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Flashcards in TORTS Deck (105)
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What is the duty of care?

Defendant has legal duty to act as ordinary, prudent, reasonable person would when engaging in an activity
- Take precautions against creating unreasonable risks of injury
- To foreseeable persons


Is Defendant liable for injuries to unforeseeable second plaintiff as well as first forseeable plaintiff?

Cardozo view (majority view) (Palsgraf v Long Island)
- P2 must have been in foreseeable 'zone of danger'
- Reasonable person must have foreseen risk of injury to P2 under such circumstances

Andrews view (minority view) (Palsgraf)
- Duty to P1 extends to P2 (everyone is foreseeable)


What is required for Defendant to be liable for injuries to rescuers?

1) D negligently placed P/TP in peril

2) P was injured in attempting a rescue
- NOT reckless rescue

=> P is foreseeable plaintiff


Does Defendant owe duty to police officers/firefighters?

Unlikely (Firefighters' rule)
- Public policy
- Assumption of risk


What is required for Defendant to be liable for wrongful birth?

1) Viable fetus (at time of injury)

2) Parent sues for;
- Wrongful birth (failure to diagnose defect)
- Wrongful pregnancy (failure to properly perform contraceptive procedure)

=> Parent can recover damages for;
- Unwanted labour (medical expenses, pain and suffering)
- Child's defect (additional medical expenses, emotional distress)
- NOT health child (NOT child-rearing expenses)


What is required for Defendant to be liable for economic loss to third party?

1) Intended TP to receive economic benefit
- Reasonably foreseeable

2) From legal/business transaction
- Will beneficiary


What is the applicable basic standard of care?

D's conduct is measured against the reasonable, ordinary, prudent person (objective standard) (Reasonable Prudent Person standard)

Mental/Emotional (objective standard)

- Same knowledge/experience as average member of community (or must exercise with superior knowledge as superior person would) 

Physical Characteristics (modified standard)

- Compared with reasonble prudent person with like characteristics

Intoxication (objective standard)

- Same standard as sober people unless intoxication was involuntary


What is the standard of care required for professionals to exercise?

Lawyers, Doctors, Accountants, Electricians:

- Must use superior judgment/skill/knowledge as he actually possesses


- Good standing in similar community (Traditional Rule)
- National standard (Modern Trend)


When are doctors liable for failure to disclose risks of treatment?

1) Serious risk

2) If disclosure was made => Reasonable person would have withheld consent to treatment


What is the standard of care required for children to exercise?

Normal activities (modified)
- Act as child of simalar age/experience/education/intelligence
- NOT 5 year old child (NOT likely to be negligent)

Potentially dangerous adult activity
- Adult standard
- E.g. Driving vehicles


What is the standard of care required for common carriers to exercise?

- Utmost care/highest duty of care (traditional rule)

- Ordinary negligence (modern trend)

Majority of courts continue to hold common carriers to the higher standard of care.


What is the standard of care for innkeepers?

- Ordinary negligence (modern trend)


What is the standard of care required for automobile drivers to exercise?

Guest and Friends in Car
- Reasonable care (most states)
- Recklessness (avoid wilful and wanton misconduct) (few states - Guest statutes)


What is required for bailor/bailee to exercise particular standard of care?

Bailee's duty to Bailor
- Modern view: Ordinary standard
- Common law: High standard (sole benefit to Bailee); Low standard (sole benefit to Bailor)

Bailor's duty to Bailee
- Must inform known defect (sole benefit to Bailee)
- Must inform known/should have known defect (mutual benefit)


What is the standard of care required for Defendant to exercise in emergencies?

D created emergency
- Act as reasonable person would
- Emergency NOT considered

D did NOT create emergency
- Act as reasonable person would in emergency


(Negligence Per Se) What is the standard of care required for statutory standard of care to replace common law standard of care?

