TORTS #2 Flashcards
PRODUCTS LIABILITY
Liability of a manufacturer or supplier of a product to one injured by a product in defective condition unreasonably dangerous. Products liability action may be brought under the following tort theories:
(1) strict products liability, (2) negligence, (3) breach of warranty, (4) misrepresentation, (5) battery,
and also vicariously via Respondeat Superior
Strict Product Liability
STRICT PRODUCTS LIABILITY – one who sells (or places into the stream of commerce) any product in a defective condition unreasonably dangerous is subject to liability for physical harm caused to the consumer or user or his property if (1) the seller is engaged in the business of selling such products and (2) the product reaches the retailer or consumer without substantial changes.
Merchant
Merchant – defendant must be a commercial manufacturer or seller engaged in the business of producing or selling the product (not a casual seller); absolute duty to foreseeable consumers/users.
Not Altered
Not Altered – the product must be expected to, and actually reach the user or consumer without substantial change in its condition after leaving the defendant’s control.
Defects
Defects – three types of defects: manufacturing defect, design defect, failure to adequately warn.
Breach of Duty supplying a product in defective condition unreasonably dangerous, regardless of fault.
- Manufacturing Defect exists when the product departs from its intended design, making the particular unit defective compared to all other units produced. SL for all in distribution chain.
- Design Defect is inherent in the product’s design, and exists when the product’s foreseeable risks of harm could have been reduced or avoided by a cost-effective and feasible alternative design.
defects continued: Failure to Adequately warn
- Failure to Adequately Warn exists where the product’s foreseeable risks of dangers (not obvious to users) could have been reduced or avoided by providing reasonable instructions or warnings.
Strict Products Liability tests
a. Consumer Expectation Test – was product more dangerous than contemplated by RPP?
- Open & Obvious Test – if so, a defense to CET, but not determinative.
b. Risk v Utility Test – does product’s usefulness outweigh its potential dangers?
c. Feasible Alternative Test – is a safer design alternative available at a similar cost?
Foreseeable Plaintiff & Foreseeable Use
Foreseeable Plaintiff & Foreseeable Use – the foreseeable plaintiff must be using the product in a foreseeable fashion when the injury occurred, but need not have been used in its intended manner.
Causation: spl
Causation – the product defect must be both the actual and proximate cause of the harm.
Actual Cause – “but for” the product defect, the harm would not have occurred. Proximate Cause – is satisfied if the consumer’s use of the product is foreseeable, so long as the resulting harm is not too remote or indirect.
Damages:spl
Damages – the plaintiff must show actual harm to their person or property.
Defenses: spl
Defenses – Contributory Negligence bars plaintiff’s recovery only for unforeseeable misuse of
the product; Comparative Negligence reduces plaintiff’s recovery for unforeseeable misuse.
Assumption of Risk requires defendant to prove that plaintiff was (1) warned of or discovered the defect, and (2) voluntarily and unreasonably used or continued to use the product.
Disclaimers of Liability are irrelevant in strict liability and negligence where injury occurred.
NEGLIGENCE - PRODUCTS LIABILITY
NEGLIGENCE cause of action for products liability requires showing that the manufacturer or supplier owed a duty of care, breached that duty, which actually and proximately caused damages. The plaintiff need not prove the product’s unreasonably dangerous defect.
Manufacturers and sellers can be found negligent for (1) manufacturing defects, (2) design defects, (3) failure [breach of duty] to warn, (4) failure [breach of duty] to inspect
Duty of care
Duty of care owed to all foreseeable consumers and users of its product; Cardozo’s “zone of danger”; Andrews’ minority view duty to all.
Duty (1) to supply and sell defective-free products, (2) to inspect and discover defects,
(3) to design and manufacture defect-free products, (4) to adequately warn of inherent
risks and hazards, (5) to provide adequate instructions
Standard of Care
Standard of Care is that of a reasonably prudent manufacturer of the product in question, considering such superior skill or training the defendant has or purports to have
Breach of Duty
Breach of Duty is shown by defendant’s conduct falling below the standard of care expected of a reasonably prudent manufacturer under the same or similar circumstances. Plaintiff may invoke
Res Ipsa Loquitur to establish liability. Also, Calculus of Risk (Hand Formula): B < PL = N.
