Torts

Question 1

Liability of children and mentally ill for intentional torts

Answer 1

Can be (of a certain age) if acting w/ the requisite intent.

Question 2

Transferred intent

Answer 2

• Can be transferred across victims or torts (e.g., victim 1 to victim 2, or battery to assault)
• APPLIES: Battery, assault, false imprisonment, trespass to chattels
• DOES NOT APPLY: IIED, conversion

Question 3

Battery

Answer 3

1. ) Intent (to cause contact, not harm or offense, OR apprehension of that contact)
2. ) Contact with person of another
   - Contact MUST result (not apprehension; that’s assault)
   - HARMFUL: Injury/pain/illness
   - OFFENSIVE: Offensive to someone of normal sensibilities, OR to hypersensitive person if D has reason to know of hypersensivity.
   - P does not need to be conscious at time of contact (e.g., offensive touching on operating table)
   - Contact need not be direct
   - Need NOT show actual harm. Can recover nominal damages.
   - Punitive damages possible if conduct is outrageous or w/ malice.

Question 4

Eggshell Plaintiff Rule

Answer 4

• Take plaintiff as you found him, even if extent of harm is worse than expected. All harm that flows from injury.

Question 5

Assault

Answer 5

• Act
• Causing reasonable apprehension of imminent harmful or offensive contact
• Intent to cause such apprehension or contact (NOTE: MUST intent the harm or offense, unlike battery)

NOTES:

• P must be conscious and aware of the action (because harm is the apprehension)
• Immediacy is important
• Words alone don’t generally count (apprehension has to be reasonable under circs)

DAMAGES:
- Need NOT show actual harm. Can recover nominal damages.

• Punitive damages possible if conduct is outrageous or w/ malice.

Question 6

IIED

Answer 6

• Intentionally OR recklessly
• Outrageous and extreme conduct
• Causing P severe emotionally distress

DAMAGES: need only show severe emotional distress, no physical symptoms required.

• HYPERSENSITIVITY: Yes if aware or reason to be aware.
• Limited transfer intent: If D directed extreme/outrageous conduct toward a victim, and the victim’s immediate family member was present at the time and perceived the conduct and suffered SED as a result, the immediate family member may also recover for IIED under the same IIED elements.
• BYSTANDER: If D directed extreme/outrageous conduct toward a victim, and an unrelated bystander was present at the time and perceived the conduct and suffered SED as a result, the bystander can only recover for IIED if the bystander’s SED results in bodily injury, i.e. a physical manifestation of the SED.

PUBLIC FIGURES: Public officials and public figures cannot recover for IIED unless the publicized words contain a false statement of fact, and it was made with “actual malice” (knowledge of its falsity, or entertaining serious doubts as to its truth).

PUBLIC CONCERN: Private individuals also cannot recover for IIED if the words at issue relate to a matter of public concern

Question 7

False Imprisonment

Answer 7

• Intents
• to confine or restrain another
• within fixed boundaries
• actions directly or indirectly result in confinement
• P is EITHER conscious of confinement OR harmed by it

NOTES:

• duration doesn’t matter
• methods can include USE OF FORCE of THREAT, invalid assertion of LEGAL AUTHORITY, refusing to provide safe means of escape

INTENT: Either w/ purpose of confining, or knowing that it was substantially certain to result.

SAME DAMAGES RULES as battery and assault.

Question 8

Shopkeeper’s privilege

Answer 8

Can detain suspected shoplifter for REASONABLE TIME and REASONABLE MANNER

Question 9

Consent Defense

Answer 9

• Can be express or implied
• D cannot exceed scope of defense
• Consent given by MISTAKE can still be a valid defense so long as D did not know about the mistake and did not CAUSE the mistake.
• If obtained by FRAUD:
• • and extended to essential matter, no valid defense.
• • and extended only to a collateral matter, valid.

IMPLIED: Look for emergencies, mutual consent in combat, sporting events

CAPACITY: Can undermine consent.

