TORTS

Question 1

Negligence

• Duty of Care
  
  • Affirmative Duty
  • Duty to Control Third Parties
  • Standard of Care (DLC PAID)
    
    • Default, Landowners - I/L R/ship, Children
    • Prof., Auto Drivers, Innkeeper / CC, Doctors
  • Negligence Per Se
• Breach
  
  • Res Ipsa Loquitur
• Causation: AC & PC
• Damages
• Defenses

Answer 1

A pfc for neg requires DBCD.

1. Duty: U/ maj, D is liable to Ps w/in zne of fores harm. U/ min, D who bchs a dty to someone bchs a dty to anyone (fores or nt) hrmd as a result of brch.
   
   1. Affirmative Dty: Gnrly, no dty to act affirmatively. H/e affirmative dty to act will arise if … (a) preexisting r/ship b/w pties, (b) D pt P in peril, (c) D hs u/taken to render aid or rescue P, or (d) dty is imposed by law. The Firefiighters Rule bars injury claims by public servants tht result frm risks unique to P’s inherently dangerous work.
   2. Control 3Ps: Gnrly, no dty to cntrl 3P acts to avoid injury to a P, except whn D had actual opp, ability, & authority to cntrl 3P acts.

Question 2

Negligence

• Duty of Care
  
  • Affirmative Duty
  • Duty to Control Third Parties
  • Standard of Care (DLC PAID)
    
    • Default, Landowners - Invitees/Licensee R/ship, Children
    • Professionals, Automobile Drivers, Innkeeper / Common Carriers, Doctors
  • Negligence Per Se
• Breach
  
  • Res Ipsa Loquitur
• Causation
  
  • Actual Cause
  • Proximate Cause
• Damages
• Defenses

Answer 2

Default: Gnrly, SoC imposed is tht of a reas prudnt psn u/ th circs as measrd by an objve stndrd. _{H, X ___so he had to act as a reas___ u/ th circs.}**_{T, X’s SoC ws tht of a reas __.}

Foll community customs & stat requirements may be relevant as to what conduct is reas, but are not dispositive. Stat compliance does nt est reas care or freedom from fault; it is merely ev of reas care.

Question 3

NEGLIGENCE

(1) Duty of Care

• Standard of Care - Landowners - Invitee R/ship
• Standard of Care - Landowners - Licensee R/ship

Answer 3

Invitees: The LOs SoC to an invitee req (1) using reas care u/ circs in conducting activities on land, (2) warning of knwn dngrous cndtions, (3) cndting reas inspctions of prop, and (4) remedying dngrous cndtions. A “LO” is an o/occ/poss of land. An “invitee” is someone who enters land held open to the public, or by invitation for purposes of th LO.

Licensees:

Question 4

NEGLIGENCE

(1) Duty of Care

• Standard of Care - Professional
• Standard of Care - Child

Answer 4

Prof: A prof. prsn is expected to exhibit th same skill, knwldge, & care as anther practitioner in same community.

Child: Gnrly, SoC imposed is tht of a reas prdnt prsn u/ th circ’s as measured by an obj stndrd. A child must act as a reas prsn of like age, intell, edction, and exprience. H/e whn a C engages in an adult activity, he mst conform to same SoC as an adult engaged in such activity.

Question 5

NEGLIGENCE

(1) Duty of Care

• Standard of Care - [Common Carrier/Innkeeper] - Guest
• Standard of Care - Automobile Driver - Guest
• Standard of Care - Medical Doctors

Answer 5

U/ CL, and modernly in some jxs, [common carriers / innkeepers] are hld to the highest DoC, liable for slight neg, consistent w/ practical business operation.

U/ the maj, SoC imposed on autmbile drivers towards guests and paying passengers is that of a reas prudent person u/ circs. U/ the min a guest may nt recover based on neg. Guest mst est D acted willfully and wantonly according to guest statutes.

A medical dr is hld to degree of care & skill of av qual practitioner. Most cts analyze doc’s cndct u/ national stndrds rather thn those in the doc’s community. Dr hs a dty to obtain informed consent frm patient b4 treatment, which req dr to disclose risks of treatment tht a reas patient wld want to know.

Question 6

Negligence

• Duty of Care
  
  • Standard of Care
    
    • DCL PAID
  • Negligence Per Se
• Breach
• Causation
• Damages
• Defenses

Answer 6

SoC/Breach - NPS: Violation of a statte is NPS whn a statte defines the stand. of reas condct. A P may est a dty & brch of dty by proving:

(1) he is in class of pple intended to be protected by statute,
(2) intrst and harm are the type intended to be protected, and
(3) harm materializes in manner tht ws of legislative concern.

