Torts - MBE Flashcards
(94 cards)
1
Q
***Battery
A
Is an:
(1) intentional,
(2) harmful or offensive contact (that offends a reasonable sense of personal dignity,
(3) with the P’s person (including anything connected to P).
- Intentional = (a) a desire to bring about the harm/contact; OR (b) knowing the harm/contact is substantially certain to occur.
*Nominal damages alone are sufficient.
2
Q
**Assault
A
Is an:
(1) intentional act,
(2) that causes P to be placed in reasonable apprehension,
(3) of an imminent harmful or offensive contact with P’s person.
- Intentional =
(a) for the purpose of causing such apprehension;
OR
(b) with the knowledge to a substantial certainty that the apprehension
will result.
- Reasonable Apprehension = P must be aware of D's act AND believe D
is able to commit the act.
*Nominal damages alone are sufficient.
3
Q
**False Imprisonment
A
Is an:
(1) INTENTIONAL ACT,
(2) to RESTRAIN P TO FIXED BOUNDARIES (with no reasonable means of escape),
AND
(3) P IS AWARE of the confinement or HARMED by it.
- Intentional = (a) purposely bringing about the confinement, OR (b) knowing the confinement is substantially certain to occur. - Restraint = by physical force or through threats.
*Nominal damages alone are sufficient.
4
Q
**Intentional Infliction of Emotional Distress is:
A
(1) INTENTIONAL OR RECKLESS CONDUCT,
(2) that was EXTREME AND OUTRAGEOUS (transcends all bounds of decency),
(3) that causes extreme emotional distress (CAUSATION),
AND
(4) P ACTUALLY SUFFERS SEVERE EMOTIONAL DISTRESS (Damages).
- Intentional = the person (a) desires to inflict severe emotional distress, OR (b) knows that such distress is certain or substantially certain to result. - Reckless = a deliberate disregard of a high risk that emotional distress will follow.
5
Q
**Intentional/reckless infliction of emotional distress to third-party
A
D is liable for intentional/reckless infliction of emotional distress caused to:
a) A member of such person’s IMMEDIATE FAMILY PRESENT at the time;
OR
b) Any other person present, if it RESULTS IN BODILY HARM.
6
Q
**Trespass to Land
A
D is liable if:
(1) he INTENTIONALLY,
(2) either (a) ENTERS THE L AND PHYSICALLY (or remains on the land) OR (b) PROPELS PHYSICAL OBJECT OR A THIRD-PERSON onto the land (or fails to remove an object he is under a duty to remove).
- Intent to trespass is NOT required - only the intent to be on the land is required. - P must be the possessor of the land at the time of trespass.
Damages: P may recover the:
a) decrease in value of the property
OR
b) cost to repair the property.
- Nominal damages alone are sufficient.
7
Q
**Trespass to Chattels
A
Liable when:
1) D INTENTIONALLY INTERFERES WITH PERSONAL PROPERTY of another (damage, preventing use by the owner;
AND
2) The amount of DAMAGE IS SMALL.
8
Q
**Conversion
A
Liable when:
1) D INTENTIONALLY INTERFERES WITH PERSONAL PROPERTY of another (damage, preventing use),
AND
2) The amount OF DAMAGE IS SUBSTANTIAL.
*P can recover the FULL MARKET VALUE of the property.
9
Q
**Doctrine of Transferred Intent
A
The intent to harm one party can be transferred when:
1) D INTENDS TO COMMIT A TORT against one particular individual;
AND
2) Either:
a) COMMITS A DIFFERENT TORT against that person;
OR
b) ANOTHER PERSON IS INJURED BY THE SAME or different tort.
*Applies to battery, assault, false imprisonment, trespass to land, and trespass to chattels.
10
Q
***CONSENT
A
- may be express or implied through words or conduct.
- CANNOT exceed the bounds of the consent given.
- P must have capacity to consent.
- May be withdrawn at any time.
