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Torts Flashcards Total!


undefined, object
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1) Act; 2) Intent—[Desire or knowledge with substantial certainty (KWSC)]; 3) Contact [Harmful or offensive & directly or indirectly].
Transferred intent applies to
All the five old trespass torts (battery, assault, false imprisonment, trespass to land, trespass to chattels) and not IIED or conversion.
1)Act; 2)Intent [to hcause harmful or offensive contact or imminent apprehension of such contact]; 3)And the other is thereby put in such imminent apprehension.
False Imprisonment
1)Act; 2)Intent [to confine P or third party within (not without) bounds set by actor]; 3)Confinement [results in confinement]; 4)Consciousness of confinement [P must be conscious of confinement, or harmed by it--in some jurisdictions]
Intentional Infliction of Emotional Distress
1)By Extreme or Outrageous conduct; 2)Intentionally or Recklessly; 3)Causes severe emotional distress; Note: Inkeepers and common carriers have a broader liability.
Bystander infliction of emotional distress
1) Extreme or outrageous conduct; 2)Directed against a third party who suffers bodily harm or is a present family member who suffers severe emotional distress; 3)Intentionally or recklessly
Trespass to land
1)Intentionally; 2)enters or fails a duty to remove a thing from the land or causes a thing or third person to enter; 3)upon land in the possession of another;
Trespass to Chattels
1)Intentionally; 2)using or intermeddling; 3)with the chattel in possession of another; and 4)The chattel is impaired as to the condition, possessor is deprived of its sue for a substantial period of time or bodily harm is caused to some person or thing in which possessor has a legally protected right.
1)Intentional exercise; 2)to diminish or control a chattel; 3)which so seriously interfers with the right of another to control it; 4)that the actor may justly be requred to pay the other the full value of the chattel.
Ways in which a chattel can be converted
1)Stealing it; 2)damaging or altering it; 3)using it; 4)receiving it; 5)disposing of it; 6)misdelivering it; 7)refusing to surrender it
Consent, Intentional Tort Defense
1)willingness in fact for conduct to occur; 2)manifested by action or inaction; 3)and not based on a mistake known or unknown to D.
Self Defense, Intentional Tort Defense
1)Thouse who reasonably believe that they are unwarrantedly attacked; 2)have a privilege to protect themselves; 3)using only the force that a reasonable person would use under thouse circumstances.
Is there a privilege against privileged force?
Self defense privileges
1)actor is not privileged to defend self against antoher's privileged force; 2)unless other's privilege is based on a reaosnable mistake not caused by the actor; 3)if both were privileged, neither will be able to recover.
Deadly force
1)Canot use force likely to cuase death or serious bodily harm; 2)unless have reasonble apprehension of loss of life or serous bodily harm
Retreat--Deadly force
1)Depends on the jurisdiction as to whether you must retreat to the wall, rather than kill or seriously wouldn attacker; 2)genearlly, even in restreate jurisdictions one may stand on's goround in a dwelling; 3)if threatened with agun, probally cannot retreat safely
Privileged Transferred Intent
1)If D is liable to P based on transferred intent--the privilege transfers as welll.
Defense of others
1)A defense of others is based on whether it was reasonable to defend the other person; 2)the self defense rule apples even if there was a mistake; 3)There is a split in jursidictions as to whethe ryou are privileged if you made a reasonable mistake or not;
Fresh Pursuit
1)A person may only retake property if it is in fresh pursuit (without reasoanble delay)
Detainment privileges
There is a shopkeepers privilage against 1)a person reasonably believed to have taken a chattel unlawfully; 2)to detain on the premises for a reasonable investigation of the facts.
Public Necessity
A complete defense--you don’t have to pay for damages when: 1)There is an immediate and imperative necessity to act for the benfit of the community; 2)that is made in good faith.
Private Necessity
The ship can stay but you must pay [for the damages] if 1)there is an immediate and impearative necessity to act for the benfit of the individual; 2)that is in good faith.
Types of breaches of duty for negligence
1)Violation of statute; 2)reasonable person: 3)reasoanbly prudent person in the circumstances; 4)reasonable person in an emergency situation; 5)Persaons with greater than normal abilities; 6)Insanity/Mental Capacity; 7)Professionals standard
Elements of the violation of statute doctrine
1)right harm; 2)right plantiff; 3)if the statute is suitable to use as a standard; 4)this is not a licensing statute (licensing stattues do not apply for statutory purpose doctrine.
How to know when a statute is suitable as a standard
1)whether the statute clearly defines prohibited conduct; 2)no liablity without fault; 3)Is there ruinous disproportionate liability; 4)does injury result directly from violation of statute?
Effect of using statute as standard
1)Per se (you need a restatement excuse; 2)Presumption (they can make their own excuse as well but the jury decides if the boxes weigh out as an excuse); 3)Evidence (Excuses get thrown in with everything else)
Restatement Excuses
1)Emergencies that are not a result of defendant's misconduct; 2)lack capacity to understand the law; 3)neithe rknows nor should know about occasion for compliance; 4)Unable to comply after reasonable effort; 5)Compliance would mean a greater risk to self or others.
Reasonable person standard (not cost benefit)
1)obejctive; 2)minimum standard of konwledge: what a resaonble person would know (gravity, etc); 3)Think about risks a reasonable person would guard against or not; 4)constructive knowledge: even if unaware, if they should have known about it. Even if it never happened before; 5) Custom: failing to follow a reasoanble custom may be neglinget but not necessarily.
Cost benefit analysis/Hand Formula
B<LP would mean negligence. B=Burden of adequate precuations; L=Gravity of resulting injury; P=Probability that harm will occur.
Reasoanble person in an emergency situation standard
Ordinary reasonable person. Thinks that might be unreasoanble could be reasoanble in an emergency situation.
Disability Standard
Circumstances of the disability may be taken into account. Think about the rasonable person. Using blindness as a circumstance, not a class.
Persons with greater than normal abilities
A person is held to the standard of a person exercising 1)such superior attention, perception, memory, knowledge, intelligence, judgment; 2)as the actor himself [or the professoinl himself has]. Ex: if you knew abou the bump in the road, you have to behave accordingly.
Children Standard
1)reasonably careful chidl of like age, intellligence, experinece, maturity, training under the circumstnaces. 2)Use adult standard -- When child is engaged in activity which is normaly undertaken by adults, for which adult qualfidcations are required. 3)use adult standard for inherently dangerous activiteis.
Insaity/Mental Capacity
1)unless Actor is a child; 2)insaity or othe rmental deficiency; 3)does not relieve the actor of liablity; 4)for conduct which does not conform to the standard of a reasonable person; 5)Even if the standard of a reasonable persion is beyond his capacity; 6)AN insane plantiff can recover if teh insanity prevented tehm from understanding or dtaking actions (comparative neglience)
Professional standard
1)objective standard of minimal compentence--the reasonable prudent professioanl. The minaml standard; 2)If one expert said that theyw ould have done it differtly does not estabslish tah the defendat differs from the reasoanble person; 3)usually need antoehr expert but therea re some things that peole knwo are neglient; 4)medical locality rule for doctors.
