Final Flashcards
(179 cards)
1
Q
Battery Elements
A
1) D acts
2) intending to cause a contact with P
3) that is harmful or offensive
4) D’s act causes P to suffer a contact that is harmful or offensive
2
Q
Assault Elements
A
1) D acts
2) intending to cause P apprehension of imminent harmful or offensive contact
3) D’s act causes P reasonable apprehension of imminent harmful or offensive contact
3
Q
False Imprisonment Elements
A
1) D acts
2) intending to confine P
3) D’s act causes P to be confined
4) P is aware of the confinement
4
Q
IIED Elements
A
1) D engages in extreme & outrageous conduct
2) that is intended to cause or recklessly cause P severe emotional distress
3) and does cause P severe emotional distress
5
Q
Trespass Elements
A
1) D intentionally touches land
2) that is owned or possessed by P
6
Q
Nuisance Elements
A
1) D engages in conduct
2) that causes P continuous & unreasonable interference
3) with P’s use & enjoyment of property
4) in which P has a possessory interest
7
Q
Products Liability Claim Elements
A
1) P suffers injury from a product D sold
2) D is a commercial seller of such products
3) Product was in a defective condition at the time of sale
4) The defective product actually & proximately caused P’s injury
8
Q
Negligence Claim Elements
A
1) Injury
2) Duty
3) Breach
4) Causation
9
Q
3 Categories of Affirmative Duty To R/W/P
A
1) Special Relationship
2) Voluntary Undertaking
3) Defendant Created Peril
10
Q
Special Relationship under Qualified Duty
A
- D had special knowledge
- D had authority over P
- D had control over the environment
- P was in a vulnerable position compared to D
- business/customer, school/student, employer/employee, prison/prisoner, etc.
11
Q
Voluntary Undertaking under Qualified Duty
A
- D voluntarily created an affirmative duty to R/W/P for themselves
- D is bound to that duty to rescue once they volunteer as long as it is reasonable
- D must give notice if they want to end the duty
12
Q
Defendant Created Peril under Qualified Duty
A
- D had a hand in placing P in peril
- D has actual or constructive knowledge that they caused the victim to be injured or put at risk of physical harm
- risk of harm is imminent
- (think golf ball - you hit a golf ball towards someone else, you yell fore)
13
Q
3 Categories of Entrants in Premises Liability
A
1) Trespasser
2) Licensee
3) Invitee
14
Q
Duty to Trespasser under Premises Liability
A
- Trespasser has no express or implied permission to be on the property.
- D owes trespasser NO DUTY with respect to maintaining safety of the property
- D must refrain from intentionally or willfully injuring P
15
Q
Who is responsible for the conditions of the property for premises liability?
A
Person in lawful control of the property
16
Q
Exceptions to Trespassers in Premises Liability (Special Trespassers)
A
1) Known or regular trespasser
2) Child trespasser
17
Q
Duty to Known or Regular Trespasser under Premises Liability
A
P is effectively a licensee if they are a known or regular trespasser. D has same duty they owe to licensee - duty to warn of known or hidden dangers.
18
Q
Duty to Child Trespasser
A
Land-possessor must have reason to foresee that children might enter the property and be endangered by the condition
Minority rule: wholly reject the no-duty rule for trespassers
In the past: attractive nuisance rule
19
Q
Duty to Licensee under Premises Liability
A
Licensee is a social guest. Duty is to warn of known or hidden dangers that D knows or should know about.
20
Q
Duty to Invitee under Premises Liability
A
Invitee is on the premises for business purposes (to further material or institutional goals of land possessor). Duty is to keep the premises in reasonably safe condition.
21
Q
Duty to Non-Entrants in Premises Liability
A
- D not liable to take care to protect against harms caused by natural conditions on the land.
- D IS obligated to take care to ensure trees on property do not injure travelers on public roads if land is used for commercial purposes.
- D liable to take care to protect against harms caused by artificial (man-made structures) known by D.
22
Q
General duty
A
Person who owes another a general duty of care has to exercise reasonable care under all the circumstances to avoid causing the other person reasonable, foreseeable harm.
