Badm 300 Exam 2

Front 1

causation in fact

Back 1

did the defendant's conduct in fact cause the injury? did the defendants conduct trigger a chain of events that, in an unbroken sequence, resulted in injury?

Front 2

"but-for test"

Back 2

take out the defendant, does the injury still happen (99%)

Front 3

substantial cause test

Back 3

when two or more acts bring about the negligence. liability is imposed upon any defendant whose negligence is a substantial factor in causing a plaintiff's injury

Front 4

forseeability of harm

Back 4

only comes to this after determining a causation of fact

Front 5

extent of liability -- was the injury significantly removed?

Back 5

since most injuries usually occur seconds after the negligent action occurs, this answer is usually no

Front 6

palsgraf v. long road island railroad (N.Y. 1928)

FACTS ONLY

Back 6

-passenger boards the train, asks for help with package
-staff knocks package out of passenger's hand (negligent)
-package has explosives and explodes
-leads to stampede of people
-stampede knocks over large weighing scale
-scale falls on palsgraf, so she sues Long Island R.R

Front 7

majority holding of case

Back 7

no negligence towards the plaintiff.

liability is solely based on the relationship b/w the plaintiff and defendant.. therefore the defendant was negligent toward the passenger, but not palsgraf

liability is based on the existence of a relationship b/w a plaintiff and a defendant and therefore it must be based on foreseeability of harm to the person in fact injured

Front 8

dissent of other judges..

Back 8

-duty extends to protect society from unnecessary danger. everyone owes a duty to the world at large.

-liable to anyone in the realm of causation

-since the r.r didn't act with caution and someone got hurt, they are liable

this dissent has prevailed and is common law.

Front 9

restatement of torts 435 (1)

Back 9

The fact that the negligent defendant neither foresaw or could have foreseen the extent of the harm or the
manner in which it occurred does not prevent him from being liable.

Front 10

restatement of torts 435 (2)

Back 10

Hindsight foreseeability – defendant is relieved of liability only if looking back from the harm to the
defendant’s negligent conduct, it appears to the court “highly extraordinary” that the negligent act should have
brought about the harm.

Front 11

Intervening Cause

Back 11

Given that the defendant is negligent, the injury may occur as a result of a later independent cause

Front 12

Superseding Cause

Back 12

Breaks the chain of causation from the original defendant.

Front 13

hindsight foreseeability

Back 13

determines the superseding of negligence

Must ask if it is highly extraordinary that the intervening cause created the injury.

Intentional/Criminal conduct by a 3rd party may be superseding.

Most intervening causes are later negligence of a 3rd party, usually not a superseding cause.

Front 14

contributory negligence

Back 14

Defendant was negligent, but the plaintiff was negligent as well.

If the plaintiff fails to exercise reasonable care, than it excuses the defendant all together from liability

This is an objective test

Front 15

complete bar

Back 15

when the plaintiffs contributory negligence is large enough that the defendant who would
otherwise be liable to the plaintiff for negligence now is not

Front 16

affirmative defense

Back 16

The defendant has the burden to introduce evidence which shows that the defendant
was not liable.

Assumption of risk (below) is also an affirmative defense.

Both contributory negligence and assumption of risk heavily favored the defendant, not the plaintiff.

Front 17

Assumption of Risk

Back 17

Plaintiff knowingly proceeded in the face of a known danger created by the defendant’s negligence.

Assumption of risk rests on the plaintiff’s consent (implied or expressed) to encounter a known unreasonable danger created by the defendant’s conduct.

If he or she is acting unreasonably, the conduct constitutes contributory negligence.

Front 18

subjective standard

Back 18

determines the assumption of risk

that is, did the plaintiff know, understand and appreciate the risk.

Front 19

Comparative Negligence

Back 19

Came about in 1960 to get rid of unfavorable treatment of plaintiff

Jury asked to compare the respective negligence of both parties. Determine on a percentage basis.

Front 20

pure

Back 20

Compare in all cases – stick by a jury’s percentages

Front 21

modified approach (50% approach)

Back 21

plaintiff recovers only if the plaintiff is less than 50% negligent.

If the plaintiff is 50% liable or more, he will receive nothing.

This makes people think that comparative negligence is contributory negligence all over again.

Front 22

premises liability

Back 22

Liability of a landowner/occupier (lessee) for injuries caused to third parties on land (Erie v. Tompkins

Front 23

traditional rule

Back 23

Liability based on the status of the plaintiff

Front 24

trespasser

Back 24

Person on the land without privilege or consent – willful and wanting.

Front 25

Duty Owed

Back 25

Cannot intentionally injure the trespasser, but otherwise, no liability

Duty to warn of any “latent defects”
By latent defects, we mean hidden, or not obvious, defects.

