1. Immunities
  2. Interspousal
  3. Rule—partial abrogation, limiting liability to only special circumstances
  4. Argument—Preserve the institution of marriage but allow suits for special circumstances.
  5. Application
  6. Parent-Child
  7. Rule—General Abrogation thus the reasonable parent standard.
  8. Argument—Social policy encourages a high standard of care for parents when dealing with their children, thus allowing children to bring an action for failing to meet that standard.
  9. Application
  10. Governmental
  11. Rule—PA approach is general abrogation
  12. Argument—Fairness—injured parties should be able to recover from any defendant, even if it is the government.
  13. Res Ipsa Loquitor
  14. Inapplicable because it is only proper when no defendants cannot be identified, but negligence exists. Here, there are definite defendants and therefore this alternative pleading is inadequate.
  15. Negligence per se (only if applicable to the First cause of action, if not apply elsewhere).
  16. Duty is the statute.
  17. Breach is a violation thereof.
  18. Rule—class of persons protected by the statute
  19. Class of harm prevented by the statute.
  20. Discuss purpose of statute
  21. Discuss protected classes
  22. Discuss prevented harm
  23. If silent, Institutional competence argument
  24. Effect of breach
  25. Rule—Rebuttable Presumption of Negligence.
  26. Burden rests on the violating party
  27. Strong, unequivocal, and credible evidence that:
  28. Violations are common practices
  29. Violation is common knowledge
  30. Violation was reasonable
  31. Argument—Evidence of negligence is too unpredictable. Negligence as a matter of law is too strict. Rebuttable is proper because INSTITUTIONAL COMPETENCE.

OR

  1. Foreseeable 
  2. Zone of apprehension
  3. Time, space, intervening events considered.
  4. Argument if needed (Social Policy probably works)
  5. Application
  6. Trespasser—no permission
  7. Licensee—social guest furthering their own purpose
  8. Invitee—invited to further owner’s purpose
  9. Foreseeable Risk
  10. Reasonably Prudent person under like circumstances OR
  11. Situations
  12. Emergencies Standard
  13. Rule—not of one’s own making, patent danger, and moment to extricate one’s self.
  14. Argument: Reasonable expectations
  15. Application
  16. Age
  17. Rule—child with similar ATIME
  18. Argument—Social policy encourages childlike behavior.
  19. Application

OR

  1. Rule—adult standard because inherently dangerous activity, such as operating a motorized vehicle
  2. Argument—Social policy encourages safety regardless of age.
  3. Application

OR

  1. Adult standard because activity normally carried on by adults.
  2. Argument—Reasonable to expect that children normally do not engage in this activity, when they do, their standard of care should be heightened.
  3. Application
  1. Physical Disability
  2. Rule—Reasonably Prudent person because disability did not effect the circumstances
  3. Argument—Reasonable to expect a lower standard only when the disability infringes upon the ability to avoid injury.

OR

  1. Reasonably prudent person with similar disability because the disability infringed on the injury
  2. Argument—Reasonable to expect a lower standard of care when the disability infringes upon the ability to avoid injury.
  3. APplication
  1. Mental Disability
  2. Rule—Reasonably prudent person because the  is permanently disabled, and the law recognizes this standard to apply to these persons.
  3. Argument—Social Policy encourages safe supervision of permanently disable individuals.
  4. Application

OR

  1. Rule—lower standard of care for persons with temporary mental incapacity when it effects the ability to understand the duty or ability to control conduct AND arises without notice or forewarning.
  2. Argument—No liability without fault.
  3. Application
  1. Professionals
  2. Rule—Reasonably prudent professional with comparable learning skill and ability as all similarly situated in the profession
  3. Argument—Reasonably expect a higher standard for professionals because require longer education and training to acquire professional status.
  4. Application

OR

  1. Rule—Heightened standard for lawyers having requisite knowledge, exercising best judgment and due care. Not a mere error in judgment but a lack of discretion or abuse of discretion.
  2. Argument— No liability without fault. Fault = lack of discretion or abuse thereof, not simply a mistake.
  3. Application

