Law

Front 1

Trespass to Chattel:

Back 1

- Volitional act
- Intentional interference with chattel
- That interferes with the possession or harms the chattel
- DAMAGES - Compensatory

Front 2

Conversion:

Back 2

- Volitional act
- Intentional exercise of dominion or control over chattel
- That results in a substantial deprivation of the usefulness of economic value of the chattel
- DAMAGES - Full value

Front 3

Trespass to land: Prima Facie Case

Back 3

i. Interference with rights of possessor of land
1) TANGIBLE invasion
2) By an actor
a) Actor, OR
b) Other persons, animals, mechanized devices, or natural or artificial substances for which the actor is responsible
3) Of property possessed by another
4) IRRELEVANT
a) Whether the actor took reasonable care to prevent

Front 4

a. Trespass to land: Prima Facie Case

Back 4

ii. Prima Facie Case:
1) Actor
2) Intent - set out to make contact with the land
3) Result - contact was made

Front 5

Policy for Trespass to Land

Back 5

Policy Issue - The "harm" is preventing the right to exclude others --> the bundle of rights.

Front 6

Damages for Trespass to Land

Back 6

Damage Award, even if nominal, allows P to exercise right to exclude.

Front 7

Trespass to Land - What constitutes physical invasion?

Back 7

a physical contact can be on, above or below the land

Front 8

Trespass to Land Defenses

Back 8

Consent Doctrine - can be withdrawn, must remain w/in consent.
Necessity - imminent threat and reasonable actions
- Personal
- Public
NOT mistake, even if reasonable

Front 9

Necessity Defense

Back 9

- imminent threat, and
- reasonable actions

Front 10

Vincent v Lake Erie

Back 10

Big storm. Boat docked. Owner of boat tied it to the dock. Trespass is here - intend to make contact, did make contact. The boat owner says - it was NECESSARY for me to tie the boat. $500 damage to the dock.
What do you have to show?
- Imminent threat?
- Were actions reasonable?
The landowner cannot exclude because the necessity faced by the trespasser is deemed to override the property owners interest in making reasonable efforts to exclude.

Front 11

Necessity - What's owed if there are damages?

Back 11

compensatory damages

Front 12

Necessity - Why does court allow compensatory damages?

Back 12

So that it will create an incentive for fairness - so the property owner would understand that he will be made whole.

Front 13

Necessity - Privilege

Back 13

It is a privilege because the necessity faced by the defendant is deemed to override the property owner’s right to take reasonable measures to expel an unpermitted entrant onto its property.

Front 14

Necessity - Incomplete Privilege

Back 14

It is an incomplete privilege because the defendant must nonetheless compensate the property owner for damage caused to the property.

Front 15

Trespass to Chattel

Back 15

Intentional act, interference with a person's property (dispossession; harm), interferes with property's value.

Front 16

Is it Trespass to Chattel or Conversion? FACTORS:

Back 16

- Extent and duration of control
- Resulting harm (REQUIRES HARM - this is different from Trespass to land)
- Inconvenience and expense

Front 17

Trespass to Chattel and Conversion Defense

Back 17

- Consent
- NOT mistake, even if reasonable
- NOT good faith

Front 18

Trespass to Chattel - Damages

Back 18

○ Actual harm
○ Deprivation
○ Compensatory damages
§ Cost of repair, or
§ Loss of use value
§ Possibly punitive damages

Front 19

Trespass Defense - Consent Considerations

Back 19

- Temporal - time based scope
- Geographical - location based scope
- If the trespasser actually and reasonably believes that the owner has given consent (induced)

Front 20

What's a Wild Animal?

Back 20

wild nature and disposition
non-domesticated

Front 21

What's a domesticated animal?

Back 21

used in the service of man

Front 22

Livestock Liability

Back 22

If livestock gets loose and cause property damage, liable, even w/ due care.

Front 23

Strict Liability - Animals - who can be sued?

Back 23

Owner, possessor, harborer

Front 24

Definitions: "dangerous and vicious propensity"

Back 24

means any dog that without provocation has attacked or bitten a person or persons on two (2) separate occasions within a twelve (12) month period. (Georgia)

Front 25

"unprovoked"

Back 25

means that a dog was not teased, tormented, or abused by the person bitten or attacked.

