52675368 tort outlineeee

8/3/2019 52675368 Tort Outlineeee

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Intentional TortsA.Battery a. Requirementsi. Intent (voluntary) to cause a harmful or offensive act.ii. Harmful or offensive contact results.1. Personal touching or causing another object to touch.b. Intent i. If theres substantial certainty that something will happen as a resu

lt of your act, then intent can be inferred.ii. A person must act objectively reasonable, rather than subjectively.c. Transferred Intent (Applies to all intentional torts, except IIED.)i. Two kinds:1. A tortfeasor intends a tort on one person, but commits a tort on another.2. A tortfeasor intends one tort, but accomplishes another.d. Childreni. (Old Rule): Children under 7 cant held liable b/c they cant form sufficient intent.ii. (New Rule): Some children under 7 can form intent, however it needs to be looked at on case-by-case basis. iii. Generally, parents are not liable for the behavior (torts) of their children unless they can prove the parent is directly re

sponsible. If the parent is aware the child has a particular dangerous habit anddoes nothing to change it, the parent is liable.e. Mentally Insane i. Insane people are generally held able to form necessary intent provided the person did intend a harmful or offensive act. ii. White v. Muniz: Dual intent (when determining if someone is liable for a battery) is a minority rule and is in most cases irrelevant, except insane persons.f. Broken Egg Shell Theoryi. A person is liable for all damages, even if extensive injuries were not imagined.B. Assault g. Requirements i. D intends to put P in immediate apprehension of aharmful or offensive touching, or other trespassory tort. ii. D does put P in such imminent (no significant delay) apprehension. 1. Apprehension must be that ofa reasonable person. An assault constitutes a touching of the mind, if not the b

ody. h. Future Threats i. Words negate intent to effect immediate touching: 1. Ifthe cops werent here, Id punch you. No assault would occur b/c you know nothing will happen. ii. Future threats are not considered assaults. C. Intentional Infliction of Emotional Distress (IIED) i. Requirements i. The conduct of D was extremeand outrageous. ii. Intended to cause severe distress or at least was recklessin risking that distress. iii. Actually cause severe distress. j. Determining Outrageous Conduct i. Conduct is repeated or carried out over a period of time ORii. An abuse of power on the one hand or abuse of a person known to be especially vulnerable. k. Presence Requirement - Transferred Intent


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i. Outrageous conduct directed at A doesnt necessarily give B a cause of action.The other person must be present to witness the conduct to recover damages. ii.Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress: 1. To amember of such persons immediate family who is present at the time or 2. To any other person who is present at the time, and such distress results in bodily harm. a. Bodily harm would be a physical manifestation of distress such as ulcers, h

ives, insomnia. l. Fiduciary Duty i. There are some relationships between peoplethat the law expects a heightened duty for one party. Pastors, doctors, etc. D.False Imprisonment m. A person intentionally confines another w/out lawful privilege and against his consent within a limited area for any appreciable time, however short. i. False imprisonment is a trespassory tort, so P can recover damages even if she sustains no actual harm. 1. Actual harm is required, however, tosupport claim where P was not aware of the confinement at the time it took place. 2. Mental harm can be enough to recover damages. n. Confinement - Implies limited range of movement in an area, but not necessarily a small area. i. Threats or demands - Confinement by explicit or implicit threat or duress. ii. Assertionof authority - Submission to an officers assertion of arrest under legal authority is sufficient to show confinement. iii. Duress of goods - D grabs Ps wallet and

refuses to return it. P wishes to leave, but wont leave without her wallet. o. Limited Privilege - Shopkeepers have a right to retain customers to conduct reasonable investigations re: theft. i. Is store manager acting in good faith? Is there a plausible reason? ii. Must take a reasonable amt. of time. iii. Cant make excessive threats or use excessive force. iv. After the search, the customer mustbe able to leave if they want. p. Not False Imprisonment i. Consent negates false imprisonment (If you agree to be locked inside a box for a magic trick). ii. If you exclude someone from an area. E. Trespass to Land q. D enters or causes anentry onto the land of another and the entry is intentional. r. In one situation, intentional entry is not required. i. This occurs when one unintentionally enters, as where a car goes out of control without fault, and the car refuses to leave. The refusal to leave is now considered trespass. s. Entry - includes entryby objects and other persons in addition to your person. t. Intent - Includes e

ither purpose to enter or substantial certainty that entry will take place. i. The object of the intent need not be to trespass however. ii. D does not escape liability merely b/c he reasonably believes he is on his own land or b/c he reasonably believes he has a right to be there. iii. Transferred intent is applicable.


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F. Conversion of Chattels u. D intended to exercise dominion over Ps chattel (personal property) and accomplished that dominion. v. Conversion - Someone takes anothers property, they are converting it to their own use by exercising substantial dominion over it. i. What to consider to determine if conversion has occurred: 1.Extent and duration of control 2. Ds intent to assert a right to the property 3.Ds good faith 4. The harm done 5. Expense of inconvenience caused w. Intent - D must intend to exercise substantial dominion over the chattel, but there is no re

quirement that D be conscious of wrongdoing. x. Damages - The usual remedy for conversion is damages, measured by the value of the chattel at the time of conversion. G. Trespass to Chattels y. An intentional interference with personal property in someone elses possession. Short of being considered conversion. z. Liability is imposed only if the possessor of the chattel suffers dispossession or lostuse, or if the chattel or the possessor is harmed. aa. Trespass can include tangible and intangible chattels. bb. Damages - based on actual damage, not on themarket value of the chattel.

Defenses to Intentional Torts PrivilegesA. Self-Defense a. One is privileged to use reasonable force to defend against harmful or offensive bodily contact and against confinement. b. If D reasonably,

but mistakenly believes she is being attacked, she is privileged to use reasonable force against attacker. c. Reasonable deadly force? i. Ds privilege extends only so far as reasonably necessary to prevent the harm, and if the harm threatened is not itself death or serious bodily harm, D may not use force likely to cause death or serious bodily harm. ii. Escalation Excessive force is unprivileged and D is liable for it. d. Retreat i. D who is attacked is not required to retreat or otherwise avoid the need for self-defense. ii. Some states require retreatif it is safe and reasonable, and if its an alternative to using deadly force. e.Not Covered by Self-Defense i. Provocation is not sufficient to raise self-defense privilege. ii. Does not cover delayed retaliation or revenge. B. Defense ofThird Persons a. In general, one may defend others on the same basis he may defend himself. b. If one mistakenly aids a 3rd party, the privilege extends as longas Ds reasonably believed the person was in danger. C. Arrest and Detention a. A

ny property owner (including storekeeper) has a common law privilege to detain against his will any person he believes has tortiously taken his property.