_{There are 2 exceptions when the standard of care will not be substituted for the statute even when the above test is met: when the Ds <em><strong>compliance with the statute would have been more dangerous that the violation of it</strong></em>; and <strong><em>when compliance with the statute is impossible</em></strong>.}

Question 7

Negligence

• Duty of Care
  
  • Standard of Care
  • Nelgigence Per Se
• Breach
  
  • ​Res Ipsa Loquitur
• Causation
  
  • Actual
  • Proximate
• Damages

Answer 7

Breach: A D bches dty whn his cndct falls short of applic SoC owd to P.

Res Ipsa Loquitur: In absence of direct ev, D’s brch may be inferred under RIL doc, if P prves accidenct was

(1) kind tht ord does nt occur w/out neg
(2) caused by an agent or instrumentality w/in D’s exclusive cntrl, and
(3) not due to plaintiff’s action.

Question 8

Negligence

• Duty of Care
  
  • Standard of Care
  • Negligence Per se
• Breach
  
  • Res Ipsa Loquitur
• Causation
  
  • Actual Cause
  • Proximate Cause
    
    • ​Eggshell Skull Rule
• Damages

Answer 8

Causation P mst prve D’s acts are AC (c-in-f) and PC (legal) of th P’s injury.

• AC If P’s injury will nt occur but for D’s acts, D is AC of injury. If thre are multiple causes of injury, D is AC whn D’s acts are a subs factor in causing injury. _{H, bt fr X’s [act], Y [injury]. Arguably multiple causes lead to [injury]. H/e X’s [act] was a sub factor in cusing Y’s [injury] b/c the injury would not have occured if X did not… Though multiple causes contributed to the injury, X would not escape liability.}
• PC exists whn P’s injury is a fores reslt of D’s acts. Whn multiple forces contrib to injury, 1 examines other events to determine whther thy are intervning or suprcding._{H, Y’s [injury] (was/not) foresee from Xs [act]. [#] events were in the chain of causation: (1)… The supersedening events broke the causal connection b/w Xs [act] and Ys [injury] b/c not foreseeable to X that when he [did act] [injury] was foreseeable to occur. Thus, Xs act did/did not proximately cause Ys damages.}
  
  • ​Eggshell Skull Rule: A D is liable to th full extent of the Ps injuries due to preexisting medical condition or vulnerability, even if the extent is unforseeable.

Question 9

NEGLIGENCE

(4) Damages

• Compensatory Damages
• Punitive Damages
• Mitigation

Answer 9

Dgs Neg req prsnl injury or prop dgs. Claims for purely economic loss are generally not allowed.

Comp Dgs must be causal and certain.

Personal = P may recover special & general dgs, incl lost earnings, medical $, & pain & suffering. Foreseeabiltiy of extent of harm gnrly irrelevant b/c D takes P as he finds P.

Property = P may recover diff b/w FMV of prop immediately b4, or after, injury, or repair costs if costs do not exceed the prop value.

Punitive - may recover if clear & convincing ev est D acted w and w, recklessly, or with malice. _H,T

Mitigation P has duty to take reas steps to mitigate dgs; failure to do so precluds recov of add harm causd by injury aggravation. _<em>H,T</em>

Question 10

Negligence

• Duty of Care
• Breach
• Causation
• Damages
• Defenses
  
  • (paragraph for when none arise b/c no fault)

Answer 10

Defenses

Contributory / comparative neg, and assumption of risk require fault by the P. _{H, X did nt contribute to the [describe injury], or was aware of the [describe danger] to knowingly and voluntarily assume the risk of harm. Thus, no defenses applied.}

Question 11

Defenses

• Contributory/Comparative Negligence (CN)
• Assumption of Risk
• Indemnity
• Contribution

Answer 11

CN deprives a P from dgs whn she contributed to the legal cause of injuries by failing to exercise reas care for her own safety.

• At CL, CN is a complete bar to recovery.
• In “pure” CN jx, a P’s CN reduces recovery of dgs by proportion P’s fault bears to total harm.
• In “partial” CN jx, P’s recovery is barred if she > 50% at fault.

