Torts

Analyzing an Exam Answer:

 Has someone been accidentally injured and who caused it?

 What torts cause of action is appropriate?
o Negligence
o Strict liability for defective products
o Strict liability: ultra-hazardous
 How do we apply the cause of action to the facts?
 Are there defenses? (there aren’t that many to choose from)
 What are the injuries and damages?

Exam Organization

 Organize
o By plaintiff v. defendant
 Plaintiff by plaintiff
 Against each important defendant
 You can group plaintiffs or def with similar issues
 No need to repeat the same analysis, just reference back
 Figure out which P has the most important claims against who
o If two defs are liable, put a note by it and note that the plaintiff will have the same
claims against them
 Or if its similar, just talk about the similar pieces
o Once you go through the IRAC once, just say see above
 If something isn’t at issue: just say proximate cause and but for cause is not at issue here
 In the analysis section:
o Ground your analysis in the facts presented
o Do not be conclusory!! – support your conclusions with facts and analysis
o Consider and analyze the arguments on both sides
o Do not speculate
 Don’t spend a lot of time on policy arguments
 Plaintiff v. Defendant 1
o Claim 1
 Issue 1
 IRAC or CREAC Analysis
 Issue 2
 IRAC or CREAC…etc
o Plaintiff v. Defendant 2
 Claim 1
 Issue 1
 IRAC or CREAC Analysis
 Issue 2
 IRAC or CREAC…etc

Main Ideas:
 In Torts, you must show a preponderance of evidence (51%)

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 Majority common law

 What is the primary focus of tort law?
o Compensation for the inured party
 Should the injured party be compensated for her injury?
 Who should be required to provide the compensation?
 Civil law of injury:
o Bodily
o Property
o Mental/psychological
Main themes:
 Who should be legally responsible for an injury?
 Balancing compensating injured persons v. burdens of liability/preventing injury
 Risk of harm from activities v. benefits of activities

Three Questions in Legal Analysis:

 Is there a law?
 Has it been violated?
 What will be done about it?

SECTION 1: Basic Assumptions

1. Law of accidental torts
a. Negligence
i. Injured party can recover only if injury resulted from injurer’s lack of care
ii. Definition: a cause of action in which a plaintiff has been injured in an accident
and plaintiff is claiming that this accident occurred because the defendant did
not act with care
b. Strict liability
i. Injured party can recover regardless of whether injurer was careful or not
1. Ultra-hazardous activities
2. Products liability
2. Prima Facie Case of negligence:
a. Duty
b. Breach
c. Causation
i. Actual
ii. Proximate
d. Injury/damages
3. Defenses to negligence
4. In tort law you must show a preponderance of evidence

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SECTION 2: First Ask: Was there a DUTY?

Types of duty rules:

1. Duty creation
a. Duty to use ordinary care when engaging in risk creating activities
i. Standard of care in how to conduct activities
ii. Imposed by law

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iii. Duty creation rules are legal rules that create potential legal liability if care is
not met
b. Normally ordinary care standard is enough
c. EXCEPTIONS:
i. If the liability was not forseeable
2. Duty limitation (no duty)
a. Rules limiting or imposing no liability on a negligence scenario
i. “No duty to help another you don’t know”
b. EXCEPTIONS:
i. Special relationship
3. Different Duty Rules for different scenarios/ injury due to:
1. Risk Creating Activities
a. There is a general duty of care
i. Exercise reasonable care when the actor’s conduct creates a risk of physical
harm
b. General duty of care except:
i. Not foreseeable
1. Swine flu when a person hits a truck hypothetical
ii. Other exceptions
2. Failure to Aid or Warn without risk creation
a. When a defendant has not acted to create initial risk, but did not help plaintiff
i. Generally no duty to take action to benefit another
1. Exceptions: special relationships with plaintiff/injurer
a. Family/friend
b. Professional/customer
i. Doctor/patient
c. Control/care of plaintiff
i. Common carries
ii. Innkeepers
ii. What does it mean to benefit/assist another?
1. Render reasonable medical assistance or call for help
2. Mitigate injuries
3. Rescue plaintiff from danger
4. Warn of upcoming danger
5. Prevent upcoming danger
iii. Only applies when you didn’t create the initial risk
1. If you created the risk it is risk creating activity
3. Premise liability for dangerous conditions in land/buildings
a. Deals with dangerous conditions on land/in buildings
i. Icy sidewalk, hidden walls, broken steps
b. Important: just because something happens on land, doesn’t mean its premise
liability. That would fall under activity.
c. Duty of land owners (or occupiers):
i. Affirmatively inspect for dangerous condition
ii. Repair dangerous conditions