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b. Can only be exercised to prevent theft or to recapture property. Does not extend to detention for the purpose of punishment. c. If person detained does not unlawfully have any of the arresters property, the arrester is liable for false imprisonment. D. Defense and Repossession of Property a. The owner of premises cantintentionally injure a trespasser by means of force that either takes life or inflicts great bodily injury unless the intrusion threatens death or serious bodily harm to the occupiers or users of the premises. b. The force used must be of

a kind appropriate to the defense of the property. c. A person is privileged tocommit an assault to protect property, but not a battery. But if a battery actually occurs, transferred intent is applicable. d. Stolen property - A person mayreclaim stolen property with reasonable force only if they are in immediate pursuit of the property. e. Repossession of consumer goods (i.e. car) - must be donepeaceably, but cannot use force against the owner of the goods. f. Mechanical Devices i. A possessor cannot do indirectly by a mechanical device that which, were he present, he could not use. (shot-gun traps) E. Discipline a. Parents, teachers and school bus drivers enjoy a privilege to discipline children with reasonable force as they deem necessary. b. Reasonable is measured by: i. Degree of force ii. Type of punishment iii. Childs gender, age, physical and mental condition. F. Consent a. Two types: i. Actual - Real, expressed consent or willingness. E

xplicit. ii. Effective - Appearances, circumstances that would lead an objectivereasonable observer to believe a person has consented. b. Incapacity Consent isnot effective if person lacks mental capacity to give consent. i. Condition must substantially impair capacity to understand and weigh the harm and risks of harm against the benefits of the conduct and if D must have knowledge of that incapacity. ii. Competent adults can refuse treatment even if it leads to death. iii. No consent if individual is not properly informed as to what they are consenting to. c. Power Relationships i. A position of relative weakness can, in some circumstances, interfere with the freedom of a persons will. The notion of consentmust be modified to appreciate the power relationships btw parties. d. Minors i.Can consent to a number of touchings, but not everything. (sex w/minor is illegal) G. Public Necessity (no compensation maj. rule) a. There is a right to destroy property providing there is an imminent disaster AND the public officials act

reasonable. i. Reasonable is defined as: 1. Actual - action was actually necessary to prevent widespread harm. 2. Apparent - objectively reasonable, good faithjudgment that the act was necessary.


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b. Individual rights of property give way to the higher laws of impending necessity. Greatest good for society. c. Necessity must be clearly shown in order foran individual not to be held liable. Traditionally, there is no compensation forpublic necessity. d. Taking - Public officials/municipalities have a right, under certain circumstances, to take property for their use (public use), but theymust compensate. Individuals themselves should not be forced to bear public burdens alone...citizens of the city as a whole should all bear the cost of the bene

fit conferred from the necessity. i. Minority Rule Compensation - Once a taking isfound, compensation is required by operation of law. 1. However, some states have held that police destruction or seizure of property is not a constitutional taking. H. Private Necessity (Compensation) a. If D prudently and advisedly availeditself of Ps property for the purpose of preserving its own more valuable property, P is entitled to compensation for the injury done. b. If its theres necessity to avoid serious harm to person or property, there is a privilege to trespass, but if while trespassing the party damages the innocent land holders property thenthe trespasser is liable for those damages. i. There is no right to repeat thetrespass.

Negligence

1. D owed P a legal duty. 2. D negligently breached that duty (acted unreasonably under the circumstances). 3. P suffered actual damage. 4. Ds negligence was anactual cause of this damage. 5. Ds negligence was a proximate cause of this damage.

I. DutyA. Standard of Care - care that would be exercised by a reasonable person undersimilar circumstances to avoid risks of harm to others. a. Children i. (*maj rule)-Reasonable child of same age, intelligence and experience. ii. (*min rule)- rule of 7s (Still a case by case basis) iii. Except: When the activity child engages in is inherently dangerous (operation of powerful mechanized vehicles). Then, adult standard of care is used. b. Mental Disabilities i. Neither insanity normental deficiency relieves person from liability. ii. Standard of care - reasonable person under similar circumstances. iii. Mentally disabled person, involunt

arily hospitalized, doesn

t owe duty of care to his professional caregiver; notliable for negligence causing caregiver harm. c. Superior Knowledge i. If personhas more than min. intelligence to recognize a risk, he

s required to use the superior qualities reasonably under the circumstances. (note: rule does not go the other way for people with inferior knowledge) d. Sudden Medical Emergency Defense i. a. Operator of a motor vehicle who loses consciousness from an unforeseencause and is unable to control the vehicle, is not negligent. e. Physical Disabilities i. a. A physical disability is considered part of the circumstances. Ordinary care is such care


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as an ordinarily prudent person with a like disability. f. Dangerous instrumentality: i. if foreseeable danger is high you the amount of care increases 1. (i.e.- heightened standard of care bc pouring gasoline is a dangerous activity) g. Emergency instruction : i. still held liable for your actions even in emergency situations

II. Breach

A. Negligence Per Se (est. duty and breach) a. Occurs when D violates a statute.P must still prove that violation of the statute was the significant cause of the harm of which he complains. (*Even if a negligence per se claim fails, you can still prove negligence the old-fashioned way.) b. Two questions to determine negligence per se: i. Whether P belongs to the class of persons the statute was designed to protect, ii. Whether P

s injury is of the type that the statute was designed to prevent. c. Defenses: (Not comprehensive) i. Person neither knows norshould know of the occasion for compliance. ii. He is unable after reasonable diligence or care to comply. iii. He is confronted by an emergency not due to hisown misconduct. iv. Compliance would involve a greater risk of harm to the actor or others. v. Person is not in class statute is designed to protect and injuryis not of type designed to protect from. d. Licensing Statutes i. (Maj. Rule) T

ake violations of licensing statutes into consideration and weigh them to determine negligence per se. ii. (Min. Rule) A violation of licensing statutes will never be used as grounds for negligence per se. e. Procedural Effect i. (Maj. Rule) If you prove negligence per se, you have est. a clear breach of duty. ii. (Min. Rule) If you prove negligence per se, the procedural effect is only to createevidence of negligence. B. Carroll Towing Test a. Weigh risks and benefits to determine liability. What harms are foreseeable? How likely are those harms to happen? How much damage if those harms happen? What types of steps/costs should weexpect reasonable people to take in such circumstances to prevent or avoid the harm? If the risks outweigh the costs, then person should take those precautions.b. Cost/Benefit Analysis i. P=probability injury will happen, L=injury, B=burden of avoiding injury ii. Liability/negligence depends on if B is less than L multiplied by P: B


