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29 Cards in this Set

  • Front
  • Back
Negligence per se statute must be:
1) safety statute
2) aimed at protecting class including plaintiff
3) protective of type of harm that occured
Res ipsa 3 conditions
doesn't nortmally occur without negligence, exculsive control, and no voluntary controbution by plaintiff
3 elements of Res Ipsa
1.Accident is the kind that doesn't ordinarily occur without negligence
2.Caused by an instrumentality within the exclusive control of the defendant
3.Not due to any voluntary contribution on part of the plaintiff
what if many people control instrumentalities?
test has become one of right of control rather than actual control
why have a Zone of Danger test for ED claims? is provable
2.liability should protect personal space. recognizes the objective reality of fear (which trades on the original policy)
Emotional distress Rhetorical strategies:
The monster is under control
The monster is out of control
what’s the problem with the meritorious proxies
when the proxy becomes more important than the merits then common law tests should not be followed.
Portee plaintiff can recover for ED w/o personal safety risk for watching close one suffer when
i.Suffering is caused by negligence
ii.A marital or intimate familial relationship
1.Residing in the same household
2.No bright line between married/unmarried partners--rather the nature of the relationship.
iii.Observation of the accident rather than hearing about it from someone else.
iv.Severe emotional distress
1.Somewhere between disinterest and freaking out (top 292)
What do you argue when Statistics might be attributable to chance
but unless the spike falls outside of the standard deviation from the mean, it is considered attributable to chance. If it does fall without that "usually 10 give or take 5" limit, then it is probable that there was an outside cause (this is a "greater than chance" variation.
what are the Common law categories of Joint and several liability (provided it hasn't been modified in the jurisdiction)
i.Acting in concert
1.multiple parties agree on breaching their duty--even if only one of them ends up causing damages
2.Drag racing example
ii.Independent acts combining to produce an indivisible injury
1.The plaintiff cannot say "I wouldn't have been injured in this way but for this defendant" because it is impossible to know.
what’s the Policy behind J/S liability:
The goal is that defendants "as a class" bear the costs rather than plaintiffs "as a class"
What if it is impossible to recover from one of the defendants for whatever reason (insolvent, immune, etc.)
i.Plaintiff eats it.
ii.Unpaid damages are reapportioned equally, or proportionally
Hymowitz Tests to apply Market share theory:
Product is completely fungible (interchangeable)
Equivalent risk:
Products must all pose the exact same risk of harm (filtered cigarettes)
4 tests for Proximate cause:
•Was the conduct of the defendant is a substantial factor
•Was it a harm foreseeable within the risk?
•Is the harm of the same general type that other harms within the risk?
•Has the negligent act altered the background risk profile of the actual harm that occurred?
what if someone is “negligent” and that makes it easier for someone else to commit a tort? Does # 1 have any liability?
If the intervening cause is reasonably foreseeable than defendant #1 is still liable.
If not, then def. # 1's liability is superseded
Kinsman Transmit
the defendant shouldn't get off when reasonable care against harms within the risk would have prevented harms of the same general sort.
Same general sort: maritime related damages (boats, docks, riverfront property, etc)
what does Primary implied AOR mean as a defense?
there is no duty—it can’t stretch that far.
what does secondary implied AOR mean as a defense?
it is a damage reducer according to normal comparative negligence measures
what does secondary implied AOR mean as a defense?
it is a damage reducer according to normal comparative negligence measures
3 MacPherson tests for allowing strict liability without privity
a.Failure to inspect
b.Knowledge that it poses a probable danger
c.Knowledge that the product will be used by people other than the buyer (3rd parties)
what are the two defective design tests?
1. Consumer expectations: plaintiff needs enough evidence about the accident to show that the product didn't perform (doesn’t usually involve experts)
2.Risk Benefit: defendant needs to show the jury that there isn't a B<PL feasible RAD (much more specialized information required)
The manufacturer only has a duty to warn about
"Latent" not "patent" defects
Patent dangers must be
designed around if feasible
What are factors in determining whether a warning is adequate?
It must be reasonable:
balancing understandability,
sufficiency with burden of interfering with communicative impact (burden clutter) and scare factor
2 Exceptions to the learned intermediary exception:
1. Mass immunizations
i.Because there is no adequate patient/doctor contact
2.When the FDA mandates that a warning be given to the consumer
i. Usually contraceptive drugs and devices, but also prescription drugs
what are two ways for manufacturers can get around liability:
a.Design around it
b.Warn around it
you can only warn around a danger if
designing around it is unreasonable
If you can't get around the danger by design or warning, then the product is
irreducibly unsafe.
name two main kinds of irreducibly unsafe products:
prescription drugs and Exploding cigars