23
Q
Respondeat Superior Definition
A
- Applies vicarious liability to employer for employee’s negligent conduct when talking about employer/employee relationship
- Act must have occurred within the scope of employment
24
Q
Characteristic Activity Test (Respondeat Superior)
A
- Looks at what employer could foreseeably see as behavior within employee’s scope of employment
- Frolic vs. Detour
25
What is a frolic?
Deviating so far from job that it becomes a wholly personal activity (Making a work delivery and deciding to drive your work truck to the beach with you instead)
26
What is a detour?
Running a personal errand on the job (Making a work delivery and stopping to pick up your dry cleaning b/c it's on the way)
27
What is the reasonable person standard?
Precautions/degree of care a reasonable person in the same or similar circumstances would have taken. Applies at breach stage.
28
What is the objective vs. subjective standard for reasonable care?
Objective standard: if D's conduct was that of a reasonable person in the same or similar circumstances.
Subjective standard: if D's intentions were reasonable or if their actions were reasonable for them. We use objective reasonable person standard.
29
What are the superior knowledge/profession or trade principles?
Superior knowledge: D has superior skill or knowledge
Profession/trade principles: D is engaged in a profession or trade that requires exercise of acquired learning, special licenses, special tests, or special training.
30
Does the superior knowledge/professional principle created a higher standard of care?
NO. Does not change the duty owed, just how you measure whether or not reasonable care was taken.
31
Are industry customs dispositive of breach?
No. Juries and courts are allowed to second guess industry customs if they believe they are behind the times.
32
Are juries and courts allowed to second guess professional customs?
No. Juries and courts lack the specialized knowledge to know enough about the professional customs to second guess those customs.
33
What is the tender years doctrine?
Ages 0-6: Presumed incapable of negligence; no duty owed.
Ages 7-13: Rebuttable presumption of the incapacity for negligence - they are presumed to be incapable of negligence, but you're allowed to argue that they were negligent. If rebutted, compare D to a "like child"
Ages 14+ OR engaged in an adult activity: held to the ordinary reasonable person standard
34
What is the Massachusetts Rule?
Most children (except for the very littles) are presumed capable of negligence. Must be compared to a like child to D in similar circumstances. Takes away the presumption of incapacity for negligence. Implemented because we are teaching children more now about their social responsibilities and children are more aware now of dangers.
35
Can parents be held liable for vicarious liability for their children in US tort law?
No. They cannot be held liable through vicarious liability but may be found liable through direct liability.
36
What is negligent supervision? (Parents when D is a child)
- Parents were aware of instances where they could have been supervising their child and did not.
- Parents had the opportunity to control their child and did not.
37
What is negligent entrustment? (Parents when D is a child)
- D's parents left out car keys, or left firearms easily accessible, etc.
- Careless entrustment of a dangerous instrumentality
- Parents were unreasonable in making the dangerous instrumentality accessible in any way to D.
38
Recreate the direct liability car keys scenario.
Injury is physical harm - duty is reasonable care under the circumstances - breach is failing to use reasonable care under the circumstances in that parent negligently entrusted the car keys to her child by leaving them out on the counter when she knew her son could access them.
39
What reasonable care standard are old people held to?
Objective standard of reasonable care of an ordinary person. No passes for being old.
40
What reasonable care standard is a defendant who has a physical disability or ailment held to?
Standard of a reasonable ordinary person with that same disability or ailment (blind person driving a car example - reasonable blind person would not operate motor vehicle with that disability)
41
What reasonable care standard is a person with mental illness held to? (Temporary & Chronic)
Temporary: not required to meet the ordinary reasonable care standard for temporary insanity
Chronic: ordinary reasonable care standard
Person w/ chronic mental illness cannot use that MI as a defense of breach or duty, but someone suffering from temporary insanity can.
42
What reasonable care standard is a professional acting within the scope of their profession during the alleged breach held to?
- Must follow customs of profession - following those customs demonstrates reasonableness.