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tortfeasor

s share of damages. c. Several Liability & Comparative Fault Apportionment (Min. Rule) i. No tortfeasor is liable for more than his proportionate share. D. Custom a. Proof of a general custom tends to est. a standard by which ordinary care may be judged even where an ordinance prescribes certain min. safetyrequirements which the custom exceeds. b. Wal-Mart - Failure to follow a party

sprecautionary steps or procedures is not necessarily failure to exercise ordinary care i. A party

s standards might be higher than reasonable care and thus sho

uldn

t be the standard when evaluating conduct. c. Customary statutory violations - D who complied with all safety requirements of a statute might still be negligent if he failed to follow a safety custom. d. What does custom prove? i. Theharm was foreseeable. ii. D knew or should have known of the risk. iii. The riskwas an "unreasonable" one unless the customary precaution is taken. E. Res IpsaLoquitor a. (*Maj. Rule) Negligence can be inferred when the accident causing harm is a type that "ordinarily" happens b/c of the negligence of the class of actors of which D is the relevant member. i. The accident which produced a person

s injury was one that ordinarily doesn

t happen unless someone is negligent. ii.The accident must have been caused by something within the exclusive control ofD. iii. The circumstances indicated that the event was not caused or contributed to by P or third persons. b. (Min. Rule) Creates presumption of negligence, in

stead of inference. i. The jury is told that, once the presumption applies, D has the burden of showing he is not negligent, OR ii. The judge will direct a verdict for P unless D produces some evidence that he was not negligent. c. ControlRequirement i. Application has been liberal. It may be enough that the D has theright or power of control and the opportunity to exercise it. ii. When instrument has not been under the control of D for a while - P might show that any faultin the case was attributable to D merely by excluding other causes. (explodingbottle cases) d. Slip and fall cases - Courts reject res ipsa to show negligence. e. Multiple actors - Res ipsa does not help P when 2 or more D

s are in control of the instrumentality at different times.


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F. Determining Fault a. Circumstantial Evidence - evidence of one fact that permits an inference of another fact. b. Non-expert Opinion - Witnesses are requiredto state the facts within their knowledge and are discouraged from giving opinions on ultimate issues. c. Expert Opinion - Experts are usually allowed to giveexpert opinion within their field of expertise.

III. Harm and Causation

A. Actual Harm a. P must suffer legally cognizable harm - actual damages. (i.e.Physical harm, economic harm or emotional harm.) B. Cause In Fact (actual cause)a. P must prove actual harm, and that the harm was in fact caused by D. b. "But-for" Rule: but for D

s conduct, P would have avoided injury. i. But-for Test ofcausation - Judge or jury must imagine what would have happened without D

s negligence. c. Increased Risk Showing Causation i. When D negligently creates increased risk of harm, and that type of harm occurs, causation is est., or at leastan inference of causation is permitted. C. Injuries a. Indivisible i. Landers: Where tortious acts of two or more wrongdoers join to produce an indivisible injury (P can

t prove who did what and in what proportion), all wrongdoers will be held jointly and severally liable for all damages. ii. Anderson: If other wrongdoer is unknown, then the known D is responsible for all damages. b. Single i. Sum

mers: When D

s act in concert and cause a single injury that can

t be distinguished as to who caused it, burden of proof shifts to D

s to prove who didn

t causethe harm. ii. If D

s can

t show proof of who caused the injury, then D

s are jointly and severally liable for the injury. c. Substantial Factor Test i. D

s negligence has to be a substantial factor in bringing about the event that caused the injury. 1. i.e. if theres a raging forest fire and I negligently throw matcheson the fire and the fire destroys P

s house, am I liable? no, b/c my negligencewasn

t a substantial factor.


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Cause in Fact Exceptions to the But-For Rule Parties2 or more wrongdoers not in concert 2 wrongdoers 1 wrongdoer/1 innocent, unknown2 or more wrongdoers in concert 2 or more wrongdoers in concert 1 wrongdoer/1 innocent

Type of InjurySeparate Indivisible Indivisible Separate or Indivisible One single

(Summers)

LiabilitySeparate Joint and Several (Landers) All wrongdoer (Anderson) Joint and SeveralShift burden of proof No shift in burden

One single

D. Damages a. Loss of Opportunity Approaches: i. Lost Chance (Maj. Rule) 1. P may recover for loss of opp. injury when D

s alleged negligence aggravates P

s existing injury such that it deprives P of a substantially better outcome. P may recover portion of damages attributable to D

s negligence. a. D

s duty of care is

broad enough not merely to protect P against injury or loss of life, but also toprotect P against loss of substantial chances. If the chance of survival was 40% and D

s negligence more likely than not eliminated that chance, the D would beliable for the loss he caused - the chance. In damages, this is presumably 40%of the damages. b. This approach always gets the total amount of liability right, but gets the amount for each P wrong. (p.231) c. If D creates a risk of futureharm, some courts will award damages. ii. Relaxed 1. P must prove D

s negligence more likely than not "increased the harm" to P or "destroyed a substantial possibility" of achieving a more favorable outcome. P recovers damages for pre-existing condition rather than simply the loss of opp. (There is no number quantifying the %.) iii. Traditional (Min. Rule) 1. P must prove that as result of D

s negligence, she was deprived of at least a 51% chance of a more favorable outcomethan she received. Once P meets the burden, she may recover damages for entire p

re-existing condition.

IV. Proximate CauseA. Scope of Risk a. P must prove D

s negligent conduct was a proximate cause ofthe harm suffered by P. D is only liable for harms within scope of risks he created. b. D is not liable unless a reasonable person should have foreseen injuriesof same type that occurred and to class of persons who would suffer them. c. Isthe type of person injured foreseeable? i. Cardozo (maj.) Duty of care extendsto foreseeable Ps in the zone of danger. ii. Andrews D owes a duty of care to anyone suffering injuries as a result of Ds negligence as long as no unforeseeable intervening causes, remoteness in time and space, continuous chain of events. d.Is the type of harm foreseeable?


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i. Did the type of harm that D

s negligence risked happen? If so, this argues infavor of proximate cause. (If the type of harm is the harm D

s negligence risked, then it doesn

t matter the manner in which the harm occurs is.) e. Manner inwhich the harm occurs? (DOESNT MATTER) i. Even if manner in which harm occurs isunforeseeable, if the type of harm D

s negligence risks is foreseeable, D is still liable. f. Extent of harm is unforeseeable? (STILL LIABLE) i. Thin Skull cases - If harm was much worse than anyone would have expected, it doesn

t limit D

s

liability. 1. D

s act must have been one that would cause some harm to a normalperson, or D was at fault b/c he knew or should have known of P

s susceptible condition. B. Rescue Doctrine a. Danger invites rescue and it

s reasonably foreseeable that someone will try to rescue someone in danger. b. A rescuer can recover from D whose negligence prompts the rescue. C. Statute Violation a. D must have violated the statute and the injury must have been one protected by the statute. a. Intervening Person or Force b. Where acts of third person intervene btw D

s conduct and P

s injury, causal connection is not automatically severed. c. D is liable if intervening act is a foreseeable consequence of D

s negligence. a. Criminal Act d. Foreseeability of risk may be more precisely shown when intervening cause is a criminal or intentional act. (D may have facilitated the criminalact b/c of his negligence.) e. Old Rule - Courts would never find liability for

D when intervening act was caused by intentional or criminal act. f. Modern Rule- You can

t anticipate criminal acts, but sometimes those acts are foreseeableharms based on D

s negligence. a. Suicide Rule g. Suicides don

t break proximatecause chain if (1) the self harm is reasonably foreseeable, and (2) D owes someheightened duty to P (i.e. fiduciary, caretaker relationship). a. "Terminationof risk" h. D

s conduct created a risk, but the risk so created was no longer existent. Emphasizes that P had reached a position of "apparent safety." (Analogous to remoteness in time and space.) a. Second or Subsequent Injuries i. A tortfeasor responsible for the original accident is also liable for injuries/death occurring during the course of medical treatment to treat injuries suffered in thataccident. a. Intervening Forces of Nature j. D can escape liability if the harmdone is different from the harm that was risked by D

s conduct in the first place. k. Unforeseeable forces of nature are often called "acts of God," which then

puts the burden on D to show that the natural force was unforeseeable.