Ass of Risk: is a sbjctve stndrd, barring a P frm recovery whre she is aware of danger, & assumes risk of harm arising frm D’s acts (1) knwingly, and (2) voluntarily. _H,T

Question 12

Negligence

• Duty of Care
• Breach
• Causation
• Damages
• Defenses
  
  • Comparative/Contributory Negligence
  • Aswsumption of Risk
  • Indemnity
  • Contribution

Answer 12

_{<em>Only applies when multiple defendants:</em>}

Indemnity: A tortfeasor who discharges liability is entitled to indemnity whn (1) actual wrongdoer has a primary duty by (a) K, (b) vicarious liability, or (c) strict prdcts liability, and (2) tortfeasor fails to discover or prevent actual wrongdoer’s misconduct.

Contribution: A D who pays mre thn its apportioned share of dgs, has a contribution claim against other tortfeasors jointly and severally to the same P.

Question 13

Negligent Hiring, Supervision, Retention

• Duty
  
  • ​Standard of Care
• Breach
• Causation
  
  • ​Actual
  • Proximate
• Damages

Answer 13

A pfc for neg req: D, B, C, D. An e’er may be liable for neg hiring, supervision, or retention of an e’ee.

• Dty: U/ maj… U/ min. _{H, u/ the maj, S owed a dty to people w/ FZofD, sch as P, who might be injured by a student like G when S h, s, or r teacher who did not supervise his stdents. U/ min, P was fores p b/c she cld be inj whn S h,s,or r t who did not prevnt student from leaving school. T, S owed P a duty}
  
  • ​Standard _{S was to act with reas care u/ the circ in hiring, sup, or retaining employees.}
• Bch: _{<em>S was aware G’s teacher did _, but did nothing. S did not meet sofc b/c a reas prudnt s u/ circ wld investigate t’s perf, and terminate his empl if fell below his soc.</em>}
• C
  
  • ​AC: _{S’s failure to use reas car was the ac of Ps’ injuries b/c but for S’s brch, P wld not have been injured.}
  • PC: _{<em>Ss bch was pc b/c acts of G and P were not superceding. Ws forse to S that if did nt reas h,sup, or ret tchers, students sch as G wld leave school, n nt condct themselves acc to rules, causing inj to someone in Ps position.</em>}
• D

Question 14

Common Law Defamation A P may bring

1. Defamatory LanguageLang that dim
2. Of an concerning the PA reas p
3. Published to a 3PPub of DL is
4. Damages the P’s reputation
   
   1. Libel
   2. Slander

US Constitution Defamation

Answer 14

A P may brng a def action (1) if th D’s defam langge, (2) of or concrnng th P, (3) is pub to a 3P who u/stands its defam nature, (4) damages the P’s reputation.

1. DL: Lang tht diminishes respect or GW towards, or deters others from ass. w/ a P, is defam. An opinion is actionable if D implies a factual basis for tht opinion. _H,T
   
2. OOCP: A reas prsn mst believe th DL refers to the P.
   
3. Pub: of DL is intntionl or negligent comm to a 3P (someone other thn P) who u/stands it. Each rep of DL is a separate pub. _H,T
4. Dgs P’sRep: _{<em>(do either libel (written) OR slander (oral))</em>}
   
   1. Libel: Special dmgs are presumed when def involves libel. Special dgs are awarded for econ loss due to def. [Radio programs are treated as libels if suff perm, premeditated, and broadly disseminated.]_H,T
   2. Slander: In a Sl action, special dmgs mst be proven, unless a def s/ment is slander per se, relating to (1) abilities in a profession, trade, bus, (2) loathesome disease, (3) unchaste behaviors, or (4) crime of moral turp or pun’able by imprison._H,T

In conclusion (conclude on common law defamation

Question 15

Common Law Defamation

1. Defamatory Langugage
2. Of or concerning the plaintiff
3. Published to a 3P
4. Damages the plaintiff’s reputation
   
   1. Libel
   2. Slander

US Constitution - Public Concern

1. Fault
   
   1. ​Public Figure
   2. Private Person
2. Falsity

Answer 15

USCx - Pub Concern: U/ USCx, if defam s/ment invlves a pub concrn, P mst prve D’s (1) fault reg (2) falsity of s/ment. _H,T

• Fault: The stndrd for est’ing a D’s fault depnds on P’s status as a pub or priv psn. Whn P is a pub official or pub fig, P mst prove (1) actual malice of the D, and (2) falsity of the defam language.
  