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iii. Warn of danger

d. NOTE: Duty varies with status of plaintiff
i. Trespasser
1. Unknown: owe almost no duty
2. Known trespasser: owe limited duty, if you have extremely
dangerous conditions, that are artificial, that you know about, you
must warn them
3. Exception for child trespassers for “attractive nuisance”
ii. Licensee
1. Social guests
2. Same protection that home owner or land owner
a. Duty to warn of non obvious hidden dangers
b. No affirmative duty to discover dangers
iii. Invitee
1. Highest level of protection
a. Duty to warn or repair any unreasonable dangers
b. Duty to affirmatively, reasonably inspect to discover
dangers
iv. Leffler: duty of care can change throughout course of interaction with
customer
e. Owners and occupiers
i. As a renter you have reasonable liability for making the premise safe

SECTION 3: Next Ask- was that duty BREACH(ed)?

Breach has to do with if a standard of care was breached

1. Two major questions

a. What was the standard of care?
b. Did defendant’s conduct meet the standard of care?
2. Key Idea:
a. In negligence, not all accidental injury results in liability
i. There is liability when D does not meet standard
b. If a defendant meets the standard of care
i. But plaintiff is injured anyways by D, there is no beach
c. Always a question for the jury
3. The (1) ordinary care that a (2) reasonably careful person would use (3) under the
circumstances
a. (1) Ordinary care:
i. Care generally has to be ordinary not extraordinary
ii. Find the baseline of care, and meet it, not exceed it
1. Exception:
a. Rare heightened standard for certain D’s
i. Common carries

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ii. Pharmacists
iii. Jones v. Port Authority of Allegheny County
b. (2) “Reasonably careful person”: Objective reasonable care standard
i. Did this D meet the standard of a reasonable person?
ii. D will be held to objective standard (characteristics of a hypothetical, external
third party) even if D personally falls below in terms of
1. Mental disabilities
2. Basic knowledge about world
3. Skills
iii. Exceptions:
1. Children
a. Tender years doctrine (some jurisdictions) [kind of like a secret
duty rule]
i. Under 7: no breach
ii. 7-14: Rebuttable presumption, not capable of breach
iii. 14-18: Rebuttable presumption, capable of breach
b. Subjective child standard
i. Other jurisdictions
ii. Reasonably careful child of D’s maturity, age,
experience
1. Exception: child D and adult activity
2. Disability
a. Mental disabilities: objective still applies
b. Physical: subjective standard applies
i. Standard will become “a reasonably careful person with
D’s disability
3. Superior skills or knowledge/commercial and professional contexts (eg.
Athletes)
a. Commercial or professional standard
b. Must show that you met reasonable standard in that profession
i. Professional standard: adherence with industry
norm/custom is typically dispositive and generally
establishes reasonable care
1. Johnson case: they don’t consider what one
professional would have done, but rather just
focus on industry standard as a whole
a. Question is “did the doctor act in
accordance with the regular norm”?
ii. Commercial Standard
1. Merely showing that you met industry standard
doesn’t mean you are going to win the case (TJ
Hooper)
2. Adherence with industry custom, relevant but
not dispositive

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iv. Subjective Reasonable Care Standard