- P cannot consent to a crime (some courts).
Apparent Consent –> words/conduct are reasonably understood to be consent (i.e. customary practice, failure to object).
11
Q
***Implied by Law Consent
A
Occurs in special circumstances, such as medical emergencies.
12
Q
***Privilege
A
Is conduct that normally would subject the actor to liability but is EXCUSED UNDER THE CIRCUMSTANCES.
13
Q
***Necessity
A
D is NOT liable for harm to P’s property if D’s intrusion was (or reasonably appeared to be NECESSARY TO PREVENT SERIOUS HARM TO A PERSON OR PROPERTY.
- Applicable only to intentional torts against property. - Public Necessity (complete defense) --> when D acts for the public good. - Private Necessity (incomplete defense) --> when D is protecting his own (or a few others) property interests. D is liable for damages UNLESS the purpose was to help P.
14
Q
***Self-Defense/Defense of Others
A
D is NOT liable for harm to P if he:
1) REASONABLY BELIEVED P WAS GOING TO HARM HIM or another;
AND
2) used REASONABLE FORCE THAT WAS NECESSARY to protect himself or another.
15
Q
***Defense of Property
A
May use REASONABLE FORCE to defend property, but CANNOT use deadly force.
16
Q
***Recapture of Chattels
A
An owner of wrongfully taken chattels may take PROMPT ACTION and use REASONABLE, NON-DEADLY FORCE TO RECOVER the chattels from the wrongdoer.
- Force is deemed unreasonable without first making a demand to return the item UNLESS the demand is dangerous or futile.
17
Q
***Detain for Investigation
A
Shopkeepers MAY:
(1) temporarily detain,
(2) a person reasonably suspected of theft,
(3) in or near their store,
(4) for the purpose of investigation.
- When a request to remain has been made and refused, REASONABLE NON-DEADLY FORCE may be used to detain.
18
Q
***Prima Facie Case - Elements
A
1) Duty,
2) Breach of duty,
3) Causation (actual and proximate cause),
AND
4) Damages.
*A party must offer sufficient evidence to prove ALL of the above elements.
19
Q
***Affirmative Duty
A
There is NO general duty to act affirmatively EXCEPT IF:
a) A special pre-existing relationship exists between the parties (i.e. parent-child, landowner-entrant);
b) D put P in peril;
c) D has already undertaken to rescue P (but liable ONLY IF it increases the risk of harm OR harm is suffered because of reliance on the person providing help);
OR
d) A duty imposed by law.
20
Q
***Reasonable Person Standard
A
Every person owes a duty to act as a REASONABLE PRUDENT PERSON WOULD ACT UNDER THE CIRCUMSTANCES.
- Following community customs & statutory requirements are relevant, BUT NOT dispositive . It is merely evidence of reasonable care.
21
Q
***Physical Disability
A
Must act as a reasonable person with disability would act.
22
Q
***Mental Disability or Below Average Intelligence
A
Must act as a reasonable person without the disability would act.
23
Q
***Children
A
Must act as a hypothetical CHILD OF SIMILAR AGE, EXPERIENCE, AND INTELLIGENCE acting under similar circumstances.
- EXCEPTION --> if engaging in an ADULT ACTIVITY, the child has a duty to act as REASONABLE ADULT.
24
Q
***Professionals
A
Must act with the KNOWLEDGE AND SKILL AS AN AVERAGE MEMBER OF THAT PROFESSION participating in a SIMILAR COMMUNITY.
- Professional --> doctors, lawyers, accountants, engineers, architects, nurses.
25
***Specialist
If holding oneself out as a specialist, then must act as an average member of that profession practicing that specialty.
26
***Medical Doctor
Held to the degree of care and skill of an average qualified practitioner under a NATIONAL STANDARD.
27
***Psychologist/Psychotherapist
Also have a duty to warn victims when their patient makes a credible threat if:
(1) the therapist believed the patient posed a real risk,
(2) of serious physical violence,
(3) to a readily identifiable victim,
AND
(4) failed to take steps to warn the victim.
