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Torts > Neglignence + STRICT LIABILITY & PRODUCTS LIABILITY > Flashcards

Neglignence + STRICT LIABILITY & PRODUCTS LIABILITY Flashcards

1
Q
  1. Negligent Elements
A

a) Duty
- Owed to a foreseeable P
b) Breach
c) Causation
- Actual
- Proximate
d) Damages

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2
Q

Standard to Unkown Trespasser

A

No Duty of Care

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3
Q

KNown trespasser

A

Warn of KNOWN Dangers

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4
Q

Licensee (Social guest)

A

Warn of Known Dangers

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5
Q

Invitee (Business Guest)

A

Wanr, Inspect, Make safe

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6
Q

Duty of a parent

A

Menance Standard
Knew or should have known the child was likely to cause harm

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7
Q

DUTY TO RESCUE

A

Does not exist, unless assumed or SEPCIAL DUTY

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8
Q

Special Duty to rescue

A

(a) Common Carrier
(b) Innkeeper
(c) Teacher/Student
(d) Employer/Employee

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9
Q

a) Duty of a Child

A

(1) Other children of same age, Experience, and Maturity ; unless doing something an adult would do, like riding a motorcycle

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10
Q

b) Duty of a Professional

A

(1) Similar professionals with the same Education, Training, and Customs

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11
Q

c) Breach of Duty

A

(1) Failure to Comply w Duty of Care

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12
Q

a) Actual Causation

A

But for”
(2) Almost always met

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13
Q

b) Proximate Causation

A

(1) Foreseeability

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14
Q

a) Damages

A

(1) Physical Injury

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15
Q

b) Intervening Cause

A

(1) Foreseeable Event

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16
Q

c) Superseding Cause

A

Cuts Off Liability
(1) Unforeseeable Event
(a) Act of God, Intentional Tort, Criminal Act

17
Q

Negligence Per Se

A
  1. Violation of ordinance or Statute
  2. Injured party is the one the statute was meant to protect
  3. Injury is of the type the rule was trying to prevent
18
Q

E. Res Ipsa Loquitur

A

Inference
(1) Accident would not normally occur unless negligence
(2) D had Exclusive Control of the instrument

19
Q

F. Attractive Nuisance

A
  1. Artificial Condition causing Children to Trespass
  2. Elements
    a) Owners knows of child trespassers
    b) Unreasonable Risk of harm
    c) Children cannot appreciate the risk
    (1) Age
    (2) Maturity
    d) Cost of remedy is less than the Danger
    e) Owner Fails to make safe
20
Q

G. Defenses to Negligence

A
  1. Pure Comparative Negligence
  2. Modified/Modern Comparative Negligence
  3. Contributory Negligence
  4. Assumption of Risk
21
Q
  1. Pure Comparative Negligence
A

a) P Damages reduced by % of P fault

22
Q
  1. Modified/Modern Comparative Negligence
A

a) P cannot recover if more than 50% at fault

23
Q
  1. Contributory Negligence
A

a) P cannot recover if at fault
b) **Last Clear Chance Exception
(1) D had clear last chance to avoid the accident
(2) D did not do so
(3) P can recover

24
Q
  1. Assumption of Risk
A

a) Must have knowledge
b) Must appreciate the danger
c) Must proceed anyway

25
Q
  1. Joint and Several Liability
A

a) 2 or more people cause the accident
b) All D jointly and severally liable for all of the damages

26
Q
  1. Contribution
A

a) Co-D can sue Co-D to get money $$

27
Q
  1. Vicarious Liability
A

a) Employer liable for Negligent Employees
b) Employees acting within scope of Job

28
Q
  1. Ind. Contractors
A

a) Not liable unless;
(1) Abnormally Dangerous Activity
(2) Non-Delegable Duty
(a) Duties that involve safety or benefit of the Public
(3) Indemnification
(a) May seek indemnification from whoever actually caused the damage

29
Q

A. Strict Liability

A
  1. WILD ANIMALS
  2. Dangerous Activities
    a) Excavation
    b) Dynamite
    c) Toxic Chemicals
    d) FIREWORKS
30
Q

B. Defense to Strict Liability

A
  1. Assumption of the Risk
    a) Knew and Appreciated the Risk & did it anyway
31
Q
  1. Product Liability
A

a) A product Breaks or does not work correctly

32
Q
  1. Product Liability Causes of Action
A

(1) Negligence
(2) Breach of Warranty
(3) Strict Product Liability

33
Q
  1. Product Liability - Negligence
A

a) Negligence in the chain caused the product to break or not work

34
Q
  1. Product Liability - Breach of Warranty
A

a) Promise about product performance

35
Q
  1. Merchantability
A

a) Product acted as it should

36
Q
  1. Fitness for a Particular Product
A

a) Widget only works for particular purpose
(1) Ex: hurricane windows can withstand a certain wing speed
(a) Tires can only withstand a certain speed

37
Q
  1. Commercial Seller
A

a) In the business of selling the product

38
Q
  1. Strict Product Liability
A

a) Defective Product
b) Sold by Commercial Seller
(1) Commercial Seller = In the business of selling the product
c) Foreseeable user
d) Used in the Manner it was intended

39
Q
  1. Inadequate /Failure to Warn
A

a) A type of Defective product under Strict Scrutiny Product Liability

Torts (7 decks)

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