1. Consider characteristics of this defendant
a. Physical mental, skill, experience, background
2. Did this D meet standard of care similar to D?
3. Majority is objective standard, but there is some case law that says we
should use the context of the person and circumstances in a subjective
measurement of reasonable care
c. (3) Under the circumstances
i. You must consider the circumstances, like an emergency, that might affect the
ordinary care requirement
ii. In terms of expertise, you are not going to be under ordinary care
1. Example: brain surgeon
4. Hand formula: an economic way of looking at negligence
a. Negligence law should incentivize precaution when (and find breach if)
i. Burden of precaution that may prevent accident
ii. Is less than probability of accident x loss
b. B(burden) <P(probability) x L (expected loss)
i. Burden: cost of the precaution
ii. Probability: the probability of the accident that the precaution will prevent
iii. Loss: the loss that will occur if the accident happens
5. Res ipsa loquitor
a. Inferring breach even when no direct evidence of carelessness
i. Evidentiary doctrine applicable to certain tort causes of action, including
negligence
ii. When applicable in negligence actions, it permits a jury to infer that the
plaintiff’s injury was cause by the defendant’s carelessness even when the
plaintiff presents no evidence of acts or omissions on the part of the defendant
that might constitute carelessness
iii. Can prevent summary judgement in certain cases when plaintiff fails to bring
meet burden of production
iv. This is different from per se rule because: jury still has option/discretion to
infer breach, but isn’t required to
b. Res ipsa loquitor is defined by three factors:
i. The injury must happen in a way that ordinarily does not occur absent
carelessness on someone’s part
ii. The instrumentality causing the in jury must have been in the defendant’s
exclusive control
1. Modernly, courts are not as strict with this requirement
iii. The injury must not have arisen from acts or carelessness on the part of the
plaintiff
iv. If 1+2+3 then there is a permissible inference of breach
c. All this does is change the burden of production, if neither side brings forth any
evidence of it, the plaintiff loses
6. Negligence per se (ordinary discretion on breach is removed from the jury)

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a. Plaintiff points to statute or admin law

i. That the D violated
ii. As per se proof of the breach element of negligence
iii. If threshold condition is met
1. The jury is required to come to a conclusion on the element of breach
a. Replaces discretion
b. required finding of breach if:
i. D actually violated a statute: Jury
ii. Statute violated was a safety statute: Judge
iii. Safety statute was designed to: Judge
1. Protect this kind of plaintiff
2. From this kind of injury
3. And apply this kind of def
a. This part is kind of a hidden proximate cause argument in
negligence per se
iv. Safety statute was but for cause of P’s injury: Jury
v. D’s violation was not excused: Jury

SECTION 3: CAUSATION
1. There is a two step analysis for the causation element:
a. Cause in fact (actual cause)
b. Proximate cause
2. Actual cause (cause in fact)
a. Act must cause injury to another to fall under torts
i. Actual cause (cause in fact): evidence of a link between D’s carelessness and P’s
injury (burden is on the plaintiff)
1. But for test of causation: test for actual causation
a. Would the plaintiff have been injured even if the defendant has
acted with the care she was duty bound to exercise?
b. If the answer to this question is no, the but for question is
satisfied and actual cause is established
c. Doesn’t have to be the only cause, other actors can be involved
too
b. Causation issues can arise when:
i. There are other reasonable explanations
1. For why in juried occurred other than D’s carelessness
a. Accidents happen even when nobody is careless
i. Other plausible explanations for injury
2. Injury by somebody else’s carelessness other than D
3. Little evidence of connection between D’s conduct and injury
ii. Multiple causes or multiple D’s
1. There can be multiple actors that contribute to injury

