SL and PL

Question 1

620 - 3 prima facie elements of SL in tort?

Answer 1

(1) an act by the D that imposes an ABSOLUTE DUTY to make safe;
(2) the dangerous aspect of the D’s act is the actual and proximate CAUSE of the P’s injury; and
(3) damages

Question 2

621 - LO’s liability for damages caused by wild animals possessed on their property?

Answer 2

The possessor of wild animals (i.e., tigers) is strictly liable for any harm resulting from the animals’ normally dangerous propensities. Tip: LOs will not be SL for domestic animals without known dangerous propensities.

Question 3

622 - abnormally dangerous activity?

Answer 3

An activity is considered abnormally dangerous when it creates a foreseeable and highly significant risk even when reasonable care is exercised.

Question 4

623 - 3 defenses to SL

Answer 4

(i) assumption of risk;
(ii) comparative negligence;
(iii) contributory negligence.

Tip: contributory negligence is only a defense if the P was aware of the risk and their contributory negligence actually caused the accident to happen.

Question 5

624 - 5 theories of products liability

Answer 5

liability basd on
(1) intentional torts (i.e., battery);
(2) negligene
(3) SL
(4) implied warranties
(5) represnetation (express warranty or misrepresentation)

Question 6

625 - Manufacturing Defect

Answer 6

If a product has a manufacturing defect, the product is not in the condition that the manufacturer intended at the time it left their control, i.e., the product did not conform to the manufactuer’s own production standards. [this includes assemnly line errors in productuion.

Question 7

626 - who may be strictly liable in a PL suit?

Answer 7

Any party that causes the product to enter the stream of commerce or markets it into the stream of commerce may be held strictly liable. Thus, RETAILERS and DISTRIBUTORS are liable as well as MANUFACTURERS for defective products.

Question 8

627 - 4 elements of SPL?

Answer 8

(1)the D is a commercial supplier;
(2) the product is defective;
(3) the defective product was the actual and proximate cause of the P’s injury; AND
(4) the P used the product in a foreseeable manner.

[Foreseeable users or BYSTANDERS may sue for a defective product]

Question 9

628 - who may bring a claim for products liability based upon the IMPLIED WARRANTY OF MERCHANTABILITY?

Answer 9

A purchaser (or member of the same household)… may bring a claim against a merchant who deals in goods of a particular kind for the sale of goods that are not fit for their ordinary purpose. [The P may recover for personal injury, property damage, and economic loss]

Question 10

638 - STRICT LIABILITY

Answer 10

In a SL action, the D’s activity imposes an ABSOLUTE duty to make safe, and the D is strictly liable for any harm caused by D’s activity to the plaintiff. [Even if the D exercised reasonable care, the D will not be absolved from liability.]

Question 11

640 - difference between the application of SL between domestic pets and wild animals

Answer 11

WILD ANIMAL: if P’s injury is a result of the wild anima’s natural dangerous propensities, then the D is strictly liable EVEN FOR unforeseeable harms. DOMESTIC PET: the D is NOT liable, unless they know or should have known of the domestic animal’s dangerous propensitys.

Question 12

641 - factors considered when evaluating the ADAs?

Answer 12

(1) if the activity is not a matter of COMMON USAGE in the community; and (2) if it creates a foreseeable and risk of serious injury that cannot be eliminated by the exercise of due care.

Question 13

739 - Who may bring a SL claim for personal injury caused by animals?

Answer 13

Licensees and invitees, but trespassers are generally NOT entitled to damages under SL. [Distinguish from SL for property damage caused by trespassing animals - where owners are SL for any reasonably foreseeable damages on another’s land.]

Question 14

740 - when SL applies, what is the scope of plaintiffs?

Answer 14

In most states, a SL duty is owed to all foreseeable Ps

Question 15

741 - Must harm from an ULTRA-HAZARDOUS activity or animal be foreseeable for SL to apply?

Answer 15

Yes, the harm must be a result of the type of danger anticpated from the UHA or animal.

Question 16

742 - Defective Product

Answer 16

is a product with a design, manufacturing, or warning defect that when used foreseeably, caused a P damages. [Restatement states a product is defective only if it is unreasonably dangerous]

Question 17

743 - 4 reqs for PL claim on neg

Answer 17

(1) D owes the P a duty of care (i.e., the P was a foreseeable user of the product);
(2) the D breaches that duty of care;
(3) actual and proximate cause; AND
(4) damages

Question 18

744 - Implied Warranty under products liability

Answer 18

is an assurance implied in the law from the seller to the buyer that the product purchased will not harm the buyer in the course of normal use. [Typically, this means the UCC warranties of fitness for a particular paurpose and merchantability]

Question 19

745 - Implied Warranty of MERCHANTABILITY

Answer 19

is an implied assurance that the goods will be at least “fair average” quality, i.e., that the goods are fit for the ordinary purposes for which such goods are used. [If the product fails to live up the standards imposed by an IWM at the time it was solde, the D may be liable]

Question 20

746 - effect of a breach of an EXPRESS WARRANTY

Answer 20

when a seller has breached an express warranty, the B may have a direct action against the seller if the breach causes damage or injury.

Question 21

747 - 3 elements for MISREP OF FACT in PL cases

Answer 21

(1) Seller makes a misrep to the B about a material fact concerning the product; (2) with the intent to induce reliance in the buyer; AND (3) the buyer justifiably relies on the representation. [These claims are usually based on SL but may also stem from intentional and neg misrepresentations.]