28
***Landowner/Possessor Duty to Entrants - Some States
- Some States --> Landowner/Possessor must exercise REASONABLE CARE under the circumstances to ALL ENTRANTS.
29
***Landowner/Possessor Duty to Entrants - Other States
Duty of care is determined by the type of entrant.
- UNDISCOVERED TRESPASSER --> no duty is owed
- ANTICIPATED TRESPASSER (without permission, but expected) (1) reasonable care in operations on the property, AND (2) must warn of (or make safe) highly dangerous artificial conditions that the land owner knows of.
- LICENSEE (social guest) --> (1) reasonable care in operations; AND (2)
must warn of (or make safe) dangerous conditions that are known, but
not apparent to a guest.
- INVITEE (enters for the owner's benefit, shop, or business) --> The same duty as a Licensee + the duty to make reas inspections to find and make safe non-obvious dangerous conditions.
30
***Attractive Nuisance
Landowner/Possessor owes a duty to CHILD TRESPASSERS to make the premises REASONABLY SAFE OR WARN OF HIDDEN DANGERS on the land.
- Will be liable if:
(1) knowns (should know) of a DANGEROUS ARTIFICIAL CONDITION -
likely to cause death or serious bodily injury;
(2) knowns (should know) CHILDREN ARE LIKELY TO FREQUENT THE
AREA;
(3) children are UNLIKELY TO DISCOVER THE CONDITION OR
APPRECIATE THE RISKS,
AND
(4) the RISK OF HARM OUTWEIGHS THE EXPENSE of making the
condition safe.
31
**Landlord's Duty to Tenants
Landlord generally has NO DUTY TO MAINTAIN THE LEASED PREMISES (unless provided for by law or contract).
- But, landlord MUST warn of latent (hidden) defects.
32
**Landlord's Duty to Make Premises Safe from Criminal Acts
- Common Law --> landlord has NO duty to provide a safe premises so
that tenants are safe from criminal acts of third-persons.
- Modern View --> Landlord has a duty to take reasonable precautions to
protect a tenant against foreseeable attacks.
33
***Negligence Per Se
The elements of DUTY & BREACH ARE ESTABLISHED WHEN D BREACHES A STATUTE
34
***Elements of Negligence Per Se:
P must show:
(1) Statute's purpose is to prevent the type of harm P suffered;
AND
(2) P is in the class of persons the statute seeks to protect.
Two Exceptions:
- Exception #1 --> Compliance with the statute would have been MORE
DANGEROUS than the violation of it.
- Exception #2 --> Compliance was IMPOSSIBLE.
35
***Res Ipsa Loquitur
Can be used when the breach element is difficult to prove:
Restatement (second) test:
P must show that:
1) the injury is of a kind that TYPICALLY DOES NOT OCCUR IN THE ABSENCE OF NEGLIGENCE;
2) OTHER RESPONSIBLE CAUSES ARE SUFFICIENTLY ELIMINATED by the evidence (including the conduct of P and third persons;
AND
3) the negligence was WITHIN THE SCOPE OF DUTY D owed to P.
36
***Causations
P must show that D's conduct was BOTH the ACTUAL AND PROXIMATE CUASE of the injury.
ACTUAL CAUSE --> the "but for" cause.
- Substantial Factor Test - deemed an actual cause if it's a SUBSTANTIAL FACTOR in bringing about the injury (even if there are multiple causes).
PROXIMATE CAUSE --> injury must have been a foreseeable result of the breach.
- D is NOT liable for REMOTE harms caused.
37
***Intervening Cause
Is an act that occurs after the breach that contributes to the harm.
- Intervening causes that are DEPENDANT (a natural reaction to) D's
wrong acts --> usually deemed FORESEEABLE.
