Essay things I did not know torts

Question 1

What is the standard CP into?

Answer 1

Each answer should define community property and separate property: i) all property acquired during the course of a marriage is presumed to be CP, ii) all property acquired before marriage or after separation is presumed to be SP, and iii) property acquired by gift, devise, or bequest is presumed to be SP.

To determine the character of an asset a court will trace back to the source of funds used to acquire it.

i) at divorce, the community assets are equally divided in kind unless some special rule requires deviation requirement or the spouses agree otherwise, ii) a spouse’s SP remains her SP at divorce.

Question 2

When the spouses in joint and equal title, what do you start off by saying?

Answer 2

If written title to property is taken in a form that is inconsistent with the character of funds used to purchase the property, an intent to change the character of property to the form evidence by the written title is inferred.

Apply

“If there is no writing to the contrary, at divorce any SP contributions to the acquisition of the property are reimbursed to the SP contributor.

Question 3

So, if a spouse invests recklessly and breaches its fiduciary duty, what is the other entitled to?

Answer 3

Other spouse may claim that he is entitled to reimbursement for his half of the CP funds that were used to purchase the stock

Question 4

What do you say for debts in CP?

Answer 4

a) non debtor spouse SP is not touched
b) if debt incurred for community: CP then SP
if not, SP then CP.

Question 5

What interest do spouses hold when they buy property as joint tenants with right of survivorship?

Answer 5

Each spouse has one hald SP interest in proeprty held in joint tenancy.

A credit of a spouse may attach the debtor
s one hlaf interest.

Question 6

What do you say when you wanna say that profits of SP remain Sp?

Answer 6

i) rents and profits from separately owner capital, generated without applying community labour are SP, and can be traced to the separate capital, ii) the fruit of SP will remain SP, unless there was a transmutation

Question 7

In CP, what do you say in relation to personal injury recoveries?

Answer 7

i) Personal injury recovery against a third party tortgeasor is characterized according to when the cause of action arose,
ii) if the cause of action arose during marriage, any recovery or settlement is CP, and at divorce, community estate personal injury damages are awarded entirely to the injured spouse (unless the interests of justice require otherwise)
iii) if the cause of action arose after separation it is the injured spouse’s SP.

Whether or not the recovery is deemed SP or CP, the injured spouse must reimburse the community or the other spouse’s separate estate for any expenses paid on account of the injury. (ex. toher spouse gets half of what CP had to pay for medical expenses)

Question 8

Undue influence in CP.

Answer 8

: The confidential relationship of spouses imposes of a duty of the highest good faith and fair dealing on each spouse. A rebuttable presumption of undue influence arises when one spouse gains an advantage over the other in a property transaction.
The spouse who obtained the advantage bears the burden of rebutting the presumption.
Thus if a disadvantaged party contests a transmutation or other interspousal transaction, the advantaged party bears the burden of proving that the disadvantaged party freely and voluntarily consummated the transaction, with full knowledge of all the facts and complete understanding of the effect of the transaction.

Question 9

If we have H and W which buy a house in a non-community state, paying downpayment with Cp and the rest with H’s income? Noting that house is in H’s name

Answer 9

Treated as quasi CP since it would be CP if parties were domiciled in CA at time of buying property.

Presumption is that property during marriage is CP. Downpayment paid with CP + installments also with CP (Hs earnings).

House’ s in H name does not mean anything. Unless transmutation or evidnece this was meant to be a gift this is CP.

Question 10

When does Periera and Van Camp apply?

Answer 10

When business was initally SP. DO NOT APPLY them when business was started DURING marriage.

Question 11

What do you say for cohabitation in CP?

Answer 11

Even though cohabitation may be marriage like, California does not apply its CP law to persons who never evidenced any intention to enter into lawful marriage. Instead, California applies general contract principles. Even if a couple lives together, eventually marries and later divorced, only property acquired during marriage is distributed according to CP rules.

Property acquired during cohabitation is treated according to Marvin v. Marvin contract rules. According to Marvin, the courts should enforce express contracts between nonmarital partners except to the extent that such contracts are explicitly founded on consideration of sexual services. If there is no express contract a party may prove a contract implied by the behavior of the parties or an agreement of partnership or joint venture.

