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4. Torts Full Outline

4. Torts Full Outline

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Torts II Outline I.

Strict Liability—No Regard to the Actor’s State of Mind: “One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land, or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm. A. Act 1. Abnormally Dangerous Activity a. risk of harm 1) uncertain or uncontrollable risk b. likeliness that the harm that results will be great 1) what property owner does with adjacent land c. reasonable care does not eliminate the risk d. not a matter of common usage 1) common usage a) customarily “carried on” by the great mass of mankind OR many people in the community b) ***ARGUMENTS FOR “CARRIED ON”*** 1. “Carried on” means the person or the entity who undertakes in the activity. Courts prefer easy rules because they promote predictability and consistency for future cases. Adopting this rule will further this value because it is easier to establish who carries on the activity rather than who is affected by the activity. Here, ∆ ____________ and therefore was the person undertaking in the activity. 2. Counter—“Carried on” means those persons affected by the activity. Easy Rules ignore relevant factors. Adopting this rule will further this value because the court can look to the surrounding circumstances and determine who is affected by the activity. Here, ____________ and therefore is affected by the activity. 3. Alternative--—“Carried on” means those persons affected by the activity. Crop dusting is a business the court should encourage. Adopting this rule will further this goal because crop dusting is widely used and beneficial to the citizens of the state. If the court penalizes this business for a mistake, it will deter this business. Here, ∆ ____________and therefore is affected by the activity. e. Inappropriate place 1) Where is the activity? 2) Where is it taking place?

f. Balancing the risk of the activity versus the benefit to the community 1) ***ARGUMENTS FOR RISK V. BENEFIT*** a) RISK: The court should encourage crop dusting. Adopting this rule will further this value because crop dusters can still benefit economically from spraying other farms. Because they benefit economically, they can also pay for the damages they cause. Since they can spread the cost of damage to other consumers, they can pay for damages. Here, ∆ _________________and therefore the risk outweighed the benefit. b) BENEFIT: The court should encourage crop dusting. Adopting this rule will further this value because relaxing liability for mistakes will encourage this business and will not impose unnecessary costs. Here, ∆ _______________ and therefore the benefit outweighed the risk. B. Causation—Limitation of Liability 1. Risk that makes the activity abnormally dangerous must be the risk that causes the injury. a. Risk directly effected the outcome RISK = OUTCOME b. Likelihood of harm will be great 2. ∆ is not responsible for Π ’s non-natural use of the land a. ***ARGUMENT FOR “RISK”*** 1) Risk that makes the activity abnormally dangerous must be the risk that causes the injury. People have a duty to protect others. Adopting this rule will further this value because people with knowledge of the risk are in a better position to protect others who have no knowledge of the risk, and the above interpretation reflects this. Here, the risk was __________ and caused the injury. b. ***ARGUMENT FOR NON-NATURAL*** 1) ∆ is not responsible for Π ’s non-natural use of the land. People should only be responsible for anticipated risks. Adopting this rule will further this value because it will relax liability on those who cannot anticipate the risk and prevent frivolous claims. Here, Π ________________ and there for ∆ is not responsible for the non-natural use of Π ’s land. C. Defenses 1. Acts of God a. Plainly beyond the capacity of anyone to anticipate 1) act of God not necessarily weather related 2) MAJORITY: because it hasn’t happened before 2. Contributory negligence--Π ’s own conduct 4-PART TEST a. Unnecessarily b. Probable Consequences

People will want to change their behavior because they are motivated by money. People are responsible for their own actions and should take care of themselves. Adopting this rule will further this value because liability will be placed on the careless individual and it will deter careless actions. Here. Causation 1. Majority view prefers knowledge as what the Π should have known. Risk directly effected the injury OR 2. Π was__________and therefore acted under his own power. Voluntary 1) Acting under one’s own power a) ***ARGUMENT FOR ACTING UNDER ONE’S OWN POWER*** 1. and this is a behavior they can change. Π ’s own conduct 1. 3 . 2. What activity is ∆ engaged in? Is it abnormally dangerous A. IV. d. and therefore should have known________. Acts of God B. Π was careless and therefore should have known the danger. Knowledge of the Consequences 1) Actual Knowledge or Should have known a) ***ARGUMENT FOR KNOWLEDGE*** 1. Alternative: The court should deter careless actions. Courts like easy rules. 6-part balancing test Are there any limitations? A. Strict Liability Analysis I. Voluntarily and unnecessarily putting one’s self in harms way knowing the probable consequences of his act. here. Π was an *adult. child of ___yrs old.c. Is Π engaged in non-natural use of land? Defenses A. II. III. Here. Adopting this rule will further this value because it is a consistent and predictable standard for future cases. adopting this rule will further this value because it will place liability on the person in the best position to anticipate danger and change their behavior.

