Fast Quick Tort Flashcards
Intent: 3 types
The definition for intent includes both intending the conduct or knowing with substantial certainty that such an outcome or consequences would occur.
It can also include transferred intent.
transfer no work conversion or IIED
children can be held for intentional torts.—-however courts have allowed arguments to show that a child is so young as to lack the capacity for intent as an element (Note this includes substantial certainty of the consequences of actions).
Battery:
An actor is subject to liability to another for battery if
(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and
(b) a harmful contact with person of the other directly or indirectly results.
Harmful or offensive act, results in contact with Plaintiff’s person (unpermitted)
Assault:
apprehension of reasonable harm, of imminent contact (words coupled with conduct)
(1) An actor is subject to liability to another for assault if
(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and
(b) the other is thereby put in such imminent apprehension.
False Imprisonment:
Sufficient act of restraint, to a bounded area (threats/inaction are enough)
*shopkeeper privilege, allowed to use reasonable force and reasonable time to detain- IF THEY HAV REASONABLE SUSPICION- they have defense of property- never deadly for property alone
—this may be a chance to use critical race theory by: “indeterminacy” of legal doctrines and how they are used to benefit particular social classes or economic institutions.
CLS often “demystifies” doctrines and “deconstructs” the language of the law.
BC DANGER OF BIAS IN
(1) An actor is subject to liability to another for false imprisonment if
(a) he acts intending to confine the other or a third person within boundaries fixed by the actor, and
(b) his act directly or indirectly results in such a confinement of the other, and
(c) the other is conscious of the confinement or is harmed by it.
(2) An act
IIED:
Intent OR recklessness, Extreme or outrageous conduct, results substantial harm (P like child/pregwoman/guest+bus driver matters) + transferred intent not applicable here, D had to know others watching .
2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress
(a) to a member of such person’s immediate family who is present at the time, whether or not such distress results in bodily harm, or
(b) to any other person who is present at the time, if such distress results in bodily harm.
**Torts scholars like Martha Chamallas challenged the downplaying of emotional harm in favor of physical harm in torts like the infliction of emotional distress as examples of gender bias.
Chamallas and Kerber reveal that while gendered thinking affected the development of legal doctrine about fright and emotional distress, the gender issues remained unexamined by courts. In the early fright cases, courts refused to allow recovery for emotional harms absent a showing of physical impact on the plaintiff.”
Tresspass to land:
Act of physical invasion, land (any part of land where owner could make use of space)
Trespass to chattels:
Act of invasion to personal property
Tort of Conversion:
Act of invasion to personal property, results in damage (serious interference of posessory rights qualify)
(t interfering with plaintiff’s right of possession in the
chattel;)
Defenses or “Privileges” Intentional Torts:
Consent, Self defense, Defense of others, Defense of Propety, Private/Public Necessity
*Insanity is NOT defense
“if a lunatic, having inflicted an injury upon the person or property of another, is not held to make reparation, the party suffering would be without redress.”
Privileges in intentional torts include privileges of self-defense, defense of others, defense of property, recapture of chattel, and necessity
Defense Consent:
Consent (check capacity= child, mental impaired, coerced, consent given fraud/mistake) implied based on custom or P’s conduct
Possible to have “substituted consent” for patients who are not competatnt
Also,
Emergency Rule: three elements: (1) the existence of a medical emergency; (2) the need for treatment to protect the patient’s health; and (3) the impossibility or impracticality of obtaining consent. –“an emergency arises and treatment is required in order to protect the patient’s health, and it is impossible or impractical to obtain consent from the patient or someone authorized to consent for him.”
Defense/priviliege Self Defense
Self defense: justified using reasonable force to prevent imminent force against self (based on reasonable person thinking so too) can stand ground, or in home (castle doctrines), but states split on that
**Timing! he privilege is lost with the passing of the danger.
There is no privilege in retaliation.
-Posner on Bird case with deadly spring gun protecting tulips: “In an era of negligible police protection, a spring gun may have been the most cost-effective means of protection for the tulips.” While spring guns are effective in protecting crops, they impose prohibitive costs on society in most cases.
“neither blanket permission nor blanket prohibition of spring guns and other methods of using deadly force to protect property interests is likely to be the rule of liability that minimizes the relevant costs.”
