Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
96 Cards in this Set
- Front
- Back
causation in fact
|
did the defendant's conduct in fact cause the injury? did the defendants conduct trigger a chain of events that, in an unbroken sequence, resulted in injury?
|
|
"but-for test"
|
take out the defendant, does the injury still happen (99%)
|
|
substantial cause test
|
when two or more acts bring about the negligence. liability is imposed upon any defendant whose negligence is a substantial factor in causing a plaintiff's injury
|
|
forseeability of harm
|
only comes to this after determining a causation of fact
|
|
extent of liability -- was the injury significantly removed?
|
since most injuries usually occur seconds after the negligent action occurs, this answer is usually no
|
|
palsgraf v. long road island railroad (N.Y. 1928)
FACTS ONLY |
-passenger boards the train, asks for help with package
-staff knocks package out of passenger's hand (negligent) -package has explosives and explodes -leads to stampede of people -stampede knocks over large weighing scale -scale falls on palsgraf, so she sues Long Island R.R |
|
majority holding of case
|
no negligence towards the plaintiff.
liability is solely based on the relationship b/w the plaintiff and defendant.. therefore the defendant was negligent toward the passenger, but not palsgraf liability is based on the existence of a relationship b/w a plaintiff and a defendant and therefore it must be based on foreseeability of harm to the person in fact injured |
|
dissent of other judges..
|
-duty extends to protect society from unnecessary danger. everyone owes a duty to the world at large.
-liable to anyone in the realm of causation -since the r.r didn't act with caution and someone got hurt, they are liable this dissent has prevailed and is common law. |
|
restatement of torts 435 (1)
|
The fact that the negligent defendant neither foresaw or could have foreseen the extent of the harm or the
manner in which it occurred does not prevent him from being liable. |
|
restatement of torts 435 (2)
|
Hindsight foreseeability – defendant is relieved of liability only if looking back from the harm to the
defendant’s negligent conduct, it appears to the court “highly extraordinary” that the negligent act should have brought about the harm. |
|
Intervening Cause
|
Given that the defendant is negligent, the injury may occur as a result of a later independent cause
|
|
Superseding Cause
|
Breaks the chain of causation from the original defendant.
|
|
hindsight foreseeability
|
determines the superseding of negligence
Must ask if it is highly extraordinary that the intervening cause created the injury. Intentional/Criminal conduct by a 3rd party may be superseding. Most intervening causes are later negligence of a 3rd party, usually not a superseding cause. |
|
contributory negligence
|
Defendant was negligent, but the plaintiff was negligent as well.
If the plaintiff fails to exercise reasonable care, than it excuses the defendant all together from liability This is an objective test |
|
complete bar
|
when the plaintiffs contributory negligence is large enough that the defendant who would
otherwise be liable to the plaintiff for negligence now is not |
|
affirmative defense
|
The defendant has the burden to introduce evidence which shows that the defendant
was not liable. Assumption of risk (below) is also an affirmative defense. Both contributory negligence and assumption of risk heavily favored the defendant, not the plaintiff. |
|
Assumption of Risk
|
Plaintiff knowingly proceeded in the face of a known danger created by the defendant’s negligence.
Assumption of risk rests on the plaintiff’s consent (implied or expressed) to encounter a known unreasonable danger created by the defendant’s conduct. If he or she is acting unreasonably, the conduct constitutes contributory negligence. |
|
subjective standard
|
determines the assumption of risk
that is, did the plaintiff know, understand and appreciate the risk. |
|
Comparative Negligence
|
Came about in 1960 to get rid of unfavorable treatment of plaintiff
Jury asked to compare the respective negligence of both parties. Determine on a percentage basis. |
|
pure
|
Compare in all cases – stick by a jury’s percentages
|
|
modified approach (50% approach)
|
plaintiff recovers only if the plaintiff is less than 50% negligent.
If the plaintiff is 50% liable or more, he will receive nothing. This makes people think that comparative negligence is contributory negligence all over again. |
|
premises liability
|
Liability of a landowner/occupier (lessee) for injuries caused to third parties on land (Erie v. Tompkins
|
|
traditional rule
|
Liability based on the status of the plaintiff
|
|
trespasser
|
Person on the land without privilege or consent – willful and wanting.
