Final Torts

Front 1

Negligence per se statute must be:

Back 1

1) safety statute
2) aimed at protecting class including plaintiff
3) protective of type of harm that occured

Front 2

Res ipsa 3 conditions

Back 2

doesn't nortmally occur without negligence, exculsive control, and no voluntary controbution by plaintiff

Front 3

3 elements of Res Ipsa

Back 3

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

Front 4

what if many people control instrumentalities?

Back 4

test has become one of right of control rather than actual control

Front 5

why have a Zone of Danger test for ED claims?

Back 5

1.it is provable
2.liability should protect personal space.
3.it recognizes the objective reality of fear (which trades on the original policy)

Front 6

Emotional distress Rhetorical strategies:

Back 6

Plaintiff
The monster is under control
Defendant
The monster is out of control

Front 7

what’s the problem with the meritorious proxies

Back 7

when the proxy becomes more important than the merits then common law tests should not be followed.

Front 8

Portee plaintiff can recover for ED w/o personal safety risk for watching close one suffer when

Back 8

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)

Front 9

What do you argue when Statistics might be attributable to chance

Back 9

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.

Front 10

what are the Common law categories of Joint and several liability (provided it hasn't been modified in the jurisdiction)

Back 10

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.

Front 11

what’s the Policy behind J/S liability:

Back 11

The goal is that defendants "as a class" bear the costs rather than plaintiffs "as a class"

Front 12

What if it is impossible to recover from one of the defendants for whatever reason (insolvent, immune, etc.)

Back 12

Theories:
i.Plaintiff eats it.
ii.Unpaid damages are reapportioned equally, or proportionally

Front 13

Hymowitz Tests to apply Market share theory:

Back 13

Fungibility:
Product is completely fungible (interchangeable)
Equivalent risk:
Products must all pose the exact same risk of harm (filtered cigarettes)

Front 14

4 tests for Proximate cause:

Back 14

•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?

Front 15

what if someone is “negligent” and that makes it easier for someone else to commit a tort? Does # 1 have any liability?

Back 15

If the intervening cause is reasonably foreseeable than defendant #1 is still liable.
If not, then def. # 1's liability is superseded

Front 16

Kinsman Transmit

Back 16

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)

Front 17

what does Primary implied AOR mean as a defense?

Back 17

there is no duty—it can’t stretch that far.

Front 18

what does secondary implied AOR mean as a defense?

Back 18

it is a damage reducer according to normal comparative negligence measures

Front 19

what does secondary implied AOR mean as a defense?

Back 19

it is a damage reducer according to normal comparative negligence measures

Front 20

3 MacPherson tests for allowing strict liability without privity

Back 20

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)

Front 21

what are the two defective design tests?

Back 21

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)

Front 22

The manufacturer only has a duty to warn about

Back 22

"Latent" not "patent" defects

Front 23

Patent dangers must be

Back 23

designed around if feasible

Front 24

What are factors in determining whether a warning is adequate?

Back 24

It must be reasonable:
balancing understandability,
prominence,
sufficiency with burden of interfering with communicative impact (burden clutter) and scare factor

Front 25

2 Exceptions to the learned intermediary exception:

Back 25

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

Front 26

what are two ways for manufacturers can get around liability:

Back 26

a.Design around it
b.Warn around it

Front 27

you can only warn around a danger if

Back 27

designing around it is unreasonable

Front 28

If you can't get around the danger by design or warning, then the product is

Back 28

irreducibly unsafe.

Front 29

name two main kinds of irreducibly unsafe products:

Back 29

prescription drugs and Exploding cigars