torts_fulloutline
Torts II Outline
I.Strict Liability—No Regard to the Actor?s State of Mind: “One who carries on an abnormally
dangerous activity is subject to liability for harm to the person, land, or chattels of another
resulting from the activity, although he has exercised the utmost care to prevent the harm.
A.Act
1.Abnormally Dangerous Activity
a.risk of harm
1)uncertain or uncontrollable risk
b.likeliness that the harm that results will be great
1)what property owner does with adjacent land
c.reasonable care does not eliminate the risk
d.not a matter of common usage
1)common usage
a)customarily “carried on” by the great mass of mankind OR many people in
the community
b)***ARGUMENTS FOR “CARRIED ON”***
1.“Carried on” means the person or the entity who undertakes in the activity.
Courts prefer easy rules because they promote predictability and
consistency for future cases. Adopting this rule will further this value
because it is easier to establish who carries on the activity rather than
who is affected by the activity. Here, ? ____________ and therefore was
the person undertaking in the activity.
2.Counter—“Carried on” means those persons affected by the activity. Easy
Rules ignore relevant factors. Adopting this rule will further this value
because the court can look to the surrounding circumstances and
determine who is affected by the activity. Here, ____________ and
therefore is affected by the activity.
3.Alternative--—“Carried on” means those persons affected by the activity.
Crop dusting is a business the court should encourage. Adopting this rule
will further this goal because crop dusting is widely used and beneficial to
the citizens of the state. If the court penalizes this business for a mistake,
it will deter this business. Here, ?____________and therefore is affected
by the activity.
e.Inappropriate place
1)Where is the activity?
2)Where is it taking place?
f.Balancing the risk of the activity versus the benefit to the community
1)***ARGUMENTS FOR RISK V. BENEFIT***
a)RISK: The court should encourage crop dusting. Adopting this rule will
further this value because crop dusters can still benefit economically from
spraying other farms. Because they benefit economically, they can also pay
for the damages they cause. Since they can spread the cost of damage to
other consumers, they can pay for damages. Here, ?
_________________and therefore the risk outweighed the benefit.
b)BENEFIT: The court should encourage crop dusting. Adopting this rule will
further this value because relaxing liability for mistakes will encourage this
business and will not impose unnecessary costs. Here, ? _______________
and therefore the benefit outweighed the risk.
B.Causation—Limitation of Liability
1.Risk that makes the activity abnormally dangerous must be the risk that causes the
injury.
a.Risk directly effected the outcome RISK = OUTCOME
b.Likelihood of harm will be great
2. ? is not responsible for ∏?s non-natural use of the land
a. ***ARGUMENT FOR “RISK”***
1)Risk that makes the activity abnormally dangerous must be the risk that causes
the injury. People have a duty to protect others. Adopting this rule will further
this value because people with knowledge of the risk are in a better position to
protect others who have no knowledge of the risk, and the above interpretation
reflects this. Here, the risk was __________ and caused the injury.
b.***ARGUMENT FOR NON-NATURAL***
1)? is not responsible for ∏?s non-natural use of the land. People should only be
responsible for anticipated risks. Adopting this rule will further this value
because it will relax liability on those who cannot anticipate the risk and prevent
frivolous claims. Here, ∏________________ and there for ? is not responsible
for the non-natural use of ∏?s land.
C. Defenses
1.Acts of God
a.Plainly beyond the capacity of anyone to anticipate
1)act of God not necessarily weather related
2)MAJORITY: because it hasn?t happened before
2.Contributory negligence--∏?s own conduct 4-PART TEST
a.Unnecessarily
b.Probable Consequences
c.Knowledge of the Consequences
1)Actual Knowledge or Should have known
a)***ARGUMENT FOR KNOWLEDGE***
1.Majority view prefers knowledge as what the ∏ should have known.
Courts like easy rules. Adopting this rule will further this value
because it is a consistent and predictable standard for future cases.
Here, ∏ was an *adult, child of ___yrs old, and therefore should have
known________.
2.Alternative: The court should deter careless actions. adopting this
rule will further this value because it will place liability on the person in
the best position to anticipate danger and change their behavior.