Negligence Per Se:

- Criminal law or regulatory statute imposes particular duty for the protection or benefit of others

- Defendant violated the statute

- Plaintiff must be in the class of people intended to be protected by the statute

- Accident must be the type of harm that the statute was intended to protect against; and

- Harm was caused by a violation of the statute

=> Negligence per se;
- Conclusive presumption of duty + breach (must prove causation + damages) (majority view)
- Rebuttable presumption of duty + breach (minority view)


When may compliance with statute excuse violation?

- Compliance creates more danger than violation

- Compliance is beyond D's control


When does an owner/occupier of land owe duty to those off his premises?

NOT for natural conditions

  • Exception: Trees in urban areas

Artificial conditions
- Prevent unreasonably risk of harm

-Exercise reasonable care conducting activites on land



When does an owner/occupier of land owe duty to those on his premises?

Trespassers (NO consent)
- Undiscovered - NO duty owed

- Discovered/Anticipated

  • Must warn/Protect them P of concealed, unsafe artificial conditions (NOT natural conditions)
  • Risk of death/serious bodily harm

Attractive Nuisance Doctrine (duty owed to children)

  • Artificial condition exists where owner knows/should know children are likely to trespass
  • Owner knows/should know artificial condition poses unreasonable risk of death or serious bodily harm
  • Child, because of age, do not discover or cannot appreciate dangerous condition
  • Remedy expense (even slight cost) < Risk magnitude
  • Owner fails to exercise reasonable care

Licensee (entered premises with express/implied permission)


  • Warn/Secure P of concealed, unsafe artificial + natural conditions (NOT discoverable)
  • NO duty to repair/inspect known defects
  • Exercise reasonable care in conducting activities on the land

Invitee (entered premises for material or economic purpose (customer/open to public))

  • Owes duty of reasonable care
    • Reasonable care to inspect the property
    • Discover unreasonably dangerous conditions
    • Take reasonable steps to protect the invitee from them
  • Non-delegable duty
    • Cannot avoid the duty by assigning care of property to an independent contractor


When does a lessor of land owe duty to those renting his premises?

Landlord must:

  • Maintain safe common areas
  • Warn of hidden dangers (especially premises leased for public use)
  • Repair hazardous conditions


  • Tenant continues to be liable for injuries arising from conditions within tenant's control


When does a seller/vendor of land owe duty to those purchasing his premises?

1) Disclose existing defects

2) Seller knew/should know of defect

3) Seller knows Buyer will NOT likely discover defect by reasonable inspection


What is required for negligent infliction of emotional distress?

1) Negligence

2) Either;

Zone of Danger -

  • P was within zone of danger
  • P's physical symptoms (emotional distress)

Bystander Case -

  • P was closely related to TP victim
  • P was present at scene of injury
  • P personally observed/perceived event
  • P's emotional distress

Special Relationship -

  • P + D had special relationship (doctor-patient, lawyer-client)
  • Negligent mishandling of corpse

Physical Manifestation -

  • Most jurisdictions require some physical manifestation of distress (nausea, insomnia, miscarriage)


What is required for Defendant to have affirmative duty to act?

(Generally NO duty to act)

Assumption of duty by acting -

  • D places P in peril => D must undertake to aid P (Reasonable care required)
  • Doctor/Nurse must act with ordinary care (NOT gross care) (Good Samaritan statutes)

Placed in peril -

  • Innocently/Negligently

Special relationship

  • Parent to protect Child
  • Common carrier/Innkeeper/Shopkeeper to aid or assist patrons
  • Places of accommodation to prevent TP harm to guests

TP harm prevention (parent-child/bailor-bailee)

  • D has ability to control TP's actions
  • D has authority to control TP's actions
  • D knew/should know TP could cause harm


What is the difference between negligent and intentional infliction of emotional distress?

- P's personal observation
- Emotional distress
- Negligence

- D's knowledge of P's presence + close relation
- Extreme and outrageous conduct causes severe emotional distress
- Intent/Recklessness


What is required for Defendant to be liable for wrongful life?

