Class 8-9: Torts & Product Liability

Question 1

A “____” is a civil wrong that occurs when someone (“D”) causes harm/loss to another person or their property (“P”) intentionally, carelessly, or as a result of their dangerous activities, defective products or inadequate warnings.

Answer 1

Tort.

Tort law is fundamentally a construct of judge-made common law.

Question 2

The primary aim of tort is to “____” victims for the invasion of certain legally protected interests including (Name 4)

Answer 2

Compensate

• Phsical safety & Freedom from injury
• Property
• Privacy
• Reputation/Dignity

Question 3

Tort law struggles with the question of who should pay for losses and when? It often involves balancing often-competing policy goals, including:

• Ensuring full victim “__1__”, while only imposing liability in “__2__” to fault.
• Promoting “__3__” while preventing “__4__” through deterrence.

Answer 3

1. compensation
2. proportion
3. economic efficiency
4. harm

Question 4

Name the 4 types of Torts.

Answer 4

• Intentional Torts (liability for intentional or reckless acts)
• Negligence (liability for careless acts)
• Strict Liability (liability regardless of fault)
• Products Liability

Question 5

“____” - A purportedly objective standard judged by what a hypothetical “reasonable person” should do under similar circumstances.

Answer 5

Reasonable Person Standard

But note: a “reasonable person” is not just reasonable; she is very cautious, prudent, calm, responsible.

DON’T THINK THAT A REASONABLE PERSON IS “JOE SIX-PACK.” IN PRACTICE, THE REASONABLE PERSON IS THE GUY WHO READS LAW REVIEW ARTICLES EVERY WEEK TO KEEP UP WITH DEVELOPMENTS, FLOSSES THREE TIMES DAILY, LOOKS BOTH WAYS TWICE BEFORE CROSSING THE STREET!!

Question 6

“____” - A master (employer) may be held vicariously liable for the torts of his servant (worker) done while acting within the scope of their employment.

Answer 6

Respondeat Superior doctrine

To determine “within scope of employment”:

• Was tortious conduct of the kind that the employee is hired to perform at the control of the employer?
• When and where did the tort occur (on duty or off duty; at place of employment)?
• Was the tort motivated, in part, to benefit the employer?

Question 7

“____” torts share requirement that D “intentionally” commit the elements of the tort.

Answer 7

Intentional

The “act” cannot be an accident or an involuntary movement.

“Intent” means either that D acts either while desiring to cause the harm OR while being substantially certain that harm will occur (recklessness).

Sometimes omissions can cause liability if there is a duty to act.

Question 8

Name 6 types of intentional torts.

Answer 8

1. Assault
2. Battery
3. False Imprisonment
4. Tresspass
5. Conversion (theft)
6. Intentional Infliction of Emotional Distress (IIED)

Question 9

“____” occurs when the defendant’s (1) intentional acts (2) cause (3) harmful or offensive contact with (4) the victim’s person.

Answer 9

Battery

While battery requires intent to act, it generally does not require an intent to cause a specific injury. It is only necessary that defendant intend to cause (or be substantially certain that he will cause) harmful or offensive contact.

Vosburg v. Putney:
Boy kicked in class.

Question 10

Battery requires either (a) “__1__” or (b) “__2__”.

Answer 10

1. harmful
2. offensive contact

Even trivial contact can constitute a battery, if it would be offensive to a reasonable person (unwanted kiss).

Question 11

What are the 4 elements necessary to claim Battery?

Answer 11

1. intentional act of D.
2. caused by D.
3. constitute harmful or offensive contact.
4. to the victim’s person.

Contact may be through direct action or by setting events in motion.

Question 12

Tort of “____” is any intentional and unexcused threat of immediate harmful or offensive contact, including words that cause the victim’s reasonable apprehension of immediate harmful or offensive contact.

Answer 12

Assualt

The tort of assault allows compensation for purely psychological injury. No contact required.

Ex: Swing and a miss.

Question 13

If the circumstances or words of the alleged tortfeasor suggest that a battery is not possible, it is not an assault.

Thus, words can dismiss “____“ness.

Ex: If you weren’t wearing glasses, I would hit you!”

Answer 13

imminent

Question 14

For liability, D must desire or be substantially certain that her action will cause the apprehension of “____” harmful or offensive contact.

Answer 14

immediate

• Victim must perceive that harmful or offensive contact is actually about to happen to him/her.
• Victim must apprehend imminent harmful or offensive contact, not just future contact.
• Many courts distinguish between “fear” and “apprehension.” The requisite expectation of imminent contact need not produce fear in the victim.

Question 15

Name the 4 defenses to Assault & Battery.

Answer 15

• Consent
• Self-Defense
• Defense of Others
• Defense of Property

Question 16

Which specific Assault/Battery defense?

• Where a party is defending his life or well-being.
• Defender can only use reasonable force necessary to repel the force being used against him.
• Situation must show real or apparent danger.

Answer 16

Self-Defense

Question 17

Which specific Assault/Battery defense?

• Defender must act reasonably under the circumstances.
• Can only use an amount of force necessary to repel the force being used against the third person.

Answer 17

Defense of Others

Question 18

Which specific Assault/Battery defense?

• Where the injured party consented to the act that damages her.

Answer 18

Consent

Question 19

Which specific Assault/Battery defense?

• Reasonable force may be used to remove intruders from your home.
• A person cannot use deadly force to protect property.

Answer 19

Defense of Property

Question 20

“____” - Intentional confinement or restraint of another person activities without justification.

Answer 20

False Imprisonment

Question 21

The following can be used to accomplish?

• Actual or apparent physical barriers (locked doors).
• Physical restraint (handcuffs).
• Wrongfully asserted legal authority. (“I’m a cop.”)
  Threats of physical force against victim, victim’s family or victim’s property, but not merely moral pressure.

Answer 21

False Imprisonment

Usually, the victim must be aware that they are confined, unless harm results.

EX: After shoplifter is caught by store security, taken into a back room. (But, merchants typically have a “privilege to detain” provided they only use “reasonable force.”)

Question 22

“____” - When D, by extreme and outrageous conduct, intentionally or recklessly causes V severe mental distress.