Question 12

So, if we have a spouse getting a settlement for wage replacement that they were suppose to get during marriage but that they did not get because of discrimination, what happens?

Answer 12

Labor performed by a married person is presumed to be community labor, and a spouse’s salary earned during marriage is presumed to be CP. Salary following divorce is deemed SP.
W will argue that the settlement is supposed to a wage replacement for the three years following their divorce. Therefore it is to be treated as SP
Conversely H is to treat the settlement as wage replacement for the income she was suppose in the years they were married. This argument is likely to succeed.
Court have held that funds intended to replace wages that would have been earned during marriage are CP.

Question 13

What do you say for transmutations?

Answer 13

To be valid, a transmutation must be made in a written express declaration that is consented to or accepted by the spouse whose interest is adversely affected. The writing must expressly declare that a change in the ownership of property is being made

the writing requirement does not extend to gifts between the spouses of items of a personal nature (clothing, jewelry) that are used principally by the spouse to whom the gift is made and that are NOT substantial in value, taking into account the financial circumstances of the marriage

Question 14

If we have a premarital agreement that states that “wages” are to be SP, does that include profits from a business?

Answer 14

Go through both. Say if agreement intended to include profits this happens, otherwise this happens.

Question 15

Van Camp and Periera… what’s up with them?

Answer 15

Pereira accounting begins with the separate capital and imputes a fair rate of return, say 10% per year, the current legal interest rate. The total SP interest is the principal plus the fair rate of return (here 10) times the number of years the SP business was in operation and managed by the spouse during the marriage. The remainder is CP In Pereira accounting, family expenses paid by business earnings are not subtracted because Pereira accounting starts by calculating the value of the SP and the residue (already reduced by money withdrawn to pay family expenses) is CP

Van Camp: in this form of accounting, the managing spouse’s services are valued at the going market salary for such services. Then family expenses that were paid from the business earnings are subtracted from the value of the manager’s services. The remainder, if any, represents the CP portion of the business. The rest of the business is the SP of the managing spouse.
o In contracts, Van Camp accounting starts by calculating the value of community labor that still remains in the business, and the residue is SP. Thus, in Van Camp accounting, family expenses are properly taken into account insofar as they were in fact paid from the business income

CP Essay 3 has an example

Question 16

Payments of the necessities of life, how does that work?

Answer 16

However, even after spouses have separate unless they made a separation agreement each spouse remains personally liable for debts incurred by the other spouse for the “common necessaries of life”.

Who will pay depends on how the court assigns the debt. If the court assign the debt solely to W neither H’s SP nor his share of the CP will be liable for the debt because a spouse’s property is not liable for a debt incurred during marriage by his spouse and assigned to his spouse by the divorce court.

Question 17

What happens when we have putative spouses?

Answer 17

A California putative spouse is not lawfully married but has a subjective good faith belief that she is lawfully married. The putative spouse has almost the same property rights as a lawful spouse.
All property that would be CP or QCP if her marriage were lawful is labeled quasi marital property QMP.
She has the same rights in QMP that she would have in CP or QCP. However, when on partner is a good faith putative spouse but the other knows o the defect causing the marriage to be void or voidable, it is not clear whether the partner lacking good faith may make any claim to the QMP accumulated by the good faith spouse.

The CA Supreme Court has left this question open but has suggested that it might treat the spouses equally despite one partner’s lack of good faith.

Alternative: doctrine of estoppel
CA courts have liberally applied the doctrine of estoppel to deny a lawful marriage when one spouse has assured the other that they are lawfully married or has known the marriage was not lawful and has continued to enjoy the benefits of marriage. If Hank is estopped to deny the marriage, Wanda is his lawful spouse rather than merely a putative spouse.
Whether she is a lawful spouse or a putative spouse should not affect her rights, although it would ensure that the marriage is treated as a lawful marriage, with the result htat Hank is entitled to an equal distribution of QCP and CP at divorce.

Question 18

(*) child support by another marriage. Who pays? Is there any right to reimbursement?

Answer 18

A spouse’s child support obligation from a prior relationship is treated as debt incurred before marriage. All of the CP the QMP, and the debtor’s SP are liable for a debt the debtor incurred before marriage.