__________ and therefore held to a reasonably prudent person under like circumstances. Special Relationship will determine the duty of care a) Trespasser—low standard 1) No permission to use ∆ ’s land 2) Duty arises at the moment of discovery b) Licensees—higher standard 1) Social guest 2) On the ∆ ’s property for his own purpose c) Invitee—highest standard 1) Person invited on the owner’s property 2) To further the owner’s purpose/business b. Adopting this rule will further this value because liability will be placed on the one who caused the injury rather than a burden on the innocent. Statutes 2. One who breaks the law should be liable for all results. General Rule—Reasonably Prudent Person under the circumstances a. Common Law a. Personal? 4) If unclear. make a short argument why there is a sufficient connection. Here. Situations 1) Emergency Standard a. injured party. Negligence (Cardozo) A. Are they in ∆ ’s zone of danger a) Sufficient Connection 1) Physical closeness 2) Time connection between act and injury 3) Relationship between Π and ∆ a. 4 . Professional? b. Why? ***ARGUMENTS FOR EMERGENCY STANDARD*** 1.NEGLIGENCE I. Foreseeable Π 1. 2. Π --Not held to an emergency standard. Duty of Care 1. Foreseeable Risk 1.

_________ and therefore held to a standard in an emergency. It is reasonable to expect that a person will not act rationally in an emergency situation. Arguments 1) SITS ________ is similar to a motorized vehicle because ___________. 1) Inherently dangerous activity a) Operating a motorized vehicle 1. ELEMENTS: APPLY THIS 1. IF NOT A MOTORIZED VEHICLE: a. Why? ***ARGUMENTS FOR STANDARD OF CARE FOR CHILDREN*** a) Same standard of care as adults if it is an inherently dangerous activity. The courts should discourage dangerous activities regardless of age. Children will want to change their behavior because they do not want to be in trouble. and the 5 . Situation not of ∆ ’s own making 2. If we treat _______ and ________ similarly. Those who operate _________ can be liable. ∆ --Emergency Situation Standard. and this is a behavior that every child can change. Here. Only a moment left to extricate self—TIMING 2) Traits a. Adopting this standard will further this value because it will relax liability during circumstances where a reasonable person is unable to act rationally. ∆ ’s conduct was____________ and therefore held to the same standard as a reasonably prudent adult under like circumstances. and those who operate _________ can be liable. then necessarily those who operate __________ can be liable.2. Here. Age 1. Patent danger a) Threatens your or other’s safety 1) Outside force 2) 3rd party conduct creates situation 3. The Emergency standard is: b. Adopting this rule will further this goal because children will be liable if they undertake inherently dangerous activities while preserving the encouragement of undertaking in other child activities.

∆ is a __-year-old child and therefore is held to a standard of care expected of child with similar age. General Rule OR Exception a. No liability without fault. and experience. Here. training. A person with ______ disability is similar to a person with permanent disability because _________. ∆ was operating a _______ and is therefore inherently dangerous. If we expect people with permanent disability to exercise the same standard of care as a reasonably prudent person. We want to encourage children to pursue childhood activities without the same burden and responsibilities with which adults must contend. b) Exception to the rule. Adopting this interpretation of reasonable care will encourage children to pursue such activities without the burden adults contend with because they will not be liable for acts that require an adult capacity and judgment. then necessarily the person with __________ disability is held to the same standard of care as a reasonably prudent person.above rule reflects this. People who are temporarily incapacitated mentally have no ability to anticipate consequences. May be heightened if these factors are high: a. experience. and a person with _______ disability is similar. Reasonably prudent person—General Rule 1) Which One and Why? a) Reasonably prudent person—similar interests are treated similarly. Here. Physical Disability 1. intelligence. maturity. Fault requires the ability to anticipate consequences of one’s action. Child with heightened age. 1. b. and maturity. and therefore cannot be at fault. b) Standard of care of a child with similar age. Here. ∆ is temporarily incapacitated 6 . Here. intelligence. experience etc. ∆ has ____________ disability and is therefore held to the standard of a reasonably prudent person in like circumstances. training.