  • Pub Figure: A PF is (1) official invlvd in pub affairs, (2) psn who achievs pervasive notoreity tht he becomes a PF for all purpss, or (3) psn who voluntarily injects into a partic. pub controversy tht he becomes a PF for the controversy, but remains a priv fig for other matters. _H,T
    
    • Malice: A PF mst prove D’s actual malice, meaning th D (1) knws defam langge is flse, or (2) rcklesly disregrds its truthfulness. _H,T
  • Priv Figure: A priv fig P prves the D’s fault by est (1) neg or (2) malice.
    
    • Neg: Neg req (1) D, (2) B, (3) C, and (4) D. _H,T
    • Malice: A priv fig mst prve D’s actual malice. Mal means the D (1) knws defam langge is false, or (2) rcklesly disregrds its trthflness. _H,T

In conclusion, (conclude on constitutional defamation).

Question 16

Common law Defamation

US Constitution - Public Concern

Defenses

1. Consent
2. Truth
3. Absolute Privilege
4. Qualified Privilege
   
   1. ​Abused

Answer 16

Consent:

• A P exprsly Cs if by wrds or actns he manifests the willingness to submit to the D’s acts.
• C given under duress (physical force or threats) is invalid
• C by mistake is valid, unlss th D causd, or knew n took advntge of, th mistake.
• C induced by fraud is invalid if relatd to an essntal, not collateral, matter.
• C is implied whn th P is nonresponsive in a situation in which a reas person would object.

Truth: If the defamatory s/ment is factually accurate, the D has a complete defense. Defamatory s/ments are presumed false, unless the s/ments involve public concern. _H,T

Absolute Priv: In certn situatns, sch as (1) b/w spouses (2) dring a jud procedng, (3) in a leg procedng, n (4) required media pub’s, AP prvdes immunity, even if the action is wrng, malicious, or done with an improper motive. _H,T

Qualified Priv: S/ments made u/ the foll circ’s are subject to QP: (1) affctng an importnt public concrn, (2) in th intrst of th publsher (D), sch as defnding its reputations, or (3) in the intrst of a 3P or recipient. _H,T

• Abused: A QP may be lost if abused: (1) making s/ments o/side scpe of th privilege, or (2) acting with malice.

Question 17

DEFAMATION - Trade Libel

Defenses

Privileges

• Competition
• Absolute Privilege
• Qualified Privilege

Answer 17

For a trade libel claim, the P must prove(1) false disparaging s/ment, (2) of or concerning the P’s (a) bus. prpp title, (b) bus quality, or (c) product quality, (3) published to a 3P (4) with intent (5) to damage the business. _H,T

Defenses - Truth: If the disparaging s/ment is factually accurate, the D has a complete defense. _H,T

Privileges

• Competition: Except for false allegations, a D who is a competitor of the P will not be liable for encouraging a 3P to switch bus to the D by gnrly comparing the D’s bus prop title, bus, or product with the P’s, stating or implying the D is better. Here, Thus,
• Absolute Privilege (same rule) Here, Thus
• Qualified Privilege (same rule) Here, Thus

Question 18

Loss of Consortium

Answer 18

A spouse may recover against a D for injuring his/her spouse and depriving him/her of the bens of te spousal r/ship incl. the loss of companionship, comfort, society, and sexual services. _{<em>H, G hit and severly injured P. H, as P’s spouse, might be compensated for loss of comp, comf, soc, and sex services. T, H could recover for loss of consortium.</em>}

Question 19

Strict Liability

• A prima facie case for SL requires…*
  (1) Domesitc Animals
  (1) Wild Animals
  (1) Abnormally Dangerous Activity

Answer 19

A PF case for SL req (1) dty to make Ps person or prop safe, (2) B, (3) C (A and P), and (4) D.

(1) An animal owner is SL for injries a domestic animal causs if he knws or hrtk of animal’s dngrous propnsty. _H,T
(1) A wild animal owner is SL for harm animal does, despite precautions owner or possessor takes to confine the animal or prevent the harm, ala P did nt do anything knwngly to bring about th injury. _H,T
(1) Abnormally Dangerous Activity An activity may be ultrahazardous if it (1) is not common in the community, (2) inherently involves risk of serious harm, and (3) cannot be performd w/ cmplte safty. A minority of cts consider the value of th activity and its appropriateness to the location. _H,T

Question 20

Strict Liability

Domestic / Wild animals / Abnormally Dang Activity

(1) Duty
(2) Breach
(3) Causation (same as negligence)
(4) Damages (same as negligence)

Answer 20

Duty The dty owd is to make absolutely safe the ultrahazardous activity, regardless of precautions to prevent harm. This dty is gnrly owd to all foreseeable Ps but limited to only the kind of harm expected to be caused by the activity.