1) Viable fetus (at time of injury)

2) Parent sues on behalf of Child for;
- Wrongful birth defect


What is the difference between wrongful birth and wrongful life lawsuits?

Wrongful birth
- Parent sues D

Wrongful life
- Parent sues D on behalf of child


What is breach?

D's conduct falls short of level required by applicable standard of care owed to P
- Trier of fact

By preponderance of evidence


How may custom/usage determine negligence?

Establishes standard of care

NOT establish breach (NOT conclusive)

Evidence of custom admissible not dispositive (Exception: professionals)


What is res ipsa loquitor?

Circumstantial evidence of negligence is sufficient evidence of negligence


What is required for res ipsa loquitor to determine breach?

  • Inference of negligence: P must establish that accident causing his injury is of type that would not normally occur unless someone was negligent
  • Negligence is attributable to D based on 'lack' of direct evidence of D's action causing injury
    • Modern law: D is more likely than not to be negligent
    • Common law: D had exclusive control of instrument causing P's injury
  • P's lack of 'voluntary' contribution towards P's injury

=> Establishes prima facie case for P => Avoids directed verdict for Defendant


How may motion for directed verdict on res ipsa loquitor be determined?

By Plaintiff -

  • Granted: Negligence per se proven (violation of statute) + NO proximate causation issues
  • Denied: Generally

By Defendant -

  • Granted: NO res ipsa loquitor proven + NO evidence of breach
  • Denied: Res ipsa loquitor/other evidence of breach shown


What is required for causation?

1) Actual Causation (causation in fact)

  • 'But for' test
  • 'Substantial factor' test
  • Alternatives causes approach

2) Proximate Causation (legal causation)

  • Direct cause (NO interruption in chain of events)
  • Indirect cause (Interruption in chain of events; Intervening force comes into motion and combines with D's act)

3) By preponderance of evidence

=> Conduct was cause of injury


What is the 'but for' test?

Single cause -

  • Act/Omission to act is cause in fact of injury
  • Injury would not have occurred 'but for' the act

Joint causes -

  • Several acts combine to cause injury BUT none of the act standing alone would have been sufficient
  • Injury would not have occurred 'but for' the acts


What is the 'substantial factor' test?

  • Several acts combine to cause injury
  • Either act standing alone would have been sufficient (substantial factor in causing injury)
  • Liable act is known


What is the alternative causes approach (Summers v. Tice)?

  • Several acts combine to cause injury
  • Either act standing alone would have been sufficient
  • Liable act is NOT known
  • Each D must prove he is NOT negligent (burden of proof => Defendants)
  • Otherwise ALL Ds are liable


What is proximate causation?

Defendant is liable for all harmful results;

  • Normal incidents of D's acts
  • Within increased risk caused by D's acts


How may Defendant be liable for direct proximate cause?

Foreseeable harmful result -

  • Even if occurred in unusual timing/manner
  • NO uninterrupted chain of events

NOT unforeseeable harmful result -

  • NO liabilty
  • NO summary judgment (material fact in dispute - foreseeability)


How may original Defendant be liable for indirect proximate cause?

Foreseeable intervening force (D's act created normal response; almost always foreseeable) -

  • Subsequent medical malpractice
  • Negligent rescuer
  • Others' efforts to protect person/property
  • Others' reactions
  • Subsequent diseases (D places P in weakened condition => Causes diseases)
  • Subsequent accidents (P's original injury was substantial factor)
  • NOT unforeseeable result

Independent intervening force (D's act 'increased' risk of harm caused by forces => Foreseeable) -

  • TP's negligent act
  • TP's crimes/intentional torts
  • Act of God

Intervening or Superseding -

  • Real issue is whether the injury is within the scope of what made the conduct negligent in the first place


What is the 'Eggshell-Skull Plaintiff' Rule?

  • D takes P as he finds him
  • D's act aggravates P's existing condition
    • Extent/severity/unforeseeability of damages NOT relevant

=> D is liable for ALL damages


Are damages presumed in negligence?