Question 22

748 - Is contributory neg available as a defense for misrep of fact in a PL claim?

Answer 22

Yes - however, cont neg is NOT a defense to INTENTIONAL misrep.

Question 23

805 - 3 types of SL cases

Answer 23

(1) wild animals;
(2) ultrahazardous or abnormally dangerous conditions;
(3) PL

Question 24

842 - 3 types of product defects

Answer 24

(1) manuf defect - product differs from the intended design and is more dangerous than if made properly
(2) design defect - product creates an unreasonable risk of danger due to its faulty design; AND
(3) Inadequate warnings - manu fails to adequately warn of the non-obvious risks associated with the product’s use.

Question 25

843 - req to prove Strict PL based on manu defect?

Answer 25

(1) the D is a commercial supplier
(2) the product is not in the condition that the manu intended at the time it left manu’s control
(3) the defective product was the actual and prox cause of the P’s injury; AND
(4) the P suffered damages

If the product is not in the condition that the manu intended, it does not conform to the manu’s own product standards.

Question 26

844 - design defect

Answer 26

is a product desinged in such a way that it presents undue risk of harm in normal use.

DD cases will usually be brought under neg claims

Question 27

845 - 3 tests for design defect

Answer 27

(i) risk/utility test
(ii) consumer expectation test;
(iii) reasonable alternative design test

In a jx with a combined apprachm either the risk/utility or CET may be used

Question 28

846 - effect does non-compliance with govt safety standards have on whether a product was defective

Answer 28

the failure to comply with a govt safety standard may render a product defective.

Failure to comply alone will usually NOT render a product defective.

Question 29

847 - effect of a manu or supplier selling products it knows are defective or dangerous

Answer 29

one who sells products that it knows are defective or dangerous (without issuing a proper warning of the danger) may be liable to battery to any person injured through the use or consumption of the product.

This is a tort of battery as applied to a PL action.

Question 30

848 - when may a P bring a PL claim based on upon an express warranty?

Answer 30

if the product is not as represented, causing damage or injury to the purchaser relying on the representation, that purchaser has a direct action against the seller on the K.

Question 31

849 - which mental state is required for a PL action based on misrep?

Answer 31

SL: no mental state req, P only needs to show that the representation was false.

Intentional Misrep: P must show that the misrep was made KNOWINGLY or with RECKLESS disregard for the truth

Neg Misrep: P must show that a reasonable person in the D’s place should have known the misrep was false.

Question 32

850 - 2 theories of PL require affirmative rep by the D?

Answer 32

(1) breach of an express warranty; and
(2) misrepresentation of fact.

Question 33

851 - IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE

Answer 33

IS WHEN:
(1) a seller knows or has reason to know of the buyer’s particulra purpose for which the goods are required; and
(2) the B relies on the seller’s skill or judgement to select suitable goods.

Question 34

852 - 3 defenses to a PL action on neg

Answer 34

(1) contributory neg
(2) assumption of risk
(3) comparative neg

Question 35

853 - in SL actions, what is the difference between contributory and compartive neg defenses?

Answer 35

CONT: if the P voluntarily or unreasonably assumed a known risk, te D is not liable.

COMP: the state applies its own comparative neg rules.

Question 36

854 - 4 defenses to PL action on implied warranties

Answer 36

(1) A/R
(2) CONT neg
(3) failure to give notice of the breach; AND
(4) statute of limitations

Question 37

855 - 3 defenses to a PL based on representations

Answer 37

(1) A/R
(2) CONT neg;
(3) failure to give notice of the breach

Question 38

1349 - PL

Answer 38

is an area of tort law that focuses on liability of a supplier of a product for physical harm to a person or property cauesd by defect in the product

Ds in a PL suit may be from any point of the supply chain (manu, distributor, retailer)

Question 39

1350 - who may be sued on PL under neg theory

Answer 39

Any commercial seller - manu, wholesalers, retailers … may be held liable under a PL claim brought with a neg theory.

Question 40

1351 - may a LL be sued for PL?

Answer 40

No - LLs are not treated as bailors or lessors of the furnishings or fixtures in rental unit, so they may NOT be sued for defects in their units

Question 41

1352 - when may a causal bystander (i.e., someone who didn’t purchase the product) recover in neg in a PL action?

Answer 41

when they prove they were a foreseeable plaintiff

E.g., a pedestsrian struck by a car driven by another person may recover in neg if they can show the car manufacturers neglicence.

Question 42

2047 - when is an express warranty created

Answer 42

(1) S makes an affirmation of fact/promise/description/provides a sample;
(2) which relates to the goods; AND
(3) it becomes part of the basis of the bargain.

Question 43

2048 - when is a D liable for PL basde on misrep

Answer 43

if a product falls short of a representation made to a buyer and the misrep about a material fact was a substanial factor in inducing the purchase.

Question 44

2049 - Strict products liability

Answer 44

Under SPL, a P must show that the D is a commercial supplier, engaged in the production or sale of a defective product that was not altered and is unreasonably dangerous to users, and its use was the actual and proximate cause of the damages.

SPL extends to all foreseeable Ps.

Question 45

2050 - Commercial supplier

Answer 45

any person or entity who is engaged in routinely selling goods of the type

A casual seller is not considered a commercial supplier

Question 46

2051 - what other tort has the same elements as PL claim based in neg?

Answer 46

a neg cause of action in general.