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I GOT AN A+ USING THIS SCRIPT, Study notes of Law of Torts

if you are taking Torts at Hofstra Law, this document will save your life.

Typology: Study notes

2019/2020

Available from 08/23/2021

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Memo: Mid-Term Answers and Final Exam Review
Please review the following comments about errors typically made on the exam and how to
avoid them on the Final.
The most serious errors made resulted from “misdiagnosing” the questions. That is, you do not
properly identify what the question was aiming at, what was the issue/rule it was asking you to
address. So, you get few or no points on that question. In class I spoke about identifying the
“flags in the facts” – the indicators in the fact pattern that suggested what rule/issue was involved
in the question.
However, you may have difficulty recognizing those “flags” or indicators. As a result, you “miss
the issue” and get no points for your answer on that question. So what could help you do better
with that? One thing that can help is to use an “outline” of issues – outlining the elements of the
Plaintiff’s case that we’ve studied – to spot the issues embedded in exam questions. To do that,
you need to make an outline and review that outline in advance with an upcoming exam in mind,
and ask yourself, for every element listed on the outline: What kinds of exam facts would give
rise to this issue or rule? What kinds of facts should I be “on the lookout” for?
Some examples:
The outline lists “Negligence per Se”. If the exam facts refer to a statute, they give rise to this
issue.
The outline lists “Res Ipsa”. If the exam facts describe a malfunctioning machine, but with no
explanation for the malfunction, they give rise to this issue.
The outline lists “Cause in Fact—Special Rules”. If the exam facts describe a situation with
multiple possible causes, they could give rise to this issue.
These are just examples, but make an outline of issues studied thus far, and ask yourself (or your
study partner), for each item listed there: What kinds of exam facts would give rise to this
issue/rule? If you do this, then you’ll be much better prepared to recognize those facts when you
see them in a question. Then you won’t miss the issue and lose all the points on that question.
In sum, use the outline of elements/rules both to review and see if you understand the rules
(including their elements/conditions), and also to sensitize yourself to the patterns of facts that
call for you to use each rule in your answer. This will help you not to “miss issues” on the exam.
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Memo: Mid-Term Answers and Final Exam Review Please review the following comments about errors typically made on the exam and how to avoid them on the Final. The most serious errors made resulted from “misdiagnosing” the questions. That is, you do not properly identify what the question was aiming at, what was the issue/rule it was asking you to address. So, you get few or no points on that question. In class I spoke about identifying the “flags in the facts” – the indicators in the fact pattern that suggested what rule/issue was involved in the question. However, you may have difficulty recognizing those “flags” or indicators. As a result, you “miss the issue” and get no points for your answer on that question. So what could help you do better with that? One thing that can help is to use an “outline” of issues – outlining the elements of the Plaintiff’s case that we’ve studied – to spot the issues embedded in exam questions. To do that, you need to make an outline and review that outline in advance with an upcoming exam in mind, and ask yourself, for every element listed on the outline: What kinds of exam facts would give rise to this issue or rule? What kinds of facts should I be “on the lookout” for? Some examples: The outline lists “Negligence per Se”. If the exam facts refer to a statute, they give rise to this issue. The outline lists “Res Ipsa”. If the exam facts describe a malfunctioning machine, but with no explanation for the malfunction, they give rise to this issue. The outline lists “Cause in Fact—Special Rules”. If the exam facts describe a situation with multiple possible causes, they could give rise to this issue. These are just examples, but make an outline of issues studied thus far, and ask yourself (or your study partner), for each item listed there: What kinds of exam facts would give rise to this issue/rule? If you do this, then you’ll be much better prepared to recognize those facts when you see them in a question. Then you won’t miss the issue and lose all the points on that question. In sum, use the outline of elements/rules both to review and see if you understand the rules (including their elements/conditions), and also to sensitize yourself to the patterns of facts that call for you to use each rule in your answer. This will help you not to “miss issues” on the exam.

WHAT KIND OF FACTS WOULD RAISE THE BELOW: MAKE NOTES NEXT TO EACH

QUESTION WHAT THE ISSUE IS AND WHAT THE RULE IS!!!!!!!!!!!!!!!!!!!!!!!!!