Lawyers 1. Must not have notice or forewarning c. Physicians and medical facilities a) Locality Rule 7 . The mental condition must affect: b. Best Judgment a) Not a mere error of judgment BUT b) LACK OF Discretion 1) Subjective good faith determination 2) Argument—SITS. 3) Argument—SITS. Understanding and appreciation of the duty AND d. Adopting this rule will further this value because it will not preclude one’s liability for an injury on an innocent party who had no control over the situation. Doctors = Lawyers 3. ∆ has _________ disability and should therefore be held to the standard of a reasonably prudent [disability] person. Reasonably prudent blind person.and therefore is held to relaxed standard of care. People with physical disabilities are similar to other people with the same disabilities because their lifestyles require an enhancement of other senses and activity to make up for those that they lack. b. b. Physical Disability 1. Exercise of Due Care a) Mechanical determination 1) Example—failure to research claim 2) Failure to file before the statute of limitations has run. The ability to control conduct OR c. Doctors = Lawyers c. Comparable to professional with the same learning skill and ability as another similarly situated in the profession. __________ and is therefore held to the standard of a reasonably prudent person. Requisite knowledge a) Usually conceded 2. 3) Professionals a. Here. General Rule—Reasonably prudent [professional] in similar circumstances 1. What standard and Why? ***ARGUMENTS*** a. Here. General Rule—one who breaks the law should be liable for all resulting injuries.

2. ***ARGUMENT IN SUPPORT OF CHOICE*** a. The courts should encourage high quality medical care. Was the Risk something the ∆ should have foreseen OR was conduct reasonable or unreasonable 1) For liability. Social Policy. ethnic compound. c) National Standard—Admininstrability. ∆ is ___________ and should therefore be held to the standard of a similar community. Burden should be measured by what the ∆ knew or should have known. Adopting this rule will further this value because it will place liability on those who are in a better position to know of 8 . Looking through the Eyes of the Defendant a. The national standard will discourage the hospital form caring for their patients because they will not want to be liable. the probability and gravity of the injury must outweigh the burden of adequate precautions—BALANCE a) Burden 1. ∆ argues HIGH—REASONABLE INSPECTION b. Here. The court should encourage safety towards other individuals. ∆ is _______ and should therefore be held to the national standard. The court is in a better position to hear and decide facts of similar localities based on demographics. b) Similar Rule 1) Institutional Competence. Π argues LOWER. Adopting this rule will further this value because the other standards. Knowledge a. Π argues LOWER 1) ACTUAL KNOWLEDGE OR 2) CONSTRUCTIVE KNOWLEDGE 2. ∆ hospital/physician is ________ and should be held to the local standard. such as the local rule and similar rule breed a sub-standard of medical care. Here.1) Argument—The court should encourage medical profession the provide medical care for their community. Adopting this rule will further this value because the legislature cannot provide an accurate determination on a national basis. Here. and socioeconomic issues such as funds and expenses.

∆ __________ and is therefore held to the higher standard of reasonable inspection. this is a behavior that people can change. Duty to warn if: 1) Hidden danger 9 . If Licensee: a. and the above interpretation reflects this. Holding ∆ s liable for failure to inspect every aspect of their land would discourage the free use and enjoyment of one’s land and would therefore contradict the policy. Finally. Liability will encourage people to change their behavior. ARGUE: Moment of Discovery OR reasonable effort to reduce the risk 1) Π : Look to the ∆ ’s conduct. and the above rule reflects this. Here. Adopting this rule will further this value because the party causing the injury is in a better position to protect the innocent. Social policy should encourage the free use of one’s land. ∆ must make a reasonable effort to reduce or avoid the risk to trespassers because one who breaks the law should be responsible for the resulting injuries. ∆ ______ and therefore should have known of the danger.the danger. Here. Here. ∆ ’s conduct was ___________ and therefore must make reasonable effort to reduce or avoid the risk. ∆ ___________ and therefore did/did not have actual or constructive knowledge. FOR KNOWLEDGE. Adopting this interpretation will further this value because the court will discourage trespassing and impose liability only when the ∆ can actually anticipate an injury. 2) ∆ : The moment of discovery means actual discovery or knowledge because the law should discourage trespassing. If TRESPASSER a. 3. 4. b. ∆ argues HIGHER—The burden should be measured by whether the ∆ should have known through reasonable inspection that the danger exists. injured party. Another decision would encourage trespassing because the court will condone trespassing by imposing a harsh duty on the ∆ . Here. and the above rule reflects this.

