Deck 3

Question 1

Used car saleseman liable?

Answer 1

Are selling. But, can’t discipline manufacturer. less power. Less deternce bite than retailers.
Not held strictly laible. To hard for them to srto out defective vs non-defective products and no way to influence manufacuturer.

Question 2

Four factors of being a seller:

Answer 2

1) compensation (no one else that P can go after) , 2) strict liability serves as an incentive to safety, 2) better position than consumer to prevent circulation of defective products, 4) abilit to spread costs.

Question 3

Amazon and strict liability?

Answer 3

Comensation: No one else P can go after. Can’t find original seller (and if anyone could it would be amazon).
Incentive safety: Amazon could vet manufactuers, keep better track of them. Can drop them or raise fees on those more dangerous.
Better position than consumer: All consumer Qs go through them. Hard for consumer to get info straight form manfuactuer. Self-hep hard when shopping online (especially because Amaon has same product from different manufacturesrs all lumped together)
Spread cost: Amazon geat at this.

Also: Fairness (unfair when big company predictably harms a certain number of people per year and no tliable)
Impossible to guarantee you will by from reputable manufacuter.
Hard for consumer to show negligence.
Negligence liability doesn’t work if manufacturer insolvent.
Market price can reflect harm done this way. Cheap rpoducts become more expensive.

Dissent:
Says its all about the formalities of title. Excpeiton for manufactuer representatives. Also, title not sufficnet on its own, Ex. security, taking title but used by other person, isn’t sale.

Question 4

Amazon v McMillan

Answer 4

All about title.

Question 5

State farm. Amazon strictly liable?

Answer 5

Yes. Seller because they do the same exact stuff that seller’s like Lowe’s Home Depot, etc. do. even if they don’t have title.
title not good rule of thumb when consumer expectation is that you have title because it looks like other sales.
This deters which is main purpose of strict liability.

Question 6

Winter v G.P. Putnam’s sons. Incorrect mushroom info in book. Sick.

Answer 6

Negligence works fine. How much fact checkingvs reasonable person (bpl)
Free speech important. Don’t want to chill writing about dangeorus topics.
Self-help possible.

Question 7

Books/maps products?
Electricity?
GPS?
Pets?
Transplanted liver?

Answer 7

NO. Sometimes. No. Split. No.

Question 8

Mexical Rose v Superior Court. Defect in food?

Answer 8

If not natural in food then strict liability (bone vs glass). Alntertnativel, anytime consumers wouldn’t expect to find it in food then strict liability.

Question 9

Dawson v Chrystler Copr. Design causes car hitting pole to collapse inward. Injuries. Different desing prevent this.

Answer 9

Test: Is it reasonably fit, suitable, and safe for its intended or reasonably forseeable purpose? Factors: BPL plus loss spreading.
Alternative design more dangerous in most cases. More expensive. Already meets congressional standards. Just as safe, if not safer than customers.
Jury could have found product not reasonably safe. But reluctant to let jury have it because they could find strict liability for conflicting desings.

Question 10

Green v Smith & Nephew. Develop allergy as a result of glove.

Answer 10

Court says P doesn’t need to show alternative reasonable design. Burdensome. Really hard for attorney and experts to redesign entire procduct.

Question 11

Trampoline reasonable safe?

Answer 11

Gernally not a design defect.

Question 12

Dreisonstok v Volkswagon? Open and obvious case.

Answer 12

Aware of risk. Open and obvious. Consumer making informed decision. We should let consumers make trade-offs they choose to make.
Risk utility doesn’ work well for products of fancy or taste. If risks are open and obvious we let consumer decide.

Question 13

McCarthy v Olip Corp. Especially dangerous bullets. Strict liability?

Answer 13

No. Can’t do risk-utility because the whole point is to not be dangerous.
Ignore externality problem. harm not to purchaser. Harm towards third perosn.
Ex. Large SUV with blindspot. You run over people sometimes. When product is harming somoene else you might need to do risk-utility test with risk being that of the third party.

Question 14

Brown v McDonald’s corp. Allergic reaction cae.

Answer 14

Don’t have to warn about all possible side effects. Have to warn about allergies that are non-obvious but have a reaonslbe risk of causing a reaction. larger population has allergy more likely you have to warn. More severe more likely you have to warn.
This is negligence standard.

Question 15

McMahon v Bunn-O-Matic Corp. No warning. Strict lability?

Answer 15

No. Too many warnings or a warning too long and people will just stop reading anything at all.

Question 16

Graves v Church & Dwight. Having a warning wouldn’t have done anything because graves wouldn’t have looked at it anyway. Strict liability?