- failing to comply w/ professional customs is a breach
- trier of fact must rely on expert testimony to determine the professional standard (and then whether there was a resulting breach)
- experts can disagree on what is reasonable care w/n a profession
*Note that this ONLY applies when D is engaging in their professional conduct*
43
What makes a person a professional under the law?
- extends beyond traditional professional roles like doctor & lawyer
- job that requires special training, licensing, exams, specialized knowledge, etc
44
What are the Kaplan and Canterbury standards?
- for use in a medical malpractice claim where neg occurred during D's scope as a medical professional
- Kaplan: professional standard = what a reasonable physician thought a patient in those circumstances would want to know about their care
- Canterbury: prudent patient standard/materiality of risk standard = believes that patients have autonomy & need to be able to participate in their medical care
45
What is BPL?
- "formula" for reasonable care as a function of three variables
- B = burden of taking adequate precautions
- P = probability of harm
- L = gravity of resulting harm
46
What happens if B < PxL?
Finds that due care was not exercised if the precaution was not taken when the burden was less than the risk of injury.
47
What happens if B > PxL?
Finds that the burden of the precaution was greater than the risk of injury.
48
What are the three criteria for res ipsa loquitur?
1) Injury happened in a way that ordinarily would not have occurred outside of the presence of carelessness.
2) Instrumentality causing injury was in exclusive control of D.
3) P had no hand in causing their own injury.
49
What is res ipsa, when is it used, and what does it do?
- Res ipsa is an evidentiary doctrine that can be argued for as jury instruction.
- Used when something obviously went wrong somewhere, but we're missing the piece where P can prove that D actually caused the injury
- Allows the jury to infer without evidence that P's injury was caused by D's carelessness and therefore, a breach has occurred (they do not have to infer this, just allows them to)
50
What is the test for actual cause?
"But for D's breach of _____, P's injury of _____ would not have occurred."
51
What is the test for proximate cause?
"Is the injury of ____ a realization of the risks that made us determine that _____ was a breach?"
52
What is the scope of the risk test?
Whether the injury that occurred was within the scope of the risk of what we determined was breach behavior.
- Ex: Father hands child A loaded gun. Child A drops loaded gun on toe of Child B and breaks B's toe. Fathers breach of giving Child A gun was not the proximate cause of Child B's injury. The injury we were thinking about at breach was the injury of someone getting shot from handing a loaded gun to a child, not the child dropping the gun and breaking a toe. The injury of breaking a toe was not within the scope of the risk of the father's breach behavior.
53
What is superseding cause?
- Where actual & proximate cause can be found for two or more tortfeasors, but one D's actions can be seen as having greater significance for the purposes of imposing liability.
54
When does superseding cause absolve the 1st D of liability? When does it not absolve the 1st D of liability? (Think nitroglycerin)
- Superseding cause absolves D1 from liability when the 2nd D's conduct was unforeseeable from D1's perspective, OR b/c the fault of D2 was somehow way more important in comparison.
- Superseding cause does NOT absolve D1 of liability when D2's conduct was foreseeable from D1's perspective OR when there was no intentionality in D2's breach ("no new mischief").
55
Can ordinary medical malpractice be a superseding cause?
No. MedMal is deemed always foreseeable by law and is not a superseding cause.
56
What was Cardozo's argument in Palsgraf?
Duty issue & duty is relational. The RR owed P a basic duty, but the action was not a breach in respect to her. No duty was breached with respect to this P under these circumstances - cannot benefit vicariously from a wrong done to someone else.
57
What was Andrews' argument in Palsgraf?
Where should causal chain be broken when thinking about proximate cause. Proximate cause should not be a criteria to find negligence, but a tool to help us figure out where we cut duty off. Thinks we should walk around with a general duty to everyone all the time (but we don't).
58
What is negligence per se?
A jury instruction that allows P to satisfy the duty and breach elements of their negligence claim by proving D's violation of a conduct regulating statute.
59
What are the negligence per se criteria?
1) Statute must be conduct regulating
2) D must have violated the statute
3) P must be in the class of persons the statute is designed to protect
4) The incident must be of the kind the statute is designed to protect
60
What are the 5 exceptions to NPS?
