Torts Flashcards
Strict Liability
Elements
(i) the product was defective (in manufacture, design, or failure to warn),
(ii) the defect existed at the time the product left the defendant’s control, and
(iii) the defect caused the plaintiff’s injuries when the product was used in an intended or reasonably foreseeable way
Manufacturing Defect
deviation from what the manufacturer intended the product to be that causes harm to the plaintiff
Implied warranty of merchantability
warrants that the product being sold is generally acceptable and reasonably fit for the ordinary purposes for which it is being sold.
Multiple D theories for casuation
substantial factor test
market share liability
alternate cause doctrine
concert of action
market share liability
If the plaintiff’s injuries are caused by a fungible product and it is impossible to identify which defendant placed the harmful product into the market, the jury can apportion liability based on each defendant’s share of the market.
alternate causation doctrine
If the plaintiff’s harm was caused by:
(i) one of a small number of defendants,
(ii) each of whose conduct was tortious, and
(iii) all of whom are present before the court, then the court may shift the burden of proof to each individual defendant to prove that his conduct was not the cause in fact of the plaintiff’s harm.
Concert of action
If two or more tortfeasors were acting pursuant to a **common plan or design **and the acts of one or more of them tortiously caused the plaintiff’s harm, then all the defendants will be held jointly and severally liable
hardened plaintiff and private nuisance
Private nuisance is a substantial and unreasonable interference with the use and enjoyment of the plaintiff’s property.
An interference is substantial if a normal person in the community would find the interference offensive, annoying, or intolerable—even if the plaintiff is not personally bothered by it.
guest statutes. - driving
the only duty that automobile drivers owe to their guests is to refrain from gross or wanton and willful (i.e., reckless) misconduct.
minority
NPS minority approach
the violation of a statute or ordinance is merely evidence of negligence that creates a **rebuttable presumption **that the defendant breached a duty of care
misappropriation of the right to publicity arises when a defendant:
(1) uses the plaintiff’s name, likeness, or an item closely associated with the plaintiff without authorization, (2) obtains a benefit, and (3) causes the plaintiff an injury.
Attractive nuisance doctrine
the condition exists where the land possessor knows or should know that children are likely to trespass
the land possessor knows or should know that the condition poses an unreasonable risk of serious bodily harm or death to children
children of the trespasser’s age cannot reasonably discover or appreciate the risk and
the risk outweighs the condition’s utility and the burden of eliminating the risk.