Question 10

Self-Defense

Answer 10

• Can use REASONABLE FORCE to defend against offensive/harmful contact that he reasonably believes is about to be intentionally inflicted upon him.
• REASONABLY proportionate
• MISTAKEN BELIEF OK so long as it is reasonable.
• DUTY TO RETREAT: Majority, don’t have to.
• INITIAL AGGRESSOR: The initial aggressor may not claim self-defense, unless the other party used deadly force to respond to the initial aggressor’s non-deadly force.
• A person acting in self-defense is not liable for injuries to bystanders as long as it’s accidental and not negligent.

Question 11

Defense of property

Answer 11

• REASONABLE FORCE and REASONABLE BELIEF to present TORTIOUS HARM
• NEVER deadly force.
• Can be used to RECLAIM property, but only if you first request return (or it would be futile). But not if the original taking was lawful, e.g., a bailment.
• Cannot use to regain possession of land

Question 12

Citizen’s Arrest

Answer 12

A private citizen is permitted to use reasonable force to make an arrest if: 1) a felony has actually been committed; and 2) the private citizen has reasonable grounds to suspect that the person being arrested has committed the felony.

• If no felony was committed, private citizen is liable.
• If felony committed, but reasonable mistake as o identity, still applies.
• MISDOS: a citizen’s arrest is only a valid defense if the misdemeanor is a “breach of the peace.”

COMPARE, POLICE: Unlike for a citizen’s arrest, a police officer only needs to reasonably believe that a felony has been committed in order to avoid liability with an arrest (no requirement that a felony was actually committed). As for misdemeanors, the misdemeanor must generally occur in the officer’s presence to make an arrest that avoids liability (under CL tort law; not CrimPro).

Question 13

Trespass to chattels

Answer 13

• Intentional interference (intent to do the act, not to interfere)
• with P’s right to possess PERSONAL PROPERTY
• Either by DISPOSSESSING or USING/INTERMEDDLING, or DAMAGING
• MISTAKE: Mistake about legality is not a defense.
• DAMAGES: Must show either ACTUAL DAMAGES or LOSS OF USE.
• — if dispossession or damage: actual damages, value of loss of use, cost of repair
• — if intermeddling/use: can recover actual damages.

Question 14

Conversion

Answer 14

• Intentional act
• Depriving P of POSSESSION of chattel or INTERFERING with chattel in manner SO SERIOUS as to deprive P entirely of use of the chattel.
• DAMAGES: full value at time of conversion
• MISTAKE: mistake about legality of action is not a defense

Question 15

Conversion vs. trespass to chattels

Answer 15

• CONSIDER: duration, extent, intent to assert a right inconsistent with a rightful possessor, good faith, expenses or inconvenience on P, extent of harm

Question 16

Trespass to land

Answer 16

• intentionally
• causing a physical invasion of someone else’s land
• DAMAGES: Can be nominal
• MISTAKE is not a defense
• includes causing objects to enter land
• Anyone in lawful possession of land can bring action, not just owner
• DEFENSE OF NECESSITY: Either PRIVATE (D liable for actual damages but not nominal damages) or PUBLIC (to protect large number of people, not liable for actual OR nominal)

Question 17

Private Nuisance

Answer 17

• Activity or thing
• SUBSTANTIALLY and UNREASONABLY interferes with another’s use and enjoyment of land they possess.

NOTES:

• must be objectively unreasonable
• Even if P was unbothered, if an ordinary, reasonable person would be, can bring action.
• ANALYSIS: Balance INTERFERENCE with UTILITY
• Blocking sunlight or view is not a nuisance unless a SPITE FENCE OR WALL

DEFENSES: Compliance with administrative reg (not complete defense, just shows reasonableness; “Coming to the nuisance” (one factor to consider)

Question 18

Public Nuisance

Answer 18

• UNREASONABLE INTERFERENCE
• With right that is COMMON to the public as a whole
• Private individual can only bring claim when it is DIFFERENT from harm suffered by public as a whole
• Otherwise, public official can bring claim

Question 19

Duty of Care, Generally

Answer 19

A duty of care is a legal obligation to act in a certain way (as opposed to a moral obligation). The “duty of care” element of a negligence claim includes: whether a duty of care applies to the D in the situation; and if so, what is the nature of that duty of care, i.e. the standard of care? Usually the standard of care is the reasonable care standard (what a reasonably prudent person would do), but sometimes there is an “utmost care” standard for common carriers.

