Eric Outline

Question 1

Duty Question

Answer 1

If someone fails to take reasonable precautions to prevent the accident at hand, does that create a reasonably foreseeable risk of harm to anyone or anything that is impacted?

Question 2

Palsgraf Duty Rule

Answer 2

People have a duty to take reasonable precautions to prevent reasonably foreseeable risks of those activities. Cardozo’s position required that the plaintiff was a foreseeable victim by establishing the reasonable zone of foreseeable danger. Andrew leaves foreseeability to proximate cause, holding there is always a duty to act as a prudent person would.

Question 3

Classical Conception of Duty

Answer 3

There is no duty to act. The classical policy was to promote individual freedom and prevent overreliance on morality.

Question 4

Modern Conception of Duty

Answer 4

There is no duty to act with exceptions for rescuers, those that assume duties, those in the custody of others, and those under one’s control.

Question 5

Rescuers Exceptions to No Duty

Answer 5

Rescuers have a duty of reasonable care whenever there is a contractual or gratuitous relationship with the victim, the victim had not alternative rescuers because they are in the custody of a rescuers, or the victim’s peril was actually caused by the rescuer.

Question 6

Negligent Undertaking for Rescuers

Answer 6

Liability for a negligent rescue is extended if the defendant worsens the circumstances of the victim by increasing the danger of the circumstances, misleads the plaintiff into believing the danger had been removed, or depriving the plaintiff of the possibility of other assistance.

Question 7

Custody Duty to Act

Answer 7

There is a duty to protect those in one’s custody and protect others from those in one’s custody. One who takes charge of third parties whom they know or have reason to know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to prevent that person from doing such harm.

Question 8

Particularized Foreseeability Standard for Custody

Answer 8

When a party has control over another, particularized foreseeability may be applied to conform the standard of foreseeability to include common experience and assumptions to expand the scope of negligence liability

Question 9

Special Relationships

Answer 9

A special relationship between the parties is essential to establish an affirmative duty to act. These special relationships are: common carriers to their passengers or cargo; innkeepers to guests; those in control; premises liability and; vicarious liability.

Question 10

Premises Liability Single Standard

Answer 10

The Third Restatement states that a landowner owes entrants onto the land a duty of reasonable care with regards to the landowner’s conduct, the artificial land conditions, and natural land conditions that create risks. Landowners only owe trespassers a duty not to act in an intentional, willful, or wanton manner to cause physical harm but there is a duty to exercise reasonable care if the trespasser reasonably appears to be imperiled and are helpless.

Question 11

Premises Liability Categorical

Answer 11

The categorical approach creates a spectrum of responsibility that a landowner owes to different people on their premises for different purposes.

Question 12

Premises Liability Categorical: Trespassers

Answer 12

Trespassers are folks that enter property without consent and landowners must not act maliciously towards the trespasser, nor maintain traps.

Question 13

Premises Liability Categorical Child Trespassers

Answer 13

A landowner has a duty to protect child trespassers from attractive nuisances. An artificial condition upon the land is an attractive nuisance if: the landowner knows or has reason to know that children are likely to trespass, and; the condition is a strictly unreasonable risk of death or serious bodily harm to such children, and; the children because of their youth do not discover danger, and; the utility to the landowner and the burden of eliminating the risk are slight as compared with the risk to children involved, and; the landowner fails to exercise reasonable care to eliminate the danger.

Question 14

Premises Liability Categorical Licensee

Answer 14

Licensees have the consent of the landowner without offering economic benefit. A landowner is only liable to a licensee for affirmative acts of negligence, traps, or failing to warn about concealed damages that the defendant actually knows about, or the licensee would be unable to find with inspection.

Question 15

Premises Liability Categorical Invitees

Answer 15

Invitees have the public invitation of the landowner and are there at the encouragement of the landowner. Classical conceptions of invitees limited the classification to only those conferring an economic benefit on the landowner. Landowners owe invitees a duty to exercise reasonable care to keep premises in a reasonably safe condition.

Question 16

Premises Liability Categorical Public Servants

Answer 16

Landowners owe a duty of reasonable care to public employees to keep in a safe condition those parts of the premises which are used as the ordinary means of access and warn of unforeseeable dangers to the property.

Question 17

Actual Cause Question

Answer 17

Whether the plaintiff’s injury was the result of the defendant’s breach of their duty of reasonable care.

