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Negligence Intro I. PFC  Unreasonable Conduct  Duty  Causation o But for cause o Proximate cause  Injury II Establishing Principle · · · Brown Gregory Lossee

III. Standards of Care Adams v Bullock  Small child was electrocuted while playing with a wire near an electric overhead trolley wire.  Court found the burden of prevention was too high (moving wires under ground) and that foreseeability of such an occurance were low so no liability. Also note cost/benefit analysis

Brown v Kendall  Party’s dogs were fighting defendant began to beat dogs with stick and struck plaintiff in the eye.  Trial judge mistakenly placed burden of proof on the defendant to prove extraordinary care when the burden should have been on the plaintiff to prove that the defendant was not in exercise of ordinary care (because the act was necessary)  Note this court held that a necessary act the actor should be held to ordinary care but an unessessary act should be held to extraordinary care. Green v Sibley

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Lady trips over guy kneeling down to fix register. A busy world dictates that the lady has a duty of care to look for him and foreseeability on his part was low.

Bethel v NY City transit Authority  Plaintiff sought relief for injury sustained on city bus due to wheelchair thing.  Court held that holding a common carrier to extraordinary care was no longer applicable due to the change in climate of the railroad industry instead held them to reasonable care in relation to the circumstances. Wood v Groh  Plaintiff was injured when a 15 year old shot him after taking a gun out of his fathers gun locker  Court held that the facts and circumstance of this case warranted a higher standard of care. B. Commentary Harper Holmes  II Exemptions o Lesser intelligence  Vaughn v Manlove  Holding: Court rejected holding someone to a lower standard of care because he was a moron. o Physical Capacity  Roberts v ramsbottom Facts: Defendant suffered a stroke and then drove and got in to an accident  Holding: anything less than a total loss of consciousness is not a defense for negligence. o Mental illness  Bashi v Wodarz 

Facts: defendant tried to use mental illness as a defense for injury she caused with car  Holding: unless the actor is a child insanity and mental deficiencies are not a defense because we do not know where to draw the line. o Superior ability  ????? o Children  Gen rule  Mastland v Evans Furniture and Ellis v. D’angelo  Holding: Children held to reasonable child standard takes in to account age and experience. Adult activity exception  Dellwo v pearson  Holding: child held to normal standard of care in car accident because driving is an adult activity.   Stevens v Veenstra  Kid gets in a car accident during drivers ed o Holding: No reasonable kid standard because driving is too dangerous to make the innocent victim bear the cost. Goss v Allen  Kid injures someone while he is learning how to ski.

o Holding: Skiing does not qualify as an activity in which children should be held to an adult standard Emergency Doctrine  Levey v. DeNardo  Guy rear-ends women who stopped short when someone cut her off.

Krayenbuhl v Railroad  Children hurt playing on a railroad turntable  Holding: While social Utitility of having railroads is high.  Holding: No negligence on the part of the driver because his actions were in response to an emergency situation   Gender  Hassenyer v Mich. Cost Benefit o I. Modification o Bolton v Stone  Dude gets hit in the head with cricket ball . Approach   Carroll towing v United States (Hand Test  Barge sunk when there was not an attendant on it  Holding: The is a duty of care to protect others from harm when the burden of taking adequate precautions is less than the product of probability of th result of the harm and the magnitude of the harm. Holding: A person confronting an emergency situation not of their own making is only required to exercise an honest amount of judgment. Cen. Rail Rd. Co  13 year old girl struck by train  Holding: No reasonable girl/women standard only one reasonable person standard. Cordas  Taxi driver injures pedestrian when he jumps out because dude is holding him at gun point. all they needed to do was install a cheap-ass lock and kid wouldn‟t have gotten hurt.  · Posner  II.

o McCarty V Phesant Run (posner)  Women is assaulted in her hotel room when the door is left unlocked.  The fact that something is not widely use may be evidence that the D was not unreasonable for not knowing about it.  Note: punitive damages were reduced IV Allocation · Distribution  Custom Intro: Custom and C/B I Plaintiffs Use · Morris 3 main points of custom in negligence theory  If an industry adheres to one way of doing things the court may be wary of the plantiffs assertion that here is a safer way of doing things.  Hand formula has greater analytic than operational significance and in this case there was not enough to define the variables of the hand formula  III Rejection o Grimshaw  Ford Pinto case  Even though cost of prevention was higher than the precieved loss the hand approach does not apply when the loss would be that of life and limb.  Evidence of custom is admissible as evidence of reasonable conduct but not definitive test of negligence Levine   · · . The existence of a custom that involves large fixed costs it may warn the court of the social utility of changing that custom Trimarco:  P injured when fell through glass shower enclosure and attempted to show that it was custom to use shatterproof glass.No recovery because their was such a low chance of this happening that it was not necessary to put up signs or fence.

.Expert testimony of a practicing obstrecian not admissible.  He is admissible as expert witness because it is likely that all experts about baggage carousels would work for the airline. Arpin v United Sates  . Expert  Sheeley v Memorial hospital o P injured after episiotomy performed by a second year family medicine resident o D only under duty to adhere to what a reasonable practitioner in their class would.   · III Medical Malpractice General: Custom= conclusive evidence of reasonable conduct  Robbins: o No finding of negligence without expert testimony Difranco:  Court overturned a verdict for the defendant because the judge charged the jury that the Dr was not negligent if in the exercise of good judgment and made mistake · B. Defendants use · Morris · Vermont Motor:  P fell during a power outage and said that hotel should have had battery operated light fixtrues No recovery because no ther hotel used them and the foreseeability of such an injury was low Delta  P injured on baggage carousel and tried to bring in a mechanical engineer as expert witness.P cut her hand while operating a dumb waiter and said that the building did not adhere to the custom of using smooth ropes  The court held that if she could prove the custom of using smooth ropes was to prevent injuries like this she could recover II.

o Dawson School of thought o Gala  Where there are two schools of thought about a what treatment to use a Dr. can pick either one Exceptions o Treatise: Instead of expert testimony medical treatise can be read Common Knowledge      o Leonard:  Dr. failed to run a test that would have revelaed rare muscle disease. o P presented himself at family medical practice after he fell due to extreme pain alleged that second year resident. Left instrument inside patient  Common knowledge that you should leave shit inside patient so no expert necessary. o Resident held to same standard as someone who has finshed residency Board Certified o Robbins  If a physician holds himself out as a specialist they are held to the standard of care for that specialty. Negligence per se I basics Ret 3d §14  Hertzog: . Henning o Allowed for payments to be made for expert witnesses and for the jury to decide the weight given to the testimony of these witnesses Clinical Practice o Sami v Varn  Some states hold that an expert must have an active practice in the defendants specialty or related field.

