Missed questions 4 Flashcards
(6 cards)
Warranty of fitness or suitability
A warranty of fitness or suitability is implied in almost all jurisdictions in a contract for the sale of a newly constructed residence. Under this warranty, the seller asserts that he used adequate materials and workmanship for the residence. The implied warranty generally covers latent construction defects or problems that do not manifest themselves until after the sale. The buyer has a duty to reasonably inspect the residence for patent defects but is not required to employ an expert home inspector. Generally, a suit for breach of the implied warranty may be brought against builders, developers, and contractors within a reasonable time after discovery of the defect. A majority of jurisdictions permit both the initial homeowner-purchaser and subsequent purchasers who do not contract directly with the commercial developer to recover damages.
Here, assuming this is a jurisdiction that recognizes the implied warranty of fitness or suitability, as well as the right of a subsequent purchaser to bring suit, the man likely has a claim against the builder. The defective concrete was a latent defect that could not have been discovered upon reasonable inspection, and that was only revealed by a major storm. After the man discovered the defective concrete, he promptly informed the builder of the defect, completed the repairs after the builder refused to do so, and filed suit. Accordingly, the man would be entitled to seek damages. Damages are generally based on the cost of repairs to bring the residence into compliance with the warranty.
Here, the man paid $80,000 to repair the defective concrete and should be able to recover that amount.
implicit assumption of a mortgage
Unless the lender (mortgagee) agrees to release the borrower (mortgagor) from liability for the loan, the borrower remains personally liable on the loan obligation after the mortgaged property is transferred. If a deed is silent or ambiguous as to the buyer’s (transferee’s) liability, then the buyer takes title to the property subject to the mortgage and is not personally liable upon default. But although the buyer has title, which allows him to possess the property, the property is still subject to a potential foreclosure action upon default. Then, only the seller (transferor) remains personally liable for a deficiency.
But if a buyer of the property assumes the mortgage obligation, then the buyer and the original mortgagor are both personally liable to the lender. If the mortgage obligation is unpaid, the lender may sue either the mortgagor-borrower or the transferee-buyer personally and if there is still a deficiency, sue the other. Most jurisdictions do not require that the assumption agreement be in writing; if proven, an oral agreement is enforceable.
Here, the deed conveyed made no mention of the woman’s obligation under the mortgage, and her obligation was not discharged from the bank (mortgagee). Nor did the deed mention any obligation on the part of the man to assume the mortgage. Absent an agreement by the man to assume the mortgage, the man took the property subject to the mortgage. And he is not personally liable for the mortgage should the bank decide to foreclose on the property.
A minority of jurisdictions imply an assumption of the mortgage when the transferee-buyer pays the seller the difference between what the property was worth and the outstanding balance on the mortgage obligation.
Here, the man paid the woman less than half of what the property was worth, and that difference was almost exactly the total amount owed on the mortgage. Moreover, the man began making payments on the mortgage immediately. Accordingly, in a jurisdiction that permits an implied assumption of mortgage, the man may be held personally liable.
negligence tort liability for injured rescuer (injury not caused by the negligence)
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Your Answer
Sample Answer
- The issue is whether the trial judge was incorrect because a public fireworks display is an abnormally dangerous activity subject to strict liability. (40%)
Defendants engaged in abnormally dangerous activities may be held strictly liable for damages caused by that activity, even in the absence of negligence. Activities are considered abnormally dangerous if they create a foreseeable and highly significant risk of physical harm even in the exercise of reasonable care, and the activity is not commonly engaged in.
The most commonly known abnormally dangerous activity is blasting, or the use of explosives. Fireworks displays are much like blasting in that they both involve the use of explosives, and any time a person ignites a shell or rocket with the intention that it explodes in the presence of other people, that person creates a high risk of serious personal injury. Further, no matter how much care is exercised when igniting the fireworks, there is no way to completely eliminate this risk. This is evidenced by the high number of injuries (9000) and deaths (5) attributed to fireworks each year. Additionally, while fireworks displays are not uncommon, they are likely not considered commonly engaged in, especially given the fact that there is a state-level certification for legally putting on fireworks displays.