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a. Multiple necessary causes

i. (and)
ii. Both must occur
1. If there are multiple necessary causes to an
injury
2. Each one is deemed an actual (but-for) cause
a. McDonald (interlocked cars)
b. Multiple sufficient causes
i. (or)
ii. It is sufficient= multiple ways to do something
1. Multiple things occurred and either could have
caused the injury
3. Proximate cause (subjective and opinion based) (Palsgraff):
a. Even if this D breached the standard of care, and was the but for cause of P’s injury
i. Are there policy reasons (fairness, remoteness) that a jury still might not hold D
liable?
b. All about giving jury safety valve
c. Even if this D breached the standard of care, and was the but for cause of P’s injury
i. Just because there was a condition that created the cause of the accident,
doesn’t mean the person should be held liable (Union)
d. Relieving defendants of liability when there is some weird connection between event
and injury, wherein the def are technically liable but it doesn’t make any sense
e. Problem that proximate cause addresses:
i. Elements for proximate cause:
1. Foreseeability (remote in time and space)
2. Fairness
3. Unpredictable injury
f. Essential question: how do we draw the line?
i. It is a judgement inquiry
1. What factors will a jury consider
2. When deciding if to say whether a cause was too remote?
g. Factors that make finding of proximate cause more or less likely
i. Scope of risk scenarios
1. Was the injury that occurred outside the scope of the risk of that made
the act careless?
a. Unusual injury considering risk raised by carelessness
i. Fortuitous, coincidental, highly unusual, unforeseeable
events
ii. Attenuation (reducing connection)
1. Distance between carelessness and injury
2. Distance in physical space between carelessness and injury
3. Supervening cause: subsequent D much more responsible
4. Trivial contribution by defendant
iii. Disproportionate liability

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1. Unusually high number of plaintiffs

2. Unusually broad expanse of plaintiffs
iv. Foreseeability twice
1. Foreseeability in general duty: judge
a. Individuals owe a general duty of reasonable care when acting
but only for foreseeable injuries
2. Proximate cause analysis: jury
a. Foreseeability/scope of risk test
h. Legal test for proximate cause:
i. Directness test (Polemis)
1. not used much anymore
ii. Foreseeability (Wagonmound) majority view
1. Is the injury that P is complaining about the type of injury that is
normally made more likely by D’s conduct?
2. Only hold def liable for foreseeable injuries
3. Why?
a. Tort law is about incentives to modify behavior
i. To prevent future accidents
b. People cannot modify behavior to a risk they don’t know about
i. That are unpredictable given the risks raised
iii. Scope of the Risk: Modern view
1. What makes conduct risky
2. What are the injuries that your careless activity makes more likely to
happen?
3. Conveys the possible risks that could arise from the activity
i. Supervening and Superseding Cause:
i. Was there another actor who’s actor was so much more careless, that it relieves
another defendant of liability under proximate cause?
ii. Superseding cause
1. Was there another actor or defendant?
a. Whose conduct was so much more careless, that it relieves
another def of liability under proximate cause?
2. Sometimes when a cause involves 2 wrongdoers, the court will only
assign full responsibility to one wrong doer
a. If:
i. The two wrongdoers are acting independently of each
other
ii. Their wrongs are committed in a sequence, such that
there is an initial wrongful act that is more remote in
time and space from P’s injury
iii. If the action of several people intervenes between the original negligence and
the injury
1. D might not be liable

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2. Basically, the chain is broken (Pollard) – the boy took the small amount
of explosives and made them more dangerous by adding them up
a. Just a little bit careless
3. Contrasting in Clark
a. The court found that the glycerin already had the power of
being mischief
b. The fact that some terrible accident was inevitable existed the
moment the chemical was let out of the farm’s hands
4. Concurrent negligence: if negligent happens at same time, its not
attenuated in time and space
5. Relating to malpractice:
a. Ordinary medical malpractice committed during treating injuries
created by the negligence of a Def is deemed a foreseeable
consequence of that negligence, and not deemed a superseding
cause

Respondent superior: employer is held responsible/liable for actions of employees

SECTION: WRONGFUL DEATH (relates to damages)