Question 20

Foreseeable plaintiffs

Answer 20

• rescuers(“danger invites rescue”)
• crime victims
• MAJ vs. MIN:
• • MAJ: duty is owed if P is a member of class of persons that might be foreseeably harmed.
• • MIN: Anytime conduct could harm someone, duty of care is owed to everyone harmed.

Question 21

Affirmative Duties

Answer 21

1. ) Assumption of duty
2. ) placing another in danger
3. ) Position of authority
4. ) Special relationship w/ P

Question 22

Modified Standards of Care

Answer 22

• Modify for people w/ particular physical characteristics (e.g., “reasonable blind person”)
• Children (reasonable child of similar age, intelligence, and experience) – unless high-risk adult activity, e.g., driving
• Involuntarily intoxicated people (reasonable intoxicated person)
  Common carriers - standard of UTMOST CARE (highest care consistent with practical operation)
• Emergency Situations (“reasonable person under the circumstances”)
• Firefighters - emergency professionals (cops too) cannot recover damages from party whose negligence caused the professional’s injury if it resulted from an inherent risk on the job

Question 23

Drivers

Answer 23

• MAJ: Owe duty of care to all types of passengers
• “Guest Statutes” (MIN): Passengers that pay are owed a duty of care, while passengers who don’t are only owed duty to refrain from gross/wanton and willful misconduct

Question 24

Possessor of Land Rules

Answer 24

• MODERN: Reasonable care under the circumstances, so can consider things like trespasser status
• • EXCEPTION: FLAGRANT trespassers - only owed a duty to not act in intentional, willful, or wanton manner to cause physical injury
• Tripartite Approach
• • Trespassers: Refrain from willful, wanton, reckless, or intentional misconduct. IF DISCOVERED: Warn or protect from hidden dangers.
• – ATTRACTIVE NUISANCE
• • Invitees: Reasonable care, including duty to INSPECT, DISCOVER unreasonably dangerous conditions, and take REASONABLE STEPS to protect from them. These duties are non-delegable.
• • Licensees: Warn or protect from hidden dangers. Exercise REASONABLE CARE in conducting activities on the land.

Question 25

Attractive Nuisance Rule

Answer 25

a land possessor may be liable for injuries to children trespassing on their land if: an artificial condition exists where the land possessor knows/has reason to know that children are likely to trespass (e.g. a defunct railroad turntable; an empty swimming pool); and the land possessor knows/has reason to know that the artificial condition poses an unreasonable risk of death/SBH; the children, because of their age, cannot appreciate the danger; the utility of maintaining the condition is low compared to the risk of harm to children; and the land possessor fails to exercise reasonable care regarding this artificial condition.
Although the children are trespassing, we still hold the landowner to a reasonable care standard RE this artificial condition.

Question 26

Landlord duties

Answer 26

A landlord has a duty to maintain safe common areas (the landlord is liable for harm arising from negligence in common areas); a duty to warn of hidden dangers (especially for premises that are leased for public use); and a duty to repair hazardous conditions.
However, the tenant (not the landlord) is liable for injuries arising from conditions within the tenant’s control.

Question 27

Off-premises victims

Answer 27

Occurs when someone located off your property is harmed by a condition that occurred on your property. Although the land possessor is not generally liable for injuries that result from natural conditions, the land possessor will be liable for their trees that fall in urban areas. As for artificial conditions, the land possessor has a duty to prevent unreasonable risk of harm to persons off-premises.

Question 28

B > PL Approach

Answer 28

• INQUIRY: if the burden of precaution is cheaper than probability of harm and the severity of the harm, then should have taken it

Question 29

Evidence of custom

Answer 29

Generally speaking, evidence of an industry custom is admissible as to breach, but it’s not dispositive.

However, evidence of a professional custom (e.g. lawyers, doctors, accountants, electricians) is admissible as to breach, AND it’s dispositive. This can protect a D who complied with the custom (but otherwise acted poorly), or it can hold a D liable for failing to comply with the custom.