Question 18

Actual Cause Tests

Answer 18

But-for the defendant’s breach of their duty of reasonable care, would the plaintiff have been injured? In the absence of the tortious conduct of the defendant, would the plaintiff still have suffered the same injury? For a cause to be the but for cause of the plaintiff’s injuries, the harm must have been avoided if the defendant had done what the plaintiff alleges the defendant should have done.

Question 19

Single Actual Cause

Answer 19

When a single breach causes the injury of the plaintiff, the question is whether the defendant’s negligence is a necessary and sufficient cause of the plaintiff’s injury or the but for cause of their injuries. Without the defendant’s breach, the injury would not have happened and with the breach there need be no other breach of duty to cause the plaintiff’s injuries.

Question 20

Lost Chance of Recovery Actual Cause

Answer 20

When there is an alternative sufficient cause, the defendant’s negligence or the pre-existing condition may have caused the plaintiff’s ultimate injury- either is sufficient but neither is necessary- so we award the “lost chance of recovery” damages. When the plaintiff presents evidence of such negligence, the jury must decide whether the defendant’s negligence was a substantial factor in producing the injury.

Question 21

Multiple Actual Cause Separate Injuries

Answer 21

When there are two negligent injurers either of whom acting alone would have inflicted the entire harm suffered but neither of whom is the but for cause of the injury, then the defendants are joint and severally liable to the plaintiff for injuries. When there are two negligent injurers’ breaches are necessary to the infliction of the harm and neither breach alone is sufficient to inflict that harm, then the defendants are proportionately liable to the plaintiff.

Question 22

Multiple Actual Cause Indistinguishable Injuries

Answer 22

When there are multiple injurers that inflict an indivisible injury, but no single injured breach is necessary and sufficient to inflict the harm then the relevant question is what is the division of liability? When two negligent injurers breach their duty of care to a plaintiff who suffers an indivisible injury inflicted by only one of them. The question is what do we do when we can’t identify the injurer?

Question 23

Proximate Cause Question

Answer 23

What is the extent of the defendant’s liability for injuries they have caused through breach? Whether liability should extend to cover the harm suffered by the plaintiff here.

Question 24

Proximate Cause Cardozo Reasonable Foresight Approach

Answer 24

The CRFA asks if the risk of injury to the plaintiff was one of the risks which made the defendant’s conduct wrongful and will prevent recovery if the plaintiff’s injury was not one of those risks. A defendant owes a duty of reasonable care to a plaintiff, under the CRFA, only if the plaintiff is in the zone of reasonable foreseable harm resulting from the defendant’s actions. The CRFA determines proximate cause by freezing the film at the point when the breach takes place, asking what risks said breach would create, then asks if the plaintiff’s injury is one that was a reasonably foreseeable risk at the time of the defendant’s breach of duty.

Question 25

Proximate Cause Andrew Hindsight Approach

Answer 25

The AHA only asks whether there was a natural and continuous sequence between cause and effect of the defendant’s breach and plaintiff’s injuries. the AHA will find liability when there is an unbroken sequence, without intervening causes, that is natural and proximate between the breach and injury, regardless of if the injury was reasonably foreseeable. The AHA considers the following factors: time and distance; substantial factors of the harm; likelihood of the harm; directness of the causal chain; strength of the causal chain, and; allusions to the influence of events on the stream of tort liability.

Question 26

Proximate Cause Intervening Cause

Answer 26

A defendant is liable for the injuries of a plaintiff that are based upon the unforeseeable and uncommon reactions of the plaintiff to the defendant’s tort. A tortfeasor must take their victims as they find them and compensate for the immediate and direct effects of their negligence.

Question 27

Negligence Damages Question

Answer 27

How is liability allocated? If there are two or more tortfeasors responsible for the causation of the entirety of the same injury, then those tortfeasors are jointly and severally liable to the plaintiff. The plaintiff may recover full damages from either defendant.

Question 28

Joint Liability Damages

Answer 28

Joint liability extends to the defendants whose individual breaches of duty of care caused an indistinguishable injury to the plaintiff. There is joint and several liability when there are multiple causations and no single injurer’s breach is necessary and sufficient to inflict the harm.

Question 29

Proportionate Liability Damages

Answer 29

Defendants contributing to the same injury are only liable to the victim in proportion to their responsibility for the victim’s injury. A tortfeasor may request contribution from fellow joint and several tortfeasors when the initial tortfeasor has paid more than their proportionate share of the injury.