1. Wrongful death and survival action

a. After a victim has died due to an accident (decedent)
i. The lawsuit can still proceed even though injured has died
b. Survival action
i. Decedent’s lawsuit from beyond the grave for own pre-death damages
1. what decedent could have recovered had she survived
ii. what kind of damages?
1. Pain and suffering after injury but before death
2. Loss of income during injury
3. Pre-death apprehension and fear of death
4. Medical and other economic expenses due to injury
iii. Plaintiff is the representative of the decedent’s estate
c. Wrongful death action
i. Family member’s lawsuit for their own losses as a result of the decedent victim’s
death
1. Plaintiffs are family member of the decedent harmed
ii. What kind of damages?
1. Loss of decedent’s future wages to family income
2. Loss of consortium/companionship
3. In some jdx: bereavement (emotional suffering due to grief of loss)

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SECTION: DEFENSES to negligence

1. Prima facie case (negating evidence)

2. Affirmative defenses
a. Comparative fault
i. Rules taking into account P’s own carelessness
1. In contributing to P’s injuries
2. That reduce or bar P’s damage award
ii. Versions of comparative fault:
1. Contributory negligence
a. Any showing of negligence on the part of the plaintiff was a
completed defense against liability
b. Common law rule, mostly eliminated in the US today
2. Comparative negligence
a. Reduces P’s award by P’s own relative negligence on a % basis
b. Pure comparative negligence
i. Plaintiff is not barred if her fault is greater than 50%
ii. Plaintiff can recover even if P’s fault was 99% of D’s 1%
1. However, award will be reduced to 1% of
damages
c. Modified comparative negligence (Colorado follows this)
i. Plaintiff can only recover if her fault is less than 50%
compared to D
ii. If P’s fault is greater, complete defense for D
b. Assumption of the Risk
i. General principles:
1. Only applies when
a. P knew of a particular risk
i. Measure of if P fully understood risk: subjective
b. P voluntarily assumed that risk
i. Was P in a position to bargain?
ii. Was P’s consent voluntary or necessity?
iii. Did the injury that occurred result for the risk P
consented to?
ii. Express assumption of risk
1. There was an explicit contract where
a. P acknowledged, accepted risk; waives right to sue
i. Waiver, exculpatory clause, release of liability, limited
liability provision

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2. Compete defense for D (P barred from suing)

3. Will be upheld unless
a. Risks were not presented in a clear, obvious, and unambiguous
language
i. P adhered the contract with opportunity to accept risk
b. Clause void for being against public policy
i. D is performing an important or necessary service for
the public
ii. Unequal bargaining power
iii. Plaintiff cannot easily bargain for changed terms
(adhesion)
iv. Unduly increases risk to public
iii. Implied assumption of risk
1. No explicit contract
a. Must demonstrate that P knew of a particular risk AND
b. P voluntarily assumed that risk
2. Acceptance of risk only implied from P’s behavior
a. Majority: percentage reduction for risk P assumed
b. Minority: implied assumption a complete bar
c. Minority: hybrid
i. Injuries due to reasonable risk taking= complete bar
ii. Injuries due to unreasonable risk taking= percentage
reduction
iv. Risky Activities
1. Some activities (like skiing) have inherent risks
a. Two types of injuries:
i. Injuries cause due to inherent risks of activity
ii. Injuries caused by D being careless
1. D digs a giant hole on a ski slope, covered with
snow
c. Statute of limitations

SECTION: INJURY and DAMAGES

1. Injury
a. P must prove that she suffered a compensable injury
b. What types of issues can plaintiff recover for?
i. Physical injuries
ii. Pain and suffering
iii. Pure emotional injuries?
2. Damages
a. Types of damages that plaintiff can receive
i. Compensatory
1. Economic damages (special)
a. Past and future out of pocket expenses
b. Past and future lost wages
c. Lost/ damaged property repair/replacement

