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Ravitch Torts Outline 2018

Tort: a civil wrong for which the law provides a remedy There is no law against being an asshole

Major purposes of tort law 1. To provide a peaceful means for adjusting the rights of parties who might otherwise "take

the law into their own hands" 2. To deter wrongful conduct 3. To encourage socially responsible behavior4. To restore injured parties to their original condition, insofar as the law can do this, by

compensating them for their injury 5. To vindicate individual rights of redress

Intentional Torts- Intent: actual or substantive certainty.

- Actual intent - Did they actually intend for something to happen?

- Substantial certainty (that the harm could arise)- Could they be substantially certain that something would happen?

- Two claims that are not defenses to intentional torts: - Good faith mistake - Mental disability

- Only nominal damages have to be proven for intentional torts - Doctrine of transferred intent

- The actor has the intent to commit a tort towards one person, but the tort actually affects a different person

- The original tort type can turn into another tort for the other person which creates liability for the tort that actually occurs

- If both people are affected by the tort, both people can bring an action against the person who committed the tort(s)

- Applies to

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- Assault, battery, false imprisonment, trespass, trespass to chattels, (sometimes conversion).

- Intentional torts, liable for everything- Privileges --justifications

- Defenses to intentional torts, most common is consent (expressed or implied) - Legal justification - Necessity (private) i.e. car breaks down, enter property for help (if not causing

any harm)

- Battery - Intent or substantial certainty to commit physical contact that is harmful or

offensive, and is actually carried out - Something on your person, if harmful and offensive contact--> battery - No actual damages need to be proved

- Assault - Intent or substantial certainty to commit a physical harmful or offensive contact

and the present ability to make that contact - Intent to place someone in fear or apprehension of imminent harmful or

offensive contact and the present ability to make that contact - no actual damages need to be proved

- False imprisonment - Elements of false imprisonment

- (1) Intentional - (2) Restraint of one person by another/others - (3) Without adequate legal justification to execute that restraint .

- Just have to be aware of the restraint at the time it happened- Clothes taken away are adequate restraint - No actual damages need to be proved - In addition to physical barriers, a false imprisonment can be accomplished by

force, threat of force, duress or asserted legal authority. - Do not have to risk your life/limb to escape

- Intentional infliction of emotional distress (IIED) - Occurs when an actor's intentional conduct is so extreme and outrageous that it

goes beyond all bounds of decency in a civilized society that no one should be expected to endure

- A person does not have to show evidence of distress -- just need to show conduct is extreme and outrageous

- 4 elements must coalesce to impose liability for intentional infliction of emotional distress:

1.The conduct must be intentional or reckless 2.The conduct must be extreme or outrageous 3.There must be a casual connection between the wrongful conduct and the

emotional distress 4.The emotional distress must be severe

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- Whether an actors conduct is extreme and outrageous depends on the fats of each case, including the relationship of the parties, whether the actor abused a position of authority over the other person, whether the other person was especially vulnerable and the actor knew of the vulnerability, the motivation of the actor, and whether the conduct was repeated or prolonged

- Trespass to land - Any interference with exclusive possession of ones property, including the

owners quiet and peaceful enjoyment of that land - Every unauthorized entry into someone else's land is trespass - Trespass can be limited by: time, space, purpose

- Trespass to chattels - Occurs when someone, without consent or other privilege, intentionally

interferes with another's chattel - Interference occurs when someone dispossesses the owner of their chattel by

depriving the owner of the item for a period of time or diminishing the chattel’s value

- Damages-- emotional value, physical harm, any other harm

- Conversion

- The long term deprivation, permanent deprivation or total destruction of another's chattel

- Damages-- replacement costs at market value

Privileges- If you do not fit within one of the defenses to intentional torts, you do not have a

defense

- Consent - Consent occurs when one person gives express or implied permission to another

to act in a way that would be tortious without that permission.- Consent can be applied by the totality of the circumstances

- Self defense - You have a right to use reasonable force to defend yourself, not deadly force or

force that can create significant bodily harm, unless you are under the threat of death or significant bodily harm

- When threat is no longer around, privilege stops - A reasonable mistake on the part of the actor will protect him - Differences in age, size, and relative strength are proper considerations

- Defense of others

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- Nature of privilege: Similar to that of self-defense, recognized for the defense of a third party with reasonable force in the circumstances

- Reasonable Mistake of necessity for taking action (don’t want to accidently help the attacker)

- Defense of property (That does not have people in/on it)- A person, in protecting his property, may not use force calculated to cause

death or serious bodily injury, except where there is also a threat to personal safety that is sufficient to justify self-defense.