1) Youth or physical incapacity
2) Reasonable efforts to comply
3) Justified ignorance as to existence rendering statute applicable
4) Excessive vagueness or ambiguity of statute
5) Compliance poses a greater risk
61
If D has complied with a relevant statute for NPS, is that dispositive of breach?
No. It is just dispositive of breach under NPS. P can still prove that D committed breach as a matter of common law.
62
What is a survival action?
Negligence claim brought by the estate of the decedent for harm the decedent suffered from the moment of negligence up until death.
63
What is a wrongful death action?
Derivative negligence claim brought by the immediate family member of the decedent on behalf of themselves for pecuniary losses they suffered after decedent's death.
64
Can D raise affirmative defenses at any point?
No. Affirmative defenses must be raised in D's answer to the complaint or they are waived.
65
What are the three types Comparative Fault affirmative defenses?
1) Contributory negligence
2) Pure comparative negligence
3) Modified Comparative Negligence
66
What is contributory negligence?
If P is at all at fault, complete bar to recovery. Only used in 4 states plus DC.
67
What is pure comparative negligence?
Percentage of fault. P recovers the remaining percentage of whatever their carelessness didn't cause. If P caused 99% and D caused 1%, P recovers 1%.
- Default to this on exams and bar.
68
What is modified comparative negligence?
If P caused either 50+ or 51+% of their own injuries, complete bar to recovery. Some states are 50+ and some are 51+ (OK is 51+).
69
What is assumption of the risk?
Affirmative defense that D can raise that if successful, will be a complete bar to recovery. P cannot seek redress from D on the basis that D breached a duty to them by exposing them to the risks because P could have avoided the risk but chose not to.
70
What are the two types of assumption of the risk?
1) Implied
| 2) Express
71
What is implied assumption of the risk?
Involves P's conduct. Needs to be a reasonable risk for P to take. If it was a reasonable risk, P must have encountered the risks fully conscious of what they were, did so willingly, and was reasonable in doing so.
72
What is express assumption of the risk?
Requires a writing. Usually an exculpatory clause in a contract. Must look at the contract as a whole to decide if it is an adhesion contract or not. If not, look at exculpatory clause to determine if adequately clear on terms. If yes, look at if contract can be upheld as a matter of public policy.
73
What is sovereign immunity?
US is immune from being sued unless it consents to being sued.
74
What is the FTCA?
Used when determining if sovereign immunity applies. FTCA waives the US's right to SI and makes US liable under certain tort actions its agents commit. No juries, no punitive damages.
75
What does the FTCA require?
Discretionary function. The conduct at issue must be discretionary - choice by the agent and not requirement by the govt. If conduct is discretionary, US immune. If conduct not discretionary, US can be found liable.
76
What is the Westfall Act?
Exempts fed. employees from being held individually liable for torts committed within the scope of their employment.
77
What is the Bivens exception to the Westfall Act?
Govt. employee can be found liable for instances of violation of constitutional rights or statutory causes of action.
78
What is the Feres Doctrine?
Military members can't sue govt. for injuries arising from their service.
79
What is a statute of limitation?
Starts the clock running in relation to the occurrence of the tortious conduct AND the injury caused to P. (P must commence their lawsuit within ____ amt. of time after action occurred)
80
What is a statute of repose?
Limits by reference to either date of tortious conduct or some other date (date of sale, manufacturing, etc.). SoR may say "no tort action can be brought for product defect more than 10 yrs after date of sale of product", etc.
81
What is an inquiry notice?
P is deemed to have knowledge of their injury at the time when they gain info sufficient to alert a reasonable person that they should investigate their injury.
82
What is the accrual rule?
Clock on negligence claim begins to run when D acted carelessly AND P was injured.
83
What is the discovery rule?
Stalls beginning of limitations clock until P knows or has reason to know that they have suffered an injury AND there is sufficient reason to believe that D caused it.
84
What are compensatory damages?
