Chapter 1 : Development of Liability Based Upon Fault
Trespass – 1) all forcible, direct injuries 2) intended or not 3) required NO proof of any actual damage
-trespass on the case – indirect causation, intended or not
Action – 1) proof of actual damage 2) proof of wrongful intent or wrongful conduct (negligence)
Ex-Post: backward looking : corrective justice : concern for rights
Ex-Ante: law is instrument for future : carrots and sticks : law and economics :
Chapter 4 : Negligence
Negligence –must be foreseeable: plaintiff takes burden of proof toprove defendant is w/o ordinary care (at fault)
Proof of Negligence
Evidentiary Fact: tends to prove ultimate facts [seagull feet]
Real Evidence: fingerprints, video tape
Direct: eye witness
Circumstantial Evidence – things that tend to prove the ultimate fact but isn’t contemporaneous sensory
perception of what happened
Constructive Notice: Evidentiary Facts in ‘Slip-n-Fall’ needed to prove ultimate facts.
Preponderance of Evidenc
a matter of credibility: can decide either way
1. Duty – obligation to certain standard of conduct for protection against unreasonable risks
Foreseeable Plaintiff : Is plaintiff a foreseeable plaintiff who is owed a duty?
Andrews approach: everybody is a foreseeable plaintiff: if a duty to one person is breached, in which also another person is injured, they are also foreseeable plaintiffs
Cardozo approach: (majority)
Was the plaintiff within the ‘foreseeable zone of danger’? [Palsgraf / person swimming in oil in dock]
2. Breach = negligent conduct. Where appropriate standards of care applied?
Standard of Care : What is the applicable standard of care in this incident?
1) [Reasonable Person] : submits everybody to the same hypothetical standard
Standard of a Reasonable Person: : D is N if and only if B