Negligence

Reasonableness what did he do and what would a reasonable person do? (objective std): use evidence of custom for R/AV – reasonable ppl think this is a risk if ur not using custom, also cant be too expensive if its custom (although not dispositive, unless medical) exception to objective std of reasonableness: child, unless involved in adult activity , physical condition (both lowers std) and expert in the field/special skill or training (higher std) , and under the circumstances exception = emergency situation RPS: RISK AVOIDANCE (R > C/AV) < RPS -issue = negligence -rule = R/AV (hand formula) -facts/flags = youth std? physical impairment? Special skill? Otherwise, RPS 1 ) i.d. the did/shda – try to find C/F (“but for” candidate = DID , NO SAFETY MEASURE/lack of doing X) and all untaken precautions ( SHDA = SAFETY MEASURES/doing X,Y,Z tht would hv avoided THE BUT FOR )

  1. imagine all of the accidents/events (what could go wrong from ur did????? / all of the risks of ur bad conduct/ ALL OF THE ACCIDENTS THT CAN ARISE FROM UR DID = ALL RISKS OF NO SAFETY MEASURE) -P: probability high or low for each accident -L: foreseeable # victims and seriousness of injury, given accident
  2. i.d. cost/burden of the shda’s that pass C/F test (why is the untaken precautions/ SAFETY MEASURES THAT WOULD HAVE AVOIDED “DID” : indirect and direct costs high/low) NPS: violation of statute -issue = negligence -rule = NPS -facts/flags = a statute
    1. conduct covered? , 2) safety purpose? , 3) target type of accident? , 4) victim in protected class? = if all 4 yes, and no excuse (emergency circ beyond D’s control – violation = NPS)
  • how to prove????? statutory construction for the above 4: statutory language itself (everything written was intentional and everything omitted was intentional), legislative history, public record and actual effect/impact -if P loses negligence per se, can argue RPS RIL: no proof/evidence of any bad conduct, but accident “speaks for itself” that someone was negligent

evidence (“more than speculation”/conditions) or dependent on statistical (epidemiological evidence)

  • how to prove??? Generally: if > 50% likely (more likely than not C/F, then prep. Satisfied and) 100% recovery A) If fair amt of evidence that a reasonable juror could disagreejury B) if multiple possible causes: eliminate all but one - BEST (Zuch) // common sense stats (neg act is wrong b/c increases chances partic type of accident occurs and mishap of that very sort did happen, enough for jury to find neg behavior caused harm – Reynolds test) C) generally, if stat evidence has some direct evidence, OK. If stats alone, sometimes ok, other times not Special Rules Lost Chance (RPP: recovery proportional to stat. proven prob of C/F)
  • issue = causation -rule = L/C / RPP: UNUSUAL. flags/facts = multiple possible causes , success rate/stat evidence <50% (if >50%, preponderance rule), MEDICAL NEGLIGENCE, and liability is not actual harm, but lost chance of recovery -how to prove??? Just need to prove stat likelihood, not prep, and u will get ur proportion in recovery (via “common sense stats”) Alternative Liability (Summers v. Tice) -issue = causation -rule = alternative liability / Summers -flags/facts = multiple actual causes (cause of injury is certain), cant I.D. specific cause within group or source and IMPOSSIBLE TO DO SO & not a large group/source of known injury, all must be able to be sued)
  • how to prove??? Conditions: 1) >1 poss C/F, must be 1, imposs to I.D. which one. 2) not large

poss C/F’s 3) all poss C/F’s negligent 4) P innocent 5) all poss C/F’s must be sued/ present in

court effects: JSL – 100% together / “prove conditions and causation is inferred”  switches burden of proof from P to D to encourage D to come forth with evidence/absolve themselves of liability/injury seen as indivisible Concert of Action -issue = causation -rule = concert of action

  • flags/facts = multiple actual causes, more than one person, activity as a whole caused injury, but don’t know particular person in that group (group causation – if one backs out, doesn’t work/drag racing/Orser) -how to prove??? Conditions: 1) >1 poss C/F, 2) engaged in joint activity and 3) mutual encouragement, tacit or explicit /// effects: JSL. DON’T NEED TO PROVE NEGLIGENCE OF INDIV BEHAVIOR, JUST PARTICIPATION IN GROUP NEGLIGENCE
  • effects: JSL (whole group is C/F / special case of “ industry-wide liability”: injury is indivisible/adhere to industry-wide standard but independently act ) Market Share: Hymowitz/Sindell -issue = causation -rule = market share -flags/facts = multiple actual causes , many people in group of certain source of injury, but no concert of action (no common activity, same bad conduct but parallel conduct) -how to prove??? Conditions: 1) >1 poss C/F, must be 1, impossible to I.D. which (“fungible product”), 2) large # ok, 3) all possible C/F’s neg 4) P innocent 5) P sues producers of a “substantial share” of total market of sales of products (via stat. evidence of market share) -effects: RPP/liability prop to market share/SEVERAL, not joint, liability, where proof of liability measured by market share , don’t need to sue all or hold all 100% liable (proof of injury is divisible) [culpability measured by overall risk produced, not overall causation (Hymowitz) – opposite of strict liability (negligence, no C/F)] Types of liability
    • Joint : 2 negligent defendant injuries combine
    • Several: each def is liable only for its “share” of harm (market share)
    • Joint and several: both defendants liable and P can choose to sue together or separately and recover from either one (alternative liability / concert of action) NOTHING ABOUT PROX. CAUSE or below Duty Damages