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13 Cards in this Set
- Front
- Back
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a simple restatement of when there is a duty to act
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1)when there is a special relationship with the plaintiff; 2)when there is a special relationship to the threatened third party.
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How is circumstantial evidence causally related to constructive notice?
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Constructive notice can be used as circumstantial eviddence.
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Two systems of dealing with settlements
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1)pro tanto (dollar for dollar reduction); 2)percentage reduction
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What is CA's stance for mary carter agreements?
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California allows for Mary Carter agreements if they are fairly and fully disclosed.
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The Blackburn assumption of risk framework
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Assumtion of risk: Was there duty of care? (No=Primary, Yes=Secondary). Secondary:Was it an unreasonable or reasonable assumption? (Unreasoanble=Qualified, ==>P recover under comparative fault, both P and D have damages since P also has done something wrong), (Reasonable assumption = Pure, ==> D requires no defense.)
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How assumption of risk works in california
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Sports have not duty that is owed to P since sports are intrinsicly dangerous. Only allow recovery for P when the damages are intentional or recklessly done. Allow the factfinder to determine damages under comparative negligence. Therefore, assumption of risk would have been unreasonable (with intentional or reckless D's conduct) and recovery allowed under comparative negligence.
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The three defenses for negligence
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1)Comparative negligence (Makes contributoyr negligence ancilllary to this); 2)Assumption of risk; 3)Immunities
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Miller 6 part test to see if something is abnormally dangerous
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1)GREAT HARM:Existence of high risk of harm to people or chattels; 2)LIKELYHOOD OF HARM:Likihood ofthat harm will resutl is great; 3)INABILITY TO LIMIT HARM:Inability to limit risk by exercisise of reasonable care; 4)INAPPROPRIATE PLACE:inappropriateness of the activity for the place it is practiced on; 5)HARM NOT COMMON:Extent to which activity is not of common usage; 6)BALLANCE VALUE WITH COMMUNITY:Extent to whcih teh value to teh community is outweighed by its dangerous propensities;
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4 prongs to write out for strict liability
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1)Breach; 2) Causation in fact; 3)Proximate Causation; 4)Damages; 5)Defenses
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Simple rephrasement of negligence
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Did the defendant act reasonably?
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3 key questions for mismanufacture
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1)Does product differ from others like it? 2)Did the difference cause harm? 3)Did the defect exist when it left Defendnat's possession?
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4 key questions to aks for Misdesign
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1)Risk benefit analysis (is there a reasonablly alternative design?); 2)Consumer expectations test (what would the average consumer think about this product's malfunctioning?); 3)Is this an exception to strict liablity? (unavoidably unsafe but necessary product--pills, or inherently risky product--good butter); 4)Is this a manifestly unreasoanble design (exploding cigar?) .. Note: sellers in the chain of distribution can be liable.
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2 key questions to ask for failure to warn
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1)Did the defendnat know of the risk and magnitude of the risk?; 2)Is the warning sufficient?
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