To not cause

Negligence reasonably
Andrews: To the world (minority)

Analysis foreseeable Cardozo: to foreseeable Ps

physical harm to...
Sensitive Relationships with
heightened foreseeability (ex. funeral
homes--families, doctor--patient)
To not cause
DUTY STRICTLY emotional 3rd parties who are...
harm to... 1. Near scene (not necessarily "zone of
danger")
2. Directly observed physical injury Rowland Policy Factors:
3. Close relation to victim 1. Foreseeability of harm to P
2. Degree of certainty that P
Begin to rescue suffered injury
3. Close connection between D's
Owners:
conduct and P's injury
Affirmative Duties 1. Invitee (business relationship)
4. Moral blame of D's conduct
(for inaction only) 2. Licensee (social guest)
5. Policy of preventing future harm
3. Trespasser
6. Extent of Burden to D (B<PL)
Special Relationships: 7. Consequences to community of
1. Medical Professional (Professional imposing duty
Standard of Care) 8. Availability/cost/prevalence of
2. Landlord-Tenant insurance for risk
3. Therapist/Psychologist
Factors:
"Reasonable
1. Intelligence (low, no; high,
Person" Test
only if present self as skilled)
(Ordinary Standard
2. Age (young, yes; old, no)
of Care)
3. Insanity (no, majority; no unless
Foreseeable Risk makes lose control of assessment/body
BREACH AND no advance notice, minority)
B<PL: probability 4. Wealth (no)
and gravity of harm Evidence but not dispositive
1. X has duty
outweighs burden
2. Duty = Y General, Internal, Medical
3. X didn't do Y Sword: Don't follow custom?
Custom Evidence of negligence (stronger)
4. X breached duty
Negligence Per Se IF type of Shield: Follow custom?
Violation of Statute Evidence of non-negligence
accident and type of person designed to
or Regulation
protect (purpose analysis)

Exceptions:
Cause-in-fact 1. Market Share Liability
(factual cause): "But For" Test: (fungible products)
did the action But for D's negligence, P would not be 2. Multiple Causation (Joint & Several
actually cause the hurt (necessary factor) Liability, caused uncertainty)
injury? 3. Probabilistic "Lost Chance"
Doctrine
Two approaches:
1. Prospective (general danger was "Substantial Factor" Analysis:
CAUSATION foreseeable, probable) (cause is a reasonable person says "cause"
foreseeable risk realized)
"Reasonable Foreseeability"
Proximate cause Analysis: limits liability (lens game)
(legal cause): 2. Retrospective (work backwards
from injury looking for an act that broke
enough of a
the chain of events) Intervening: reasonably expected
"natural, usual,
necessary" cause to Superceding: unexpected
find liablility? Policy considerations:
1. Unlimited liability would destroy Nature of I/S Act:
civilization 1. Criminal, 2. Negligent, 3. Reasonable
2. Insurance available? (Rescue), 4. Intentional
3. Avoid "ruinous liability" when
damages are that great Perpetrator of I/S Act:
Plaintiff or Third Party?

"Take your victim as you find

Physical to person them"/Eggshell skull: liable for full
or property extent of injuries caused

Increased future Medical monitoring for PI only

INJURY
risk of PI (minority view), usually No

Emotional IF duty
established