What is Res Ipsa Loquitur?
A specail kind of circumstantial evidence to fill in the gaps when the plantiff does not know what happened. Need to have the palntiff not konwing exactly what happened.
Res Ipsa Loquitur, Elements of
1)Instremenatliy causign the injury was under D's exclusive control (with other reasonable causes sufficiently eliinated by the evidnece, but you don’t need to eliminate the other causes); 2)Accident is one that does not ordianrily happen in the absence of negligence. 3)JX: a few juisdictions woudl allow this only when it is common knoweldge.
How to apply Res Ipsa Loquitur
1)Inference of negigence (majority). Gets the case to jury where RIL covers a gaping hole; 2)Presumptoin of negligence. Favor dips to the plantiffs. Defendant has to show why he is not negligent.
How to use Ybarra
1)you don’t have exclusive control; 2)look for an uncounscous plnatiff (particuarly during medical procedures) with many peole in control (similar to the Ybarra case); 3)for policy reasons, make each defendant liable unless they can exculpate himself; 4)Res Ipsa Loquitur can apply in cases where the defendat has superior konwledge to teh palntiff (rare)
Two types of evidence/proof of negligence
1)direct evidence (I saw the elephant go by the house"); 2)Circumstantial evidence (" I saw the footprints in the newly fallen snow that show tha the elephant went yby the house")
Framework for Informed consent
1)Breach of duty with majority (reasonable doctor standard) and minority reasonable patient standard); 2)causation with objective and subjective standards; 3)damages; 4)Exceptions
Breach of duty for Informed consent
1)Failure to adequately inform adequately of mateiral risks (risk that are liely to affect the patients decision) or alternatives; 2)Majority [reasonable doctor standard]: standard of what a reasonable doctor would tell people; 3)California [Reasonable patient standard]: waht a reasoanble patient woudl want to know. 4)Doctor needs to inform patient of research and economic interests, outside of the patient's health.
Causation for informed consent
Causation: 1)if the patient had been informed, he would not have consented/undergone treatement; 2)Objective standard: if nondisclosure would have affected the decision of a reasaonble patient (defendant prefers)--an objective person; 3)Subjective: if non-disclosure affected teh decision of this patient (plaintiff prefers)
Damages, for informed consent are manfiested as
The occurrence of the undisclosed risk must actually materialize
Exceptions to informed consent
1)risk ought to be known by everyone -- or already known to patient. 2)Detrimental to patient interst -- would alarm emotionally upset or apprehensive patient; 3)Emergency: Patient not in condition to determine for self if treatment should be administered.
The two types of causation in fact
1)But-For Test; 2)Substantial Factor Test
But For Test
1)But for the defendnat's actions, the harm more likely than not would not have happened.
But for causation for plantiff whose less than 50% chance of survival decreases due to negligence
1)Traditional: you are out of luck and recover nothing; 2)proportioanl: you get a proportional recovery in proportion of the loss; 3)Substnatial factor: you show that it was a substnail factor of death and you recover fully, if malpractice is a substnatill factor in brining about the palntiff's death.
Daubert causation
You need to be able to say "more likely than not" that the harm was caused by the Defendant or the Defenant's product. Ex: if the incidence for death without the drug is 4/100 and the people who take the drug sis 5/100, it is not morel ikey than not tha tbut for the drug the person would not have died.
Substantial factor test
Two or more causes, each of which would ahbe been the "but for" cause, but for the other cause. The harm would have happened anyways. Look for joint tortfeasors.
Factors for proximate cause
1)direct harm (domino effect, "actors on a set stage with no intervening forces"); 2)Forseeability of consequences [flaming rat]; 3)Forseeable plantiff; 4)potency for peril [ex: palsgraf--pushing the guy on the train instead of driving a forklift negligently]; 5)Tenuousness of the connection.
Thin skull doctrine restatements
"if you are liable for the bump, you are liable for the cracked skull" or "you take your plaintiff as you find him".
Intervening causes are split into two genearl categories that are:
1)traditoinal situations; 2)special intervening cause situatiosn
Traditional intervening cause situations
1)not superseeding if forseeable intervenign act--even if negligent OR wrong time, wrong plantiff--forseeable harm casued in unforseeable way; 2)superseeding if it is an extraordinary, unforseeable intervenign act.
Special interveing cause situations
1)intentional criminal acts (often intervening, but not when the person who is the earlier wrongdoer's unreasonable acts elevate the probality of the criminal acts); 2)Suicide (often intervening but not always); 3)Rescuers are forseeable intervening actors; 4)Medical negligence (origional tortfeasor is laible for results of medical treatment of injured victim even if the tratemetn is itself negligent. BUT not laibel in teh case of higly unusal conduct such as a. infliction of intentioanl injury; b. Misperforamnce of unrelated operation; c. Operate on wrong patient); 5)Purveyors of liquor are liable for the damages caused by the person they cause to be intoxicated.
The three basic types of damages
1)nominal; 2)punitive; 3)compensatory;
The four purposes of puntive damages
1)deterrence of others; 2)deterrence of D; 3)punishment and diverting P's desire for revenge; 4)incentive to bring into court petty cases of outrage and oppression.
Punitive Damages, Restatement Requirements
1)Requres oppression, fraud, or malice for recovery of punitive damages; 2)Malice=Conduct intended to cause injury or despicable conduct carried on with a willful and conscious disregard of the rights and safety of others; 3)Oppression=Despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that peron's rights.
Factors in determing amoutn for punitive damages
1)charter of D's act; 2)Nature and extent ofharm to P; 3)Wealth of D (this has to do with insurrance, punishment or deterrence);
Punitive Damage lessons from the state farm case
1)no bright line ratio; 2)in practice--few awards exceeding single digit ratio will satisfy due process; 3)4-1 ratio has been considered close to the line of constitutional impropriety; 4)High compnsatory damges, mabey 1-1 is the limit.
The theory of compensatory damages
1)This is the most important of damages; 2)Privides financial equivalent for loss suffering;
Compensatory Damages, major elements for determing compnsation
1)Past and future medical expenses, reduced to rpesnt value; 2)Past and future lost earnings (given in a lump sum now for future losses--money earns interest!); 3)Disability; 4)Disfurement; 5)Pain and suffering--apst and future--phsycial and mental (this is hard to value is is ordinarily not reduced to present value)
Mitigation of damages: Doctrine of avoidable consequences
1)You cant recover for damages that reasonably (ie cost and pain involved in surgery or what a reasoanbly purdent person would do under the circumstances) could have been avoided; 2)by reasonable condcut by P; 3)after D's tortuous conduct;
Collateral benefits rule
1)if a hospital or medical services are furnished gratutiously to the plantiff; 2)he may still recover the value of thouse servies from the defendat; 3)Compensation received from an accident insurance policy does not reduce the damages recoverable from the plaintiff.
When can a court order a remittitur?
When the court sets aside a jury veridct on the groudn that it is either excessive or inadequate by granting the defendnat's motion for a new trial fif the plantiff refuses to accept a lesser amount.
