with the problem of multiple sufficient causes. But the more modern approach is to use the but-for test but say that factual cause is met when there are multiple sufficient causes. There’s no jurisdiction in the country that allows defendants to escape liability if there are multiple sufficient causes. They just get there in different ways.
Can you explain alternative liability and how it differs from defendants acting in concert?
^ Yes. With alternative liability, the court will find that factual cause has been met, even though it’s impossible for the plaintiff to identify which of the defendants was the but-for cause of the plaintiff’s injury. But if a defendant can prove that they are not the factual cause of the injury, then that defendant is off the hook for liability.
^ “alternative liability when they are working in concert?”
^ Alternative liability is different than finding factual cause when defendants are working in concert. When defendants are working in concert as a team, the negligence of each defendant counts as a factual cause. With alternative liability, only one of the defendant’s acts of negligence is the factual cause, the other defendant’s act of negligence is not. The plaintiff just can’t identify which defendant’s actions are the factual cause so the court makes both defendants liable, unless one of the defendants can prove that their negligence was not the factual cause of the plaintiff’s injuries.
In Summers v Tice if they can’t figure out which defendant was liable would you apportion the liability 50/50 between the defendants?
^ In a Summers v. Tice scenario, alternative liability establishes that both defendants are liable. Whatever the jurisdictional rules on contribution are would determine how much each defendant owes. At common law, it would be a 50-50 split. In modern systems, it would be based on each defendant’s comparative responsibility. I imagine that in most Summers v. Tice scenarios that would still be 50-50, but one can imagine a scenario in which a jury determines that one defendant is more responsible than the other.
Should we apply market share liability when facts show that there are several others injured or is one plaintiff sufficient? Should we discuss it with products liability as well?
^ Market share liability is a rare exception for resolving cases in which the plaintiff cannot prove factual cause but there are many plaintiffs who suffered identical harm and many defendants who produced identical products that caused this particular harm. Market share liability can apply in products liability causes of action the same as in negligence causes of action as it is an issue of causation.
For Toxic Harms, do we have to know about Mass Torts and multidistrict litigations, or should we only know the three frequent problems that toxic harm cases raise?
^ This isn’t a civil procedure class, so you won’t be asked about the intricacies of multidistrict litigation, but you should know what multidistrict litigation is, how it differs from class actions, and why class actions don’t work for toxic harm cases.
Proximate Cause
Is intervening cause used in strict/product liability case and in intentional harm cases?
^ Yes, factual cause and proximate cause both need to be proven for strict liability, products liability, and intentional torts.
What am I supposed to understand from Palsgraf exactly?
^ Cardozo’s opinion is that this is a duty issue, not a proximate cause issue. Andrews dissent takes a more modern view on duty, but is also a useful examination of what the proximate really comes down to:
^ “What we do mean by the word ‘proximate’ is, that because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point. This is not logic. It is practical politics.”
Defenses
What is the difference between comparative negligence, comparative fault, and comparative responsibility?
Even if a plaintiff’s actions can’t be an intervening cause for the defendant to escape liability, is there still the possibility they can be found comparatively/contributorily negligent?
^ Yes.
Are comparative and contributory negligence the same or are they different, and are applicable only depending on the jdx that we are in?
^ A jurisdiction has either a contributory negligence regime or a comparative negligence regime (pure, not as great as, or no greater than). With contributory negligence, if the plaintiff is contributorily negligent, then the defendant escapes liability altogether. With comparative negligence, if the plaintiff is comparatively negligent, then the defendant’s liability is reduced. Under a “not as great as” regime, the defendant escapes liability altogether if the plaintiff is 50% or more at fault. Under a “no greater than” regime, the defendant escapes liability altogether if the plaintiff is more than 50% at fault.
Can you explain the key difference between not as great as and no greater than?
^ With “not as great as” if the plaintiff and defendant are equally at fault, the plaintiff gets nothing. With “no greater than” if the plaintiff and defendant are equally at fault, the plaintiff gets 50% of total damages. There are many cases in which a jury will find the plaintiff and defendant each equally at fault.
If we are in a comparative negligence jurisdiction do we even mention assumption of risk, or should we do the analysis within duty and comparative negligence?
^ It depends on if it is a jurisdiction that allows the defense or not. If the defense is allowed, then analyze the defense. If the defense is not allowed, then take up those issues within your duty and comparative negligence (not proximate cause) analysis.
Strict Liability
It seems like we have 4 standards (1) a person who for his own purposes bring onto his land and collects and keeps there anything likely to do mischief if it escapes; 2) same thing but adds non-natural; 3) ultrahazardous activity and 4) abnormally dangerous activity. I am confused if they all work together or which to apply to see if strict liability applies?