Question 30

Physicians’ standard of care

Answer 30

A doctor must explain the risks of medical procedures to their patients so that they can give informed consent to the procedure.

However, there is no duty to inform the patient if: the risks are commonly known; the patient is unconscious; the patient waives the information; the patient is incompetent; or the patient would be harmed by disclosure (e.g. it would cause a heart attack).

Question 31

Negligence Per Se

Answer 31

FIVE ELEMENTS:

1. ) Criminal law or regulation imposes particular duty for protection of others
2. ) D violated the statute
3. ) P is in the class of persons to be protected by the statute
4. ) harm was of a type that the statute was intended to protect against
5. ) Harm was caused by a violation of the statute

If P also violated the statute, that can count for comparative negligence or contributory negligence. Also, compliance with the statute alone does not dispositively prove there was no negligence.

Defenses to violating the statute: compliance would be more dangerous than violating the statute; or emergency situations.

Question 32

Res Ipsa Loquitur

Answer 32

This doctrine states that circumstantial evidence can sometimes be enough to infer negligence. When this applies, it prevents a directed verdict in favor of D and allows the case to go to the jury. The jury can then decide whether to infer negligence or not.

3 traditional elements of res ipsa:

1. ) The accident was of a kind that does not ordinarily occur in the absence of negligence (e.g. a barrel falls out of a window);
2. ) It was caused by an agent/instrumentality within D’s exclusive control; and
3. ) It was not due to any action by P [but this is loosely applied in comparative fault jx].

Some jx have extended res ipsa to medical malpractice: if there was clearly negligence in a patient’s surgery, but we cannot prove who caused it, then some jx shift the burden of proof by holding everyone on the surgical team to be jointly and severally liable unless they can exonerate themselves.

3rd Restatement simply defines res ipsa as when the accident is of a type that ordinarily happens as a result of negligence of a class of actors; and D is a member of that class.

Question 33

Joint and several liability

Answer 33

When there are 2+ defendants that are all “but-for” causes of P’s indivisible harm, then joint and several liability (see next page) applies to each of them as long as each defendant’s tortious conduct was a substantial factor in causing the plaintiff’s harm (called the multiple sufficient causes doctrine).

Concert of action: if 2+ defendants were acting together pursuant to a common plan or design, and that causes P’s harm, then all defendants will be JSL.

Question 34

Alternative causation

Answer 34

if P proves that 2+ defendants had EACH acted negligently, and P was harmed, but P cannot prove who “but-for” caused P’s harm, then courts will shift the burden of proof to the defendants and impose JSL on them unless they can prove they did not cause P’s harm.
However, if P cannot prove that EACH of the 2+ defendants had acted negligently, a claim against all of them will fail because P has not met its burden of proof.

Question 35

Loss of chance doctrine

Answer 35

If a patient with a less than 50% chance of survival is negligently misdiagnosed, traditionally this meant the patient could not prove the doctor’s negligence was a but-for cause of his death, but the “loss of chance” doctrine states that P can recover that portion of wrongful death damages that represents their lost chance of survival.

Question 36

Proximate Causation

Answer 36

Proximate cause is a legal limitation on actual cause, with a focus on foreseeability: a foreseeable P must suffer a foreseeable harm that is within the scope of risk that made D’s conduct negligent in the first place (i.e. within D’s “scope of liability”).
There is no liability to an unforeseeable plaintiff.
There is no liability for an unforeseeable type of harm.
But there is liability for the unforeseeable extent of a foreseeable type of harm (eggshell plaintiff rule).
The type of harm must be foreseeable, but the extent of that harm need not be foreseeable.

INTERVENING CAUSES
If an outside force occurs after D’s conduct that contributes to P’s harm, it’s called an intervening cause. If the intervening cause is foreseeable, it will not break the chain of causation between P and D, and D will continue to be liable for resulting harm to P. But if the intervening cause is not foreseeable, then it is a superseding cause that will break the chain of causation between P and D, and cut off liability to D.
Foreseeable intervening causes include: subsequent medical malpractice; negligence of rescuers; normal forces of nature; and most other negligent acts.
Unforeseeable superseding causes include: extraordinary acts of nature; criminal acts and intentional torts of third parties (unless D’s breach of duty was failure to protect the plaintiff from crimes/torts).

