TORTS #2

Question 1

PRODUCTS LIABILITY

Answer 1

Liability of a manufacturer or supplier of a product to one injured by a product in defective condition unreasonably dangerous. Products liability action may be brought under the following tort theories:

(1) strict products liability, (2) negligence, (3) breach of warranty, (4) misrepresentation, (5) battery,
and also vicariously via Respondeat Superior

Question 2

Strict Product Liability

Answer 2

STRICT PRODUCTS LIABILITY – one who sells (or places into the stream of commerce) any product in a defective condition unreasonably dangerous is subject to liability for physical harm caused to the consumer or user or his property if (1) the seller is engaged in the business of selling such products and (2) the product reaches the retailer or consumer without substantial changes.

Question 3

Merchant

Answer 3

Merchant – defendant must be a commercial manufacturer or seller engaged in the business of producing or selling the product (not a casual seller); absolute duty to foreseeable consumers/users.

Question 4

Not Altered

Answer 4

Not Altered – the product must be expected to, and actually reach the user or consumer without substantial change in its condition after leaving the defendant’s control.

Question 5

Defects

Answer 5

Defects – three types of defects: manufacturing defect, design defect, failure to adequately warn.
Breach of Duty supplying a product in defective condition unreasonably dangerous, regardless of fault.

1. Manufacturing Defect exists when the product departs from its intended design, making the particular unit defective compared to all other units produced. SL for all in distribution chain.
2. Design Defect is inherent in the product’s design, and exists when the product’s foreseeable risks of harm could have been reduced or avoided by a cost-effective and feasible alternative design.

Question 6

defects continued: Failure to Adequately warn

Answer 6

3. Failure to Adequately Warn exists where the product’s foreseeable risks of dangers (not obvious to users) could have been reduced or avoided by providing reasonable instructions or warnings.

Question 7

Strict Products Liability tests

Answer 7

a. Consumer Expectation Test – was product more dangerous than contemplated by RPP?
- Open & Obvious Test – if so, a defense to CET, but not determinative.
b. Risk v Utility Test – does product’s usefulness outweigh its potential dangers?
c. Feasible Alternative Test – is a safer design alternative available at a similar cost?

Question 8

Foreseeable Plaintiff & Foreseeable Use

Answer 8

Foreseeable Plaintiff & Foreseeable Use – the foreseeable plaintiff must be using the product in a foreseeable fashion when the injury occurred, but need not have been used in its intended manner.

Question 9

Causation: spl

Answer 9

Causation – the product defect must be both the actual and proximate cause of the harm.

Actual Cause – “but for” the product defect, the harm would not have occurred.
Proximate Cause – is satisfied if the consumer’s use of the product is foreseeable, so long as the resulting harm is not too remote or indirect.

Question 10

Damages:spl

Answer 10

Damages – the plaintiff must show actual harm to their person or property.

Question 11

Defenses: spl

Answer 11

Defenses – Contributory Negligence bars plaintiff’s recovery only for unforeseeable misuse of
the product; Comparative Negligence reduces plaintiff’s recovery for unforeseeable misuse.

Assumption of Risk requires defendant to prove that plaintiff was (1) warned of or discovered the defect, and (2) voluntarily and unreasonably used or continued to use the product.

Disclaimers of Liability are irrelevant in strict liability and negligence where injury occurred.

Question 12

NEGLIGENCE - PRODUCTS LIABILITY

Answer 12

NEGLIGENCE cause of action for products liability requires showing that the manufacturer or supplier owed a duty of care, breached that duty, which actually and proximately caused damages. The plaintiff need not prove the product’s unreasonably dangerous defect.

Manufacturers and sellers can be found negligent for (1) manufacturing defects, (2) design defects, (3) failure [breach of duty] to warn, (4) failure [breach of duty] to inspect

Question 13

Duty of care

Answer 13

Duty of care owed to all foreseeable consumers and users of its product; Cardozo’s “zone of danger”; Andrews’ minority view duty to all.
Duty (1) to supply and sell defective-free products, (2) to inspect and discover defects,
(3) to design and manufacture defect-free products, (4) to adequately warn of inherent
risks and hazards, (5) to provide adequate instructions

Question 14

Standard of Care

Answer 14

Standard of Care is that of a reasonably prudent manufacturer of the product in question, considering such superior skill or training the defendant has or purports to have

Question 15

Breach of Duty

Answer 15

Breach of Duty is shown by defendant’s conduct falling below the standard of care expected of a reasonably prudent manufacturer under the same or similar circumstances. Plaintiff may invoke
Res Ipsa Loquitur to establish liability. Also, Calculus of Risk (Hand Formula): B < PL = N.