the car rolled backwards and injured plaintiff. o Majority concluded that statute was not purposed to absolve unauthorized users from liability Gorris  Nexus     . o Violation of ordinance irrelaevent Rushink o Defendant parked and left car running and it was stolen and thief injured someone. Defendant did not recive a criminal charge because the stop sign was not properly recorded in the public record. P moved for summery judgment pursuant to statute prohibiting leaving keys in ignition. o A lack of criminal charge does not preclude civil liability Sweet o The trial judge retains the discretion to refuse to adopt the law as the standard of care. o The failure to not use lights (against a statute) can be negligence in itself but is insufficient to sustain a claim of contributory negligence unless there is a causal connection Clinkscales o Defendant ran a stop sign causing injury to the plaintiff. Diponzio o Defendant left car running at a gas station which is against an ordinance to protect against fires. o Defendant hit wagon on side of the road on a dark night. Dehaen v rockwood sprinklet o Radiator was struck and fell down hoistway which was not constructed in accordance with a statute. Negligence is charged against the plaintiff for not having a light on the wagon and the defendant for not staying within the boundries of the road. o No negligence per se for hoistway because the statute was meant to protect against people falling down the shaft not things but you can look to legislative intent “enumeration of hazards to be protected against”.

III Justification A Rst.o Sheep fell out of pen on boat.. but not to charge the jury with the statutory violaton . o The statute was not meant to hold the driver to adhere to it in every possible situation so no NPS. It is not NPS if in disobeying the statute a person is attempting to avoid the danger that the statute is trying to avoid. o It was more dangerous for them to walk on the other side of the road. Drivier claimed contributory negligence because they were walking on the wrong side of the rd according to statute.   IV Conclusion  Licensing: o Brown  Chiropractor injured P when undertook a procedure that only physicians were supposed to perform  Court held that the Chiropractor should be held to the standard of care of a Dr.. o No NPS for statute in infectious disease act that mandated animals be kept in pens because not the specific kind of harm.P cited statute about keeping disabled cars on a highway illuminated o Judge allowed the fact that their was no chance to turn on lights as an excuse… no NPS. Levey o P claimed D violated statute about distance you should be behind the car in front of you when she got cut off and he rearended her. Bassey o Vehicle came to a stop on a highway due to an electrical malfunction.3d §15  Tedla o Two junk collectors were walking down the side of a highway and were hit.

B.   Res Ipsa Loquitur I General -rst. Hubbard hall o Two migrant farm workers killed due to pesticide exposure o Court allowed for recovery even though warningings on he product adhered to congressional regulations becaue manufacturer should have known people who didn‟t speack English would use the product. o Court held that adherence to regulatory standard was not conclusive evidence of reasonable conduct.  Court did not allow that it was common practice to j-walk as an excuse for the contributory negligence claim.  Custom Statute o Robinson  Guy was hit by police van while j-walking. o Placed burden of proof on defendant to prove that he was not negligent. Bierman: . There was no evidence presented of negligence on the part of the defendant. Alverado o P was burned when robe caught on fire.  Court allowed for recovery saying that the compliance with a statute does not necessarily absolve one from liability.3d §17  byrne o A barrel of flour fell on P from an open window of D’s warehouse. Company citing FDA package warning regulations as his basis for defense of negligence. Common law v statute o Edwards:  Guy had a nicotine induced heart attack while wearing two nicotine patches.

 Explosion alone was enough to survive summary judgment/ 12b6 Ybarra Limits Hospital: Yabarra purposefully limited to hospital context Insufficient D Pool Black  Defendant surgeon implanted a wire in the neck of plaintiff which broke and caused great pain and need for further treatment  RIL not applicable because there were other possible causes of the defect that could not be brought before the court chin P died from air embolism due to gas being introduced to her blood stream. C. o Instrument in control of D o Harm can not ordinarily arise without negligence o No negligence on part of P Judson (rebuttal)  D’s nitroglycerin plant blew up killing everyone who could have testified to negligence. o Remember loss spreading II Multiple D’s CAUSAL UNCERTAINTITY Unknown Instrument Yabarra  Guy injured after surgery but does not know the instrumentality  Allowed to bring in all of the people who may have been responsible and places production burden on them.  Court held that burden switch was proper even though one of the d‟s had been absolved of liability. PFC Production burden on city and utility co. Barrett (rejection)  Modern discovery practices make yabarra analysis necessary o Non-hospital  Fireman’s  .

o With no proof that it wasn‟t someone who lived in the building or one of their guests there could not be a causal connection for a jury..drowned negligence claim   based on failure to have life preservers.couldnt swim. State of Washington o Adoptive parents suded because state agency failed to disclose issues with the child o Claim failed because the family said that they would have adopted the child anyway Grimstad v NY Cent Rail Rd o Guy fell off barge. Tollison v.  Burgos v Aqueduct reality o Sued landlord over assault in building saying it was an intruder. McGovern o Guy gets hit with golf ball claims negligence because golfer didn’t yell fore. o Fowler/helton Cause In Fact I. But for Best  Rinaldo v.. o Court found that even if he had yelled fore it would have been futile.o Plaintiff insurance co sued four d’s for hotel fire because one of the was smoking o Rejecting to extend yabarra court held that RIL did not apply and granted sum judgment for D‟s. o Court allowed the jury to make logical infrences because the women said she did not recognize the assailient III Complex (type II) Proof Issues . o Court held that even if there was a life preserver he still would have drowned…no recovery II Basic Proof Issues  Mitchell v Pearson Enterprises o Man was murdered in building made negligence claim against building for faulty security.

IV Policy · Rabin (toxic Torts ) Tort of Negligence 1 Unreasonable conduct · Res Ipsa Loquitor (assume Causation) 2 Causation .· Analysis  Does Agent cause Harm? (II(a))  Were p’s injury caused by harm? · Causes Stubbs v City of Rochester  P contracted typhoid fever alleged it was from the water supply citing the increase of cases in the area  In a negligence action the fact that a plaintiffs condition could have been caused by factors other than the defendants negligence does not obligate the plaintiff to proe none of the other factors caused the injury. Allen v United States  Radioactive fallout in Nevada case  In causal uncertaintity case can look to facual connection to shift burden of proof to the defendant o 1) Defendant engaged in risk creating activity o 2) Plaintiffs injuries are consistent wit hthe harm that results from that acivity  Planitiff was exposed to the fallout    Injury consistent with type of radiation Geographical proximity Extent of time they were exposed Future Harms  Simmons o P recovers for exposure and then again if disease manifests  Dillon o P can recover for chance of further harm but damages should reflect that chance.

