4. Torts Full Outline

8/6/2019 4. Torts Full Outline

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Torts II Outline

I. Strict LiabilityNo Regard to the Actors State of Mind: One who carries on an

abnormally dangerous activity is subject to liability for harm to the person, land,

or chattels of another resulting from the activity, although he has exercised the

utmost care to prevent the harm.

A. Act

1. Abnormally Dangerous Activity

a. risk of harm

1) uncertain or uncontrollable risk

b. likeliness that the harm that results will be great

1) what property owner does with adjacent land

c. reasonable care does not eliminate the risk

d. not a matter of common usage

1) common usage

a) customarily carried on by the great mass of mankind OR many

people in the community

b) ***ARGUMENTS FOR CARRIED ON***

1. Carried on means the person or the entity who undertakes in

the activity. Courts prefer easy rules because they promote

predictability and consistency for future cases. Adopting this

rule will further this value because it is easier to establish who

carries on the activity rather than who is affected by the activity.

Here, ____________ and therefore was the person undertaking

in the activity.

2. CounterCarried on means those persons affected by the

activity. Easy Rules ignore relevant factors. Adopting this rule

will further this value because the court can look to the

surrounding circumstances and determine who is affected by the

activity. Here, ____________ and therefore is affected by the

activity.

3. Alternative--Carried on means those persons affected by the

activity. Crop dusting is a business the court should encourage.

Adopting this rule will further this goal because crop dusting is

widely used and beneficial to the citizens of the state. If the

court penalizes this business for a mistake, it will deter this

business. Here, ____________and therefore is affected by the

activity.

e. Inappropriate place

1) Where is the activity?

2) Where is it taking place?

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f. Balancing the risk of the activity versus the benefit to the community

1) ***ARGUMENTS FOR RISK V. BENEFIT***

a) RISK: The court should encourage crop dusting. Adopting this rule

will further this value because crop dusters can still benefit

economically from spraying other farms. Because they benefit

economically, they can also pay for the damages they cause. Since

they can spread the cost of damage to other consumers, they can

pay for damages. Here, _________________and therefore the risk

outweighed the benefit.

b) BENEFIT: The court should encourage crop dusting. Adopting this

rule will further this value because relaxing liability for mistakes will

encourage this business and will not impose unnecessary costs.

Here, _______________ and therefore the benefit outweighed the

risk.

B. CausationLimitation of Liability

1. Risk that makes the activity abnormally dangerous must be the risk that

causes the injury.

a. Risk directly effected the outcome RISK = OUTCOME

b. Likelihood of harm will be great

2. is not responsible fors non-natural use of the land

a. ***ARGUMENT FOR RISK***

1) Risk that makes the activity abnormally dangerous must be the risk

that causes the injury. People have a duty to protect others. Adopting

this rule will further this value because people with knowledge of the

risk are in a better position to protect others who have no knowledge

of the risk, and the above interpretation reflects this. Here, the risk

was __________ and caused the injury.

b. ***ARGUMENT FOR NON-NATURAL***

1) is not responsible for s non-natural use of the land. People should

only be responsible for anticipated risks. Adopting this rule will further

this value because it will relax liability on those who cannot anticipate

the risk and prevent frivolous claims. Here, ________________ and

there for is not responsible for the non-natural use of s land.

C. Defenses1. Acts of God

a. Plainly beyond the capacity of anyone to anticipate

1) act of God not necessarily weather related

2) MAJORITY: because it hasnt happened before

2. Contributory negligence--s own conduct 4-PART TEST

a. Unnecessarily

b. Probable Consequences

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c. Knowledge of the Consequences

1) Actual Knowledge or Should have known

a) ***ARGUMENT FOR KNOWLEDGE***

1. Majority view prefers knowledge as what the should have

known. Courts like easy rules. Adopting this rule will further

this value because it is a consistent and predictable standard

for future cases. Here,

was an *adult, child of ___yrs old,and therefore should have known________.