NO (Plaintiff must prove damages by preponderance of evidence)
- Unlike intentional torts


What type of damages can Plaintiff recover from personal injury torts?

- Medical and rehabilitative expense (past and future);
- Past and future pain and suffering (emotional distress; and

 - Lost income and any reduction in future earnings


Must damages be foreseeable in personal injury torts?

- D takes P as he finds him


What type of damages can Defendant recover from property damage torts?

If damaged => Reasonable cost of repair

If nearly destroyed => Difference between the fair market value (immediately before the injury and immediately after the injury)

NOT emotional distress


When are punitive damages available?

D's conduct was;
- Wanton and wilful
- Reckless
- Malicious

Generally NOT available

By clear and convinvcing evidence


What effect does Plaintiff's benefits received from collateral sources have on recovery of damages?

None (Collateral Source Rule)
- NOT reduce recoverable damages
- E.g. health insurance, sick pay


What duty does Plaintiff have in recovering damages?

Mitigate damages
- Personal injury: Seek appropriate treatment to effect cure + prevent aggravation
- Property: Preserve + safeguard property
- OTHERWISE NOT recoverable


What type of damages are not recoverable?

- Since date of damage (personal injury)

Attorneys' fees

Nominal damages
- Even though no harm done, courts would still award small amount of money
- But NOT in negligence


What is the difference between intentional and negligent torts to person in terms of damages?

Intentional torts
- NO damages required
- Nominal damages recoverable
- Punitive damages recoverable (D's malice)

- Damages required
- NO nominal damages recoverable
- NO punitive damages recoverable


What is the difference between intentional and negligent trespass over property in terms of damage?

Intentional trespass
- NO damage required

Negligent trespass
- Damage required


How may plaintiff's contributory negligence bar plaintiff's recovery?

State does NOT adopt pure comparative negligence

  • Plaintiff's violation of statute
  • Plaintiff's contributory negligence as defense to Defendant's violation of statute
  • Plaintiff's derivative negligence
  • Plaintiff's assumption of risk
  • UNLESS Defendant's intentional tort, groos negligence, or recklessness


What is imputed contributory negligence?

Courts find P would be vicariously liable for TP's negligence
- Courts may charge P with TP's negligence


Does imputed contributory negligence bar Plaintiff's recovery?

- Plaintiff can sue BOTH D + TP as joint tortfeasors (to extent that each is legal cause of harm)


What are examples of imputed contributory negligence?

- Employee acted within scope of employment
- Employee's negligence will be imputed to Employer (P)

Partners/Joint Venturers

NOT Husband + Wife
- Whose spouse was contributorily neglegent in causing the harm, in a suit against a third party

NOT Parent + Child
- Whose parent's negligence was contributing cause of her harm, in a suit against a third party


What is last clear chance?

Whoever had last clear chance to avoid accident BUT failed to do so => Liable for negligence
- Even if P was contributorily negligent => If D had last clear chance but failed to take it => D is liable

P's helpless peril
1) P places himself in actual peril
2) P can NOT extricate himself
3) Either;

  • -D knew/should have known of P's predicament => D is liable
  • D could NOT have known of P's predicament => P is liable

P's inattentive peril
1) P places himself in actual peril
2) P can extricate himself (if attentive)
3) Either;

  • D should have known of P's predicament => Liable
  • D could NOT have known of P's predicament => P is liable


What is required for Plaintiff's assumption of risk to reduce/bar Plaintiff's recovery?

When a party KNOWINGLY and WILLINGLY embraces a risk for some purpose of is own

- UNLESS NO alternative available to proceeding in face of risk

- Can be express or implied

  • Expressly
  • Impliedly (average person would clearly appreciate risk)
    • Sports
    • Voluntarily encounters a known, specific risk


What is comparative negligence?

  • P made contributory negligence
  • Trier of fact weighs P's negligence => Reduces P's damages accordingly


What is the rule for pure comparative negligence?