People will want to change their behavior because they are motivated
by money, and this is a behavior they can change. Here, ∏ was
careless and therefore should have known the danger.
d.Voluntary
1)Acting under one?s own power
a)***ARGUMENT FOR ACTING UNDER ONE’S OWN POWER***
1.People are responsible for their own actions and should take care of
themselves. Adopting this rule will further this value because liability
will be placed on the careless individual and it will deter careless
actions. here, ∏ was__________and therefore acted under his own
power.
Strict Liability Analysis
I.What activity is ? engaged in?
II.Is it abnormally dangerous
A.6-part balancing test
III.Are there any limitations?
A.Causation
1.Risk directly effected the injury OR
2.Is ∏ engaged in non-natural use of land?
IV.Defenses
A.Acts of God
B.∏’s own conduct
1.Voluntarily and unnecessarily putting one’s self in harms way knowing the
probable consequences of his act.
NEGLIGENCE
I.Negligence (Cardozo)
A.Duty of Care
1.Statutes
https://www.wendangku.net/doc/039284746.html,mon Law
a.Foreseeable ∏
1.Are they in ??s zone of danger
a)Sufficient Connection
1)Physical closeness
2)Time connection between act and injury
3)Relationship between ∏ and ?
a.Professional?
b.Personal?
4)If unclear, make a short argument why there is a sufficient connection.
2.Special Relationship will determine the duty of care
a)Trespasser—low standard
1)No permission to use ??s land
2)Duty arises at the moment of discovery
b)Licensees—higher standard
1)Social guest
2)On the ??s property for his own purpose
c)Invitee—highest standard
1)Person invited on the owner?s property
2)To further the owner?s purpose/business
b. Foreseeable Risk
1. General Rule—Reasonably Prudent Person under the circumstances
a.Situations
1)Emergency Standard
a.Why? ***ARGUMENTS FOR EMERGENCY STANDARD***
1.∏--Not held to an emergency standard. One who breaks the
law should be liable for all results. Adopting this rule will further
this value because liability will be placed on the one who caused
the injury rather than a burden on the innocent, injured party.
Here, __________ and therefore held to a reasonably prudent
person under like circumstances.
2.?--Emergency Situation Standard. It is reasonable to expect
that a person will not act rationally in an emergency situation.
Adopting this standard will further this value because it will relax
liability during circumstances where a reasonable person is unable
to act rationally. Here, _________ and therefore held to a
standard in an emergency. The Emergency standard is:
b.ELEMENTS: APPLY THIS
1.Situation not of ??s own making
2.Patent danger
a)Threatens your or other?s saf ety
1)Outside force
2)3rd party conduct creates situation
3.Only a moment left to extricate self—TIMING
2) Traits
a.Age
1.Why? ***ARGUMENTS FOR STANDARD OF CARE FOR
CHILDREN***
a)Same standard of care as adults if it is an inherently
dangerous activity. The courts should discourage dangerous
activities regardless of age. Adopting this rule will further this
goal because children will be liable if they undertake inherently
dangerous activities while preserving the encouragement of
undertaking in other child activities. Children will want to
change their behavior because they do not want to be in trouble,
and this is a behavior that every child can change. Here, ??s
conduct was____________ and therefore held to the same
standard as a reasonably prudent adult under like circumstances.
1)Inherently dangerous activity
a) Operating a motorized vehicle
1.IF NOT A MOTORIZED VEHICLE:
a.Arguments
1) SITS ________ is similar to a motorized
vehicle because ___________. Those who
operate _________ can be liable. If we treat
_______ and ________ similarly, and those
who operate _________ can be liable, then
necessarily those who operate __________ can
be liable, and the above rule reflects this.
Here, ? was operating a _______ and is
therefore inherently dangerous.
b)Standard of care of a child with similar age, intelligence,
experience, training, and maturity. We want to encourage
children to pursue childhood activities without the same burden
and responsibilities with which adults must contend. Adopting
this interpretation of reasonable care will encourage children to
pursue such activities without the burden adults contend with
because they will not be liable for acts that require an adult
capacity and judgment. Here, ? is a __-year-old child and
therefore is held to a standard of care expected of child with
similar age, intelligence, maturity, training, and experience.