Question 16

Causation: negligence

Answer 16

Causation requires that the product defect is both the actual and proximate cause of harm; traditional negligence causation definitions apply. risk outweighs the use

Question 17

Negligence Damages

Answer 17

Damages of actual physical harm to the consumer’s person or property must be shown.
Economic loss is usually recoverable under breach of warranty actions only

Question 18

Defenses

Answer 18

Defenses to standard negligence actions are applicable to negligence-based product liability claims.
Disclaimers of Liability are irrelevant in strict liability and negligence where injury occurred.

Question 19

INTENTIONAL TORTS – BATTERY - PRODUCTS LIABILITY

Answer 19

INTENTIONAL TORTS – BATTERY – An intentional, harmful or offensive contact, causing damages, without consent or privilege. If the defendant intended the results, or knew they were substantially certain to occur, the cause of action will likely be battery. In addition to compensatory damages, punitive damages may be available. The usual intentional tort defenses are available.

Question 20

Breach of Warranty

Answer 20

BREACH of WARRANTY by immediate seller exists if product was not as promised/contracted.
If the seller made representations or warranties, either expressly or implicitly, about the nature or quality of goods, and the representations were false, buyer may recover, even absent negligence.

Question 21

Implied Warranty of Merchantability

Answer 21

Implied Warranty of Merchantability flows to the consumer or user by virtue that the seller offered the goods for sale. If breached, defendant is liable, regardless of fault. New products only.

Merchantability implies that the quality of goods are generally acceptable among others selling similar goods, and fit for ordinary use in the manner intended.

Question 22

Implied Warranty of Fitness for a Particular

Answer 22

Implied Warranty of Fitness for a Particular Purpose flows to the consumer or user if the seller
of goods knows, or has reason to know (1) the particular purpose for which the goods are required, and (2) the buyer is relying on seller’s skill or judgment to select or furnish suitable goods.

Breach, Causation, Damages, and Defenses elements analyzed same as express warranty (below).

Question 23

Express Warranty (Representation Theory)

Answer 23

Express Warranty (Representation Theory) – flows to the consumer or user if the seller or supplier’s explicit (usually written or tangible) promise or affirmation, made to the buyer, about the product’s nature and quality, becomes part of the “basis of the bargain”.

Question 24

Breach of Express Warranty

Answer 24

Breach of Express Warranty imposes liability, regardless of fault. Plaintiff must show the
(1) existence of warranty, (2) relationship between plaintiff and defendant, (3) breach of warranty, (4) causal relationship between breach and (5) damages.

Question 25

breach of warranty: Causation; Damages; Defenses

Answer 25

Causation analysis includes actual and proximate cause, as applied in negligence. Damages include recovery for economic loss, in addition to personal injury and property damages. Defenses – Contributory Negligence bars recovery only in negligent representations for plaintiff’s unreasonable conduct after discovery of defect; Comparative Fault reduces recovery. Assumption of Risk applies only when plaintiff uses the product while knowing of the breach; resulting injuries are deemed not to have been proximately caused by the breach.

Question 26

VICARIOUS LIABILITY

Answer 26

VICARIOUS LIABILITY – imposes joint and several liability on another based on relationship with tortfeasor who directly caused the injury. C/L, Respondeat Superior (“let the master answer”) or Master Servant Rule. VL for EE’s, JV’s, IC’s via Respondeat Superior w/in scope of employ. Employee/Employer – VL if within scope of employment, not during “frolic and detour” (which must be unequivocally unrelated to the employer’s business). Exception: No VL for intentional torts unless the act furthers the employer’s objectives. Joint Ventures – Partners are VL for each other’s torts committed within scope of partnership or JV. Joint Venture engages people for common business purpose, mutual right to control activity. Independent Contractors – VL is generally not imputed for torts committed by IC’s because hirer has no right to control IC’s activity. However, even if IC assumes liability (by agreement “assumes all risks”) it does not insulate the employer from liability to third persons by contractor’s negligence, but allows employer to sue contractor for indemnification.