Front 26

Ultrahazardous activity:
Restatements (second) 520 - FACTORS:

Back 26

Balancing test - you take the factors w/ the circumstances, but do not have to establish all of them:
a. existence of a high degree of risk
b. Likelihood that the harm that results will be great (# of injured; seriousness of injured)
c. Inability to eliminate the risk by the exercise of reasonable care
d. Extent to which the activity is not a matter of common usage (custom commonly great mass of people, many in the community)
e. Inappropriateness of the activity to the place where it is carried on, AND
f. Extent to which its value to the community is outweighed by its dangerous attributes

Front 27

Ultrahazardous activity:
Strict Liability Policy Rationale

Back 27

to protect the innocent bystander
**There is NO BREACH element**
- The activity is inherently dangerous

Front 28

Ultrahazardous activity:
Restatements (third) Abnormally Dangerous 20(d) - RULE

Back 28

1) Creates a *foreseeable* and *highly significant risk* *of physical harm* *even when reasonable care is exercised* by all actors; and
2) Is *not of common usage*

Front 29

Impacts of differences between Rest 2nd and Rest 3rd

Back 29

- Eliminates E and F.
- Adds foreseeability.
- Creates a RULE vs FACTORS

Restatements third - gives greater balance to the interests of P and D - and creates more predictability.

Front 30

Products Liability: Prima Facie Case

Back 30

Actor A is subject to liability to person P in products liability if:

- P has suffered and injury
- A sold a product
- A is a commercial seller of such products
- At the time it was sold by A, the product was in a defective condition, AND
- The defect functions as an actual proximate cause of P's injury

Front 31

Guidelines for what constitutes a "product:"

Back 31

- Real property - NOT a product (land, homes, buildings, etc - EXCEPT - MGF homes)
- Human body parts NOT
- Animals and Livestock NOT (EXCEPT - context --> dog sold w/ disease OK, not dog that bites)
- Textual material (NOT books, etc EXCEPT - Maps could be)
- Intangibles such as electricity and xrays usually are not but could be
- Used products usually not
- Some products are exempted in some jurisdictions (Rx)

Front 32

Emergence of Products Liability
Escola v Coca Cola Bottling, Co.

Back 32

Justice Traynor (concurring) - advocates for strict liability. If you have a product and it hurts someone, then the maker should be strictly liable.

Front 33

Emergence of Products Liability

Back 33

precedent, fairness, deterrence, & compensation
○ Precedent
§ When a product harms someone we have remedies
□ Warranty - limited at the time to the direct buyer for the product
□ Criminal - food manufacturer can be held criminally liable
○ Fairness
§ Fault is too difficult to prove
□ Manufacturer has money and insurance
□ The average consumer can't inspect products, too advanced (mass production)
○ Deterrence
§ Promotes safe products
○ Compensation
§ Achieves better loss-spreading

Front 34

Products Liability
Prima Facie Elements:

Back 34

○ P suffered an INJURY
○ D SOLD a PRODUCT
○ D is a COMMERCIAL SELLER of such products
○ AT THE TIME IT WAS SOLD by D, the product was in a DEFECTIVE CONDITION, and
○ Defect was the ACTUAL and PROXIMATE CAUSE of P's injury

**All defined very similarly - restatement 2d and 3d - elements commonly shared**
**There is no duty & breach**

Front 35

Products Liability:
What's compensated?

Back 35

- Economic Loss Rule - can't get damages for the product itself (that's covered under contract/warranty)
- Physical harm -> person or property

Front 36

Products Liability:
Who can sue?

Back 36

reasonably foreseeable plaintiff (consumer, user, exposed)

Front 37

Products Liability:
Three types of claims

Back 37

- Manufacturing defect - flaw in this particular unit
- Design defect - flaw in the product line
- Failure to warn - flaw in information

Front 38

Products Liability:
Who can be sued?

Back 38

Everyone who falls in the *chain of distribution.* Even mom and pop (deterrence)

Front 39

The principal justifications advanced for strict products liability are:

Back 39

(1) negligence is often too difficult to prove;
(2) res ipsa loquitur has been stretched to nearly this point anyway;
(3) strict liability can be accomplished already through a series of actions for breach of warranty;
(4) strict liability provides needed safety incentives;
(5) the manufacturer is the one best able to either prevent the harm or insure or spread the cost of the risk; and
(6) the manufacturer of a product by placing it on the market induces justifiable consumer reliance on the expectation of the product's safety, and since reputable manufacturers do in fact stand behind their products all should do so.