There is an exception to the rule that all of the CP (QMP) is liable for a debt the debtor incurred before marriage. The CP (or QMP) earnings of the non-debtor spouse are not liable for the debtor’s premarital obligations as long as those earnings are held in a deposit account to which the debtor spouse has no right of withdrawal and no comingling has taken place.

Question 19

Reimbursement for education. What happens?

Answer 19

At divorce, unless the parties sign an agreement to the contrary, there is an equitable right of reimbursement with interest to the community when community funds are: a) used either to pay for education or training or are used to repay a loan incurred for education or training, and b) the education or training substantially enhances the earnings capacity of the educated party.

Reimbursement may be reduced or modified by any of the following circumstances: the education or training is offset by community- funded education received by the other spouse, the education or training enables its recipient to engage in gainful employment that substantially reduces the need the recipient would otherwise have for spousal support , ot the community has already substantially benefited from the education or training.

There is a rebuttable presumption affecting the burden of proof that if fewer than 10 years have elapsed between the contributions and the initiation of the divorce, the community has not substantially benefitted. If more than 10 years have passed, a presumption arises that the community has substantially benefitted

Question 20

If you were employed before the you go to law school did you decrease the need for spousal support by increasing your chances for gainful employment?

Answer 20

Generally no. We are looking at a pretty big gap. Like no job to top paying job.

Question 21

Does CP have an interest in a degree?

Answer 21

A degree is not an asset that can be valued. Therefore the community is not entitled to reimbursement for the cost of acquiring the education.

Question 22

Goodwill of a business, what happens?

Answer 22

Goodwill is essentially the difference between the total value of a business or professional practice and the value of tis assembled physical assets. Goodwill is an intangible value that develops during the life of a business and includes, among other things, the reputation and habitual clientele of a business or practice. To the extent that goodwill is earned during marriage, California treats it as community property even when some professional goodwill cannot, by law, be sold or transferred and even though much professional goodwill inheres in the particular practitioner and would not survive a sale. Thus the community has an interest in the goodwill to the extent that it was earned during the marriage.

Market sales valuation
Market sales valuation is the price the goodwill would command in a sale of the business or progression.

Capitalization of past excess earnings
“capitalization of past excess earnings” calculate goodwill by looking at the value of future earnings that the goodwill generated during the marriage.

HOWEVER, ALTHOUGH A COURT MAY CONSIDER THE TERMS OF A PARTNERSHIP AGREEMENT, THE TERMS ARE NOT CONCLUSIVE

Question 23

Spousal immunity in CA

Answer 23

i) Under CEC the spouse of a party yo any kind of proceeding may not be called as a witness by the adverse party and may not be compelled to testify against his spouse in that proceeding
ii) the privilege belogns to the witness spouse only
iii) the privilege can be claimed only during the marriage.

Remember - Although D can object to W’s testimony regarding any confidential communication between them that too place during the marriage, he cannot prevent her from being called to the stand to testify as to other matters i.e. her observation

Question 24

If you are witness, you agree to testify against husband/wife, then before testifying anything but after break you decide you do not want to anymore, then do you now have to testify?

Answer 24

YUP you wavied it by being willing to testify when she was called as a witness.

However if prosecution later asks you question and you invoke the privilege, does it work? YUP you cannot be compelled. (so you could be called on the stand but coudl not be compelled to testify).
[inspired from essay 6 evidnece]

Question 25

When is a witness being unresponsive?

Answer 25

A witness’s answer may be striken as non-responsive if it goes beyond the scope of the specific question that has been asked.

Question 26

Wife notices muddy shoes of husband. H wants to bar it with confidential relationship privilege? Can he?

Answer 26

Nope. W’s answer to question about shoes relate to her own observation and not to a marital communications, thus this privilege does not apply.

Question 27

What is a statement for the purposes of hearsay?

Answer 27

For purpose of the hearsay rule a “statement” is either a person’s i) oral or written assertion or ii) nonverbal conduct intended as an assertion.

Remember questions are not statements!

Question 28

What is the statement against interest exception?