Causation: negligence
Causation requires that the product defect is both the actual and proximate cause of harm; traditional negligence causation definitions apply. risk outweighs the use
Negligence Damages
Damages of actual physical harm to the consumer’s person or property must be shown.
Economic loss is usually recoverable under breach of warranty actions only
Defenses
Defenses to standard negligence actions are applicable to negligence-based product liability claims.
Disclaimers of Liability are irrelevant in strict liability and negligence where injury occurred.
INTENTIONAL TORTS – BATTERY - PRODUCTS LIABILITY
INTENTIONAL TORTS – BATTERY – An intentional, harmful or offensive contact, causing damages, without consent or privilege. If the defendant intended the results, or knew they were substantially certain to occur, the cause of action will likely be battery. In addition to compensatory damages, punitive damages may be available. The usual intentional tort defenses are available.
Breach of Warranty
BREACH of WARRANTY by immediate seller exists if product was not as promised/contracted.
If the seller made representations or warranties, either expressly or implicitly, about the nature or quality of goods, and the representations were false, buyer may recover, even absent negligence.
Implied Warranty of Merchantability
Implied Warranty of Merchantability flows to the consumer or user by virtue that the seller offered the goods for sale. If breached, defendant is liable, regardless of fault. New products only.
Merchantability implies that the quality of goods are generally acceptable among others selling similar goods, and fit for ordinary use in the manner intended.
Implied Warranty of Fitness for a Particular
Implied Warranty of Fitness for a Particular Purpose flows to the consumer or user if the seller
of goods knows, or has reason to know (1) the particular purpose for which the goods are required, and (2) the buyer is relying on seller’s skill or judgment to select or furnish suitable goods.
Breach, Causation, Damages, and Defenses elements analyzed same as express warranty (below).
Express Warranty (Representation Theory)
Express Warranty (Representation Theory) – flows to the consumer or user if the seller or supplier’s explicit (usually written or tangible) promise or affirmation, made to the buyer, about the product’s nature and quality, becomes part of the “basis of the bargain”.
Breach of Express Warranty
Breach of Express Warranty imposes liability, regardless of fault. Plaintiff must show the
(1) existence of warranty, (2) relationship between plaintiff and defendant, (3) breach of warranty, (4) causal relationship between breach and (5) damages.
breach of warranty: Causation; Damages; Defenses
Causation analysis includes actual and proximate cause, as applied in negligence.
Damages include recovery for economic loss, in addition to personal injury and property damages.
Defenses – Contributory Negligence bars recovery only in negligent representations for plaintiff’s unreasonable conduct after discovery of defect; Comparative Fault reduces recovery.
Assumption of Risk applies only when plaintiff uses the product while knowing of the breach; resulting injuries are deemed not to have been proximately caused by the breach.
VICARIOUS LIABILITY
VICARIOUS LIABILITY – imposes joint and several liability on another based on relationship with tortfeasor who directly caused the injury. C/L, Respondeat Superior (“let the master answer”) or Master Servant Rule. VL for EE’s, JV’s, IC’s via Respondeat Superior w/in scope of employ.
Employee/Employer – VL if within scope of employment, not during “frolic and detour”
(which must be unequivocally unrelated to the employer’s business).
Exception: No VL for intentional torts unless the act furthers the employer’s objectives.
Joint Ventures – Partners are VL for each other’s torts committed within scope of partnership or JV. Joint Venture engages people for common business purpose, mutual right to control activity.
Independent Contractors – VL is generally not imputed for torts committed by IC’s because hirer has no right to control IC’s activity. However, even if IC assumes liability (by agreement “assumes all risks”) it does not insulate the employer from liability to third persons by contractor’s negligence, but allows employer to sue contractor for indemnification.