Question 30

Limitations on Negligence Damages

Answer 30

Damages are limited primarily to physical and economic or emotional damages which are awarded when certain conditions are met. A plaintiff may not recover damages for negligently cause, reasonably foreseeable financial harm unless it’s shown that they suffered some physical injury or otherwise meets some other special circumstances or exception to warrant awarding damages. When awarding compensation, most jurisdictions look at the plaintiff’s future earning capacity, their out-of-pocket expenses, their pain and suffering, and their loss of enjoyment of life or relationships.

Question 31

Emotional Damages for Negligence

Answer 31

The Zone of Danger allows recovery for pure emotional harm where there is either an immediate physical invasion of the plaintiff’s person or a possibility of such invasion.

Question 32

Contributory Negligence Defense to Negligence

Answer 32

When the victim is negligent such as to be the actual and proximate cause of their injuries then there is a complete bar to recovery.

Question 33

Comparative Fault Defense to Negligence

Answer 33

If the victim is negligent, the courts determine, as a question of fact, the amount of liability shared between the parties. Pure comparative fault jurisdictions adjust the plaintiff’s recovery accordingly, while 50% schemes will bar recovery if the plaintiff has the majority of liability.

Question 34

Assumption of Risk Defense to Negligence

Answer 34

Assumption of risk is a complete bar to recovery on the grounds that the victim chose to bear the risk of the defendant’s breach by knowingly and voluntarily encountering that breach, either explicitly or implicitly.

Question 35

Superseding Cause Defense to Negligence

Answer 35

An intervening cause is an event that occurs after a tortfeasor’s initial act of negligence and causes injury to the victim. An intervening cause is both a cause in fact and proximate cause of the victim’s injuries, however the defendant will be liable for injuries that arise from reasonably foreseeable intervening causes. A superseding cause is an intervening cause that breaks the chain of causation and absolves the tortfeasor of liability for the victim’s injury when it is not reasonably foreseeable by the earlier actor.

Question 36

Efficient Cause Superseding Cause

Answer 36

An efficient intervening cause is a new, independent force intervening between the defendant’s negligent act, and plaintiff’s injury by negligence of a third party who had full control of the situation, whose negligence the defendant could not anticipate or contemplate and whose negligence resulted directly in the plaintiff’s injuries. Does not include doctors’ negligence.

Question 37

Vicarious Liability Two Step Tango

Answer 37

Step one: Identify the underlying tort.
Step two: Is the agent an employee, apparent agent, or independent contractor.

Question 38

Vicarious Liability Policy

Answer 38

Vicarious Liability is intended to promote accident prevention, allocate efficient cost avoidance, loss spreading, and fairness.

Question 39

Vicarious Liability Employee Definition

Answer 39

An agent is an employee if the employer has control over the employee’s conduct, the employer assumes the risk of acts of its employees which arise out of and in the course of their employment.

Question 40

Vicarious Liability Scope of Emplioyment

Answer 40

The court will apply the scope of employment test by asking the following questions: did the employer stand to benefit from the conduct of the employee?; was the employer exercising substantial control over the employee’s actions at the time of the accident?; was the employee’s conduct directly in the service of the employer at the time of the accident?; was that conduct motivated by a desire to confer a benefit on the employer?; is it fair for the enterprise to disclaim the actions of its employees? If an employee’s conduct is different in kind from their authorization, far beyond the authorized time and place, or too little actuated by a purpose to serve their employer, that conduct falls outside the scope of employment.

Question 41

Vicarious Liability Apparent Agency

Answer 41

A person is an apparent agent of the employer where that person’s action led the victim to reasonably believe that they were the agent of the employer and the agent’s actions were within the scope of the apparent authority of the employer.

Question 42

Vicarious Liability Independent Contractor

Answer 42

An independent contractor is a person who contracts with another to do something for an employer but is not within the control of the employer. Employers are exempted from liability for independent contractors unless the employer was negligent in selecting the independent contractor, the independent contractor was doing non-delegable duties, or the work was peculiarly dangerous.

Question 43

Defenses to Vicarious Liability

Answer 43

Comparative Fault & Assumption of Risk

Question 44

Strict Liability Definition

Answer 44

Strict liability is liability that does not depend on proof of negligence or intent but that is based on a duty to compensate the harms proximately caused by the activity or behavior subject to the liability rule. This is intended to promote fairness, loss spreading, and internalization.

