Chapter 5 Part 2

Question 1

What is negligence

Answer 1

it deals with careless or reckless conduct rather than intentional conduct

Question 2

What are the four basic elements to a negligence claim

Answer 2

Defendant has a duty to the plaintiff against unreasonable risks- Duty, Defendant fails to perform the duty-Breach, There is actual loss or damage to the plaintiff- Harm, A reasonably close connection between the defendant’s conduct and the plaintiff’s injury- Causation

Question 3

What is Duty of Care - Duty in the element of negligence

Answer 3

A person should foresee that their conduct would create an unreasonable risk or harm to others

Question 4

What is Failure to Exercise Care - Breach in the element of negligence

Answer 4

Failure to do what the ordinarily prudent person would do under the same circumstances

Question 5

What is Injure or Harm in the element of negligence

Answer 5

Physical or mental harm like fright, humiliation, or emotional distress

Question 6

Causation in the element of negligence

Answer 6

A casual connection between the breached duty and the injury.

Question 7

What are the two types of causation that are required to maintain an action for negligence

Answer 7

cause in fact and proximate cause

Question 8

What is cause in fact in the element of negligence

Answer 8

established by evidence showing that the complained-of act is the cause of the event that caused the injury

Question 9

What is proximate cause in the element of negligence

Answer 9

The harm must be foreseeable (knowing the danger and harm it can cause to people) by the actor when he committed the negligence act.

Question 10

What is the defense to negligence

Answer 10

The assumption of the risk by the plaintiff and the plaintiff’s own negligence and superseding cause.

Question 11

What is assumption of risk

Answer 11

voluntary exposure to a known risk

Question 12

What is contributory negligence

Answer 12

the failure of the plaintiff, the injured party, to exercise reasonable care, which contributes to the injury

Question 13

What is comparative negligence

Answer 13

allows a proration of the damages resulting from the combined negligence of the parties. The plaintiff recovers, but only for the damages the defendant caused

Question 14

What is moral hazard

Answer 14

under a simple negligence standard the people at risk have the incentive to take self-protective or loss-avoidance measures

Question 15

What is superseding cause

Answer 15

Something occurs that breaks the causal connection required to have a negligence case (FIND EXAMPLE pg.161)

Question 16

What is strict liability in tort

Answer 16

liability without fault

Question 17

What was the reason the court created strict liability in tort

Answer 17

for cases involving “abnormal” or “ultra-hazardous” activities

Question 18

What does safety allow

Answer 18

it allows for the compensation of parties injured by unsafe products, and through market adjustments to unsafe products

Question 19

What was caveat emptor (beginning of product safety)

Answer 19

the buyer of the product was the one liable for injuries or harm if product was deemed dangerous

Question 20

What Is product liability based on negligence

Answer 20

when a supplier, such as a wholesaler, retailer, distributor, manufacturer, or other party in the supply chain, places a product the stream of commerce with inaccurate or inadequate labeling, or manufacturing or design defects or flaws

Question 21

If there is knowing express consent, assumption of the risk can still be used with what elements present

Answer 21

the plaintiff had knowledge of the facts making up the dangerous condition, making the plaintiff aware that the situation was dangerous, the plaintiff understood the nature and extent of the danger, and voluntarily undertook the dangerous activity

Question 22

What is express warranty

Answer 22

is created when a seller makes a guarantee to the buyer that the product/service being offered has certain qualities

Question 23

What is implied warranty

Answer 23

Warranties that arise due to the facts and situations of the case.

Question 24

What is implied warranty for fitness for particular purpose

Answer 24

occurs if a seller knows or has reason to know of a particular purpose for which some item is being purchased by the buyer. The seller then guarantees that the item is fit for that particular purpose

Question 25

What is strict liability

Answer 25

a defendant is liable when the plaintiff proves that the product is defective, regardless of the defendant's intent.

Question 26

What is consumer expectations test

Answer 26

Consumers buy a product they have the right to expect that it is safe

Question 27

What are the four elements that the plaintiff must show to prove a strict liability case

Answer 27

Identifying the seller and the relationship between the product and the plaintiff's injury, defective product and was substantial to the plaintiff's harm, unreasonable danger, and defect existed when it left the manufacturer

Question 28

What are the two defenses of strict liability

Answer 28

abuse or misuse and assumption of the risk

Question 29

What is assumption of the risk

Answer 29

(1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger, and (3) voluntarily exposed himself to those risks.

Question 30

What are the five arguments to justify the use of the rule of strict liability

Answer 30

Consumers be give the maximum amount of protection from defects, only the producer can prevent dangerous and defective products, costs of duplicative lawsuits, since the manufacturers receive the sale they should responsible, and the manufacturer has more finances to be responsible for the injuries of their customers.

Question 31

What is the Restatement (Third) of Torts

Answer 31

it would create a one term of products liability (removing negligence, warranty, and strict liability) and divide the liability rules based on type of product, liability in design, and inadequate instructions or warnings

Question 32

What is market share liability

Answer 32

liability law that apportions liability against a set of defendants according to their respective market shares of sales of a harmful product during the period that the harm occurred

Question 33

absolute liability

Answer 33

full legal responsibility for damages or for an injury, without the need for proof and regardless of the degree of negligence or fault