Court offsets D's damages vs P's liability (%) => NOT bar P's recovery

  • P is liable for 30% => P should recover 70%
  • D is liable for 70% => D should recover 30%
  • Court will offset D's damages vs P's liability (D's liability > P's liability) => P's net recovery will be 40% (70% - 30%)


What is the rule for partial (modified) comparative negligence?

Single Defendant
- If P/D's liability < 50% => P recovers non-liable amount from D (vice versa)
- If P/D's liability > 50% => Bars P/D's recovery (vice versa)

Multiple Defendants (joint + several liability)
- P's recovery is reduced by P's liability
- P can recover ALL damages from EITHER defendant (each D is jointly and severally liable to one another)
- D can also recover from P + other D (if D suffered damages)
- If P's liability > 50% D => Bars P's recovery


What is the difference between pure and partial comparative negligence?

- NOT bar P's recovery
- Presumed

- Bars P's recovery
- NOT presumed


What defenses can/cannot be used towards comparative negligence?

P's assumption of risk
- Express
- Implied (D did NOT breach his limited duty of care to P)
- D's wanton/reckless conduct

NOT D's last clear chance
- D's last clear chance NOT prevent P's recovery due to P's negligence

NOT D's intentional torts
- D's intentional torts NOT prevent P's recovery due to P's negligence


What is the difference between common law and modern law contributory negligence?

Common law
- Bars P's recovery

Modern law
- NOT bar P's recovery


What are Defendants' liabilities if they are (jointly and) severally liable to each other?

Ds acting separately (several liability)
- Divisible injuries: Each D is severally (NOT jointly) liable for OWN identifiable portion

Ds acting separately (joint + several liability)
- Indivisible injuries: Each D is jointly + severally liable for ENTIRE damages

Ds acting by agreement (joint + several liability)
- Divisible/Indivisible injuries: Each D is jointly + severally liable for ENTIRE damages

Comparative negligence rules adopted


What is joint and several liability?

2 or more negligent tortfeasors combine to proximately cause P's injury


What exceptions prevent joint and several liability?

Statutory limitations (many states)
- If P is more at fault than D => D is only responsible for his own liability portion
- Non-economic damages are NOT recoverable

- P can recover from all tortfeasors until satisfaction
- P recovers ENTIRE damages from one tortfeasor (satisfaction)
- P can NOT recover more damages from other tortfeasors

- P's claim is surrendered vs one tortfeasor (release)
- If there is express agreement for discharge => Discharges other tortfeasors => Their liability is reduced by either; (a) agreed amount; or (b) paid consideration (whichever is greater)
- If there is NO express agreement for discharge => NO discharge


How may contributions be imposed?

Comparative contribution (most states)
- Contribution is imposed in proportion to other Ds' relative fault
- D can reclaim excess payment from other Ds



What is the difference between contribution and indemnity?

- Apportionment of liability among tortfeasors

- Shift entire loss to one tortfeasor from other


What is the procedure for indemnification?

  • Non-paying Tortfeasor shifts ENTIRE loss to Paying Tortfeasor
  • Paying tortfeasor pays ENTIRE loss to Plaintiff
  • Paying tortfeasor can recover ENTIRE loss (be indemnified by) Non-paying Tortfeasor
    • Relieves Paying Tortfeasor


What are examples of indemnification?

By agreement (contract)

Vicarious liability
- Employer for Employee's torts
- Landowner for Independent Contractor's torts

Strict product liability
- Supplier for Manufacturer's defects

Degree of fault (Party (least at fault) for Party (most at fault))
- Retailer (who did NOT discover defect) for Manufacturer's defects
- Secondary duty party for Primary duty party

Intentional vs Negligent
- Non paying tortfeasor committed intentional tort
- Paying tortfeasor committed negligent tort


What is the rule for survival of tortious actions?