Defense of others
Defense of others: Can do under same manner and conditions of self defense. (we ask if the other person could have done self-d)
If it’s mistaken belief, but reaonable, court say okay.
Defense of Property
Defense of Propety: dont confuse with self-d can use reasonable force, but never deadly force to protect property alone hot pursuit doctrine you can only use reasonable force if you are in CURRENT pursuit to regain property
Public/Private Necessity
Private/Public Necessity: Only use with 3 property torts
“One is privileged to enter land in the possession of another if it is, or if the actor reasonably believes it to be, necessary for the purpose of averting an imminent public disaster.”
Tort of Defamation
Tort of Defamation: 1. Defamatory statement that turns out to be false, 2. about P, 3. published to 3rd person, 4. damages.
(cant be opinion or names, D has to prove it’s false) (if you can imply person from group, counts)(if 3rd party cant understand it, no count) (if you try not to publish it then no count) *if spoken = slander, P also has to prove “special damages” aka economic harm, *if writing = libel, jury can presume special damages **exception slander per se: P can recover presumed damages even in slander if statement 1) impugns one’s profession 2)accuses of serious crime 3) suggest loathsome disease 4) acuse woman of unchastity
Supreme court has added matters of “public concern”:
5. P needs to prove statement was false 6. P needs to prove some fault of D’s knowledge about whether statement was T/F #6 depends on if Plaintiff is publicofficials/figure vs private citizen. Both need to prove “flasity” but public figure needs to prove “actual malice” and private “negligence” Def damages When 1st Ammendment “public concern” cases: Jury is never allowed to presume punitive or special damages unless P can prove “actual malice” aka reckless disregard
Defamation Defense
Defamation Defenses: Consent, Truth, Absolute Privilege (Any statements In judicial proceedings, legislative proceedings/executive branch people in scope of their duty, spouses) Qualified privilege (if it serves interest of person receiving info ex: student gives privilege to teacher to write reference or public debates)
Invasion of privacy Torts list:
Tort of Appropriation, Tort of Intrusion, Tort of False Light, Tort of Public Disclosure of Private Facts
Tort of Appropriation
Tort of Appropriation- D uses name, image, likeness for commercial advantage without permission (“newsworthy use” doesn’t count ex: biography), only advertising, labeling use
Tort of Intrusion
Tort of Intrusion: Interfering with seclusion, in a way that is highly offensive to reasonable person. (eavesdropping, public place not count)
Tort of False Light
Tort of False Light: widespread dissemination of inaccurate info, done in a highly offensive way (ex: telling fake flattering story
overlaps defamation but broader
Tort of Public Disclosure of Private Facts:
Tort of Public Disclosure of Private Facts: widespread dissemination of accurate private statements done in an offensive way to reasonable person , exception: if this is newsworthy then 1st amendment privilege to say “newsworthy” meaning legit public interest… tabloids qualify
Defenses to Privacy
Defenses to Privacy:
Consent
False light/public disclosure claims adopts all absolute + qualified privileges
Intentional Misrepresentation “tort of fraud”
Intentional Misrepresentation “tort of fraud”
Affirmative misrepresentation by D (omission will not do) 2. Statement D knew was false (fault) 3. Made with intent to induce reliance 4. P had actual + justifiable reliance (was it reasonable forP to rely) 5. Actual Damage
Negligence
Elements:
Duty, Breach of Duty, Factual Causation, Proximate Causation, Damages
Duty
Duty: Who: We owe due to all foreseeable victims, Under Andrews approach “direct cause” though the world at large is who we owe duty , cardozo is “forseeability” only foreseeable persons zone of danger
How much: reasonable person, objective rigid dont care if tried if reasonable person would have done more. Physical disability though has own duty (do NOT care mental illnesses).
**DO NOT CARE IF THEY ARE GOOD PEOPLE ITS OBJECTOVE RP\S )
“[t]he general rule is that an insane person is just as responsible for his torts as a sane person, and the rule applies to all torts.”
"”In determining whether the defendant was guilty of negligence, you may take into consideration * * * the age of the defendant * * * and whether or not the defendant had any physical infirmities.” Roberts vs Ring
Special duty standards: children (under 5 not capable negligence)(From 0-7, children are presumed incapable of negligence
From 7-14, there is a rebuttable presumption of incapacity.