1. May be heightened if these factors are high:
a. Child with heightened age, experience etc.
b.Physical Disability
1. General Rule OR Exception
a.Reasonably prudent person—General Rule
1)Which One and Why?
a)Reasonably prudent person—similar interests are
treated similarly. A person with ______ disability is
similar to a person with permanent disability because
_________. If we expect people with permanent
disability to exercise the same standard of care as a
reasonably prudent person, and a person with _______
disability is similar, then necessarily the person with
__________ disability is held to the same standard of
care as a reasonably prudent person. Here, ? has
____________ disability and is therefore held to the
standard of a reasonably prudent person in like
circumstances.
b)Exception to the rule. No liability without fault. Fault
requires the ability to anticipate consequences of one?s
action. People who are temporarily incapacitated
mentally have no ability to anticipate consequences, and
therefore cannot be at fault. Here, ? is temporarily
incapacitated and therefore is held to relaxed standard of
care. The mental condition must affect:
b.The ability to control conduct OR
c.Understanding and appreciation of the duty AND
d.Must not have notice or forewarning
c.Physical Disability
1.What standard and Why? ***ARGUMENTS***
a.General Rule—one who breaks the law should be liable for all
resulting injuries. Adopting this rule will further this value
because it will not preclude one?s liability for an injury on an
innocent party who had no control over the situation. Here,
__________ and is therefore held to the standard of a
reasonably prudent person.
b.Reasonably prudent blind person. People with physical
disabilities are similar to other people with the same disabilities
because their lifestyles require an enhancement of other senses
and activity to make up for those that they lack. Here, ? has
_________ disability and should therefore be held to the
standard of a reasonably prudent [disability] person.
3) Professionals
a.General Rule—Reasonably prudent [professional] in similar
circumstances
https://www.wendangku.net/doc/039284746.html,parable to professional with the same learning skill and ability
as another similarly situated in the profession.
https://www.wendangku.net/doc/039284746.html,wyers
1.Requisite knowledge
a)Usually conceded
2.Best Judgment
a)Not a mere error of judgment BUT
b)LACK OF Discretion
1)Subjective good faith determination
2)Argument—SITS. Doctors = Lawyers
3.Exercise of Due Care
a)Mechanical determination
1)Example—failure to research claim
2)Failure to file before the statute of limitations has run.
3)Argument—SITS. Doctors = Lawyers
c.Physicians and medical facilities
a)Locality Rule
1)Argument—The court should encourage medical profession
the provide medical care for their community. The national
standard will discourage the hospital form caring for their
patients because they will not want to be liable. Here, ?
hospital/physician is ________ and should be held to the
local standard.
b)Similar Rule
1)Institutional Competence. The court is in a better position
to hear and decide facts of similar localities based on
demographics, ethnic compound, and socioeconomic issues
such as funds and expenses. Adopting this rule will further
this value because the legislature cannot provide an
accurate determination on a national basis. Here, ? is
___________ and should therefore be held to the standard
of a similar community.
c)National Standard—Admininstrability. Social Policy. The courts
should encourage high quality medical care. Adopting this rule
will further this value because the other standards, such as the
local rule and similar rule breed a sub-standard of medical care.
Here, ? is _______ and should therefore be held to the national
standard.
2. Looking through the Eyes of the Defendant
a.Was the Risk something the ? should have foreseen OR was conduct
reasonable or unreasonable
1)For liability, the probability and gravity of the injury must outweigh the
burden of adequate precautions—BALANCE
a)Burden
1.Knowledge
a.? argues HIGH—REASONABLE INSPECTION
b.∏ argues LOWER
1)ACTUAL KNOWLEDGE OR
2)CONSTRUCTIVE KNOWLEDGE
2.***ARGUMENT IN SUPPORT OF CHOICE***
a.∏argues LOWER. Burden should be measured by what the ?
knew or should have known. The court should encourage
safety towards other individuals. Adopting this rule will further
this value because it will place liability on those who are in a
better position to know of the danger. Liability will encourage
people to change their behavior. Finally, this is a behavior that
people can change, and the above rule reflects this. Here, ?