- Defense of recovery of property - When a property owner knows or has reason to believe their property was

fraudulently taken, a person may detain a suspect for a reasonable time at the vicinity where the items were allegedly taken, to investigate whether an item was taken

- Cases where there is never a basis to recover property- Profiling based on race or ethnicity - Teen profiling - Tattoos and piercings - Store security guard who didn’t get into the police academy

- Fresh Pursuit - Limited to prompt discovery of the dispossession and prompt and

persistent efforts to recover the chattel - A resort to any force at all is not justified until a demand has been made

for the return of the property - Necessity

- Public necessity- A party who destroys the property of another on the basis of a good

faith, public necessity will not be held liable for the damages.- Necessity of society trumps the necessity of one person

- Private necessity - A party who damages the property of another while acting out of

private necessity must compensate the property owner for the resulting damage.

- Boat and dock case - Defense to the tort of trespass, but still have to pay to repair

- Authority of law - Police officers, military, and other officials may act under authority of law,

engaging in conduct that otherwise would be tortious (132) - Can be subject to liability if use of excessive force

- Discipline - Necessity of some orderly discipline gives persons who have the control of

others the privilege of exercising reasonable force and restrained upon them - Several factors to determine the conduct was within the privilege of discipline

- Age, sex, and condition of child - Nature of child's offense and the apparent motive for it

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- Influence of child's conduct as example on other children in same family- Whether force or confinement is reasonably necessary and appropriate

to compel obedience - Whether it is disproportionate to the offence, unnecessary degrading or

likely to cause serious or permanent harm - Limited Privileges to those who are temporary responsible for others

- Justification - A catch all privilege, not usually successful - Occurs when a person acts reasonably under the circumstances to meet a duty

- There must be a (1) legal basis to act; and (2) the action must be reasonable

NegligenceDUTYBREACHCAUSATION (Cause in Fact AND Proximate Cause)DAMAGES

- A negligence formula - EVERY FACT MATTERS IN NEGLIGENCE CASES - General duty of a reasonable person in most circumstances

- Standard of care: the reasonable prudent person- What would a reasonably prudent person do under the totality of the

circumstances? - PL > B

- Probability of harm x the severity of the harm, if greater then the burden of preventing the harm, the D is negligent

- Rule: there is no special standard for people with mental disabilities - The reverse would mean that people that were injured by people with

mental disabilities would get nothing -- public policy reasons

- Standard of care: the professional - The professional standard of care asked what a reasonable professional in the

same profession would do under the same circumstances - Need expert witnesses for medical cases and an other ones that a laymen jury

wouldn’t understand (and professional malpractice cases) -- Needs to be credible witness

- Types of Standards: - Similar Communities in similar circumstances:

- About anything other than immediate access to technology has begun to disappear

- National Standard: - Specialists: Typically the national standard is applied - General, still at the national standard

- Informed consent

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- In a medical malpractice suit for lack of informed consent, the plaintiff must prove that the doctor failed to inform her of a material risk, that if she had been informed she would not have consented, and that the consequences that were not made known did occur and she was injured as a result.

- What info needs to be given? - If there is alternatives, total risks - In terms of the patients perspective

- What a patient would want to know, what would be material to the patients decision making – informed consent – what would a reasonable patient want to know

- Exceptions: - Risks that ought to be known by everyone - Would it emotionally alarm or upset an apprehensive

patient (this can be objective) - Emergency

- Question: did the thing you were not informed of happen?