Breach occurs whn thr is a failure to maintain the dty (make absolutely safe the ultrahazardous activity).

Question 21

Strict Liability - A pfc for SL requires…

• Duty - Vicarious Liability
  
  • ​Respondeat Superior: Employer-Employee R/ship
  • Independent Contractor
• Breach
• Causation
• Damages

Answer 21

A pfc for SL req (1) D to mke P’s psn or prop safe, (2) B, (3) C, &(4) D.

• Dty – VL: VL is a form of SL in whch a psn is liable for th neg actions of anther. Arises whn a psn hs the right, ability, or dty to contrl the activtes of anther, evn though the psn is not directly responsible for the injury.
  
  • Respndeat Sup – Eer-Eee R/ship: An Eer is liable for th tortious cndct of an Eee w/in scope of e/ment. Cndct w/in scpe incl. tht whch the Eee is: (1) employed to perf, (2) w/in authorized limits of time & space, & (3) perfd for purp of servng the Eer. _{H, F paid G $ to _. It seemed F did not supervise G, and only controlled and directed the result of G’s work. G decided to cut school on her own; F did not instruct G to go to her home that day. Even if G was an e’ee, she was not acting in the course and scope of e at the time she hit P. Though F told G when she aught sight of the patrol ehilce “”, G was not serving F whn sh movd her car. G was paid to _, not her car. Thus, no VL based on RS.}
  • IC: A payer is not VL for the torts of ICs. H/e, a payer may be liable for (1) neg in selecting or instructing an IC, (2) non-delegable dties arising out of a r/ship w/ a specific p or the pub, or (3) Inher Dang Acts. _{<em>H, G was liekly an IC. No facts indicated F was neg in engaging G to _. Though G was 16, the project did not require a specific skill or experience. F told G when she caught sight of the patrol vehicle, “”, but F was not instructing G on her project. When G was moving her car, she was not working on te propject. G’s project did not involve activitis affecting the pub at large or activies inh dang such as delivering items with her car.</em><em>Thus, no VL based on IC.</em>}

[Stop here if no duty, continue if yes].

• Bch: occrs whn thr is a failre to maintain dty to make p’s psn or prop safe. _{H, S bched dty once G’s teacher committed tortious conduct.}
  
  • _​Tortious Conduct _{do 1 para on neg for psn who committed tort.}
• Causation/Dgs/Defenses _{see rules and analysis above.}

Question 22

INTENTIONAL TORTS (7 - FAT BITCh)

• False Imprisonment
• Assault
• Trespass to Land
• Battery
• IIED
• Trespass to Chattels
• Conversion

Defenses (SCORN SPA)

• Self-Defense
• Consent
• Defense of Others
• Recapture
• Necessity
• Shopkeeper’s privilege
• Property
• Privilege to arrest

Answer 22

Assault occ whn D’s (1) I (2) ovrt act causes P to experience (3) RA of an (4) imminent battery.

• Dgs: X proof of harm. Pun dgs may be impsd if D acted w/ malice.

Battery: is (1) H or O contact (2) w/ P’s prsn (3) causd by D’s intntional act. _{H, J cut brakes in N’s car bt did nt directly <u>contact</u> N’s <u>person.</u> Since N lent car to P, thr ws no <u>indirect contact</u>. J’s act ws <u>intentional</u> b/c .}

FI reslts whn a prsn (1) intnds to confine or restrain (2) another prsn (3) to a bounded area, & (4) action directly or indirectly results in sch confinement.

• Dgs: X proof of hrm. Pun dgs may be impsd if D acted w/ malice.

Tres to Land: occ whn Ds (1) IA (2) causes a phys invasion of (3) P’s (4) RP.

