Tort Special Topics Flashcards
What is the risk-utility test?
A legal standard used to determine if a product is defectively designed.
Under the risk-utility test, when is a product considered defective by design?
When the design creates a foreseeable risk of harm and the risk outweighs the benefits of the design.
What factors are considered in the risk-utility test?
Foreseeable risk of harm, benefits of the design, and reasonable alternative design.
Fill in the blank: A product is defective by design when the design creates a _______.
foreseeable risk of harm.
True or False: The risk-utility test only considers the cost of the product.
False.
What is a reasonable alternative design?
A modification that reduces the risk associated with the product’s design.
Fill in the blank: The risk must be balanced against the _______ of the product.
benefits.
True or False: A product can be deemed safe if it has some level of risk.
True.
What does the risk-utility test help determine in product liability cases?
Whether a product’s design is unreasonably dangerous.
What does ‘substantial’ mean in the context of nuisance claims?
Offensive, annoying, or intolerable to a normal person in the community
This term is used to determine if an interference is significant enough to warrant a nuisance claim.
What does ‘unreasonable’ indicate regarding land use in nuisance claims?
Effectively renders the land unavailable for ordinary use or enjoyment by the possessor
This is a key criterion that must be satisfied for a nuisance claim to be valid.
When is an interference not considered substantial?
If the plaintiff’s unusual sensitivity causes him/her to regard the interference as offensive
Normal sensibilities must be taken into account when assessing substantiality.
What example illustrates the interference in a nuisance claim?
The boisterous sounds of the family’s children playing next door
This scenario highlights how typical neighborhood activities can lead to claims of nuisance.
What must the couple demonstrate to prevail on their nuisance claim?
The interference was both substantial and unreasonable
This means that the annoyance must be recognized by individuals with normal sensibilities and must significantly disrupt their use of the property.
Fill in the blank: An interference is not substantial if the plaintiff’s unusual sensitivity causes him/her to regard the interference as _______.
offensive, annoying, or intolerable
What constitutes liability for battery?
If a defendant intends to cause contact with a plaintiff’s person, the defendant’s affirmative conduct causes contact, and such contact is harmful or offensive to the plaintiff.
What is a defense to battery?
Consent (actual, apparent, presumed, or emergency).
Under what conditions is consent presumed under the emergency doctrine?
Consent is presumed when:
* The purpose of the conduct is to prevent or reduce a risk to the life or health of the plaintiff
* The defendant reasonably believes that his/her conduct is necessary to prevent or reduce a risk to the plaintiff’s life or health that substantially outweighs the plaintiff’s interest in avoiding the conduct
* The defendant reasonably believes that immediate action is necessary to prevent or reduce the risk before it is practicable for the defendant to obtain actual consent from the plaintiff
* The defendant has reason to believe that the plaintiff would have actually consented to the conduct if given the opportunity to do so.
What is the definition of Assumption of Risk in tort law?
A defense where a plaintiff voluntarily accepts known risk of harm.
This can apply to situations where the plaintiff has signed a waiver or otherwise acknowledged the risks involved.
What are the two types of Assumption of Risk?
- Express
- Implied
Express assumption involves explicitly waiving the right to sue, while implied assumption occurs through voluntary acceptance of risks.
When is an express assumption of risk considered valid?
When the plaintiff assented to the liability waiver and it was intended to cover the type of conduct that caused the plaintiff’s harm.
This typically involves the plaintiff signing a waiver.
List the public policy limitations that invalidate liability waivers.
- Defendant is the plaintiff’s employer
- Defendant is a hotel or common carrier
- Defendant is a public servant or service
- Defendant has substantially more bargaining power
These limitations ensure that waivers cannot be enforced in situations where fairness is compromised.
Is Assumption of Risk a valid defense if the plaintiff suffered intentional harm?
No.
Assumption of risk does not apply when the harm suffered is intentional.
Can a person assume the risk of another’s tortious conduct by waiving the right to sue?
Yes, if the waiver is valid and covers the type of conduct that caused the harm.
This is contingent upon the waiver not violating public policy.
Fill in the blank: A liability waiver is invalid if it is against _______.
[public policy].
This includes situations where there is a significant imbalance in bargaining power between the parties.
True or False: A waiver signed by a plaintiff can always prevent a lawsuit regardless of the circumstances.
False.
Waivers can be invalidated if they violate public policy or if the defendant falls under specific categories.
What did the woman in the example sign a waiver for?
Assuming all risk of injuries in connection with a bowling class.
The waiver included injuries due to negligence, including an incident where an instructor dropped a ball on her foot.
What can the woman argue against the instructor’s motion for summary judgment?
That enforcing the waiver is against public policy due to a substantial imbalance in bargaining power.
This argument challenges the validity of the waiver in the context of her specific circumstances.