2. Alternative: The court should deter careless actions.

adopting this rule will further this value because it will place

liability on the person in the best position to anticipate danger

and change their behavior. People will want to change their

behavior because they are motivated by money, and this is a

behavior they can change. Here, was careless and

therefore should have known the danger.

d. Voluntary1) Acting under ones own power

a) ***ARGUMENT FOR ACTING UNDER ONES OWN

POWER***

1. People are responsible for their own actions and should take

care of themselves. Adopting this rule will further this value

because liability will be placed on the careless individual and

it will deter careless actions. here, was__________and

therefore acted under his own power.

Strict Liability Analysis

I. What activity is engaged in?II. Is it abnormally dangerous

A. 6-part balancing test

III. Are there any limitations?

A. Causation

1. Risk directly effected the injury OR

2. Is

engaged in non-natural use of land?IV. Defenses

A. Acts of God

B. s own conduct1. Voluntarily and unnecessarily putting ones self in harms way

knowing the probable consequences of his act.

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NEGLIGENCE

I. Negligence (Cardozo)

A. Duty of Care

1. Statutes

2. Common Law

a. Foreseeable

1. Are they in s zone of danger

a) Sufficient Connection

1) Physical closeness

2) Time connection between act and injury

3) Relationship between and

a. Professional?b. Personal?

4) If unclear, make a short argument why there is a sufficient

connection.

2. Special Relationship will determine the duty of care

a) Trespasserlow standard

1) No permission to use s land

2) Duty arises at the moment of discovery

b) Licenseeshigher standard

1) Social guest2) On the s property for his own purpose

c) Inviteehighest standard

1) Person invited on the owners property

2) To further the owners purpose/business

b. Foreseeable Risk

1. General RuleReasonably Prudent Person under the circumstances

a. Situations

1) Emergency Standard

a.Why? ***

ARGUMENTS FOR EMERGENCY STANDARD***

1. --Not held to an emergency standard. One whobreaks the law should be liable for all results. Adopting

this rule will further this value because liability will be

placed on the one who caused the injury rather than a

burden on the innocent, injured party. Here, __________

and therefore held to a reasonably prudent person under

like circumstances.

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2. --Emergency Situation Standard. It is reasonable toexpect that a person will not act rationally in an emergency

situation. Adopting this standard will further this value

because it will relax liability during circumstances where a

reasonable person is unable to act rationally. Here,

_________ and therefore held to a standard in an

emergency. The Emergency standard is:

b. ELEMENTS: APPLY THIS

1. Situation not of s own making

2. Patent danger

a) Threatens your or others safety

1) Outside force

2) 3rd party conduct creates situation

3. Only a moment left to extricate selfTIMING

2) Traits

a. Age

1. Why? ***ARGUMENTS FOR STANDARD OF CARE FOR

CHILDREN***

a) Same standard of care as adults if it is an

inherently dangerous activity. The courts should

discourage dangerous activities regardless of age.

Adopting this rule will further this goal because children

will be liable if they undertake inherently dangerous

activities while preserving the encouragement of

undertaking in other child activities. Children will want

to change their behavior because they do not want to

be in trouble, and this is a behavior that every child can

change. Here, s conduct was____________ and

therefore held to the same standard as a reasonably

prudent adult under like circumstances.

1) Inherently dangerous activity

a) Operating a motorized vehicle

1. IF NOT A MOTORIZED VEHICLE:

a. Arguments

1) SITS ________ is similar to a motorized

vehicle because ___________. Those who

operate _________ can be liable. If we

treat _______ and ________ similarly, and

those who operate _________ can be

liable, then necessarily those who

operate __________ can be liable, and the

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above rule reflects this. Here, was

operating a _______ and is therefore

inherently dangerous.

b) Standard of care of a child with similar age,

intelligence, experience, training, and maturity.

We want to encourage children to pursue childhood

activities without the same burden and responsibilities

with which adults must contend. Adopting this

interpretation of reasonable care will encourage

children to pursue such activities without the burden

adults contend with because they will not be liable for

acts that require an adult capacity and judgment. Here,

is a __-year-old child and therefore is held to a

standard of care expected of child with similar age,

intelligence, maturity, training, and experience.