- If the intervening cause resulted in an UNEXPECTED INJURY --> it's
usually deemed UNFORESEEABLE and D is NOT liable.
38
***Medical Malpractice is...
...ALWAYS deemed foreseeable.
39
***Criminal Acts
Usually NOT foreseeable UNLESS:
a) D should have anticipated the criminal act,
OR
b) D's conduct makes the criminal act more likely.
40
***Eggshell Plaintiff Rule
"Take P as you find P"
D is liable for ALL HARM P suffers as a result of his conduct, EVEN IF P suffers from a pre-existing mental or physical condition that makes the harm worse than what a normal person might suffer.
41
***Pure Comparative Negligence
P's negligence (or assumption of risk) will REDUCE HIS RECOVERABLE DAMAGES BY THE PERCENTAGE OF HIS OWN FAULT.
*MBE/MEE - only apply pure comparative negligence (unless explicitly instructed otherwise).
42
***Partial Comparative Negligence
If P is 50% or more at fault, then P's claim is BARRED.
| - If P is less than 50% at fault, then damages are reduced by the percentage of his own fault.
43
***Contributory Negligence
P's claim is barred if he contributed to his injury.
- Exception #1 --> D had the last opportunity to avoid the accident.
- Exception #2 --> D was reckless.
44
**Assumption of Risk
Is a defense to negligence, and applies if P VOLUNTARILY ASSUMED A KNOWN RISK.
- May be express (by agreement) OR implied (an average person would appreciate the risk).
45
***Negligent Infliction of Emotional Distress - 3 scenarios where a P can recover:
1) NEAR MISS CASE:
(a) D's negligence, (b) creates a foreseeable risk of physical injury, (c) P
is in the zone of danger, AND (d) P manifests physical symptoms.
2) BYSTANDER CLAIM:
(a) negligence by D, (b) P is a contemporaneous witness to negligent
bodily injury inflicted on P's close family member (parent, child,
spouse), AND (c) P manifests physical symptoms.
3) PRE-EXISTING RELATIONSHIP:
(a) a pre-existing relationship between the parties, AND (b) D's negligent
act foreseeably causes distress.
- Recovery is rare, only available in egregious situations.
46
***Respondeat Superior Doctrine
An employer is liable for an employee's negligent acts if the employee was ACTING WITHIN THE SCOPE OF THE EMPLOYMENT.
EMPLOYEE ACTS WITHIN SCOPE OF EMPLOYMENT WHEN:
a) Performing work assigned by the employer,
OR
b) Engaging in a course of conduct subject to the employer's control.
Time, Place, & Purpose Test - to determine the scope of employment, courts analyze whether the conduct:
i) is of the kind the employee is employed to perform;
ii) occurs substantially within the authorized time and space limits;
AND
iii) is motivated (in whole or part) to serve the employer.
47
***Intentional Torts***Respondeat Superior Doctrine
Are generally outside the scope EXCEPTIONS:
a) Act was SPECIFICALLY AUTHORIZED by employer;
b) Act was DRIVEN BY A DESIRE TO SERVE employer;
OR
c) Act was the RESULT OF NATURALLY OCCURRING FRICTION from the
type of employment.
48
Not Within Scope of Employment ***Respondeat Superior Doctrine
Conduct is NOT within the scope if it's UNRELATED AND NOT INTENDED TO SERVE ANY PURPOSE OF THE EMPLOYER.
- BUT see exception below.
- Liability if Respondeat Superior Doctrine is Inapplicable
- Employee vs. Independent Contractor
- Liability for Independ Contractor
49
***Liability if Respondeat Superior Doctrine is Inapplicable
An employer will be liable for acts OUTSIDE the scope of employment if:
a) Employer intended the conduct/consequences;
b) Employer was negligent or reckless in selecting, training, supervising, or controlling the employee;
c) It is a non-delegable duty;
OR
d) Employee had apparent authority, the appearance of authority enabled
the tort, AND the third-party reasonably relied on such authority.
