Rule Paragraphs 2009 NYS Bar Essay Two Flashcards Preview

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Flashcards in Rule Paragraphs 2009 NYS Bar Essay Two Deck (41)
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1

How to write up the "I" in IRAC when there is a cause of action issue dealing with a strict liability claim against a manufacturer

The issue is whether the [Plaintiff] has a cause of action for strict liability against the manufacturer of [product x] which caused the injury.

2

How to write up the "I" in IRAC when there is a cause of action issue dealing with a strict liability claim against a manufacturer when the product was altered after leaving the manufacturer

The issue is whether the [Plaintiff] has a cause of action for strict liability against the manufacturer of [product x] which caused the injury even when the product has been altered since it left the manufacturer's control

3

A plaintiff providing strict liability of a manufacturer must show four things, First

A plaintiff providing strict liability of a manufacturer must show four things. First, that the manufacturer made the product in question

4

A plaintiff providing strict liability of a manufacturer must show four things, Second

A plaintiff providing strict liability of a manufacturer must show four things. Second, that the product was defective and was therefore unreasonably dangerous

5

A plaintiff providing strict liability of a manufacturer must show four things, Third

A plaintiff providing strict liability of a manufacturer must show four things. Third, that the product was defective when it left the manufacturer's control

6

A plaintiff providing strict liability of a manufacturer must show four things, Fourth

A plaintiff providing strict liability of a manufacturer must show four things. Fourth, that the plaintiff was using it in a way reasonably foreseeable to the manufacturer.

7

To recover for strict liability, the product must NOT

To recover for strict liability, the product must NOT have been altered since it left the manufacturer's possession.

8

Strict Liability claim against a retailer means that (or based on what theory)

It is important to note that a plaintiff may also recover for strict liability against a retailer even though the retailer did not manufacturer the product--simply on the basis that the retailer is putting unreasonably dangerous products into the stream of commerce

9

What is NOT applicable when a purchaser deals directly with a manufacturer

That the retailer of a product would not liable or able to be brought into a suit since the purchaser dealt directly with the manufacturer

10

A subsequent modification to a product by the purchaser can have what effect on a claim

A subsequent modification may cut off a manufacturer's liability to a plaintiff in strict liability because the product was not unreasonably dangerous when it left the manufacturer's control, and was modified thereafter.

11

What actions buy a purchaser can prevent a claim for strict liability against a manufacturer?

Removal of a "safety" part is a sufficient modification to show that the product was not defective when it left the manufacturer's control.

12

The events prior to or the actual cause of injury to a plaintiff, require the plaintiff to show

that the event was caused by a defect in the product that was unreasonably dangerous and existed when it left the manufacturer's control, then the plaintiff may be able to recover from the manufacturer, then the plaintiff may be able to recover from the

13

When you have a strict liability fact pattern, you must determine

If the modification causes liability for the manufacturer or if there was another defect that caused the injury.

14

The question is whether a modification causes liability for the manufacturer or if there was another reason (defect) that caused the injury to the plaintiff, the issue remains that

There will still be a question of whether the subsequent safety modification rids the manufacturer of liability because of the injury sustained occurred from another possible defect or reason

15

When dealing with a strict liability claim against a manufacturer, you need to determine if the product's modification

if the product's modification was reasonably foreseeable by the manufacturer because a manufacturer will be liable even if they are not uses the product was intended for.

16

Foreseeable uses of a product, that was not the intended use of the product WILL NOT extend liability as far as foreseeable as

Subsequent modifications of the product

17

If you have a strict liability claim, but the product was modified after leaving the manufacturer, and the manufacturer was aware of the modifications, the plaintiff should bring a claim under what theory?

