Torts Flashcards
What is the Assumption of Risk?
A plaintiff is barred from recovering damages if they voluntarily and knowingly assumed the risks associated with a dangerous activity, provided the risks were fully understood and appreciated at the time of the activity or use.
What is comparative fault?
A plaintiff’s recovery may be reduced in proportion to their degree of fault in causing or contributing to their own injuries.
When can a P recover for misrepresentation?
To recover for misrepresentation, a P must show that a (1) false statement of past or existing fact was made by D, (2) the statement was made with an intention to induce reliance on the statement, and (3) the P did in fact rely on the statement
What is a breach of warranty?
A P may recover for warranty under either an express or implied warranty.
A P may recover for express warranty when a D makes explicit statements concerning the product and the product fails to conform to those standards.
A warranty is implied in the sale of goods that the goods conform to the ordinary expectations of ordinary customers.
When is there a failure to warn?
A product is defective due to failure to warn if the manufacturer does not provide adequate warnings or instructions about non-obvious risks that are foreseeable and associated with the product’s use, making it unreasonably dangerous to consumers.
What is the Consumer Expectation Test?
A design defect can be shown where a product fails to conform to the safety expectations of an ordinary consumer.
What is the Alternative Design Test?
A product is defective in design if the risk of harm could have been reduced by a reasonable alternative design.
What is the Risk/Utility Test?
A design defect can be shown where a product’s utility is outweighed by a risk of harm.
What is a design defect?
A product contains a design defect when it contains a common feature with other products in the sale line that make it unreasonably dangerous to consumers.
There are three tests to consider a design defect: (1) the risk-utility test , (2) the availability of a reasonable alternative design, and (3) the consumer expectation test.
What is a manufacturing defect?
A P can show that there was a manufacturing defect when the product deviates from the intended design.
What is required for a Strict Product Liability Claim?
To recover, a P must show: (1) D was a commercial supplier, (2) the product was defective, (3) actual cause, (4) proximate cause, and (5) damages.
A manufacturer can be held strictly liable for harm caused by a product if the product was defective and unreasonably dangerous.
When is an equitable lien available?
An equitable lien is available when (1) a defendant wrongfully acquires funds traceable to a specific property, and (2) a constructive trust is impractical or unavailable.
When does Equity support recovery?
Equity supports recovery when the D’s misconduct warrants restitution to achieve fairness.
What is traceability?
Traceability requires proving P’s funds directly acquired the property.
Under the Lowest Intermediate Balance Rule, recovery is limited to the lowest balance in a commingled account after withdrawals of misappropriated funds.
If the account balance reaches $0, misappropriated funds are extinguished, and later deposits cannot be traced to P’s original funds.
When is a Constructive Trust required?
A constructive trust requires (1) wrongful acquisition of property, (2) traceability of the property to P’s funds, and (3) equity favoring recovery.