Front 26

Exception Doctrines – Attractive Nuisance Doctrine (Turntable Doctrine)

Back 26

Two characteristics

Artificial conditions on land (transmission tower, abandoned building)
Child trespassers (for plaintiff) usually 12 and under

If these conditions match, same rules apply as for invitee.

Front 27

Licensee

Back 27

Persons on the land with landowner’s consent (includes family members and social guests)

Once the licensee knows of the nature of the business or other activity conducted on the premises, he or she then
assumes the risk involved upon entering the premises.

Front 28

Invitee

Back 28

Broken up into Public Invitee and Business Invitee

Front 29

Public Invitee

Back 29

member of the public invited to enter/remain on the premises for the purpose that it’s held open to the public (eg library/museum patron).

Front 30

Business Invitee

Back 30

Person invited to remain on the premises to conduct business with the possessor of the property (eg. Wal-Mart patron).

Front 31

Duty owed to both

Back 31

Use reasonable care to make/keep the premises safe for the invitee’s presence.

Possessor must generally exercise reasonable care to protect invitees against both dangerous activities and
conditions from the trade or business. The possessor must give fair warning of these conditions.

Front 32

Modern Approaches

Back 32

Began in the late 1960’s, called to modernize standards

Traditional approach has been criticized as awkward, complex and mechanical in its application, and unduly protecting property interests at the expense of human safety.

Front 33

change proposed

Back 33

Scraps the three part standard, create duty of reasonable care on all standards.

Status of trespasser is one circumstance to factor in whether the conduct is what a reasonable person would do.

Front 34

Problem

Back 34

Threw out too much “Good Law”

Front 35

2nd approach

Back 35

Abolishes distinction between licensee and invitee. Reasonable care to all licensees and invitees.

Use existing common law rules for trespasser liability.

Some states adopted this ruling by statute (IL – Premises Liability Act).

Front 36

STRICT LIABILITY

Back 36

Liability in the absence of intent or negligence. Liability without fault (no fault tort). Still liable if you are 100% careful

Front 37

Abnormally Dangerous Activities

Back 37

An activity that is highly dangerous even when carefully performed and an activity which is not normally
undertaken.

Front 38

Ad Hoc determination case by case deriving from common law

Back 38

Blasting/Piledriving (dynamite a mine)

Storing Explosives, flammable liquids, dangerous chemicals/gas

Storing water in a dangerous place (Reicands v. Fletcher)

Generating/Disposing of toxic waste (NJ EPA v. Nentron)

Front 39

Strict Liability in Tort

Back 39

Restatement (2nd) of Torts Section 402 (A). This is the basis of product liability

Front 40

PRODUCTS LIABILITY

Back 40

The civil liability of a merchant seller for personal injury and property damage caused by goods sold.

Front 41

Relationship to Sale of Goods

Back 41

Goods Defined – Property Law (Real v. Personal)

personal property: either tangible or intangible, tangible leads to goods

Front 42

Sales Law Definition and Source

Back 42

Contract law derives from state common law

When goods are involved, we have a sales contract

Sales law comes from state statutes, hence sales law is governed by contracts.

Buyer sues seller on breach of contract, remedies under Article II.

buyer remedies: either
-buyer doesn't receive goods or
-buyer has goods, and they cause injury

Front 43

Warranty Law

Back 43

The buyer is the defendant, seller the plaintiff

The seller must be a merchant seller, meaning he must be a dealer in goods and those goods must be subject to a contract.

Note, these rules don’t apply to the casual seller - must be in the business of selling (no Ebay, Craig’s List).

Front 44

Introduction to Remedies and Breach of Warranty

Back 44

Types of Injuries Caused by Goods in the Buyer’s Possession

Front 45

General Measure of Damages

Back 45

Value of goods as warranted less value of goods as delivered – repair or replace.

Damages to goods themselves

Front 46

Commercial Consequential Damages

Back 46

Breach triggers a chain of events causing damage to this plaintiff and would not be suffered by the plaintiff
generally (General consequential damages definition).

Front 47

Hadley v. Baxendale

Back 47

recoverable if they were in the contemplation of both parties when the contract was made.

Front 48

consequential damages

Back 48

Personal Injury and Property Damage Proximately Resulting form Breach of Warranty - §2- 715(2)(b) – Products Liability Loss

Front 49

products liability

Back 49

Buyer may recover for personal injury or property damages proximately resulting from any breach of warranty.

1. Products Liability cases usually involve massive sums of money which lead to bankruptcy.
2. Product liability plaintiffs are usually dead, essentially the plaintiffs are the estates of the victim.

Front 50

Theories of Products Liability

-Traditional Theory

Back 50

Caveat emptor – Let the buyer beware. Up to the buyer to determine if the product is safe.

1. This theory insulated the defendant from liability.
2. It also externalizes costs on to the public.

Front 51

-Modern Theories

Back 51

Forces sellers to internalize costs and pay for damages. Current law liability as a business expense (enterprise liability).