the owners will change because of liability. ∆ Should reasonably anticipate that Π might still be injured.2) Unknown to the licensee 3) And known to the owner a) if known to the owner. Adopting this interpretation will further this value because fault requires the ability to anticipate injury. Adopting this rule will further this value because the court will deter owners from having unsafe facilities for their customers. ∆ ___________ and therefore knew or should have known _____________. and therefore should be treated as a licensee. Open to the public b. look to the TIME that has passed (BARMORE) b) Π : Constructive Knowledge ARGUMENT. Unreasonable danger known to the ∆ c. Here. c) ∆ : The sole benefit is to the licensee because of purpose. _________. The law should not make business’ insurers of all their customers because there is no liability without fault. and the owners can take measures to safeguard their premises. scope. and business managers and owners cannot anticipate injuries to every customer that enters the establishment. What conduct could the ∆ take to reduce the Risk? 10 . If there is a great danger and the owner has warned the Π : a. Here. ___________. and time is __________. Customer: 1) Invitee has done business in the past 2) Is currently doing business 3) Will do business in the future a) Π argues that the ∆ knew or had reason to know the Π was a customer because the law should encourage safe facilities for customers who are actually beneficial to the owner. 6. Π ‘s purpose. and time. 5. 1) Actual or Constructive ARGUMENTS 2) Reasonable Inspection ARGUMENTS 7. If Invitee: a. A duty to warn is insufficient is some circumstances if b. scope.

2) Π does not want to isolate. purpose. Monetary loss? I. FACT ANALYSIS a. FACT ANALYSIS c) Gravity of the Injury 1. Π argues high—likelihood of damage of appreciable weight and moment a. and Comments 4) Penalties 5) Is the statute silent on the issue? a) Argument—if its left out. ∆ argues low—unusual. Notes. Look to: 1) plain language and definitions 2) Title. and Date 3) Amendments. Negligence Per Se *Foreseeable Π (Common Law) = Class of Persons (Statutory Breach)* *Foreseeable Risk (Common Law) = Class of Harm (Statutory Breach)* Source of Duty A. legislature did not intend to include it 11 . FACT ANALYSIS 1) ∆ would want to isolate the burden from probability and injury. weight = severity b. Total loss? b.a. City or County Ordinance C. Regulation Breach A. b) Probability 1. Π is in the class of persons that the statute is intended to protect 2. extraordinary. The harm is of a kind that the statute was intended to prevent a. 2. rather weigh against other factors. moment = time 3. State Statute B. II. and improbable because it never happened before. Violation of the Statute 1. Minor loss? c.

No statute 2. legislature left it to the court for interpretation 6) Case Law B. Injury would not ordinarily occur absent some negligence a. Here… Res Ipsa Loquitor I. Injury was not due to any voluntary action of the Π 3. The court is a better forum to decide this issue because there are relevant facts that surface in the courtroom that the legislature has no access to. It is an alternative pleading in favor of the Π B. Evidence of Negligence 3. If elements are met. Instrumentality must be in ∆ ’s exclusive control 4. Obvious to a lay person OR b. Exclusive control 1) Sole Possession 12 . Rebuttable Presumption of Negligence a. If there is a violation 1. No one knows who committed negligence b. Negligence as a matter of law is too harsh of a standard because the party’s case will automatically be dismissed. Burden is on the party who violated the statute 1) Common practices 2) Common knowledge 3) Violation was reasonable 2. and unequivocal b. Adopting this rule will further this value because the court can hear evidence and choose whether the violation was reasonable as opposed to a strict application of the law which may be unreasonable. When does it arise? 1. Usually some type of expert testimony 2. No knowledge of ∆ ’s conduct a. Rule 1. Res Ipsa Loquitor A. and the court would encourage unjust enrichment. burden shifts to ∆ to disprove negligence a. relevant factors will be ignored. The rebuttal must be strong. Negligence as a Matter of Law 4) Argument: Evidence of negligence as a standard is too discretionary and yields unpredictable results.b) Argument—if its left out. credible. Violations of statutes are fact-specific and therefore a rebuttable presumption of negligence should be the standard.