1. May be heightened if these factors are high:

a. Child with heightened age, experience etc.

b. Physical Disability

1. General Rule OR Exception

a. Reasonably prudent personGeneral Rule

1) Which One and Why?

a) Reasonably prudent personsimilar interests

are treated similarly. A person with ______

disability is similar to a person with permanent

disability because _________. If we expect people

with permanent disability to exercise the same

standard of care as a reasonably prudent person,

and a person with _______ disability is similar, then

necessarily the person with __________ disability is

held to the same standard of care as a reasonably

prudent person. Here, has ____________

disability and is therefore held to the standard of

a reasonably prudent person in like

circumstances.

b) Exception to the rule. No liability without fault.

Fault requires the ability to anticipate

consequences of ones action. People who are

temporarily incapacitated mentally have no ability

to anticipate consequences, and therefore cannot

be at fault. Here, is temporarily incapacitated

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and therefore is held to relaxed standard of care.

The mental condition must affect:

b. The ability to control conduct OR

c. Understanding and appreciation of the duty AND

d. Must not have notice or forewarning

c. Physical Disability

1. What standard and Why? ***ARGUMENTS***

a. General Ruleone who breaks the law should be liable

for all resulting injuries. Adopting this rule will further

this value because it will not preclude ones liability for

an injury on an innocent party who had no control over

the situation. Here, __________ and is therefore held to

the standard of a reasonably prudent person.

b. Reasonably prudent blind person. People with physical

disabilities are similar to other people with the same

disabilities because their lifestyles require an

enhancement of other senses and activity to make up

for those that they lack. Here, has _________ disability

and should therefore be held to the standard of a

reasonably prudent [disability] person.

3) Professionals

a. General RuleReasonably prudent [professional] in similar

circumstances

1. Comparable to professional with the same learning skill

and ability as another similarly situated in the profession.

b. Lawyers

1. Requisite knowledge

a) Usually conceded

2. Best Judgment

a) Not a mere error of judgment BUT

b) LACK OF Discretion

1) Subjective good faith determination

2) ArgumentSITS. Doctors = Lawyers

3. Exercise of Due Care

a) Mechanical determination

1) Examplefailure to research claim

2) Failure to file before the statute of limitations has

run.

3) ArgumentSITS. Doctors = Lawyers

c. Physicians and medical facilities

a) Locality Rule

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1) ArgumentThe court should encourage medical

profession the provide medical care for their

community. The national standard will discourage

the hospital form caring for their patients because

they will not want to be liable. Here,

hospital/physician is ________ and should be held to

the local standard.

b) Similar Rule

1) Institutional Competence. The court is in a better

position to hear and decide facts of similar localities

based on demographics, ethnic compound, and

socioeconomic issues such as funds and expenses.

Adopting this rule will further this value because the

legislature cannot provide an accurate determination

on a national basis. Here, is ___________ and

should therefore be held to the standard of a similar

community.

c) National StandardAdmininstrability. Social Policy.

The courts should encourage high quality medical care.

Adopting this rule will further this value because the

other standards, such as the local rule and similar rule

breed a sub-standard of medical care. Here, is

_______ and should therefore be held to the national

standard.

2. Looking through the Eyes of the Defendant

a. Was the Risk something the should have foreseen OR was

conduct reasonable or unreasonable

1) For liability, the probability and gravity of the injury must

outweigh the burden of adequate precautionsBALANCE

a) Burden

1. Knowledge

a. argues HIGHREASONABLE INSPECTION

b. argues LOWER

1) ACTUAL KNOWLEDGE OR2) CONSTRUCTIVE KNOWLEDGE

2. ***ARGUMENT IN SUPPORT OF CHOICE***

a. argues LOWER. Burden should be measured by whatthe knew or should have known. The court should

encourage safety towards other individuals. Adopting

this rule will further this value because it will place

liability on those who are in a better position to know of

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the danger. Liability will encourage people to change

their behavior. Finally, this is a behavior that people can

change, and the above rule reflects this. Here, ______

and therefore should have known of the danger.

b. argues HIGHERThe burden should be measured bywhether the should have known through reasonable

inspection that the danger exists. Social policy shouldencourage the free use of ones land. Holding s liable

for failure to inspect every aspect of their land would

discourage the free use and enjoyment of ones land

and would therefore contradict the policy, and the

above interpretation reflects this. Here, __________

and is therefore held to the higher standard of

reasonable inspection.