|
|
Duty Owed
|
Cannot intentionally injure the trespasser, but otherwise, no liability
Duty to warn of any “latent defects” By latent defects, we mean hidden, or not obvious, defects. |
|
Exception Doctrines – Attractive Nuisance Doctrine (Turntable Doctrine)
|
Two characteristics
Artificial conditions on land (transmission tower, abandoned building) Child trespassers (for plaintiff) usually 12 and under If these conditions match, same rules apply as for invitee. |
|
Licensee
|
Persons on the land with landowner’s consent (includes family members and social guests)
Once the licensee knows of the nature of the business or other activity conducted on the premises, he or she then assumes the risk involved upon entering the premises. |
|
Invitee
|
Broken up into Public Invitee and Business Invitee
|
|
Public Invitee
|
member of the public invited to enter/remain on the premises for the purpose that it’s held open to the public (eg library/museum patron).
|
|
Business Invitee
|
Person invited to remain on the premises to conduct business with the possessor of the property (eg. Wal-Mart patron).
|
|
Duty owed to both
|
Use reasonable care to make/keep the premises safe for the invitee’s presence.
Possessor must generally exercise reasonable care to protect invitees against both dangerous activities and conditions from the trade or business. The possessor must give fair warning of these conditions. |
|
Modern Approaches
|
Began in the late 1960’s, called to modernize standards
Traditional approach has been criticized as awkward, complex and mechanical in its application, and unduly protecting property interests at the expense of human safety. |
|
change proposed
|
Scraps the three part standard, create duty of reasonable care on all standards.
Status of trespasser is one circumstance to factor in whether the conduct is what a reasonable person would do. |
|
Problem
|
Threw out too much “Good Law”
|
|
2nd approach
|
Abolishes distinction between licensee and invitee. Reasonable care to all licensees and invitees.
Use existing common law rules for trespasser liability. Some states adopted this ruling by statute (IL – Premises Liability Act). |
|
STRICT LIABILITY
|
Liability in the absence of intent or negligence. Liability without fault (no fault tort). Still liable if you are 100% careful
|
|
Abnormally Dangerous Activities
|
An activity that is highly dangerous even when carefully performed and an activity which is not normally
undertaken. |
|
Ad Hoc determination case by case deriving from common law
|
Blasting/Piledriving (dynamite a mine)
Storing Explosives, flammable liquids, dangerous chemicals/gas Storing water in a dangerous place (Reicands v. Fletcher) Generating/Disposing of toxic waste (NJ EPA v. Nentron) |
|
Strict Liability in Tort
|
Restatement (2nd) of Torts Section 402 (A). This is the basis of product liability
|
|
PRODUCTS LIABILITY
|
The civil liability of a merchant seller for personal injury and property damage caused by goods sold.
|
|
Relationship to Sale of Goods
|
Goods Defined – Property Law (Real v. Personal)
personal property: either tangible or intangible, tangible leads to goods |
|
Sales Law Definition and Source
|
Contract law derives from state common law
When goods are involved, we have a sales contract Sales law comes from state statutes, hence sales law is governed by contracts. Buyer sues seller on breach of contract, remedies under Article II. buyer remedies: either -buyer doesn't receive goods or -buyer has goods, and they cause injury |
|
Warranty Law
|
The buyer is the defendant, seller the plaintiff
The seller must be a merchant seller, meaning he must be a dealer in goods and those goods must be subject to a contract. Note, these rules don’t apply to the casual seller - must be in the business of selling (no Ebay, Craig’s List). |
|
Introduction to Remedies and Breach of Warranty
|
Types of Injuries Caused by Goods in the Buyer’s Possession
|
|
General Measure of Damages
|
Value of goods as warranted less value of goods as delivered – repair or replace.
Damages to goods themselves |
|
Commercial Consequential Damages
|
Breach triggers a chain of events causing damage to this plaintiff and would not be suffered by the plaintiff
generally (General consequential damages definition). |
|
Hadley v. Baxendale
|
recoverable if they were in the contemplation of both parties when the contract was made.
|
|
consequential damages
|
Personal Injury and Property Damage Proximately Resulting form Breach of Warranty - §2- 715(2)(b) – Products Liability Loss
|
|
products liability
|
Buyer may recover for personal injury or property damages proximately resulting from any breach of warranty.
1. Products Liability cases usually involve massive sums of money which lead to bankruptcy. 2. Product liability plaintiffs are usually dead, essentially the plaintiffs are the estates of the victim. |
|
Theories of Products Liability
-Traditional Theory |
Caveat emptor – Let the buyer beware. Up to the buyer to determine if the product is safe.
1. This theory insulated the defendant from liability. 2. It also externalizes costs on to the public. |
|
-Modern Theories
|
Forces sellers to internalize costs and pay for damages. Current law liability as a business expense (enterprise liability).
