Page 33 Flashcards
What are the elements of abnormally dangerous activities?
- act/omission involving serious risk of harm
- duty to avoid harm that can’t be eliminated through ordinary care
- breach of duty
- causation
- damages
What are the second restatement’s factors that constitute an extreme hazard for abnormally dangerous activity?
- degree of risk of harm
- gravity of harm
- if reasonable care could eliminate the risk
- inevitability of some risk
- ordinary/unusual nature of activity for the place
- appropriateness of activity to the place
- value of activity versus risk of harm
- if activity is not commonly done
If you store explosives in the desert, is that an abnormally dangerous activity?
Probably not, because of the place
How can the restatement two’s factors that determine an abnormally dangerous activity fail?
- if the activity wasn’t under the defendant’s control
- the type/kind of hazard wasn’t contemplated
How could a type/kind of hazard not be contemplated, and so not be considered an abnormally dangerous activity?
The mink case, or damage from dynamite getting wet and leaking onto the plaintiff’s land (anticipated type of harm would be explosion)
What is the restatement three’s two-part test to abnormally dangerous activities?
Activity has to create a foreseeable and highly significant risk of harm and must not be one of common usage
If an activity is commonly done, does SL for abnormally dangerous activities apply?
No
What is the rationale behind the restatement three’s two-part test for abnormally dangerous activities?
Activity can’t be made safe through reasonable care, so it should pay its own way
If reasonable care will reduce the risk, does SL for abnormally dangerous activities apply?
No
How does SL for abnormally dangerous activities apply to unconventional aviation?
It applies to things like stunt flying, cropdusting, test flights
Why are handguns not within the abnormally dangerous activity doctrine?
Because they are commonly used
What is the one exception to handguns not being part of the abnormally dangerous activity doctrine?
Saturday night specials that are cheap guns that have poor accuracy/reliability, so they have little utility and are subject to SL
What is a defective product?
Any product capable of serious physical harm to persons or property if negligently made
What is the duty of care owed for defective products?
Duty of care in the:
- design
- inspection
- assembly of the product
Who does a duty of care extend to for defective products?
The immediate purchaser and anyone foreseeably affected by the product, like a bystander
Who has the burden of proving the duty of care for a defective product?
P
What are the theories that defective products can be based on?
- intentional tort
- negligence
- SL
How can defective product be based on an intentional tort?
If a product is sold when the defendant knew it was defective/dangerous and he didn’t warn, he can be liable for battery to anyone that is injured by using the product
What is the rationale for holding a seller of a defective product liable under intentional tort?
If a seller believed it was substantially certain an injury would result, it is assumed that he intended the consequences of his act
How can the manufacturer of a defective product be held liable for negligence?
He must compensate for personal injury or property loss because of his failure to act with due care
How do you discuss defective product under negligence theory on an essay?
Go through all of the elements of negligence
What is the best way to prove defective product under negligence theory?
The Learned Hand formula
Liability for defective products extends to who or what?
Anyone within the scope of use, to property, and real property
If you are a supplier, can you be liable for parts that you assembled that were made by others?
Yes
Does a dealer owe a duty to inspect or test products before he sells them?
Not unless he has reason to know they may be dangerous in normal use
If a dealer has reason to believe there might be a problem with the product, what is his duty?
To inspect and test, and then to warn the purchaser of the potential danger
What are the situations that a dealer has a duty to warn about a product?
- if product came from unreliable source
- if the danger isn’t labeled by manufacturer
- if he got complaints from customers about that product
- the goods are the kind a dealer would usually inspect before selling because it is likely a defect would lead to serious injury
If you are a dealer of an item that came from an unreliable source of supply, what is your duty?
You must warn of uncertain quality
If you are a reseller of an item that you purchased in bulk and then distributed in smaller portions, do you have a duty to warn the ultimate consumer?
Yes
If a dealer acts negligently, does that supersede the manufacturer’s liability for a defective product?
No, because the dealer’s failure to inspect is a foreseeable intervening force, so it doesn’t affect the liability of the manufacture
If a dealer actually knows about a defect and sells the product anyway without warning, will that be a superseding negligence to takes away liability from the manufacturer?
Yes, that will break the chain and be seen as an unforeseeable intervening force
What are the damages that can be gotten from a defective product?
- personal injury
- property damages
** BUT purely economic loss isn’t recoverable in negligence
Purely economic loss can only be covered under what theory for defective products?
Breach of warranty
When can punitive damages be awarded under a defective product situation?
If recklessness can be shown
What are the defenses to defective product?
- contributory negligence
- comparative negligence
- assumption of the risk
What are the three requirements that make an act abnormally dangerous?
- creates risk of personal or property harm to others
- risk cannot eliminated by due care
- activity doesn’t usually happen in that area