Brought by representative of the decedent's estate ON BEHALF OF the decedent

  • For claims that the decedent would have had at the time of the decedent's deathVictim can recover damages incurred between his injury + his death

Victim's cause of action survives Victim's own death in;

  • Personal injury cases
  • Property tort cases

Victim's cause of action does NOT survive Victim's own death in intangible personal interest cases;

  • Defamation
  • Invasion of right to privacy
  • Malicious prosecution


Who may recover for Decedent's wrongful death?



NOT Creditor


How much can be recovered from Decedent's wrongful death?

1) Pecuniary injury

  • Loss of companionship/support
  • NOT Decedent's pain/suffering (separate loss in personal injury suits)

2) To extent Decedent would have recovered if alive

  • Reduced by Decedent/Beneficiary's contributory negligence


When does governmental tort immunity apply?

Federal Government -

  • Discretionary acts
  • Battery/Assault/False imprisonment
  • Traditional govenmental activities
  • Otherwise immunity waived

State Government + Municipalities (most states have waiver to some extent) -

  • Governmental functions (police, court system)
    • Immunity applies
  • Proprietary functions (often performed by private company
    • Immunity waived

Government officials -

  • Discretionary functions
    • Immunity applies
  • Ministerial functions
    • No immunity


What is the difference between discretionary and ministerial acts?

Discretionary act
- Planning/Decision-making level

Ministerial act
- Operational level


Is there charitable immunity?



What is required for vicarious liability under 'Respondeat Superior'?

1) Employer/Employee; Servant/Agent relationship

2) Acted within scope of employment

  • Detour (minor deviation from Employer's business in terms of time/geographic area) (e.g. running personal errand) (NOT substantial deviation/'frolic')
  • Employee's intentional torts - Employers are generally NOT LIABLE for intentional torts of employees
    • Exception: When employee's conduct is within the scope of employment (e.g. force is inherent in the employee's work)


How can Employer be liable for supervision or selection of Employee?

1) Direct Negligence

  • Employer is liable for the employer's own negligence (NOT vicarious liability)

2) Vicarious Liability

  • Employee acted within scope of employment


What is required for Principal's vicarious liability for Independent Contractor?

Generally NOT liable for torts committed by independent contractors


  • Retains a right of control over the way the employee does work
  • Non-delegable duty (public policy)
    • Inherently dangerous activities
    • Duties to the public (e.g. construction work by roadway
    • Shopkeepers - keep premises safe for the public



What is required for Partner/Joint Venturer's vicarious liability?

Act witin scope + course of partnership/joint venture (anything involving sharing expenses)


How can Parent be liable for Child's act?

(Generally NOT liable at common law)

Vicarious liability
- Child's intentional/willful tort (up to certain dollar amount)
- Child acting as agent for Parent

- Consent towards Child's act
- Lack of due care despite knowledge of Child's tendency to injure others on past occasions


How may Tavernkeepers (intoxicating beverage sellers) be liable for Buyer's/TP's intoxication?

Vicarious liability
- Dramshop Act (NOT common law)

Negligent liability
- Foreseeable risk of serving minor/obviously intoxicated adult (NOT Dramshop Act)


What is the purpose of indemnification?

Relief towards paying party


What is required for products liability?

1) Product was DEFECTIVE

  • Manufacture
  • Design
  • Failure to Warn

2) Defect existed when product left D's control

  • Inferred from product's movement through normal channels of distribution

2) Defect caused P's injury when the product was used in a foreseeable way (D's liability)

  • Negligence
  • Strict Liability
  • Breach of Warranty Claim
    • Express/Implied warranty


What type of defects are there?

Manufacturing Defect -

  • Product DEVIATED from its intended DESIGN
  • Product does not conform to the manufacturers' own specifications

Design Defect -

  • Consumer Expectation Test
    • Product is defective in design if it is less safe than te ORDINARY CONSUMER would expect
  • Risk-Utility Test
    • Product is defective in design if the risks outweigh its benefits; must show that there is a reasonable ALTERNATIVE design

Failure to Warn - of a foreseeable risk that is not OBVIOUS to an ordinary user

  • Learned Intermediary Rule (often applies to prescription drugs)
    • Manufacturers of prescription drugs must warn the prescribing PHYSICIANS
    • Exception: drugs marketed directly to consumers-


What exceptions deny existence of defects?

