Pae 41 Flashcards
Would Jell-O wrestling that gave people a rash be a foreseeable use of the product?
No, so the defendant wouldn’t be liable for the rash
What is a situation where assumption of the risk would not apply?
If there is no practicable alternative to the use, then you can continue to use the product
If you’re deep in the desert and you discover your car has a steering defect, would it be assumption of the risk to continue to use the car to get back to civilization?
No
Assumption of the risk can be a complete defense to a strict liability action, but what does it require?
The plaintiff actually knew of the risk and voluntarily went forth with the activity, it isn’t enough that he reasonably should’ve known of the risk
When does contributory negligence apply to strict product liability?
Never
Can a disclaimer bar or reduce a valid claim for injury to people?
No, but sometimes it can limit property damage liability
Disclaimers only apply to what?
Warranty
What is supremacy clause/preemption?
Congress has power to override state law when the law directly conflicts with federal law or they want to impose a single regulation/control
How do you get product liability on the negligence theory?
Negligence is the theory of recovery. The plaintiff must establish a greater degree of fault that results in liability for:
- selling used goods and not discovering a dangerous defect
- negligently repairing used goods
- leasing real property
- providing services
- franchisors
What breach of duty is required for strict product liability?
Similar to strict liability, but P must show a defect existed because of the defendant’s failure to exercise due care
If a reasonable person would have realized a product was dangerous for normal use, and the defendant fails to inspect and discover the defect, what is that considered?
A breach
If you don’t inspect packaged goods, is that a breach?
Not if they come from a reputable manufacturer or distributor
If packaged goods come from an unknown or questionable source, or the defendant knows the source has had customer complaints, must he inspect the goods?
Yes, otherwise it is a breach
If a defendant inspects goods but doesn’t find a defect, how is he later judged if there is a defect?
By the reasonable person standard
Can assumption of the risk apply if the plaintiff continues to use a known defective product because of economic duress?
No
If the plaintiff keeps driving his faulty car because he has to go to work so he can pay his bills, is that considered assumption of the risk?
No, because he continued to use this product due to economic duress
What is a statute of repose?
Says that no action can be brought on a defective product claim more than a certain number of years after the product’s initial distribution (usually 10 to 12 years)
Many states require employers to get what to cover their employees?
Worker’s Compensation
Worker’s Compensation extends to what?
All claims for personal injury that come out of the course of employment, regardless of fault
What does Worker’s Compensation usually cover?
Medical expenses and 2/3 of lost wages
Are non-economic damages like pain and suffering usually available under Worker’s Compensation?
No
Why is Worker’s Compensation sometimes bad for employees?
Because it means they give up the right to sue in tort and recover for their full injuries
What is the exception to Worker’s Compensation?
If the injury came from the employer committing an intentional tort and wasn’t suffered in the course of employment, then Worker’s Compensation can be escaped
Can a worker bring a claim against a third-party involved in an injury even if he gets Worker’s Compensation?
Yes, accepting Worker’s Compensation doesn’t mean he waived his rights to sue third parties in tort
How does Worker’s Compensation affect payments that an employer makes to the worker?
Employer usually has a lien on the worker’s tort recovery to recover for payments made to the worker, and if worker chooses not to sue a third-party, the employer can do it on his behalf
What is defamation?
- a falsely defamatory statement
- made by the defendant
- that is of and concerning the plaintiff
- published to a third person
- and results in damage to the plaintiff
What is included in reputational harm for defamation?
- decrease in respect, regard, or confidence for a person
- inducing disparaging, hostile, or disagreeable opinion/feelings about a person
At common-law, what was presumed for defamation?
Falsity was presumed and truth was a defense
Who has the burden of proof for the defense of defamation?
- CL: Defendant
- Modernly: Plaintiff
What are the different possible defenses for strict product liability?
- unforeseeable misuse
- assumption of the risk
- comparative negligence
- contributory negligence
- disclaimers