The plaintiff would have a better chance of recovering from the manufacturer on a theory of negligence--and that the manufacturer owed a duty to the plaintiff and that the manufacturer breached that duty by NOT manufacturing a product that would be safe and useful. The plaintiff could then show that because the manufacturer knew the product was not being used appropriately, it owed a duty to determine a better way of manufacturing the product in keeping with the way the product was being used. The manufacturer's failure to determine a way or manufacture the product in a way would be a breach, and the plaintiff would then need to show the manufacturer's breach was the proximate/legal cause of the injuries

18

If you have a strict liability claim, but the product was modified after leaving the manufacturer, and the manufacturer was aware of the modifications, determine if the plaintiff was a class of persons protected by a statute, and if so then

If there was a statutory claim, then plaintiff could argue negligence per se, and that the plaintiff was a class of persons protected under the statute, and that the activity was in the class of activities protected, then the plaintiff would have established a negligence per se claim against the manufacturer, and the plaintiff would only have to show causation and damages

19

When you have a fact pattern in which one company acquires all of the assets of another, you have to determine what important element

You have to determine if the company that did the acquiring of the assets, also ASSUMED the liabilities by the purchase of all the assets

20

What is the general rule when a company sells all or substantially all of its assets to another company and the agreement is silent as to the assumption of liabilities

NO liabilities are assumed by the purchasing corporation, unless otherwise agreed to in the purchasing agreement.

21

What is the exception to the general rule that when an acquirer buys all the assets of another company but does not include an assumption of liability

The exception for when the purchasing company operates as "merely an extension" of the company acquired. When the acquirer operates as an extension of the acquired company it purchased, the purchasing company is treated as having assumed the purchased company's liabilities

22

What is the analysis if a acquirer continued to run and operate as the purchased company then you would state that

In this case, however, the [name of acquirer] "continued to manufacture [name the product] using the same manufacturing plant, the same employees and the same trade names for its products as the acquired company did [put in name of acquired company], and therefore, the buyer can be held liable to the same extent as the purchased company would have been.

23

How is the issue drafted for claim against a landlord for failure to provide a safe environment

The claim will be brought under a theory of negligence

24

In order for a plaintiff to prevail on a claim against a landlord for a negligence claim for failure to provide a safe environment, the plaintiff will have to prove

To prevail on such a claim, Plaintiff would have to show that the Landlord owed a duty of care and that he breached that duty and the breach of it was the actual and proximate/legal cause of the plaintiff's injuries, and that Plaintiff suffered damages to himself or his property.

25

What is the rule when a landlord uses a independent contractor to keep his premises safe

The rules is that a party injured on the landlord's property may hold the landlord liable if the landlord was using an independent contractor to perform work on areas of the premises under his control and the person was injured in performing that work

26

A landlord has a duty to tenants and invitees and licensees

A landlord has a duty to make the common areas of his property reasonably safe for those who come to the premises.

27

If there is a strict product liability claim, you must first determine that

A manufacturer may be strictly liable to a plaintiff who suffered personal injuries under either a theory of (1) design defect or (2) a manufacturing defect, or (3) failure to warn

28

In order to prevail on a design defect strict liability suit, the plaintiff bears the burden to showing that:

1) the defendant owed a strict duty of care because they sold or manufactured the faulty product, 2) that the defendant breached its duty of care because the product was unreasonably dangerous for its ordinary use because a) a safer design was available and feasible, or b) the plaintiff was not warned of the risks not obvious to the ordinary user but known to the designer, and 3) that the faulty design was the cause of the injury because the plaintiff did not "alter" the product from the form it was in when it left the defendant's custody.

29

What is the statute of limitations for a strict products liability claim

The SOL for a strict products liability action is three years from the date of injury and each seller in the chain of custody may be held strictly liable

30

In design defect strict liability claim, under the element that the product was unreasonably dangerous for its intended use, the plaintiff will argue that

The seller was aware that people (generally owners) frequently removed the safety (or another portion) of the product (for easier use to make the workers more productive buy increasing risk of harm), and the seller's awareness that people (generally owners) were habitually removing the safety precautions means that the plaintiff would have to show a safer model was available and feasible, and the seller had a duty to manufacturer the safer model, which did not change the stated purpose of the product, and the safety design was more difficult to remove.