- Standard of care: aggravated negligence - Degrees of care

- Reasonable care, extraordinary care, the highest degree of care - The more dangerous the circumstance-- the higher the degree of care

- Rule of law - Alternative way of establishing breach of duty - Breach of duty without directly analyzing common law standard of care

- Rule of law // Negligence per se // Res ipsa - Negligence per se

- Protect a class/group of people of which P is part from the sort of harm the P incurred

- Establishing Negligence per se 1. look at the statute 2. who does the statute protect 3. what does the statute protect against4. did the D fail to protect the P from that?

- If so, negligence has been established o Still need to prove causation and damages

- Negligence per se, can still be reasonably prudent and break the law and be liable under this - Short cut or sometimes the only way of showing a breach of

duty - Creates a rebuttable presumption

- Prima facie (rebuttable presumption) negligence: shifts the burden of proof to the D to show that he wasn’t negligent

- Proof of negligence: Res Ipsa Loquitur - Where the deed speaks for itself

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- Another way to establish negligence – creates an inference of negligence - Elements to establish a claim

- Not the sort of thing that happens without negligence - D in exclusive control OR all other possible causes include action of the

P or 3rd parties are sufficiently eliminated

Cause In Fact- Sine Qua Non

- An essential condition, a thing that is absolutely necessary - SUBSTANTIAL FACTOR TEST

- Have to know if it was a factor of bringing about the harm - Would it have happened regardless?

- Proof of causation - There can be negligence, but need to show that the negligence caused the

injury - Cause in fact

- Substantial factor – have to show - But for causation

- Substantial factor - But for the D negligence, the injury would not have occurred

- Daubert Test - Good science --scientific knowledge - Fit requirement

- Relevant to the task at hand, establishing causation or breach in duty -- adequate facts

- Does it at least double the risk?? - P must produce evidence reasonably inferring the negligence D caused P’s

injuries - Dauber standard for whether scientific evidence is reliable:

- Is it good science derived via scientific methods - Accepted by community? - Publication/peer reviewed? - Can it be tested? Was it? - Known/potential error rate? Is it acceptable?

- Is the scientific testimony relevant to the purpose it is offered for?

- Does it logically advance a material aspect of the proposing party’s case

- Test: did the negligent act/phenomena double the likelihood of the harm?

- But for causation - But for If Y hadnt happen, x wouldn’t happen - NOT If y wouldn’t have happened, x wouldn’t have happened - Still have to establish substantial factor and proximate cause

- When two causes merge together to cause a harm--don’t use but for causation -- just use substantial factor

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- Problems in determining which party caused the harm - Multiple causes (also comes up in joint and several liability) - Joint and several liability

- Both parties are 100% responsible, practical matter split 50/50 - Burden of proof

- P has the duty to prove all elements of the case (initially-- can sometimes switch (parts of it))

- Case example: Summers v. Tice –quail hunters, two shot the third in the face – unknown who shot the bird and who shot Summers – both held fully liable for injuries, and determine a fair apportionment of damages among themselves

- Market Share liability - Can identify 90% of the market, 10% unknown - Anyone who isn't able to show they were not responsible is

proportionally liable based on their share for that 10% - 90% of the known market responsible for 100% of the harm - The P gets 100% of the damages

Proximate Or Legal Cause- Cuts off the causal connection because it determines there is not legal causal chain

o Liability determined by time, space and foreseeability o Just become something is unlikely to happen, does not make is less foreseeable

- Unforeseeable consequences - A consequence of negligence does not have to be foreseeable to be actionable. - Consequences which follow in unbroken sequence, without an intervening

efficient cause, from the original negligent act are natural and proximate - When scope of liability arises in a negligence case, the risks that make an actor

negligent are limited to foreseeable ones, and that the fact finder must determine whether the type of harm that occurred is among those reasonably foreseeable potential harms that made the actor's conduct negligent

- Palsgraf v. Long Island RR Co. - D cannot be held liable for negligence for actions that cannot be

reasonably foreseen - Majority opinion

- no duty owed to her in relation to the incident – the breach of duty was to the person pushed on the train and could be harmed by that, but not her

- Dissent - Says that foreseeability relevant to proximate cause also - Proximate cause – the damage that results from your action –

what that harm causes and the result of that - Breach of duty:

- Reasonably prudent people generally act to avoid foreseeable harm

- Balancing approach: Time, space, foreseeability

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- Intervening causes - Intervening superseding cause -- always cuts the causal chain

- Unforeseeable // extraordinary // independent from D conduct - Proximate cause

- Foreseeability // Time // Space - Not an easy test to meet

- A criminal act of a third party that causes harm in concurrence with a negligent act is generally not a reasonably foreseeable consequence of the negligent act.