5& o When a physicians negligence reduces or eliminates the patients prospects for a more favorable outcome the physician is liable for damages regardless of how low the chance is .· · In fact Proximate cause Type II (continued ) I Reasonable Medical Certainty · Zuchowicz (calabresi)  Guy sued Gov’t for prescribing him too much of a medication which caused him primary pulmonary hypertension  Where a negligent act increases the chances that a particular type of accident would occur and such an accident does occur a court may conclude that the negligent act caused the harm. Limits:  Williams o College student sexually assaulted and sues college saying proper security would have prevented it. II Loss of (x less than or equal to 50%)  Matsyama o P’s primary care doc failed to order tests that would have revealed that he had gastric cancer sues for wrongful death and loss of chance which was determined to be 37. o 3 factors bear on whether a plaintiff can prove causal linkage  circumstantial evidence   the relative ability of the parties to obtain evidence concerns about errors favoring either party · Non Medical o Wolf/Hinman  Tenant injured in stairwell sues landlord for dangerous conditions  Supreme court concluded that it was a reasonable inference that the stairs were dangerous and reinstated a jury verdict for the tenant.

  Ie. Non-medical o Hardy (No)  Refuses to extend loss of chance to 911 operator. · Necessity of event o Alberts · Greater than 50% (No)  Dehanes v rothman o If loss of chance is greater than 50% award 100% of the damages Employment  Guy would have had a 25% chance of getting job but for negligence and should be able to recover 75% of damages. Malone DES CASES  Hymowitz o Idea of Market share liability o Dissent: market share liability with D‟s chance to exculpate themselves o o o o o o o DES policy choices Market share (how to define Joint and several? Exculpation Inflation Your speed caused the kid to jump out in front of the car . III Politics. · Rejection :  Fennell o Court refused to adopt loss of chance in a case because of difficulties in dealing with statistics and fairness concerns. Full wrongful death award of $100  Loss of chance 50%  Award of $50 Note: limited to malpractice cases and pertins to injury not causation.

· Smith (extent)  During a dry summer a spark from a train burned down a cottage.. Direct Consequences · Polemis (type)  Plank negligently is allowed to fall and creates a spark that blows up a ship The fact that the type of damage that a negligent act causes is not the type that was reasonably anticipated is immaterial.o Friend is invited to dog sit.. Cause Intro: I Intro · Ventricelli  P rented a car with a defective trunk and pulled over to fix it and was hit sued rental car company No recovery because injury was divorced from the type of harm that was reasonably foreseeable from the negligene · Berry  Tree fell on trolley that was speeding  Speeding did not cause tree to fall so no recovery II.   I and II  Palsgraf o P injured when a servant of the RR helped a passenger aboard who dropped a package full of explosives . liability for that injury is limited to the risk reasonably foreseen.  Extent of damage immaterial (Still good law) III.dog escaped…friend slips o o Basic policy issue: how do we balance responsibility of liability Prox. negligently did not cover a hole in a fence. Foreseeability current rule · wagon mound   p’s dock was destroyed when oil from d’s ship leaked out Even when a negligent act may result in injury.

o D’s negligently mainatined engine ignited sparks which hit one building and fire spread to P’s buildimg. o Court held that Fire‟s spread was not necessary or usual result of D‟ s negligence. B. o P „s action was deliberate and reflective. . Moore v. Int’l Railway Co. but is accidental and varying circumstance. NY Central R. Fire Rule:  Ryan v. Co. N. o Cardozo says that danger invites rescue: nonprofessional emergency rescuer entitled to recover due  to D‟s negligence.o When a negligent act results in injury to another but the risk of harm to the injured person was not reasonably foreseeable consequence of the negligent act no duty of care exists to the injured person Cardozo  Duty  Andrews o Cardozo holding too narrow to limit negligence only to cases where there is a duty. o P injured while trying to rescue cousin who fell from train due to D’s negligence.Y. A person owes a duty of care to society at large and must be responsible for the prox cause of their actions III. Shah o P donated kidney to father who neeeded due to D’s alleged malpractice. Policy purpose of insurance is to protect against loss one is exposed to as a memberof society. ( not spontaneous) and court refused to place duty on D. To hold owner liable for his loss and neighbor‟s loss would be destructive to civilized society. Recurring Contexts A. Rescue  Wagner v.

Liability will not be limited by unforeseeability of exact developments and harm whe damages result from negligence with foreseeable consequences. COST SPREADING.) City negligent (Closed bridge). Suicide  Fuller v. but injures P way beyond foreseeability.  intervening conduct did not insulate RR from liability. IV. tearing B loose. EggSHELL SKULL applied. Preis o P kiled himself after being severely injured in accident.. o Court held that “irresistible impulse” does not necessarily mean “sudden impulse”. D is liable for all harm. Court increasingly willing to allow recovery where D’s negligence so injures person they commit suicide. Special Rules The EGGSHELL SULL RULE D takes P as he/she finds him/her. Kinsman Doctrine (CB. Garrett  Train improperky took woman past her stop. both ships travelled down the river and crashed into bridge and forming ice jam causing flooding.(There is liability insurance now. though) 3. D. She was raped. Kinsman negligent. Ship A. Dock owner negligent for loose mooring. wife being paralyzed by polio and mother contracting cancer. 378) :  Kinsman’s crew omission let ice jams hit his boat. which turned loose and hit Ship B. Criminal conduct:  Hines v. lessen social  . Conductor tld her to walk back through what he knew was a bad neighborhood.

380) :  Other ships business interrupted due to jam and use for damages .Kinsman II (CB. o III. Duty to Rescue General Harper   Kid Dives off boat and is paralyzed Boat owner who is a social host owes no duty to warn guest water si too shallow if the guest is neither o Particularly vulnerable (child. impared) o Nor lacks the ability to protect themselves. TOO REMOTE(upheld Andrews dissent) Duty I Intro PFC Approach II Privity McPherson  Cardozo concluded that a car manufacturer owed a duty to someone who purchased the car from a dealer o Beause it is a thing of danger o And is likely to be used by someone other than the purchaser (dealer) without new tests.  NOTE Special Relationship does not exist Liberty Exceptions Non-negligent injury Maldonado  P tried to board a freight train and fell off and was injured and that D’s employees knew of his plight aand did nothing  Court upheld a d‟s duty to rescue refer to 322 below .