Tres to Chat: A D is liable if he (1) I commits an act tht (2) interferes w/ (3) P’s right of possession of chat & (4) causes dgs. A P may recover actual dgs (repair costs). _{H, <u>N possessed</u><strong> </strong>car so she ws proper P. J <u>intentionally interfered</u> w/ N’s car by cutting brake lines. The cutting of brake lines <u>caused damages</u> to Ns car b/c brakes failed to work. N could recover the car’s repair costs.}

Conversion: A D is liable if he (1) I commits an act of (2) possession or interference w/ P’s chattel so (3) serious tht s/he deprives P of chattel & (4) causes dgs. _{H,… J intended to tamper w/ N’s car by cutting brake lines. P drove off cliff whn brakes failed. N incurred car repair expenses, ws inconvenienced by nt being able to drive car. Harm to car was extensive b/c could not be driven safely.}

• Dgs: Stndrd measure of dgs for conv. is (1) MV at time of conv, (2) + interest, (3) + expendutures in persuit of prop. _{H, J needed to pay N MV of car, plus intrst, plus litigation expenses.}

IIED: A D is liable whn (1) E or O conduct (2) causes P S&E distress, & (3) damages.

• Dgs P mst prove SED bynd wht a reas prsn cld endure, bt x need to prove phys injury.

DEFENSES

• Self-Defense: A prsn is enttld to use reas force to prvnt any threatnd harmf or off contact, except initial aggressor is nt enttld to self-defense, unless the other party responds to non-deadly force with deadly force._{H, N ws a <u>threatnd harm</u> b/c J believed aliens came to earth, N ws alien, N’s car was spaceship. H/e, whn N called J on phone and approached J in prsn, she did nt contact J offensively or use deadly-force. Whn J cut brake lines in N’s car, he was aggressor.}
• Def of Others: A prsn may use reas force to prvnt any threatnd hrmfl or offnsve cntct in def. of others upn reas belief a defndd pty may use slf-def. _{H, th force B cld use against J was same force N cld assert in s-d. Since J’s threatened harm was not imm, N cld nt respond to J w/ force. Ben knocking J to the grnd ws mre frce thn necessary. H/e, B did nt hear wht J said to N and ths did nt knw force ws nt imminent. B reas bel J ws going to harm N w/ chainsaw. B usd reas nec force b/c knckd J to grnd to protect N. B’s reas mistake as to existence of danger did not vitiate his defense of N b/c did nt need actual necessaity to defend.}
• Consent: A P expressly consents if s/he by words or actions manifests the willingness to submit to the D’s conduct.
  *

Question 23

INVASION OF PRIVACY

Rule statement for all 4 causes of action

Answer 23

Invasion of Privacy covers 4 causes of action.

• To recvr for Apprprttion, P mst prve D (1) evokes P’s identity (2) for comm advantage, (3) w/out authority.
• False Light exists whre (1) through publicity (2) D attributes to P views or actions she does nt hld or take (3) tht are objctionble to a reas prsn.
• Intrusion upon Privacy: A D’s (1) intrusion into a P’s (2) priv affairs or seclusion mst be (3) obtctionble to a reas prsn.
• Public Disclsure of Priv Facts: Public disclsure (1) of priv info even if true is actionable if (2) objctionble to a reas prsn of ordinary sensibilities.

Question 24

Negligent Infliction of Emotional Distress

Answer 24

U/ maj rule, a P cn recov for NIED frm a D who creates a fores risk of inj that causs (1) a threat of phys impact leading to ED, or severe ED likely to result in phys symptms, (2) if th P is w/in the ZofD, & (3) has acompnyng phys inj._{H, G, her teacher, and S created a forese risk of inj, as analyzed above.}

• Threat of Impct: Th threat of phys impct tht causs distress mst b directd at th P or some1 in his immdate presence._H,T
• ZoD: gnrly, a byst cannt recov for ED causd by W’ing a serious inj or death of anther, unlss the byst is w/in ZoD. A mrdn trend allws a P o/side ZoD to recov if P (1) is closly relatd to psn inj, (2) is presnt at scene, & (3) psnally observd or perceives the inj. _H,T
• Phys inj: Majority = dgs w/out accom phys inj are not recoverable

Question 25

Products Liability (SWIM Neg)

The [P] may persue a products liabiltiy cause of action u/ [SPL, Neg, Warranty, Misrep, & Intent].

• Strict Products Liability
• Negligence
• Warranty
• Misrepresentation
• Intent

Answer 25

A pfc for SPL req (1) comm supplier, (2) defective prdct, (3) C, & (4) D.

CS: A CS, one who places prdct in stream of comm w/out sub alteration, hs a duty to supply safe products. Privity b/w a CS & a P not req – users, buyers, & bystanders can sue a CS.