^ Each of those four standards is a different standard for when strict liability may apply. Depending on the jurisdiction, they may have settled on one particular standard or they may use multiple standards.
What’s the difference between “ultrahazardous activity” and “abnormally dangerous activity”?
^ In practice, there shouldn’t be much of a difference. The First Restatement uses the term “ultrahazardous activity” while the Second and Third Restatements use the term “abnormally dangerous activity.” Each restatement has its own test for what constitutes this kind of activity. The Second and Third Restatement definitions are what contemporary courts tend to use, although there is variation.
^ For approaching a strict liability question do just explain whether the activity is abnormal/ultrahazardous, causation, and harm. Or should we also discuss why the due care analysis doesn’t apply (Posner’s two-part analysis)
^ It depends on the situation whether you need to bring in Posner’s due care analysis. The key thing to remember is that the holding in American Cyanamid is that the defendant’s activity was not abnormally dangerous because it was susceptible to due care analysis. The idea is that strict liability exists for activity that cannot be handled by negligence. If the activity can be handled by a negligence regime, then it doesn’t count as abnormally dangerous.
How am I supposed to incorporate American Cyanamid’s reasoning that strict liability applies for behavior that is 1) very risky and that risk cannot be avoided at a reasonable cost and 2) not susceptible to due care analysis?
^ I am also confused how those work with the American Cyanamid test which I have. as: SL applies for behavior that is 1) Very risk and that risk cannot be avoided at a reasonable cost (these chemicals must be transported, cannot eliminate risk) and 2) not susceptible to due care analysis.
^ I’ll explain American Cyanamid more in class tomorrow. The basic deal is: if reasonable care was all that was needed to properly reduce the risk, then due care analysis would work to achieve optimal deterrence, and therefore the activity is not abnormally dangerous and negligence should apply, not strict liability.
Products Liability
Is the rule of privity relevant?
^ It’s not good law anymore for products liability.
For reasonable alternative design, I have in my notes that there are two issues that come up in this space. The first one is at what point are we just in a different category of product. What is the second issue?
^ The second issue is when is the danger just inherent to the product itself and not a defect? So, for example, you can’t sue a knife manufacturer because you cut yourself on a sharp knife.
When proving design defect, should we always present a reasonable alternative design? At what point does the design of a product become too complex for the court to apply the consumer-expectation test?
^ With design defect, you also have the consumer expectations test available. When it comes to the test of excessive preventable danger (or risk-utility test, as it is sometimes called), you are welcome to use different factors to consider whether the product was designed defectively, but I don’t think that there’s a way to evaluate those factors unless you’re comparing the product as designed against a reasonable alternative design.
^ There’s no clear rule here. Best we can say is that the consumer expectations test is less certain to apply the more complicated a product gets and the less likely it is that consumers even have expectations about the safety of the feature in question.
What do you mean that warnings cannot overcome design defects?
^ In most jurisdictions, if a safer design can be implemented, then adoption of the safer design is required and the defendant cannot escape liability because they warned of the danger of their unsafely designed product.
Can you explain the heeding presumption and how that plays a part in warnings?
^ The heeding presumption is a presumption that if the manufacturer given an adequate warning, then the plaintiff would have heeded that warning. If the manufacturer wants to escape liability by arguing that the plaintiff wouldn’t have paid attention to an adequate warning, then the burden is on the manufacturer to produce evidence to overcome the presumption that plaintiff would have paid attention to the warning.
Can you explain comparative responsibility and the difference between the two restatements with products liability?
^ Under the 2nd restatement, a plaintiff can never be found negligent for failing to discover a defect. Under the 3rd restatement, a plaintiff generally cannot be found negligent for failing to discover a defect.
Intentional Torts
Are causation and harm built into the elements we have for intentional torts? Or is that something we have to address separately?
^ Causation and harm are part of each intentional tort. They’re just not often a contested issue in litigation. A plaintiff still needs to establish causation and harm, but that’s rarely an issue. Unless a fact pattern makes it an issue, you don’t need to do a full analysis.
For battery, does a physical touch necessarily mean that the defendant themselves physically touched the defendent?
^ Yes. If you hit me with a baseball bat, that’s a battery. If you throw a ball and hit me, that’s a battery. If you throw a ball that hits a bat that knocks over a set of dominoes that topples a bowling ball that slides down a slide that hits a weight that spins some gears that turn a mechanism that triggers a pulley to flip a switch to swing a mechanical arm that knocks off my hat, that’s a battery. In the note case, the court found that the defendant’s actions constituted a battery because the light rays emanating from the computer and hitting the plaintiff’s eyes constituted a touch.
Can there be an assault if it was an attempted battery but the plaintiff was not put into reasonable fear or apprehension?
^ Assault requires that the plaintiff actually apprehend the imminent harmful or offensive touch. No apprehension means no assault.