3. IfTRESPASSER

a. FOR KNOWLEDGE, ARGUE: Moment of DiscoveryORreasonable effort to reduce the risk

1) : Look to the s conduct. must make areasonable effort to reduce or avoid the risk to

trespassers because one who breaks the law should

be responsible for the resulting injuries. Adopting

this rule will further this value because the party

causing the injury is in a better position to protect

the innocent, injured party, and the above rule

reflects this. Here, s conduct was ___________ andtherefore must make reasonable effort to reduce or

avoid the risk.

2) : The moment of discovery means actualdiscovery or knowledge because the law should

discourage trespassing. Adopting this interpretation

will further this value because the court will

discourage trespassing and impose liability only

when the can actually anticipate an injury.

Another decision would encourage trespassingbecause the court will condone trespassing by

imposing a harsh duty on the . Here, ___________

and therefore did/did not have actual or constructive

knowledge.

4. IfLicensee:

a. Duty to warn if:

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2) Unknown to the licensee

3) And known to the owner

a) if known to the owner, look to the TIME that has

passed (BARMORE)

b) : Constructive Knowledge ARGUMENT.

c) : The sole benefit is to the licensee because of

purpose, scope, and time. The law should notmake business insurers of all their customers

because there is no liability without fault.

Adopting this interpretation will further this value

because fault requires the ability to anticipate

injury, and business managers and owners cannot

anticipate injuries to every customer that enters

the establishment. Here, s purpose, scope,

and time is __________, ___________, _________, and

therefore should be treated as a licensee.5. IfInvitee:

a. Open to the public

b. Customer:

1) Invitee has done business in the past

2) Is currently doing business

3) Will do business in the future

a) argues that the knew or had reason to know

the was a customer because the law should

encourage safe facilities for customers who areactually beneficial to the owner. Adopting this

rule will further this value because the court will

deter owners from having unsafe facilities for their

customers, the owners will change because of

liability, and the owners can take measures to

safeguard their premises. Here, ___________

and therefore knew or should have known

_____________.

6. If there is a great danger and the owner has warned the

:a. A duty to warn is insufficient is some circumstances if

b. Unreasonable danger known to the

c. Should reasonably anticipate that might still be

injured.

1) Actual or Constructive ARGUMENTS

2) Reasonable Inspection ARGUMENTS

7. What conduct could the take to reduce the Risk?10


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a. FACT ANALYSIS

1) would want to isolate the burden from probability

and injury.

2) does not want to isolate, rather weigh against

other factors.

b) Probability

1.

argues lowunusual, extraordinary, and improbablebecause it never happened before.

2. argues highlikelihood of damage of appreciable weight

and moment

a. weight = severity

b. moment = time

3. FACT ANALYSIS

c) Gravity of the Injury

1. FACT ANALYSIS

a. Total loss?b. Minor loss?

c. Monetary loss?

Negligence Per Se

*Foreseeable (Common Law) = Class of Persons (Statutory Breach)*

*Foreseeable Risk (Common Law) = Class of Harm (Statutory Breach)*I. Source of Duty

A. State Statute

B. City or County Ordinance

C. Regulation

II. Breach

A. Violation of the Statute

1. is in the class of persons that the statute is intended to protect

2. The harm is of a kind that the statute was intended to prevent

a. Look to:1) plain language and definitions

2) Title, purpose, and Date

3) Amendments, Notes, and Comments

4) Penalties

5) Is the statute silent on the issue?

a) Argumentif its left out, legislature did not intend to include it

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b) Argumentif its left out, legislature left it to the court for