______ and therefore should have known of the danger.
b.?argues HIGHER—The burden should be measured by whether
the ? should have known through reasonable inspection that
the danger exists. Social policy should encourage the free use
of one?s land. Holding ?s liable for failure to inspect every
aspect of their land would discourage the free use and
enjoyment of one?s land and would therefore contradict the
policy, and the above interpretation reflects this. Here, ?
__________ and is therefore held to the higher standard of
reasonable inspection.
3.If TRESPASSER
a.FOR KNOWLEDGE, ARGUE: Moment of Discovery OR reasonable
effort to reduce the risk
1)∏: Look to the ??s conduct. ? must make a reasonable
effort to reduce or avoid the risk to trespassers because one
who breaks the law should be responsible for the resulting
injuries. Adopting this rule will further this value because
the party causing the injury is in a better position to protect
the innocent, injured party, and the above rule reflects this.
Here, ??s conduct was ___________ and therefore must
make reasonable effort to reduce or avoid the risk.
2)?: The moment of discovery means actual discovery or
knowledge because the law should discourage trespassing.
Adopting this interpretation will further this value because
the court will discourage trespassing and impose liability only
when the ? can actually anticipate an injury. Another
decision would encourage trespassing because the court will
condone trespassing by imposing a harsh duty on the ?.
Here, ? ___________ and therefore did/did not have actual
or constructive knowledge.
4.If Licensee:
a.Duty to warn if:
1)Hidden danger
2)Unknown to the licensee
3)And known to the owner
a)if known to the owner, look to the TIME that has passed
(BARMORE)
b)∏: Constructive Knowledge ARGUMENT.
c)?: The sole benefit is to the licensee because of purpose,
scope, and time. The law should not make business?
insurers of all their customers because there is no liability
without fault. Adopting this interpretation will further
this value because fault requires the ability to anticipate
injury, and business managers and owners cannot
anticipate injuries to every customer that enters the
establishment. Here, ∏…s purpose, scope, and ti me is
__________, ___________, _________, and therefore
should be treated as a licensee.
5.If Invitee:
a.Open to the public
b.Customer:
1) Invitee has done business in the past
2)Is currently doing business
3)Will do business in the future
a)∏ argues that the ? knew or had reason to know the ∏
was a customer because the law should encourage safe
facilities for customers who are actually beneficial to the
owner. Adopting this rule will further this value because
the court will deter owners from having unsafe facilities
for their customers, the owners will change because of
liability, and the owners can take measures to safeguard
their premises. Here, ? ___________ and therefore
knew or should have known _____________.
6.If there is a great danger and the owner has warned the ∏:
a. A duty to warn is insufficient is some circumstances if
b.Unreasonable danger known to the ?
c.? Should reasonably anticipate that ∏ might still be injure
d.
1)Actual or Constructive ARGUMENTS
2)Reasonable Inspection ARGUMENTS
7.What conduct could the ? take to reduce the Risk?
a.FACT ANALYSIS
1)? would want to isolate the burden from probability and
injury.
2)∏ does not want to isolate, rather weigh against other
factors.
b)Probability
1.? argues low—unusual, extraordinary, and improbable because it
never happened before.
2.∏ argues high—likelihood of damage of appreciable weight and
moment
a.weight = severity
b.moment = time
3.FACT ANALYSIS
c)Gravity of the Injury
1.FACT ANALYSIS
a.Total loss?
b.Minor loss?
c.Monetary loss?
Negligence Per Se
*Foreseeable ∏ (Common Law) = Class of Persons (Statutory Breach)*
*Foreseeable Risk (Common Law) = Class of Harm (Statutory Breach)*
I.Source of Duty
A.State Statute
B.City or County Ordinance
C.Regulation
II.Breach
A.Violation of the Statute
1.∏ is in the class of persons that the statute is intended to protect
2.The harm is of a kind that the statute was intended to prevent
a.Look to:
1)plain language and definitions
2)Title, purpose, and Date
3)Amendments, Notes, and Comments
4)Penalties
5)Is the statute silent on the issue?
a)Argument—if its left out, legislature did not intend to include it
b)Argument—if its left out, legislature left it to the court for interpretation
6)Case Law
B.If there is a violation
1.Rebuttable Presumption of Negligence
a.The rebuttal must be strong, credible, and unequivocal
b.Burden is on the party who violated the statute
1)Common practices
2)Common knowledge
3)Violation was reasonable
2.Evidence of Negligence
3.Negligence as a Matter of Law
4)Argument: Evidence of negligence as a standard is too discretionary and
yields unpredictable results. Negligence as a matter of law is too harsh of a
standard because the party?s case will automatically be dismissed, relevant
factors will be ignored, and the court would encourage unjust enrichment.