The effect of avoidable consequences for Compensatory Damages
1)A plantiff cannot claim damages for permant injury if the permancey of the injury could have been avoided by submitting to medical treatment, when a reasaonbel person would do so under the circumstances.
Relevant factors to determine whether something was an avoidable consqeunce for compensatory damages
1)risks of the procedure; 2)probability of success; 3)the money and effort invovled; 4)the accompanying pain.
How to determine compensatory damages for physical harm to property
1)Damages for physical harm to property are measured by the property's fiar market value at the time and place of its destruction or conversion; 2)Temporary deprivation of use allows the possessor to recover the fair rental value.
The theories behind survival
1)At common law, personal injury actions terminate with either the death fo the defendant or the death of the plantiff; 2)However, the person who died may have attending claims to be carried out; 3)Survival=damages for the decedent which he or she could have recovered for if alive; 4)pain and suffering damages fro survial is good, otherwise it would make more sense to finish a guy off rather than let him life.
Damages recoverable under survival
1)loss of eranings; 2)loss of medical expenses while alive; 3)Pain and suffering; 4)Physical disability and the like.
What is Wrongful Death?
Damages recoverable for the plantiff's decedents for the loss of the decedent.
Possible recoveries for wrongful death
1)Loss of support; 2)The monetary value for services; 3)Compensation for loss of society and companionship; 4)Damages for funeral expenses
Categories of limited duty/limited liability
1)Unborn; 2)Failure to act; 3)Pure economic harm; 4)NIED or pure emotioanl distress; 5)Owners and occupiers of land
Who recovers what for wrongful life
Child recovers for extraordinary medical expensises only (basicly medical expesnes)
Who recovers what for wrongful death?
Parent recovers for their right to abortion for extraordinary costs (basicly medical expenses)
Failure to act/Bystander liability
A mere bystander incurs no liablity where she failes to take any action; 1)however negigently, or even intentionally; 2)to rescue anotehr in peril; 3)Ayres--pp 415--No general duty to go to the rescue of a person in peril.
Exceptions to bystnader liability/positive concept
1)When D has a special relationship with the injured party; 2)When D has special relationship to the third party
Special relationships that impose a duty to act:
1)Employer/helpless employee in course of employement; 2)common carrier/passanger; 3)Inekeeper/guest; 4)Temporary custodian/charge; 5)Shipmaster/Seaman
What is the principal special relationship that imposes a duty to act?
1)When someoen is an invitee--a busniess visitor on premises opent ot the public; 2)using an instrementiality provided D an duses under D's control--which had rendered P helpless. Ex: an escalator at a department store.
How do we determine failure to act when the instrementality is udner the control of the defendnat?
1)When dteh defendnat is obigated to take afffirmative steps to effecutate rescue when the instrementality is under the control of the defendant but D is liable only for the aggravatio of the plantiff's injury when such duty is not exercised.
Misfeasance is
One who has no duty to take afffirmative action, but does so anyways, may become liable if he acts negligently.
What are good samartain statutes?
Statutes that protect a doctor who acts reasoanbly in an emergency.
What is the standard for the recovery of pure economic loss?
A palntiff may not recover for pure economic loss if the loss resulted from physcial damge to property in which the plaintiff had no interest. !! NO tort recovery for economnic loss unaccompanied by physical damage to property inwhcih P has propretary interst. No physcial damage to property. The goal here is to draw clear lines.
What is the california standard for negligent infliction of emotional distress (NIED)?
1)Don’t need physical consequences; 2)probally can recover if impact test, if in zone of danger test; 3)( can recover if are bystnader an dmeet the Thing Test; 4)Can recover if you satisfy the direct victim test.
Impact rule (NIED)
1)Impact rule -- no recovery fro emotional distres sunless there is some impact on P; 2)and there is no recovery for any resulting physical manifestations of the fright.
The Daley legacy (NIED)
1)Definite and objective physical injury; 2)Produced by emotioan distress proxiately caused by D's negligent conduct; 3)Physical harm msut be natural result of right; 4)Distress must be that of a normal person (unless D has specific knowledge of P unsual sensitivity).
Zone of dnager test (NIED)
1)Zone of danger--can recover where P has narrowly escaped imminent and seroius harm to own physical well being; 2)ie put in peril of impact.
Bystander test [Thing Test]
1)Closely related (usually blood or marriage) 2)There and aware (note: if in california, he can recover even if they are not in the zone of danger); 3)Seroius emotional distress that is not a abnormal response.
Direct Victim Test
Can recover as a direct victim if 1)Duty arises out of a preexisting relatiionship -- usually professoinal; 2)D has assumed duty of care to P beyond that owed to public in genearl; 3)Duty is imposed on D as a matter of law.
The two special relationships to the third party that impose an affirmative action/exceptions to bystander liability
1)Spousal liablity; 2)Psychitrist/patient/third perosn liablity
When does a spouse have a liablity to act?
1)Spouse has actual knowledge (or special reason to know) that her spouse is abusing an identifiable victim; 2)Fails to take resaosnble steps or prevent or warn of harm; 3)Consider: does D have power, ability, and opporrtuity to avoid the risk of harm?
How is a doctor liable to a third party when not acting?
1)Patient has infectrious disease; 2)Dr. is liable to person infected by patient; 3)if negligently failes to warn patient's family of contagious disease.
Tarrasoft holding (how mental patient is like a disease)
1)Once therapist does in fact determine; 2)or under appliable professional standards reasaonbly should hae determiend; 3)that a patient poses a serous danger of violence to otehrs; 4)He bears a duty to exercise reasonable care; 5)To protect the forseeable victim of that danger.
Misfeasance restatement
1)Liablity when defendnat leaves a person in a worse position; 2)Than he would have been in had the D not acted; 3)by Increasing the risk such as depriving him of other aid OR Detrimental reliance--when harm is suffered because P relies on D's undertaking; 4)Caveat--there may be other situations.
Duty to warn
When prevention of a foreseeable harm requires the defendant to control the conduct of another person, or to warn of such conduct, the common law imposes liability only if the defendant bears some special relationship to the dangerous person or the potential victim.
Pure Economic Loss/Physical Damage rule
The physical damage rule provides clear limit to liability: You cannot have pure economic loss not accompanied by physical damage to a proprietary interest.
Actions for Birth Defects
(a) Courts have generally denied recovery by the child (wrongful life); (b) Courts have permitted recovery by the parents—for medical expenses (wrongful birth)
Action for wrongful life
(a) P never had a choice between a healthy life and burdened life; his only options were a handicapped life or nonexistence, thus P may not recover fro pain and suffering or for a diminished childhood; (b) P may recover special damages for medical treatments attributable to D’s negligence.
Three basic circumstances that may impose a duty to protect a plaintiff from acts of third parties
(a) Voluntary undertaking; (b) Control (Any person who stands in a position of control over the conduct of an individual has a duty to control that person’s conduct so as to protect third parties, even strangers. ); (c) Relationship (A defendant may have a particular relationship to the plaintiff that may require that the defendant exercise care for the protection of the plaintiff. )
Licensee (definition and duties)
Def: 1)On premises with consent; 2)For own purposes. Duty: Duty of reasoanble care with respect to 1)Active operatoins (ex: lawnmower); 2)Dangerous conditions--Trap exception (a. Duty to warn of concealed dangerous conditions; b. of which possessor has actual knowledge);
Invitee (Definitions and duties)
Def: 1)Invited to enter or reain for particular purpose (Busniess visitor or Public Invitee). Duty: Duty of reasoanble care (a.Must maintain active operations with reasonable care; b. Must maintain premises in a reasonable condition.