DP: A brch occurs if (1) D supplies a DP, & (2) prdct is defec whn it leaves D’s control. 3 types of defects: (1) manufac, (2) design, and (3) failure to warn.

• Defective Product
  
  • Man: For a MD, P mst prve: (1) prdct emerges frm manufacture diff & mre dngrous thn prdcts mde prprly, & (2) P usd prdct in reas fores way.
  • Design: A DD occrs whn (1) all prdcts of a line are same, bt hve same inherently dangerous condition, (2) P used prdct in reas fores way, & (3) D cld hve mde prdct safer, w/out serious impact on prdct $ or utility.
  • FtoW: A prdct may be defective as a result of man’s faliure to give adquate warnings as to risks invlvd in using prdct. For liability to attach, danger mst nt be apparternt to users.
• Whn Leaves D’s Cntrl: Prdct mst be defective whn it leaves manfctrr’s cntrl.

In conclusion, D breached its duty to P.

Causation: A P mst prove D’s actions were AC & PC of P’s injuries.

• AC: To prve AC, P mst trace harm sffrd to defect in prdct tht existed whn left D’s control.
• PC: exists whn injury is a fores result of D’s conduct. Whn x factors contrib to injury, 1 examines other events to determine whthr they are intervening or superceding.
  
  • Eggshell: A D is liable for full extnt of P’s injuries due to preexisting cnditions or vulnerability, even if extent is unfores.

Dgs: A P recovers dgs for any prsnl or prop loss. Gnrly P cannot recover for purely economic loss.

Question 26

Products Liability - The [P] may persue a products liabiltiy cause of action u/ [SPL, Neg, Warranty, Misrep, & Intent].

• Strict Products Liability (CS,DP,C,D)
• Negligence (DBCD)
• Warranty (DBCD)
• Misrepresentation
• Intent

Answer 26

A pfc for neg req: (1) D, (2) B, (3) C and (4) D.

D: A DoC is owd by CSs to any fores P (users, buyers, bystanders) w/out any privity req.

B: To prve bch, P mst shw (1) neg cndct by D, (2) leading to supplying of a defective prdct.

• Neg Cndct: A CS owes a Dof reas care in inspection or sale of a prdct.
• Dfctve Prdct:
  
  • Man: P mst prve: (1) prdct emerges frm man diff & mre dngrous thn prdcts mde prprly, & (2) Foresee use.
  • Design: occrs whn (1) all prdcts are same, bt hve same inherently dangerous condition, (2) Foresee use, & (3) D cld hve mde prdct safer, w/out serious impact on prdct $ or utility.
  • FtoW: A prdct may be defective as a result of man’s faliure to give adquate warnings as to risks invlvd in using prdct. For liability to attach, danger mst nt be apparternt to users.

AC: If P’s injury will nt occur but for D’s acts, D’s cndct is c-in-f of harm. If mre thn 1 c-in-f, D is AC of injury whn D’s cndct is a sub factor in causing dgs.

PC: exists whn injury is a fores result of D’s conduct. Whn x factors contrib to injury, 1 examines other events to determine whthr they are intervening or superceding.

Dgs: P recovers dgs for any prsnl or prop loss. Gnrly P cannot recover for purely economic loss.

Question 27

Products Liability - The [P] may persue a products liabiltiy cause of action u/ [SPL, Neg, Warranty, Misrep, & Intent].

• Strict Products Liability (CS,DP,C,D)
• Negligence (DBCD)
• Warranty (DBCD)
• Misrepresentation
• Intent

Answer 27

Implied Wrrnties: A pfc for IW req (1) D (2) B, (3) C, and (4) D.

D: In every sale of goods there are 2 implied wrrnties: (1) merchantability (goods fit for ord purposes), & (2) fit for partic prpss for whch sch goods are used, meaning (a) seller knws of a buyer’s partic purpse, & (b) buyer relies on seller’s skill in purchasing the good. According to maj, privity b/w a seller & P is not req – users, buyers, & bystanders can sue a seller.

B: If a prdct fails to live up to merchantability or fit for purpse stndrds, wrrnty is bched, & D is hld liable.

C: [AC = But for + sub factor; PC = fores + x factor - inter/super]

D: Prsnl injury, prop dge, & purely economic loss are recoverable.

Defenses incl: AofR (using a prdct while knwing of bch of wrrnty), & Contrib/Comp Neg. Failure to give notice of bch is a defense u/ UCC (even in personal injury cases).

In conclusion, D was liable to P.