50
***Employee vs. Independent Contractor
Primary focus is whether the principal had the RIGHT TO CONTROL the manner and method in which the job was performed.
Factors --> courts analyze the following to determine if a person is an EMPLOYEE OR INDEPENDENT CONTRACTOR:
1) type of work;
2) pay (hourly vs. per project);
3) who supplied the equipment/tools;
4) degree of supervision;
5) degree of skill required;
6) extent of principal's control over work details;
7) extent of principal's control over work details;
8) whether agent/contractor is engaged in a distinct business;
9) length of time employed/engaged;
10) characterization & belief of relationship;
AND
11) whether agent was hired for a business purpose.
51
***Liability for Independent Contracts
Generally, an employer/principal has NO liability for an independent Contractor's torts.
Exceptions:
1) Inherently Dangerous Activities.
2) Non-delegable duty owed by principal.
3) Estoppel - the principal holds out the contractor as his agent, third-party reasonably relied on contractor's skill, and the third-party suffered harm.
52
**Joint and Several Liability
- If multiple Ds are the proximate cause of a SINGLE INDIVISIBLE HARM, then P may recover the ENTIRE amount of damages from ANY DEFENDANT.
- BUT, any D who pays MORE THAN HIS SHARE of the damages may
bring action against the other Ds for contribution.
53
**Indemnification
A PASSIVE TORTFEASOR can assert its claim against an ACTIVE TORTFEASOR to recover the full amount it paid (or may have to pay) to P.
54
**Contribution
D may seek contribution from other Ds if he pays more than his share of the liability.
- The amount recoverable from each D is based on each's percentage
share of fault.
55
***Doctrine of Alternative Liability
Allows a jury to find ALL Ds liable if:
1) multiple Ds are negligent,
2) but it's unclear which one caused P's injuries.
56
***Doctrine of Joint Enterprise
Allows the negligence of one D to be imputed to other Ds if:
1) Multiple Ds are ENGAGED IN A COMMON PROJECT OR ENTERPRISE;
AND
2) All Ds have made an EXPLICIT/IMPLIED AGREEMENT TO ENGAGE IN TORTIOUS CONDUCT.
57
***Doctrine of Market Share Liability
If applicable, all manufacturers (of products IDENTICAL to the one that harmed P) are LIABLE IN PROPORTION TO THEIR SHARE OF THE MARKET.
58
***Market Share Liability is appropriate if:
1) All Ds are potential tortfeasors;
2) Products are identical and share the same defective qualities (or were "fungible");
3) P is unable to identify which D caused his injury through no fault of his own,
AND
4) Substantially all of the manufacturers of the product are named as Ds.
59
**Defamation
The elements required to prove a prima facie case of defamation are:
1) a FALSE DEFAMATORY STATEMENT (a statement that tends to harm the reputation of another);
2) OF AND CONCERNING THE P made by D;
3) PUBLICATION by D to a third-party;
AND
4) DAMAGES.
60
**Slander
An oral defamatory statement --> need to prove SPECIAL DAMAGES.
- UNLESS it's SLANDER PER SE --> (a) impugning business integrity or skill; (b) unchastity of an unmarried woman; (c) loathsome disease; OR (d) crime of moral turpitude.
61
**Libel (defamation in a permanent format)
DO NOT need to prove special damages.
- UNLESS -->
(1) the statement does not fall within one of the slander per se categories;
AND
(2) the defamatory nature is not clear on its face.
62
**Public Official or Public Figure
MUST also prove ACTUAL MALICE (recklessness or knowledge of falsity).
- Public Figure = injected themselves into a public controversy OR achieved widespread notoriety.
63
**Private Figure Speaking about a Matter of Public Concern
MUST also prove negligence
64
**Defenses to Defamation
- ABSOLUTE PRIVILEGE
| - QUALIFIED PRIVILEGE
65
**Absolute Privilege - Defense to Defamation
A complete defense
- Applies to statements made --> in judicial proceedings, between spouses, by executive branch officials, and during legislative proceedings.