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V. Defenses to NegligenceA. Contributory Negligence (Old Rule) a. CN is a complete, all or nothing defense. Even a minor failure of P to exercise ordinary care for her own safety completely bars recovery. B. Comparative Fault (Modern Rule) a. Pure Comparative FaultSystem - % of fault. i. Amt. of damages recoverable are diminished in proportion to the amt. of negligence attributed to the person recovering. b. Modified Comparative Fault System - Negligence cannot be greater than the negligence of the

person against whom the recovery is sought. i. Any damages are diminished in proportion to the amt. of negligence attributed to the person recovering. c. Jury Instruction i. Away from enforcing blindfold rule, where juries get no instruction as to the effects of a 50% negligence finding. ii. If Ps negligence greater than 50%no recovery. d. Multiple Parties i. P can sue anyone more negligent than himself, or P

s negligence must be less than everyone else combined. C. Rescue Doctrine a. (Maj. Rule) Can use comparative negligence in a rescue case. b. (Min. Rule) Rescuer cannot be charged with contributory negligence, unless rescuer

s conduct was reckless. D. Res Ipsa a. (Modern Rule) Can use res ipsa, but how is thejury to assign a percentage of fault to each when D

s negligence is not known?b. (Old Rule) Courts bar application of res ipsa when P was guilty of contributory fault b/c it shows that D was not in exclusive control of the instrumentality

. E. Exceptions to Defenses a. Last Chance or Discovered Peril i. If D discovered or should have discovered P

s peril, and could reasonably have avoided it, P

searlier negligence would neither bar nor reduce P

s recovery. (Even though P was negligent, D had the time and ability to avoid the risk, but didn

t.) ii. **Instates that have adopted comparative fault systems, the doctrines have been discarded. b. Ds Reckless or Intentional Conduct i. (Modern Rule): Use comparative fault for all claims of injuries to persons or property for reckless behavior. ii. (Old Rule): P charged with contributory negligence was allowed a full recoveryagainst a reckless or intentional D. Comparative negligence is not a defense against an intentional tort. c. Ps Illegal Activity i. When P

s injury is a directresult of his participation in a criminal act, he cannot seek compensation for the loss. F. Causation and Scope of Risk a. Disregarding D

s Fault


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i. D

s non-causal fault - P

s comparative fault is irrelevant if D

s fault did not cause harm or is not a proximate cause of the harm. ii. Minimizing Damages Rule - Traditionally required P to minimize her damages by reasonable efforts andexpenses. b. Disregarding Ps fault i. P

s non-causal fault - P may recover full damages if her contributory negligence was not a cause in fact or proximate causeof her own harm. 1. P

s drives not watching where she

s going, D hits her frombehind. P was negligent, but not the cause of her harm. G. Ds Responsibility a. S

tatutes sometimes impose a duty upon D to protect P

s who are vulnerable or disabled. This might be especially important if: i. D knows of P

s disability that prevents or inhibits P

s care for himself; ii. P

s risky conduct endangers himself but not others. H. Assumption of the Risk (COMPLETE DEFENSE) a. P may have expressed or implied to relieve D of his duty or part of that duty. P must have knowledge of the risk and voluntarily encounter it. i. Expressed Assumption of theRisk 1. A valid contractual limitation on liability creates an absolute bar to P

s recovery from the other party to the contract. 2. Consider the following whenevaluating waiver: Clear, explicit, no contrary public policy, voluntarily entered into. 3. Cannot waive willful/wanton conduct, hidden or unreasonable risks.ii. Implied Assumption of the Risk 1. Increasingly, courts get the same resultsby using CN or no breach of duty, reducing P

s recovery of damages, not barring

them completely. b. 3 Categories: i. Primary Assumption of the Risk - Whether Dbreached a duty. If D prevails, no recovery. ii. Secondary Assumption of the Risk - Use CN (if both parties were negligent). Reduces P

s recovery if D is also at fault. c. Sports - Turcotte eliminates implicit assumption of risk. i. Old Rule: If you participate in sports, you implicitly assume a risk. ii. Modern Rule:Whether D breached his duty. When you participate in a sport, you are agreeing to lower (not eliminate) the duty of care of the other participants. However, onedoesn

t assume the risks of reckless acts. I. Statutes of Limitations a. (New Rule) Discovery Rule - SOL begins to run when P discovered or should have reasonably discovered the injury. b. (Old Rule) SOL starts running from the date of theinjury or the date of the malpractice. c. Latent Potential Harm - P

s harm maynot be fully developed when he sues, but if he waits until the harm fully develops, then he misses SOL. i. (Traditional Rule) P has to file within SOL, even if

he

s not fully harmed. P can, however, ask for future damages. Can recover if hecan prove more likely than not, future damages will occur. ii. (Modern Rule) Reject enhanced risk recovery but allow present damages and leave open the possibility for a second suit is substantially different damages occur. d. Exposure w/out symptoms i. Traditionally, P can recover for emotional damages for fear of future harm and medical monitoring expenses to detect harm. ii. However, some courts say you can bring a suit later if you actually develop the disease.


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e. Repressed Memories (min. rule) i. SOL tolled until memories are recovered. Need corroborating evidence. f. Disabilities i. SOL tolled during time of disability g. Minors i. SOL doesnt run until 18. J. Preemption and Compliance w/ Statutesa. Complying with laws is not a defense, but is merely evidence of reasonable care. In some cases, if the regulation is set by fed. law, sometimes that can conclusively set the duty of care.

VI. Limiting or Expanding Duty of CareA. Carrier & Host Drivers (commercial transportation) a. (Maj): Higher standardof care. b. (Min): Reasonable care under the circumstances. c. Guest statutes -only liable if D is willful or wanton. (courts have almost abandoned this idea)B. Landowners a. Invitee i. Any person on the premises (1) at least in part forthe benefit (business visitors) of the landowner or (2) who is on the premises held open to the general public. 1. Duty is reasonable care. Social guests are not invitees (maj. rule). 2. Landowner is liable for dangerous conditions that heknows or should know (basic inspection of land) of the dangers. b. Licensee i. Someone who is on the land with permission, but with a limited license to be there. 1. Duty of care to avoid intentional, wanton or willful injury when landownerhas not discovered danger to the entrant. 2. After discovery of trespasser and

that trespasser is going to encounter a danger, then ordinary care. c. Trespasser i. Any person who has no legal right to be on another

s land and enters the land without the consent of the landowner. 1. Duty of care to avoid intentional, wanton or willful injury when landowner has not discovered danger to the entrant.2. After discovery of trespasser and that trespasser is going to encounter a danger, then ordinary care. (Some courts say that if the landowner knows that trespassers frequent the land, then reasonable duty of care is owed - well beaten path over the RR tracks) d. Attractive Nuisance Doctrine i. A possessor of land issubject to liability for physical harm to children trespassing thereon caused by an artificial condition upon land if: 1. Trespass by child is foreseeable. 2.Landowner has reason to know of danger. 3. Child, b/c of age, will not be able to protect himself from the danger. ii. Common hazards, such as natural pools ofwater, are not considered attractive nuisances and the child trespasser is entit

led to no protection from the landowner. e. Open and Obvious Danger Rule i. Dutyto protect lawful visitors against dangerous conditions on property ordinarilydoes not extend to dangers that would be obvious to persons of average intelligence. 3 approaches:


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1. No duty to warn of obvious danger. 2. Assumption of the risk 3. Duty of careis not breached when harm is not foreseeable b/c you assume invitee can avoid and protect himself. f. Reasonable Care Standard i. About of the states either include social guests in the invitee category or completely or partly abolish the categories, with the result that all or most non-trespassing entrants upon land are entitled to reasonable care under the circumstances. ii. For abolishing the categories: The status of a person is part of the circumstances, and therefore ab

olish the categories. Reasonable care under the circumstances. iii. Against: Toomany cases would get to the jury. C. Firefighters Rule a. Precludes a firefighter (and certain other public employees) from recovering against a D whose negligence caused the firefighter

s on the job injury. Firefighters should not be allowed to recover when injured as a result of confronting known and accepted risks.b. Exceptions i. If the fire was set willfully or wantonly. ii. If the negligence that causes the injury is unrelated to the reason the officer was called to the scene. c. Some states have abolished or limited the rule, stating that a reasonable duty of care is warranted. D. Medical Profession a. Duty is set by the standard of care of the relevant medical community. i. Med. Community Definitions 1. (Min.) Modified Locality Rule: Drs. in your town and similar towns. 2. (Min.)Pure National Standard: All Drs. in country as one standard. 3. (Maj.) National

Standard: Adjusts for resources in a locality. b. Standard of care is usually established through expert testimony showing that the doctor was unskillful or negligent and that his want of skill or care caused the injury. c. Schools of Thought i. P has to show that no other major group of doctors would have done the procedure the way it was done to establish a breach of duty. ii. Specialists are held to the standard of their specialty. neurology, obstetrics. d. Referrals i. Specialists do not have a duty to refer to people outside of your specialty assuming specialists don

t have the proper knowledge. ii. Other courts feel if specialist discovers disease, then they have a duty to refer. e. Good Samaritan Act i.Rule immunizes from liability a medical provider who "in good faith renders emergency care at the scene of an emergency." 1. Only if physician doesn

t have a preexisting medical relationship with patient. 2. Some jurisdictions say rule applies to any scene of an emergency. 3. Some jurisdictions exclude hospitals and ot

her medical centers saying scene is considered only those locations where adequate medical care is compromised by the existing conditions. f. Res Ipsa i. Experttestimony may be used to bridge the gap btw the jury

s common knowledge and that of physicians. ii. Multiple Injuries - Where P receives unusual injuries whileunconscious in the course of medical treatment, all those D

s who had any control over his body or instrumentalities which might have caused the injuries may be called upon to meet the inference of negligence by giving an explanation of their conduct. (Courts are divided over this and


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1/2 don

t allow res ipsa in these instances.)


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g. Informed Consent i. (Maj.) Duty to disclose all significant medical info. physician possesses or reasonably should possess that is significant to a reasonable person to make an intelligent decision to undergo a proposed procedure. P mustalso show that had the proper info been provided neither he nor a reasonable person in similar circumstances would have undergone the procedure. The risk thatwas not warned of must materialize for a P to win an informed consent suit. ii.(Min.) Drs. should disclose only what is customary for reasonable drs. to disclo

se. iii. Incompetency - If a person is competent, they cannot be treated over their objection. If person isn

t competent, then rules of consent can be used. iv.Materiality test: (What must drs. disclose?) 1. Material risks 2. Hoped for gains 3. Alternative procedures v. Experience - If a dr. is inexperienced or unsuccessful with a certain procedure, some courts say the dr. must disclose that info. E. Nonfeasance a. No Duty to Act Rule i. One person owes another no duty to take active steps for another

s protection. D is liable for misfeasance (negligence in doing something active), but not for nonfeasance (doing nothing). b. Exceptions i. If person knows his conduct, tortious or innocent, has caused harm to another, he has duty to render assistance to prevent further harm. ii. Where D discontinues aid, liability is imposed if D, acting reasonably, has left victim ina worse position. iii. Where D renders aid, he has a duty to do it non-negligent

ly. iv. Where P and D are in a special relationship, D has a duty of reasonablecare whether or not D had anything to do with the risk of harm to P. 1. common-carrier/passenger 2. innkeeper/guests 3. employer/employee 4. parents/children F.Duty to Protect from Third Persons a. With limited exceptions, D owes no duty to protect P from a third person

s conduct. b. Exceptions based on D

s relationship with P i. Business owners - have some duty to protect customers against harm.1. Foreseeability Test (determines if there is a duty in the first place, thenwhether the duty is breached is decided later)When courts decide if business should have reasonably foreseen the crime, courts will use different approaches: a.Similar crimes on particular property. b. Different crimes on particular property and surrounding area. ii. Social hosts - have no duty to protect against criminal acts of third parties, unless person knows the third party will commit a crime. iii. Employers - owe a duty to employee only if employee comes into a posit

ion of imminent danger and employer knows of it. iv. School officials - duties of reasonable supervision. 1. Scope of duty imposed is limited by what risks arereasonably foreseeable. 2. Duty falls upon employees who have supervisory responsibility over students and have stepped into the role of parent.


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3. Schools can also be held liable if the attack happens outside of the normal school day. v. Landlords - sometimes owe a duty to their tenants. Courts are split. 1. If a landlord knowingly brings in dangerous third persons, he owes other tenants a duty to protect them. c. D

s Relationship with dangerous persons i. Landlord - duty to third persons to do all he legally can to get rid of a dangerouscondition on leased premises he reasonably knows of, even if it means getting rid of the tenant. ii. Employers - Negligent hiring or supervision 1. Employer ha

s a duty to prevent an employee that it knows or should know has a dangerous propensity, from committing such acts. iii. Parents - duty to control children 1. Parents are liable only for failing to control some specific dangerous habit of achild of which the parent knows or should know in the exercise of reasonable care. iv. Doctor-Patient 1. A therapist owes a legal duty to his patient, and alsoto his patient

s would be victim to disclose information to prevent danger. 2.Doctor

s don

t have to inform patient of who they might inform of the info (tellthe police) b/c it would be medically contraindicative. 3. A physician has a duty to provide adequate info to a patient so as to not spread a disease to a third person. d. Negligent Entrustment i. If you own a potentially dangerous instrument and you give it to someone you know at the time is not capable of not usingit safely, you can be liable for the harms that person causes with that instrume