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2. Non economic (general)

a. Pain and suffering from injury, emotional trauma
b. Loss of future enjoyment of life
c. Future anxiety, suffering, depression
d. Compensation for loss of body part
b. Eggshell skull rule (really a proximate cause issue)
i. You take your plaintiff as you find him
ii. D is responsible for unforeseeable extent of physical injury to vulnerable
plaintiff
1. If the general category of injury was foreseeable
a. General category: leg injury
b. Actual injury, unusual event: shattered leg
i. Basically, D is liable for the unforeseeable extent of the
foreseeable harm
iii. Even if injury would normally have been minor to anyone else
1. D can’t argue “well a typical plaintiff wouldn’t have been injured in this
way”
iv. It’s a limited exception to proximate cause foreseeability limitation
1. Normally we do not hold D’s liable for injuries that are unforeseeable
v. Extends to: usually valuable items (like a Picasso painting in the back of a car),
but does not extend to usually severe mental reactions
c. Punitive (Mathias)
i. Generally not available
ii. Only when:
1. Defendant acted with such wanton/conscious indifference, such that
malice can be inferred
2. Sometimes, although rarely, for “reckless” conduct
3. Vicarious Liability
a. A defendant can be held liable for their own careless act that caused P’s injury
b. But can also be held indirectly
i. For someone else’s careless act
ii. Usually, we hold D liable for someone else’s breach
1. Because D is somehow responsible for that act OR
2. Because D is somehow benefitting from other’s carelessness
iii. Even if D themselves didn’t act carelessly
c. Respondeat Superior
i. Doctrine which permits employers to be vicariously liable for the acts of their
employees
ii. A specific type of vicarious liability (there are others)
1. An employer will be held liable for the acts of its employees when:
a. Activities occur within the “scope of employment”
i. Aka part of ordinary job duties
ii. If not part of ordinary job duties then
1. Characteristic of job (modern test)
2. For benefit of employer (older test)
2. Employee can still be sued as separate defendant
3. Usually not available for employees intentional torts (there are some
exceptions to this)

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4. Joint and Several Liability

a. Three issues for multiple defendants
i. How do we apportion fault among defendants
ii. How do we apportion damages about defendants
iii. How much can a plaintiff collect from a particular defendant
b. Several (proportionate) liability
i. Defendants are only responsible for paying amount of the damage award that
corresponds to their percentage fault
1. Capped at their percentage
ii. Joint tortfeasors
c. Joint Liability
i. Any D could potentially be responsible for the full damage amount, regardless
of percentage fault
1. Plaintiff can collect full amount from either D1 or D2
a. Amount is not capped at their percentage
d. P can choose from either, but in practice they usually choose joint
e. Can be applied to indivisible injury and joint tortfeasors
5. Multiple Defendants and Liability
a. Divisible injury
i. Multiple defendants, can trace back specific injury to specific defendant
b. Indivisible injury
i. Multiple defendants contribute to same injury
ii. Joint and several liability can be applied here
6. Emotional Injury
a. Emotional harm when there is a physical injury
i. Emotional derivative of underlying physical injury
ii. Well established
b. Emotional harm when there is no physical injury (in flux)
i. Negligent Infliction of Emotional Distress (NIED)
1. Negligence claim for emotional harm not arising from physical
ii. Someone was careless, and P’s resulting injury was
1. Only emotional in nature, not physical
iii. Pure emotional harm claim
1. Examples:
a. Car almost hits P, P dives out of the way
b. No threat of physical harm, but P is emotionally scarred by
shocking accidental incident
c. P is emotionally harmed because they witness somebody else
being physical injured
iv. Policy concerns
1. Fear of fabricated mental harms
2. Excessive or unlimited liability
3. Skepticism about severity of mere “mental” harms
4. Inability to measure mental damages
v. Doctrinal tests
1. Physical injury test (Wyman)
a. Only mental claims that are derivative of physical injuries
2. Impact test

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a. Mental claims allowed if minimal physical impact, even if no

injury
3. Zone of danger test (Robb)
a. Most recent / majority rule
b. Mental claims if zone where P could have been harmed, even if
no impact or physical injury, P’s outside zone- no claims
4. Outside the zone of danger (some jdx)
a. Allows P to collect for pure emotional harms if D’s careless act
amounts to “outrageous conduct”
vi. How bad must emotional injury be?
1. Severe distress actually suffered (subjective)
2. And only if ordinary person would have suffered a similar level of
distress in same situation (objective)
3. Some jdx requires physical manifestations of the physical harm
a. But there is a split

