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Posted: Wed Dec 21, 2011 5:36 pm
Negligence. If I fall asleep in the backseat of a car, then jerk in my sleep and kick the driver in the head causing him to wreck. On an exam should I analyze foreseeablity under duty or proximate cause or both?
Posted: Wed Dec 21, 2011 5:38 pm
Duty if policy. Proximate cause if requires development of specific facts. Under both restatements...the Third suggests duty to all but if you read the comment it specifically recognizes limitations of duty due to policy reasons...however it cautions they should be well articulated and not necessarily labeled foreseeability.
Posted: Wed Dec 21, 2011 5:45 pm
Posted: Wed Dec 21, 2011 7:54 pm
Honestly, just about everything in negligence is foreseeability couched in a different term. For duty, foreseeability is a straight up policy factor. For breach under the hand formula, you gotta determine the "probability of harm"--this is basically foreseeability. Proximate cause is essentially a foreseeability analysis (couched in terms of "likelihood" of harm, and intervening causes).
A lot of the time you'll be reanalyzing the same facts and rehashing the same arguments at each stage of the negligence analysis. This freaked me out at first because I thought I was surely misapplying the facts to the theory. But it's totally normal.
Posted: Thu Dec 22, 2011 1:43 pm
Given a standard issue spotter, I'd always argue duty.
That is to say, both.