nt. ii. Bar Owners 1. One who sells alcohol for on the premises consumption hasa duty to exercise reasonable care not to sell to a noticeably intoxicated person. 2. Even if the vendor breached his duty, P must still show that the illegal sale of alcohol led to the impairment of the driver which was the proximate causeof the injury. 3. Some courts still follow CL and won

t hold alcohol providersliable for harms caused to third parties even if they serve to minors or obviously drunk people b/c there

s no proximate cause. G. Negligent Infliction of Emotional Distress (NIED) a. Fright or Shock from Risks of Physical Harm i. Impact Requirement (traditional rule) 1. Cannot recover for emotional distress alone. P must demonstrate some physical impact/injury in order to recover for NIED. ii. NoImpact (new rule) 1. Does not require a physical injury at the time of the event that causes the emotional distress. However, P must show a physical manifestation of the shock or fright resulting after the events in question. (either impac

t or later manifestation) iii. Some states have abolished the physical injury/manifestation requirement altogether. b. Mental Distress Resulting from Injury toAnother


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i. Zone of Danger Test 1. A P within the zone of danger of physical impact willbe able to recover for emotional injury caused by fear of imminent physical injury to himself. 2. Exceptions (No impact, but within zone of danger - those who might foreseeably suffer emotional harm b/c of the injury) a. Dillon factors to consider (more flexible) i. Whether P was located near the scene of the accident.ii. Whether the shock resulted from a direct emotional impact upon P from the sensory and contemporaneous observance of the accident. iii. Close relationship b

tw P and victim (immediate family). b. Thing requirements to recover (stricter than Dill) i. P is closely related to victim. ii. Present at the scene of the injury producing event at the time it occurs and is aware its causing injury to victim. iii. As a result suffers serious emotional distress. c. Bird zone of dangertightened i. Must be there at the time of the negligence to recover. Doesn

t matter if you witness the suffering right after the event. ii. P must also have feared for own safety. c. Loss of Consortium i. Claim for loss of support services,love, companionship, society, etc. (spousal) Based on the recognition of a legally protected interest in personal relationships. ii. Does not apply to adult oremancipated children. H. Prenatal Harms a. Third Party Negligence i. Old Rule:No recovery for injury caused to unborn fetus. ii. New Rule: iii. Factors for liability 1. At what point during the pregnancy did the injury occur? a. Some cour

ts allow recovery for injuries that occur anytime during the pregnancy. b. Somecourts allow recovery for injuries that occur after the fetus is viable. 2. Whether the child is born alive. a. Born alive, but injured, courts will find liability. b. (Min. Rule) If the child is born dead, courts will not find liability. c. (Maj. Rule) If the child is born dead, there can be liability, assuming the fetus was viable at the time of the injury. b. Negligence by Mother i. Mother owesno duty to unborn fetus. c. Wrongful Conception i. Doctor negligently performssterilization procedure and child results. P sues for child rearing costs. Mostcourts recognize this type of claim. ii. Damages 1. Full Recovery Rule - recoverall the costs of raising the child. 2. Benefit Rule - recover costs of raisingthe child offset by the benefits incurred by having the child. 3. No Recovery Rule - parents get no recovery for the costs of raising the child, however, they can recover for expenses resulting from the pregnancy. d. Wrongful Birth i. Claim

by the mother stating she would have terminated the pregnancy if the doctor wouldn

t have been negligent in failing to diagnose genetic defects of fetus.


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ii. Most courts recognize this type of claim. e. Wrongful Life i. Courts do notaccept this type of claim. Child cannot recover for being born. I. Death a. Survival Action i. Continuation of any tort claim decedent had before he or she died. ii. Suit doesn

t have to be filed by decedent before he dies. May be brought by decedent

s estate after they die. iii. Damages go to the estate, not necessarily heirs, etc. (D

s tort isnt necessarily related to the act that caused the death.) 1. Award punitive damages - general rule: must est. pain and suffering. Smit

h, however, says no est. of pain and suffering is required b/c we are punishingD for his tortious behavior. Courts are split re: pain and suffering. 2. Additional damages may also be recovered: medical expenses, funeral, wages lost beforedeath. b. Wrongful Death Action i. Claim that someone

s tort killed the decedent. ii. Survivors, heirs, spouses (typically not stepchildren and courts are spliton non-custodial parents) bring action for damages they incur as a result of the decedent

s death. iii. D can use traditional defenses in a wrongful death suit- comparative negligence, assumed risk, etc. iv. Damages - Attempts to make thesurvivors whole. 1. Award pecuniary ($$) damages that result from the death. Medical, funeral, loss of future support, loss of consortium. 2. Typically no punitive or emotional distress damages. 3. Two Methods of Calculation: (some courtsuse both) a. Loss to survivors method (maj. rule) - Loss of support to dependent

s, housing, food. b. Loss to the estate method (min. rule) - Survivors get moneydetermined by decedent

s probable lifetime earnings and deduct what courts think decedent would have spent on himself.

VII. Strict LiabilityA. Respondeat Superior and Scope of Employment a. Employers can be liable for the torts of their employees if the tort was committed within the scope of employment. i. The employer is receiving the benefit of the employee

s actions, therefore it

s foreseeable that the employees may cause damages and it would be fair that the employer internalize those costs. b. What is w/in Scope of Employment? i.Furthering the master

s interest. ii. Act is triggered by the employment relationship. iii. If the act is a well-known hazard in the particular enterprise, andemployee commits that act. If job puts employee in a position to commit the act

, employer is liable. (Min. Rule) c. Going and Coming Rule i. An employee going toand from work is ordinarily considered outside the scope of employment. ii. Exceptions: 1. Special hazards - if going to work requires going through really dangerous conditions, then that travel time is under the scope of employment. 2. Dual purpose - employee is commuting, but at the same time is serving a purpose


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of the employer. If that employee wasn

t doing the service, then the employer would have to get someone else to do it. (more common) d. Frolic and Detours - Ifdetour is minor, then employee is w/in scope of employment. Look at the amt. oftime and distance. Farther and longer is considered a frolic. e. Personal Comfort Doctrine - personal comforts (getting coffee, going to the bathroom, smoking)are considered w/in scope of employment. f. Prohibited Acts Even if employer expressly forbid an act, an employer may be held accountable if employee commits th

e act while within the scope of his employment. B. Common Law Development of SLa. D can be liable even if no one is at fault. Damages also needn

t be proven. b. Brown v. Kendall - If act was unintentional and done in doing a lawful act, Dis not liable unless: i. D wasn

t using reasonable care. 1. Burden of proof is on P. 2. C. Modern Strict Liability a. Livestock i. (Maj. rule) An owner is liable if his livestock that trespass on neighbor

s property (either intentional or if they escape) even if he took reasonable care. Don

t need to show fault. ii. (Min. Rule) Fencing in laws - D can avoid strict liability under CL if he puts a fence around his animals and they escape. He can still be liable just not under strict liability. iii. (Min. Rule) Fencing out laws - If P lives near livestock,P must put up a fence on his property and if livestock get in, he has a strict liability claim against D. b. Wild Animals i. Wild does not necessarily mean dang