1. Negligence – Sellers negligence leads to a defective product and injury. 2. Breach of Warranty - §2-715(2)(b) – This portion is strictly statutory. 3. Strict Liability in Tort – Restatement (2nd) of Torts (1964) §402(a) – Based on state common law |
|
Notes on Modern Theories of Recovery
|
1. Plaintiff can sue and recover on any of the three above theories.
2. Suing for economic injuries only on a breach of warranty case. 3. Products Liability law is governed by both contract law and tort law. 4. Both statutory and common law – products liability is state common law, but it is also civil law. No one goes to jail for products liability. |
|
Privity
|
Tells you who the plaintiffs are – Relationship between the parties to a contract.
Note – Lack of Privity is not a defense to the defendant under any theory |
|
Vertical Nonprivity Plaintiff
|
Buyer of goods later in the chain of distribution from the defendant seller.
|
|
Horizontal Non-Privity Plaintiff
|
1. Non-buyer injured by the goods
2. Family members of buyers, users (not owners), of goods and bystanders. |
|
To Whom Duty Owed
– Rule of McPherson v. Buick Motor (1916) |
Recall that to be negligent, the defendant must meet the following criteria.
1. Duty not to be negligent 2. Duty not to breach contract 3. Proximately caused injury from negligence. |
|
Duty May be Breached in
|
Prove that the seller failed to exercise reasonable care with respect to some aspect of the product causing the injury
|
|
Design Defect
|
occurs at the white collar level (engineers, marketers, executives etc).
1. Product put on the market although there is a likelihood of a defect. 2. Negligent because for what is dangerous, a reasonable person would not put the product on the market. 3. Led to safety improvements within products (eg. Cars). |
|
Manufacturing Defect
|
Negligence occurs on the factory floor (Blue Collar Fact Pattern)
1. Product fails to meet the manufacturers own specifications. 2. Negligence of factory worker and management of factory. 3. Failure of quality control 4. Nothing wrong with process, the process just was not followed. |
|
Warning
|
Make sure customer knows that a product is safe when used in the right manner.
1. It is a duty of a firm to warn the customer. 2. The main question for juries is whether or not the warning was communicated properly. |
|
Disadvantages of Negligence Action as Basis for Products Liability Recovery
Problems of Plaintiff’s Proof |
Proof of negligence is in the sole control of the defendant
It can be difficult to prove defendant’s negligence on a particular instance. (eg defendant cannot remember if he forgot to tighten 1 of 800 bolts). |
|
Res Ipsa Loquitor
|
The thing speaks for itself – Allows jury to infer negligence without direct proof if.
a. Accident is of a type that does not occur in the absence of negligence. b. Product causing the injury was at all times within the defendant’s exclusive control. c. Other responsible causes have been eliminated by the evidence. |
|
Limited Class of Defendants
|
Not a basis for recovery against persons of distribution from negligent defendant. This theory eliminates down stream liability to sellers
|
|
Defenses of Negligence
1. Comparative Negligence |
Pure or Modern Theory
|
|
2. Assumption of Risk
|
Complete bar to recovery for plaintiff.
|
|
Introduction to Warranty
|
Sellers liability for goods accepted by the buyer. Goods fail, the buyer sues seller for breach of contract.
|
|
Warranty
|
the entire obligation of the seller
|
|
Sales Contract
|
seller obligated to deliver goods, buyer pays $$.
Everything the seller is obligated to do is warranty. |
|
warranty continued
|
3. Any statement or representation made by the seller or imposed by law concerning the quality, characteristics,
capabilities and ownership of the goods sold. a. Goods conform to representation b. If the goods do not conform, this is a breach of warranty to the plaintiff. 4. Note that all contract liability is strict liability, intent/fault of seller is irrelevant. Hence, there is no negligence with warranties, only statute law. |
|
Nature of Liability
|
ALWAYS STRICT LIABILITY according to statute law in the UCC.
|
|
Express Warranty
|
Any affirmation of fact or promise relating to the goods that becomes part of the basis of the bargain, creates
an expressed warranty that the goods will conform with the following: 1. The affirmation or promise. This does not apply to statements of opinion on the product. 2. What you order must meet the description to what you receive. Goods must conform to description 3. The sample or model of the product. |
|
express cont..
|
There is no requirement that the seller use language such as “warrant,” “warranty,” or “guarantee.” Also not required that the seller know or intend the warranty.
|
|
Implied Warranty
|
Arise from operations of law. Imposed through warranty of merchantability and fitness
|
|
Merchantability
|
Requires that the goods sold meet minimum quality standards
|
|
Merchantability cont.