interpretation

6) Case Law

B. If there is a violation

1. Rebuttable Presumption of Negligence

a. The rebuttal must be strong, credible, and unequivocal

b. Burden is on the party who violated the statute

1) Common practices

2) Common knowledge

3) Violation was reasonable

2. Evidence of Negligence

3. Negligence as a Matter of Law

4) Argument: Evidence of negligence as a standard is too discretionary

and yields unpredictable results. Negligence as a matter of law is

too harsh of a standard because the partys case will automatically be

dismissed, relevant factors will be ignored, and the court would

encourage unjust enrichment. Violations of statutes are fact-specific

and therefore a rebuttable presumption of negligence should be the

standard. The court is a better forum to decide this issue because

there are relevant facts that surface in the courtroom that the

legislature has no access to. Adopting this rule will further this value

because the court can hear evidence and choose whether the violation

was reasonable as opposed to a strict application of the law which may

be unreasonable. Here

Res Ipsa Loquitor

I. Res Ipsa Loquitor

A. When does it arise?

1. No statute

2. No knowledge of s conduct

a. No one knows who committed negligence

b. It is an alternative pleading in favor of the

B. Rule

1. Injury would not ordinarily occur absent some negligence

a. Obvious to a lay person OR

b. Usually some type of expert testimony

2. Injury was not due to any voluntary action of the

3. Instrumentality must be in s exclusive control

4. If elements are met, burden shifts to to disprove negligence

a. Exclusive control

1) Sole Possession

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a) Argument: Exclusive control should be defined as sole

possession because the court prefers a consistent and predictable

standard for precedent. Adopting this interpretation will further this

value because it is easier to decide if one person has sole

possession as opposed to multiple persons, and the above rule

reflects this. Here, the instrumentality was in the sole possession of

___________ and therefore has exclusive control.

b) Alternative: No liability without fault. Adopting this interpretation

will further this value because fault requires the ability to anticipate

injury, and the court might impose liability on an innocent party who

did not have sole possession of the instrumentality, and the above

rule reflects this. Here, the instrumentality was in sole possession

of ___________ and therefore has exclusive control.

2) Custody over instrumentalities

a) Argument: Exclusive Control should be defined as custody over

the instrumentalities because it is reasonable to expect that a

persons safety does not lie in the hands of one individual, especially

when dealing with multiple parties. Adopting this rule will further this

value because liability will be imposed on everyone who is in control of

the instrumentality that caused the injury, and people can expect that

their safety is ensured. Here, the instrumentality was in possession by

multiple s and therefore was in their exclusive control.

b) Alternative: The court should encourage people to tell the truth about

an injury. Adopting this rule will further this value because it will

encourage the s to come forward with the truth instead of keeping

their mouth shut about the fucking injury, and the above rule reflectsthis...

II. Causation

A. Factual

1. Was the a cause in fact of s injury

2. Did s conduct contribute sufficiently to s injury so a jury could

conclude that is a cause in fact of s injury

3. Test:

a. BUT FORONE CAUSE/ONE

1) s conduct is a cause in fact if the event would not have

occurred but for the s negligence.

a)Take away s conductif injury would occur anyway

there is no liability

b. SUBSTANTIAL FACTOR MULTIPLE s and CAUSES

1) ONE KNOWN AND ONE UNKNOWN CAUSE:

a) Unknown = injury THEN no substantial factor

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b) Known + Unknown COMBINE to produce something

greater and = injury THAN substantial factor

c) Known + Unknown MINGLE or ONE SWEEPS OVER THE

OTHER THAN DO A FACT ANALYSIS/ARGUMENT

2) KNOWN CAUSES

a) If the two known causes COMBINE to produce the s

SOLE INJURY, than each tortfeasor is a substantial factor

and splits the cause of liability.

3) FAILURE TO DIAGNOSE or similar events (Usually Med-Mal)

a) If s conduct INCREASED the risk of harm AND

b) Contributed significantly to s injury (JURY QUESTION)

THEN

c) s conduct was a substantial factor

d) liability is limited to the amount the contributed to

the injury

4) BURDEN OF PROOFa) must prove by a PREPONDERANCE OF THE EVIDENCE

(50%)

b) MUST ONLY PROVE HIS CONDUCT WAS NOT

SUBSTANTIAL, NOT DISPROVE THE CAUSE

1) POLICYotherwise, the burden of proof would shift

because would have to prove the cause, and this

is to great a burden to place on the .