Answer 22

Intentional Infliction of Emotional Distress (IIED)

Liability can be for mental harm and resulting physical harm.

Note: Vulnerability of V, and relationship between D and V can be critical.

Ex: Friend v. hotel employee saying “Do it yourself, fatty”.

Question 23

Roughly, what are the 4 elements to an Intentional Infliction of Emotional Distress (IIED) claim?

Answer 23

1. Wrongdoers conduct was ‘intentional or reckless’ (i.e., intended mental distress or intended the act and knew or should have known mental distress would likely result).
2. Conduct was ‘outrageous’ and intolerable in that it offends against the generally accepted standards of decency and morality (i.e., not just bad manners and hurt feelings).
3. ‘Causal connection between wrongdoer’s conduct and emotional distress’.
4. ‘Emotional distress is severe’.

Question 24

“____” - Bars people from making false statements about another which wrongfully hurts that person’s reputation.

Answer 24

Defamation

First Amendment freedom of speech will not protect the speaker from punishment for this type of speech.

Statement must be one of fact and not opinion.

Question 25

What are the two types of Defamation?

Answer 25

Slander (spoken)

Libel (written)

Question 26

“____” - The oral breaching of the duty not to make false statements about another which hurt that person’s reputation.

Answer 26

Slander

Unless its slander per se, P must show actual harm.

Question 27

“____” - The written breaching of the duty not to make false statements about another which hurt that person’s reputation.

Answer 27

Libel

Harm is presumed.

Question 28

What are the 3 elements required to claim defamation?

Answer 28

1. Publication.

Communication to a party other than the defamed party.
A person who repeats a defamatory statement he overheard can be liable as well.
Some communications may be privileged and not defamatory.

2. Untrue statement by D.
3. Causing harm to P.

Question 29

The following are examples of…

• General damages presumed as a matter of law once a person is found liable for libel.
• General damages designed to compensate the plaintiff for non-specific harms such as a damaged reputation in the community, humiliation, emotional distress, etc…
• Plaintiff need not prove that she was actually injured because these are subjective injuries.

Answer 29

Damages for Libel Defamation

Question 30

The following are examples of…

• Unless it is a case of slander per se, the plaintiff must show that the slanderous statement caused special damages  an actual monetary or economic losses.
• This is required because slanderous statements are oral and soon disappear from the public forum whereas libelous statements are made in a permanent or semi-permanent record which can become more widespread and injurious.

Answer 30

Damages for Slander Defamation

Question 31

“____” - Certain types of slanderous statements that are so serious that the plaintiff does not have to offer proof of special damages.

Answer 31

Slander per se

The following four statements are slander per se:

• A statement that another has a loathsome communicable disease.
• A statement that another has committed improprieties while engaging in a profession or trade.
• A statement that another has been imprisoned for a serious crime.
• A statement that an unmarried woman is unchaste.

Question 32

What are the 3 main defenses to Defamation claims?

Answer 32

1. Truth.
2. Privileged Speech.
3. Speech concerning a public figure vs. private figure.

Truth, that the defamatory speech was actually true, is not enough in every country.

Question 33

2 Types of Privileged speech:

“__1__” - (Protection for This Type of Speech Can’t Be Lost Even if False).

• Statements made by a judge or attorney during a trial.
• Statements by legislators in session (politics).

“__2__” - (Protection May Be Lost, If Untrue and Abused)
Employee evaluations.
- Need good faith and limited publication.
- To win, plaintiff must show an abuse of privilege here.

Answer 33

1. Absolute Privilege
2. Qualified

To avoid problems, have employee sign a waiver granting the right to talk about them.

Question 34

True/False?

Harder to win a defamation case if you’re not a public figure.
- Public Figures: Includes persons in the limelight, who exercise substantial governmental power, and, usually, publicly traded companies.

Answer 34

False

Question 35

The following are necessary to…

• Public figures must show D acted with actual malice (i.e., knew statement was false, in reckless disregard of facts).
• Private individuals do not have to prove actual malice (i.e., negligent falsehood is enough).

Answer 35

Win a Defamation suit.

Question 36

The following are the four types of what?

• Appropriation of identity (Right of publicity).
• ‘Intrusion’ into individual’s private affairs.
• False light.
• Public disclosure of private facts.

Answer 36

Invasion of Privacy

Note: NDA’s can be useful to keep your private life safe here.

Question 37

Name the type of Invasion of Privacy:

• Eavesdropping, peeping, etc. (No Publication Req’d).
• P must have reasonable expectation of privacy (speaking in their house vs. restaurant).
• Invasion must be highly offensive.

Answer 37

‘Intrusion’ into individual’s private affairs

Question 38

Name the type of Invasion of Privacy:

• Falsely attributing offensive ideas or actions to someone.

Answer 38

False light

Question 39

Name the type of Invasion of Privacy:

• Commercial use of persons name or likeness without permission.
• E.g., a phony endorsement.

Answer 39

Appropriation of identity (right of publicity)

Question 40

Name the type of Invasion of Privacy:

• Publicizing offensive non-newsworthy private facts about someone, even if true. Reasonable person must find offensive (sex/finances).

Answer 40

Public disclosure of private facts

Question 41

“____” - Tortious invasion of possessor’s interest in exclusive “possession” (e.g., physical intrusion) of land, underground or air (hereinafter “land)” without permission.

Answer 41

Tresspass to Land

Involuntary trespasses not actionable, but mistaken trespasses are.

Intentional trespass actions are vehicle for environmental damage and even virtually “invisible” but tangible particles can cross property lines can cause a trespass.

Question 42

What are the 3 ways to commit trespass?

Answer 42

If a person intentionally…

1. Enters land in the possession of the other, or causes a thing or a third person to do so
2. Remains on the land
3. Fails to remove from the land a thing which he is under a duty to remove.

Question 43

Trespass Defenses:

“____” - An incomplete defense, which permits D to interfere with another’s property, but pay damages. It exists when the individual appropriates or injures a private property interest to protect a private interest valued greater than the appropriated or injured property.