66
**Qualified Privilege - Defenses to Defamation
Apples when:
(1) the statement is conditionally privileged,
AND
(2) privilege is not abused (did not act with malice).
- Applies to statements --> by former/prospective employers (made in good faith for a legitimate purpose), in gov't reports of official proceedings, during testimony in legislative proceedings, in self-defense, and to warn others about danger/harm.
67
**Misappropriation of Name or Picture - Invasion of Privacy Torts
Occurs when D:
(1) used P's name or likeness,
(2) for commercial advantage (promoting a product/service).
- Newsworthiness is a defense.
68
**False Light - Invasion of Privacy Torts
Occurs when D:
(1) causes widespread dissemination,
(2) of P's beliefs, thoughts or actions,
(3) in a false light,
(4) that would be highly objectionable to a reasonable person.
- If public figure or matter of public concern --> MUST show ACTUAL MALICE (knowledge of falsity or reckless disregard).
69
**Intrusion of Privacy - Invasion of Privacy Torts
Occurs when:
(1) D intrudes into the private affairs of P;
(2) P has a reasonable expectation of privacy;
AND
(3) the intrusion is highly objectionable to a reasonable person.
- Examples --> reading private mail, illegal wiretapping.
70
**Public Disclosure of Private Facts - Invasion of Privacy Torts
Occurs when D:
(1) Caused widespread dissmination,
(2) of truthful private information,
(3) that is highly objectionable to a reasonable person.
- Newsworthiness is a defense UNLESS ACTUAL MALICE (knowledge of falsity or reckless disregard) is present.
71
**Intentional Interference with Business Relations
Must prove that:
1) There was contract or business expectancy;
2) D knew of the contract/expectancy;
3) D intentionally induced the party to breach the contract (or terminate the relationship);
4) A breach occurred;
AND
5) P suffered damages.
72
**Defenses for Intentional Interference with Business Relations
- Legitimate competitive activity (no dishonest, wrongful, or illegal act used).
- Giving truthful information.
- Having a financial interest in the party that breached or terminated.
- Honestly giving requested advice, usually in a special relationship (i.e. attorney-client, parent-child, clergy-penitent).
73
**Intentional Misrepresentation (fraud/deceit)
Plaintiff must show:
1) Misrepresentation of a material fact by D;
2) D knew the statement was false (scienter);
3) Intent to induce P;
4) Actual and reasonable reliance by P;
AND
5) Damages.
74
**Negligent Misrepresentation
Plaintiff must show:
1) A misrepresentation (false statement of material fact);
2) Supplied for the guidance of others in a business transaction;
3) D knew (or should have known) that the information was supplied to guide P in his business transactions;
4) D was negligent in obtaining or communicating the false information;
5) Actual and reasonable reliance by P;
AND
6) The false information proximately caused P's damages.
75
**Concealment
An AFFIRMATIVE ACT intended to keep another from learning a fact.
- Concealment is deemed a misrepresentation.
76
**There is NO DUTY to disclose information UNLESS:
a) a fidcuciary relationship exists;
b) it's necessary to correct an earlier mistake;
c) active concealment occurs;
OR
d) a seller of real property knows material facts that affect the value of the property (that the buyer is unaware of and cannot reasonably discover).
77
**Public Nuisance
Is:
(1) an unreasonable interference,
(2) with the health, safety, or property rights,
(3) of the community (a considerable amount of people or an entire community/neighborhood).
- Must show actual damages.
78
**Private Nuisance
Is:
(1) a substantial and unreasonable interference,
(2) with a person's use or enjoyment of her property.
- MUST be offensive, inconvenient, or annoying to a REASONABLE PERSON.
79
**Nuisance Defenses
- Coming to the nuisance (residential landowner knowingly came into a neighborhood with a nuisance).