erous, merely not domesticated. ii. Rule - owner is strictly liable for the foreseeable types of harms that animal could cause. iii. D cannot avoid liability bytreating the wild animal as if it were domesticated or by taking reasonable precautions. c. Dangerous Animals i. Strict liability is imposed upon domesticatedanimals if the owner knows or should know the animal is dangerous in some way. ii. One Bite Rule - If dog bites a person, but has never bitten anyone before, owner is not strictly liable b/c he didn

t have reason to know his dog would bite(unless the dog is inherently dangerous). However, if the dog bites again, ownerwill be held strictly liable. d. Ultrahazardous Materials Strict Liability i. (Rylands v. Fletcher) 1. D makes unusual use of his land that then harms someoneelses land. D has a right to use his land in a natural way, but if he alters hisland in an unnatural way, D is strictly liable for the harms caused. 2. D storespotentially dangerous materials on his land and they escape or cause harm (does

n

t matter if he takes precautions or uses reasonable care). ii. 1st Restatement: Ultrahazardous Activities 1. Especially dangerous 2. Couldnt be made safe evenby the exercise of utmost care. iii. 2d Restatement: Abnormally Dangerous 1. Whether activity creates a high degree of risk of harm. 2. The likelihood that theharm will great


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3. 4. 5. 6.

The inability to eliminate the risk by using reasonable care. Whether the activity is uncommon. The inappropriateness of the activity to the place where it

s carried out. The extent to which the value of the activity is outweighed by its dangerous attributes.

iv. 3d Restatement: Liability without proof of negligence when these things occur: 1. Activity creates a reasonably foreseeable risk of physical harm. 2. Risk is significant 3. Risk remains even when reasonable care is exercised 4. Activityis not a matter of common usage. 5. (cmt. As long as P is exercising reasonablecare, liability will be imposed. Can

t bring strict liability claim if P

s negligence is a cause of the harm. - min. view) v. Social Policies 1. Create disincentives for people to engage in dangerous activities. 2. Create incentives to beas careful as possible. 3. Theses types of activities are usually done by commercial enterprises and they should bear the costs of the dangerous activity. 4. Common usage cuts against strict liability b/c when the activity is common, the costs are already spread throughout the community. e. S/L Subjects Today i. Impoundments - noxious substances that escape D

s land. ii. Lateral Support - neighbor

ing landowners owe a duty to neighbors for lateral support. iii. Blasting and explosives iv. Fire - no strict liability v. Poisons - crop dusting vi. Land damages from airplanes f. Legal Cause i. P still has to show actual cause and proximate cause. ii. (Maj.) Cannot break the proximate cause chain w/ intervening forces. iii. (Min.) Intentional bad acts of a party can break the proximate cause chain. g. Defenses i. (Traditional/Maj.) - Assumption of the risk is a defense, comparative negligence is not. ii. (Very Min.) 3d Restatement calls for a change such that both assumption of the risk and comparative negligence can be used.


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VIII. Products LiabilityA. 2d Restatement a. Ds are liable for harms caused by defective/unreasonably dangerous products. i. But just b/c a product caused a harm, it doesn

t mean D is liable. The product has to be defective in some way. b. Test i. Consumers

reasonable expectations determine whether a product is defective. P must still prove actual and proximate cause. c. Who can be Ps? i. Users/consumers (includes anyonewho has been hurt by the product-third parties). d. Who can be Ds? i. Manufacture

rs, wholesalers, retailers (typically in the business of selling such products)1. Some states say a retailer is not liable for defective products its sells ifproduct arrives and is sold in a sealed container. 2. cmt.g: strict liability applies if the product is defective at the time it leaves D

s hands. e. Economic losses do not fall under SL i. Damage for inadequate value of product itself, cost of repairing or replacing defective product, loss of profits b/c of defectiveproduct. B. 3d Restatement a. Makes product liability law more like negligence law and less like strict liablity law. C. Evolution of Liability Theories a. Misrepresentation i. If P is injured by D

s product after a misrepresentation of a safer, non-defective product, D may be held liable. b. Warranty i. No privity requirement in implied warranty cases. It ran to the purchaser and not just the retailer. c. Justification: i. Consumers expect to get reasonably safe products. ii

. Practicality - if a product was defective, D was probably negligent somewhere.iii. Justice and fairness - Businesses impose certain costs as part of its enterprise and it

s inevitable they will produce defective products, therefore theyshould be responsible for their harms. iv. Efficiency - Companies are in the best position to spread the costs of defective products. v. Deterrence - Creates incentive to minimize the production of defective products. D. Types of Defects a.Manufacturing i. A physical departure from a product

s intended design. It canoccur even if there is nothing wrong with the product

s actual design. ii. Injured party must prove: 1. Product was in a defective condition, unreasonably dangerous for its intended use; 2. Such defect existed when product left D

s control;and 3. Defect was the proximate cause of the injury sustained. iii. Consumer Expectation Test 1. To determine whether the product was defective and unreasonably dangerous, ask whether the product is dangerous beyond the contemplation of th

e consumer. iv. 3d Restatement Test 1. A product contains a manufacturing defectwhen it departs from its intended design even though all possible care was exercised in the preparation and


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marketing of the product. v. Res Ipsa 1. An inference of a defect may arise evenwhen P fails to prove what specific aspect of the product was defective. 2. A product defect existing at the time of sale or distribution caused P

s harm whenthe event: a. Was of a kind that ordinarily occurs as a result of a product defect; and b. Was not solely the result of causes other than product defect. vi. Food Products 1. (Min.) Foreign-natural test - no SL if the substance found in thefood was a natural object. 2. (Maj.) Consumer expectation test - A harm-causing

ingredient is a defect if a reasonable consumer would not expect the food to contain that ingredient. b. Design i. If a product is misdesigned, every one of the products represents a potential lawsuit against the manufacturer (recalls). ii. A product is design defective if: 1. It is more dangerous than an ordinary consumer would expect when used in an intended or reasonably foreseeable manner (consumer expectation test); or 2. If the benefits of the challenged design do notoutweigh the risks inherent in such design. (risk-utility test) - doesn

t applyif the risks arise out of the way the product was designed to function. a. Reasonable Alternative Design i. Safer alternative design that would have prevented or significantly reduced the chance of injury w/out substantially impairing product

s utility. ii. The safer alternative was both technologically and economically feasible. iii. P must show that safety benefits from its proposed design are f

oreseeably better than the resulting costs. iii. Burden of Proof 1. (Min.) Burden of proof is on D to show product wasn

t defective. 2. (Maj.) Burden of proof is on P to show product was defective. iv. Tobacco won on design defect, but loston negligence. v. Firearms 1. For a design to be defective, a product must be unreasonably dangerous for its intended use. Just b/c a product, by its very nature is dangerous, doesn

t mean it was designed defectively. vi. Drugs 1. 2d Restatement a. Some products are incapable of being made safe in their intended and ordinary use. (i.e. medical drugs and side effects) If product falls in this category, then P can only use the risk utility test. b. Limits: Have to show usefulness outweighs the harms it causes and can

t be made any safer (rabies vaccine) 2. 3d Restatement a. Uses the risk-utility test for everything. vii. Unknowable Risks 1. Product is dangerous but manufacturer had no way of knowing at the timeit was made. Maj. no liability.