Answer 28

In order to be admissible under the statement against interest exception: i) the statement must have been against pecuniary, proprietary, or penal interest when made, ii) the declarant must have had personal knowledge of the facts, iii) the declarant must have been aware that the statement is against his interest and must have had no motive to misrepresent at the time og the statement, and iv) the declarant must be unavailable as a witness

Question 29

What is the burden of proof in showing that a piece of evidence is relevant?

Answer 29

The burden of proof concerning preliminary facts that must be shown to make evidence admissible is on the party offering the evidence. But when the admissibility issue goes to relevant, that burden is low. The party offering the evidence need only introduce evidence sufficient to sustain a finding of the existence of the preliminary fact.

Question 30

Authenticating statements made in a telephone call.

Answer 30

Statements made during a telephone call may be authenticated by testimony as to one of the following a) the listener recognizes the speaker’s voice, b) the speaker has knowledge of certain facts that only a particular person would have or c) the speaker has identified himself

Question 31

Someone (V) trheatens B on the telephone. After B hangs up he tells his wife there. How many layers of hearsay are there?

Answer 31

There are two. V’s statement to B and B’s statement to W

Question 32

Tell me about CEC statement describing threat of physical injury

Answer 32

CEC recognizes an exception to the rule against hearsay in the case of a statement in which an unavailable declarant describes or explains the infliction or threat of physical injury upon the declarant. For the exception to apply the statement must be:

• Made at or near the time of the infliction or threat
• Made under circumstances that indicate its trustworthiness and
• In writing or made to law enforcement or medical personnel

Question 33

What do you do if a threat cannot be admitted as hearsay?

Answer 33

If it cannot be hearsay try non-hearsay. Usually has a bad effect on hearer and therefore can be admitted as non-hearsay.

Question 34

How do you authenticate certified copy of convictions

Answer 34

In Federal law they are self authenticating and in CEC likely going to come in as public records.

Question 35

Can you impeach a hearsay declarant?

Answer 35

Yes.

CEC. The CEC provides that a witness may be impeached with a felony conviction subject to three qualifications: a) the conviction has not been expunged nor the witness pardoned, b) the felony must involve moral turpitude and c) the conviction impeachment value is not substantially outweighed by its dangers.

FED through normal means.

Question 36

Opposing party admission by a co-conspirator

Answer 36

Remember if statement made by a co-conspirator but not in furtherance of the conspiracy, NOT admissible as non-hearsay.

Question 37

Tell me about the speculation objection.

Answer 37

an examining attorney may NOT ask a witness to speculate or hypothesize as to the existence or meaning of a fact. Testimony must be based upon the witness’s personal knowledge rather than on conjecture.

Also it can happen that question is not speculative but answer is.

Question 38

Mechanic tells helper to write an order down on piece of paper. Now helper wants to testify about the piece of paper. How many layers of hearsay?

Also how do you authenticate the piece of paper?

Answer 38

2. What mechanic said to helper and helper’s writing. SAY this when there are two layers of hearsay: a hearsay statement that includes other hearsay within it is admissible only if both hearsay statements independently fall within an exception

Additionally the authenticity of the record must be established for this exception to apply. The usual method of authentication is to have the custodian or other qualified witness testify to the identity of the record and the mode of its preparation. (Also under the FRE the record will be self-authenticating if the custodian or other qualified person certifies in writing that the record meets the requirements of the business records exception

Question 39

Requirements for a recorded recollection,

Answer 39

At trial if a witness states that he does not have sufficient recolletction of an event to be able t testify fully and accurately even after consulting a writing provided to him on the stand the writing itself may be read into evidence.

oThe witness at one time had personal knowledge of the facts recited in the writing
oThe writing was made by the witness or made under his direction
oThe writing was made while the matter was fresh in the mind of the witness
oThe writing is accurate
oAnd the witness has insufficient recollection to testify fully and accurately.

Question 40

What is the business records exception?

Answer 40

 A writing that is made as a memorandum or record of an act is admissible in evidence as proof of that act if it was made in the regular course of business and if it was the regular course of such business to take it at the time of the act or within a reasonable time thereafter.