Answer 43

Private Necessity

Vincent. v. Lake Erie Transportation Co.

Question 44

Trespass Defenses:

“____” - A complete defense, which exists when the defendant appropriates or injures a private property interest to protect the community. No compensation required.

Answer 44

Public Necessity

Surocco v. Geary.

Question 45

“____” - Substantial & unreasonable invasion of possessor’s use & enjoyment of land (e.g., light, noise, odor, vibration).

Answer 45

Nuisance

Question 46

To determine whether or not invasion is “____”, the court will balance (1) utility of the action and the burden of preventing it, against (2) nature and gravity of harm.

Answer 46

Unreasonable

• Construction noise likely to be protected, but loud music at night is not.

Question 47

True/False

Nuisance and trespass cannot be alleged simultaneously

Answer 47

False, can be simultaneous.

Question 48

What are the two types of nuisance?

Answer 48

Public & Private

Question 49

“____” Nuisance - brought by citizen for unique harm to their land (e.g., stray voltage reducing milk production on neighboring farm).

Answer 49

Private

Question 50

“____” Nuisance - brought by government unreasonable and substantial interference with public health, safety, peace, comfort or land use.

Answer 50

Public

Question 51

“____” - Intentional interference with the right of possession of personal property.

Answer 51

Trespass to Chattel (Personal Property)

D’s acts must:

1. Cause damage the chattel,
2. Deprive the rightful possessor of its use for a substantial period of time, or
3. Totally dispossess the chattel from P.

Proof of bad faith not required. Sufficient that actor intends to damage or possess a chattel that is, in fact, properly possessed by another (No mistake defense).

Ex: Logging company sues environmentalists for chaining to trees on the company’s property.

Question 52

“____” - Tort equivalent of theft.

Intentional and very substantial harm to or interference with another’s personal property..

Answer 52

Conversion.

• D will need to pay full value to P.
• P must have right of ownership or possession.

Question 53

“____” - For personal gain, intentionally making false statement that leads another to believe in a condition that isn’t true or doesn’t exist

Answer 53

Fraudulent Misrepresentation.

Following are ALL necessary:

1. D misrepresents material facts or conditions.
2. D has knowledge of falsity or reckless disregard for the truth.
3. Intent on behalf of D to induce P to rely.
4. Justifiable reliance by P.
5. Damages sustained by P.
6. Causation between misrepresentation and injury.

Question 54

True/False with respect to Fraudulent Misrepresentation:

Although everyone has duty to refrain from lying, there is no general duty to disclose all facts, unless fiduciary or sometimes superior “expert” knowledge.

Answer 54

True

Also, must be more than puffery or opinion to be considered a tort:
“This car is the best” vs. “This car has a ABS breaks”

Question 55

“____” - Tort occurs when D makes economically injurious falsehoods about another’s product or property.

Answer 55

Disparagement of Property

Two types:

1. Slander of quality
2. Slander of title

Question 56

The following constitutes what type of Disparagement of Property?

Falsely casting doubt on another’s ownership to discourage people from dealing with them.

Answer 56

Slander of Title

Requires:

1. “Publication” to 3rd Party.
2. Proof of economic harm.

Question 57

The following constitutes what type of Disparagement of Property?

Falsely claiming another’s product is not of the quality they say it is.

Answer 57

Slander of Quality

Requires:

1. “Publication” to 3rd Party.
2. Proof of economic harm.

(Pink Slime Case)

Question 58

“____” - D claims that P has gone out of business or doesn’t carry certain goods, causing economic harm (monetary losses).

Answer 58

Injurious Falsehood

Truth is defense. An opinion concerning relative quality of competitors’ goods compared to your own is allowed.

Question 59

“____” - Suing another person out of malice (evil intent) without legitimate reason, which leads to injury (e.g., lost profits, etc.)

Answer 59

Malicious Prosectution

Question 60

“____” - Using legal process improperly or to accomplish a wrongful purpose.

Answer 60

Abuse of Process

• Applies not just to starting wrongful lawsuits, but also issuing wrongful subpoenas, etc.
• No proof of malice required.

Question 61

“____” - The MOST COMMON tort alleged by businesses against other businesses.

Answer 61

Tortious Interference

Two types:

1. Wrongful interference with a contractual relationship.
2. Wrongful interference with a business relationship.

Question 62

“____” - Commonly used when one company wrongfully poaches employees, suppliers or distributors.

Answer 62

Wrongful Interference with a Contractual Relationship.

Elements:

• Valid and enforceable contract between A and B.
• C must know that the A-B contract exists.
• C intentionally induces A or B to breach.

Question 63

“____” - A type of “unfair business practice”, commonly used when a business wrongfully interferes with another business’s non-contractual relationship with its customers.

Answer 63

Wrongful Interference With Business Relationship.

• Plaintiff must prove:
  Defendant used “predatory methods” that “intentionally” “caused” “harm” to an “established business relationship or prospective economic relationship.”
• Difference between fair competition (motivated by self-interested financial gain) and predatory practices (e.g., motivated by revenge).

(HIGHLY FACT INTENSIVE)

Question 64

The following involves what broad tort category?

• Most common vehicle for tort recovery.
• Victim suffers injury because of another person’s failure to live up to a required duty of care.
• Does not involve intentional misconduct.
• Whether it can be claimed depends, in each case, upon the particular circumstances that surround the parties at the time and place of the occurrence.

Answer 64

Negligence

• Negligence and intent are mutually exclusive, but may both be alleged.
• Negligent actor does not desire to bring about the consequences which follow, nor does he or she know/believe that they are substantially certain to occur.

Question 65

Wrongful interference with a contractual relationship is a form of what tort?

Answer 65

Tortious Interference

The MOST COMMON tort alleged by businesses against other businesses.

Question 66

The law of “____” is designed to discourage or encourage specific types of behavior by one party for the benefit of another party.

Answer 66

Negligence

This is why negligence actions require proof that defendant had duty to act to the benefit of plaintiff.

Also helps achieve economic efficiency by placing liability on person best able to avoid injury.

Question 67

Wrongful interference with a business relationship is a form of what tort?