From 14 and older, a minor is presumed capable of forming the requisite intent. ) **their RPS is to children of like age, intelligence and experience under circumstance.
unless adult activity,
professional malpractice = of ordinary posessor of skill in good standing, some states have locality rule also, (vs national standard majority) where Physicians held to a standard of care that is consistent with physicians in the same geographic location in which they practice.
owners/occupiers of ANY TYPE land)affirmative actions vs static conditions, known tresspasser = man-made,death,traps that know of vs licensee/firefighter/police = any moderate danger known, invitee = reasonably inspect,
if tresspsser is child defaults to RPP standard and attractive nuisance doctrine,
** Under this doctrine, a landowner has a duty to exercise ordinary care to avoid reasonably foreseeable risk of harm to children, including trespassing children, caused by artificial conditions on his property.the fact that the girl was attracted onto the land by the artificial condition is just one factor for determining whether the attractive nuisance doctrine applies. Foreseeability of harm to a child is the true basis of liability.
Statute to set duty standard aka negligence per se doctrine, duty to rescue aka affirmative duty to rescue,
NIED )
*if doctor treats patient without any consent = battery, if no informed consent = negligence aka reasonably tell risks and treatments
parents not liable for child unless they (a) knows or has reason to know that he has the ability to control his child, and
(b) knows or should know of the necessity and opportunity for exercising such control.”
Exceptions/defence
for medical malpractice in regards to “informed consent” = exception:
Emergency rule: “when the patient is unconscious or otherwise incapable of consenting.”
Risk-disclosure (note: this is far more problematic): “when risk-disclosure poses such a threat of detriment to the patient as to become unfeasible or contraindicated from medical point of view.”
negligence per se (even if class risk + person fits)? If to not violate would be dangerous than complying statute or if compliance impossible
**add policy: LESLIE bender, Critique of male-oriented system based on separations rather than connections: “individualistic, autonomous, and self-interested.”
System protects “moral monsters who make no effort to stop young children from being mangled by machinery in factories and business competitors who stand by and watch a man drown in a trench on their property.”
Calls for “recognition that we are all interdependent and connected and that we are by nature social beings who must interact with one another should lead us to judge conduct as tortious when it does not evidence responsible care or concern for another’s safety, welfare, or health.”
Exceptions duty to rescue = 1. If you put P in peril, 2. strong fam/common carrier/invitor relationship between parties, 3. When you have ability + Authority to stop 3rd party (ex. Parent has to stop child) (just seeing in peril no duty) or
§ 324 Duty of One Who Takes Charge of Another Who Is Helpless (Restatement Second)
One who, being under no duty to do so, takes charge of another who is helpless adequately to aid or protect himself is subject to liability to the other for any bodily harm caused to him by
the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor’s charge, or
(b) the actor’s discontinuing his aid or protection, if by so doing he leaves the other in a worse position than when the actor took charge of him.
NIED = normally do not need to worry about upsetting people unless…. (1) witness injury to a closely related person, (2) suffer mental anguish manifested as physical injury, and (3) be within the zone of danger where he or she is subject to an unreasonable risk of bodily harm from the defendant’s actions.
Chamallas and Kerber reveal that while gendered thinking affected the development of legal doctrine about fright and emotional distress, the gender issues remained unexamined by courts. In the early fright cases, courts refused to allow recovery for emotional harms absent a showing of physical impact on the plaintiff.”
Breach:
Breach:
1. Assess reasonableness by considering cost + benefit:
A. Cheapest Cost Avoider, B. Hand Formula.
Cheapest Cost Avoider - the party who is in the best position to make the cost-benefit analysis between accident costs and accident avoidance costs and to act on that decision once it is made
liability depends upon whether B is less than L multiplied by P: i.e., whether B < PL.”
- Custom or Usage
Conforming or following with custom is not proof of reasonableness (or the absence of negligence).
Custom or usage may be introduced to establish the standard of care in a given
case. However, customary methods of conduct do not furnish a test that is conclusive for controlling the question of whether certain conduct amounted to negligence.
2. Violation of Statute
As we have seen above, the existence of a duty owed to plaintiff and breach thereof
may be established by proof that defendant violated an applicable statute.