5) TWO DEFENDANTS, ONE CAUSE (RARE)

a) s must be ACTING IN CONCERT1) Implicit agreement to act negligently

2) Between two parties

3) Whether or not they no each other

4) POLICY IN FAVORReasonable expectationsif two

parties have an implicit agreement, there is a

reasonable expectation that they will perform the

same act. If the act is negligent, they have implicitly

agreed to accept one anothers responsibility.

c. ALTERNATIVE TO SUBSTANTIAL FACTOR1) s conduct GREATLY MULTIPLIES the risk AND

2) Naturally leads to the occurrence

DEFENDANTS FORESEEABLE

NEGLIGENT

INJURY

CONDUCT CONSEQUENCE

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B. PROXIMATE OR LEGAL CAUSE

1. When negligent conduct creates a risk, setting off foreseeable

consequences that lead to the s injury, the conduct is deemed the

proximate cause of the injury.

a. FORESEEABLE CONSEQUENCE

1) s conduct naturally or ordinarily leads to the

consequence2) Injury is within the scope of riskcreated by the s conduct

a) IS THE CONSEQUENCE LIKELY TO OCCUR AS A RESULT

OF s NEGLIGENT RISK CREATING CONDUCT

3) Do not look to the exact sequence of eventsany and all risk

creating acts leading to the injury is controlling

4) ARGUMENT-- is in a better position to avoid the

consequence than the innocent injured party is.

b. INTERVENING CAUSE

1) The consequences would still occur and directly flow in theevents

2) Does not break the chain of liability

c. SUPERCEDING CAUSE breaks the chain of liability IF:

1) Independent Act AND

2) Different conduct creates a new riskAND

3) Injuries are so different from the injury that would result

from s conduct OR

4) Independent criminal act MAY break the chain of causation

because criminal conduct is not foreseeable to the 5) ARGUMENTSThere is no liability without fault. Fault requires

the ability to avoid consequences. Independent acts that

create new risks to the plaintiff and cause different injuries

not foreseeable to a who, although negligently, has created

an entirely different risk. Here, created X risk, _______

created Y risk, and therefore supercedes s original

negligent conduct, thus breaking the chain of liability.

III. Damages

A. Background1. Lump sum payment

2. Structured Settlementsusually for

children

a. Incapacity

b. Protecting investments

c. Over a period of time: WHY?

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2) Guaranteed income

3) Tax Free

d. Why not?

1) Less common for older s

2) Might not want to wait

3. Collateral Source Rule

a. Coll. Income is not calculated orknown to the jury at trial to prevent prejudice or leniency to the .

B. Economic Losses

1. Medical expenses

a. Reasonable

b. Expert testimonyanticipated costs

2. Lost Wages

3. Loss or Impairment of Future Earning Capacity

4. Damage Calculation: Present Value

5. Future Inflation6. Federal Income Tax

C. Non-Economic Losses

1. Physical Pain and Suffering, Mental Anguish

2. Loss of Enjoyment of Life

a. Must be conscious of the loss

1) ArgumentsReasonable Expectations: a reward for damages should

benefit the injured party in the future. An injured party who is not

conscious of the loss cannot benefit from an award of damages.

2) Administrabilityyou are either conscious or unconscious

3) Unjust Enrichment

3. Per Diem

4. Reduced Life Expectancy

D. Punitive Damages: not in negligence unless s conduct is willful, wanton, or

reckless.

E. Hypo in classpregnant mother who became vegetable after routine c-section:

loss of household services, future medical care, permanent disability, public

sector job, future earnings.

IV. Affirmative Defenses

A. Two Steps in Defense Analysis

1. must prove s duty, breach, and causation

a. Duty and breach

1) s standard of care

2) BAP v. Prob x Injury ( s own injury)

3) BAP = knowledge and steps to reduce risk

4) Prob = s conduct increasing the likelihood of the injury

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b. Causation

1) Factual

a) But-for wont work because there is probably 2 causes

b) Substantial Factor Test

2) Proximate Cause

a) s conduct Foreseeable Cons. Injury

b)

s conduct either intervening or supercedingc) Consequences must be within the scope of risk

c. If Negligent, Go To: EFFECT OF NEGLIGENCE

2. Effect of Negligence

a. Contributory Negligence

1) No Recovery

2) Exceptions

a) Last Clear Chance Doctrine

b. Comparative Negligence

1) ARGUMENTfairness and Administrabilityeasy standard to

apply, and its fair to both parties who are equally at fault.