Answer 67

Tortious Interference

The MOST COMMON tort alleged by businesses against other businesses.

Question 68

Key determinant of liability for negligence is “____”.

• No automatic compensation just because an injury occurs or something may be dangerous.
• Injury must be foreseeable.
• D is not liable for injuries caused by an unavoidable or inevitable accident

Answer 68

Determining Fault.

• Negligence liability only exists if one failed to observe the standard of care the law the requires to observe in the performance of a duty he or she owes to the injured person, thus creating a risk of harm.

“inevitable accident” - alleged tortfeasor has no power to avoid injury to others.

“Unavoidable accident” - could not have been foreseen by exercise of reasonable care.

Question 69

Negligence actions require proof of what four essential elements?

KLAW CARD

Answer 69

1. ‘Duty’ to follow a standard of care in respect of P
2. ‘Breach’ of that Duty
3. ‘Causation’ (Factual Cause & Legal Cause)
4. ‘Damages’

Question 70

Negligence is a mixed question of law (for judge) and fact (for jury). Generally, who determines:

• The facts;
• Whether D has conformed to the standard of conduct required by the law;
• Whether D’s conduct is a legal cause of the harm to the plaintiff;
• The amount of compensation for legally compensable harm.

Answer 70

The Jury.

Why? Jury is better able to represent community’s judgment of how a reasonable and ordinary person would act.

Question 71

Negligence is a mixed question of law (for judge) and fact (for jury). Generally, who determines:

• If any legal duty exists on the part of the defendant (i.e., motion to dismiss);
• Standard of conduct required of the defendant by his or her legal duty;
• Applicability of rules of law for whether D’s a legal cause of harm to the plaintiff;
• Whether the harm claimed to be suffered by the plaintiff is legally compensable.

Answer 71

The Judge.

Question 72

The existence of a legal “____” to safeguard the interests of the plaintiff is a prerequisite to any negligence action. It determines which persons/injuries are within the scope of liability.

Answer 72

Duty

Generally, there is a duty to Foreseeable Plaintiffs Only.

Question 73

The following are all…

• Relationship of parties.
• Closeness of connection between D’s act and P’s injury.
• Nature of the risk.
• Opportunity, ability and costs associated with the exercise of care.
• Reasonable foreseeability and likelihood of harm to the person injured.
• Reasonable expectations of the parties.
• Consequences of placing burden on Defendant.

Answer 73

Duty Determining Factors

Question 74

The following are all…

• Moral blame attached to the defendant’s conduct.
• Policy of preventing future harm.
• Prevalence of insurance for the risk involved.
• Avoidance of increased litigation or fraudulent claims.
• Social utility of the actor’s conduct.

Answer 74

Duty Determining Factors

Question 75

Generally, No Duty to “____” in most of U.S.

Answer 75

Rescue

Even if help could have been given with little personal risk or effort. Exception: Some states have “good Samaritan” laws requiring people to rescue 3rd parties, if they can do so without risk.

Question 76

The following are…

1. Creation of the Peril
2. Special Relationship (Common carrier, innkeeper, parent/child, spouse).
3. Contract / Promise
4. Assumption of Responsibility by D with Reliance by P.

Answer 76

Exceptions requiring Duty to Rescue.

Question 77

Generally, No Duty to “____” Third Parties or “____” harms caused by 3rd Parties.

Answer 77

Control

Prevent

Question 78

The following is an…

Special Relationship between (1) defendant and (2) dangerous 3rd party or victim, combined with D’s prior knowledge of the need for control the dangerous 3rd party.

Answer 78

Exception to “No Duty to Control Third Parties”.

E.g., patient escapes from hospital for criminally insane and injures someone.

Question 79

The following is an…

Alcohol Suppliers(Dram Shop Laws) - Courts/legislatures starting to impose liability on commercial suppliers of liquor (and sometimes social hosts) where 3rd party is injured by drunken guest or patron.

Answer 79

Exception to “No Duty to Control Third Parties”.

Question 80

The following is an…

Negligent Entrustment - Premised on D’s action in supplying a potentially dangerous instrumentality (e.g., car or gun) to person D knows or should know is not fit to handle it.

Answer 80

Exception to “No Duty to Control Third Parties”.

Question 81

Landowners Duty is determined by the status of Entrant to the land. The three statuses are…

Answer 81

1. Trespasser
2. Licensee
3. Invitee

However, some states have abandoned regime – must use reasonable care under the circumstances for everyone.

Question 82

The following describes which status of Entrant?

• Enters with consent of the land possessor (e.g., social guests)

Answer 82

Licensee

• If dangerous condition on the property is known to possessor but not obvious to guest, they must make the condition safe or to warn the licensee about the risk (avoid gross negligence).

Question 83

The following describes which status of Entrant?

• Enters or remains on another’s property w/o permission.

Answer 83

Trespasser

1. Unknown Trespassers: Landowners must only avoid willfully harming T.
2. Frequent/Known Trespassers: Landowners must warn of man-made death traps
3. Child Trespassers: Landowners must guard against attractive nuisances (pool).

Question 84

The following describes which status of Entrant?

• Enters for commercial benefit to possessor (customer/ employee).

Answer 84

Invitee

• Duty to use ordinary care to warn or otherwise protect an invitee from risks of harm from a condition on the possessor’s premises if:
  1. Risk of harm is unreasonable, and
  2. Possessor knows or in the exercise of ordinary care should know of condition, and should realize that it involves an unreasonable risk of harm to an invitee.
• This creates a duty to inspect, and then, at least, warn.

Question 85

Where a party sues for purely economic losses, in the absence of personal injury or property damage, generally that party cannot sue for “____”, but must sue in contract.

Answer 85

negligence.

Note: Rule does NOT bar recovery where D’s negligence causes physical injury from which P suffers economic loss (e.g., lost wages) or causes property damage from which flows economic harm (e.g., lost profits).

Question 86

“____” refers to violation of applicable “standard of care”

• P must allege something that the Defendant could and should have done better.
• Both acts and omissions can give rise to a negligence claim, in certain circumstances.