- Res Ipsa Loquitur
The circumstantial evidence doctrine of res ipsa loquitur (“the thing speaks for
itself”) deals with those situations where the fact that a particular injury occurred
may itself establish or tend to establish a breach of duty owed. Where the facts
are such as to strongly indicate that plaintiff’s injuries resulted from defendant’s
negligence, the trier of fact may be permitted to infer defendant’s liability. Res ipsa
loquitur requires the plaintiff to show the following: - his injury is the type that would
not normally occur unless someone was negligent.2. Attributable to Defendant 3.
Plaintiff must also establish that the injury was not attributable to him, but may
do so by his own testimony.
The doctrine, where applicable, does not change the burden of proof, nor
does it create a presumption of negligence. Where the res ipsa element
has been proved, the plaintiff has made a prima facie case and no directed
verdict may be given for the defendant.
Factual Causation
Factual caysation:
Would this injury have occurred “buf for” the defendants breach?
But for test, substantial factor test
Multiple D’s:
Shift Burden of Proof = either Market share liability, or Joint + Severly liable
But for test,(but for would P be hurt)
substantial factor test (“A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm.
mult D’s, co-migled cause, both could have caused fires, ask “whether conduct of each D is a substantial factor, if yes them meets element of fact cause)
shift burden of proof: (when mult D’s and dont know who cause , other D’s didn’t cause any, but did act same. *if noone can exonerat self then will hold them all joint ans severabily liable for P’s injuries.
Proximate Cause
Proximate Cause:
How to limit scope of liability - only liable for harms foreseeable within risk of own activity
Draw chain of events. Anythign that is foreseeable is considered a proximate cause… if you have a superceding causes (act of god or crime/intentional tort) then those are automatically supercedign causes and will not be foreseeable.
-many acts of nature ARE foreseeable, so if theft etc
Any subsequent act of negligence is seen in the law as foreseeable.
– eggshell rlue is foreseeable still.
Direct vs indirect cause fact pattern/intervening cause :
Direct, is it foreseeable then yes PC.
Indirect/intervening, when harm only comes AFTER the 2nd person or subsequent action of original negligent act = was intervening event foreseeable #1, and #2 was ultimate outcome foreseeable
If both foreseeable then P wins, If both not P loses, for the others some examples: subsequent medical malpractice = D almost always liable, negligent rescue is almost always forseeable, other people reaction forces (crowd running after gun shot), ANY subsequemt diseases and accidents always forseeable
?????Can D forsee these things ? Negligence of a third party (you as D’s negligence exposed someone to risks of third parties negligence— you will be liable for the 3rd parties negligence too if D should have foreseen ) same thing for 3rd party criminal conduct that may happen bc of D’s negligence. “Act of god” if forseebalewill not cut off liability ***where these 3 are unforeseeableto D, then you CAN cut off liability. YOu just always have to ask if within risk aka foreseeable
Damages
Damages:
P needs to prove these. (physical injury/property damage)
Physical = lost income, medical expenses, pain and suffernug
***for purposes of damages eggshell skull principle
Defenses to Negligence:
Contributory Negligence,
Assumption of the risk
comparative fault
Contributory Negligence, abolished in almost all states (P’s failure to use relative care for own safety based on their own standard) recover nothing **in this there is a “last clear chance doctrine” where P can recover despite contribuotry negligence if D had last clear chance to avoid accident but failed to do so.
Assumption of the risk = express vs implied. Express, “ Ill take my chances’ consenting. It completely bars recovery just like contributory negligence
Implied - need “knowing + voluntary” , evidence that P had KNOWLEDGE of risk, and it’s VOLUNTARILY encountered. In jurisdictions that have contributoyr negligence it’s a complete bar. In states that have comparative fault, it is not. It just gets factored into co,parative fault risk %.
comparative fault = reduces damages P can receive. 2 kinds: 1) pure comparative negligence. P always gets some recovery even if they are the main one who caused problems. 2) modified comparative negligence, wher recovery is reduced upto a threshold, once threshold (49 or 50% depending on state) is reach then P completed barred.
Strict Liability:
Animals- you can be liable for negligence, but here, even if acted withall due car eyou can be strictly liable if animal tresspasses or it wild animals cause personal injury(short of conduct wher eperson puts hand in mouth). For pets, no harm caused unless you knew of propoensities.
Abnormally dangeors activities: 1) incapable of not benign high risk, 2) if harm occurs it will be severe 3) needs to beuncommon in community where it takes place.