Designed to make the plaintiff whole. Can be economic, noneconomic, or nominal.
85
What are economic compensatory damages?
Quantifiable damages you can calculate. Usually bills of all types, lost wages, lost profits, reduced value, etc.
86
What are noneconomic compensatory damages?
Not easily quantifiable. Usually pain & suffering, emotional distress, loss of consortium, etc.
87
What are nominal damages?
$1 or 6 cents. Acknowledges wrongdoing.
88
What is an injunction?
Order from the court to stop doing something. Usually about nuisance.
89
What is the collateral source rule?
D cannot raise an objection to damages just b/c P has insurance that will already pay for those damages.
90
What is the eggshell rule?
Tortfeasor takes victim as they find them. Still responsible for amount of damage P suffered even if it was greater than D expected b/c of P's hidden vulnerability.
91
What are punitive damages?
Designed to punish tortfeasor and deter others. Needs to have wanton disregard or reckless indifference to another person's safety to qualify.
92
What is the predicate injury for an NIED claim?
Pure emotional distress
93
What are the three exceptions to the general no duty rule for NIED?
1) Special Relationship
2) Zone of Danger
3) Liability to Bystanders
94
What is the Special Relationship exception in NIED?
A relationship, contract, or circumstances where there is a legitimate expectation or obligation that one person owes another a duty to use reasonable care with respect to another's emotional wellbeing.
95
What are examples of a Special Relationship in NIED?
1) Undertaker mistreating a body
2) Lawyer who delays presenting proof of their client's innocence so they have to remain in jail
3) Doctor delays in correcting a terminal diagnosis when their patient is really fine but thinks they're gonna die
96
What are the key features of a special relationship in NIED?
1) Express undertaking
2) Particular special foreseeability about the relationship that makes it foreseeable that emotional distress might be caused by failure to act or action
97
What is the Zone of Danger and what is the criteria for it?
- D's negligence put P in a zone of danger in which they feared imminent bodily harm
Criteria:
1) P must be in the zone of immediate physical danger from D's negligence
2) P's emotional distress is proximately caused by being physically endangered
98
What are the criteria for Liability to Bystanders in NIED?
1) Must be a close relation (close blood relative) to the victim of negligence
2) Must have been present and aware of the negligence as it happened
3) Must have suffered emotional distress beyond what others witnessing would have, but not an abnormal reaction
99
What are the intentional torts?
1) Battery
2) Assault
3) False Imprisonment
4) IIED
100
What are the elements for battery?
1) D acts
2) intending to cause a contact with P
3) that is harmful or offensive
4) D's act causes P to suffer a contact that is harmful or offensive
101
How are harmful and offensive judged in battery?
Harm: did it objectively harm someone
Offensive: is it objectively offensive in the eyes of society at large
102
Are people with mental illness capable of forming the requisite intent for intentional torts?
Yes
103
Are children capable of forming requisite intent for intentional torts?
Children are judged by the jury. Jury decides whether or not that particular child was capable of forming intent & acting with that intent.
104
What are the elements of assault?
1) D acts
2) with the intent to cause P reasonable apprehension of imminent harmful or offensive contact
3) D's act causes P reasonable apprehension of imminent harmful or offensive contact
105
How is reasonable apprehension for assault judged?
Reasonable person standard. How a reasonable person would have felt right then in that moment.
106
What are the 5 affirmative defenses to assault & battery?
1) Express or implied consent
2) Self defense
3) Defense of Others
4) Defense of Property
5) Recapture of Real or Personal Property
107
What is implied consent?
Implied in law. An emergency makes it necessary for D to make physical contact with P in order to prevent harm to P before P is able to give consent. D has no reason to believe P would decline consent if given the opportunity.
108
Can you consent through fraud or consent to illegal activities?
No.
109
What are the criteria for the affirmative defense of self defense?
1) Must actually & reasonably believe that in order to avoid imminent injury, it was necessary to injure or assault another person
2) Must not have provoked attack (can't be the initial aggressor who used or threatened the use of unlawful force first)
3) Must use reasonable force for the situation
110
When does the affirmative defense of Defense of Others apply?