When a defendant says something conditional, can it still be assault?
^ If a defendant makes a conditional threat, it can create a question of whether the harmful/offensive touch is imminent. Some conditions would mean that there is not assault because the harmful/offensive touch is not imminent, e.g., “Come back around here again and I’ll punch your lights out!” but sometimes the condition is so immediate that the threat is still imminent, like if the defendant makes a demand, e.g., “Give me your money or I’ll knock your teeth out.”
For intent for false imprisonment: does the intent need to be intent to confine or intent to confine by threat, assertion of legal authority or barriers?
^ Intent to confine
Is the first amendment a defense to IIED claims?
^ You can think of it as a defense. If you want to be precise, the defense would be that federal constitutional law preempts the plaintiff’s tort claim. We didn’t talk about preemption in this course, so I’m not going to be a stickler for terminology here.
Damages
When there is an exacerbation of a previous injury, do we find the defendant who exacerbated the injury liable for the initial harm of the accident and then responsible for the unforeseen magnitude of the harm through the eggshell plaintiff rule?
^ Defendants are only liable when they are the factual cause of an injury. So if a defendant aggravated an injury but was not responsible for the initial injury, then they are only liable for the aggravation. The exception to this rule is when the court and jury can’t cleanly separate out which harms came from the initial injury and which harms came from the aggravation. In those circumstances, a defendant who is only responsible for the aggravation will be liable for the whole injury unless the defendant can prove that they are not the factual cause of particular harms that the plaintiff has suffered.
How is the unpaid portion from an insolvent defendant divided among the other defendants in a modern joint-and-several liability jurisdiction?
^ The typical rule is that it is divided up based on comparative responsibility.
What are the differences between alternative liability, joint & several liability, and several liability?
^ Alternative liability is a different inquiry than joint-and-several liability and several liability.
^ Alternative liability resolves a question of factual cause.
^ Joint-and-several liability and several liability are jurisdictional rules about how to apportion damages when one defendant is insolvent or absent. You will know which applies because of the rule in the jurisdiction.
Some unsolicited advice…
Befriend anxiety
Care for each other
Kick some ass
^ You can’t help but be anxious right now. There’s no way to not be anxious. But you can’t let anxiety drive the car. It can scream in the backseat and blast terrible music on the radio and try to make you miserable. That’s fine. Just don’t let that anxiety tell you what to do. So if there’s something from someone else’s outline that you’d like to include because it helps you understand the material, great, bring it on into your outline. But don’t bring something into your outline because you’re anxious about not having it. The antidote to anxiety is curiosity. Perhaps the best thing to do is be curious about what the restatement passages are doing — if anything at all — for your classmates and find out.
^ This advice is also very applicable to the exam. You will do well if you approach the questions with a sense of curiosity and discovery. Curiosity opens up your mind to possibilities. Anxiety shuts down and grabs onto “safe” answers and approaches. This exam rewards curious thinkers who mull over problems and are comfortable with not knowing how a difficult problem should be solved. The exam does not reward anxious thinkers who too quickly grab onto the closest available answers.
^ Befriend your classmates. It’s easy to lose sight of things in your 1L year. The foundation of a good life and a good career is good relationships. Yes, your grades can matter for all kinds of career opportunities. But careers are made by relationships, not transcripts. I’ve shared with you at different times over the year how I am still in two different group chats with classmates I took this torts class with ten years ago. They’ve made all the difference in my professional life.
^ Relationship are what make life worth living. Please do not look to your grades or your career success to fill that empty part of you. Work will not love you back. This profession in particular will take advantage of that weakness and take you for everything you’ve got. The longest study on human happiness has come to the unequivocal determination that the quality of our relationships determines the quality of our happiness. We’re all going to die. And at our funerals, no one’s going to grieve our law school transcripts. They’re going to grieve what we meant to them, the light we brought into their days, the way that we cared for them, imperfections and all.
^ And when it comes to relationships, we now have a relationship. Mom’s fridge. I am invested in your future. I can’t wait to hear about everything you accomplish. And when you fall or fail short, I hope you know I’m eager to be there too.
^ So, go kick some ass. Go run circles around Cardozo and his ideas of duty. Go teach Traynor what a policy argument really is. Show Posner what law and economics is really all about. Tackle the hard stuff from this class. Get angry with who the law doesn’t protect and why. Hone your arguments. Master the craft. Don’t hold back. Do your best. But get some sleep. Have some fun with friends. And when the exam is over, let it go.
^ Lean back, and look around. This moment is here and now it’s gone. Every one of your precious, infinitely beloved, and irreplaceable personal accomplishments will one day dissolve like a sand castle, grain by grain—and what a relief that is to know. And that’s all right. It’s going to be all right. It already is.
^ Thank you so much. It has been an absolute privilege.