Front 40

Products Liability:
Restatement (Second) Torts:
§ 402A Special Liability of Seller of Product for Physical Harm to User or Consumer

Back 40

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

Front 41

Products Liability:
Restatement (Third) Torts:
§ 1 Liability of Commercial Seller or Distributor for Harm Caused by Defective Products

Back 41

§ 1 Liability of Commercial Seller or Distributor for Harm Caused by Defective Products
One engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect.

Front 42

Products Liability:
Restatement (Second) Torts - LIMITATIONS

Back 42

The Institute expresses no opinion as to whether the rules stated in this Section may not apply
(1) to harm to persons other than users or consumers;
(2) to the seller of a product expected to be processed or otherwise substantially changed before it reaches the user or consumer; or
(3) to the seller of a component part of a product to be assembled.

Front 43

Products Liability:
Restatement (Second) Torts - DEFECTIVE CONDITION

Back 43

The rule stated in this Section applies only where the product is, at the time it leaves the seller's hands, in a *condition not contemplated by the ultimate consumer,* which will be unreasonably dangerous to him. The *burden of proof* that the product was in a defective condition at the time that it left the hands of the particular seller *is upon the injured plaintiff*; and unless *evidence* can be produced which will support the conclusion that it was then defective, the burden is not sustained.

Front 44

Products Liability:
Restatement (Third) Torts
§ 2. Categories of Product Defect

Back 44

A product is defective when, at the *time of sale* or *distribution,* it contains a *manufacturing defect,* is *defective in design,* or is defective because of *inadequate instructions or warnings.*

Front 45

Products Liability:
Restatement (Third) Torts
§ 2. Categories of Product Defect - MANUFACTURING

Back 45

A product (a) contains a manufacturing defect when the product *departs from its intended design* even though all possible care was exercised in the preparation and marketing of the product

Front 46

Products Liability:
Restatement (Second) Torts - UNREASONABLY DANGEROUS

Back 46

That is not what is meant by “unreasonably dangerous” in this Section. The article sold must be dangerous to an extent *beyond that which would be contemplated by the ordinary consumer* (CONSUMER EXPECTATION TEST) who purchases it, with the ordinary knowledge common to the community as to its characteristics.

Front 47

Products Liability: ELEMENTS
Restatement (Third) Torts

Back 47

A - Injury
B - D sold product
C - D is commercial seller
D - Defect existed at the time of sale
E - Actual causation (But for...)
F - Proximate cause (Foreseeable plaintiff... buyer, consumer, bystander)

Front 48

Products Liability:
Restatement (third) - Categories of product defect

Back 48

- manufacturing defect,
- defective in design, or
- defective because of inadequate instructions or warnings.

Front 49

Products Liability:
Foreseeability

Back 49

Foreseeable plaintiff,
Foreseeable harm

Was the product being used in foreseeable or intended manner?

Front 50

Products Liability:
Restatement (Second) Torts:

CONSUMER EXPECTATIONS TEST - Critique

Back 50

• ordinary consumers are in no position to judge whether the design is defective because of the complexity of the design.
• too much leeway without an adequate understanding of the cost-benefit tradeoffs.
• even if the product meets consumer expectations the product is still defective because there is alternative safer design at a reasonable cost with no loss

Front 51

Products Liability:
Restatement (Second) Torts: TEST

Back 51

CONSUMER EXPECTATIONS TEST:
Is the product more dangerous than an ordinary consume would expect it to be?

Front 52

Products Liability:
What doesn't work under consumer expectation?

Back 52

• complex
• specialized
• new process

Front 53

Products Liability:
When do you use consumer exp test vs prudent mfg test (risk utility)?

Back 53

• complexity of the product
• what do ordinary consumers expect (and can a customer reasonably have an expectation).
• prudent mfg test - will often be the only appropriate means for establishing the unreasonable dangerousness of a complex product about which an ordinary consumer has no reasonable expectation.