If an actor knows or has reason to know that by his conduct (tortious or not) someone else has been injured there is a duty of reasonable care to prevent further harm. o Court upheld a duty to warn Menu   Reliance Mixon  Guy hits median and car is disabled in road injured guy who hits it tries to sue taxi driver who picked him up. Manager promised to let him know. He didn’t ..  Court held that the promise triggered a change in behavior and therefore there was a duty owed Relationship Farwell  Guy gets the shit kicked out of him and other guy just leaves him  Social venture is a special relationship that imposes a duty and a partical rescue can impose a duty.Rst §322. Ronald   Bjerke  Kid was driving around with a bunch of fuckups who were drinking and doing drugs. Non Negligent Risk Simmonsen  Defendant knocked over a utility pole and drove on  D has an affirmative duty to remove the hazard or warn to warn others. No duty to warn about hazards you do not cause Husband informs restaurant where he worked that his wife was preganant and that she may call for a ride to the hospital.  Tresmer o Doctor did not warn patient that a device implanted in her was defective when the defect became known to him after the procedure. No duty for kid to restrain the driver from doing so D owned a stable and minor p’s resided for long periods of time and told the p’s parents he would look after them..Long story short their .

No duty because the purpose of the inspection was for under writing purposes  Partial issue Rst §324 Medical Hurley  P sues D (doctor) for refusing to make house call. Plaintiff was injured on the premises and sued saying the inspections was negligent. General Conditions Carter  D hosts bible study and guy slips and is injured  P was a licensee and homeowner only has duty to protect him from known dangerous conditions\ .sued water co saying that an adequate supply of water would have stopped the fire from spreading  No duty denile of benefit not commission of a wrong Adams Premises Liability I Review Memo II..  No duty. Childs  D doesn’t treat women going in to labor in ER tells her to go to her primary care physician. Jansen  daughter has a sexual relationship with the defendants live in boyfriend Court recognized this as a special relationship and upheld that a duty was owed.  Unless D is in the employ of P there is no duty here (NO LONGER GOOD LAW). Defendant insurance co carried out yearly inspections of a facility. duty must flow from relationship with the plaintiff Reed and draper Moch Case  P’s warehouse caught fire.

o Licensee because not giving home owner any tangible benefit by being there Heins   Guy slips and falls outside of a hospital of which he was not a patient or conducting any business with. Abolishes the distinction between licensee‟s and places a duty on owners and occupiers to exercise reasonable care of their premises o Reasonable care test  Foreseeability of possible harm       Carter Activity Britt  P was using D’s autotorium for a sales presentation and an agent of d dropped a piano on her foot.  Court refused to adopt a difference between active and passive negligence and dismissed the case Bowers  Social guest burned during preparation of flaming irish coffee  Court held that when a licensee is injured by an affirmative act by the occupier there is a duty of reasonable care Rst § 341 Open and Obvious Mcintosh  Got rid of no duty to warn of open and obvious dangers because you could just use contributory negligence Outside Premises The purpose for which the entrant entered the premises The time manner and circumstances for which the entrant entered the premises The use to which the premises is put or expected to be put The reasonableness of inspection and warning The opportunity and ease of reapir The burden on the land occupier

Modern tort jurisprudence has gotten rid of outside inside distinctions. Review Memo II Vitim outside premises Activity on land that injures victim outside premises – Owe duty to injured Conditions Artificial Vs Natural conditions Artifical=duty of reaspnable care Natural no duty of reasonable care Tree exception-act reasonable with the likelihood that trees on your property will injure someone. Modern trend is to do away with distinction between external and internal people Context Children -> attractive nusience Rst §339 Business Liability (security General Wal-mart  Women is robbed outside of a wal-mart in Louisiana  Duty to protect customers from criminal acts of third parties arises out of a balancing test between the foreseeability of the criminal act and the burden of preventing it. o Concurrence said should use totality of circumstances test Takes into account number, nature and location of similar incidences in the area. Sharron  Women assaulted in parking garage  Only one similar incident so no duty to provide protection Williams  No duty of care owed to customer who was injured during a robbery Resisting KFC

Cashier did not comply with demands of robber and customer was taken hostage but not physically hurt.  Court held that there was a duty if it was foreseeable that the customer would be injured if the cashier refused If faced with a premises liability test question do analysis under heins and old status distinctions. Government Duty I Tort/State Police Riss (general)  P was terrorized by old boyfriend and requested police unsuccessfully. After she became engaged to another man her boyfriend hired someone to throw lye in her face.  Gov‟t under no duty to provide special protection because of resource allocation. Schuster (Informent)  P was an informant and requested protection didn’t get it then was killed. Police actively sought his help so therefore there was a duty to protect him. Sorichetti (protective order)  Scumbag father beat the bag out of his kid…they got a protective order.  Duty flows from the protective order Florence (undertaking)  Cuffy Test Assumption that the municipality will act Knowledge on the part of the municipalities agents that inaction could lead to Harm.  Some sort of direct contact between the municipalities agents and the injured party  Parties justifiable reliance on the municipalities undertaking Mastroianni (protective order)   

. 911 Calls Delong Merced  Injured party must prove that they had direct contact with the municipalities agents and justifiably relied to his or her detriment that the municipality would respond  Muthukumarana  No duty when someone else called the police to relay information about a person in need of assiatance. Crossland (witness  Defendant transit authority employee witnessed attack and did nothing.  Duty to summon help Clinger  P Raped behind construction materials  Court refused to impose liability on gov‟t either for placing the material there or not providing more police protection.But they let him stay First two Cuffy elements were met by the protective order and the last two by the officers contact wit hthe victim and their promise to do whatever they could Public x-portation Weiner (general)  No duty for transit authority to protect custoemrs from attack unless special relationship exists.  Guy stabs his wife after police officers had been at the house because he was in violation of a protective order. School Safety Hoyem  Kid ran away from school and was hit my motorcycle  School owes duty of care in supervising children Pratt  Kid hit by truck after be let off of the school bus .

  was inconsistent public duty limitations on recovery Judges and prosecutors  Absolute immunity for judges and prosecutors Falls II Federal Immunity TTCA Cope  Guy injured when driving through a road in a park in DC claimed it was negligently maintained. (public duty) Clerical error caused a defendant to be let free and he raped the plaintiff. No duty because the child was left at a designated stop where the duty ended. Whisnant  Every claim would have some policy implications Cestonaro  Federal Rights Castle Rock  . Services Peter W  Duty of saftey not extended to teachingbecause no standards of care could be developed General Services Lauer (discretional v Ministerial)  P claimed city death examiner was negligent for failing to report a finding that would have absolved him of charges that he murderd  his son To sustain a liability claim against a municipality the duty breached must be more than is owed to the public generally o Unless statute says it is in place for a particular purpose duty can not flow from it. Defendants motion to dismiss was rejected because of FTCA Jean W. Discretionary judgements that are not fraught with public policy concerns are not immune from suit.

