Strict Liability

Question 1

Strict Liability Prima Facie Case

Answer 1

1. Absolute duty to make safe
2. Dangerous nature of activity was actual and proximate cause of injury.
3. Damage to person or property

Question 2

Animals

Answer 2

1. Trespassing animals - owner strictly liable except for household pets
2. Wild animals - strictly liable
3. Domestic animals - S/L if knowledge - i.e. Fido has bit before

Question 3

Defenses to S/L

Answer 3

1) knowing contributory negligence - complete defense
2) Unknowing contributory negligence - no defense

In a comparative negligence state, BOTH knowing and uinknowing can be asserted against the recovery

Question 4

Fault and S/L?

Answer 4

S/L has NOTHING to do with what D did wrong - ignore conduct (conduct is fault and that is a negligence theory, not S/L)

Question 5

Products Liability

Answer 5

Threshold inquiry: Who can be held liable? - ANY commercial supplier as long as you establish two requirements.

Question 6

Two requirements to be held liable for Products Liability

Answer 6

1) The defect causing the injury must have existed at the time the product left THAT D’s control.
2) Plaintiff needs a workable theory of either S/L or negligence

Question 7

The Rule to show D’s control?

Answer 7

There is an inference the defect existed when it left any given D’s control if since tht time the product has moved through normal channels of distribution. very pro P, not hard to show

Question 8

Negligence Theory

Answer 8

1) Focus is on D’s conduct
2) Negligent condcut possibilities include (1) negligent design, (2) negligent manufacture, (3) negligent warnings, and (4) negligent inspections
* *Res Ipsa is available**

Question 9

Neg Theory - Who can be plaintiff?

Answer 9

Anyone who is within the forseeable zone of risk including bystanders.

Question 10

Neg Theory - Who can be a defendant?

Answer 10

1) manufacturers - almost always

2) retailers/wholesalers - almost never

Question 11

Strict Liability Theory

Answer 11

1) Focus is NOT on D’s conduct

2) S/L Test - unreasonably dangerous condition

Question 12

S/L Theory - who can be plaintiff?

Answer 12

Same as neg theory - Anyone who is within the foreseable zone of risk including bystanders.

Question 13

S/L Theory - who can be defendant?

Answer 13

EVERYONE - Manufacturers, retailers and wholesalers - indemnification up the chain applies.

Question 14

Exam Favorits (Prod Liab)

Answer 14

1) Warnings
2) The feasible alternatives approach
3) Products use incidental to services

Question 15

Warnings (Prod Liab)

Answer 15

Adequate warnings will generally insulate from liability.

Question 16

Feasible Alternatives (Prod Liab)

Answer 16

General warnings rule holds true UNLESS D could have cured defect for a minor cost relative ot hte risk involved and D should have, the warning will not save him.

Question 17

Product Incidental (Prod Liab)

Answer 17

The S/L theories are not available - fault based, go to negligence.

Question 18

Private Nuisance

Answer 18

Substantial, unreasonable, interference with one’s use and enjoyment of land.

Question 19

Public Nuisance

Answer 19

Act which unreasonably interferes with health, safety or property rights of the community.

Question 20

Who can bring nuisance claim?

Answer 20

Private - P must have possession or right to immediate possession.
Public - private person can only recover if he/she has suffered unique damage not suffered by the general public.

Question 21

Essence of Nuissance

Answer 21

Involves the balancing of competing interests

Question 22

Defenses to Nuisance

Answer 22

1. Legislative authority
2. Conduct of others
3. Contributory negligence (usually not available unless using a negligence theory)
4. Coming to the nuisance - this is allowed.

Question 23

General Considerations for all Torts Cases

Answer 23

1. Vicarious Liability
2. Multiple Defendant issues
3. Survival and Wrongful Death
4. Tortious interference with family relationships
5. Tort immunities

Question 24

Vicarious liability

Answer 24

General Rule - ER’s are liable for torts of EE’s committed within the scope of employment. Generally no liability for independent contractors.
Intentional torts generally NOT w/in scope unless (i) force authorized, (ii) friction is generated by this type of employment, (iii) EE is trying to further ER’s business.

Question 25

Abnormall Dangerous Activity (for S/L)

Answer 25

Activity that creates a foreseeable risk of serious harm even when reasonable care is exercised by all actors; and the activity is not a matter of common usage.

Question 26

Tort Immunities

Answer 26

Governmental - Immunity is available for governmental functions; it’s not available for proprietary functions.
To determine if function is proprietary ask would private business normally perform function.

Question 27

Automobile vicarious liability

Answer 27

General rule, auto owners are NOT vicariously liable for the torts of other drivers EXCEPT - family car doctrine (household member using with permission) and Permissive use doctrine - anyone using with permission.

Question 28

Parents/Children vicarious liability

Answer 28

Parents generally NOT liable for torts of their children EXCEPT intentional torts up to a certain amount.