Front 54

Products Liability:
Consumer Expectation Test

Back 54

• P is required to produce evidence of the objective condition(s) of the product that fails to meet consumer expectations
• this entails a showing by P that PROLONGED USE, KNOWLEDGE or FAMILIARITY of the product's performance sufficient to allow consumers to form reasonable expectations about the product's safety.

Front 55

Products Liability:
Risk Utility Test (Design Defect)

Back 55

Risk associated with current & alternative design:
• the magnitude and probability of the foreseeable risks of harm
• the instructions and warnings accompanying the product, and the nature and strength of consumer expectations regarding the product, including expectations arisng from product portrayal and marketing.

Utility associated with current and alternative design
• the relative advantages and disadvantages of the product as designed and as it alternatively could have been designed may also be considered

Front 56

Products Liability:
Design Defect Tests

Back 56

- Consumer Expectation
- Risk Utility (Rest 3rd)

Front 57

Products Liability:
Proving Design Defect

Back 57

- P may pursue his or her case under the consumer expectation test under Jackson; or
- P must prove that a reasonable alternative design reduces or avoids foreseeable risks of the product at issue using risk utility under the Restatement(3rd)

Front 58

Products Liability:
Consumer Expectations Test: BIG ISSUE

Back 58

- Does it meet consumers expectation?

Front 59

Products Liability:
Consumer Expectations Test: P's REQUIREMENTS

Back 59

- P is required to produce evidence of the objective condition(s) of the product that fails to meet consumer expectation.
- The entails a showing by P that prolonged use, knowledge or familiarity of the product's performance is sufficient to allow consumers to form reasonable expectations about the product's safety.

Front 60

Products Liability:
Restatements (Third) Torts - DESIGN DEFECT DEF

Back 60

- A design is defective when a reasonable alternative design would have reduced or avoided the foreseeable risks of harm posed by the product design at issue

Front 61

Products Liability:
Restatements (Third) Torts

Risk associated with current and alternative design:

Back 61

- Magnitude and probability of the foreseeable risk of harm
- The instructions and warnings accompanying the product, and the nature and strength of consumer expectations regarding the product, including expectations arising from product portrayal and marketing.

Front 62

Products Liability:
Restatements (Third) Torts

Utility associated with current and alternative design

Back 62

- The likely effects of the alternative design on production costs;
- The effects of the alternative design on product longevity, maintenance, repair and esthetics;
- And range of consumer choice among products are factors that may be taken into account.

Front 63

Products Liability:
Failure to Warn

Back 63

Informational Defects
- Which risks require a warning?
- To whom must the warning be provided?
- Is the warning adequate?
- Actual cause

Front 64

Products Liability:
Failure to Warn

Which risks require a warning?

Back 64

Which risks require a warning?
- Risks that are known or knowable in light of recognized and prevailing scientific knowledge at time of sale
or distribution
- Obvious danger - risks that are obvious to a reasonable purchaser or user do not require a warning.

Front 65

Products Liability:
Failure to Warn

Is the warning adequate?

Back 65

- Content of the warning, comprehensibility and its placement;
- Nature of the risks posed by the product; and
- Are those risks adequately defined and communications to the foreseeable purchaser and users

Front 66

Products Liability:
Failure to Warn

Who do you have to warn?

Back 66

- General Rule:
○ Foreseeable purchaser or user
- General Exception
○ Rx drugs: learned intermediary doctrine duty to warn runs to the physician not the patient
- Exception to the Exception:
○ Direct-to-customer advertising
○ Sometimes if can show that the warning is insufficient to help to reduce harm by instructions

Front 67

Products Liability:
Failure to Warn

Actual cause

Back 67

"heeding presumption" the court will presume that the P would have read and followed an adequate warning or instruction had it been given.

However, can argue that P wouldn't have followed even if read.

Front 68

Emotional Distress:
IIED PRIMA FACIE ELEMENTS

Back 68

- D's conduct was "extreme and outrageous"
- D acted intentionally or recklessly; and
- P suffered severe emotional distress

Front 69

Emotional Distress:
IIED

How is the intent defined?

Back 69

- With purpose and/or substantial certainty
- Substantial certainty - high degree of knowledge that the result will occur
- Reckless - deliberate disregard of a high degree of probability that emotional distress will follow (you know that there is a high degree of risk of the outcome, but you act anyway)
(1) D desires to cause P emotional distress;
(2) D knows with substantial certainty that P will suffer emotional distress; and
(3) D recklessly disregards the high probability that emotional distress will occur.