Violations of statutes are fact-specific and therefore a rebuttable presumption of
negligence should be the standard. The court is a better forum to decide this
issue because there are relevant facts that surface in the courtroom that the
legislature has no access to. Adopting this rule will further this value because
the court can hear evidence and choose whether the violation was reasonable as
opposed to a strict application of the law which may be unreasonable. Here…
Res Ipsa Loquitor
I.Res Ipsa Loquitor
A.When does it arise?
1.No statute
2.No knowledge of ??s conduct
a.No one knows who committed negligence
b.It is an alternative pleading in favor of the ∏
B.Rule
1.Injury would not ordinarily occur absent some negligence
a.Obvious to a lay person OR
https://www.wendangku.net/doc/039284746.html,ually some type of expert testimony
2.Injury was not due to any voluntary action of the ∏
3.Instrumentality must be in ??s exclusive control
4. If elements are met, burden shifts to ? to disprove negligence
a.Exclusive control
1)Sole Possession
a)Argument: Exclusive control should be defined as sole possession
because the court prefers a consistent and predictable standard for precedent.
Adopting this interpretation will further this value because it is easier to
decide if one person has sole possession as opposed to multiple persons, and
the above rule reflects this. Here, the instrumentality was in the sole
possession of ___________ and therefore has exclusive control.
b)Alternative: No liability without fault. Adopting this interpretation will further
this value because fault requires the ability to anticipate injury, and the court
might impose liability on an innocent party who did not have sole possession
of the instrumentality, and the above rule reflects this. Here, the
instrumentality was in sole possession of ___________ and therefore has
exclusive control.
2)Custody over instrumentalities
a)Argument: Exclusive Control should be defined as custody over the
instrumentalities because it is reasonable to expect that a person?s safety
does not lie in the hands of one individual, especially when dealing with multiple
parties. Adopting this rule will further this value because liability will be imposed
on everyone who is in control of the instrumentality that caused the injury, and
people can expect that their safety is ensured. Here, the instrumentality was in
possession by multiple ?s and therefore was in their exclusive control.
b)Alternative: The court should encourage people to tell the truth about an injury.
Adopting this rule will further this value because it will encourage the ?s to come
forward with the truth instead of keeping their mouth shut about the fucking
injury, and the above rule reflects this...
II.Causation
A.Factual
1.Was the ? a cause in fact of ∏?s injury
2.Did ??s conduct contribute sufficiently to ∏?s injury so a jury could conclude that ? is
a cause in fact of ∏?s injury
3.Test:
a. BUT FOR—ONE CAUSE/ONE ?
1)??s conduct is a cause in fact if the event would not have occurred
“but for the ??s negligence.
a)Take away ??s conduct—if injury would occur anyway there is
no liability
b.SUBSTANTIAL FACTOR MULTIPLE ??s and CAUSES
1)ONE KNOWN AND ONE UNKNOWN CAUSE:
a)Unknown = injury THEN no substantial factor
b)Known + Unknown COMBINE to produce something greater and
= injury THAN substantial factor
c)Known + Unknown MINGLE or ONE SWEEPS OVER THE OTHER
THAN DO A FACT ANALYSIS/ARGUMENT
2)KNOWN CAUSES
a)If the two known causes COMBINE to produce the ∏?s SOLE
INJURY, than each tortfeasor is a substantial factor and splits
the cause of liability.
3)FAILURE TO DIAGNOSE or similar events (Usually Med-Mal)
a)If ??s conduct INCREASED the risk of harm AND
b)Contributed significantly to ∏?s injury (JURY QUESTION) THEN
c)??s conduct was a substantial factor
d)liability is limited to the amount the ? contributed to the injury
4)BURDEN OF PROOF
a)∏ must prove by a PREPONDERANCE OF THE EVIDENCE (50%)
b)? MUST ONLY PROVE HIS CONDUCT WAS NOT SUBSTANTIAL,
NOT DISPROVE THE CAUSE
1)POLICY—otherwise, the burden of proof would shift because
? would have to prove the cause, and this is to great a
burden to place on the ?.
