Torts FA24 Final Flashcards
3R products liability
One engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is liable for harm caused
Duty
Merchants have a duty not to sell products in a defective condition dangerous to anyone who foreseeably may use the product
crashworthiness doctrine
motor vehicle manufacturers have a duty to make their product crashworthy. May be held liable in neg or SL where defect–though not cause of accident–caused or enhanced injuries
When does SL/PL not apply?
- to one who primarily provides a service, even if providing a service is incidentally involved (defective prosthetic knee by hospital)
- When product injures itself (pure economic harm)
Breach:
Prove product is defective
Manufacturing defect
when the product departs from its intended design, even though all possible care was exercised in prep and marketing of product; P may sue anyone in the chain of distribution as long as defect existed at the time product was sold
Design defect
Product itself is flawed due to problems in the original design.
Prove by:
1. 3R Risk Benefit: foreseeable risks of harm could be avoided by adopting a reasonable alternative design
2. 2R Risk benefit: product defective if jury determines manufacturer knew/should have known risk of harm, and that risk outweighs the benefits of such a design
3. 2R Consumer expectation: fails to perform as an ordinary consumer would expect when used in a foreseeable manner
4. 3R CE: (RIL) infer defect when the injury is the type that ordinarily occurs as a result of defect
OR Reasonably foreseeable misuse–> products may be defective in design if manufacturer knew or should know safety feature would be disabled; and safety feature not meant to be disabled. NO duty to manufacture a product that is impossible to abuse
Failure to warn
product is defective bc of inadequate warnings or instructions when the foreseeable risks of harm could have been reduced or avoided by providing reasonable instructions or warnings, and omission renders product not reasonably safe
FTW elements
warning must (1) adequately indicate scope of danger, (2) reasonably communicate extent or seriousness of harm that could result, (3) alert a reasonably prudent person to the danger, and (4) use adequate means to convey the warning
simple directive warnings
may be inadequate, but generally not if not many similar incidents–> Hood v. Ryobi
learned intermediary doctrine
drug manufacturer’s duty to warn extends only to prescribing provider, who acts as learned intermediary between manufacturer and consumer. Centocor
Exception: when drug is advertised to general public
Cause: Modification rule (strong minority)
when a third party’s modification makes a safe product unsafe, the seller is relieved of liability, even if modification is foreseeable bc chain of causation is broken.
Reasonably foreseeable misuse (majority)
Even when a third party’s modification makes a safe product unsafe, manufacturer has duty to warn of danger of unintended uses of a product if those uses are reasonably foreseeable
Cause (1) defect existed when product was sold
Presumption defect existed when product was sold. Welge. Burden shifts to merchants to prove they weren’t the ones who introduced defect
Cause: (2) defect caused harm
But for: but for defect, injury would not have occurred/been made worse
Proximate cause: customer was using product in foreseeable way
compensatory damages
return P as closely as possible to condition before the injury
- includes past and future pecuniary and non pecuniary harm
pecuniary harm
compensates quantifiable losses–> past and future medical expenses, past and future lost income
non-pecuniary harm
losses/harm that is not quantifiable, but juries do their best–> pain and suffering [requires awareness]. loss of enjoyment [may/may not require awareness]
Parties can move for new trial on grounds of excessive/insufficient damages, trial judge decides whether to grant; or
parties can appeal on grounds of excessive damages, but damages have to be so excessive as to shock the conscience
remittitur
judge lowers damages and P has to accept
additur
judge increases damages and P has to accept
survival actions
brought by estate
wrongful death/loss of consortium
may be brought by heirs or beneficiaries
punitive damages
may be awarded for intentional or reckless conduct
Employer liable for punitive damages only if conduct was engaged in by. or authorized by, principal or managerial agent
test for whether punitive damages excessive
- degree of reprehensibility
- disparity between actual harm and punitive damages
- difference between punitive damages awarded and civil penalties for comparable conduct
collateral source rule
excludes payments from other sources to Ps from being used to reduce damage awards imposed on culpable Ds
can’t introduce evidence of collateral sources or offsetting judgment based on collateral source
subrogation
where victim has received payment from secondary source (such as insurance), source may succeed to victim’s rights against tortfeasor
Family purpose doctrine
owner of a car may be held vicariously liable for the torts of anyone using car for family purpos
joint enterprise doctrine
each member of a group venture is vicariously liable for the torts of the group’s driver
negligent entrustment
owner of a car may be held liable for negligent entrustment
intentionally
acts with purpose of producing consequence, or knowing that the consequence is substantially certain to result
recklessness
person knows of the risk created by the conduct and the burden is so slight relative to magnitude of risk that failure to adopt precaution demonstrates person’s indifference
Negligent
person failed to exercise reasonable care under the circumstances
Assault
(1) intentionally or recklessly taking a physical act of a threatening nature which (2) puts an individual in fear of imminent bodily harm
Battery
(1) intentionally or recklessly taking an act intended to cause (2) and does cause offensive contact with the body of another contact with thing connected to another person is sufficient to constitute battery
offensive contact
offends reasonable sense of dignity [would offend ordinary person not unduly sensitive. Wishnatsky]
False imprisonment
intentionally or recklessly(1) compelling a person to remain where she does not wish to remain or compelling a person to go where she does not wish to go (2) by force or threat of force [or duress]
IIED [via a publication]
(1) conduct was intentional or reckless (2) conduct was outrageous and intolerable such that it offends generally accepted standards of decency and morality, (3) causal connection between conduct and emotional distress, and (4) resulting emotional distress was severe and [(5) publication contains false statement made with actual malice]
Exception: parody or satire that no reasonable person would believe–> protected speech. Won’t allow recovery for IIED
defamation
(1) making false statements, (2) that harm the reputation of another or expose them to hatred, contempt, ridicule
intentional torts defenses
Defenses to intentional torts
(1) consent, (2) defense of property, (3) self-defense, and (4) private necessity
(1) consent
ordinarily a defense to an intentional tort.
Exception: courts differ on whether consent is a defense for illegal prize fights or mutual combat in anger
(2) defense of property
property owner may use reasonable force in protection of property, but not deadly force (spring gun)
(3) self defense
person has a defense to battery if that person subjectively and reasonably believed his life was in danger/ or danger of severe bodily harm; and person responded with force reasonable under circumstances
(4) private necessity
person may intentionally use property when threatened with loss of life or severe bodily harm if person subjectively and reasonably believed it was necessary to prevent harm. BUT person has to compensate property owner for any damage done to property despite lack of negligence