(i) it creates a foreseeable risk of serious harm even when reasonable care is exercised by all actors; and (ii) the activity is not a matter of common usage in the community.
** This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.
Ex: blasting toxic chemicals, nuclear, —- any precautions taken are irrelevant bc strict liabilty— proximate cause continues ot limit liability here* aka if driving bombs and get in wreck that is not forseebale we anticipate explosion not car wreck
Strict Product Liability (Can sue in negligence, in breach of warranty in contracts, or strict product liability)
Need to prove:
1) merchant seller
(not etsy seller or garage sale)
2) prove product defect
[manufacturing dangerous defect, product design defect aka 402 (a) see other cards, cost effective way to make safer but didnt, RISK UTILITY TEST failure to warn defect, OR CIRCUMSTANTIAL EVIDENCE (essentially res ipsa saying it wouldn’t occur but for a product defect]
3) it’s in same condition now as it was when left sellers hands, or moved ordinary channel of distribution
4) foreseeable use of product (foreseeable as a defect)
Defenses for Strict Product Liability:
– restauraunts bar strict liabilty but allows negligence cases.
Strict Product Liability (Can sue in negligence, in breach of warranty in contracts, or strict product liability)
Need to prove:
1) merchant seller
(not etsy seller or garage sale)
2) prove product defect
[manufacturing dangerous defect, product design defect aka 402 (a) see other cards, cost effective way to make safer but didnt, RISK UTILITY TEST failure to warn defect, OR CIRCUMSTANTIAL EVIDENCE (essentially res ipsa saying it wouldn’t occur but for a product defect]
3) it’s in same condition now as it was when left sellers hands, or moved ordinary channel of distribution
4) foreseeable use of product (foreseeable as a defect)
Warning defense:
Learned intermediary defense:
If you don’t advertise a drug, then you rely on doctor to tell the risks. **so if doctor fails to tell patient it’s not your fault it’s doctors. **so if you want to use learned intermediary defense you CANNOT DO direct-to-consumer advertisements.
–if you decide to advertise directly to consumers then you don’t rely on doctors and you have responsibility to say in ads the main risks!!
Defenses for Strict Product Liability:
Defendent will Never will on a defense saying P was NEGLIEGENT, P had to have been KNOWINGLY encoutered hazards of product (it’s essentially like assumtion of risk)
if States that apply comparative negligence though , a P’s negligence may reduce some liability
– some states can say that “sealed container” where it essentially allows part of chain of commercial sellers to defend saying they had no way t know of issue.
**but if it goes to news they lose this defense…
Exceptions:
Adequate warning will insulate D from struct product liability.
Peculiar use of product is still foreseeable.
If product is only tangential to a servic eyou cannot use this (ex: sue strict liability for bad blood hosptal during surgery no works)
legal theories
NORMATIVE ECONOMIC FEMINISM CRITICAL LEGAL STUDIES SOCIO-BIOLOGICAL OTHER THEORIES FROM HEGEL, LOCKE, AND OTHER PHILOSOPHERS
Cheapest Cost Avoider
the party who “is in the best position to make the cost-benefit analysis between accident costs and accident avoidance costs and to act on that decision once it is made.”
Law & Economics:
Strict products liability produces prices increases and/or product changes in light of the added marginal costs.
Consider the interaction between liability and market forces in the disfavoring of more dangerous products.
LITTLE TIPS Negligence
Need for all by preponderance of the evidence means a greater that fifty percent likelihood.
- Traditional approach of duty of property is the huge chart, but you can say there is a modern trend towards replacing that with RPS.
- When analyzing Duty, 2 part analysis:
- Did the D owe a duty of care? Answer: always cute palsgraf, and theCardozo majority opinion (that you owe duty to persons withing your foreseeable some of danger) vs Andrews minority (that you owe duty only to people foreseeable dangers… and then assess forseeability under proximate cusation).
- What level of care did they owe? Go into categories of duties including negligence per se etc.
bailee/bailor, gratuitous bailment, bailment for hire
Bailee: the person (or custodian) entrusted or given temporary possession of good or chattel
Bailor: person giving or leaving the good or chattel to another person to hold temporarily.
Bailment for sole benefit of bailEE –
Loan bailments or friendly borrowing
Highest duty of care – liability for even slight negligence
Sometimes referred to as “extraordinary care” obligation
Gratuitous bailment – sharing of property by a bailor or the free provision of custodial services by the bailee.