- Suicide: - Was there an irresistible impulse? - If not, cuts the causal chain

- The Rescue Doctrine - Danger invites rescue - Negligent D is liable for the damages caused to a person who tries to

rescue the person affected by the D’s negligence

- Public policy - Public policy cases to show that proximate cause can sometimes be created by

public policy - Public policy can create something that is foreseeable - DES cases – exception to most rules

- Harm to a mother, which results in harm to a later-conceived child does not establish a cause of action in favour of the child against the original tortfeasor

- Albala rule - An injury to a mother, which results in injuries to a later-

conceived child does not establish a case of faction in favour of the child (3rd generation)

- Three ways to find proximate cause - Intervening superseding - Public policy - Time/space/foreseeability

- Things that are not close in time and space but are foreseeable – there is liability and proximate case

- General matter—if no foreseeability, no proximate case - Proximate cause is a balance of factors within the totality of the circumstances

Joint Tortfeasors- Liability and joinder of defendants

- Comparative negligence - Pure: P is responsible for the % that they did, the D pay the rest - 50/50 P can be responsible up to 50% of the damages, if more, they

don’t recover - 49/51 P c can be responsible up to 49% of the damages, if more, they

don’t recover- IL RULE/majority rule

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- Comparative negligence doesn’t get rid of joint and several liability - Minority rule: Joint and several liability does not apply in a pure comparative

negligence system minority rule

- Satisfaction and release - Satisfaction of a judgement against one tortfeasor discharges the other

tortfeasors - Can only get 100% of the judgement and no more - Can only get one satisfaction

- Covenant not to sue- Where a contract releases one joint tortfeasor from further liability, but

expressly reserves the right to sue other joint tortfeasors, a court will not construe the contract otherwise.

- If you settle with one party, that $$ gets deducted from what the other parties have to pay (if its not a 100% settlement)

- Contribution and indemnity - Contribution occurs when Defendant 1, as a tortfeasor, was forced to pay for

the damages award and wants to bring other defendant tortfeasors into the action to help pay the damages award.

- Defendant 1 can sue any parties they like but cannot request contribution from an immune defendant.

- Defendant 1 cannot file a contribution claim against another defendant who settles with the plaintiff unless the settlement shows fraud, collusion, or bad faith.

- Indemnity: Defendant 1 pays 100% of the damages award for the actions of Defendant 2 (or of someone else) due to a special relationship the two defendants share.

- Defendant 1 was held liable for something that was not a cause of fault through their own action.

- Defendant 1 will have to file a separate action for indemnity against Defendant 2 in order to recover the award Defendant 1 already paid.

- Indemnity claims are for the full amount Defendant 1 paid.

Duty of Care- Failure to act

- Legal duty test: - The P must establish there is a special relationship either between the P

and the D or the third-party criminal and the D - Only once something becomes foreseeable, there is a duty to protect those in

the special relationship - Duty to rescue

- People do not usually have a duty to rescue others in harm through statute, even if there is a moral duty to do so

- Exceptions

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- When a wife has actual knowledge or a special reason to know of the likelihood of her husband engaging in sexual abuse against a particular person, she has a duty to prevent or warn of the abuse.

- When a therapist learns from his patient about intent to do harm to a third party, the therapist has a duty to take reasonable precautions given the circumstances to warn the potential victim of danger.

- Generalized threats v. specific threats

- Pure economic loss/harm - Only area where privity still matters- When someone's negligence AGAINST SOMEONE ELSE creates a purely

economic injury for a third party - No damages

- Emotional distress - Negligent infliction of emotional distress (NIED)

- Where a physical injury results from negligently induced emotional distress, the plaintiff may recover damages even if no physical impact occurred at the time of the negligence.