 TO fall within this exception, statements within the business record must consist of matters within the personal knowledge of either the recorder or of someone with a business duty to transmit the matters to the record. Thus the record’ contents do not have to be within the personal knowledge of the recorder if both the recorder and the transmitter of the record’s contents are employees of the same business. If this personal knowledge requirement is met both the record itself and the recorded statements therein are enveloped within the business records exception

Question 41

How do you authenticate a police report?

Answer 41

The prosecution first must establish the authenticity of the police report. Usually the custodian of the record or another qualified witness will testify to the identity of the record and the method of its preparation. It is not necessary for the creator of the record to be called. Nor does a witness need to authenticate the record if the custodian certifies in writing

Question 42

What is the CA presently bodily exception?

Answer 42

Under CEC a declarant’s statement as to her present bodily condition is admissible as a hearsay exception. Here P’s comment about the pain in her leg relates to her physical condition, but the comment about D’s failure to yield does not. Therefore only “my right leg hurts” is admissible.

Question 43

How and when is lay opinion admissible in CA

Answer 43

The CEC allows lay opinion testimony that is based on specialized knowledge. However, the court may use its discretion where a party tries to sneak in expert technical evidence under the softer standards for lay opinion testimony.

Question 44

Common law defamation requirements

Answer 44

Consumer Pro claim that its statement in the manual was opinion and therefore not actionable as defamation. Common law defamation requires proof of a) a defamatory statement by the defendant, b) of and concerning the plaintiff, c) publication to a third person and d) damage to the plaintiff’s reputation. A defamatory statement is one that adversely affects and plaintiff’s reputation. The defamatory statement generally must be a statement of fact to be actionable.

However, a statement of opinion may be actionable if it appears to be based on specific facts and an express allegation of those facts would be defamatory. Whether a published statement is one of “fact” or “opinion” depends on the circumstances surrounding the publication and the nature of the words used. Generally the broader the language used the less likely that it will be reasonable interpreted as a statement of a fact or an opinion based on specific facts.

Ex. saying someone is an ambulance chaser is a fact. Saying that someone is “easy” is simply an opinion an is not defamation.

Question 45

Defamation and public figures

Answer 45

Although at common law defamation liability was strict, Supreme Court decisions based on the First Amendment now impose a fault requirement in cases involving public figures or matters of public concern. If the plaintiff is a public figure or a public official he must allege that the defamatory statement was made with actual malice, which is defined as knowledge that the statement was false or reckless s disregard as to its truth or falsity. If the plaintiff is not a public figure or official but the statement involves a matter of public concern, he must allege that the statement was made with, at a minimum, negligence as to its truth or falsity.

On the other hand, if the statement involves a matter of purely private concern, there is no fault requirement, only the four elements of the common law prima facie case need to be alleged. To determine whether the matter is a public or private concern, the courts will look to the content, form and context of the publication.

Question 46

Privileges and defamation

Answer 46

In certain situations, a speaker may say something defamatory without being liable because of the existence of a qualified privilege. One situation for which a qualified privilege may apply is when the recipient has a legitimate interest in the information provided, and it is reasonable for the defendant to make the publication. i.e. the defendant is not a mere intermeddler.

Because the privilege is only qualified it may be lost through abuse such as if the statement is not within the scope of the privilege (was excessively disseminated) or was made with malice (knowledge of falsity or reckless disregard as to truth or falsity). The defendant bears the burden of proving that a privilege exists. If the defendant establishes the privilege, the plaintiff bears the burden of proving that the privilege has been lost through abuse

Question 47

When talking about duty of care how do you start off?

Answer 47

A general duty of care to act as a reasonable person is owed to all foreseeable plaintiffs. If the defendant’s conduct creates an unreasonable risk of injury to persons in the persons in the positions of the plaintiff, the general duty of care extends from the defendant to the plaintiff. Under the majority (Cardozo) view, the plaintiff must be within the foreseeable zone of danger from the defendant’s activity to be owed a duty of care. Under the minority (Andrews) view, the duty of care is owed to anyone.

Question 48

Can firefighters recover for their injuries on the job?

Answer 48

Not really. In most states, however, when firefighters or police officers are injured while doing their job, the scope of duty is limited based on public policy or assumption of risk grounds. For this limitation to apply, the injuries must have arisen from risks inherent in the firefighting to law enforcement activity.