Applies to battery and/or assault where D used force against a person who is threatening imminent harm to another.
111
What are the elements for False Imprisonment?
1) D acts
2) intending to confine P
3) D's act causes P to be confined
4) P is aware of the confinement
112
What are the two affirmative defenses to False Imprisonment?
1) P's consent
| 2) Authority of law
113
What are the elements of IIED?
1) D engages in extreme & outrageous conduct
2) that is intended to cause or recklessly causes P severe emotional distress
3) D's conduct does cause P severe emotional distress
114
Is physical harm necessary for an IIED claim?
No.
115
What are some ways you can prove emotional distress?
1) Evidence/testimony from medical providers
2) Evidence/testimony from P themselves talking about what they experienced
3) Evidence/testimony from family members
116
Does a bystander need to show bodily harm for an IIED claim if they are: 1) immediate family and 2) not immediate family?
1) If bystander is immediate family, do not need bodily harm
2) If bystander is not immediate family, need some type of bodily harm that is not just a physical manifestation of distress
117
How can we show conduct is extreme & outrageous?
1) Conduct must be beyond all possible bounds of decency
2) Conduct must be atrocious & utterly intolerable in the civilized community
3) Conduct must be beyond a mere violation of a relationship of trust
118
What are the three categories of Strict Liability? (Not including products liability)
1) Trespass
2) Nuisance
3) Ultrahazardous Activities
119
What are the elements of Trespass?
1) D intentionally touches land
| 2) that is owned or possessed by P
120
What is trespass protecting?
P's right of exclusive control & possession of real property and the freedom from interference with that right.
121
Is harm an element of trespass?
No.
122
Who can complain of trespass?
Person with possessory interest in the property & in most states, their immediate family members.
123
What are some ways you can "enter" or touch a property?
1) Walking with feet
2) Driving across/on it
3) Throwing things onto it
4) Flooding it
5) Building on it
6) Digging it up
124
What are the two types of defenses to trespass?
1) Incomplete Privileges of Necessity
| 2) Consent
125
What are the two types of Incomplete Privileges of Necessity in trespass defenses?
1) Public
| 2) Private
126
What is the private privilege of necessity in trespass? What are you liable for?
When trespass is necessary to prevent serious harm to trespasser himself or trespasser's real/personal property.
You are liable for any damage caused as a result of the trespass, but not liable for the trespass itself.
127
What is the public privilege of necessity in trespass? What are you liable for?
When the trespass is undertaken for the good of the public at large.
You are not liable for the trespass or any damage caused to the property by actions to save the public, but can be liable for any unnecessary damage caused by trespass.
128
What is the consent defense to trespass?
When you have permission to be on the land.
129
Is the consent defense to trespass a complete defense?
No. If you only have consent to be on the property for a specific reason (and you're there for a different one), or if you only have consent to stay on the property for a certain period of time (and you stay longer), you are trespassing.
130
What are the elements of nuisance?
1) D engages in conduct 2) that causes P continuing & unreasonable interference
3) with P's use & enjoyment of property
4) in which P has a possessory interest
131
Does D's conduct have to be unreasonable for nusiance?
No. Only the interference must be unreasonable. In the compost example, D's conduct of making the compost was reasonable, but the interference of the smell of the compost was unreasonable.
132
What is usually weighed when considering whether to grant an injunction for nuisance?
Typically weighs the benefit to the public from continuing the nuisance with the detriment to the people experiencing the nuisance. Very public policy heavy.
133
What are some common examples of ultrahazardous activities?
1) Explosives
2) Storage of large amounts of energy
3) Wild animals
134
Is physical harm required for ultrahazardous activities?
Yes. Strict Liability is limited to the kind of harm that makes the activity abnormally dangerous.
135
Do we take D's reasonable care into consideration for ultrahazardous activities?
No.
136
What are the 6 restatement factors for determining if an activity is ultrahazardous?