Question 37

COLLATERAL SOURCE RULE

Answer 37

payments to P from outside sources (such as an insurer) are not credited against the liability of the tortfeasors. Evidence of collateral sources is not admissible. But many states have modified the collateral source rule to avoid P’s from double recovery.

Question 38

Punitive Damages

Answer 38

could be available if D acted willfully, wantonly, recklessly, or with malice. But punitive damages are limited to no more than 9x the P’s compensatory award amount

Question 39

Pure Economic Loss

Answer 39

P who only suffers economic loss (not damage to property; not personal injury) cannot recover in negligence. But a P who suffers both economic losses and property damage/personal injury can recover for those economic losses.

Question 40

NEID

Answer 40

• ZONE OF DANGER: a D whose tortious conduct placed P in harm’s way is liable for NIED if P proves he was in the “zone of danger” of the threatened physical impact, and the threat of physical impact caused P emotional distress, with some physical manifestation of P’s emotional distress (nausea, insomnia, nightmares).
• BYSTANDER RECOVERY: a bystander P, outside the “zone of danger,” can also recover for NIED if P is closely related to the person injured by D; P was present at the scene of the injury (didn’t just hear it on the phone); P personally observed the injury (didn’t just see the aftermath); and this caused P emotional distress, with some physical manifestation of P’s emotional distress (nausea, insomnia, nightmares).
• SPECIAL RELATIONSHIPS: Special relationships giving rise to NIED: No physical manifestation of P’s SED required. NIED liability can be for:
  misinforming P that a family member has died;
  the negligent mishandling of the corpse of P’s loved one;
  a negligent misdiagnosis to P.

Question 41

Wrongful death action

Answer 41

the decedent’s spouse or estate rep. can bring a wrongful death action to recover losses suffered by the decedent’s loved ones as a result of decedent’s death (loss of economic support; loss of consortium – spouse; loss of companionship - child)

Question 42

Survival action

Answer 42

a rep. of the decedent’s estate can bring a survival action on behalf of the decedent for claims the decedent would have had at the time of decedent’s death

Question 43

Wrongful life

Answer 43

a claim brought by a child that D negligently failed to abort P or failed to diagnose a congenital defect

Damages limited to those attributable to the disability.

Question 44

Wrongful birth

Answer 44

Wrongful Birth: a claim brought by parents that D negligently failed to abort P or failed to diagnose a congenital defect

Damages allowed for medical expenses of labor, and for pain and suffering

Question 45

Vicarious liability

Answer 45

This refers to situations where one person is held liable for the negligence of another. Both parties are jointly and severally liable: the responsible party is still held responsible, but so is the vicariously liable person.

RESPONDEAT SUPERIOR: An employer will be held vicariously liable for the negligence of its employee, if the negligent conduct occurred within the scope of employment.

INDEPENDENT CONTRACTORS: Although an employer is generally not liable for torts committed by their independent contractors, if the employer retains some control over how the I.C. does its work, then courts will treat the I.C. as an employee for the purposes of respondeat superior.

NON-DELEGABLE DUTIES: Also, there are non-delegable duties that an employer cannot waive liability for simply by hiring an I.C. These include:

• • Inherently dangerous activities;
• • Duties to the public (e.g. construction work on a roadway);
• • Shopkeeper’s duty to keep the premises safe for the public

Question 46

Driving torts

Answer 46

• Negligent entrustment: The owner of a car can be directly liable for negligently entrusting a car (or other dangerous object) to someone who is not in a position to care for it (e.g. a drunk driver)
• TORTS OF FAMILY MEMBER: The owner of a car may be vicariously liable for the tortious acts of any family member driving the car with permission (under the family-purpose doctrine); or of anyone driving the car with permission (under owner-liability statutes).

Question 47

Torts by children

Answer 47

Parents are generally not liable for the torts of their children (you have to sue the child for their torts, although a child younger than 4-5 cannot be held liable); however, a parent may by liable for negligent supervision which could give rise to the child’s tortious conduct.