Answer 86

Breach

Breach is usually determined by applying the “REASONABLE PERSON STANDARD”

Question 87

The following describes what standard?

For Most Adult Defendants: Court will ask and Jury must decide how a reasonably prudent person would act under similar circumstances?

Answer 87

Reasonable Person Standard

• For Expert Defendants: Where D has special knowledge, skill, training, or experience pertaining to the conduct in question that is superior to that of the ordinary person, court will ask and jury will decide (with help of other experts), how would a reasonably prudent expert act?

Question 88

There are numerous factors to be considered in determining whether a person has met the standard of reasonable care. What 3 main factors are used to make the standard less vague?

Answer 88

1. Economic Efficiency
2. Custom
3. Statue

Question 89

The Role of Economic Efficiency is determined by the “____” formula.

Duty to provide against resulting injuries is function of variables:

1. The probability of loss; (P).
2. The gravity of the foreseeable resulting injury; (L).
3. The burden of providing additional care (B).

If (P x L) > B, then D will not have met the standard of care required. Vice versa.

Answer 89

Learned Hand

Note: Juries do not have to be instructed on the BPL formula, but aspects of it are often argued to the jury (sometimes with limited success like in Ford Pinto Case). Commonly used by judges when reviewing jury verdicts.

Question 90

“____” - A well-defined and consistent way of performing a certain activity in particular industry.

• D’s conformity to “____” may help establish that D exercised due care under the circumstances.
• D’s non-conformity to “____” may help establish D’s liability.
• “____” tends to show (1) ordinary conduct by others similarly situated, (2) the feasibility of alternative safety precautions.

Answer 90

Custom

But custom is not conclusive:

• Liability still turns on its reasonableness.
• Jury may determine that the custom itself is unreasonable.

Question 91

Judge may decide that a criminal statute, administrative regulation, municipal ordinance sets the standard of care in a negligence case and can be used to determine whether D met his duty.

E.g., violating DWI law or speeding provides proof of negligent driving.

In such cases, statute replaces the usual “____” of care, and all the jury needs to find is that the statute was violated (in addition to the other elements of a negligence claim).

Answer 91

Reasonable Person Standard

A statute may be adopted as the standard of care in a negligence case, if a judge determines:

(1) The statute was designed to protect against the type of harm suffered by the plaintiff, and
(2) that the class of persons designed to be protected by the statute includes the plaintiff.

Question 92

“____” or “the Thing Speaks for Itself.” - Allows rebuttable presumption negligence to be inferred from the fact of an accident. P must show:

1. The type of “accident that simply does’t happen without negligence”.
2. D had exclusive control of the instrumentality of the accident.
3. The absence of voluntary action or contribution by the plaintiff.

Answer 92

Res Ipsa Loquitur

In Byrne v. Boadle, for example, P hit by flour barrel falling from window of D’s flour shop.

Question 93

What are the two elements to Causation?

Answer 93

• Factual Cause

- Legal (Proximate) Cause

Question 94

Plaintiff or Defendent?

As an essential element of a negligence action, the plaintiff must provide evidence that the defendant’s conduct caused plaintiff’s damage. In almost all cases, “____” bears the burden of proof, by a preponderance of the evidence.

Answer 94

Plaintiff

Two elements to causation:

• Factual (Actual) Cause
• Legal (Proximate) Cause

Question 95

Legal Cause or Factual Cause?

• P must prove that D’s conduct was an actual cause of the harm.
• Injury would not have occurred but for the conduct of defendant.

Answer 95

Factual Cause

Generally , must prove both Factual (Actual) Cause and Legal (Proximate) Cause.

Question 96

Legal Cause or Factual Cause?

• P’s injury was the natural, direct and/or reasonably foreseeable result of D’s action.

Answer 96

Legal Cause

Generally , must prove both Factual (Actual) Cause and Legal (Proximate) Cause.

But Note: Only type of injury need be foreseeable, not extent of injury (Eggshell Skull Rule).

Question 97

Legal Cause or Factual Cause?

• The “but for” test is the near universal test of “____” causation in most cases: Conduct is deemed to be the “but for” cause, if “the harm would not have occurred absent the conduct.”

Answer 97

Factual (Actual) Causation

To assess “but-for” cause, analyze whether D’s conduct was necessary for the injury:

(a) identify the injury,
(b) identifying the defendant’s putatively negligent conduct,
(c) mentally construct an imaginary counterfactual scenario in which D’s conduct is corrected to the extent necessary to make it non-negligent (changing nothing else),
(d) ask whether in that imaginary scenario, the injury in suit probably would have been avoided.

Question 98

Legal Cause or Factual Cause?

• Jury examines causal relationship between D’s conduct and P’s injury, and precludes recovery when their relationship does not justify imposing tort responsibility on D.

Answer 98

Legal (Proximate) Cause

Foreseeability Test: Whether D should have reasonably foreseen, as a risk of her conduct, the general consequences suffered by the plaintiff.

• Was P’s injury a (1) reasonably foreseeable result of D’s negligent, and (2) was there no superseding intervening (extraordinary) force?
• Note: Exact injury, precise manner of harm, and extent of harm need not be foreseeable; just the type.

Question 99

Plaintiff must show “____” in order to recover in a negligence action.

Answer 99

Injury

No harm, no foul.

Question 100

Name the Negligence Defense:

Occurs when a person signs a written waiver before engaging in a dangerous activity.

To be valid, it must be clear, unambiguous and voluntary.

Answer 100

Express Assumption of Risk.

Look at the back of your lift-ticket next time you hit the slopes!

Question 101

Name the Negligence Defense:

Can be a defense even where no written waiver is signed in advance.

Requires that P:

1. know of the particular risk and 2. voluntarily
2. assume it.

Answer 101

Implied Assumption of Risk.

Murphy v. Steeplechase Amusement Co. -

Facts: After watching “the Flopper” at an amusement park for a while, a young man steps onto it. As a result of a sudden “jerk,” he falls and breaks his kneecap.

Held: Implied assumption of risk bars P’s recovery.

Question 102

Name the Negligence Defense:

In some states negligence of the P was a complete defense to an action for negligence of the Defendant.