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c. Warning/Information i. SL is imposed when D fails to provide an adequate warning for reasonably foreseeable harm and the failure to do so causes injury. ii.Just putting a warning on a defective product, however, doesn

t make the manufacturer immune from liability. iii. 2 types of warnings: 1. Alert users to risks that are not obvious. 2. Inform users of safer alternatives. iv. Under what circumstances must warnings be given? 1. Point of Sale and On Product Warnings a. When the product

s foreseeable risks of harm could have been reduced or avoided by

a reasonable warning and the omission of such a warning renders the product "notreasonably safe." 2. Post-Sale Warnings a. When a latent defect making the product hazardous to life becomes known to the manufacturer shortly after the product has been put on the market. b. Duty to Recall/Repair? (split) i. There must have been a defect that was actionable at the time of manufacture. 1. A safety device that is developed after the product is sold, doesn

t mean manufacturer is liable b/c the product doesn

t have the safety device and someone is injured as aresult. ii. Even if product is not defective at the time of sale, if it subsequently comes out that the product is dangerous and the cost of recall/repair is low, manufacturer has a duty to keep abreast of the field. c. 3d Restatement i. Aseller or distributor is obligated to give a post-sale warning when a reasonableperson would do so. A reasonable person would give such a warning if: 1. He kne

w/should know that product poses substantial risk of harm; 2. Those to whom a warning might be given can be identified and assumed to be unaware of the risk; 3.A warning can be effectively communicated; 4. The risk of harm outweighs the burden of giving such a warning. 3. Obvious Danger Rule a. No duty exits to warn of dangers that are obvious or should be obvious. b. Obvious danger is tested viathe reasonable consumer expectation.


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4. Heeding Presumption a. Courts usually presume that P would have read and heeded the warning, leaving it to D to show otherwise if it can, the "heeding presumption." v. What is an adequate warning? 1. Warnings must be reasonably clear, noticeable and with sufficient force to be effective. 2. If it

s foreseeable thatsomeone will scan and not read the manual, it

s enough to get to the jury. a. IfP admits that he didn

t read the manual at all, then there

s no causation. 3. It may not be enough that the warning says do not do something. The consequences

of doing something (if death or serious injury) must also be included. (indicatethe degree of danger) 4. Foreign Consumers a. No court has required a warning in another language even when the product is advertised in that language. b. However, some courts have required pictures and symbols where illiterate users are foreseeable. 5. Civil Conspiracy a. P can

t determine who made defective product,so D

s can be joined together under a civil conspiracy claim that says the D

swere acting together to actively conceal a danger. b. Recall Summers v. Tice where the court shifted the burden to D to figure out which wrongdoer caused the injury. vi. Who must give the warning? 1. Manufacturers 2. Retailers have to passon the warning. vii. To whom must the warning be given? 1. To the ultimate consumer of the product. 2. Exception: a. Learned Intermediaries and Sophisticated Users i. Generally just to the drs. who prescribe the drugs, who then has the duty

to warn the patient. ii. If Dr. fails to warn patient about the dangers of thedrug, the patient may have an action against the dr. but not a failure to warn suit against the manufacturer. 1. Exception: 3d Restatement - Warnings about prescription drugs and medical devices must be given directly to consumers only whenthe manufacturer knows or had reason to know that the learned intermediary willnot be able to reduce risks of harm in accordance with instructions or warnings. (i.e. mass inoculation) E. Defenses a. Comparative Negligence i. (TraditionalRule) CN of P is not a defense to a strict liability. ii. Products liability rule 1. 2d Restatement - D cannot use CN as a defense. Only assumption of the riskor misuse. 2. 3d Restatement allows CN and assumption of the risk (making it more like


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negligence). a. However, jurisdictions will not allow CN if the alleged negligence is failing to discover the defect. b. No distinction btw CN and assumption ofthe risk under R3 for product

s liability and therefore assumption of the riskisn

t necessarily a complete defense. i. Maj. of courts still say that assumption of the risk is a complete defense. b. Assumption of the Risk i. Complete defense if P voluntarily and knowingly assumed the risk occasioned by the defect. c.Misuse i. P used product in a way that was not reasonably foreseeable. ii. Not a

n affirmative defense, but rather has to do with P

s prima facie case. P must est. that product was unreasonably dangerous in a reasonably foreseeable use (by arange of consumers - not intended users). Maj. rule iii. 3 Approaches: 1. Somecases can be viewed as no defect cases. 2. Misuse means defective product wasn

ta proximate cause. 3. Misuse can sometimes be combined with the idea of comparative fault. iv. At what point is misuse foreseeable? 1. If there was a defectivedesign, then misuse is foreseeable. Manufacturers must design products for thereality of foreseeably use...careless people, etc.


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d. Proximate Cause i. Superseding Cause D must first prove that the negligence or misuse was not reasonably foreseeable. ii. Substantial modifications of a product from original condition by third party are not the responsibility of the manufacturer, unless modification is reasonably foreseeable. iii. (Min. Rule) Misuse looks at intended users, not foreseeable users. iv. Thin Skull Rule 1. Even ifthe extent of harm that the defect caused is greater than the extent of harm that would have happened to an ordinary person, manufacturer is still liable for a

ll harms. v. Some things aren

t reasonably foreseeable. 1. i.e. Claim by P thattires were defective. Decedent got flat tire, was stranded and murdered. Court found that there was no proximate cause. However, one could argue that criminal acts by people are sometimes foreseeable. e. Warnings & Disclaimers i. If D givesclear and simple warnings, and P ignores those warnings, it will be easier forD to argue misuse b/c it wouldn

t be reasonably foreseeable that P would ignorethe warning. ii. Disclaimers say "Product is dangerous, manufacturer will not beliable for harms caused." or basically tells person not to do something, but doesn

t say why. 1. Manufacturer cannot avoid liability by disclaimers on a new good. 2. However, disclaimers can be effective for sale of used goods. i.e. used car is sold "as is" f. Compliance w/ statute i. If a manufacturer shows it complied with stat. mins., that can be evidence (but not proof) that product was not d

efective. ii. Preemption of liability 1. Congress can preempt state law if it sochooses. If manufacturer then complies with fed. and not state laws, he would not be liable. g. Services (intangibles) i. Restatement 2 & 3 - Product

s Liability applies only to products, not services. 1. R 3 definition of products: Only tangible, commercially distributed, personal property things can count as products that can be defective. Or items sufficiently analogous to warrant applicationof the same rules. (i.e. electricity, although not tangible, is viewed as a product.) ii. Note: blood is not a product. Supplier of blood is not strictly liable.


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