OR

  1. Rule—Heightened national standard because local and similar rule bread substandard health care.
  2. Argument—Social policy encourages the highest possible provision of adequate health care because health, safety and welfare may be at stake.
  1. Unreasonable according to the ’s burden of adequate precaution weighed against the probability of injury and the injury itself.
  2. Burden
  3. Rule—Actual, constructive, or reasonable inspection.
  4. Argument for whichever is chosen

OR

  1. Rule—If trespasser, duty arises at moment of actual discovery and must reasonably avoid injury.
  2. Argument—Court should not encourage trespassing. Liability will encourage trespassing.
  3. Rule—If licensee, duty to warn if hidden danger, unknown to  and actually known to the .
  4. Argument—If a  enters the ’s zone of danger to further his own purpose, the burden of adequate precaution should be lowered for fear of making owners the insurers of uninvited guests.
  5. Rule—If invitee, duty to warn, and if the warning is insufficient under the circumstances, must act reasonably to prevent the injury.
  6. Argument—Reasonable to expect that warnings are sufficient under the circumstances and if not that the owner will do all that is required to prevent injury, especially when the owner’s purposes are furthered by the invitee.
  7. Rule—Steps  should have taken to reduce the risk under these circumstances are...(DISCUSS and determine reasonableness or otherwise).
  1. Probability
  2.  argues that Likelihood of damage of appreciable weight and moment controls.
  3. Weight = severity of injury
  4. Moment = time to avoid injury
  5. Application
  6.  argues that the circumstances were unusual, extraordinary, and unlikely because no past incidents of this kind.
  7. Application
  8. Injury
  9. State the injury and its severity
  10. Conclusion
  11.  isolates the burden if high
  12.  focuses on probability and injury
  13. If even, conclude with:
  14. Liability for acts done.
  1.  was a cause in fact of the injury.
  2. But for test does not apply because...
  3. Substantial factor applies
  4. Rule—known and unknown = mingling, combination to produce something greater, or swept over
  5. Rule—2 known = combination of both to produce one injury
  6. Rule—Med mal = increased risk and contributed significantly by failure to diagnose
  7. Rule—Acting in concert = 2 defendants and one cause and implicit agreement
  8. Argument—Reasonable expectation—implicit agreement means agreeing to act negligently and agreeing to be responsible for each others actions.
  9. Greatly Multiplies the risk and Naturally leads to the occurrence
  1.  was the proximate cause of the injury
  2. Rule—negl. risk creating conduct leads to foreseeable consequences = proximate cause of the injury.
  3. Consequences W/I scope of risk created by 
  4. Naturally and ordinarily leads to the consequence
  5. Not necessarily the exact injury or sequence of events under the “eggshell thin skull” theory
  6. Argument—Reasonable expectations—this consequence is reasonably expected from this negligent behavior because...
  7. Application
  8. Rule—Intervening Cause
  9. will not break the chain of liability if the consequence still would occur
  10. Argument—No liability without fault, fault defined as the ability to avoid injury. Intervening parties may not be able to foresee the consequences caused by another’s negligence and should not break the chain of liability if the consequences would naturally occur anyway.
  11. Rule—Superceding Cause
  12. Will break the chain of liability if independent act creates an entirely new risk under the circumstances and the injuries are so different that would ordinarily result from the original negligence
  13. Argument—courts should not hold the  liable for consequences unforeseeable under the circumstances.
  14. Application
  15. Rule—Independent Criminal Act
  16. Breaks the chain of liability only if the criminal conduct is unforeseeable in light of the risk created by the .
  17. Argument—No liability without fault
  18. Application
  19. Damages
  20. List appropriate damages
  1. Defenses
  2. If statute applies, negligence per se
  3. ’s standard of care
  4. Carrol Towing
  5. Causation
  6. Factual, no “but for” use greatly multiplies
  7. Proximate--’s conduct intervening or superceding
  8. Effect
  9. Rule—Contributory OR
  10. Rule—Comparative
  11. PA modified comparative 50/50 Rule
  12. Modified 51/49 Rule
  13. Assumption of Risk
  14. Actual knowledge, voluntarily encountered, appreciation of risk

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