The california rule for landowner's duty of care
There is no difference between Trespasser, Licensee or Invitee. Landowner has a duty of reasoanble care for all.
Does a landowner have the duty to take reasoanble precaustions to protect tenants from forseeable criminal acts of thrid parties?
Yes. He could and should at least install a lock. He could charge more for rent then.
Ordinary trespasser (definition and duty)
Def: on land without permission; Duty:No duty to use reasoanble care in either--( 1)Activies, to carry on activities on land so as not to endager him; 2)Conditions on land--to make premises safe for him or warn him of danger.)
Frequent Trespasser
Def: Owner or occupier knows or should know that this trespasser constantly intrudes on limited areas. Duty: Duty of reasonable care with respect to: 1)active operations [just don’t run the guy over with your tractor]; 2)Dangerous artifical conditions known to possessor [not a natural gully or a fallen over tree].
Discovered Trespasser (Definition and Duties)
Def: The trespasser whos presence is known; Duty: Duty of reasoanble care with respect to 1)active operations; 2)Dangerous conditions to which trespasser is near or wont discover with aduty to warn. The owner must be aware of the dangerous condition;
Is a social guest a licensee or a invitee
A licensee, even if they are hleping out (moving furniture, washing the dog, etc).
Definiton of the Busniess Visitor
Business visitor -- invited to enter for a purpose directly or indirectly connected with business dealings with the possessor of land (ex: go into macy's to shop)
Definition pf a public invitee
Public invitee -- invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public (Ex: go into macy's to shop and you want to pee).
Duty of owners and occupiers of lands with regards to Public Highways
(a) Abutting landowners must use reasonable care for the protection of those on the highway. 1. A ballpark owner has a duty to exercise due care in the use of their land so as not to injure passersby on public highways adjacent to their land by flying balls.
Licensee (definition and duties) [supplement]
(a) Definition 1. A licensee is one who goes on the land of another with the consent of the owner/occupier and nothing more. (b) Duty 1. Take the land as the occupier uses it. 2. The landowner/occupier must warn the licensee of, or make safe, known natural or artificial conditions or activities involving any risk of harm which he is unlikely to discover, whether existing at the time of entry or arising thereafter. (Note: The owner of premises is under a duty to warn a known licensee of known dangerous conditions that the owner cannot reasonably assume that the licensee knows or can detect through a reasonable use of his facilities, or to make such condition safe. & (i) There is no duty to inspect to discover dangerous conditions )
Invitee (Definitions and duties) [supplement]
(a) Definition 1. One who goes upon the land of another with the consent of the owner occupier. 2. For some purpose connected with the use of the premises (eg a business or public invitee); (a) Duty 1. The duty owed the invitee is one of ordinary care. (Note: Business invitee -- A visitor to a restaurant’s toilet facilities is a business invitee if he was a regular customer who had used the toilet previously. The fact that P had not bought anything on this occasion is irrelevant because he was a regular customer. !!! Public invitees (i) The government owes a duty to use reasonable care to keep public premises safe for all person s who come on the property. NOTE: (i) A person remains an invitee only while in those areas or parts of the premises held open to him for the purposes for which he came)
Limitations on invitation/invitee's status
(i) A person remains an invitee only while in those areas or parts of the premises held open to him for the purposes for which he came. 1. Beyond scope of invitation: a. If an invitee goes outside the areas of invitation, but under the consent of the owner, he becomes an licensee b. If the owner does not consent, the person may become a trespasser. c. Example: an invitee (a store patron) who goes beyond the premises to which he has been invited (into the closet on the way to the bathroom) may become a licensee and no longer an invitee and must take the premises then as he finds them (falling down an unlit stairwell).
Duty of property owner to children
Restatement 339 rule: The duty of a property owner with respect to artificial conditions when infant trespassers are involved. A property owner will be liable for injures to infant trespassers from dangerous artificial conditions on his land under the following circumstances: a. If he knows or should know that they are likely to trespass upon the places where the dangerous condition is maintained; and b. if he knows or should know that the condition involves an unreasonable risk of injury to them; and c. If the children, because of their immaturity, do not realize the danger involved; and d. If the utility of maintaining the condition is slight in relation to the risk of injury o the children; and e. If he fails to exercise reasonable care to eliminate the danger or otherwise protect the children.
Privilege to enter without consent
(a) Any public employee entering the land under a privilege recognized by law, and irrespective of any consent from the land owner has a privilege to enter without consent as long as they are acting in the scope of their official duties. (a) If they enter for some purpose involving business dealings with the land occupier, they are invitees (b) If the entry is not for business with the land occupier but under some other privilege afforded by law (police chasing a burgurler), most courts hold that the public entrant is a licensee. Only a few consider the entrant to be an invitee.
Duty owed by landlord to lessee
The landlord has a duty to repair or warn of known latent dangerous conditions. No duty is owed with respect to conditions arising after the property is leased, except for negligent repairs under the lease.
Landlord’s liability to Lessee’s guests
(1) As a general rule, there is no liability upon the landlord for defective conditions existing at the time of the lease. (2) For a landlord to be held liable for a dangerous condition existing at the time the tenant takes possession, the landlord must have knowledge of the danger and reason to expect that the tenant will not discover it, and the tenant must t have no knowledge of the danger.
Landlord’s liability for common passageways
(1) A landlord may be liable to a tenant or third persons other than trespassers fro failure to maintain those portions of the premises over which he retains control.(2) Anything that is not rented out to anyone in particular and is used in common by all tenants is considered within the landlord’s control. (3) For an apartment stairway, the landlord is the only one in the position to take the necessary acts of protection required to minimize the risk of criminal assault and robbery (which is clearly predictable and has had specific notice of) an pass the cost of increased protective measures to his tenants.
The Policies of Tort Liability
i) Compensating individuals who have been injured ii) Preserving individual choice; and iii) Determining the social cost-benefit of a given policy
Difference between tort and crime
i) A tort is a wrong to the individual, while a crime is a wrong against the public at large
Definition of Tort
i) A tort arises through conduct, in the form of an act or omission, affecting a legally protected interest in person or property (or both), usually done with a certain state of mind, which causes damage.
Summers v. Tice situation
Summers v. Tice: There are joint tortfeasors when both defendants are liable for the injury (joint and servarl liability), even though only oe inflicted int injury. The D’s brought about the harm, so they can untangle the facts. (b) This shifts the burden of proof upon the defendants. (c) Both defendants must be negligent (for sure), but we don’t know which one’s negligence caused the harm, for summers v. tice. (d) Only one (or something like that) defendant is negligent but we don’t know which one, out of many, when all of them had exclusive control, we get Ybarra.