Front 70

Emotional Distress:
IIED

How is extreme and outrageous conduct defined?

Back 70

- Extreme and outrageous conduct :
○ Goes beyond the bounds of decency
○ Regarded as atrocious and utterly intolerable in a civilized community
○ Restatement (second) S 46 (comment d)
- P must show that D’s conduct was extreme and outrageous. D’s conduct has to be “beyond all possible bounds of decency.”
○ Look at the relationship between the parties
○ Look at the severity of the conduct
○ Look at the frequency of the conduct

Front 71

Emotional Distress:
IIED

What must D's conduct cause?

Back 71

- Conduct causes severe emotional distress
- No reasonable man could be expected to endure it

P must suffer severe emotional distress. P must show at least that her distress was severe enough that she sought medical aid. Most cases do not require P to show that the distress resulted in bodily harm.

Front 72

Emotional Distress:
NIED - Claim

Back 72

- Physical injury --> "parasitic - "tack on" a claim for emotional harm
- Emotional harm only - impact rule, zone of danger

Front 73

Emotional Distress:
NIED - Impact Rule

Back 73

Requires minimal physical contact.

If there is minimal physical contact to P, then can make claim for NIED. No impact, no claim.

Front 74

Emotional Distress:
NIED - Zone of Danger

Back 74

§ D negligence places P in imminent physical peril
§ D is aware of the peril
§ Physical symptoms

No impact required.

Front 75

Emotional Distress:
NIED - Physical injury

Back 75

"parasitic - "tack on" a claim for emotional harm

If P suffers physical harm due to the negl of D, NIED claim can be made.

Front 76

Privacy Torts - 4 Subtorts

Back 76

- Intrusion upon seclusion
- Appropriation
- Publication of private facts
- Publicity Placing Person in a False Light

Front 77

Privacy Torts
Policy Rationale

Back 77

- Because they believe as the law has evolved, this should too
- Because *privacy is essential to humanity*

Front 78

Privacy Torts
Intrusion upon seclusion elements

Back 78

- Intentional intrusion (physical or otherwise)
- Upon the seclusion or solitude of another
- Highly offensive to a reasonable person

Front 79

Privacy Torts
Intrusion upon seclusion - Intent requirement

Back 79

Subjective intent - purpose, goal, desire, hope - substantial certainty

Front 80

Privacy Torts
Intrusion upon seclusion - Intrusion requirement

Back 80

Physical
With the senses
Hearing, seeing, etc
With or w/out mechanical device

Front 81

Privacy Torts
Intrusion upon seclusion - solitude or seclusion requirement

Back 81

Not in public
Don't have to share or publicize

Front 82

Privacy Torts
Appropriation Elements

Back 82

- one who intentionally appropriates to
- his own use or benefit
- the name or likeness of another

Front 83

Privacy Torts
Appropriation Elements - Intent

Back 83

Intentional Tort - substantial certainty, purpose.

Front 84

Privacy Torts
Appropriation Elements - Benefit element

Back 84

Benefit - monetary or social --> doesn't have to have a commercial value necessarily. Benefit is not necessarily just $.

Front 85

Privacy Torts
IIED: Third Party:
Ask these questions:

Back 85

1 - Did D direct extreme and outrageous conduct to a third party?
2 - Was P present when such conduct took place?
3 - Did D intentionally or recklessly cause P to suffer severe emotional harm?

**non-family members must also demonstrate bodily injury**

Front 86

Trespass to Land Recap

Back 86

Defendant must intend to enter land
ü but does not have to know, or have reason to know, that the land belongs to another
ü a reasonable mistake* is immaterial
ü entry can be ‘in person’, by a third party, or by a device or substance
ü or by refusing to leave or remove an object after consent is withdrawn
ü or by exceeding the scope of the consent
ü entry can occur below, on, or above the land
ü can be held liable without actual harm to the land

Front 87

Necessity Defense

Back 87

ü private interest
ü incomplete defense

Front 88

Trespass to Chattel

Back 88

ü volitional act
ü intentional interfere with chattel
ü that interferes with the possession or harms the chattel

Front 89

Conversion

Back 89

ü volitional act
ü intentional exercise of dominion or control over chattel
ü that results in a substantial deprivation of the usefulness or economic value of the chattel

Front 90

Trespass vs Conversion

Back 90

ü extent and duration of control
ü resulting harm
ü inconvenience and expense

Front 91

Animal – Wild vs Domestic

Back 91

• Wild
• Did the animal cause ∏’s injury?
• Strictly Liable
• Domestic
• Does the animal have a vicious or dangerous propensity?
• Did the ∆ know about the propensity of the animal to do the particular act that caused ∏’s injury?