Example: Pedestrian A negligently crossed the street outside of the intersection and is injured by B, who negligently failed to slow down at a yellow light. Even if A is 10% at fault, and B is 90% at fault, A could not recover against B under this regime.

Answer 102

Contributory negligence.

Note: Contributory negligence also did not apply if P could show that D had the “last clear chance” to avoid the accident.

Today, in almost all states, contributory negligence has been replaced by some form of comparative negligence.

Question 103

Name the Negligence Defense:

Plaintiffs own negligence is partial bar to plaintiffs recovery, which reduces the plaintiff’s recovery by the percentage of responsibility for the injury attributable to the plaintiff.

Answer 103

Comparative Negligence.

D must prove “conduct on the part of the plaintiff which falls below the standard of conduct which he should conform to for his own protection … is a legally contributing cause … in bringing about the plaintiff’s harm”.

Question 104

Jurisdictions have one of three different comparative negligence regimes:

(1) “__1__” Comparative Negligence - Plaintiffs can recover some percentage from liable defendants regardless of the extent of their own negligence.
(2) “__2__” Comparative Negligence - Depending on the jurisdiction, a plaintiff in a modified comparative negligence jurisdiction may be allowed a partial recovery unless his negligence is equal to, or greater, than 50% at fault.

Answer 104

1. Pure

Example: Even if Plaintiff is 95% at fault, he may recover 5% from D.

2. Modified

Question 105

Liability of “____”

• Higher standard of care
• Misrepresentations: Liable to client and (particularly in case of intentional misreps) others whose reliance is reasonably forseeable
• Consider inserting disclaimer of reliance.

Answer 105

Professionals

Ex: auditor who claims that financial statements prepared in accordance with GAAP when knowingly false may be sued by Company and shareholders

Question 106

General Rules of Damages:

In almost all cases, (P or D) bears the burden of proving his damages by a preponderance of the evidence.

• Courts are loathe to consider cases where there is no harm yet.
• Speculative damages measures are generally not recoverable.
• In rare tort cases, damages are presumed (e.g., defamation, where fact of publication gives rise to presumption of damages).

Answer 106

Plaintiff

Question 107

General Rules of Damages: True of False?

P must usually sue for all of his damages in one single lawsuit. Thus, any money judgment must account for all past harm, as well as anticipated future losses (in both duration and extent).

Answer 107

True

Question 108

General Rules of Damages:

D is generally liable to P for all damages proximately caused by defendant’s conduct, whether or not those damages are “____”.

Answer 108

foreseeable.

See Vosburg v. Putney: (eggshell skull rule)

But note: Under rules of proximate cause, liability may not be imposed for unforeseeable types of harms.

Question 109

Name the Type of Damage:

• Designed to restore injured party, as nearly as possible, to position he would have been in, had it not been for wrong of other party.
• Since we cannot “fix” D, the law provides money as substitutionary relief. Works somewhat well for pecuniary (money) losses, but often poorly for non-pecuniary losses, as people typically won’t accept money to be hurt.

Answer 109

Compensatory Damages

“Make the person whole again”

Question 110

Name the Type of Damage:

Symbolic award given to P who cannot prove actual damages. It is designed to the vindicate legal principle at issue (i.e., D violated P’s rights), but can also serve as “hook” for punitive or attorney’s fee award.

Answer 110

Nominal Damages

Might just be a $1 award.

Question 111

Name the Type of Damage:

Designed to punish tortfeasor for particularly bad conduct, and provide general deterrence.

Answer 111

Punitive Damages

Question 112

The overall goal of “____” damages is to restore plaintiff to his “rightful position.” But, what is plaintiff’s rightful position?

• Torts: P’s rightful position is a return to the “status quo ante” – the way things were before the injury. To achieve this goal, we compare P’s position before and after the tort, and give P the difference in money. In torts, compensatory damages are often called reliance damages.
• Contracts: P’s rightful position is not the position he was in before the contract. Rather, it is to put P in the position he would have been had the contract never been breached. In contracts, compensatory damages are often called expectancy damages.

Answer 112

Compensatory

Question 113

“____” damages generally available for pecuniary losses & non-pecuniary losses:

• Pecuniary Losses: Includes damage to property, out of pocket medical expenses, FMV of family medical services, future medical expenses, lost wages, etc. Easily quantifiable.
• Non-pecuniary losses: Includes past and future pain & suffering, humiliation, anxiety. Not easily quantifiable.

Answer 113

Compensatory

Question 114

“____” Pecuniary Losses: Medical bills, doctors, medications, lost earnings.

• They are usually non-controversial, but there are some sticky issues: (Lost earnings in cases of self-employed people? or whether to inform jury that compensatory awards are not taxable?)
• Damages for destruction of property are generally measured by FMV of the property at the time of the tort. If property is only damaged, courts generally compensate P for diminished market value of the property (sometimes cost of repairs will be awarded instead, if FMV is difficult to assess)

Answer 114

Past

Note: Injured victim has duty to act reasonably to “mitigate” losses incurred. If P fails to act reasonably to mitigate, D will not be liable for incremental losses that could have been avoided.

Question 115

“____” Pecuniary Losses: Future medical costs and therapy, loss of future earnings.

• Must calculate how long P would have worked (using average in industry), what P would have earned if not injured.
• Must discount lump-sum award to present value to account for current potential of the funds if prudently invested now, as well as inflation.

Answer 115

Future

Note: Injured victim has duty to act reasonably to “mitigate” losses incurred. If P fails to act reasonably to mitigate, D will not be liable for incremental losses that could have been avoided.

Question 116

Compensation for “____”.

• Due to controversy over such damages, non-economic damages are traditionally only permitted when accompanied by physical injury or when P was in “zone of physical danger.” Some states cap non-economic damages (or all damages) in certain types of cases, although states find this to interfere with right to trial by jury.

Answer 116

Non-Pecuniary Losses

• Court has power to review excessive awards.
• Ironically, D will often pay less damages if P dies than if P lives because, in the latter case, there is no pain & suffering to pay.