Question 45

Wild Animal Strict Liability

Answer 45

An owner of a wild animal is subject to liability to others, except trespassers, for such harm caused by the animal as a result from dangerous propensity which is a characteristic of wild animals of its class or of which the owner knows or has reason to know, although they have exercised the utmost care.

Question 46

ADA Strict Liability

Answer 46

Strict liability is imposed when an undertaking that necessarily carries with it a significant risk of serious harm even if reasonable care is used and for which the actor will be liable for any harm. Courts consider the following factors, as a question of law, to determine if an activity is ADA: existence of a high risk of harm; likelihood of great harm; inability to eliminate risk with reasonable care; is the activity of common usage; inappropriateness of activity where it is done and; do the benefits to society outweigh the risks. The first three factors reflect the Hand formula, while the last three determine if the activity is abnormal.

Question 47

Defenses to Strict Liability: Assumption of Risk

Answer 47

Assumption of risk is a defense to strict liability as long as the plaintiff knowingly and voluntarily assumes the risk of the defendant’s activities. Assumption of risk is not voluntary if the defendant has left no reasonable alternative course of conduct to avert the risk or to infringe on the plaintiff’s rights.

Question 48

Defenses to Strict Liability: Contributory Negligence

Answer 48

Contributory negligence is a defense to strict liability is the plaintiff knowingly and unreasonably subjects themselves to the risk of harm from the defendant’s activities.

Question 49

Limitations on ADA Liability

Answer 49

The extent of ADA liability is limited to only those injuries that are of the character that the ADA creates the risk of. There is no strict liability for harm caused by an ADA if the harm would not have resulted but for the abnormally sensitive character of the plaintiff’s activities.

Question 50

Strict Restatement 402A Products Liability

Answer 50

One who sells any product in a defective condition is unreasonably dangerous to the user or their property is subject to liability for physical harm thereby caused to the ultimate user or property, if: the seller is engaged in the business of selling such a product, and it is expected to and does reach the user without substantial change in the condition which it is sold. Liability is strict and does not need privity.

Question 51

Factors to Determine Seller Liability

Answer 51

The courts consider the following factors to determine if a defendant is a seller: whether the defendant is the only available party of the marketing chain; whether imposition of strict liability serves any safety incentivies; whether the defendant is in the best position to prevent defect circulation and manufacture; whether the defendant can internalize the expenses.

Question 52

Strict Manufacturer Liability

Answer 52

There is strict liability for manufacturer defects. A manufacturer defect is a flaw that affects a particular sold item that is one of many mass-produced units and the defect makes the product fail to work according to the product’s intended design. The defective product’s performance fails to realize the manufacturer’s own intentions and disappoints the user’s expectations.

Question 53

Design Defect Overview

Answer 53

Design defects are flaws that are inherent to the design of the product itself and therefore afflict all units produced. the courts use various tests to determine if a design is defective and the tests range from strict liability to negligence, depending on the jurisdiction.

Question 54

Consumer Expectation Design Defect Test

Answer 54

The CE test takes the perspective of the user and the doctrine has its origin in warranty law. The CE test asks if the product’s performance disappoints the reasonable expectations about the safety of the design? CE must be reasonable in light of all circumstances including the availability of alternative products on the market. A product fails the CE test if it is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchased it with ordinary knowledge common to the community of the product’s characteristics.

Question 55

Risk Utility Design Defect Test

Answer 55

The RU test takes the perspective of the manufacturer and has its origins in negligence law. The RU test asks if the design of the product, on balance, is reasonably safe or the risks of the design outweigh the design’s utility. A minority of jurisdictions apply the following factors when weighing the utility of a product: usefulness of the product; likelihood and severity of probable injury; availability of safe and useful alternative; ability to remove the unsafe element and retain usefulness; ability of the user to avoid danger with reasonable care; user awareness of the dangers of the product, and; the ability of the manufacturer to internalize costs. Some jurisdictions require that a claimant show that an alternative, safer design was available at the time the challenged product was manufactured or sold.

Question 56

Two Prong Design Defect Test

Answer 56

Originating in Barker, some jurisdictions use a two-pronged test that holds if either the CE or RU test are satisfied then the design is defective. A plaintiff needs to only pass one test.

Question 57

Third Restatement Approach to Products Liability

Answer 57

The Third Restatement of Products Liability advocates for a shift to negligence liability for design defects. Under the Third Restatement, a product is defective when, at the time of sale or distribution, the reasonably foreseeable risks of harm posed by the product could have been reduced or avoided by adoption of a reasonable alternative design by the seller or distributor and omission of the alternative design renders the product is not reasonably safe.