SECTION: Strict Liability

1. Liability imposed without regard to the defendant’s negligence or intent to causee harm
a. No fault standard
2. Categories:
a. Ultra-hazardous activities
i. An activity that is so inherently dangerous that a person engaged in that activity
can be held strictly liable for injuries caused by that activity
ii. Examples:
1. Storing dynamite
2. Constructing a large water reservoir
3. Owning wild animals, like lions in a residential area
4. Using or transporting radioactive materials
iii. Requirements:
1. existence of a high degree of risk of some harm
2. likelihood that the harm that results from it will be great
3. inability to eliminate the risk by the exercise of reasonable care
4. extent to which the activity is not a matter of common usage
5. inappropriateness of the activity to the place where it is carried
6. extent to which its value is outweighed by its dangerous attributes
iv. point is to get parties to pay for the risks that come with being involved in those
activities
b. Products liability
i. Liability for injuries from defective commercial products
1. Product: any tangible item that you can buy from a commercial seller
such as a store (does not apply to amateurs or incidental sellers)
a. Less obvious products:
i. Pharmaceuticals
1. Pharmaceuticals treated differently
a. Manufacturing defects treated normally

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i. Consumer expectations test

applied
2. But Design defects of pharmaceuticals different
a. Governed under “Comment k” of
Restatement
i. There are some products which
are incapable of being made
safe for their intended and
ordinary use.
ii. These are especially common in
the field of drugs.
iii. The seller of such products is
not to be held to strict liability”
3. Interpreting Comment K in Pharmaceuticals
a. Approach 1 – Blanket Immunity
i. If adequate safety testing,
directions, warnings, and
manufacture, a pharmaceutical
does not have a design defect
as matter of law
b. Approach 2 – Comment k as Affirmative
Defense
i. Plaintiff shows design defect
under jurisdiction standard
ii. Defendant can show, as an
affirmative defense, that
particular drug should qualify
for immunity as “unavoidably
unsafe”
iii. Balancing risk of side effects v.
seriousness of disease
ii. Food/beverage of a restaurant or supermarket
iii. Building supplies (asbestos, furnace)
b. Not products:
i. Services, real estate, live animals, texts and books
ii. Main Features
1. Defect
a. Only accidents caused by “defective” products
i. Not every injury from a product, only those caused by
defects
2. Strict Liability Standard
a. P does not have to prove D’s sub-standard conduct caused
defect
b. P doesn’t have to prove std of care, or that D breached std of
care

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3. All Commercial Parties in in Supply Chain Poten. Liable

a. From manufacturer of product (Ford) to
b. Seller of Product (Car Dealership
iii. Policy Reasons for Strict Liability Standard in Products Liability (Escola)
1. Internalizing all the costs of all accidents
2. Total social cost of product accidents
a. Accidents caused by carelessness +
b. Accidents when everyone is being perfectly careful
c. Cost of products like Coke “artificially cheap” under neg
i. Doesn’t reflect true social cost
ii. E.g. Exploding bottles even when careful
iii. Not accounted for in price of Coke under neg
d. Least cost avoider: manufacturer in best position to reduce
accidents
e. Cost and Loss Spreading
f. Evidence: Difficulty in finding Evidence of neg.
g. Fairness
i. ‘To insure that the costs of injuries resulting from
defective products are borne by manufacturers that put
products on the market rather than by the injured
persons who are powerless to protect themselves.’’
iv. Actual and Proximate cause
1. P’s injury must been cause by defect and not something else
v. Prima Facie Case of Products Liability Claim
1. P is a consumer, user, or foreseeable victim
2. Who has suffered an injury
3. From a product
4. That was defective
a. What is a defect?
i. Manufacturing
1. They built it incorrectly
2. Manufacturing defect tests:
a. Consumer Expectations Test
i. Defect if “dangerous to an
extent beyond which would be
contemplated by the ordinary
consumer who purchases it”
b. To prove a manufacturing defect, P
must show that an ordinary consumer
would not contemplate unsafe
functionality
ii. Design
1. Injury was caused by a product whose design
was unreasonably dangerous

