Ch 9 Negligence, Strict Liability, and Product Liability.. Torts Flashcards
Negligence
negligence the “unintentional” tort because it concerns harm that arises by accident. Should a court impose liability?
To win a negligence case, a plaintiff must prove five elements. Much of the remainder of the chapter examines them in detail. They are:
* Duty of due care. The defendant had a legal responsibility to the plaintiff. This is the point from the Palsgraf case.
* Breach. The defendant breached her duty of care or failed to meet her legal obligations.
* ** Factual cause**. The defendant’s conduct actually caused the injury.
* Proximate cause It was foreseeable that conduct like the defendant’s might cause this type of harm.
* Damages. The plaintiff has actually been hurt or has actually suffered a measureable loss.
To win a case, a plaintiff must prove all these elements. If a defendant eliminates only one item on the list, there is no liability.
Duty of Due Care
(Special Duty: Professionals, Special Duty: Landowners, Special Duty: Universities, )
-Each of us has a duty to behave as a reasonable person would under the circumstances
[Special Duty: Professionals]
“While on the job, she must act as a reasonable person in her profession. “
[Special Duty: Landowners]
(Lowest Liability: Trespassing Adults.)
* trespasser: A person on another’s property without consent.
(Mid-Level Liability: Trespassing Children.)
“If there is some human-made thing on the land that may be reasonably expected to attract children”
(Higher Liability: Licensee.)
* licensee: A person on another’s land for her own purposes but with the owner’s permission.
(Highest Liability: Invitee.)
* invitee:A person who has a right to enter another’s property because it is a public place or a business open to the public.
[Special Duty: Universities]
Breach of Duty
(Negligence Per Se, )
[Negligence Per Se]
-When a legislature sets a minimum standard of care for a particular activity, in order to protect a certain group of people, and a violation of the statute injures a member of that group, the defendant has committed negligence per se.
A plaintiff who can show negligence per se need not prove breach of duty.
Causation
(Factual Cause, Proximate Cause, Res Ipsa Loquitur, )
[Factual Cause]
-If the defendant’s breach led to the ultimate harm, it is the factual cause.
[Proximate Cause]
-For the defendant to be liable, the type of harm must have been reasonably foreseeable.
[Res Ipsa Loquitur]
* res ipsa loquitur: The facts imply that the defendant’s negligence caused the accident.
The defendant, who owns the third-story apartment, denies any wrongdoing, and it may be difficult or impossible for the plaintiff to prove why the air conditioner fell.
-the facts imply that the defendant’s negligence caused the accident.
Because res ipsa loquitur dramatically shifts the burden of proof from plaintiff to defendant, it applies only when
1. the defendant had exclusive control of the thing that caused the harm,
2. the harm normally would not have occurred without negligence, and
3. the plaintiff had no role in causing the harm.
Damages
- The plaintiff must persuade the court that he has suffered harm that is genuine, not speculative.
Defenses
(Contributory and Comparative Negligence, Assumption of Risk )
[Contributory and Comparative Negligence]
[Assumption of Risk]
-. Assumption of risk: A person who voluntarily enters a situation that has an obvious danger cannot complain if she is injured.
Strict Liability
(Ultrahazardous Activity, )
- strict liability: A branch of tort law that imposes a much higher level of liability when harm results from ultrahazardous acts or defective products.
-A defendant engaging in an ultrahazardous activity is almost always liable for any harm that results.
Product Liability
(Negligence, Strict Liability for Defective Products, )
- Negligent design. The buyer claims that the product injured her because the manufacturer designed it poorly.
- Negligent manufacture. The buyer claims that the design was adequate but the failure to inspect or some other careless conduct caused a dangerous product to leave the plant.
- Failure to warn. A manufacturer is liable for failing to warn the purchaser or users about the dangers of normal use and also foreseeable misuse
[Strict Liability for Defective Products]
-In strict liability, the injured person need not prove that the defendant’s conduct was unreasonable.
Almost all states permit such lawsuits, and most of them have adopted the following model:
- One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if:
a. the seller is engaged in the business of selling such a product and
b. it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. - The rule stated in Part (1) applies although:
a. the seller has exercised all possible care in the preparation and sale of his product and
b. the user or consumer has not bought the product from or entered into any contractual relation with the seller.
These are the key terms in Part (1):
* Defective condition unreasonably dangerous to the user.
* In the business of selling.
* Reaches the user without substantial change
And here are the important phrases in Part (2):
* Has exercised all possible care
* No contractual relation
Contemporary Trends
(Tort Reform, Time Limits: Statutes of Limitations and Statutes of Repose )
Principal factors in the risk-utility test include:
-The value of the product;
-The gravity, or seriousness, of the danger;
-The likelihood that such danger will occur;
-The mechanical feasibility of a safer alternative design; and
-The adverse consequences of an alternative design.
[Tort Reform]
Unavoidably unsafe
[Time Limits: Statutes of Limitations and Statutes of Repose]
Chapter Conclusion
-Tort issues necessarily remain in flux, based on changing social values and concerns.