b) Alternative: No liability without fault. Factual 1. Test: a. Adopting this interpretation will further this value because fault requires the ability to anticipate injury.. II. the instrumentality was in sole possession of ___________ and therefore has exclusive control. and people can expect that their safety is ensured. b) Alternative: The court should encourage people to tell the truth about an injury. and the above rule reflects this.. Here. Adopting this interpretation will further this value because it is easier to decide if one person has sole possession as opposed to multiple persons. and the above rule reflects this. and the court might impose liability on an innocent party who did not have sole possession of the instrumentality.a) Argument: Exclusive control should be defined as sole possession because the court prefers a consistent and predictable standard for precedent. Did ∆ ’s conduct contribute sufficiently to Π ’s injury so a jury could conclude that ∆ is a cause in fact of Π ’s injury 3. Here. Adopting this rule will further this value because liability will be imposed on everyone who is in control of the instrumentality that caused the injury. the instrumentality was in the sole possession of ___________ and therefore has exclusive control. especially when dealing with multiple parties. BUT FOR—ONE CAUSE/ONE ∆ 1) ∆ ’s conduct is a cause in fact if the event would not have occurred “but for the ∆ ’s negligence. a) Take away ∆ ’s conduct—if injury would occur anyway there is no liability b. Causation A. Was the ∆ a cause in fact of Π ’s injury 2. Adopting this rule will further this value because it will encourage the ∆ s to come forward with the truth instead of keeping their mouth shut about the fucking injury. Here. and the above rule reflects this. the instrumentality was in possession by multiple ∆ s and therefore was in their exclusive control. SUBSTANTIAL FACTOR MULTIPLE ∆ ’s and CAUSES 1) ONE KNOWN AND ONE UNKNOWN CAUSE: a) Unknown = injury THEN no substantial factor 13 . 2) Custody over instrumentalities a) Argument: Exclusive Control should be defined as custody over the instrumentalities because it is reasonable to expect that a person’s safety does not lie in the hands of one individual.

NOT DISPROVE THE CAUSE 1) POLICY—otherwise. than each tortfeasor is a substantial factor and splits the cause of liability. 3) FAILURE TO DIAGNOSE or similar events (Usually Med-Mal) a) If ∆ ’s conduct INCREASED the risk of harm AND b) Contributed significantly to Π ’s injury (JURY QUESTION) THEN c) ∆ ’s conduct was a substantial factor d) liability is limited to the amount the ∆ contributed to the injury 4) BURDEN OF PROOF a) Π must prove by a PREPONDERANCE OF THE EVIDENCE (50%) b) ∆ MUST ONLY PROVE HIS CONDUCT WAS NOT SUBSTANTIAL. there is a reasonable expectation that they will perform the same act. they have implicitly agreed to accept one another’s responsibility. the burden of proof would shift because ∆ would have to prove the cause.b) Known + Unknown COMBINE to produce something greater and = injury THAN substantial factor c) Known + Unknown MINGLE or ONE SWEEPS OVER THE OTHER THAN DO A FACT ANALYSIS/ARGUMENT 2) KNOWN CAUSES a) If the two known causes COMBINE to produce the Π ’s SOLE INJURY. ONE CAUSE (RARE) a) ∆ s must be ACTING IN CONCERT 1) Implicit agreement to act negligently 2) Between two parties 3) Whether or not they no each other 4) POLICY IN FAVOR—Reasonable expectations—if two parties have an implicit agreement. 5) TWO DEFENDANTS. c. If the act is negligent. ALTERNATIVE TO SUBSTANTIAL FACTOR 1) ∆ ’s conduct GREATLY MULTIPLIES the risk AND 2) Naturally leads to the occurrence DEFENDANT’S NEGLIGENT INJURY CONDUCT FORESEEABLE CONSEQUENCE 14 . and this is to great a burden to place on the ∆ .