BAILEE owes Only slight duty of care – no liability absent gross negligence. When the bailment is for the sole benefit of the bailee (a gratuitous bailment), the bailOR has a duty to inform the bailee of known dangerous defects. (There is no duty with regard to unknown defects.)
Bailment for hire, in which the bailor and bailee both benefit
Duty of bailee is to show ordinary diligence in the care of the item.
.
Private Nuisance
Private Nuisance
Private nuisance is an interference with a plaintiff’s use or enjoyment of his property. To make a claim for private nuisance, the plaintiff has the burden to show three elements:
1) A plaintiff has a possessory interest in the land;
2) A defendant performed an act that interfered with the plaintiff’s use and enjoyment of his property; and
3) That the defendant’s interference with the plaintiff’s use or enjoyment of land was substantial and unreasonable.[3]
Aesthetic nuisances
Aesthetic objections treated as neither substantial nor unreasonable.
Public nuisance
Substantial interference with a public right.
private parties cannot make a public nuisance claim unless they have suffered a unique harm different from the communitu
A “public right” is any right shared by all members of the public.
No specific number of citizens need to be affected.
“Substantial interference” is an interference that is unreasonable
Government does not have to prove special injury.
Debate over whether special injury should be different-in-kind (as in New York) or different-in-degree (as preferred by many experts)
NIED
Duty Regarding Negligent Infliction of Emotional Distress
A duty to avoid negligent infliction of emotional distress may be breached when
the defendant creates a foreseeable risk of physical injury to the plaintiff. The
plaintiff usually must satisfy two requirements to prevail: (1) plaintiff must be
within the “zone of danger”; and (2) plaintiff must suffer physical symptoms from
the distress.
requires that someone acted negligently. In that sense, there is always a separate negligent component. However, the bystander cases that we discussed like Dillon and Thing were “stand-alone claims” made by people who witnessed an accident. Yet, there is always some negligent act but a party can just bring a NIED. For example, if someone was not negligent in running over a child, there would be no case for seeking recovery on the accident and no damages for seeking recovery for the emotional distress (either direct or observation) from the accident. As for Harry Potter, there were a host of other torts in the disclosure of the bedwetter propensity, including negligence.
What Are the Basic Elements of Attractive Nuisance?
What Are the Basic Elements of Attractive Nuisance?
- A potentially dangerous condition exists on the property
- The landowner created or maintained the potential hazard
- The landowner should have known the condition would attract children
- The landowner should have known the condition could harm children
Castle Doctrine
The Castle doctrine effectively avoid the defense of property question by stating that a person is entitled to use force when anyone enters a dwelling forcefully and unlawfully. It treats such an entry as a threat to the person. Legislative history behind these statutes also tend to speak to the privilege as confirming the use of “self defense.” Otherwise, you are not entitled to use force calculated to cause serious bodily injury or death to protect property. This might occur in Castle doctrine states if it is outside of the home (and the state does not have laws extending the protections to cars or businesses).
Design defect 402a’s vs 2b
*cite both , comment K
3 main tests fo deisgn defect:
402a liability - 2 TESTS:
1- consumer expectation: was something more dangerous than reasonable consumer expected?
- Risk Utility Test: consider risks and whether they outweigh the benefits
- 2b. alternative design
- -jury had to look through eyes of consumer, if it’s more dangerous than they think
Then came,
Restatement 3rd 2(b) = which said a product is defective if option of a different reasonable alternative design (through manufactures eyes) **(makes it harder to actually challenge bc now to challenge this you essentially have to design a new product! )
aka deisgn defect) = looks at whether somethign is more dangerous than the expectations of a reasonable consumer.
–jury had to look through eyes of consumer, if it’s more dangerous than they think
DRUGS:
comment k vs 6c.
comment k defense = can knowck you out of strict liability and sen dyou into negligence.
in restatemetn 2 jurisdictions (but always on exams) in any strict product liability case for drugs you can say that you thin this is a comment k case. For example, if it has benefit to the world but there are bas side effects for some, you can say no strict liability for those it should be neglignefnce
Last clear chance doctirn
contributpry neglignce, if the D had last chance to help helpless orinantntive plaintiff and tey didn’t then P they can still recover. in this jurisdiction.