- Level of harm is different between NEID and IIED- Level of decency that someone can take v. a breach of duty - Intent of the actor v. negligence of the actor - No reasonable person should be expected to bear -- IIED - Severe emotional distress-- NIED

- If there is physical injury, not need NIED - Necessary Factors to recover (481)

- The P may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if, but only if the P:

- Is closely related to the injury victim - Who counts as family

- Under Thing it has to be a blood relative in a close relationship. The majority rule looks at the actual relationship between the injured individual and the family member claiming NIED.

- Is present at the scene of the injury -producing event at the time is occurs and is then aware that it is causing injury to the victim

- As a result, suffers serious emotional distress -- a reaction beyond that which would be anticipated by a disinterested witness and which is not an abnormal response to the circumstances

- Hyper-sensitivity - Court doesn’t want to recognize damages for hyper-sensitive individuals - Its not a predisposition towards something (not the eggshell skull rule)

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- Wrongful birth claims - Parents can recover for injury/death of fetus, child can only recover if they are

born with injuries

Owners and Occupiers of land- Outside the premises

- General standard: reasonable care to prevent a reasonable risk - Need to look at the totality of the circumstances

- Artificial conditions on property - Once you modify, the property duty goes up – have a duty to take

reasonable precautions - On the premises

- Trespassers - Basic duty to unknown/unexpected -- duty not to act wilfully or

wantonly -- what is reasonable under the circumstances - Duty to warn, but not necessarily to take reasonable precautions

- Licensees - Only duty is to warn if they were owner was aware of the risk and visitor

wasn’t - Invitee

- Duty of reasonable case under the totality of the circumstances – duty to make the premise safe to the extent that a reasonable person would do

- Very important: Time can be another factor - People outside the established categories

- Children - Higher standard of care to kids

- A possessor of land owes a duty of reasonable care to entrants on the land with regard to natural and artificial conditions, among other things

- Persons privileges to enter irrespective of landowners consent - If landowner knows they are present, have to warn

- The proper test to be applied for determining the liability of a landowner is whether in the management of his property he has acted as a reasonable man given the probability of injury to others.

- Standard-- act like a reasonably prudent person under the totality of the circumstances

- Categories are gone, but the fact that someone is a trespasser, licensee or invitee might be relevant as part of the totality of the circumstances under the general reasonableness standard

- What are you to do? - Invite a different standard to known trespassers (old licensee standard)

-- duty to warn of risks on the property once aware they are on the property or if you know there is often trespassers on the property

- Lessor or Lessee

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- Old Standard: A landlord is liable to a tenant and others for defective conditions on the property existing at the time of the lease if: all of these are the exceptions to the general rule that the tenant is responsible for anything on the property

- (1) the dangerous condition is known to the landlord and the lessee does not know or has no reason to know of it; undisclosed dangerous conditions

- (2) the condition is dangerous to others outside the property; - (3) the property is leased for admission of the public; - (4) the landlord retains control over parts of the property and the lessee

is entitled to use those areas; this is a big one - (5) the landlord contracts to make repairs; or - (6) the landlord is negligent in making repairs.

- If one of these don’t apply, the landlord is not responsible - New standard: that a landlord must exercise ordinary care in the maintenance

of his leased premises. - Reasonably prudent landlord

- Landlord has a duty to maintain common areas, particularly when you know, or should have known, there is a specific risk

- This analysis applies, no matter which rule applies

Overview of Damages - Proof of damages is an essential part of the P causes of action in negligence and

strict liability - Question of how much damage P suffered is often at the heart of the dispute - Types of damages

- Nominal Damages - Small sum of money (typically $1) - Awarded to P in order to vindicate rights, make the judgment

available as a matter or record- Compensatory Damages biggest one

- Intend to represent the closest possible financial equivalent of the loss or harm suffered by the P, to make the P whole again

- Punitive Damages - Additional sum over compensation of the P, awarded to punish

the D - Aka exemplary -- To make an example of a D

Survival Action and Wrongful Death - Survival action:

o Person who died claim -- for the pain and suffering before death o Action brought on behalf of the P for the P pain and suffering o Got rid of the idea that a D dying would end the action

