Page 33 Flashcards
What are the elements of abnormally dangerous activities?
- act/omission involving serious risk of harm
- duty to avoid harm that can’t be eliminated through ordinary care
- breach of duty
- causation
- damages
What are the second restatement’s factors that constitute an extreme hazard for abnormally dangerous activity?
- degree of risk of harm
- gravity of harm
- if reasonable care could eliminate the risk
- inevitability of some risk
- ordinary/unusual nature of activity for the place
- appropriateness of activity to the place
- value of activity versus risk of harm
- if activity is not commonly done
If you store explosives in the desert, is that an abnormally dangerous activity?
Probably not, because of the place
How can the restatement two’s factors that determine an abnormally dangerous activity fail?
- if the activity wasn’t under the defendant’s control
- the type/kind of hazard wasn’t contemplated
How could a type/kind of hazard not be contemplated, and so not be considered an abnormally dangerous activity?
The mink case, or damage from dynamite getting wet and leaking onto the plaintiff’s land (anticipated type of harm would be explosion)
What is the restatement three’s two-part test to abnormally dangerous activities?
Activity has to create a foreseeable and highly significant risk of harm and must not be one of common usage
If an activity is commonly done, does SL for abnormally dangerous activities apply?
No
What is the rationale behind the restatement three’s two-part test for abnormally dangerous activities?
Activity can’t be made safe through reasonable care, so it should pay its own way
If reasonable care will reduce the risk, does SL for abnormally dangerous activities apply?
No
How does SL for abnormally dangerous activities apply to unconventional aviation?
It applies to things like stunt flying, cropdusting, test flights
Why are handguns not within the abnormally dangerous activity doctrine?
Because they are commonly used
What is the one exception to handguns not being part of the abnormally dangerous activity doctrine?
Saturday night specials that are cheap guns that have poor accuracy/reliability, so they have little utility and are subject to SL
What is a defective product?
Any product capable of serious physical harm to persons or property if negligently made
What is the duty of care owed for defective products?
Duty of care in the:
- design
- inspection
- assembly of the product
Who does a duty of care extend to for defective products?
The immediate purchaser and anyone foreseeably affected by the product, like a bystander
Who has the burden of proving the duty of care for a defective product?
P
What are the theories that defective products can be based on?
- intentional tort
- negligence
- SL
How can defective product be based on an intentional tort?
If a product is sold when the defendant knew it was defective/dangerous and he didn’t warn, he can be liable for battery to anyone that is injured by using the product
What is the rationale for holding a seller of a defective product liable under intentional tort?
If a seller believed it was substantially certain an injury would result, it is assumed that he intended the consequences of his act
How can the manufacturer of a defective product be held liable for negligence?
He must compensate for personal injury or property loss because of his failure to act with due care
How do you discuss defective product under negligence theory on an essay?
Go through all of the elements of negligence
What is the best way to prove defective product under negligence theory?
The Learned Hand formula
Liability for defective products extends to who or what?
Anyone within the scope of use, to property, and real property
If you are a supplier, can you be liable for parts that you assembled that were made by others?
Yes