1. Negligence – Sellers negligence leads to a defective product and injury.
2. Breach of Warranty - §2-715(2)(b) – This portion is strictly statutory.
3. Strict Liability in Tort – Restatement (2nd) of Torts (1964) §402(a) – Based on state common law

Front 52

Notes on Modern Theories of Recovery

Back 52

1. Plaintiff can sue and recover on any of the three above theories.
2. Suing for economic injuries only on a breach of warranty case.
3. Products Liability law is governed by both contract law and tort law.
4. Both statutory and common law – products liability is state common law, but it is also civil law. No one goes to jail for products liability.

Front 53

Privity

Back 53

Tells you who the plaintiffs are – Relationship between the parties to a contract.

Note – Lack of Privity is not a defense to the defendant under any theory

Front 54

Vertical Nonprivity Plaintiff

Back 54

Buyer of goods later in the chain of distribution from the defendant seller.

Front 55

Horizontal Non-Privity Plaintiff

Back 55

1. Non-buyer injured by the goods
2. Family members of buyers, users (not owners), of goods and bystanders.

Front 56

To Whom Duty Owed
– Rule of McPherson v. Buick Motor (1916)

Back 56

Recall that to be negligent, the defendant must meet the following criteria.

1. Duty not to be negligent
2. Duty not to breach contract
3. Proximately caused injury from negligence.

Front 57

Duty May be Breached in

Back 57

Prove that the seller failed to exercise reasonable care with respect to some aspect of the product causing the injury

Front 58

Design Defect

Back 58

occurs at the white collar level (engineers, marketers, executives etc).

1. Product put on the market although there is a likelihood of a defect.
2. Negligent because for what is dangerous, a reasonable person would not put the product on the market.
3. Led to safety improvements within products (eg. Cars).

Front 59

Manufacturing Defect

Back 59

Negligence occurs on the factory floor (Blue Collar Fact Pattern)

1. Product fails to meet the manufacturers own specifications.
2. Negligence of factory worker and management of factory.
3. Failure of quality control
4. Nothing wrong with process, the process just was not followed.

Front 60

Warning

Back 60

Make sure customer knows that a product is safe when used in the right manner.

1. It is a duty of a firm to warn the customer.
2. The main question for juries is whether or not the warning was communicated properly.

Front 61

Disadvantages of Negligence Action as Basis for Products Liability Recovery

Problems of Plaintiff’s Proof

Back 61

Proof of negligence is in the sole control of the defendant

It can be difficult to prove defendant’s negligence on a particular instance. (eg defendant cannot remember if he forgot to tighten 1 of 800 bolts).

Front 62

Res Ipsa Loquitor

Back 62

The thing speaks for itself – Allows jury to infer negligence without direct proof if.
a. Accident is of a type that does not occur in the absence of negligence.
b. Product causing the injury was at all times within the defendant’s exclusive control.
c. Other responsible causes have been eliminated by the evidence.

Front 63

Limited Class of Defendants

Back 63

Not a basis for recovery against persons of distribution from negligent defendant. This theory eliminates down stream liability to sellers

Front 64

Defenses of Negligence

1. Comparative Negligence

Back 64

Pure or Modern Theory

Front 65

2. Assumption of Risk

Back 65

Complete bar to recovery for plaintiff.

Front 66

Introduction to Warranty

Back 66

Sellers liability for goods accepted by the buyer. Goods fail, the buyer sues seller for breach of contract.

Front 67

Warranty

Back 67

the entire obligation of the seller

Front 68

Sales Contract

Back 68

seller obligated to deliver goods, buyer pays $$.

Everything the seller is obligated to do is warranty.

Front 69

warranty continued

Back 69

3. Any statement or representation made by the seller or imposed by law concerning the quality, characteristics,
capabilities and ownership of the goods sold.
a. Goods conform to representation
b. If the goods do not conform, this is a breach of warranty to the plaintiff.

4. Note that all contract liability is strict liability, intent/fault of seller is irrelevant. Hence, there is no negligence with warranties, only statute law.

Front 70

Nature of Liability

Back 70

ALWAYS STRICT LIABILITY according to statute law in the UCC.

Front 71

Express Warranty

Back 71

Any affirmation of fact or promise relating to the goods that becomes part of the basis of the bargain, creates
an expressed warranty that the goods will conform with the following:

1. The affirmation or promise. This does not apply to statements of opinion on the product.
2. What you order must meet the description to what you receive. Goods must conform to description
3. The sample or model of the product.

Front 72

express cont..

Back 72

There is no requirement that the seller use language such as “warrant,” “warranty,” or “guarantee.” Also not required that the seller know or intend the warranty.

Front 73

Implied Warranty

Back 73

Arise from operations of law. Imposed through warranty of merchantability and fitness

Front 74

Merchantability

Back 74

Requires that the goods sold meet minimum quality standards

Front 75

Merchantability cont.