Compliance with government safety standards

  • NOT conclusive evidence of non-defect but is ADMISSIBLE evidence
  • Exception: Fed Preemption - Congress has preempted regulation in a particular area

Scientifically unknowable risk

  • NOT foreseeable danger (at time of marketing)


What is required for negligence liability?

Must prove:

1) Duty of care

  • D must be commercial supplier (manufacturer/wholesaler/retailer/NOT repair or service)
  • P must be foreseeable (user/consumer/bystander) (NO privity required)

2) Breach (D's negligent conduct led to supplying defective product)

  • Manufacturing defect (Manufacturer): Res ipsa loquitor
  • Design defect (Manufacturer): D knew/should have known of defect (UNLESS NOT apparent until defect reached public)
  • Manufacturing/Design defect (Retailer/Wholesaler): Cursory inspection required only

3) Causation

  • If NO Intermediary => Manufacturer is liable (actual + proximate causation)
  • If Intermediary failed to discover defect but NOT beyond ordinary foreseeable negligence => Manufacturer is liable (actual causation) + Intermediary is liable (proximate causation)
  • If Intermediary failed to discover defect + beyond ordinary foreseeable negligence => Intermediary is liable (actual + proximate causation) (superseding cause)

4) Damages

  • Personal injury + Property
  • If claim is SOLELY for economic loss (requires repairs/not work as well as expected) => Must bring warranty claim


What is required for strict tort liability?

1) Commercial supplier

  • Manufacturer (of that defective component)/Retailer/Wholesaler
  • Lessor
  • Seller of used products

2) Produce/Sell defective product

  • Dangerous beyond customer's ordinary expectation
  • NOT service (BUT could be liable for negligence)

3) Causation (actual)

  • Defect existed when product left D's control (NOT altered by substantial change)
  • Even if defect difficult to trace => P may rely on inference that failure ordinarily 'would occur' due to defect
  • Presumption that adequate warning would have been read and understood

4) Causation (proximate)

  • If NO Intermediary => Manufacturer is liable (actual + proximate causation)
  • If Intermediary failed to discover defect but NOT beyond ordinary foreseeable negligence => Manufacturer is liable (actual causation) + Intermediary is liable (proximate causation)
  • If Intermediary failed to discover defect + beyond ordinary foreseeable negligence => Intermediary is liable (actual + proximate causation) (superseding cause)

4) Damages

  • Personal injury or Property damage
  • NOT purely economic damages


What is the difference between negligence and strict tort liability?

- Fault (failure to discover defect UNLESS no reasonable opportunity to inspect)
- NO economic loss

Strict tort
- NO fault (NO failure to discover defect, no reasonable opportunity to inspect NOT relevant)
- NO economic loss


What defenses can prevent negligence/strict tort liability/breach of warranty?

Contributory negligence
- NOT P's mere failure to discover/guard vs defect
- NOT P's reasonably foreseeable misuse
- NOT intentional torts

Comparative negligence

Assumption of risk


What are the implied warranties?

Implied Warranties

  • Merchantabiliy
    • Product is suitable for the ORDINARY purposes for which it is sold
  • Fitness for a particular Purpose
    • Seller knows the particular purpose for which the product is being sold, and the buyer relies on the seller's skill or judgment


What is required for breach of implied warranty (UCC)?

1) Product

  • Sale of goods
  • Leases

2) Plaintiffs

  • Horizontal privity required (Buyer's family/household/guests)
  • NO vertical privity required (Buyer can sue Manufacturer)

3) Breach of implied warranty (NO fault required)

  • Product failed to live up to standards imposed by implied warranty
  • NOT merchantable ((1) Goods are NOT of average acceptable quality + (2) Goods are generally NOT fit for ordinary purpose)
  • NOT fitness for particular purpose ((1) S knew/should have known goods' particular purpose + (2) S knew/should have known B's reliance on Seller's judgment or skill in selecting goods)

4) Causation (actual + proximate)

5) Damages

  • Personal + property
  • Economic (unlike strict tort/negligence)


What is the difference between express and implied warranties?