B.  Court held that there was an impact requirement.  Court denied that mother had such an interest Deshaney  There is no affirmative duty on the part of the state to intervene and protect individuals from invasion by other private parties. Limitations Humana  False positive HIV test  Upheld physical impact requirement Wooden  Allowed for emotional distress recovery when d‟s car almost hit P Lawson  Not following wooden for fear an airplane would crash on them (fear would have been short lived) beynon(physical peril)  .Mother made 14th amendment claim when police failed to intervene on a protection from abuse order To be successful on the claim plaintiff needed to prove that she was deprived of property rights. Falzone  Woman’s husband is hit in an auto accident she was afraid for HER life and suffered P can recover for emotional injury if o Within zone of danger o Physical manifestation of the injury o Injury would constitute a cause of action if it was through physical impact C.  Direct emotional injury I General (including Physical) A. Mitchell (touching)  Team of horses ran out of control and almost hit P who soon after had a miscarriage.

 Skid marks allowed for inference that near car sccident victim went through an unusually disturbing experience II. Impending Death Airline Quill/  Unusually disturbing experience of thinking the plane you are on is about to crash B Mcdonnell.  Guy on otherside of plane denied recovery because he couldn’t see the engine wasn’t working Non air Beynon  Skid marks allowed for inference that near car accident victim went through an unusually disturbing experience III Solely Emotional Metro North  P exposed to asbestos and says he suffers emotional distress for fear of illness  No recovery until the desiease manifests o Immediate risk of physical harm requirement Gammon  Place sent bones instead of personal effecs of deceased father.  One may recover for negligent infliction of psychic distress not accompanied by physical injury o CORPSE exception NOT EQUTING PHYSICAL TO EMOTIONAL INJURY Hiv Cases Williams  Plaintiff trash collector is stuck by a needle  Court rejected requirement of actual exposure to HIV in favor of what a reasonable well-informed citizen would think o To determine reasonably well informed citizen consider  Have findings that something is of no risk to the public been published? .

Huggins Plaintiffs parents followed incorrect label that was negligently placed on childs medicine bottle  Since the child was not permanently injured no recovery for emotional distress of parents II zone of danger Tobon  .   Are they accepted by the general public? Do significant pockets of the public remain unconvinced. alive oen does). Even if the vast majority of the public is convinced a jury could still find that the Plaintiff was not. Chizmar  Patient is wrongfully informed that she is HIV positive  Court upheld NIED claim Baker False positive test reporting –Ties this to false reporting of death of a loved one Fact and circumstance are so traumatic that report would lead to emotional distress I Intro: Direct/indirect Carey  Some courts hold father as bystander buring child birth cases burgess  Mother is not a direct victim but also not a bystander in child labor injuries to newborn Broadnax  Mother can recover for emotional distress for miscarriage and still birth Sheppard  Injury to child but child survives…No claim for the mother because broadnax was intended to provide a cause of action where no other was available (dead child has no claim.

Relationship 2. Severe Emotional distress 4. Zone of danger 3. Dillon/Portee-relaxation or zone of danger Portee  Plaintiff witnessed long violent death of her son in a malfunctioning elevator.  A person may sue for emotional distress cause by injuries to another person o Dillon/portee test  Proximity to accident  Observed the accident  Relationship to the victim  Direct victim injury Thing –  mother rushed to scene of childs accident  Location and observation test in Dillon Sensory perception has to be direct as the injury occurs Proximity Scherer  Hotel fire saw it on TV knew husband was there but never saw husband on TV  NO SENSORY PERCEPTION NO RECOVERY Mavzolf  Relatives rushed to the scene of accident  .Family and zone of danger requirement for recover Must be serious emotional distress by observing severe emotional injury or death Bovsun test 1. Severe direct victim injury Johnson  Kid abducted from hospital  No recovery upheld zone of danger requirement Kalina-jewish circumcision distinguished using Johnson (custodial interest) not religious sensabilities  Remember reasonable religious observer III.

Court upheld NIED claim because victims condition worsened drastically from the time they arrived Serious Injury Direct victim Barnhill  Mother in car accident behind p and was only slightly injured. Relationship Indirect victim   . Mother dies from emotional trauma  NO RECOVERY to much liability for the tortfeaser don‟t want to expand circle of liability Indirect victim Sullivan  Two plaintiffs stood across the street and watched their house burn down  Can‟t recover for loss of property and vomiting isn‟t enough of a physical symptoms of emotional distress Lubner  P sued for NIED when trash truck crashed into their house and destroyed art work  NO recovery for emotional injury due to property damage. Campbell/roman o Allowed NIED recovery for death of pets Doe parents  Court allows for claim for emotional distress of parents with children who were molested by a school teacher without proving physical injury to the children V.  Proper test whether a reasonable person would believe and the p did believe that his mother would be seriously injured Barnes  Mother thought that her child was injured in an accident and it turns out not to be her kid. Hawaii (foreseeability)  Rodrigues (lubier) o Hawaii allows for recovery for emotional distress due to loss of property if a reasonable person would be unable to adequately cope with the loss of property.