5)TWO DEFENDANTS, ONE CAUSE (RARE)
a)?s must be ACTING IN CONCERT
1)Implicit agreement to act negligently
2)Between two parties
3)Whether or not they no each other
4)POLICY IN FAVOR—Reasonable expectations—if two parties
have an implicit agreement, there is a reasonable
expectation that they will perform the same act. If the act is
negligent, they have implicitly agreed to accept one
another?s responsibility.
c.ALTERNATIVE TO SUBSTANTIAL FACTOR
1)??s conduct GREATLY MULTIPLIES the risk AND
2)Naturally leads to the occurrence
DEFENDANT’S FORESEEABLE
NEGLIGENT INJURY CONDUCT CONSEQUENCE
B.PROXIMATE OR LEGAL CAUSE
1.When negligent conduct creates a risk, setting off foreseeable consequences that
lead to the ∏?s injury, the conduct is deemed the proximate cause of the injury.
a.FORESEEABLE CONSEQUENCE
1)??s conduct naturally or ordinarily leads to the consequence
2)Injury is within the scope of risk created by the ??s conduct
a)IS THE CONSEQUENCE LIKELY TO OCCUR AS A RESULT OF ??s
NEGLIGENT RISK CREATING CONDUCT
3)Do not look to the exact sequence of events—any and all risk creating
acts leading to the injury is controlling
4)ARGUMENT--? is in a better position to avoid the consequence than
the innocent injured party is.
b.INTERVENING CAUSE
1)The consequences would still occur and directly flow in the events
2)Does not break the chain of liability
c.SUPERCEDING CAUSE breaks the chain of liability IF:
1)Independent Act AND
2)Different conduct creates a new risk AND
3)Injuries are so different from the injury that would result from ??s
conduct OR
4)Independent criminal act MAY break the chain of causation
because criminal conduct is not foreseeable to the ?
5)ARGUMENTS—There is no liability without fault. Fault requires the
ability to avoid consequences. Independent acts that create new risks
to the plaintiff and cause different injuries not foreseeable to a ? who,
although negligently, has created an entirely different risk. Here, ?
created X risk, _______ created Y risk, and therefore supercedes ??s
original negligent conduct, thus breaking the chain of liability.
III.Damages
A.Background
1.Lump sum payment
2.Structured Settlements—usually for children
a. Incapacity
b.Protecting investments
c.Over a period of time: WHY?
1)Annuities—high interest = more money
2)Guaranteed income
3)Tax Free
d.Why not?
1)Less common for older ∏s
2)∏ Might not want to wait
3.Collateral Source Rule
a.Coll. Income is not calculated or known to the jury at trial to prevent prejudice or
leniency to the ?.
B. Economic Losses
1. Medical expenses
a. Reasonable
b. Expert testimony—anticipated costs
2.Lost Wages
3.Loss or Impairment of Future Earning Capacity
4.Damage Calculation: Present Value
5.Future Inflation
6.Federal Income Tax
C.Non-Economic Losses
1. Physical Pain and Suffering, Mental Anguish
2. Loss of Enjoyment of Life
a. Must be conscious of the loss
1)Arguments—Reasonable Expectations: a reward for damages should benefit the
injured party in the future. An injured party who is not conscious of the loss
cannot benefit from an award of damages.
2)Administrability—you are either conscious or unconscious
3)Unjust Enrichment
3. Per Diem
4. Reduced Life Expectancy
D.Punitive Damages: not in negligence unless ??s conduct is willful, wanton, or reckless.
E.Hypo in class—pregnant mother who became vegetable after routine c-section: loss of
household services, future medical care, permanent disability, public sector job, future
earnings.
