Neglignence + STRICT LIABILITY & PRODUCTS LIABILITY Flashcards
- Negligent Elements
a) Duty
- Owed to a foreseeable P
b) Breach
c) Causation
- Actual
- Proximate
d) Damages
Standard to Unkown Trespasser
No Duty of Care
KNown trespasser
Warn of KNOWN Dangers
Licensee (Social guest)
Warn of Known Dangers
Invitee (Business Guest)
Wanr, Inspect, Make safe
Duty of a parent
Menance Standard
Knew or should have known the child was likely to cause harm
DUTY TO RESCUE
Does not exist, unless assumed or SEPCIAL DUTY
Special Duty to rescue
(a) Common Carrier
(b) Innkeeper
(c) Teacher/Student
(d) Employer/Employee
a) Duty of a Child
(1) Other children of same age, Experience, and Maturity ; unless doing something an adult would do, like riding a motorcycle
b) Duty of a Professional
(1) Similar professionals with the same Education, Training, and Customs
c) Breach of Duty
(1) Failure to Comply w Duty of Care
a) Actual Causation
But for”
(2) Almost always met
b) Proximate Causation
(1) Foreseeability
a) Damages
(1) Physical Injury
b) Intervening Cause
(1) Foreseeable Event
c) Superseding Cause
Cuts Off Liability
(1) Unforeseeable Event
(a) Act of God, Intentional Tort, Criminal Act
Negligence Per Se
- Violation of ordinance or Statute
- Injured party is the one the statute was meant to protect
- Injury is of the type the rule was trying to prevent
E. Res Ipsa Loquitur
Inference
(1) Accident would not normally occur unless negligence
(2) D had Exclusive Control of the instrument
F. Attractive Nuisance
- Artificial Condition causing Children to Trespass
- 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
G. Defenses to Negligence
- Pure Comparative Negligence
- Modified/Modern Comparative Negligence
- Contributory Negligence
- Assumption of Risk
- Pure Comparative Negligence
a) P Damages reduced by % of P fault
- Modified/Modern Comparative Negligence
a) P cannot recover if more than 50% at fault
- Contributory Negligence
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
- Assumption of Risk
a) Must have knowledge
b) Must appreciate the danger
c) Must proceed anyway
- Joint and Several Liability
a) 2 or more people cause the accident
b) All D jointly and severally liable for all of the damages
- Contribution
a) Co-D can sue Co-D to get money $$
- Vicarious Liability
a) Employer liable for Negligent Employees
b) Employees acting within scope of Job
- Ind. Contractors
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
A. Strict Liability
- WILD ANIMALS
- Dangerous Activities
a) Excavation
b) Dynamite
c) Toxic Chemicals
d) FIREWORKS
B. Defense to Strict Liability
- Assumption of the Risk
a) Knew and Appreciated the Risk & did it anyway
- Product Liability
a) A product Breaks or does not work correctly
- Product Liability Causes of Action
(1) Negligence
(2) Breach of Warranty
(3) Strict Product Liability
- Product Liability - Negligence
a) Negligence in the chain caused the product to break or not work
- Product Liability - Breach of Warranty
a) Promise about product performance
- Merchantability
a) Product acted as it should
- Fitness for a Particular Product
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
- Commercial Seller
a) In the business of selling the product
- Strict Product Liability
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
- Inadequate /Failure to Warn
a) A type of Defective product under Strict Scrutiny Product Liability