Question 58

Warning Liability Question

Answer 58

Did the defendant fail to adequately warn or instruct the user about the dangers of a product? Did the failure to warn cause the plaintiff’s harm?

Question 59

Warning Liability General Rule

Answer 59

Duty extends to all reasonably foreseeable persons who will come into contact with and consequently be endangered by that product except if the danger is open and obvious. A manufacturer of product, who knows or has reason to know, that is dangerous by nature or is in a dangerous condition has a duty to warn of those dangers to those it is reasonably foreseeable that will come in contact with and be endangered by the product.

Question 60

S 402A Comment K “Unreasonably dangerous”

Answer 60

Comment k describes “unreasonably dangerous” products as those that are dangerous beyond what would be contemplated by the ordinary consumer with the ordinary knowledge common to the community as to its characteristics. A defective condition makes a product unreasonably dangerous. Bilateral precautions are required for unreasonably dangerous products because all parties can reduce the product’s risk.

Question 61

S 402A Comment I “Unavoidably Unsafe”

Answer 61

Comment i describes “unavoiably unsafe” products as those which in the present state of human knowledge are incapable of being made safe for their intended and ordinary use. These products only require unilateral precautions from the seller to warn because they are the only party in control of the safety of the product. A manufacturer may be held liable for an injury that it could not reasonably foresee.

Question 62

Prescription Drug Manufacturer Duty to Warn

Answer 62

Prescription drug manufacturers fulfill their duty to warn for unavoidably unsafe products by informing a prescribing doctor of the potentially harmful effects of the medication but not necessarily the end user.

Question 63

Warning Adequacy Question

Answer 63

Is the warning or instruction adequate?

Question 64

Adequate Warning Overview

Answer 64

A reasonable warning not only conveys a fair indication of the nature of the dangers involved, but also warns with the degree of intensity demanded by the nature of the risk. A warning may be found to be unreasonable in that it is unduly delayed, reluctant in tone, or lacking in a sense of urgency. There are two perspectives that the court may adopt to determine if a warning is adequate.

Question 65

Manufacturer Perspective; Adequate Warning

Answer 65

The manufacturer’s perspective takes a negligence approach that is appropriate when there are unilateral precautions required. The manufacturer’s perspective asks if there was a reasonable attempt to convey the nonobvious risks of the product?

Question 66

User Perspective; Adequate Warning

Answer 66

The user perspective takes a strict approach to adequacy that is appropriate when bilateral precautions are required. The user perspective asks if the warning makes the nature of the risk reasonably comprehensible to the average consumer.

Question 67

Warning Liability Causation Question

Answer 67

Did the failure to warn the plaintiff cause their injuries?

Question 68

Warning Liability Causation

Answer 68

A duty to warn alone for reasonably dangerous products comes with a problem that products liability cannot prevent accidents without user cooperation and many users do not cooperate. The Second Restatement approach presumes adequate warnings and instructions will be heeded. Courts may either assume the presumption of an adequate warning or instruction would have been heeded or may create a presumption and allow the defendant to rebut the presumption on a case-by-case basis.

Question 69

Manufacturer Misrepresentation Liability Question

Answer 69

Did the manufacturer misrepresent the product’s safety?

Question 70

Manufacturer Misrepresentation Liability

Answer 70

The Second Restatement holds when a seller makes a public misrepresentation of a material fact about the quality of the product that induced justifiable reliance upon the misrepresentation that caused the plaintiff’s injury.

Question 71

Product Liability Full Bar to Recovery Defense

Answer 71

Assumption of risk is a full defense if the plaintiff voluntarily and knowingly assumed the risk of the product defect. Contributory negligence is a full bar to recovery unless the victim’s failure merely consists of not discovering the defect or failing to guard against them.

Question 72

Product Liability Comparative Fault Defense

Answer 72

Comparative fault will reduce recovery according to fault to the victim that is inattentive to discover the defect.

Question 73

Product Liability Victim Misuse Question

Answer 73

Did the victim misuse the defective product?

Question 74

Victim Misuse Reasonable Foreseeability Doctrine

Answer 74

Manufacturers are obligated to exercise a degree of care in the plan or design so as to avoid any unreasonable risk of harm from unintended but reasonably foreseeable use. The reasonable foreseeability doctrine allows recovery when the use is incidental to ordinary use of the product, the use is induced by the manufacturer, and in the long term the manufacturer is the best cost avoider.