Question 48

“Dram Shop” Liability

Answer 48

Owners of bars, bartenders, and social hosts can be directly liable for the server’s own negligence in serving the person. Statutes have varying statutes that also impose vicariously liability to the server, based on injuries to third parties caused by the intoxication.

Question 49

Immunities from Negligence Liability

Answer 49

The Federal Tort Claims Act has waived federal gov’t immunity from certain kinds of tort claims, but has also maintained immunity in areas such as discretionary (policy-making) functions and traditional gov’t activities.

There is an important distinction between traditional gov’t functions (e.g. police; court system) in which immunity from tort claims continues to apply, and proprietary functions (e.g. performed by private companies such as utilities or parking lots) where immunity has been waived.

There is also an important distinction between the discretionary (policy-making) functions of gov’t officials – to which immunity still applies, and the ministerial (policy enactment) functions of gov’t officials – for which immunity has been waived for tort claims.

Question 50

J&S

Answer 50

This applies in different cases:

Multiple tortfeasors acting in concert;

Alternative liability where we know both are negligent, but we cannot know who caused the injury;

Res ipsa loquitur against multiple defendants, where we know that negligence occurred, but we don’t know by who;

Respondeat superior between employer and employee

Although P can choose which D to go after, a D who pays more than their allotted share has a right of contribution against the other D for their allotted share. Or if an employer pays P’s full judgment, the employer can seek full reimbursement under the employee’s duty of indemnification.

Question 51

Pure several liability

Answer 51

If a jx follows pure “several liability” each tortfeasor is liable only for his proportionate share of the plaintiff’s damages. If A is 40% responsible, and B is 40% responsible, and P is 20% responsible…then P can only collect 40% from A and 40% from B in a pure several liability jx.

Question 52

Contributory Negligence

Answer 52

This is an old CL rule, and only applies in a handful of states, that if P was also negligent in some way, it completely precluded P’s recovery. Thus “contributory negligence” was a complete defense.

“Last clear chance” doctrine: In a contributory negligence jx, if P can show that D had the “last clear chance” to avoid injuring P, but failed to do so, then P’s contributory negligence did not preclude P’s recovery.

Question 53

Pure and modified comparative negligence

Answer 53

Pure comparative negligence jx: P’s recovery is reduced by P’s percentage of fault (e.g. if P was 90% at fault, P can still recover 10% of her damages from D).

Modified/Partial comparative negligence jx: if P is more at fault than D, P’s recovery is completely barred. Some jx hold that if P and D were equally at fault, this also completely bars P’s recovery.

In a modified comparative negligence jx, if there is more than one D, then P’s percentage of fault is compared to the total percentage of fault of all defendants combined.

Comparative fault IS NOT a defense to intentional torts, and will not reduce P’s recovery.

Question 54

General Strict Liability Rules and Defenses

Answer 54

If strict liability applies, D will be liable no matter how careful he was.

P’s contributory negligence will not bar recovery under a strict liability theory, but recovery may be reduced by P’s comparative negligence.

P’s assumption of risk can completely bar recovery.

Question 55

Abnormally dangerous activities

Answer 55

D is strictly liable for personal injuries and property damage caused by engaging in an abnormally dangerous activity; however, D is only liable for harm that flows from the risks that made the activity abnormally dangerous. (E.g. D is driving a truck full of explosives when D hits a pedestrian. D is held to a reasonable care standard (not SL) for his driving, because the injury did not flow from what makes explosives abnormally dangerous)

FACTORS TO IDENTIFY ABNORMALLY DANGEROUS CONDITION:

• If the activity creates a high risk of harm, even if the actor takes due care;
• The severity of the harm that could result;
• The appropriateness of the location for the activity;
• Whether the activity has great value to the community.

Question 56

Animals

Answer 56

WILD ANIMALS:
- The owner of a wild animal is strictly liable to a licensee or invitee who is injured by the wild animal, or is injured because of their fearful reaction to the sight of an unrestrained wild animal.