Question 27

Misrepresentation of Fact

Answer 27

Misrepresentation of Fact – Seller’s misrepresentation or non-disclosure of a material fact about a product usually results in strict liability if the misrepresentation (1) is false, and (2) induces buyer.

Question 28

Actual/Proximate Causes

Answer 28

Actual Cause is satisfied if the purchaser’s reliance on the misrepresentation was justifiable, and if that reliance was a substantial factor in inducing the purchase. Reliance need not be victim’s. Proximate Cause is satisfied if the consumer’s use is foreseeable

Question 29

Damages

Answer 29

Damages include personal injury and property damage, and may include punitive damages if the misrepresentation was intentional.

Question 30

Defenses

Answer 30

Defenses – Contributory Negligence is available only for negligent misrepresentations; Assumption of Risk is not a defense where plaintiff is entitled to rely on the representation

Question 31

DEFAMATION – Common Law & Constitutional

Answer 31

DEFAMATION – Common Law & Constitutional A defamatory statement, of or concerning plaintiff, published to a third party who understands that the statement defames the plaintiff, causing damages to plaintiff’s reputation, without consent or privilege. AND, if the statement is of public concern, the plaintiff must show falsity and fault under a constitutional standard. Fault standards: Media defendant – malice; private person – negligence. malice=punitive

Question 32

Libel & Slander per se

Answer 32

Libel & Slander per se¬ – damages presumed; categories: loathsome disease, adultery/fornication, criminal conduct/moral turpitude, inappropriate criticism of business/trade/profession, inability or corruption of public office (constitutional).

Question 33

Defenses

Answer 33

Defenses – consent, truth (C/L: must be entirely true; modernly: substantially true), absolute privilege (judicial/leg/exec proceedings; matrimonial), qualified (duty to communicate + protection of an interest)

Question 34

Privacy-four Theories

Answer 34

Intrusion into Seclusion , Public Disclosure of Embarrasing Private Facts; False Light; Commercial Misappopropriation of Name and/or Likeness

Question 35

Intrusion into seclusion

Answer 35

Intrusion into Seclusion – an intentional intrusion, into the plaintiff’s private space, in an offensive manner, causing damages. Defenses – consent, privilege (absolute, qualified)

Question 36

Public Disclosure of Embarrassing Private Facts

Answer 36

Public Disclosure of Embarrassing Private Facts – widespread disclosure, of confidential information, about the plaintiff, that would be offensive or embarrassing to a reasonable person in plaintiff’s shoes, which is not of legitimate public concern, causing damages. Defenses – consent, privilege (absolute, qualified), newsworthiness (if statement is not false)

Question 37

False Light

Answer 37

False Light – an embarrassing, and false statement, concerning plaintiff, published to a substantial number of persons, done with fault (malice if media defendant), causing damages. Falsely attributing views the plaintiff would not hold, or actions the plaintiff did not take. Defenses – truth, consent, privilege (absolute, qualified)

Question 38

Commercial Misappropriation of Name and/or Likeness

Answer 38

Commercial Misappropriation of Name and/or Likeness – unauthorized use, of plaintiff’s identity, for commercial purpose or personal gain, resulting in damages. Defenses – consent, privilege (absolute, qualified); public interest-concern/newsworthiness; incidental use

Question 39

DAMAGES

Answer 39

DAMAGES

Question 40

TYPES OF DAMAGES

Answer 40

Nominal Damages; Compensatory Damages; Punitive or Exemplary Damages

Question 41

Nominal Damages; Compensatory Damages; Punitive or Exemplary Damages

Answer 41

1. Nominal Damages – Consist of a token sum (usually one dollar) awarded to a plaintiff who has made out a case showing harm, but failed to prove actual damages. 2. Compensatory Damages – General and Special Damages 3. Punitive or Exemplary Damages – May be awarded to punish defendant’s reprehensible conduct

Question 42

COMPENSATORY DAMAGES

Answer 42

COMPENSATORY DAMAGES – compensates victim to make whole/indemnify for damage/harm. General Damages compensate for damages which flowed as a natural and necessary consequence of the harm suffered, without regard to particular circumstances or plaintiff’s character. Special Damages compensate for damages which flowed as a natural, but not a necessary consequence of the harm suffered by the plaintiff; considers plaintiff’s particular circumstances.

Question 43

general

Answer 43

pain and suffering/emotional turbulance

Question 44

special

Answer 44

measurable: loss of wages, future costs.