Misrepresentation of Fact
Misrepresentation of Fact – Seller’s misrepresentation or non-disclosure of a material fact about a product usually results in strict liability if the misrepresentation (1) is false, and (2) induces buyer.
Actual/Proximate Causes
Actual Cause is satisfied if the purchaser’s reliance on the misrepresentation was justifiable, and if that reliance was a substantial factor in inducing the purchase. Reliance need not be victim’s.
Proximate Cause is satisfied if the consumer’s use is foreseeable
Damages
Damages include personal injury and property damage, and may include punitive damages if the misrepresentation was intentional.
Defenses
Defenses – Contributory Negligence is available only for negligent misrepresentations;
Assumption of Risk is not a defense where plaintiff is entitled to rely on the representation
DEFAMATION – Common Law & Constitutional
DEFAMATION – Common Law & Constitutional
A defamatory statement, of or concerning plaintiff, published to a third party who understands that the statement defames the plaintiff, causing damages to plaintiff’s reputation, without consent or privilege. AND, if the statement is of public concern, the plaintiff must show falsity and fault under a constitutional standard. Fault standards: Media defendant – malice; private person – negligence.
malice=punitive
Libel & Slander per se
Libel & Slander per se¬ – damages presumed; categories: loathsome disease, adultery/fornication, criminal conduct/moral turpitude, inappropriate criticism of business/trade/profession, inability or corruption of public office (constitutional).
Defenses
Defenses – consent, truth (C/L: must be entirely true; modernly: substantially true), absolute privilege (judicial/leg/exec proceedings; matrimonial), qualified (duty to communicate + protection of an interest)
Privacy-four Theories
Intrusion into Seclusion , Public Disclosure of Embarrasing Private Facts; False Light; Commercial Misappopropriation of Name and/or Likeness
Intrusion into seclusion
Intrusion into Seclusion – an intentional intrusion, into the plaintiff’s private space, in an offensive manner, causing damages. Defenses – consent, privilege (absolute, qualified)
Public Disclosure of Embarrassing Private Facts
Public Disclosure of Embarrassing Private Facts – widespread disclosure, of confidential information, about the plaintiff, that would be offensive or embarrassing to a reasonable person in plaintiff’s shoes, which is not of legitimate public concern, causing damages. Defenses – consent, privilege (absolute, qualified), newsworthiness (if statement is not false)
False Light
False Light – an embarrassing, and false statement, concerning plaintiff, published to a substantial number of persons, done with fault (malice if media defendant), causing damages. Falsely attributing views the plaintiff would not hold, or actions the plaintiff did not take. Defenses – truth, consent, privilege (absolute, qualified)
Commercial Misappropriation of Name and/or Likeness
Commercial Misappropriation of Name and/or Likeness – unauthorized use, of plaintiff’s identity, for commercial purpose or personal gain, resulting in damages. Defenses – consent, privilege (absolute, qualified); public interest-concern/newsworthiness; incidental use
DAMAGES
DAMAGES
TYPES OF DAMAGES
Nominal Damages; Compensatory Damages; Punitive or Exemplary Damages
Nominal Damages; Compensatory Damages; Punitive or Exemplary Damages
- Nominal Damages – Consist of a token sum (usually one dollar) awarded to a plaintiff who has made out a case showing harm, but failed to prove actual damages.
- Compensatory Damages – General and Special Damages
- Punitive or Exemplary Damages – May be awarded to punish defendant’s reprehensible conduct
COMPENSATORY DAMAGES
COMPENSATORY DAMAGES – compensates victim to make whole/indemnify for damage/harm.
General Damages compensate for damages which flowed as a natural and necessary consequence of the harm suffered, without regard to particular circumstances or plaintiff’s character.
Special Damages compensate for damages which flowed as a natural, but not a necessary consequence of the harm suffered by the plaintiff; considers plaintiff’s particular circumstances.
general
pain and suffering/emotional turbulance
special
measurable: loss of wages, future costs.