Statute Chianini :  No contributory negl for school children crossing the street after getting off the bus because of statute requiring drivers to instruct children in crossing the street. fiesthamel .Elden  None married couple denied relief Dunphy  Possible recovery for people in a non-married relationship  Test delving into the nature of the relationship. Doctrinally limit the rule: Exceptions Activity  Rescuer: o Judges would throw the contributory negl element to the jury who would overlook it and find for the rescuer. o Length of relationship o Degree of mutual dependence o The extent of common contributions of life together o Are they members of the same household Consortium –Physical or emotional injury to direct victim has caused the loss of companionship to another. Direct History Only men used to be able to consortium claims or any tort law claim Modern Rules  Allows loss of consortium due to emotional injury Parent child  Some courts allow loss of consortium claims for children due to loss of parent some do not Contributory/compar. Negligence Responsible for contributory negl I Contributory Negligence (minority/exam) EXAM QUESTION WILL BE A CONTRIBUTORY NEGL JURISDICTION  Victim culpability: if at all at fault then no recovery.

. Think drunk driver speeding and dude walking outside the crosswalk Last clear chance Davies v Mann  Defendant ran into a donkey that the Plaintiff had carelessly left tied in the roadway  Defendant has last clear chance to avoid injury so no contributory negligence. II Comp Neg (majority Pure X=% of P’s fault=60% X= injury damages 1.Cant do it Why Lack of relationship Would leave innocent victims uncompensated Employeremployeevictim Employee is negligent…employer has the $$ …Employer responsible for negligence but not employees contributory negligence Jury Jury would usually ignore contributory negl and just reduce damages effectively making a comparative negligence standard. Plaintiff is unaware that e accident is going to occur. Court reduced recovery for young girl who ran into a revolving door finding that the statute was not made with the purpose was not made to protect any specific class of people Reckless activity: Willfull misconduct but do not intend consequences No contributory negl if the defendant is reckless or willfull misconduct.000 Y=others are 40% at fault Plaintiff gets 40% of the compensation . Imputation (No) Continental Auto lease v Campbell  Two cars negl in accident and rental car co goes after other driver.

Munn v Algee  Religious beliefs would not justify the refusal to mitigate injury through medical attention Assumption of risk Elements  Knowledge of risk  Appreciate the danger  Voluntary I. Avoidable consequences Hall v Dumitru  No duty to undergo evasive medical procedure (including surgeries) if the risk of the surgery is too high. Express General: Hanks  Snowtubing waiver ok for reasonable person but against public policy so not enforceable o Hyson: must expressly say the release from NEGLIGENCE Public policy analysis Tort policy purposes Tunkl test  Business type suitable for public regulation  Service of great importance to the public . Definitions  Express-Written in contract  Implied  Primary  Secondary II.Modified X<50% not as great as X<= 50% no greater than III. History Weinstein Rablin III.

Hojnowski  Kid fractures femur and parental waiver didn‟t count Diallo  Pro-waiver Zivich  Waiver parents sign for kid also bar parental tort action against soccer league Sharon  Upheld parential waiver signed by parents because of the increased cost of not having waivers King Spousal: Huber Intermediate agreements iV. Implicit Dangerous Activity Murphy (Cardozo)  Name of ride is flopper and dude got flopped  Distinguish tantillo o No witness of the activity before they were flopped Sports participation Knight  Touch football game douche injures some girl after she told him to settle down   . Parents Anti Waiver Galloway  Parents waiver of liability for kids are per se invalid.Willing to perform the service to anyone Bargaining advantage for the party seeking exculpation because of necessary nature of service  No stipulation where the contract signer can pay more for negl protection  Purchaser placed under control of seller Virginia-no contracts that exculpate negligence They use totality of circumstances (Maryland and Vermont).

.  Primary implied assumption of risk does not fit doctrinally with contributory negligence as it is not an affirmative defense it is a defense against the D‟s duty owed  Boddie  This is a secondary implied assumption of risk because there is nothing inherently dangerous about walking down stairs   Guy working on house tries to help owner when she starts a grease fire and catches on fire him self d claimed assumption of risk  Court said no assumption no assumption of risk for rescue Gonzolez .NO recovery because D owed no duty to P and did not intentionally injure and was not reckless Vigorous participation Lestina (negl  Established a duty of reasonable conduct to the plaintiff within the games parameters. Didn‟t wnt ot encourage cost spreading …Primary implied assumption of rick because you should know baseballs are going to be flying around Legislation Illinois enacts legislation to limit liability to keep ticket prices down Comp negl Davenport  Stairs are poorly lit and the dude fell but had two other options and he knew and had already complained about the lights. ie establishes reasonableness in accord with what is foreseeable inside of the fact and circumstances Crawn (flood)  Cant have sport liability because of flood of litigation it would induce Spectators Davidoff  Girl hit with Baseball at game no recovery because of assumption of risk of sitting on the first base line..

 Barbara A o Chick gets pregnant after guy tells her that he is firing blanks o Court upheld that this was offensive touching Extension .  Drunk Driving case d claimed dude knew he was cocked and should have idea of dangers Secondary implied assumption of risk. Intent Garrett  5 year old pulls chair out from under a person  Remanded to determine if the kid knew she was about to sit Offensive Objective standard  Vocburg o Kid playfully kicks other kid in knee and he ends up getting seriously injured o Battery because kid intended to make offensive contact. court uses comparitve negl Mcgrath  Gets rid of assumption of risk Goepfest/maldoun  Different than davenport maintain absolute defense of assumption of risk INTENTIONAL TORTS Assault and battery I PFC II Definitions Battery Offensive Assault : Legal protected intrest is freedom of fear Apprehension Intent : only intent to make the offensive contact III.

Doctrine Picard  D touches P’s camera  Camera was in her hand (extension of her body) so battery and she was scared so assault Fisher  D grabbed plate out of p’s hand  Plate extension so battery Cultural Meaning Alcorn   D spat on p infront of court house Court awarded punitive damages Consent and self defense  Courts usually allow for consent to battery as a defense  Issues when there is anger involved Fist Fight  Hart o Prize fight context so allows for consent o Majority rule: No consent to unlawful activity (actual fist fight) Pro football  Hackbert o Intentional damage and injury to others is outside of the implied assumption of risk in playing football Self-defense  Mistake o Raymond   Domestic Violence o Kelly Property o Katco  Spring gun case  Cant use lethal force to defend property  Spring guns only to prevent felonies of violence o Ploof. .