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2. Examples:
a. Product does not hold up under
operating conditions
b. Product is fundamentally too dangerous
for consumers
c. Product should have been redesigned
to be safer
3. Design defect tests:
a. Risk/Utility Test (Majority)
i. Design defect if “a reasonable
alternative design would have
eliminated the risk that injured
plaintiff”
ii. Risks of the product as designed
outweigh benefits
iii. And cost and decrease in
usefulness of redesign
b. Consumer Expectations Test (Minority)
i. Design defect if “dangerous to
an extent beyond which would
be contemplated by the
ordinary consumer who
purchases it”
4. Wade risk analysis considerations (should be
balancing these):
a. The products utility to the public as a
whole / Its utility to the individual user
b. The likelihood that the product will
cause injury
c. The availability of a safer design
d. The possibility of designing and
manufacturing the product so that it is
safer but remains functional and
reasonably priced
e. The degree of awareness of the
products potential danger that can
reasonably be attributed to the injured
user
f. The manufacturer’s ability to spread the
cost of any safety related design
changes
iii. Inadequate warning
1. There are some products that are safe if used
correctly
2. But pose risks if not properly used

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a. If a product has risks that can't be

eliminated by a practical design change
b. And if those risks would not be obvious
to users
c. Then the product may be defective
unless it contains
d. Adequate warnings or instructions
3. Warning is needed if
a. The danger is not generally known OR
b. If known, is one which the consumer
would reasonably not expect to find in
the product
4. Must include
a. The risks that would render product
unsafe for ordinary use
i. e.g. Dosage information for a
drug
b. Risks must be adequately presented in a
prominent manner
5. Risks obvious to a reasonable consumer do not
need to be included
6. Warning for unknowable harm
a. Majority: manuf. not liable for risks it
didn’t actually know
5. From a commercial seller/manufacturer
6. The defect existed at the time it was sold
7. Defect was actual/proximate cause of P’s injury
a. P’s injury must have been caused by the defect and not
something else
c. Product Liability Under Torts Restatement: 402(A)
(1) One who sells any product in a defective condition unreasonably dangerous
to the user or consumer or to his property is subject to liability for physical
harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
[not amateur or incidental sellers]
(b) it is expected to and does reach the user or consumer without
substantial change in the condition in which it is sold.
[defect must be present when left seller]
i. The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale
of his product, [don’t have to prove carelessness] and
(b) the user or consumer has not bought the product from or entered
into any contractual relation with the seller.

d. Other misc. areas by statute

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i. Dog bites

SECTION: MODEL ANSWER:

• At issue will be cause in fact – whether the defendant’s failure to hire more security
guards was an actual cause of the plaintiff’s injury. Actual cause is usually assessed with
the “but-for” test: but for the defendant’s negligent conduct, would the injury have
occurred anyway.
• Defendant will argue that the plaintiff will have a hard time showing that, under the
but-for analysis, the extra security guards would have prevented this particular theft.
The thief was a student and not an outside intruder, and would not have been easily
identifiable as an outsider by a patrolling guard. Moreover, the theft happened very
quickly.
• Plaintiff will argue that because of the extreme lack of security guards, thefts like this
are very common. The university has a reputation for having too few guards, and this
reputation leads to increased thefts. By hiring more guards, they could deter many easy
property crimes by creating a reputation of safety. Therefore, the absence of guards
was a but-for cause of the theft.
• Overall, I think it is unlikely that a jury would find a but-for causation regarding the
alleged failure to hire more guards and this theft. It is not clear that this theft would
have been prevented, even with the hiring of the additional guards. Thus, plaintiff is not
likely to establish actual causation here.

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