Two standards of Apporting damages where actual tortfeasor is unknown
(a) Enterprise liability: all blasting cap manufactures jointly controlled the risk of blasting caps getting into the wrong hands and if the plantiffs could prove that the injurous caps were manufactured by one of the defendants, the burdeon f proof as to causation would shift to all the defendants. (b) Market shares liability: If we know that a product in the market caused the harm (say a pharmaceutical for example) and we know that it came out of this market but we don’t know which manufacture in the market made the specifically injurious pill, then we can hold each manufacturer liable in proportion to its individual share of the entire market, unless it can prove individual that it could not have produced the precise produce that injured P. (sindell)
Rescue doctrine, Elements
(i) D’s negligence caused the peril (ii) The peril was imminent (iii) A reasonably prudent person would have concluded that the peril existed (iv) P acted with reasonable care in performing the rescue.
Social host’s liability for drunken guests:
A social host may be held liable for damages suffered by a third party as a result of the guest’s drunk driving.
Public policy limitations for harm that goes across generations
A bad drug that has effects on people of every generation does not make its manufacturer liable because it is the court’s duty to confine liability within manageable limits.
Joint Tortfeasors
(1) Joint tortfeasors are persons who either act in concert [Parties acting in concert in a negligent action are all liable even though only one party was immediately involved in causing the injury, like in drag racing. ]to cause injury to the plaintiff or act entirely independently but cause a single indivisible injury to the plaintiff. (2) Joint tortfeasors are jointly and severally liable for the damage they cause. (3) The plaintiff may elect to seek the entire amount from any one of the defendants.
The relationship of Comparative negligence with joint liability
(1) Comparative negligence statues provide for apportionment of damages between negligent parties who cause an injury in proportion to their fault. (A) Comparative negligence does not eliminate joint and several liability: (1) The plaintiff can still recover for the damages. (B) Comparative negligence does eliminate joint and several liabilities. (1) A defendant is not required to pay the full damages when the other joint tortfeasor cannot pay their share.
Joint and Several Liability
1)Each tortfeasor is fully liable for damages suffered by P. 2)Even if both are only half responsible, both are responsible for 100 percent of the stuff so P can get allteh money from one of them. 3)D can deal by impleading the other defendant in the other case or D1 can sue D2 for contribution.
(a) The satisfaction of a judgment against one joint tortfeasor extinguishes the cause of action and bars any subsequent suit for a greater or additional amount against any of the others
How is Satisfaction different from a covenant not to sue?
(i) Covenant not to sue=obligates the plaintiff by contract from enforcing the right to sue (ii) Satisfaction=surrender of a cause of action because P has already received all the money they need. (iii) Also, the contract can be negotiated for full, partial or no compensation to the plaintiff.
Once the verdict is satisfied, the defendants are released from the plaintiff
Judgment and Satisfaction
(i) Once the plaintiff has been compensated, he cannot obtain further compensation (ii) An unsatisfied judgment against only of several tortfeasors will not preclude an action by the plaintiff against the others.
How does a Pro Canto jurisdiction deal with Settlements?
Dollar for dollar reduction. You reduce wahtever they settle for in total. Ex: Judgement for 100,000, but settle for 20,000 then we have 80,000 left to be satisfied from the rest of the defendants who are jointly and seveerally liable for the 80k.
Jurisdictional differences between a Release and a Contract not to sue
(i) Majority 1. Neither a release nor a covenant not to sue releases other tortfeasors (ii) Minority 1. Release of one tortfeasor releases all; a covenant not to sue does not operate as a release of other tortfeasors (iii) Sub-minority:1. Release with reservation for rights against others is treated as a covenant not to sue.
Example: Joint and Several Liability: P(40) v D1(40)D2(20). $100,000 in damages. How much can P collect from D2?
Joint and several=$60,000, Several =$20,000
Coveant not to sue
You signa cotract not to sue. But this does not release the co-tortfeasors from liablity.
Mary Carter Agreements
An agreement between a plantiff and one defendant, who guarantees that the plnatiff willl get a certain amount. The plnatiff gets nothing or anything less than the total amoun, the defendnat who made the difference will pay the differece. Thus the defendant wnats a much higher settlement. They are ofent violative of pulbic policy and illegal.
Divisibility of harm: when Ps cant prove apportionment (JXs)
1)if P cant prove who caused what, P loses; 2)Shift burdeon of proof to D to show basis for apportionment--if apportionment is unavailable as a practical matter, then damages are terated as indivisible; 3)Find damages to be indivisible--and thuss apportionment is unnecessary (usually in polution cases); Find a reasonable basis for apprtionment, even though cannto be apportioned with any precision.
Can a defendnat be hld liable for a plaintiff's subsequent injury where the plantiff cannto apportion the damages between the causes of the injries?
No. A defeendant cannto be held liable for a plantiff's subsequent injury where the platiff cannot apportion the dmages between the causes of the injuries (burckman v Pena)
If independat acts create individaual harm to plaintiffs, can the courts hold Ds jointly and sevearlly liable?
Yes. In Michie, Where the indepenat concurring acts of defendants have cuased an indivisible harm to the plantiff, and no reasonable means of apportioning the dmages is evident, the court may hold the ddefendants jointly and severally liable.
when do we apportion damages?
If damages are divisible. In this case, each party pays for what it caused--regardless of fault; 1)sometimes as a practicle matter, it is dificult or imposssible to determin who caused what damage (ie we know who is at fult but we don’t know who should pay for which medical bills)
When do we apportion fault?
When the damages are indivisible, or are treated as indivisible. Ex: apportion fault if A is 30% at fault, then B is 70% at fault.
If a plantiff, regardless of the defendant's negligence, would have suffered injury, how do we measure damages then?
If the plantiff, regardless of the defendant's negligence, would have suffered injury, the plantiff's damages would be measured based on the plaintiff's injured condition. Note: plaintiff shot right before an avalanche hit has n almost worthless life. A plantiff shot right before he was about a bat to europe which sank from an iceburg is harder to tell--he may have gotten off or sold his ticket. No damage no nelgingece. Did negligence cause teh damages taht occured? llook to cuasation.
What is an indemnity
For and between D's: 1)Seeks to shfit entire cost of judgement or settlement; 2)Where liablity is based, not on wrongdoing, but on relationship to wrondower (ex: employer/emoployee). A joint tortfeasor is not entiteld to indemnication from a fellow tortfeasor.
What is a contribution
For D's: When you seek a part of the damages you already paid to the P from the other D's. In a jurisdiciton without joint and several liablity, contribution is not an issue then.
How does California apportion for harms?
California is jiont and several for economic harms.
Contribution from Joint Tortfeasor Not Sued by Plaintiff
The right to contribution belongs to the tortfeasor who pays the judgment. It does not depend on the plaintiff’s choice of defendants
Indemnity [supplement restatement]
Requires the one primarily liable to bear the entire burden and compensate the one secondarily liable who was initially compelled to compensate the plaintiff.
Contribution after other party has settled
(i) When one defendant settles with the plaintiff the other defendant is not entitled to contribution from the settling defendant. (ii) When a release is given in good faith to one of two or more persons liable in tort for the same injury, it discharges the tortfeasor to whom it is given from all liability.