Mere Causation Severe emotional distress Compensatory damagespain and suffering Punitive damages  Punish defendant Policy Worried about flood of litigation Worried about fraud and speculation Tough cookies Bartow Dude calls pregnant women a god damn son of a bitch and a dirty crook  No right to recover for bad manners (with no physical contact).P moors boat on private island during storm D cuts him loose  D liable for damages because of private necessity o Vincent D  Boat tied to dock doesn’t leave during the storm and damages the dock  Boat owner liable for damages to dock but only compensatory damages  Intentional Infliction of emotional distress Elements (note not an assault because not in fear of personhood but really bums them out) Intentional or Reckless Extreme and outrageous vs. but coercion) sopranos waste mgmt. Sitznoff  Guy gets harassed for not paying notes to garbage  Court allowed damages even without assault (no direct threat. shit needs to be something more than verbal Rst §46 .

would entice a flood of litigation Irving: o Guy returns stuff guy writes racially insensitive comment on return slip  o No recovery under constitutional prevision (no negligence per se) o Conduct not severe enough to constitute Intentional infliction of emotional distress claim (not extreme and outrageous) Employment  Alcorn: o Guy gets yelled at racially and guy gets fired .Non racial  Agis: o Howard Johnson’s case chick gets fired because her name begins with an A o Must be severe emotional distress in order to recover  Womack: o Guy takes picture of guy and he begins to be associated with a didler but he didnt know the dude o Position of being placed in a child molester context should have known that shit would upset his guy  Not merely verbal must have some conduct: conduct here is bringing the guy into court Racial  wigs : o Restaurant no scallops case o Allowed for compensatory and punitive damages for interruption of vacation and act itself o (rst 48): must be a gross insult lower threshold than extreme and outrageous o Wiggs under §48 because of innkeeper and common carrier o Child exposed to coarse of language: don’t use bad language in front of kids.000 was excessive. o Damages: 25.

Extreme and outrageous is defined as intolerable to civilized society to a reasonable person of ordinary senceabilities. They made two racially charged comments o No claim because two did not signify a steady barrage Walmart : o white chick fired for dating a balck dude o Works as a title 7 claim because she was fired  sexual orientation  Logan: o Gay guy hears the guy say he is as queer as a 3 dollar bill Didn’t intend for logan to hear the comment (probably could of disposed of it like this)  Held that claim was merely insulting and not extreme or outrageous.. Term queer is not defamatory in the common vernacular.. Sex harassment Russo :   Forklift  340 Hang up phone calls Didn‟t say anything so no intentional infliction Rabaduc is too limiting ellis too permissive Sets the abusive work place standard as requires the conduct to cause a tangible Hostile work place Serous tangible psychological injury (rabiduc) High threshold   .  o Claim allowed to proceed because employment status changed Patterson: o guy racially harassed at work o No claim under 1981 because employment situation did not change o Fed tittle VII: prohibits an employer from discriminating in employment situations Bolden : o Plaintiff worked in a shop where people gave each other shit.

o Reasonable women standard ( Ellison ) o Lower threshold perspective Clark county  Simple teasing and off-handed comments do not amount to a title 7 violation Dunning  Plaintiff complained of sexual harassment and was subsequently placed on unpaid maternity leave  Court awarded plaintiff back pay and attorney fees although it made no finding of sexual harassment Kanzler   Oncule   Police dispatcher stalked NO title 7 because guy wasn‟t her supervirsor or employer Guy sexually harassed while working on oil platform Supreme court held that same-sex sexual harassment was actionable under title 7 Grivelber Extreme and outrageous is too subjective Traditional SL I England Rylands  Fletcher is tenant mining coal and the mine is flooded by a reservoir that was created by rylands  Rylands is strictly liable Rylands (house of lords) Rylands strictly liable because of non-natural uses II. American Scene Losee/ Brown  Losee: we all benefit from use of land so no strict liability Turner  Rejected to rylands because it was in TX and they need to store water for livestock industry. (cattle raising=natural use) .

. Sullivan  Guy gets killed from shrapnel from other dude blasting huge tree. Train yard sues manufacture saying that the ultrahazerdous activity is the manufacturing of the chemical o Posner analysis of section §520 o Guille case (hot air balloon) o Great probability of harm Most important factor … Inability to reduce risk through exercise of due care. If due care wont work the only other option is to reduce level of activity Best position to stop this accident is the transporter        Yukon (rejection)  Explosion of building used to store explosion  Court insisted that use and storage of dynamite warranted strict liability no matter how valuable the activity may be Defenses Assumption of risk Strict Liabiity .Blasting. 520 (rest 2d) Abnormally dangerous activity test High degree of risk High likelihood the harm that results will be great Inability to eliminate the risk through reasonable care Extent to which the activity is not common usage Inappropriateness of the activity to the place where it is carried out Extent to which it is a valued to the community is outweighed by its risk Indiana Harbor  Train car full of toxic chemicals spills..  BLASTING=SL (distinguished from losee because explosion was voluntary) Citites :  Court applied rylands…shows shit towards environmental protection Exam use restatement formulation p.

 Loss spreading:  Common law: Enterprise liability (defendants pay)  Contemporary policy  King Goals/Memo  Loss spreading : enterprise is in a good position to spread the costs of an accident through prices      Posner      Deterrence Inflation/ risk allocation Fairness Liberty Externalities : cost associated with an activity Return Morality Fletcher Epstein Keating (like Grimshaw…value of life greater than any cost benefit analysis). Majority-Absolute rights Holmes-contemporary policy  Chavezo Liability of shipper who was mandated to take dangerous cargo is strict liability because of capacity to spread losses. Strict products liability Formation PFC Defect .Historical Rabin “ideology” Leroy fiber  Train sparks set P’s hay on fire  SL for train because free use of property. J and G Social Ins. H.

Greenman (shift to a strict liability regime)  Person hurt while using power tool  P verdict based on negligence and express warranty claims Manufacturer appealed on warranty notice grounds o Judge traynor disagreed Vandermark Breaks fail on new ford Trial ct dismissed claims against manufacturer for negligence and breach of warranty gave negl verdict on retailer  Appeal ct uphld negl claim and reversed the claims against the manufacturer Proper Dist p’s Bystandards   .Causation P cost Escola  Coke bottle Exploded in p’s hand  RIL can apply when a plaintiff can show that the condition of the product did not change after it left the defendants hands and the accident would not occur without negligence Minority opinion-Should use S/L when a defect causes injury Doctrine Macphersen: Regradless of privity manufacturer responsible. Public policy demands macpherson not be limited to negligence context Policy justifactions of s/l on manufacturers Shift loss Note : similartities to bierman Henningson (contract method of s/l)  Steering mechanism of recently acquired Plymouth caused car to spin out of control  Imposed warranty on manufacturer for eventual purchaser   Void disclaimers using against pub policy arg.