- Statutory compliance.
80
**Domestic Animals
Owner is NOT strictly liable UNLESS he has KNOWLEDGE OF THE ANIMAL'S VICIOUS PROPENSITIES.
- Includes dogs, cats, and farm animals.
81
**Wild Animals
Owners are SUBJECT TO STRICT LIABILITY for harm caused REGARDLESS of any safety precautions taken.
Animal owners are STRICTLY LIABLE for the TRESPASS AND RESULTING PROPERTY DAMAGE caused by their animals (if reasonably foreseeable).
82
**Abnormally Dangerous Activity
Is an activity that:
1) is not of common usage in the community;
AND
2) creates a foreseeable and highly significant risk of physical harm (even when reasonable care is exercised).
* D is subject to STRICT LIABILITY.
83
***Strict Products Liability
A commercial supplier is strictly liable for any harm caused by its product.
Elements:
1) PRODUCT WAS DEFECTIVE when it left the hands of D (manufacturing defect, design defect, or failure to warn);
2) Product was NOT ALTERED when it reached P;
3) CAUSED AN INJURY to P when it was being USED IN AN INTENDED OR UNINTENDED FORESEEABLE USE;
AND
4) D is a COMMERCIAL SUPPLIER who routinely deals in goods of this type.
84
***Manufacturing Defect - Products Liability
When the product:
1) DIFFERS FROM THE INTENDED DESIGN (defect in manufacturing/production);
AND
2) is MORE DANGEROUS than if made properly.
85
***Design Defect - Products Liability
Exists if the product can be made or manufactured SAFER, MORE PRACTICAL, and at a SIMILAR COST.
- Trier of fact MUST balance the alternative designs available (incl. cost & utility) vs. the risk to consumers.
86
***Failure to Warn - Products Liability
Requires that:
1) P was NOT WARNED OF THE RISKS of the product.
2) which are NOT OBVIOUS TO ANY ORDINARY USER, but known to the designer/manufacturer.
*The warning MUST be proportionate to the risk.
87
**Commercial Supplier - Products Liability
Any person/entity engaged in the business of selling goods of the type (routinely sells such goods).
- Casual sellers and service providers are NOT commercial suppliers.
88
***Damages Available
Recovery for personal injury and property damage is allowed.
| - Recovery for SOLELY economic loss is NOT allowed.
89
**Liability for Negligence
```
A negligence claim based on a defective product requires:
1) Duty owed to P;
2) Breach of that duty;
3) Causation (actual & proximate cause);
AND
4) Damages.
```
90
**Duty Owed - Liability for Negligence
Product suppliers owe a duty to ALL FORESEEABLE USERS, and MUST act as a REASONABLY PRUDENT SUPPLIER would for the type of product.
- BREACH --> will be found if a SUPPLIER'S NEGLIGENCE RESULTS IN A
DEFECTIVE PRODUCT.
- Suppliers are also liable for all FORESEEABLE MISUSES of the product.
*Negligence MUST be shown.
91
**Liability for Breach of Warranty
May be based on a breach of an express or implied warranty.
- Damages for Breach --> personal injury, property damage, and
economic loss.
- Disclaimer of Warranties --> usually NOT effective for a personal injury
action.
92
**Implied Warranty of Merchantability
Requires that all goods sold by a MERCHANT (a person dealing in goods of the kind) MUST BE FIT FOR THEIR ORDINARY PURPOSE.
93
**Implied Warranty of Fitness for a Particular Purpose
Created when:
1) A seller knows (or has reason to know) of the guyer's particular purpose for the goods;
AND
2) Buyer relies on seller's skill or judgment to select/furnish suitable goods.
*A breach occurs if the goods are NOT fit for the particular purpose.
94
**Express warranty
Created when:
(1) a seller makes an affirmation of fact, promise, or description, or provides a sample;
(2) which relates to the goods,
AND
(3) it becomes part of the basis of the bargain.