|
A merchant seller is a person or business that deals in the goods of the kind sold.
|
|
Fitness
|
Based on negotiated aspects of a contract not fitting for the particular purpose of a product.
|
|
Title
|
When you sell goods, you warrant that you actually own them (no stolen goods).
|
|
kinds of merchantability
|
1. Casual seller doesn’t give a warranty (eg. Seller through Ebay or Craig’s List).
2. Contents (2-314(a)) – To be merchantable, the goods must meet the following requirements: a. Must pass without objection in the trade under contract description. What seller says is unanimous with rest of the division’s sellers (2A) b. Goods must be fit for the ordinary purposes for which goods are used (recover under 2-715(2)(b) (2C) |
|
Advantages of Breach of Warranty Action as a Basis for Products Liability Recovery
|
i. There is no need to prove the negligence of the defendant.
ii. Provides a basis for recovery v. sellers later in the chain of distribution. |
|
Disadvantages of Breach of Warranty Action as a Basis for Products Liability Recovery
– Summary of Contract-Based Defenses. |
The buyer must promptly notify the seller or be barred from any remedy.
|
|
Reasonable assumption
|
the longer you have the product, the more likely the defect is caused by the plaintiff.
1. This poses a problem for products liability cases because the plaintiffs are usually dead. Tough to recognize what actually happened. 2. Filing a lawsuit is a sufficient notice of a defect. 3. Disclaimer 2-719 – Now the seller can limit his liability through disclosure. Still hurts the buyer in product liability because product still causes death. |
|
Privity
|
Liability extends horizontally and vertically to all reasonably foreseeable plaintiffs. Enacted with three options:
1. (IL) Vertical privity to immediate buyer from seller 2. Horizontal privity limited to natural persons in family or household of buyer or guest of buyer. 3. Negligence tests in 1⁄2 of the states. |
|
Development of Doctrine
|
Adopt a theory of warranty regarding strict liability as common law doctrine. Borrow article 2 and apply it to common law doctrine. Can choose which parts of article 2 to use.
|
|
Greenman v. Yuba Power Products
|
-greenman was a handyman, wanted shopsmith for workshop
-shopsmith advertised certain safety features, brochure falsely advertised it. -greenman was hurt from use of the product -breach of warranty 2-313 to 2-715(2)(B) -extended the article to common law doctrine, greenman won the case |
|
Basis of Doctrine
|
Purpose of liability is to ensure that liability is on the manufacturer.
|
|
Enterprise Liability
|
Policy decision by courts in deciding where loss should be allocated (to mfgr).
|
|
Restatement (Second) of Torts §402A - Content (1964)
|
i. Adopted Greenman rule and put it in the restatement 402A of torts. 95% of states use 402A to resolve disputes
|
|
Defendant
|
merchant seller who is liable to plaintiff = user/consumer of product (1964)
1. All reasonably foreseeable plaintiffs are eligible to receive remedy. 2. Defendant is liable for personal injury and property damage caused by a product sold in defective condition that becomes “unreasonably dangerous” (defective product). **Certain conduct is no defense to the defendant** |
|
Lack of Negligence
|
no contributory negligence involved
|
|
Lack of privity
|
extends for both horizontal and vertical privity
|
|
Elements of Strict Liability Claim
|
Shortens up into the three following fact patterns:
1. Product Defective 2. Product Defective when left seller’s control 3. Defect caused the injury – Straight proximate causation of fact (chapter 5 principals) |
|
Product Defective
|
1. Jury decides the question of fact as to whether or not the product is defective
|
|
Consumer Expectation Test (402A and comments to it)
|
product is defective if it fails to perform in the manner
reasonably to be expected in light of its nature and intended function (defective doesn’t mean dangerous). |
|
consumer expectation test continued
|
a. Meaning – Product is more dangerous than a reasonable consumer would expect.
b. Jury determines what the product did an compares it to what the product is supposed to do. c. If there is a difference in expectation, than the defendant is liable. d. This is a good metric for manufacturing defects, but design defects are much more difficult to enforce. |
|
Risk-Utility Test
|
Product is defective if the benefits of the challenged design do no outweigh the risks of injury inherent in that design.
a. Adds another test to defective products, but isn’t an alternative to the former. b. Dart case gives a good example of this test. c. This test is basically negligence. Given facts, would a reasonable engineer market this product/design? |
|
Reasonable alternative design
|
someone else designed the product at the same cost and with less risk but the
same utility. |