Front 92

Abnormally Dangerous § 520:
Restatement 2nd

Back 92

a. existence of a high degree of risk;
b. likelihood that the harm that results will be great;
c. inability to eliminate the risk by the exercise of reasonable care;
d. extent to which the activity is not a matter of common usage;
e. inappropriateness of the activity to the place where it is carried on; and
f. extent to which its value to the community is outweighed by its dangerous attributes.

Front 93

Strict Liability: Abnormally Dangerous Activity
ELEMENTS

Back 93

• injury
• abnormally dangerous activity
• actual cause
• proximate cause
à rest. (second): strictly liable for the unexpected acts of: innocent, negligent or reckless of a third party; or forces of nature

• applies only to harm that is within the scope of the abnormal risk that is the basis of the liability.

Front 94

Abnormally Dangerous § 20 (d):
Restatement 3rd

Back 94

(1) creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors; and
(2) [is] not of common usage.

Front 95

Differences from the Restatement Second

Back 95

Factor (f) eliminated
• criticized for reintroducing a C/B/A analysis found in negligence
Factor (e) eliminated
• courts never decided an issue on this factor
Rule vs Factors

Front 96

Products Liability: Policy Rationales

Back 96

— Precedent - criminal liability for tainted food sales & warranty
— Fairness - fault is too difficult to prove
— Deterrence - promotes safe products
— Compensation - achieves better loss-spreading

Front 97

Products Liability: Prima Facie Elements

Back 97

— P suffered an injury
— D sold a product
— D is a commercial seller of such products
— at the time it was sold by D, the product was in a defective condition; and
— defect was the actual and proximate cause of P’s injury

Front 98

Outlining a Manufacturing Defect Claim

Back 98

— P suffered an injury
— D sold a product
— D is a commercial seller of such products
— at the time it was sold by D, the product was in a defective condition; and
— defect was the actual and proximate cause of P’s injury

Front 99

Analysis Steps: Manufacturing Defect

Back 99

1. Identify the Defect:
— (a) manufacturing defect
2. Apply the Appropriate Test:
— (a) Restatement (Second):
— (b) Restatement (Third):
• restatement (second)
o §402A
o consumer expectation test
• restatement (third)
o §2
o departs from intended design

Front 100

Manufacturing Defect
Restatement (Second)

Back 100

1. One who sells any product in a defective condition unreasonably dangerous to the user or consumer … is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
a. the seller is engaged in the business of selling such a product, and
b. it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
2. The rule stated in Subsection (1) applies although
a. the seller has exercised all possible care in the preparation and sale of his product, and
b. the user or consumer has not bought the product from or entered into any contractual relation with the seller

Front 101

Manufacturing Defect
Restatement (Third) § 2. Categories of Product Defect

Back 101

— A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings.
— A product:
(a) contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product

Front 102

Design Defect Tests

Back 102

(a) consumer expectation test
(b) restatement (third)

Front 103

Design Defect
Restatement 2nd - Consumer Expectations Test

Back 103

1. One who sells any product in a defective condition unreasonably dangerous to the user or consumer… is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
a. the seller is engaged in the business of selling such a product, and àcommercial seller
b. it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. à defect existed at the time of sale
2. The rule stated in Subsection (1) applies although
a. the seller has exercised all possible care in the preparation and sale of his product, and à strict liability
b. the user or consumer has not bought the product from or entered into any contractual relation with the seller à sale
comment i: dangerous to an extent beyond that which would be contemplated by the ordinary consumer

Front 104

Consumer Expectations Critiques

Back 104

Is the product more dangerous than an ordinary consumer would expect it to be?
— Ordinary consumers are in no position to judge whether the design is defective because of the complexity of the design.
— Too much leeway without an adequate understanding of the cost-benefit tradeoffs.
— Even if the product meets consumer expectation the product is still defective because there is alternative safer design at a reasonable cost with no loss of functionality.