IV.Affirmative Defenses
A. Two Steps in Defense Analysis
1.? must prove ∏?s duty, breach, and causation
a.Duty and breach
1)∏?s standard of care
2)BAP v. Prob x Injury (∏?s own injury)
3)BAP = knowledge and steps to reduce risk
4)Prob = ∏?s conduct increasing the likeli hood of the injury
b.Causation
1)Factual
a)“But-for” won?t work because there is probably 2 causes
b)Substantial Factor Test
2)Proximate Cause
a)∏?s conduct → Foreseeable Cons. → Injury
b)∏?s conduct either intervening or superceding
c)Consequences must be within the scope of risk
c.If Negligent, Go To: EFFECT OF NEGLIGENCE
2.Effect of Negligence
a.Contributory Negligence
1)No Recovery
2)Exceptions
a)Last Clear Chance Doctrine
https://www.wendangku.net/doc/039284746.html,parative Negligence
1)ARGUMENT—fairness and Administrability—easy standard to apply,
and its fair to both parties who are equally at fault.
2)Pure comparative approach
a)∏ can only recover the percentage he was not at fault
3)Modified comparative negligence
a)PA—50/50 Rule
i.If ∏?s negligence is greater than 50%, ∏ cannot recover
ii.∏ prefers this argument but requires more litigation
b)51/59 Rule
i.∏?s negligence must be less than 50% in order to
recover
https://www.wendangku.net/doc/039284746.html,ually settle before trial because juries usually say
“you?re both equally negligent”
c.Assumption of Risk
1)Actual Knowledge of risk
2)Voluntary encounter
3)Appreciation of the magnitude of danger/risk
4)Waiver or consent, either express or implied can meet the AOR test V.Immunities
A. Complete Defense and Bar to Recovery—USE THIS AS A THRESHOLD QUESTION
B. Interspousal immunity
1. Abrogation
a. General—total abandonment of the immunity
b. Partial—limited to only special circumstances
c. Arguments
1)In favor of general abrogation—administrability
2)Against general, thus Partial abrogation—preserve the institution of
marriage
C. Parent-Child Tort Immunity
1. General Abrogation—Reasonable Parent Standard
a. Arguments—requires a heightened standard such as this because it fits
situations where parents are most likely negligent. The court should
encourage parents to exercise a heightened standard of care when dealing
with their children because children cannot easily protect themselves from
dangers. Heightening the standard will encourage parents to use higher care
for their children and encourage a change in their behavior as a result.
Therefore, the immunity should be abrogated.
2. Partial abrogation—car accidents, yes, negligent supervision, no
a. Conduct that is separate from parenting duties, no immunity should be had
b. Conduct integral to parenting duties, immunity should be had
c. Argument—it is reasonable to expect that a parent can be sued by anyone if
his or her negligent conduct causes an injury. A ?s child should not be
excluded from this category because a parent?s negligent conduct, not
integrally related to parenting duties, causes injury. Therefore, there should
be no immunity when a parent injures his or her child when acting
negligently outside the role of parenting.
D. Governmental Immunities
1. Municipal or Local Government—Most states say no immunity (PA—general
abrogation)—POLICY ARGUMENT: When the state causes injury to an individual, the
individual should be entitled to recover for injuries sustained because the innocent
injured party is not in a better position to protect itself from injury.
2. Partial Abrogation
a. Performing a discretionary act
1)Immunity applies
b. Performing a non-discretionary act
1) No Immunity
c. Example: Police complaint—judgment call = immunity; mistake = no
immunity
Products Liability
I.Injury by a defective product—Generally
A.Recovery for negligence—focus on the conduct of the ?
B.Recovery for strict liability—focuses on the product itself without regard to ??s conduct
C.Recovery for breach of warranty
1.representations
a.written
b.verbal
2.product falls below expectations
D.402(a) has been adopted by the state supreme courts across the nation as the standard
for manufacturers
II.Sale of a product
A.Product and service hybrid
1.∏ argues PRODUCT
a.Consumer is seeking the product, not just the service
1)Example Kidney Donor Company—organ for profit: an entity that
profits from the product is in a better position to absorb the cost of
liability and spread it to its consumers. Imposing liability for
defective products in connection with services will assure the safe
implementation of products when the consumer is seeking the
product, and the company can and will change its behavior
accordingly.