1) High degree of foreseeable risk
2) Likelihood of resulting harm
3) inability to eliminate risk through reasonable care
4) Whether the activity is a common activity people engage in
5) Inappropriateness of the location of the activity
6) Balance with value to community
137
What harms are owners of livestock held strictly liable for?
Any harms caused by their livestock intruding on the land of another. Liability does not extend to harm brought about by the intentional, reckless, or negligence conduct of a third party.
138
What is the basic shape of a Products Liability claim?
1) P suffers injury from a product D sold
2) D is a commercial seller of such products
3) Product was in a defective condition at the time of sale
4) Defective product actually & proximately caused P's injury
139
What injury is necessary for products liability claim?
Physical harm to person or property & to something other than the product itself.
140
What is a commercial seller for products liability?
Anyone involved with the manufacturing or advertising of a product.
141
What are the three types of defective conditions in Products Liability?
1) Manufacturing
2) Design
3) Warning
142
What is the test for a manufacturing defect?
Compare alleged defective product to a prototype of or the same correctly working product. Can also compare to manufacturer's patent, drawings, etc as to how the product was supposed to function.
143
What is the big idea behind a design defect claim?
That the idea of the product as it is designed, or a specific aspect of the product's design, is more dangerous than it should be.
144
What is the major issue in a design defect claim?
Which test to use at trial.
145
What are the two tests for design defect?
1) Risk/Utility
| 2) Consumer Expectations
146
How do we determine which test will be used for design defect?
1) Risk/utility is the default test.
2) RU will be used if CE test is not raised by one of the parties.
3) CE test must be raised for consideration
4) If CE is raised, judge's call as to which test to use.
5) If CE is not raised, RU is used.
147
What are the 7 Wade Factors and when do we use them?
- Used in R/U test for design defect
- Factors:
1) Utility to public as a whole
2) Utility to indiv. user
3) likelihood that product will cause injury
4) availability of a safer design
5) possibility of designing & manufacturing the product so it's safer but remains functional & reasonably priced
6) degree of awareness of product's potential danger that can reasonably be attributed to injured user
7) Mfr's ability to spread cost of safety related design changes
148
How is a product deemed defective under the Risk Utility test?
Product is deemed defective if a nonobvious danger associated with foreseeable use or foreseeable misuse of the product outweighs the product's utility and a reasonable alternative design exists.
149
When is Risk Utility test used (3 answers)?
1) When CE test is not raised
2) When technical expertise/expert testimony is required
3) When design concept is more complex than average juror would understand
150
When is the consumer expectations test used (2 answers)
1) When it is raised by either party and judge deems it acceptable
2) when product at issue is a product where jurors might have prior knowledge or expectations about the product already
151
How is a product deemed defective under Consumer Expectations test?
Product is defective if aspects of its design render it more dangerous than the ordinary consumer would expect it to be when used or misused in a reasonably foreseeable manner.
152
How & why does P's intended use of the product matter for a design defect analysis?
1) P must be using the product in a way it was reasonably intended to be used by a consumer
2) intervening misuse of the product MAY be a successful defense but also may not if the misuse was reasonably foreseeable
153
What do Open & Obvious dangers tell us?
That there isn't a warnings defect - does not mean there isn't a design defect. You can't warn around a design defect.
154
What is a warnings defect?
Where there is an omission or inadequacy regarding the warnings about the danger of a product.
155
How is a product found defective under a failure to warn claim?
Product is defective if seller fails to warn members of those classes of persons who should be warned of the relative risks associated with the product in an adequate manner.
156
What is state of the art evidence and when is it admissible?
1) Admissible in a warnings claim
| 2) most recent expert/scientific knowledge on the subject at hand
157
What are some criteria we can use to determine whether a warning is adequate?
1) Placement of warning
2) Prominence of warning
3) Whether warning can be easily understood
4) Whether warning is given in conjunction with other confusing material
5) content of the warning
6) comprehensibility of the warning
7) warning the right person
8) intensity of the warning (font, bold, size, etc)
158
What is the Learned Intermediary rule and where is it applicable?