- Wrongful Death o Family's claim

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o Claim brought by the FAMILY of the P, for their loss of the P Spouse/parent, can be significant damages in terms of loss earnings and

such Other: not someone earning wages for the family, the loss is still huge

and will be compensated Immense emotional loss Can recover for emotional harm

- You can have both claims

Defenses - Plaintiff’s conduct: Contributory Negligence

- Most jurisdictions got rid of this – if the P was negligent (even just a little) they got zero

- Exception: last clear chance rule - Last opportunity to avoid the harm was D (if by exercise of reasonable

care, could have avoided the consequences of the P’s negligence)

- Plaintiff’s conduct: Comparative negligence - Types of comparative negligence

- Pure - P recovery is reduced by the percentage of fault attributable to

the P- Compare the P negligence to the D

- 50/50 - P recovery is reduced by the percentage of fault attributable to

the P as long as the P fault is "not as great as the D" - If the damages are 50-50 each responsible. P gets 50

- 49/51- P has to be less negligent than the D - Only makes a difference over 50/50 when the case is actually

50/50 -- In that case, P gets nothing - Role of the jury very important – has to be instructed for 50/50 and 49/51

jurisdictions

- Plaintiffs Conduct: Express Assumption of Risk - Most jurisdictions would look at the necessity condition and if the clause is

necessary to a reasonable reader - Three that render exculpatory clauses unenforceable

- When the party protected by the clause intentionally causes harm or engages in acts of reckless, wanton, or gross negligence

- When the bargaining power of one party is so grossly unequal so as to put that party at the mercy of the others negligence

- When the transaction involves public interest (Necessities)- Blackburn v. Dorta

- If your jurisdiction has adopted comparative negligence, assumption of risk is gone

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- Example of going into a house fire for a child v. a hat

- Statutes of limitations- Claims must be filed within the time of the statute of limitations

- If filed outside, lost your claim - When does the statute begin?

- Some states time of accident, others the time you know you are injured - If it’s the kind of injury that wouldn’t show up till later -- then when you

know - Tolling statute of limitations

- Clock doesn’t start till a certain time or will pause in the middle - i.e. Clergy issues -- Cover-ups, trauma later

- Immunities - Privilege

- Avoids liability for tortious conduct only under particular circumstances, and because those circumstances make it just and reasonable that the liability should not be imposed

- Immunity - Avoids liability in tort under all circumstances within the limits of the

immunity itself - Does not deny the tort, but the resulting liability

- Spousal immunity is gone - Parents and those in loco parentis are immune from being sued for negligent

parental supervision. - Not going exclude step-parents from being parents - Loco parentis is required

- Acting as a parent -- duty to support and educate child as a natural parent -- what is the role of this individual in the kid’s life?

- ALMOST every state has an exception for auto cases - If driving, have a duty not to drive negligently, can be liable

- Parental immunity does not apply to intentional torts (abuse)

Vicarious Liability- When one person or entity is responsible for the negligence of another - respondeat superior – where an employer is liable for negligence of an employee

o Do not confuse with direct liability Direct liability -- involves things like negligent supervision and

hiring/training o Normally coming and going to work, not vicarious liability ("coming and going

rule") Exceptions

Holiday parties for work Employees are exposed to something at work that contributed

to the accident on the way home from work

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o Is the employee acting within the SCOPE OF EMPLOYMENT Was the employee involved in a substantial deviation from work?

o Several factors have been identified as helpful in determining whether an employee has embarked on a slight or substantial deviation: (factor balanced)

Employee's intent The nature, time and place of the deviation The time consumed in the deviation/extra distance The work for which the employee was hired (something part of a job) The incidental acts reasonably expected by the employer (eating) The freedom allowed the employee in performing his job

responsibilities o Frolic -- abandonment of employer's business while in pursuit of employees

own personal business i.e. someone who stops at a horse track or casino while on business

o Detour -- slight deviation from employer's own business for employee's own reasons