2)? argues SERVICE
a)the essence of the transaction is the provision of service,
not the product itself.
b)Example Kidney donor company: company acts as a
middle-man for the selection of the kidney, not selling the
kidney itself. When the courts are dealing with a new
category under strict liability such as the product service
combination, the court should defer to the legislature to
make the determination and rule accordingly. Since the
legislature has not expressed whether a product service
combination is necessarily classified as a product for strict
liability purposes, the court should rule according to the
essence of the transaction. Thus, if the service depends
on the skill, judgment, and experience of the provider, the
hybrid does not fall within the scope of “product” for
liability purposes.
III.Defective Condition Unreasonably Dangerous
A.Manufacturing Defects
1.where the product is designed correctly, but the particular product that caused
the injury deviated from the intended design
https://www.wendangku.net/doc/039284746.html,parable to other products
b.expert testimony
2.∏ argues that the defect was present when it left the assembly line
a.expert testimony to show the building of the products
b.employee testimony to compare standard product to defective product
c.blueprints showing a good design
d.other owners
3.? argues that there was an alteration after leaving the assembly line
a.expert testimony
b.request all maintenance records since the product left the assembly line to
the date of injury
c.request a list of trucks that came of that line at the time of manufacturing
B.Design Defects
1.focus on UNREASONABLY DANGEROUS
a.MFG—argues that mfgs should not be insurers of every product that is
placed on the market because the product might be dangerous, but highly
useful to the public. Imposing liability would deter production of useful
products.
b.Consumer—mfg is in a better position to absorb the cost of liability and
spread the cost amongst the consumers of the product.
2.Consumer Expectation Analysis
a.Looking through the eyes of the reasonably prudent consumer
b.Did the product perform as the reasonably prudent consumer would
expect
c.Was the product used in its intended manner
d.Did the defective product proximately cause the injury
e.Example—Nate?s bike hypo OR
3.Risk Utility Analysis
a.Argument: The risk utility analysis is a proper because the court can
balance seven factors to determine who should bear the cost of injury.
From the mfg.?s perspective, this analysis is fair because it reduces the
likelihood that mfgs. will become insurers for all their products on the line
and decreases absolute liability by placing the burden on the ∏ to prove
the defect. From the consumer?s perspective, this analysis promotes
fairness because a ∏ will be compensated for injuries resulting from a
defective product by an entity who is in a better position to reduce the
risk, spread the cost of injury, and prevent future defects.
b.Balancing utility of the product v. the risk to the consumer
1)Safety—probability x injury
2)Utility to public
3)Available substitute product
4)Inability to avoid injury when exercising care in use
5)Inability to eliminate risk without impairing utility and avoiding
costs
6)Inability to anticipate the risk
7)Cost spreading
4.Timing and foreseeability
a.Defect at the time the product is placed on the market (MOST
JURISDICTIONS—foreseeability before or at the time of marketing) OR
b.at the time of trial (foreseeability after the fact)
5.State of the Art
a.∏: Mfg has a duty to use state of the art (MAXIMUM STANDARD)
1)existing level of technology expertise and scientific knowledge
relevant to a particular industry at the time of marketing
b.?: only a duty to use industry customs (MINIMUM STANDARD)
1)Normal or minimal standard pursuant to federal and state
standards—too costly so the mfg will merely comply with the
minimum
c.If ? is using the state of the art and cannot reduce risk, ? will claim
absolute immunity, however:
1)this is no absolute defense
2)? has the burden of proof because the product may still be
dangerous:
a)product is implementing the state of the art
b)coupled with other evidence
c)to justify placing the product on the market
C.Failure to Warn in Strict Products Liability
1.Actual Knowledge of the defect OR
2.Constructive Knowledge—KNOWABILITY of the defect in light of scientific
information available to the mfg
3.Arguments:
a.∏--MFG has superior access to scientific information as compared to the
user of the product that may have no access to scientific information. It
follows that the party in a better position to access information that would
decrease the risk of danger should be responsible for the cost of injury.
Since mfg are also in a better position to spread the cost of injury, mfg
should be liable for the knowability of a defect absent actual knowledge.
b.?--There is no liability without fault. Fault requires the awareness of the
risk so the party can avoid injury. If a party is unaware of the risk, that
the party cannot avoid the injury and should not bear the costs thereof.
D.Defective Warnings
1.Warnings should be:
a.noticeable
b.succinct conveyance of the message
c.provide enough information of the obvious and immediate risks involved