• The owner of a wild animal is not strictly liable to a trespasser who is injured by a wild animal, unless the attack was by a vicious watchdog. A trespasser can still recover under a negligence theory for a wild animal attack (e.g. the owner negligently allowed the rattlesnake to roam free).

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Question 57

Animals

Answer 57

WILD ANIMALS:
- The owner of a wild animal is strictly liable to a licensee or invitee who is injured by the wild animal, or is injured because of their fearful reaction to the sight of an unrestrained wild animal.

• The owner of a wild animal is not strictly liable to a trespasser who is injured by a wild animal, unless the attack was by a vicious watchdog. A trespasser can still recover under a negligence theory for a wild animal attack (e.g. the owner negligently allowed the rattlesnake to roam free).

DOMESTICATED ANIMALS:

• The owner of a domesticated animal is strictly liable for injuries caused if he knows or has reason to know of the animal’s dangerous propensities. Otherwise, CL states that the owner is only liable for negligence.
• • EXCEPTION: many states have enacted “dog-bite” statutes that hold dog owners strictly liable, without an inquiry as to knowledge of the dog’s dangerous propensities.

TRESPASSING ANIMALS:
- The owner of a non-household pet animal is strictly liable for reasonably foreseeable damage caused by the animal while the animal is trespassing on another’s land.

• If any animal trespasses onto a public road, only a negligence standard applies to the damages caused by an accident (because damages will be so high).

Question 58

Products Liability Elements

Answer 58

FOR ALL CLAIMS:

1. ) Product was defective (manufacturing, design, or failure to warn)
2. ) Defect existed when product left D’s control
3. ) AND Defect caused injury when the product was used in FORESEEABLE WAY.

ANY FORESEEABLE PLAINTIFF: To bring a strict liability claim, P does not need to be in privity of contract with D. P could be anyone foreseeably injured by the defective product (purchaser, other user, or bystander).

To be strictly liable, D must be in the business of selling or otherwise distributing products of the type that harmed the P (not a casual seller, who is only held to a negligence standard, e.g. an accountant sells his used office furniture) (not a service provider, e.g. a dentist that installs a defective tooth implant). “In the business of selling” includes anyone in the distribution chain (manufacturer, distributor, and retail seller).

COMPONENTS: The commercial supplier of a component that is integrated into a product during its manufacture is not liable unless the component itself is defective, or the supplier substantially participates in the integration process and the integration of the component causes the product to be defective.

Question 59

Manufacturing defect

Answer 59

this particular item is defective – the product deviated from its intended design, and the product does not conform to the manufacturer’s own specifications

Circumstantial evidence of a defect is admissible when the defect causes the product to be destroyed.

Question 60

Design defect

Answer 60

this entire class of items is defective – 2 tests both of which can be used as the basis for a SLP claim:

1. ) Consumer expectation test: if the product is less safe than the ordinary consumer would expect, then the product is defective in design.
2. ) Risk-utility test: a reasonable alternative design that is economically feasible was available to the defendant, and failure to use that design rendered the product unreasonably dangerous.

Question 61

Failure to warn

Answer 61

if there were foreseeable risks of harm, not obvious to an ordinary user of the product, and those risks could have been reduced by providing reasonable instructions or warnings, then failure to include those instructions or warnings renders the product not reasonably safe/defective.

Learned intermediary rule: a manufacturer of a prescription drug satisfies its duty to warn consumers about the risks by warning, instead, the prescribing physician (doesn’t apply if manufacturer knows the drug will be dispensed directly to consumers).

Question 62

Defenses to SL

Answer 62

Product misuse by P: if the defective product was misused, modified, or altered by P in a foreseeable way, then that misuse will reduce P’s recovery as a form of comparative negligence; but if there was a substantial change in the use of the product by P (e.g. using a ceiling fan as an airplane propeller), then this will completely bar P’s recovery.

Compliance with gov’t safety standards is admissible evidence that the product was not defective, but it is not dispositive (unless federal preemption applies).

The “state of the art” at the time of manufacture can also serve as admissible evidence that the product was not defective.

Assumption of the risk: if the risk is one the P knew about and voluntarily chose, then P cannot recover.

Disclaimers, limitations, and waivers generally do not bar strict liability claims for a defective product.