Back 75

A merchant seller is a person or business that deals in the goods of the kind sold.

Front 76

Fitness

Back 76

Based on negotiated aspects of a contract not fitting for the particular purpose of a product.

Front 77

Title

Back 77

When you sell goods, you warrant that you actually own them (no stolen goods).

Front 78

kinds of merchantability

Back 78

1. Casual seller doesn’t give a warranty (eg. Seller through Ebay or Craig’s List).

2. Contents (2-314(a)) – To be merchantable, the goods must meet the following requirements:
a. Must pass without objection in the trade under contract description. What seller says is unanimous with rest of the division’s sellers (2A)
b. Goods must be fit for the ordinary purposes for which goods are used (recover under 2-715(2)(b) (2C)

Front 79

Advantages of Breach of Warranty Action as a Basis for Products Liability Recovery

Back 79

i. There is no need to prove the negligence of the defendant.
ii. Provides a basis for recovery v. sellers later in the chain of distribution.

Front 80

Disadvantages of Breach of Warranty Action as a Basis for Products Liability Recovery
– Summary of Contract-Based Defenses.

Back 80

The buyer must promptly notify the seller or be barred from any remedy.

Front 81

Reasonable assumption

Back 81

the longer you have the product, the more likely the defect is caused by the plaintiff.

1. This poses a problem for products liability cases because the plaintiffs are usually dead. Tough to recognize what actually happened.

2. Filing a lawsuit is a sufficient notice of a defect.

3. Disclaimer 2-719 – Now the seller can limit his liability through disclosure. Still hurts the buyer in product liability because product still causes death.

Front 82

Privity

Back 82

Liability extends horizontally and vertically to all reasonably foreseeable plaintiffs. Enacted with three options:
1. (IL) Vertical privity to immediate buyer from seller

2. Horizontal privity limited to natural persons in family or household of buyer or guest of buyer.

3. Negligence tests in 1⁄2 of the states.

Front 83

Development of Doctrine

Back 83

Adopt a theory of warranty regarding strict liability as common law doctrine. Borrow article 2 and apply it to common law doctrine. Can choose which parts of article 2 to use.

Front 84

Greenman v. Yuba Power Products

Back 84

-greenman was a handyman, wanted shopsmith for workshop
-shopsmith advertised certain safety features, brochure falsely advertised it.
-greenman was hurt from use of the product
-breach of warranty 2-313 to 2-715(2)(B)
-extended the article to common law doctrine, greenman won the case

Front 85

Basis of Doctrine

Back 85

Purpose of liability is to ensure that liability is on the manufacturer.

Front 86

Enterprise Liability

Back 86

Policy decision by courts in deciding where loss should be allocated (to mfgr).

Front 87

Restatement (Second) of Torts §402A - Content (1964)

Back 87

i. Adopted Greenman rule and put it in the restatement 402A of torts. 95% of states use 402A to resolve disputes

Front 88

Defendant

Back 88

merchant seller who is liable to plaintiff = user/consumer of product (1964)

1. All reasonably foreseeable plaintiffs are eligible to receive remedy.
2. Defendant is liable for personal injury and property damage caused by a product sold in defective condition that becomes “unreasonably dangerous” (defective product).

**Certain conduct is no defense to the defendant**

Front 89

Lack of Negligence

Back 89

no contributory negligence involved

Front 90

Lack of privity

Back 90

extends for both horizontal and vertical privity

Front 91

Elements of Strict Liability Claim

Back 91

Shortens up into the three following fact patterns:
1. Product Defective
2. Product Defective when left seller’s control
3. Defect caused the injury – Straight proximate causation of fact (chapter 5 principals)

Front 92

Product Defective

Back 92

1. Jury decides the question of fact as to whether or not the product is defective

Front 93

Consumer Expectation Test (402A and comments to it)

Back 93

product is defective if it fails to perform in the manner
reasonably to be expected in light of its nature and intended function (defective doesn’t mean dangerous).

Front 94

consumer expectation test continued

Back 94

a. Meaning – Product is more dangerous than a reasonable consumer would expect.
b. Jury determines what the product did an compares it to what the product is supposed to do.
c. If there is a difference in expectation, than the defendant is liable.
d. This is a good metric for manufacturing defects, but design defects are much more difficult to enforce.

Front 95

Risk-Utility Test

Back 95

Product is defective if the benefits of the challenged design do no outweigh the risks of injury inherent in that design.

a. Adds another test to defective products, but isn’t an alternative to the former.
b. Dart case gives a good example of this test.
c. This test is basically negligence. Given facts, would a reasonable engineer market this product/design?

Front 96

Reasonable alternative design

Back 96

someone else designed the product at the same cost and with less risk but the
same utility.