Apportionment of Damages
(i) When two or more defendants acted to cuase injury to the plaintiff, or to aggravate a preexisting injury, and the injuries are divisible, liability may be apportioned among the defendants. (ii) In such cases, the defendants are not jointly and severally liable.
What does it mean when Indivisible injury shifts burden of proof.
(i) When it is impractical to prove the damage resulting from each of several tortfeasors when each tort contributed to the injury, the burden may be shited to the tortfeasors by holding them jointly and severally liable. (ii) If some reasonable means of apportioning damages is available, joint and several liability will not be imposed.
Damages reduced by other contingency
(i) To constitute actionable negligence there must be damage (ii) A child who would have died by falling to the ground but rather died from electrocution when he grabbed at electrified wires while falling to the ground has no damages.
Pure Comparative Negligence
D's Damages=Total damages minus the platniff's contribution.
Modified Comparative Negligence
1)If P is overly responsible, then P cannot recover. 2)49% jurisdiction=P's fallut is less then D's then can recover; 2)50% jurisdiction=P's fault is equal to D's can still recover but if greater than you cant recover.
Example: if Negligent A drives a car, collides with neglignt B driving another car. Fault=A(40), B(60). Modified recovery A-B & B-A
Modified system: A can recover 60,000 from B, but B cannot recover from A.
Factors to consider if express assumption of risk is against public policy
1)Intentioanl, reckless, wanton, grossly negligent conduct; 2)Barganing power grossly unequal--not free and open--one party at mercy of other's negligence; 3)Transactions involving the public inteerest--eg public utilities, common carriers. Ex: an exculpatory clause is enforceable if it clearly and specifically indicate teh intent to release teh defendnat from liability for personal injuries cauased by teh Defendant's negligence.
Factors to determien if it is Implied Assumption of Risk
1)P has actual knowldege of the particular risk and appreciation of its magnitude; 2)P voluntarily encounters the risk; 3)Exceptions--no reasonable alternative course of conduct (ex: call of nature forces you to step into an outhouse with brittle floors)
Voluntary Assumption of Risk exceptions evaluation
Not voluntary assumption of the risk if D's tortuous conduct 1)has left P no reasonable alternative course of conduct in order to (A)Avert harm to self or others OR (B) Exercise or protect a right or privilege of which D has no right to deprive him. 2)Exceptions of where risk has been found (A)Employement, where you work with a dangerous force (B) You ride a car konwing tha tthe breaks are devicient and the driver is incompetent (C) you plug in a bad plug and get shocked;
General restatement of assumption of risk
Assumption fo risk--must know and appreciate risk--whether or not have used due care
General restatement of Contributory Negligence
Contributory Negligence--Failure to exercise due care--whether or not one knew and appreciated the risk.
Express assumption of the risk applies
Express assumption of the risk is contractual. We don’t care abou tthis for comparative negligence--this is a contracts thing
Impled Assumption of the risk applies
Implied assumption of the risk--comparative negligence applies here. Secondary goes under here.
Framework for Implied Assumption of the risk
1)Primary: Never an issue since there is no negligence to begin with. D was never negligent. (a)D owed no duty to P; (b)D breached no duty to P (=bar); 2)Secondary: the only important one where D has breached a duty to P (a)PURE: Was P responsible? Yes then no bar, P wil be able to recover no matter what. (b)QUALIFIED: was P unreasonable? Yes, then comparative fault since P's recovery was bounded by teh doctrine of comparative fault/comparative negligence.
How California deals with Assumption of risk
(Cheong) CA-Co Participant in Sports 1)Careless conduct bya nother participant is an inherent risk of engagin insport; 2)D breaches of duty of care to other participants only if engages in intentional or reckless behavior; 3)Limited duty. ---Under Primary, D would owe no duty to P for breached no duty to P. SEcondary, D did owe duty to P becuase of relative reponsiblity.
Immunities and viability
1)Family, inter family immunity (not really viable); 2)Charitable institutional immunity(not really viable);Governemntal immunity (viable)--The federal and state governemtns cannot be sued without their consent. You must have a statute
How to deal with an immunities question for our class
1)If we have a case where family members or charties are defendats, in addition to what we normally would do, we mut check for an inmmunity situation. 2)If we want to sue a governemntal entity, we should check that we have a statue or not.
Theory of Vicarious Liabliity: Respondiat Superior
Respondeat Superior: Vicarious liablity does not arequire the employer to be reasoanble in any shape or form, it only requires the employee to be harmed in the scope of work. The employer may not have been able to do anything more!
The liability of employers (respondiat superior situations)
1)The employer is liable for the torts of employees ommitted within the scope of employement. Detour (a deviation that is sufficiently within teh employment and within its scope) is within the scope of employement/respondiat superior. Coming and going rule (commute is not within scope of emplooyement and Frolic (if the employee was employed but running personal errands) is not within the scope of employment/respondiat superior.
The relationship of Independent contractor to Respondeat Superior
Employers are not liablef or the torts of his independent contractor.
Definition of an Independent Contractor
1)Controls physcial details (a. Acts according to own methods and manner; b. Free from control and direction in all but result); 2)Right to control physcial details of work; 3)Does things in own time, own way, under own direction.
Exceptions: Liability for actions of independent contractors
1)Non delegable duty (a. Stong sense or risk--importnace of duty;) 2)Neglignece in selection ofcontractor--straight forward negligence, not vicarous; 3)Apparent authority--someoen expresses that the person is an employee or agent; 4)Inherently or intrinsically dangerous activies; 5)Contracting for performance of illegal act--ex: hit man.
NonDelegable Duty Restatement
Nondelegable duty if employee independat contract in a situation where 1)Grave risk of serious bodily harm or death unless instrumentalities are used carefully; 2)Duty by statute or regulation to provide safegauards or precautions for safety of others.
Whats the difference between a nondelegable duty and strict liability?
1)_You have to have someone behave unreaosnlby for nondelegable duty; 2)Somoene has to be negligent for nondelegable duty, not so for SL; 3)Someone must be behaving tortiously for Non delegable duty,not so for Sl;
Elements of Joint Venture/Joint Enterprise
1)Agreement to activity among members of group; 2)Common purpose or goal; 3)Common pecuniary interest; 4)Equal voice in directing enterprise, which gives equal right of control;
Definition of a Bailor
The guy who gives the things for people to use.
General Principle of bailments
The bailor is not liable for the negligence of the bailee.
Exception to the Bailment general principle
Vicaroius liabilty to the owners of an antomobile is an exception to the common law that a bailment does not create liablity. This is for the most part by statute.
What is strict liablity?
i) Strict liability is liability without fault. There is the right of recovery with damages notwithstanding that there is not fault in the conduct off the defendant ii) Strict liability does not mean absolute liability. There are still some problems with causation.
Strict liablity (aside from products) applies to
1)Animals; 2)Abnormally dangerous activities.