Elmore  Driveshaft of car falls out and injurers another driver  bystanders entitled to strict liability Lessons Price  S/L for lessor Franchises Kosters  Imposing s/l on the franchisor for franchisees defective design of carton Financial Nath  No S/L for co that financed a piece of equipment (no capacity to deter). Sucessors Liability Ray/Sennetor Used Goods Tillman  No S/L for used goods Gov’t Contract Boyle  No strict liability for gov‟t contractor Bystanders Elmore  Entitled bystanders to strict liability PFC Rst §402 a Defective condition unreasonably dangerous The manufacturer has exercised all possible care Defect=consumer expectations about manufacturing defects NO UNREASONABLE CONDUCT RECUIREMENT Rst 3d .

improper maintenance Peanut jar explodes when dude closes it Courts infer that there is a defect Daniels  Exploding battery case  Infer defect Rst 3d 3 Inference Allows to infer a defect in cases where the accident ordinarily wouldn’t happen if there was not a defect present Design Defect Basics Cronin  Truck driver injured when trays came forward and hit him  P‟s verdict No unreasonably dangerous requirement o Unreasonably dangerous requirement sounds too much like negligence Barker    P injured when high lift loader overturned on a slope Product must be used in intended D has burden of persuasion if risk outweighs the benefit Problem with consumer contemplation is that consumers might not have the requisite knowledge to contemplate. Sonle Car floor board resistents . Focus on conduct in relation to the industry standard (reasonable alternative design) Mft Defect Cases Welge   Price   Used car accident Car too old could be replacement parts.We need a way of thinking about product liability not only in manufacturing defect but also design and warning defect.

If it requires expert testimony cost benefit. Barker-shift burden to the defendant REMEMBER CAUSATION Jury EXAM: Assume barker jurisdiction and do the analysis under barker Consumer contemplation and Excessive preventative danger Barker analysis What bucket Consumer contemplation or Risk benefit analysis If the product does something really really bad than consumer expectation. Barker defined Campbell  P injured on bus with no grab bar  Use consumer expectations Pruitt  Airbag deployment at low speed collision  No consumer expectations use c/b Hackney not convinced Morton  Asbestos case  Use consumer expectation Product comparison RAD  principle tool of c/b RST 3d Consumer contemplation is not grounds for independent claim but is contained within NEED expert testimony Show alternative product on mkt Create new design or prototype Basic defense: that’s a different product Banksunrem .Reversed using bakers decision that jury should be charged with excessive preventative danger (risk benefit analysis) not consumer expectation.

o Whether the danger presented by a product in a products liability action is within the contemplation of the user is irrelevant. The Relationship between consumer contemplation and risk utility o Ortho Test  Usefulness and desirability of the product    Saftey aspects of the product-likeliness that it will cause injury and seriousness of that injury The availability of substitute product which would meet the same need but is safer.Dreisenstok  Minibus case  Decided under negligence regime uses consumer contemplation along with risk benefit (price. The manufacturers ability to eliminate the unsafe characteristic of the product without imparing its usefulness or making it too expensie Users anticipated awareness of the danges inherent to the product and there avoidability The feasibility of the manufacturer spreading the cost    O’brien  Plaintiff injured when he dove into an above ground swimming pool  Even if there is no reasonable alternative to making the bottom of pools this does not preclude a finding that the risk posed by the pool outweighed its utility Braughn (rejection of o’brien . cargo room) Bittner  3 wheel Atv accident  Allowed to compare other products for the same purpose (4wheelers atv‟s ect) not skidivign scuba diving Design Defect Cont Open and obvious  Camacho –folds consumer contemplation into risk benefit o Guy suffers severe leg injuries in a motorcycle accident and claims they could have been prevented if it had leg gaurds.

Instruction v warning Rst 3 com i In general a product is not under duty to warn for things that should be common knowledge Common knowledge Brown  No warning requirement on tequila bottles Maneely  No warning requirement for riding in bed of pickup Emery  Kid choked on marshmellows  . Intro Comment j 402 a In ordered to prevent a product from becoming unreasonably dangerous a manufacturer may need to provide warnings or directions Warnings giving instructions as to safety Safety warning for a risk that can not be eliminated.No liability for mini trail bikes when they are used on the road (no rad) (warning) Warranty Denny  Off road vehicle advertised for use on road  Consumer contemplation Castro  Turkey pan case  Uses implied warranty to expand liability to facilitate loss spreading Uniformity  Dawson o Critiques of case by case risk-utility analysis  1) no uniform standards  2) inconsistency of judgements Warnings I.

Jury must decide whether it was common knowledge for a child to know that mellos expand when wet. Adaquacy Hood –Is the warning adequate  Skill saw takes of the gaurds  A warning need only be reasonable under the circumstances Cotton (info cost)  Propane tank exploded  More warnings reduce the impact of current warnings Pittman Test a Warning must convey    Scope of danger Serousness of possible harm Physical aspects of warning must be adequate to alert a reasonably prudent person.  Johnson  Warning language must convey seriousness of accident that could result Campos  Pictorial depictions of warning necessary when people don‟t speak English or children who can read Heeding Coffman Instruction Moran  Moron kid pours cologne on candle  Only duty to warn for foreseeable dangers Ragans  Weave case exploding activator  Instruction failed to warn about the dangerous consequences just saying erious injury not enough Misuses Lugo  Must warn/design foreseeable unintended uses Price  Foreseeability of a violent act because of the Bush mask Briscoe .

Not responsible for foresseing that someone will throw drain cleaner at a rival Addressee General To User Exceptions  Children Lerned intermediary exception: Karl  Pharmecutical co’s advertise so they should wrn consumers about dangers Majority rule: Learned intermediary Minority rul follows Karl State of the art Vasallo  Breast implant case  Allows for state of the art defense Product lianility def Contributory negl Com n 2d  Since liability is not negligence…Contributory negl not a defense however conduct of a different sort which arises to assumption of risk does constitute a defense Assumption of risk Hawk  Plane crash no oil duty to inspect  Contributory negl not a defense to strict liability Com negl Rst 3rd Compartative negl is ok Shanchez  Leaves truck running and it runs him over  P Does not have to discover or guard against a defect but if behavior goes beyond that comparative negl applys Hagland  .

  Smoking case Correia if you knowingly obtain a product that is defective and use it assumption of risk o Under normal circumstances product must be safe .

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