a. b. When negligent conduct creates a risk. setting off foreseeable consequences that lead to the Π ’s injury. ∆ created X risk. III. Protecting investments c. Structured Settlements—usually for children a. and therefore supercedes ∆ ’s original negligent conduct. although negligently. Incapacity b. Background 1. Here. thus breaking the chain of liability. has created an entirely different risk. _______ created Y risk. INTERVENING CAUSE 1) The consequences would still occur and directly flow in the events 2) Does not break the chain of liability c. Lump sum payment 2. FORESEEABLE CONSEQUENCE 1) ∆ ’s conduct naturally or ordinarily leads to the consequence 2) Injury is within the scope of risk created by the ∆ ’s conduct a) IS THE CONSEQUENCE LIKELY TO OCCUR AS A RESULT OF ∆ ’s NEGLIGENT RISK CREATING CONDUCT 3) Do not look to the exact sequence of events—any and all risk creating acts leading to the injury is controlling 4) ARGUMENT--∆ is in a better position to avoid the consequence than the innocent injured party is. PROXIMATE OR LEGAL CAUSE 1. Independent acts that create new risks to the plaintiff and cause different injuries not foreseeable to a ∆ who. Fault requires the ability to avoid consequences. Over a period of time: WHY? 1) Annuities—high interest = more money 15 . SUPERCEDING CAUSE breaks the chain of liability IF: 1) Independent Act AND 2) Different conduct creates a new risk AND 3) Injuries are so different from the injury that would result from ∆ ’s conduct OR 4) Independent criminal act MAY break the chain of causation because criminal conduct is not foreseeable to the ∆ 5) ARGUMENTS—There is no liability without fault. the conduct is deemed the proximate cause of the injury.B. Damages A.

Loss or Impairment of Future Earning Capacity 4. Why not? 1) Less common for older Π s 2) Π Might not want to wait 3. future medical care. Reduced Life Expectancy D. Hypo in class—pregnant mother who became vegetable after routine c-section: loss of household services. Federal Income Tax C. Per Diem 4. An injured party who is not conscious of the loss cannot benefit from an award of damages. 2) Administrability—you are either conscious or unconscious 3) Unjust Enrichment 3. Reasonable b. B. a. breach. Collateral Source Rule Coll. and causation a. Duty and breach 1) Π ’s standard of care 2) BAP v. Loss of Enjoyment of Life a. Physical Pain and Suffering. ∆ must prove Π ’s duty. Two Steps in Defense Analysis 1. future earnings. Affirmative Defenses A. E. Economic Losses 1. Lost Wages 3. Must be conscious of the loss 1) Arguments—Reasonable Expectations: a reward for damages should benefit the injured party in the future. public sector job. or reckless. Income is not calculated or known to the jury at trial to prevent prejudice or leniency to the ∆ . Expert testimony—anticipated costs 2. Medical expenses a. Punitive Damages: not in negligence unless ∆ ’s conduct is willful.2) Guaranteed income 3) Tax Free d. IV. Prob x Injury (Π ’s own injury) 3) BAP = knowledge and steps to reduce risk 4) Prob = Π ’s conduct increasing the likelihood of the injury 16 . wanton. Future Inflation 6. Mental Anguish 2. Non-Economic Losses 1. permanent disability. Damage Calculation: Present Value 5.

Π cannot recover ii. General—total abandonment of the immunity 17 V. If Negligent. Usually settle before trial because juries usually say “you’re both equally negligent” c. If Π ’s negligence is greater than 50%. either express or implied can meet the AOR test Immunities A. Effect of Negligence a. Causation 1) Factual a) “But-for” won’t work because there is probably 2 causes b) Substantial Factor Test 2) Proximate Cause a) Π ’s conduct  Foreseeable Cons.  Injury b) Π ’s conduct either intervening or superceding c) Consequences must be within the scope of risk c. Abrogation a. . Complete Defense and Bar to Recovery—USE THIS AS A THRESHOLD QUESTION B. Go To: EFFECT OF NEGLIGENCE 2. and its fair to both parties who are equally at fault. Assumption of Risk 1) Actual Knowledge of risk 2) Voluntary encounter 3) Appreciation of the magnitude of danger/risk 4) Waiver or consent. Contributory Negligence 1) No Recovery 2) Exceptions a) Last Clear Chance Doctrine b. Π ’s negligence must be less than 50% in order to recover ii. 2) Pure comparative approach a) Π can only recover the percentage he was not at fault 3) Modified comparative negligence a) PA—50/50 Rule i.b. Interspousal immunity 1. Comparative Negligence 1) ARGUMENT—fairness and Administrability—easy standard to apply. Π prefers this argument but requires more litigation b) 51/59 Rule i.