Answer 16

No. Causation problem. Had ingored warnings on smoking products so reaonable to think he would ignore warning here.
Presumption they will look unless they don’t.
Presumption rebutted here. Smoked. Evidence he didn’t look. This was decided by jury and court is deferring to them.

Question 17

McMahon v Bunn-O-Matic vs Libeck.

Answer 17

Parties didn’t offer evidence of standards. IN Liebeck they compare to competitors (custom). Liebeck gets to jury. Bunn-O-Maqtic doesn’t.

Question 18

Scanlan v Sunbeam. Heats room to 110 degrees. Fails to warn that it can cause a room to get so hot. Strict liable?

Answer 18

???
Defect: Why would room ever need to get that hot. Could shut off wehn room gets to be acertain temperature.

Question 19

Casey v Practiv Corp. Small text on plastic saying support from botton. Aslo says larger on botton of pan that it must be supported form botton. Strict liability?

Answer 19

This gets to jury.

Question 20

Duty to warn for open and obvious dangers?

Answer 20

No.

Question 21

Greene v A.P. Prod., Ltd. No waring to keep away from kids on spray bottle of Miracle Wonder 8 Oil, Hari, and Body Mist

Answer 21

Court says this is open and obvious.

Question 22

Examples of no liability for failing to warn of dangers of…

Answer 22

Clapping when selling clapper.
Diving into shallow pool.
STicking foot out of golf cart.
Getting ht by car while on motorcycle.
Riding unresrained in back of pickup truck.
JUmping on trampoline.
Jury gets to decide whether marshamallows need a choking warning for kids because they expand when wet making them especially dangerous.

Question 23

Punitive dmages

Answer 23

1) They are about punishing people. Not about law and economics idea of compensating people who don’t sue.
2) Substantive due process creates a limit to roughly a single digit multiplier of compensatory damges.

Question 24

Assumption of risk

Answer 24

Prevents P’s from recovering for injuries they suffer when they freely undertake dangerous activities.

Question 25

Murphy v Steeplechase Amusement Co.. Flopper, fall a forseen risk. P injured. Liability?

Answer 25

No. Belt not out of order. One who takes part is such a sport accepts the dangers that inhere it in so far as they are obvious and necessary. Would be different if not observable or if so many accidents that it was too dangerous to continue without change.

Question 26

Woodall v Wayne Steffner Productions. Human kite. Asked for driver who had done something similar before, producer said they had a great stunt driver, so he leaves his own driver behind. Tells driver not to go over 30 MPH. Driver goes over 45. Injury.

Answer 26

Liable? Yes. No assumed risk of driving to fast. Assumption of risk cases are ones in which the injury is inherent in the nature of the activity itself.
Assumption of risk us be free and voluntary. Does not assume risk if he surrenders better judgment upon assurance of saferty or a promise of protection unless danger so obvious and so extreme there can be no reasonable reliance on the assurance.

Question 27

Lowe v California League of Professional Baseball, mascot distracting. Hit by ball. Risk assumed?

Answer 27

Mascot not inherently part of the game. Risk is not assumed.

Question 28

Coomer v Kansas City Royals. Hot dog launch injures eye.

Answer 28

Hot god toss not inherent to game. Could hae launched hot dogs non-negligently.

Question 29

Injured from foul ball, assumption of risk?

Answer 29

Yes.

Question 30

Sports games and assumption of risk

Answer 30

If it is inherent to the game it is assumed risk. If not inherent, no assumed risk.

Question 31

Hackbart v Cincinnati Bengals. Player injured by another out of anger and frustration after a play. Assumed risk?

Answer 31

Intentional injury and reckless injury causing generally not part of assumption of risk. You only accept risk of being negligently injured by playing football.

Question 32

Griffin v The Haunted Hotel. Running from someone with chainsaw. Falls and is injured. Liable?

Answer 32

No. Assumption of risk. Typical haunted house case.

Question 33

Wolf v Kaplan. Injured by passing bike in triathlon who was violating triathlon rules. Race liable?

Answer 33

No. Assumed risk in recreational sports. Have to show that it was either reckless or intentional.

Question 34

Huston v Brookpark Skateland. Skater skating at dangerous and excessive speed prior to hitting P. Behavior was observable by floor supervisor and could have been stopped. Liable?

Answer 34

Gets to trial. It’s possible that this is reckless or intentional.

Question 35

Baseball rule

Answer 35

Where a baseball game is being conducted under the customary and usual conditions prevailing in baseball parks, it is not negligence to fail to protect all seats in the park by wire netting, and that the special circumstances and specific negligence pleaded did not aid P

Question 36

Baseball rule

Answer 36

No need to warn against hazards that are necessarily incident to baseball and are perfectly obvious to person in possession if his faculties, such as foul balls. Not negligent to fail to protect all seats from foul balls.