Question 117

Damages in Event of Death:

“____” Action – For money that V could have obtained from D before death:

• Lost income and medical expenses between time of injury and time of death
• Pain & suffering of victim before death (if V was conscious of the pain).

Answer 117

Survival

Question 118

Damages in Event of Death:

“____” Actions – For money that family beneficiaries/dependents lost as a result of decedent’s death.

• In most states, pecuniary losses are recoverable (e.g., funeral expenses, etc.), but recovery for non-pecuniary losses is available only to certain survivors (e.g., spouses, children, etc.)
• And, victim’s total lost wages do not necessarily equal amount that beneficiaries would have received.

Answer 118

Wrongful Death

Question 119

First Purpose of Punitive Damages:

Designed to “____” tortfeasor for really bad conduct (retributive goal). P must show that D acted with:

• Malice: misconduct intended to injure, or despicable conduct done with willful and conscious disregard to others safety and rights.
• Oppression: Despicable conduct that subjects person to cruel and unjust hardship.
• Fraud: Intentional misrepresentation, deceit, or concealment of material fact known to D, with intent to deprive other of legal rights or cause injury.

Answer 119

Punish

Question 120

To enforce a punitive damage, P must show that D acted with either: “__1__”, “__2__” or “__3__”.

Answer 120

1. Malice,
2. Opression,
3. Fraud.

(MOF)

Question 121

Second purpose of Punitive Damages:

Also, designed to “____” tortfeasor and others
Specific deterrence and general deterrence.

Answer 121

Deter.

Question 122

The following highlight what?

• Punitives barred in cases of vicarious liability, unless Master is somehow independently at fault (e.g., authorized employee misconduct)
• No retributive goal
• Punitives barred in action against estate if tortfeasor dies.
• No deterrent goal, etc.
• Gov’t may not be held liable for punitive damages.
• Where comparative fault applies, compensatory awards are often reduced, but punitive damage awards are not.

Answer 122

The Limits on Punitive Damages

Question 123

The following 3 factors are used to determine that the punitive damages award is not “____”:

• Degree of reprehensibility of D’s misconduct.
• Disparity (Ratio) between actual/potential harm suffered and punitive award.
• Diff. b/w jury award & civil penalties imposed/authorized in comparable cases.

Answer 123

Grossly exessive

Note: Amount of punitive award usually must be less than 10 times amount of compensatory award.

Also, the wealth of defendant cannot justify an otherwise unconstitutional punitive damage award: absence of wealth may lower award, but present of wealth cannot be reason to increase punitive award.

Question 124

The following may be considered in determining the Degree of “____” of D’s misconduct:

• Physical vs. economic harm.
• Reckless indifference to health/safety of others, intentional malice, trickery, deceit.
• Repeat tortfeasor vs. isolated incident.

Answer 124

Reprehensibility

Question 125

The following may be considered in determining the “____” (Ratio) between actual/potential harm suffered and punitive award:

• Punitive damages must bear a “reasonable relationship” to compensatory award.
• No formula(ratio) is always appropriate.
• Low compensatory awards may support higher ratio, if egregious act resulted in small $$ harm.
• Higher ratio ok where injury hard to detect or value of noneconomic harm difficult to determine.

Answer 125

Disparity

Question 126

The “____” clause prohibits excessive punitive damages.

Answer 126

Due Process

Punitive damage awards should be reviewed to determine:

• Degree of reprehensibility of D’s conduct.
• Disparity between compensatory and punitive awards.
• Awards in similar cases.

Question 127

“____” = Liability without fault. It allows D to be liable for injuries even without D’s intent or negligence.

Answer 127

Strict liability

Types of situations where SL applies:

• Abnormally Dangerous Activities.
• Wild Animals.
• Bailment: goods are temporarily transferred into the possession of another (valet parking, coat checking).
• Product Liability

Question 128

An activity is considered an “____” Dangerous Activity if it:

• Activity involves the potential harm, of a serious nature, to persons or property.
• The activity involves a high degree of risk that cannot be completely guarded against by the exercise of reasonable care.
• The activity is not commonly performed in the community/area.

Answer 128

Abnormally

Question 129

The following are considered when determining what type of Activities?

• The basis of liability is the creation of an abnormal and very serious risk.
• Even if this activity is done with the utmost of reasonable care, there is still a serious risk of injury
• The person taking on this abnormally dangerous activity should have to pay for injuries caused by this activity.

Answer 129

Abnormally Dangerous Activities

Examples: Blasting dynamite, fireworks, nukes.

Question 130

“____” - Liability of Manufacturers and sellers (distributors, wholesalers, retailers) for defective products that cause injury or loss to user or bystander.

Answer 130

Products Liability

1. Breach of Warranty
2. Negligence
3. Misrepresentation
4. Strict Product Liability

Question 131

What are the four types of Product Liability?

Answer 131

1. Breach of Warranty
2. Negligence
3. Misrepresentation
4. Strict Product Liability

Question 132

Name the Product Liability:

Whether quality, characteristics and safety of product were consistent with implied or express representations of seller.

Answer 132

Breach of Warranty

Question 133

The following can give rise to what kind of Product Liability?

• Any Express Warranty (3yrs/30,000 miles).
• Implied Warranty of Merchantability.
• Warranty of Fitness for Particular Purpose (Seller knew or should have known of particular purpose and buyer relied on seller’s advice).

Answer 133

PL based on Breach of Warranty

• Privity of Contract often required.
• Disclaimers can insulate (“As-Is”).

Question 134

The following are elements to what type of Product Liability:

• Misrepresentation (intentional or negligent).
• Made to a user/consumer.
• Misrepresentation must be of a material fact.
• Intent to induce the reliance on the misrepresentation (ex: label misrepresentation).
• Buyer must actually rely on the misrepresentation (If buyer was unaware or if the misrepresentation did not influence the transaction, this element is not met).
• Misrepresentation results in an injury.

Answer 134

PL based on Misrepresentation

Question 135

The following can give rise to what kind of Product Liability?

• Failure to exercise reasonable care during product designing, manufacturing (including inspections), or labeling/warning that involves unreasonable risk of harm to user.

