Torts Flashcards
Strict Products Liability
(1) D is a commercial seller (manufacturer, distributor, retailer) sold to a foreseeable user
(2) product was defective when it left their control (analyze types of defects)
(3) used in the manner intended and has not been changed
(4) defect caused harm
Types of Defects
- Manufacturing defect
- Design Defect
- Warning Defect
Manufacturing Defect
deviation from intended design AND more dangerous than if properly made
Failure to Warn
not warned of known risks to manufacturer AND risks are not obvious to ordinary user
Design Defect
There was a way to build a product that is (1) safer, (2) more practical, AND (3) similar cost (balance alternative designs against risk)
Products Liability Negligence
Regular negligence analysis
Duty to all foreseeable users
- reaonsbaly prudent supplier standard
- misuse only cut chain if not foreseeable
Products Liability Breach of Warranty
Requires all goods sold by MERCHANT to be fit for their ordinary purpose
Misappropriation of Name/Picture
the unauthorized use of the plaintiff’s likeness or image for profit
False Light
portray someone in a manner that is not correct
Invasion of Privacy
Public Disclosure of Private Facts
taking your records or information and putting it out there
- if newsworthy, not private
Defamation Elements
Slander
Spoken statements - requires special damages unless slander per se
Slander Per Se
- business reputation
- chasity of women
- crime of moral turp
- loathsome disease
Public Official/Figure
Actual malice: reckless disregard of the truth
Private Individuals
Negligent as to the truth (didn’t take the steps to verify)
Respondeat Superior
Vicarious Liability- employer is liable for negligent actions of their employees within the scope of employment
Independent Contractors
Generally not liable for their actions unless
- abnormally dangerous
- non-delegable duty
- dangerous work
Negligent Infliction of Emotional Distress
(a) Near Miss: must be foreseeable and zone of danger and physical symptoms
(b) Bystander: witness to bodily injury inflicted on fam member
(c) Pre-existing relationship: must be foreseeable distress
Pure Comparative Negligence
DEFAULT
If P is also negligent, they will still recover but damages reduced by their % of fault
Partial Comparative negligence
If P is more than 50% at fault, get nothing.
If less than 50%, reduced by own %
Contributory negligence
Damages barred if P contributed even 1%. (unless D had the last opportunity OR D was reckless)
Actual Cause
Proximate Cause
Intervening Cause
Res Ipsa Loquitur
(1) P’s harm would not normally occur unless someone was negligent (2) exclusive control or responsible over those who had control (3) P did nothing to cause the harm
Undiscovered Trespasser
No duty of care owed
Discovered Trespasser
Duty to warn or make safe known unreasonably dangerous concealed artificial conditions
Licensee
Warn or make safe all known concealed dangers
Invitee
- there for economic benefit
- enter land open to the public
warn or make safe all dangers that the landowner knows or should know of (duty to inspect)
Children
duty of care of a child of like age, intelligence, and experience
Several Liability
when multiple defendant’s cause P’s harm, she can recover from each defendant the portion of damages that corresponds with their fault % (their fuck up)
Private Nuisance
Unreasonable interference with teh plaintiffs use and enjoyment
- no special sensitivities
Public Nuisance
An interference that affects the public at large
- Private P needs special unique harm
Intentional Misrepresentation
D intentionally misrepresents:
(1) a material fact
(2) they knew or should have known was false
(3) with intent to induce reliance
(4) plaintiff does rely to their detriment
Negligent Misrepresentation
Negligently made a statement
with a special relationship
plaintiff detrimentally relied upon