Have to stop for the bathroom/get gas/food that is reasonably close

- Independent contractors o An individual engaged in working for a company where the company has no

control over the exact manner in which the individual completes his work is an independent contractor and the company is generally not vicariously liable for his torts.

o Non-delegable duties --> if there is a non-delegable duty THERE IS NO VICARIOUS LIABILITY (grave threat to the public)

- You are responsible for the condition of your car even if someone's negligence in repairing caused the accident

o Indemnity -- suing someone for the full amount of having to pay someone else Always a separate suit

o Contribution -- if negligence is both of them (driver and mechanic)

Strict Liability- Animals

- Is keeping the animal an abnormal dangerous activity - If so, strictly responsible

- Domestic animals - Not strict liability unless you know/should have known that they are

vicious

- Abnormally dangerous activities - For it to be strict liability has to be a non-natural use of your property.- Strict liability is imposed on an activity when the activity is “ultra hazardous” in

that it inherently involves an abnormally increased risk of danger to others. - Factors used to make a determination on whether an activity is ultra

hazardous include: - The degree of risk of harm to others;

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- Likelihood that the harm will be severe; - Inability to eliminate the risk through use of ordinary/reasonable care; - Extent to which the activity is not common; - Inappropriateness of the activity to the place where it is taking place;

and - The extent to which the activity’s value to the community is outweighed

by its dangerous characteristics. - Usually want a negligence case as a back-up to strict liability - Rule: if due care can be used to prevent a harm, there probably isn't going to be

strict liability

- Limitations on strict liability - You are only strictly liable for the things that are likely to result from your

dangerous thing you are doing - Strictly liable for the sort of shit that makes the activity abnormally

dangerous - Vis Major is the same thing as an act of God

- Strict liability will not be imposed where the harm results from an act of God that the defendant had no reason to anticipate.

- Contributory negligence is not a defense to strict liability - comparative negligence is a defense to strict liability

- Reduces the damages - Applies to any dangerous activity

Products liability- Theory of recovery

- Negligence - Case: Macpherson v. Buick motor co. – defective wheel case

- Beginning of modern products liability - The recognition that when a manufacturer puts a product on the

market they are responsible for any harm it might cause IF THEY DON’T USE DUE CARE

- If you negligently put a product on the market, you are responsible

- Warranty - Express warranties

- Manufacturer liable where the product is advertised for a having a certain level of safety/usefulness for its purpose – you are liable for damages from untruthfulness

- A manufacturer is liable to a consumer for breach of an express warranty, even if there is no privity between the manufacturer and the consumer.

- Windshield shatter glass case - Implied warranties

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- Manufacture duty to ensure product is safe for use and suitable for purpose cant be disclaimed (cant disclaim the implied warranty – there is always an implied warranty)

- Disclaimers of implied warranties for the sale of goods and consequent limitations on liability are invalid if unfairly procured.

- i.e. saw with guard example

- Product Defects: Manufacturing Defect 1. D manufacture product defective condition when manufactured

unreasonably dangerous 2. Was expected to and did reach each consumer without substantial change 3. Condition is the proximate cause of the P injury

- Product Defects: Design Defect - Manufactures use reasonable case in design? - How to analyze design defect

- Risk utility analysis - Consumer expectation - State of art - Trade standard

- It has to be the defect that causes the harm - Look at design defects through risk-utility and consumer expectations

- What is the product // what is the use // what are the alternatives? - Product so dangerous that it cannot be made safe/has no utility but risk is

extremely high - Armour piercing bullets / Tabaco

- Product Defects: warning defect - Requiring a showing of a fault – that you knew of or should have known of the

flaw or design or the potential for warnings and didn’t warn - Common law: what you knew or should have known at the time you put it on

the market

- Proof - Have to have proof that the product defect caused the harm (enough for a jury)

- Defenses - Comparative negligence is a valid defense to strict liability - A manufacturer is not liable for injuries resulting from misuse of its product if

the misuse was not reasonably foreseen - The manufacturer is responsible for foreseeable risks

- Defendants other than principal manufacturers - Strict products liability cannot be imposed on a retailer who is outside the

original producing and marketing chain of the product - Ie. Used car salesman (they would be liable for negligence)

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