Pae 41

Question 1

Would Jell-O wrestling that gave people a rash be a foreseeable use of the product?

Answer 1

No, so the defendant wouldn’t be liable for the rash

Question 2

What is a situation where assumption of the risk would not apply?

Answer 2

If there is no practicable alternative to the use, then you can continue to use the product

Question 3

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?

Answer 3

No

Question 4

Assumption of the risk can be a complete defense to a strict liability action, but what does it require?

Answer 4

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

Question 5

When does contributory negligence apply to strict product liability?

Answer 5

Never

Question 6

Can a disclaimer bar or reduce a valid claim for injury to people?

Answer 6

No, but sometimes it can limit property damage liability

Question 7

Disclaimers only apply to what?

Answer 7

Warranty

Question 8

What is supremacy clause/preemption?

Answer 8

Congress has power to override state law when the law directly conflicts with federal law or they want to impose a single regulation/control

Question 9

How do you get product liability on the negligence theory?

Answer 9

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

Question 10

What breach of duty is required for strict product liability?

Answer 10

Similar to strict liability, but P must show a defect existed because of the defendant’s failure to exercise due care

Question 11

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?

Answer 11

A breach

Question 12

If you don’t inspect packaged goods, is that a breach?

Answer 12

Not if they come from a reputable manufacturer or distributor

Question 13

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?

Answer 13

Yes, otherwise it is a breach

Question 14

If a defendant inspects goods but doesn’t find a defect, how is he later judged if there is a defect?

Answer 14

By the reasonable person standard

Question 15

Can assumption of the risk apply if the plaintiff continues to use a known defective product because of economic duress?

Answer 15

No

Question 16

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?

Answer 16

No, because he continued to use this product due to economic duress

Question 17

What is a statute of repose?

Answer 17

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)

Question 18

Many states require employers to get what to cover their employees?

Answer 18

Worker’s Compensation

Question 19

Worker’s Compensation extends to what?

Answer 19

All claims for personal injury that come out of the course of employment, regardless of fault

Question 20

What does Worker’s Compensation usually cover?

Answer 20

Medical expenses and 2/3 of lost wages

Question 21

Are non-economic damages like pain and suffering usually available under Worker’s Compensation?

Answer 21

No

Question 22

Why is Worker’s Compensation sometimes bad for employees?

Answer 22

Because it means they give up the right to sue in tort and recover for their full injuries

Question 23

What is the exception to Worker’s Compensation?

Answer 23

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

Question 24

Can a worker bring a claim against a third-party involved in an injury even if he gets Worker’s Compensation?

Answer 24

Yes, accepting Worker’s Compensation doesn’t mean he waived his rights to sue third parties in tort

Question 25

How does Worker’s Compensation affect payments that an employer makes to the worker?

Answer 25

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

Question 26

What is defamation?

Answer 26

• 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

Question 27

What is included in reputational harm for defamation?

Answer 27

• decrease in respect, regard, or confidence for a person

- inducing disparaging, hostile, or disagreeable opinion/feelings about a person

Question 28

At common-law, what was presumed for defamation?

Answer 28

Falsity was presumed and truth was a defense

Question 29

Who has the burden of proof for the defense of defamation?

Answer 29

• CL: Defendant

- Modernly: Plaintiff

Question 30

What are the different possible defenses for strict product liability?

Answer 30

• unforeseeable misuse
• assumption of the risk
• comparative negligence
• contributory negligence
• disclaimers