Heightening the standard will encourage parents to use higher care for their children and encourage a change in their behavior as a result. Conduct integral to parenting duties. the individual should be entitled to recover for injuries sustained because the innocent injured party is not in a better position to protect itself from injury. yes. Therefore. A ∆ ’s child should not be excluded from this category because a parent’s negligent conduct. thus Partial abrogation—preserve the institution of marriage C. there should be no immunity when a parent injures his or her child when acting negligently outside the role of parenting. Performing a non-discretionary act 1) No Immunity c. Partial—limited to only special circumstances c. no immunity should be had b. not integrally related to parenting duties. Injury by a defective product—Generally 18 . 2. no a. Parent-Child Tort Immunity 1. The court should encourage parents to exercise a heightened standard of care when dealing with their children because children cannot easily protect themselves from dangers. the immunity should be abrogated. Arguments 1) In favor of general abrogation—administrability 2) Against general.b. Argument—it is reasonable to expect that a parent can be sued by anyone if his or her negligent conduct causes an injury. Performing a discretionary act 1) Immunity applies b. mistake = no immunity Products Liability I. 2. Conduct that is separate from parenting duties. Example: Police complaint—judgment call = immunity. D. General Abrogation—Reasonable Parent Standard a. Municipal or Local Government—Most states say no immunity (PA— general abrogation)—POLICY ARGUMENT: When the state causes injury to an individual. Partial abrogation—car accidents. negligent supervision. Therefore. immunity should be had c. causes injury. Arguments—requires a heightened standard such as this because it fits situations where parents are most likely negligent. Governmental Immunities 1. Partial Abrogation a.

where the product is designed correctly. Manufacturing Defects 1. Consumer is seeking the product. 402(a) has been adopted by the state supreme courts across the nation as the standard for manufacturers Sale of a product A. 2) ∆ argues SERVICE a) the essence of the transaction is the provision of service. the hybrid does not fall within the scope of “product” for liability purposes. Thus. When the courts are dealing with a new category under strict liability such as the product service combination. Imposing liability for defective products in connection with services will assure the safe implementation of products when the consumer is seeking the product. and the company can and will change its behavior accordingly. not selling the kidney itself.II. verbal 2. the court should defer to the legislature to make the determination and rule accordingly. but the particular product that caused the injury deviated from the intended design 19 . Recovery for negligence—focus on the conduct of the ∆ B. written b. Product and service hybrid 1. judgment. Recovery for strict liability—focuses on the product itself without regard to ∆ ’s conduct C. III. Π argues PRODUCT a. not the product itself. Defective Condition Unreasonably Dangerous A. representations a. not just the service 1) Example Kidney Donor Company—organ for profit: an entity that profits from the product is in a better position to absorb the cost of liability and spread it to its consumers. b) Example Kidney donor company: company acts as a middle-man for the selection of the kidney. if the service depends on the skill. the court should rule according to the essence of the transaction. Recovery for breach of warranty 1. A. Since the legislature has not expressed whether a product service combination is necessarily classified as a product for strict liability purposes. and experience of the provider. product falls below expectations D.