Express warranty

  • Seller makes affirmation of fact/promise (warranty) to Buyer relating to goods; that warranty become part of 'basis of the bargain'
  • NO horizontal/vertical privity required (BUT someone must have relied on Seller's representation so that it became 'basis of the bargain')

Implied warranty

  • Seller implies warranties that goods are merchantable of fit for its particular purpose
  • Horizontal privity required (NOT vertical privity)


What is required for breach of express warranty (UCC)?

1) Product

  • Sale of goods
  • Leases

2) Plaintiffs

  • NO horizontal/vertical privity required (BUT original Buyer must have 'relied' on Seller's representation so that it became 'basis of bargain' => Remote person can sue, even w/o knowledge of representation)

3) Breach of express warranty (NO fault required)

  • Product failed to live up to standards imposed by express warranty

4) Causation (actual + proximate)

5) Damages

  • Personal + property
  • Economic (unlike strict tort/negligence)


What defenses can prevent breach of warranty?

Contributory negligence

Assumption of risk

Failure to give notice of breach within reasonable time (UCC)


  • Express warranties (disclaimer to be read consistently with warranties => disclaimer almost impossible)
  • Implied warranties (economic damages only)


How can multiple suppliers (not identifiable) be found liable?


  • Alternative causes approach (Summers v Tice)
  • Burden of proof => Each supplier to prove they are not liable

NOT strict tort


How can the defendant prevent himself from being ultimately liable?

Claim indemnity from supplier above supply chain


What is required for prima facie case for strict liability?

1) 'Absolute' duty imposed on D to make P's person or property safe

  • Based on nature of D's activity
  • NOT duty to exercise reasonable care (negligence)

2) Actual + Proximate causation

  • Dangerous aspect of D's activity => Created P's injury

3) Damages

  • Personal/Property
  • NOT economic damages

4) Foreseeable Plaintiff


What is required for liability due to abnormally dangerous activities?

1) Creates a foreseeable and highly SIGNIFICANT risk of harm

  • Even if reasonable care exercised

2) SEVERITY of the harm resulting from the activity

3) Appropriateness of the PLACE/LOCATION for the activity

4) Does it have great value to the community


What are examples of abnormally dangerous activities?


Manufacturing explosives

Crop dusting


Nuclear plants


Toxic waste transportation


What defenses can prevent strict liability?

Contributory negligence

  • P's knowledge of danger + unreasonable conduct causing harm to P
  • NOT P's failure to realize/guard vs defect

Assumption of risk

Comparative negligence


What are wild animals?

Matter of common knowledge => Naturally;
- Ferocious
- Unpredictable
- Dangerous
- Mischievous
- Not by custom devoted to the service of mankind where they are kept


What is required for liability due to Defendant's wild animals?

Owners are STRICTLY LIABLE ofor harm arising from animal's dangerous propensities


What is required for liability due to Defendant's animals towards licensees/invitees/trespassers?

Licensees or Invitees

  • Stricty liable


  • Not strictly liableOwner failed to warn of animal

Exception: Vicious watchdogs that cause 'serious' bodily harm


What is required for strict liability due to Defendant's domestic animals?

Known to be dangerous

  • If owner KNOWS or has reason to know that the particular animal has DANGEROUS PROPENSITIES


What is required for strict liability due to Defendant's trespassing animals?

Trespassing Animals

  • Owner of any animal is STRICTLY LIABLE for reasonably foreseeable damage cause by his animal while trepassing on another's land


  • Household Pets - Unless owner knows or has reason to know that the pet is INTRUDING on another's property in a harmful way
  • Animals on Public Roads - A NEGLIGENT STANDARD applies