Accordingly, it is likely that public fireworks displays could be considered an abnormally dangerous activity, which would subject the activity to strict liability.
- The issue is whether the trial judge was incorrect because a reasonable jury could have found that the conduct of the fireworks company was negligent. (25%)
Although the unexcused violation of a statutory standard of care is negligence per se, the converse is not true: an actor who has complied with all statutory standards may still be found negligent if his conduct is not reasonable under the circumstances. In the absence of any special rule to the contrary, the actions of the fireworks company would be subject to a typical negligence analysis. A prima facie case of negligence consists of four elements: duty, breach, causation, and damages.
In general, a duty of care is owed to all foreseeable persons who may foreseeably be injured by the defendant’s failure to act as a reasonable person of ordinary prudence under the circumstances. Here, all the fireworks company’s employees were state-certified fireworks technicians, and the company followed all governmental fireworks regulations. However, the plaintiffs established that there was a foreseeable risk of a misfiring mortar even when the fireworks display was performed with due care; the risk cannot be eliminated. Indeed, some of the accidents caused by mortars misfiring occur despite compliance with regulations.
To combat this risk, a state statute imposes a 500-foot safety zone for fireworks displays on land (arguably also a reasonable standard on water). This 500-foot safety zone would not have significantly hindered spectators, as only four viewing spots lie within this area. Because the fireworks company’s employees were all state-certified fireworks technicians, a reasonable jury could have concluded that both the risk of injury and the utility of a 500-foot safety zone were known to the fireworks company. The defendants could have identified the four viewing spots within the 500-foot safety zone and warned potential spectators of the hazard of watching from those locations with little cost or inconvenience.
Thus, the court erred in directing a verdict for the fireworks company on the negligence issue: compliance with a statute does not indicate an absence of negligence, and there was evidence on which a jury could have based a negligence finding.
- The issue is whether the trial judge was incorrect because the misfiring mortar created a dangerous situation that was the proximate cause of the husband’s injuries. (15%)
Liability typically extends only to foreseeable plaintiffs and hazards. A person who comes to the aid of another is a foreseeable plaintiff. If the defendant negligently puts either the rescued party or the rescuer in danger, then he is liable for the rescuer’s injuries. Additionally, negligent intervening acts are usually regarded as foreseeable and do not prevent the original defendant from being held liable to the plaintiff.
Here, the husband was a rescuer and his injuries are typical of those of someone rushing from (or to) a dangerous situation. Even if the husband was himself negligent, his injuries were foreseeable because negligent intervening acts are usually regarded as foreseeable. Thus, the trial court erred in concluding that the acts and omissions of the homeowners association and the fireworks company were not the proximate cause of his injuries.
vicarious liability and inherently dangerous activities
The person who hires an independent contractor remains vicariously liable for certain conduct, including inherently dangerous activities and duties arising out of a relationship with a specific plaintiff of the public, including conduct that affects the public at large. An activity is inherently dangerous when, if reasonable care is not exercised, the resulting risk differs from the type of risk usual in the community.
A person who hires an independent contractor is vicariously liable for certain conduct, including:
A person who hires an independent contractor is vicariously liable for certain conduct, including:
i) Abnormally dangerous activities – an activity is abnormally dangerous if (1) the activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors and (2) the activity is not one of common usage;
ii) Inherently dangerous activities – an activity is inherently dangerous when, if reasonable care is not exercised, the resulting risk differs from the types of risk usual in the community;
iii) Duties arising out of a relationship with a specific plaintiff or the public (e.g., common carrier’s duties owed to passengers, conduct that affects the public at large, such as construction work adjacent to a public highway);
iv) The duty of a land occupier to maintain premises in a reasonably safe condition;
v) The duty of an employer to maintain a safe work environment for employees; and
vi) In a minority of jurisdictions, the duty to comply with state safety statutes.