expert testimony 2. Consumer—mfg is in a better position to absorb the cost of liability and spread the cost amongst the consumers of the product. Design Defects 1. other owners 3. focus on UNREASONABLY DANGEROUS a. but highly useful to the public. Looking through the eyes of the reasonably prudent consumer b. 2. ∆ argues that there was an alteration after leaving the assembly line a. request all maintenance records since the product left the assembly line to the date of injury c. employee testimony to compare standard product to defective product c. spread the cost of injury. this analysis promotes fairness because a Π will be compensated for injuries resulting from a defective product by an entity who is in a better position to reduce the risk. MFG—argues that mfgs should not be insurers of every product that is placed on the market because the product might be dangerous.’s perspective. Was the product used in its intended manner d. this analysis is fair because it reduces the likelihood that mfgs. blueprints showing a good design d. request a list of trucks that came of that line at the time of manufacturing B. will become insurers for all their products on the line and decreases absolute liability by placing the burden on the Π to prove the defect. Risk Utility Analysis a. comparable to other products b. From the mfg. Consumer Expectation Analysis a. From the consumer’s perspective. Example—Nate’s bike hypo OR 3. Argument: The risk utility analysis is a proper because the court can balance seven factors to determine who should bear the cost of injury. the risk to the consumer 1) Safety—probability x injury 2) Utility to public 3) Available substitute product 20 . expert testimony to show the building of the products b. b. and prevent future defects. Π argues that the defect was present when it left the assembly line a. Did the product perform as the reasonably prudent consumer would expect c. expert testimony b. Did the defective product proximately cause the injury e. b. Imposing liability would deter production of useful products. Balancing utility of the product v.a.

If a party is unaware of the risk. Failure to Warn in Strict Products Liability 1. Π : Mfg has a duty to use state of the art (MAXIMUM STANDARD) 1) existing level of technology expertise and scientific knowledge relevant to a particular industry at the time of marketing b. Actual Knowledge of the defect OR 2. Arguments: a. If ∆ is using the state of the art and cannot reduce risk. Defect at the time the product is placed on the market (MOST JURISDICTIONS—foreseeability before or at the time of marketing) OR b. at the time of trial (foreseeability after the fact) 5. ∆ : only a duty to use industry customs (MINIMUM STANDARD) 1) Normal or minimal standard pursuant to federal and state standards—too costly so the mfg will merely comply with the minimum c. Fault requires the awareness of the risk so the party can avoid injury. Constructive Knowledge—KNOWABILITY of the defect in light of scientific information available to the mfg 3. mfg should be liable for the knowability of a defect absent actual knowledge. D. Since mfg are also in a better position to spread the cost of injury. Π --MFG has superior access to scientific information as compared to the user of the product that may have no access to scientific information. It follows that the party in a better position to access information that would decrease the risk of danger should be responsible for the cost of injury. that the party cannot avoid the injury and should not bear the costs thereof. b. however: 1) this is no absolute defense 2) ∆ has the burden of proof because the product may still be dangerous: a) product is implementing the state of the art b) coupled with other evidence c) to justify placing the product on the market C. Defective Warnings 21 . Timing and foreseeability a. State of the Art a.4) Inability to avoid injury when exercising care in use 5) Inability to eliminate risk without impairing utility and avoiding costs 6) Inability to anticipate the risk 7) Cost spreading 4. ∆ --There is no liability without fault. ∆ will claim absolute immunity.

provide enough information of the obvious and immediate risks involved d. Knowledge of the risk b. 1. Warnings should be: a. Sale of a product. Comparative negligence does not bar complete recovery a. ∆ is not liable for some misuse. Voluntarily encounters the risk 1) ∆ argues—Π should bear partial cost of the injury in order to deter the Π ’s negligent conduct. Content 1) Seal 2) List of all obvious and immediate risks 3) Picture of the risk involved 4) How to treat the risk 5) Adult supervision suggested if children are a risk factor 6) Information number Defenses to Strict Products Liability A. If the Π is not powerless to protect itself because of negligent misuse of the product. ∆ ’s defenses 1. Π ’s prima facie case 1. Damages B. Drafting the warning label a. succinct conveyance of the message c. and steps to treat the injury after encountering the risk 2. but is liable for misuse that is reasonably foreseeable unless the Π abnormally handled the product OR 2. Format 1) bold print and caps 2) list of risks involved 3) bullets or numbering b. Causation. then necessarily the Π should bear the partial cost of injury 22 . noticeable b. Assumption of Risk is a complete bar to recovery (PA APPROACH) a.IV. The underlying policy of products liability is to protect injured persons who are powerless to protect themselves from product defects. DCUD. Appreciation of magnitude c.

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