Liability for trespassing animals
(1) The general rule is that the owner of animals that are likely to stray and that do stray onto the land of another is strictly liable for any damage caused by such animals. (2) An exception to this rule was made for domestic pets (but is not tested for us)
Liablity for Wild Animals
(1) The possessor of wild animals is strictly liable for harm done by the animals if such harm results from their normally dangerous propensities. (2) For animals kept under a public duty, negligence must be sown.
Liability for Known dangerous domestic animals
(1) If the defendant has knowledge of the dangerous propensities of his animal, he will be strictly liable for all injuries resulting from that dangerous propensity.
Dog bite statutes
(1) These statues reversed the common law rule that every dg was entitled to one bite before it became know to be an animal with dangerous propensities. An animal ‘s keeper is liable for all damage or harm caused by the animal, unless the plaintiff was a trespasser or was committing a tort.
Abnormally dangerous activities restatement
One who carries on an abnormally dangerous activity is subject to liablity for harm to the person, land or chattel of antoher resulting from the activity, althoguh he has exercised the utmost caree to prevent the harm.
Factors to consider in determining whether an activity is abnormally dangerous (ultra hazardous)
1)Existance of a high degree of risk of some harm to the person, land or chattels of otehrs; 2)Lilihood that the harm that results from it will be great; 3)Inabitliy to eliminate the risk by the exercise of reasoanble care; 4)Inapproriateness of the activity to the place where it is carried on; and 5)Extent to wchih its value to the community is outweighed by its dangerous attributes.
Abnormally dangerous activity (reservoir) Blackburn opinion (strict liability)
A person who 1)for own purposes; 2)Brings on land and colelcts and keeps there; 3)anything likley to do mischief if it escapes; 4)Must keep it at his peril.
Carins non natural use of land (strict liability)
If someone makes a non-natural use of the land 1)introduces that which in its natural condition was not in or upon it; 2)and in consequence it escapes; 3)acts at own peril.
The difference between manufactur and shipping of toxic chemicals for abnormal dangers
The manufaccture and shipping (as opposed to carrying) of toxic chemicls is not abnormally dangerous.
What is Strict Liablity good for?
1)Extra Safety; 2)Spread the value of the activity; 3)Applied in limited situations.
Causation limits for Strict liablity
1)Proximate cause--only strictly liable for harm resulting from that which makes the activity abnormally dangerous (ex: blasting is not strictly liable for supersentitive minks because its about flying particles not sound waves); 2)Intervening cause--Strict liablity is cut off for unforseeable intervening causes (act of god), as opposed to neglignece where unforseeabilty is not superseeding.
Contributory nelgligence's relation to strict liablity
(a) Contributory negligence Is not a defense to strict liability, unless the plaintiff’s negligence and not the ultra hazardous activity was the cause of the injury
Breach for negligence as a basis for products liablity
(a) The duty in a negligence claim is one of reasonable care (b) To establish breach, the plaintiff must prove that the product was defective in its design, manufacture, or marketing and that the manufacturer was negligent in some way in allowing the defective product to be manufactured and sold.
Damages for negligence in a products liability case can cover:
(i) Damage to the product sold resulting from its own defects (ii) Damage to reasonably forseeable nonusers in the vicinity of the expected use of the product (iii) Damage caused by defects in design as opposed to defects in manufacture (iv) Damage to property in the vicinity of expected use, where the product itself is dangerous to life and limb because it is negligently made (v) Liability for products negligently manufactured but posing a forseeable risk to property only (vi) Liability of processor of a product at an intermediate state (vii) Liability of those who sell another’s products.
Dealer’s duty to inspect inherently dangerous products
(i) The restatement 2nd 401 places a duty on dealers and distributors to make a reasonable inspection of their products that are inherently dangerous in normal use and to remedy, or warn buyers against, such defects or dangers. (ii) The failure of the dealer to inspect, however, does not relieve the manufacturer of its obligations since the dealer’s omissions are considered forseeable.
Dealer’s duty for products not inherently dangerous
(i) If the dealer discovers the defect, the common law rule will make the dealer liable to any injured plaintiff who was not warned of the defect prior to the sale.
Defenses to a products negligence/liablity action
(a) The defenses available to a defendant under a typical negligence action may be raised by a defendant in a products liability action grounded in negligence/ie same as thouse in negligence in general.
What is a Warranty (definition)
(a) The warranty upon which the plaintiff will rely will generally be a statement or representation, either express or implied, made by the seller (or attributed to him) with respect to the character, quality, function, performance, reliability, or other matter of the item sold.
Elements for warranty (supplement)
(i) The existence of the warranty (ii) Breach of the warranty (sale of the product in a condition that does not comply with the warranty); and (iii) Injury proximately caused by reason of the warranty defect in the product.
Elements to determine if manufacturer is liable for breach of warranty (professor's restatement)
1)Defect is not readily discernible; 2)There was Reliance upon the warranty in the use or purchance of the product. Note: we don’t need negligence here.
What is implied warranty the same as
Implied warranty is the same as Strict Liabilty and will not be tested without being subsumed into strict liability.
Strict Liability (for products)
There is strict liability when: 1)A product is defective in design when the forseeable risks could have been reduced or avoided by the adoption of a reasonable alternative design; 2)By the seller or other distributor--or a predecessor in the commercial chain of distribution; 3)and the omission of teh alternative design reenders teh product no reasonably safe.
Strict Liablity for manufactuers restatement
1)One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is usbject to liablity for phsycial harm thereby caused to the ultimate user or consumer, or to his property, if: a. Th eseller is engaged in teh busniess of selling sucha product, and b. it is expected to and does reach teh user or cnsumer without substnatil hange in teh condition in which it was sold; 2)This applies even when teh seller has exercised all possible care inteh preparation and sale of his product and the user or dconsumer has not bought the product from or entered into any contractual relation with teh seller.
Considerations for Manufacturing Defect
1)Does the product deviate form intended design or from other products pursuant to that design? (note: sellers are strictly liable for manufacturing defects that reach the consumer without substantial change in the defective condition)
Considerations for Design Defect
1)Risk Utility analysis; 2)Consumer expectations test; 3)Manifestly unreasonable design; 4)Custom; 5)Failure to warn
Risk Utility Analysis
Risk Utility Analysis-Imputed Knowledge--Design Defect if: "whether product has failed to perform as safely as ordinary consumer would expect. Consider: 1)If manufacturer would be judged negligent if it had knenown of the product's dangerous condition; 2)Assume D knew of Products's harmful character, propensity to cause injury, then ask if a reasonable seller would have sold the item (think knives then exploding cigars)
Reasonable Alternative Design Test
1) A product is defective in design when the forseeable risk scoudl have been reduced or avoided by the adoption of a reasonable alternative design 2)by the seller or oteh rdistirbutor--or a predecessor in the commercial chain of distribution; 3)and the omission of the alternative design renders teh product not reasonably safe. Note: A reasaonblly alternative design is effective but not required for the risk utility analysis.
Consumer Expectattions test
1)Inappropriate for Complex products; 2)Can use for everyday expereinces--Everyday experience permits the conclusion that the product did not perform as safely as it should and we can use the consumer expectationstest; 3)Complex products--Consumers do not have a reasonable minimum assumptions about safe performance and we must use risk/benefit test.