Question 49

However, if a teenager is driving a car, is stopped by a police officer, teenager tries to pull car but negligently hits police officer who gets hurt. Can police officer recover?

Answer 49

• Gayle owes a duty to anyone in the vicinity of her car while she was operating it
• G might argue that P is a police officer and therefore she can’t recover for injuries inherent to her law enforcement.

However, P will argue being struck by a car being negligently parked is NOT a special risk inherent in law enforcement activity as compared with rescuing someone in danger or pursuing a speeding vehicle. This is likely a successful argument

Question 50

NOTE when you see teenagers or kids driving stuff think about the adult standard.

Answer 50

The general rule for children is that they must conform to the standard of care of a child of like age, education, intelligence and experience. However, when a child engages in an activity that normally is one only adults engage in (ex. driving a car) she is required to conform to the same standard of care as an adult.

Question 51

If you are an adult and a teenager who is cleaning your garage what is your duty towards them?

Answer 51

The standard of care owed by Frances is to act as a reasonable adult in instructing a 16 years old to move her car.

So don’t tell the teenager to pull over quickly because you will have breached your duty likely.

Question 52

What do you say for proximate causation?

Answer 52

The general rule of proximate cause is that the defendant is liable for all harmful results that are the normal incidents of, and within the increased risk caused by, his conduct. In other words, if one of the reasons that make the defendant’s act negligent is a greater risk of a particular harmful results occurring, and that harmful results does occur, the defendant generally is liable.

In an indirect cause case, an intervening force comes into motion after the defendant’s negligent conduct combines with it to cause the plaintiff’s injury. If the defendant’s negligence created a foreseeable risk that this intervening force would harm the plaintiff, the defendant is liable for the harm caused

Question 53

vicarious liabiltiy. What do you say?

Answer 53

Paula may also contend that F is vicariously liable for G’s negligence. An employer will be vicariously liable for torts committed by her employee within the scope of the employment relationship.

On the other hand, a principal will not be vicariously liable for the torts of her agent if the latter is an independent contractor rather than an employee, unless the contractor is engaged in inherently dangerous activities or the principal’s duty is nondelegable on public policy grounds. Whether the agent is an employee or an independent contractor depends on the extent to which the principal has the right to control the manner and method of the work.

The relevant factors that make an agent more likely to be an independent contractor include that a) the employment is for a short and or definite period rather than a longer or indefinite period, b) the employment was for a personal task of the principal rather than for her business, c)the compensation was tasks based rather than time based and d) the parties did not believe the arrangement to be an employer-employee relationship.

Question 54

Duty owed to tresspasseers.

Answer 54

the general rule for property owners is that one who comes onto land without permission or privilege is a trespasser to whom the property owner owes no duty. However, if the property owner knows or reasonably should know of the presence of trespassers regularly entering onto the property, the entrant may be an “anticipated trespasser” to whom the property owner owed a duty to warn of or make safe artificial conditions that carry the risk of death or serious bodily injury.

if the trespasser is a child the duty may be more extensive. Under the “attractive nuisance” doctrine. The property owner owes a duty to exercise reasonable care to avoid a reasonably foreseeable risk of harm to children caused by artificial conditions on the property. To establish an attractive nuisance, the plaintiff must show that a) there is a dangerous condition present on land of which the owner is or should be aware, b0 the owner known or should know that young persons frequent the vicinity of this dangerous condition, c) the condition is likely to cause injury i.e. is dangerous because of the child’s inability to appreciate the risk, and d) the expense of remedying the situation is slight compared with the magnitude of the risk. The plaintiff does not need to show that the child was lured onto the property by the dangerous condition

Question 55

What does negligence per se estbalish?

Answer 55

Duty and breach.

Although try to analyze if someone has been negligent at common law as well, k?

Question 56

Do intentional torts always break off the chain of causation?

Answer 56

NO. If the defendant’s negligence created a foreseeable risk that a third person would commit a crime or intentional tort the defendant’s liability will not be cut off by the crime or tort.

Question 57

How much does a tortfeasor owe in damages?

Answer 57

A plaintiff is entitled to be compensated from the tortfeasor for all her damages, even if the extent or severity of the harm is unforeseeable.

