Bar Review




  1. Duty
  2. Breach
  3. Causation
  4. Damage


Duty is your obligation to reduce your risk to other people.


You owe your duty to your foreseeable victims and not to unforeseeable victims.
People are unforeseeable outside the zone of danger.
People far away are probably unforeseeable.
An exception is rescuers, who are foreseeable victims, even if they started far away. "Danger invites rescue."

Reasonably Prudent Person Standard

Your duty owed is the degree precaution that would have been exercised by a hypothetical reasonably prudent person acting under similar circumstances.
The standard is the same for every person. It doesn't matter if the defendant is stupid, clumsy, or a novice.
However, if the defendant has increased skill or knowledge in an area, he will be held to the standard of a reasonably prudent person with that skill or knowledge. A race car driver driving to work will be held to the standard of a reasonably prudent race car driver. Someone who knows of a dangerous situation should act reasonably in accordance with that knowledge.
A defendant's physical characteristics are taken into consideration. A blind person should act like a reasonably prudent blind person.

Special standards of care

  1. Children under the age of 5 have no standard of care
  2. Older children are expected to behave as a child of similar age, experience, and intelligence under similar circumstances. (Subjective, the opposite of adults)
    However, if they were participating in adult activities (Read: operating a motorized vehicle), use the reasonably prudent person standard.
  3. Professionals owe the care of an average (not reasonable) member of the same profession providing similar professional services. They must conform to their professional custom.
    This will require and expert witness, typically allowed to be from anywhere.
  4. Premises Liability

    1. Unknown trespasser is owed no duty of care and always loses.
    2. Known and anticipated trespassers are owed a duty only to protect against hazards that are all:
      1. Artificial
      2. Highly dangerous
      3. Concealed
      4. Known to the possessor
      • (No man-made death traps)
    3. Licensees (social guests, solicitors, etc.) are owed to duty to protect against hazards concealed to them and known to you.
    4. Invitees (people entering to confer economic benefit or entering a place open to the public) are owed a duty to protect against hazards concealed that are known or could be discovered by a reasonable inspection.

      Firefighters and police are never able to recover for injuries expected as an inherent risk of the job.
      A property owner must exercise reasonable prudence to trespassing children with regard to trespassing children. (Something dangerous that pulls children in, an attractive nuisance)

      The easiest way to satisfy the duty is to put up a warning sign to convert a hidden danger to an open danger.
  5. Statutory standards of care apply if the statute is designed to protect the class of people the plaintiff is a member of and to prevent the class of injury that occurred in this case. (Negligence per se)

    • If compliance would have been more dangerous than violating the statute, negligence per se will not apply.
    • If compliance was impossible, negligence per se will not apply.

There are no duties to act affirmatively. You never have to take an action, but if you do take a course of conduct, you have to act reasonably. This means there is no duty to rescue.

  • Except if there is a pre-existing legal relationship. E.g., a hotel owes its customers a duty.
  • If you caused the danger, you owe a duty to act reasonably under the circumstances.
  • If you opt to rescue and perform it carelessly, you are liable absent a Good Samaritan law.

Negligent Infliction of Emotional Distress

NIED requires the defendant to act negligently.

There are two ways to establish NIED:

  1. Nearly miss injuring the plaintiff, such that he was in the zone of physical danger, but still suffer physical manifestations of emotional distress.
  2. Cause serious injury or death to someone else that the plaintiff witnessed as a bystander
    • The plaintiff must be a close family member (parent, child, or spouse) to the person injured or killed.
    • The plaintiff must be close in time and space, seeing it in real-time.
  3. Careless performance of a business relationship between the defendant and the plaintiff that is highly likely to cause emotional distress
    • Doctor incorrectly says you have cancer
    • Funeral home messes up with relative's corpse


Breach can be because of doing something stupid or not doing something you should have, but you have to explain why that is a breach.

Res Ipsa Loquitur

Applies if shown that:

  1. The injury is the type normally caused by negligence.
  2. An accident of this type is normally due to negligence of someone in the defendant's position.


Factual Causation

Uses the but-for test

Merged Causation

Uses the substantial factor test, which isn't super clear, but if it could have caused the injury alone it's definitely a substantial factor

If the cause is unknown but multiple defendants were negligent and could have caused it, they are jointly liable unless they can prove they didn't do it.

Proximate Causation

Think of proximate cause as fairness.
Typically self-evident, so only relevant in weird cases

Judged by whether the result was foreseeable.

Four main fact patterns where the resulting harm is foreseeable:

  1. Intervening medical malpractice
  2. Intervening negligent rescue
  3. Intervening protection or reaction
  4. Subsequent disease or accident

(If you injure people and it gets worse or hurts others by malpractice, someone trying to help, people panicking, or the victim hurting himself because of his injuries, you're liable for all those results.)