Manifestly Unreasoanble Design
1)Designs of some products are so manifestly unreasoanble; 2)They have a low social utility, high degree of danger; 3)that they are liable even absent a reasoanble alternative desing; ex: toy gun that shoots hard rubber pellets and exploding cigars.
Liability for unavoidably unsafe products
No liablity for unavoidably unsafe products: 1)products which, in the present staet of human knoledge, are incapble of being made safe for ordinary use--especially drugs; 2)If such products are proerly made, and proper warning given, not strictly liable.
Is custom the same as state of the art?
Failure to warn (teachers restatement)
1)The D must know; 2)Or have reason to know; 3)Of potential risk or danger; 4)Before liable for failure to warn;
Third Restatemnt for Failure to warn
1)Requires that failure to warn allegation be based on forseeable risks which could have been avoided by reasoanbe instructions or warnings; 2)Essentailly means risk ust be known or knowable. Note: evidence that a particualr risk was neither known nor knowable by teh application of scientific knowledge avaliabe at teh time of manufactuer and/or distribution provides a defense to warnings defect cases.
Differences between strict liabliyt and negligence
SL: Liable if diddent warn of risk that was known or knowlable, evne though reasoanble not to warn; 2)If risks, on balance with the end sought to be achieved call for a true judgment by the consumer, warning must be given.
Is there a duty to warn of obvious dangers or of risks that are generallly known?
Most jurisdictions have found no duty to warn of obvious dangers or of risks that are generally known.
What must the plaintiff show to prove a defect?
1)Product was in fact defective at the time of the accident; 2)The defect existed when the product left the manufacturer's hands.
Does compartive negligence apply to strict liability?
1)Most jurisdictions would apply compartive negligence to strict liablity. 2)Reduce recovery to the extent that P's own lack of reasaonbel care dcontributed to the injury; 3)we could call it compartive contribution or conpartive responsibility.
Manufactuer liablity for product misuse:
Manufacturers are liable for reasoanbly forseeable, albeit abnormal, uses of their products
The type of sitaution where Product Misuse has recovery
Forseeable misuse does not bar recovery
The type of situation where Product Misuse Bars Recovery
1)Product not defective and accident caused by misuse; 2)Defect exists, but is not the cause of the harm; 3)Misuse is abnormal unintended use of aproduct which is not reasonably forseeable;
Defect Causation recovery framework;
1)Defect, forseeable cause, to go comparable neglignece; 2)Defect, Unforseeable cause, No recovery; 3)No Defect, no recovery.
Strict products liability for a remote retailer
A remote retailer, who outside of the original producing and marketing chain, is not subject to strict products liablity.
Liability fo rseelers who are not manufactuers
1)In most jurisdictions, retailers and wholsealer/distributors are striclty liable if they sell a defective product; 2)Striclty liable, although they would nto hbe liable under negligence; 3)Some jurisdictions, strictly liable only if manufactuer is not reachable.
Strict Products Liability and services
Strict products liablity does not apply to services (ex: hospitals using pacemakers, Beauticians selling a product (beautox) or distribution of whole blood or plasma).
Recovery for harms other than personal injury
1)Economic losses resulting from personal injury--can recover; 2)harm to property other than defective product--can recover; 3)Economic loss--cannot recover (Note: relegate this to warranty. Ex: you bought a truck that does not work). Note: a harm to a defective product itself, some JX treat it as an economic loss.
Total elements of a products liability question on an exam should include:
1)Breach; 2)Causation in fact; 3)Proximate cause; 4)Damages
General idea of Negligence for products liablity
Did D act reasonably in the selling, manufactuer etc of the product?
Elements to determine if there is express warranty
1)Was there a material misrepresentation? 2)Was there reliance?. Note: we don’t have implied warranty.
Elements to determine something is Strictly Liable [Products]
1)Seller is in the business of sellilng; 2)Mismanufacture, misdesign, failure to warn.
Elements to detemrine if there is mismanufacture
1)Does it differ from others like it? 2)Did this difference cuase harm? 3)Did defect exist when it left D's possession?
Elements to determine if there is misdesign
1)Risk benefit analysis; 2)Consumer expectations test (where appropriate); 3)Exceptions to strict liablity--Drugs/unavoidably unsafe products, Inherent risks--alchol, butter.
Exceptions to Strict Liablity [products]
1)Drugs/unavoidably unsafe prodcuts; 2)inherent risks--alchol, butter.
Can the whole chain be liable for a misdesigned product?
Yes. In most juridictions, even if not negligent at all (strict liablity). However, they can usually indemnify the manufactuer.
Elements to determine Failure to Warn
1)Liable only if risks are known or knowable--and failed to provide adequate warning; 2)If warning was given, consider its sufficieny.
Defenses to products liablity
1)Compartive negligence; 2)Product misuse.
Breach for strict liability
1)Defective design and construction; 2)Defective or unreasoanbly safe product or dangerous product to the consumer; 3)adequate warning.
Liablity for concealed danger [products]
(1) Even if there are no manufacturing or design defects in a product, the manufacturer and seller may be liable for injuries suffered by the users of the product if (a) Use of the product involves a risk of harm that is not apparent; and (b) The manufacturer or seller fails to give adequate warning of the concealed danger
Warnings defect
(a) Knowledge, actual or constructive, of a potential risk or danger is required before a defendant may be held strictly liable for injuries based upon an alleged failure to warn. (b) However, a product defect cannot be overcome by a warning. (c) The determination of an adequate warning is usually left for the jury to decide.
Defenses to products liability
i) CONTRIBUTORY NEGLIGENCE (1) A plantiff’s failure to exercise reasonale care to discover the defect is no defense when the action is one based on strict liability. (2) When one discovers the danger and nevertheless proceeds, contributyr negligence or assumption of risk may be asserted a a defense. (3) Contributyr negligence I slaways a defense in ana action based on dneglientce ii) COMPARATIVE NEGLIGENCE (1) Comparative neglince even applies to strict liability. The injury must reslt frm a defect in the product. iii) MISUSE (1) If the plaintiff misuses the produce, or engages in an abnormal use that was not forseeable, the defendant will not be held liable. (2) When an unusual aor abnormal use should be anticipated )ex: sailor walking over containers used for shipping), strict liability may apply
Application of strict products liablity to Lessors
(1) The strict liability theory applicable to sellers of chattels has been held applicable to a bailors and lessors of chattels. (2) They are under a duty to inspect the chattels to determine that it is safe.
Application of strict products liablity to Sellers
(1) A gratuitous bailor is under a duty only to disclose all known defects but is not required to inspect.
Application of strict products liablity to services
(1) Strict liability does not apply to services rendered, but one must exercise reasonable care in rendering services. NOTE: A hospital is a provider of services rather than a seller of a product. Thus is not subject to strict liability for a defect product provided to the patient during the course of the patient’s treatment.
Recoverability for Harm other than personal injury but that are still harms to the person.
(i) Courts are reluctant to permit recovery under strict liability when the only loss is economic. (ii) Exceptions: lost wages due to persona injury. (iii) Also consortium claims based on personal injury in products liability actions are allowed in most jurisdictions.

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