2) Pure comparative approach

a) can only recover the percentage he was not at fault

3) Modified comparative negligence

a) PA50/50 Rule

i. If s negligence is greater than 50%, cannot

recover

ii. prefers this argument but requires more

litigationb) 51/59 Rule

i. s negligence must be less than 50% in order to

recover

ii. Usually settle before trial because juries usually

say youre both equally negligent

c. Assumption of Risk

1) Actual Knowledge of risk

2) Voluntary encounter

3) Appreciation of the magnitude of danger/risk4) Waiver or consent, either express or implied can meet the

AOR test

V. Immunities

A. Complete Defense and Bar to RecoveryUSE THIS AS A THRESHOLD QUESTION

B. Interspousal immunity

1. Abrogation

a. Generaltotal abandonment of the immunity

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b. Partiallimited to only special circumstances

c. Arguments

1) In favor of general abrogationadministrability

2) Against general, thus Partial abrogationpreserve the

institution of marriage

C. Parent-Child Tort Immunity

1. General AbrogationReasonable Parent Standard

a. Argumentsrequires a heightened standard such as this because it

fits situations where parents are most likely negligent. The court

should encourage parents to exercise a heightened standard of care

when dealing with their children because children cannot easily

protect themselves from dangers. Heightening the standard will

encourage parents to use higher care for their children and

encourage a change in their behavior as a result. Therefore, the

immunity should be abrogated.

2. Partial abrogationcar accidents, yes, negligent supervision, no

a. Conduct that is separate from parenting duties, no immunity should

be had

b. Conduct integral to parenting duties, immunity should be had

c. Argumentit is reasonable to expect that a parent can be sued by

anyone if his or her negligent conduct causes an injury. A s child

should not be excluded from this category because a parents

negligent conduct, not integrally related to parenting duties, causes

injury. Therefore, there should be no immunity when a parent

injures his or her child when acting negligently outside the role of

parenting.

D. Governmental Immunities

1. Municipal or Local GovernmentMost states say no immunity (PA

general abrogation)POLICY ARGUMENT: When the state causes injury to

an individual, the individual should be entitled to recover for injuries

sustained because the innocent injured party is not in a better position to

protect itself from injury.

2. Partial Abrogation

a. Performing a discretionary act

1) Immunity applies

b. Performing a non-discretionary act

1) No Immunity

c. Example: Police complaintjudgment call = immunity; mistake =

no immunity

Products Liability

I. Injury by a defective productGenerally

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A. Recovery for negligencefocus on the conduct of the

B. Recovery for strict liabilityfocuses on the product itself without regard to

s conduct

C. Recovery for breach of warranty

1. representations

a. written

b. verbal

2. product falls below expectationsD. 402(a) has been adopted by the state supreme courts across the nation as

the standard for manufacturers

II. Sale of a product

A. Product and service hybrid

1. argues PRODUCT

a. Consumer is seeking the product, not just the service

1) Example Kidney Donor Companyorgan for profit: an

entity that profits from the product is in a better position to

absorb the cost of liability and spread it to its consumers.

Imposing liability for defective products in connection withservices will assure the safe implementation of products

when the consumer is seeking the product, and the

company can and will change its behavior accordingly.

2) argues SERVICE

a) the essence of the transaction is the provision of

service, not the product itself.

b) Example Kidney donor company: company acts as

a middle-man for the selection of the kidney, not

selling the kidney itself. When the courts are

dealing with a new category under strict liability

such as the product service combination, the court

should defer to the legislature to make the

determination and rule accordingly. Since the

legislature has not expressed whether a product

service combination is necessarily classified as a

product for strict liability purposes, the court should

rule according to the essence of the transaction.

Thus, if the service depends on the skill, judgment,

and experience of the provider, the hybrid does not

fall within the scope of product for liability

purposes.

III. Defective Condition Unreasonably Dangerous

A. Manufacturing Defects

1. where the product is designed correctly, but the particular product

that caused the injury deviated from the intended design

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a. comparable to other products

b. expert testimony

2. argues that the defect was present when it left the assembly line

a. expert testimony to show the building of the products

b. employee testimony to compare standard product to defective

product

c. blueprints showing a good design

d. other owners3. argues that there was an alteration after leaving the assembly line

a. expert testimony

b. request all maintenance records since the product left the

assembly line to the date of injury

c. request a list of trucks that came of that line at the time of

manufacturing

B. Design Defects

1. focus on UNREASONABLY DANGEROUS

a. MFGargues that mfgs should not be insurers of every product

that is placed on the market because the product might bedangerous, but highly useful to the public. Imposing liability

would deter production of useful products.

b. Consumermfg is in a better position to absorb the cost of

liability and spread the cost amongst the consumers of the

product.