Question 58

What do you say for all those contributory negligence in negligence?

Answer 58

While under the traditional rules of contributory negligence and assumption of the risk plaintiff’s conduct could result in her being barred from recovery

ii) most jurisdiction ow follow the modern rule of comparative negligence whereby the plaintiff’s recovery is merely reduced according to the percentage of her fault.

Question 59

What are the elements of conversion?

Answer 59

For conversion, the plaintiff must show i) an act by the defendant interfering with the plaintiff’s right of possession in the chattel that is seriosu enoguh in nature or consequence to warrant that hte defendant pay the full value of the cattel, ii) intent to do the act that brings about the interference with the plaintiff’s right of possession and iii) causation.

The remedy for conversion will be iether damages for hte fair market value of the chattel or replevin of the property.

Question 60

What you say for strict products liabiltiy. (you welcome : )

Answer 60

For a strict products liability cause of action, the plaintiff must establish the following elements: a) the defendant is a commercial supplier, ii) the defendant produced or sold a defective product, iii) the defective product was the actual and proximate cause of the plaintiff’s injury, and iv) the plaintiff suffered damages to person or property.

i) strict liabiltiy applies to commercial suppliers who place products in the stream of commerce, ii) both manufacturers and retailers are commercial suppliers of the blender
i) to establish a design defect the plaintiff usually must show that a less dangerous modification or alnteative was economically feasible. ii) a product may be defective if it does not have a lcear and complete warnings of any dangers not apparent to users.

To establish a design defect the plaintiff must establish that there is a feasible alternative, i.e. that a less dangerous modification or alternative to the product was economically feasible. Factors that a court will consider under the feasible alternative test include: i) usefulness and desirability of the product, ii) availability of safer alternative products, iii) dangers of the product that have been identigied by the time of trial, iv) likelihood and probable seriousness of the injury, v) obviousness of the danger, vi) normal public expectation of damages, vii) avoidability of injury by care in the use of the product and vii) feasibility of eliminating the danger without seriously impairing the product’s function or making it unduly expensive.

Question 61

Yes it goes on (strict liability)

Answer 61

to establish actual cause, the plaintiff must trace the harm suffered to a defect in the product that existed when the product left the defendant’s control, ii) if the plaintiff claims that one of the defective conditions was the lack of an adequate warning she can rely on a presumption that an adequate warning would have been read and heeded’

i) to establish proximate cause, the plaintiff must show that the type of injury she suffered was foreseeable at the time the product was placed into the stream of commerce ii) an injury may be foreseeable if it arises from a foreseeable “misuse” of the product

Question 62

Product liability and negligence.

Answer 62

The elements of a products liabiltiy cause of action based on negligence are: i) a duty owed by the defendant to the plaintiff, ii) breach of that duty, iii) actual and proximate cause, and iv) damages

i) a duty of care arises when the defendant is a commercial supplier of products, ii) this duty is owed to all foreseable plaintiffs (users, consumers and bystanders) there is no requirement of contractual privity between the plaintiff and defendant

To establish breach of duty the plaintiff must show i) negligent conduct by the defendant that leads to ii) the supplying of a defective product by the defendant.
To establish that a manufacturer’s negligence resulted in a design defect, the plaintiff must show that those designing the product knew or should have known of the dangers of marketing the product as designed.

The elements of actual cause, proximate cause, and damages are analyzed the same as in the strict liability actions.

The negligent failure of an intermediary to discover a defect does not cut off the liability of a negligent supplier.

REMEMBER: in a products liability action based on negligence a retailer who buyer from a reputable manufacturer with no reason to anticipate that the product is dangerous will NOT be liable.

{look at Torts 2]

Question 63

Standard for motion to dismiss

Answer 63

court should i) view the evidence in the light most favorable to the nonmoving party, and ii) deny the motions as long as the plaintiff has presented some evidence in support of her cause of action.

Question 64

Implied warranty of merchantability.

Answer 64

i) when a merchant who deals in a certain product sells that product there is an implied warranty that the product is generally fit for the ordinary purposes for which such goods are used, ii) if the product fails to live up to the warranty, the defendant may be liable for any injuries cause.

All jurisdiction extend this protection to a buyer’s family.