1) Applicable under actual cause in failure to warn claims
| 2) some products have gatekeepers, and its the gatekeepers who the mfr has to warn adequately, not the intended users
159
What is the Heeding Presumption in a warnings claim?
When it applies, P gets rebuttable presumption that they would have followed an adequate warning if it had been given.
160
What are some ways D can rebut a heeding presumption in a warnings claim?
1) By showing evidence of P's other risk taking behavior (black box warnings on med)
2) By showing prescriber would have prescribed medication anyway (in drug cases)
161
What is the test for actual cause in a products liability claim?
"But for the defect of _____ in the product, the injury of ____ would not have occurred."
162
What is the test for proximate cause in a products liability claim?
"Is the injury of ____ a realization of the risk of ____ that made us determine the product of ____ was defective?"
163
Are you allowed to recover for economic damages under tort based Products Liability claims?
No. Can only recover for injury.
164
How does superseding cause factor into strict products liability claims? What is considered a superseding cause?
Mfr or seller will not be liable if the harm to P was due to a superseding cause.
Ordinary negligence of P is not considered a superseding cause, but reckless behavior or assumption of the risk can be.
165
Does P need to prove a specific defect in a products liability claim?
No. Court is allowed to infer a defect if the incident:
1) was the kind that ordinarily occurs as a result of a product defect AND
2) was not solely the result of causes other than a product defect
166
What are the 6 Multiple Cause categories under Actual Cause?
1) Multiple Necessary
2) Multiple Sufficient
3) Insufficient Evidence
4) Alternative Causation
5) Concert of Action
6) Successive/Preempted/Doomed
167
What is Multiple Necessary Causes and what is the actual cause test?
1) The injury would not have occurred if the actions of the defendants were not concurrent.
2) "But for the concurrence of the negligent action of ____ of the Defendants, the injur(ies) of ____ would not have occurred"
168
Do you need common intent or purpose of all defendants for Multiple Necessary Causes?
No.
169
What is Multiple Sufficient Causes and what is the actual cause test?
1) 2 different incidents that are both sufficient enough to cause the injury, but we don't know which D actually caused it, so we can hold either or both parties responsible.
2) But for test is allowed to work for either circumstance because neither party is allowed to say it wasn't me, it was the other guy.
3) "But for the negligent ____ of D1, the injury would not have occurred, but also but for the negligence ____ of D2, the injury would not have occurred"
170
What is Insufficient Evidence?
When you can't show that anything was either multiple necessary or multiple sufficient. Need to show basic sufficiency of evidence of any one actual cause.
171
What are the three criteria for Alternative Causation and what is the but-for test?
1) Closed universe of potentially responsible actors (whoever it is is one of our known D's)
2) Of the people in that universe, they are both/all equally likely to have caused the injury
3) It's not P's fault that they don't have evidence for which of the actors actually injured them
- But for test cannot be satisfied b/c we don't know which person actually did the injuring.
172
What is Concert of Action and what is the but-for test?
1) One D actually caused the injury, but either one/any D can be held responsible because they are independent D's engaging in the same breach conduct jointly.
2) "But for the concert of action of ____ of the defendants, the injury of ____ would not have occurred"
173
Do D's need to have decided to engage in the same activity for Concert of Action?
Yes.
174
What is Successive/Preempted/Doomed and how is it decided in court?
1) Often talking about two distinct injuries
2) Doomed is the idea that there was a predetermined cause (doomed P), so what is the responsibility of the first cause?
3) No bright line rule - courts take diff approaches depending on the facts
175
What is Joint/Several Liability?
Where multiple D's are in the same action for the same harm to P
176
Do you need to have intent to act together or engagement in the same conduct, or temporal concurrence for J/S Liability?
No, but there can be.
177
What are the three typical triggers for J/S Liability?
1) Concert of Action
2) Indivisible Injury
3) Vicarious Liability
178
Can you apportion liability to an unnamed, unknown D?
No. Cannot recover judgment from a party who is not before the court.
179
What is contribution?
Where multiple D's have been found J/S Liable and can seek recovery of damages from the other D's when they have paid more than their share to P