Answer 135

PL based on negligence

• To avoid negligence, manufacturers should have QC methods.
• Note: Subsequent remedial measures may not be used as proof of negligence (think about recalls).

Question 136

MacPherson v. Buick Motor Co. Holds that there is a duty to inspect “____” products (wooden spokes case).

Answer 136

3rd Party

Question 137

Restatement (2nd) of “____” (402A)

(1) - “One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.”

Answer 137

Torts

(2) - “Rule 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 relationship with seller.”

Question 138

The following involve what type of Product Liability?

• Liability without fault.
• Rationales: Protect consumers against unsafe products; Liability on person most able to prevent harm; Manufacturers/Sellers able to spread costs; Encourage manufacturers to use utmost safety; Encourage sellers to deal with best manufacturers
• 3 types of defects: Manufacturing Defect; Design Defect; Defective Warnings

Answer 138

Strict Products Liability

Question 139

The following are elements to what type of Product Liability?

• Sale in ordinary course (Manufacturer, wholesaler, retailers).
• Of “Product” (not service or mere ideas in books).
• Defect (in Manufacturing, Design or Warning).
• Causation (factual and legal)
• Injury to P or P’s property.

Answer 139

Strict Product Liability

• The Defect must (1) exist at time product left Defendant
  and (2) make item unreasonably dangerous by failing Consumer Expectations or Risk/Utility test .
• For Causation, (1) product defect was substantial factor in injury and (2) product was used in intended or reasonably foreseeable way.

Question 140

“____” - product is defective “only where the product is, at the time it leaves the seller’s hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him”.

Answer 140

Comsumer Expectations Test

• Analyze from perspective of ordinary adult consumer.
• In defective design cases, consider whether product functioned as safely as an ordinary consumer would expect when used in intended or reasonably foreseeable manner.
• In manufacturing defect cases, consider whether defect is foreign (e.g., rat in Pepsi can) or natural (e.g., seed in fresh squeezed orange juice).
• In warning cases, manufacturer not expected to warn for obvious risks; only risks that are known or knowable.

Question 141

“____” - A product is designed defectively where magnitude of hazards outweighs the social utility of the product. Used when consumers have no expectations (e.g., technical stuff)

Answer 141

Risk/Utility Test

Consider:

(1) Utility of product to public as a whole and to individual user;
(2) Nature of the product (i.e., likelihood that it will cause injury);
(3) Availability of a safer but functional and cost-effective design;
(4) Ability of the plaintiff to have avoided injury by careful use of product;

Question 142

Name the type of Strict Product Liability?

• Product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product.
• Inadvertently rolls of production line in a defective condition.

Answer 142

Manufacturing Defects

Ex: Only 1 bad product our of a lot.

Question 143

Name the type of Strict Product Liability?

• Product manufactured per specifications but is unreasonably dangerous to users due to inadequate design (Not safe for intended or reasonably foreseeable use; E.g., Ford Pinto;
  Reasonable alternatives available).

Answer 143

Design Defects

Ex: Majority of products are bad.

Question 144

“____” - Some products are currently incapable of being made completely safe for their intended and ordinary use (e.g., pharmaceuticals).

“____” is a defense, but not a complete defense, as P may still prove liability upon showing that the product was marketed without due care (i.e., bad warnings).

The designer of an “____” product (i.e., products without a RAD) is also generally insulated from liability (if warnings are provided), except where the product has extremely minimal utility (ex: prank exploding cigars).

Answer 144

Unavoidably Unsafe Products

Question 145

“____” - In some cases, D can be liable for failure to adequately warn of particular known or knowable risk (e.g., no instructions).

Causal Presumptions: Law presumes that “[w]here a warning is given, seller may reasonably assume that it will be read and heeded” and “had an adequate warning been given, the plaintiff would have read and heeded it.”

Answer 145

Inadequate Warnings & Labels

Was a warning necessary?

• No need to warn of dangers which are obvious with “common knowledge”.
• Idiosyncratic Users: Mfr. should provide warning when “the product contains an ingredient to which a substantial number of the population are allergic, and the ingredient is one whose danger is not generally known…”

Was the warning adequate?

• Was it misleading? Was it reasonable, clear and unequivocal?
• Would additional warnings have been sufficient to avoid injury?

Question 146

The following concerns “____”.

Most states: acquirer only liable for liabilities of products of predecessor if (1) merger, (2) express or implicit assumption of obligations, (3) sham transaction.

Answer 146

Successor Liability

However, a few states impose successor liability if:

• Same product line is continued by new owner.
• Continuity of enterprise (i.e., same owners, officers, SH, etc.).

Question 147

Can or Cannot?

• Under S/L theory, retailers and wholesalers “____” be liable for design and manufacturing defects.
• Using indemnities “____” help insulate against risks of liability caused by 3rd parties in the supply chain.
• Using indemnities “____” help minimize risk of successor liability in most cases.

Answer 147

Can

Question 148

“____” - Where multiple manufacturers of same product makes it difficult to prove who made/sold the defective product (e.g., pharmacists fill scripts from whatever generic is available), courts may impose prorated liability based on market share.

Answer 148

Market Share Liability

Question 149

The following are examples of…

• Subsequent alteration of product.
• Comparative Fault (partial defense), except where the alleged negligence is P’s failure to discover a product defect (which is not a defense).

Answer 149

Defenses to Strict Products Liability

Question 150

Name the appropriate Defense:

Voluntarily and unreasonably proceeding to known danger.

Answer 150

Assumption of risk

Question 151

Name the appropriate Defense:

No safer design available.

Answer 151

State of the Art Defense

Question 152

Name the appropriate Defense:

Product made properly according to specifications by gov’t which has superior knowledge.

Answer 152

Government Contractor Defense

Question 153

Name the appropriate Defense:

Most states limit the time period for strict liability actions to a certain number of years after date of sale.

Answer 153

Statutes of Repose

Question 154

Name the appropriate Defense:

Misuse in substantial, non-foreseeable way (Creator of a violent video game not liable for shooting spree).

Answer 154

Misuse

Question 155

REVIEW THE UBER CASE

Answer 155

:)