2. Consumer Expectation Analysis

a. Looking through the eyes of the reasonably prudent consumer

b. Did the product perform as the reasonably prudent consumer

would expect

c. Was the product used in its intended mannerd. Did the defective product proximately cause the injury

e. ExampleNates bike hypo OR

3. Risk Utility Analysis

a. Argument: The risk utility analysis is a proper because the court

can balance seven factors to determine who should bear the cost

of injury. From the mfg.s perspective, this analysis is fair

because it reduces the likelihood that mfgs. will become insurers

for all their products on the line and decreases absolute liability

by placing the burden on the to prove the defect. From the

consumers perspective, this analysis promotes fairness because

a will be compensated for injuries resulting from a defective

product by an entity who is in a better position to reduce the

risk, spread the cost of injury, and prevent future defects.

b. Balancing utility of the product v. the risk to the consumer

1) Safetyprobability x injury

2) Utility to public

3) Available substitute product

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4) Inability to avoid injury when exercising care in use

5) Inability to eliminate risk without impairing utility and

avoiding costs

6) Inability to anticipate the risk

7) Cost spreading

4. Timing and foreseeability

a. Defect at the time the product is placed on the market (MOST

JURISDICTIONSforeseeability before or at the time ofmarketing) OR

b. at the time of trial (foreseeability after the fact)

5. State of the Art

a. : Mfg has a duty to use state of the art (MAXIMUM STANDARD)

1) existing level of technology expertise and scientific

knowledge relevant to a particular industry at the time of

marketing

b. : only a duty to use industry customs (MINIMUM STANDARD)

1) Normal or minimal standard pursuant to federal and state

standardstoo costly so the mfg will merely comply withthe minimum

c. If is using the state of the art and cannot reduce risk, will

claim absolute immunity, however:

1) this is no absolute defense

2) has the burden of proof because the product may still be

dangerous:

a) product is implementing the state of the art

b) coupled with other evidence

c) to justify placing the product on the market

C. Failure to Warn in Strict Products Liability

1. Actual Knowledge of the defect OR

2. Constructive KnowledgeKNOWABILITY of the defect in light of

scientific information available to the mfg

3. Arguments:

a. --MFG has superior access to scientific information as

compared to the user of the product that may have no access to

scientific information. It follows that the party in a better

position to access information that would decrease the risk of

danger should be responsible for the cost of injury. Since mfg

are also in a better position to spread the cost of injury, mfg

should be liable for the knowability of a defect absent actual

knowledge.

b. --There is no liability without fault. Fault requires the

awareness of the risk so the party can avoid injury. If a party is

unaware of the risk, that the party cannot avoid the injury and

should not bear the costs thereof.

D. Defective Warnings21


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1. Warnings should be:

a. noticeable

b. succinct conveyance of the message

c. provide enough information of the obvious and immediate risks

involved

d. and steps to treat the injury after encountering the risk

2. Drafting the warning label

a. Format1) bold print and caps

2) list of risks involved

3) bullets or numbering

b. Content

1) Seal

2) List of all obvious and immediate risks

3) Picture of the risk involved

4) How to treat the risk

5) Adult supervision suggested if children are a risk factor

6) Information numberIV. Defenses to Strict Products Liability

A. s prima facie case

1. Sale of a product, DCUD, Causation, Damages

B. s defenses

1. Comparative negligence does not bar complete recovery

a. is not liable for some misuse, but is liable for misuse that is

reasonably foreseeable unless the abnormally handled the

product OR

2. Assumption of Risk is a complete bar to recovery (PA APPROACH)

a. Knowledge of the risk

b. Appreciation of magnitude

c. Voluntarily encounters the risk

1) argues should bear partial cost of the injury in order

to deter the s negligent conduct. The underlying policy

of products liability is to protect injured persons who are

powerless to protect themselves from product defects. If

the is not powerless to protect itself because of

negligent misuse of the product, then necessarily the

should bear the partial cost of injury

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