Front 105

Analysis Steps: Design Defect

Back 105

1. Identify the Defect:
— (b) design defect
— product should have been designed differently
2. Apply the Appropriate Test:
— (a) Consumer Expectation Test
— (b) Restatement (Third)

Front 106

Design Defect under Jackson:

Back 106

Plaintiff may pursue his or her claim under either theory:
- consumer expectations; and/or
- risk-utility:

Front 107

Consumer Expectation Test

Back 107

- ∏ is required to produce evidence of the objective condition(s) of the product that fails to meet consumer expectation.
- This entails a showing by ∏ that prolonged use, knowledge, or familiarity of the product’s performance is sufficient to allow consumers to form reasonable expectations about the product’s safety.
Factors to Consider?
- highly complex
- specialized
- new process

Front 108

Restatement (Third) – (Design Defect)

Back 108

- A design is defective when a reasonable alternative design would have reduced or avoided the foreseeable risks of harm posed by the product design at issue
- risk-utility multifactor analysis
- list in comment f

Front 109

RISKS ASSOCIATED WITH CURRENT & ALTERNATIVE DESIGN:

Back 109

• the magnitude and probability of the foreseeable risks of harm
• the instructions and warnings accompanying the product, and the nature and strength of consumer expectations regarding the product, including expectations arising from product portrayal and marketing.

Front 110

UTILITY ASSOCIATED WITH CURRENT & ALTERNATIVE DESIGN:

Back 110

• The relative advantages and disadvantages of the product as designed and as it alternatively could have been designed may also be considered:
• Thus, the likely effects of the alternative design on production costs;
• the effects of the alternative design on product longevity, maintenance, repair, and esthetics; and
• the range of consumer choice among products are factors that may be taken into account.

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Restatement (Third) Critiques
reasonable alternative design

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— moves from strict liability to a negligence standard
— battle of the experts
— costly litigation
— sometimes plaintiff friendly even if consumer expectations are met if the plaintiff can show that there is alternative safer design at a reasonable cost with no loss of functionality.

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Proving Design Defect:

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• P may pursue his or her case under the consumer expectation test under Jackson; or
• P must prove that a reasonable alternative design reduces or avoids foreseeable risks of the product at issue using risk utility under the Restatement (Third).

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#1 - Consumer Expectation Test

Can use this test if P could reasonably have expectations.

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• ∏ is required to produce evidence of the objective condition(s) of the product that fails to meet consumer expectation.
• This entails a showing by ∏ that prolonged use, knowledge, or familiarity of the product’s performance is sufficient to allow consumers to form reasonable expectations about the product’s safety.
Factors to consider?
• highly complex
• specialized
• new process

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#2 - Restatement (Third) – Risk Utility

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• A design is defective when a reasonable alternative design would have reduced or avoided the foreseeable risks of harm posed by the product design at issue
• risk-utility multifactor analysis

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Design Defect: Rx Drugs
Restatement (second)

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Restatement (second)(minority)
blanket immunity if:
• properly manufactured
• adequate warnings and instructions
Restatement (second)(majority)
case-by-case approach:
• P proves prima facie case under the applicable test

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Design Defect: Rx Drugs
Restatement (third)

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Restatement (third)
P proves design defect using an enhanced risk-utility test:
• great harm
• would not prescribe to any class of patients

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Intentional Infliction of Emotional Distress (IIED)
Prima Facie Elements:

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1. ∆’s conduct was “extreme and outrageous”
2. ∆ acted intentionally or recklessly; and
3. ∏ suffered severe emotional distress

• Intent
• How is intent defined? (hint: three possibilities)
• Conduct
• How is extreme and outrageous conduct defined?
• Result
• What must ∆’s conduct cause?

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Prima Facie Element: Intent
IIED - 3 possibilities

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- Intentional
o purposefully
- Intentional
o substantially certain
- Reckless
o deliberate disregard of a high degree of probability that emotional distress will follow

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Prima Facie Element: Conduct
IIED

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Extreme and Outrageous Conduct:
• goes beyond all possible bounds of decency
• regarded as atrocious and utterly intolerable in a civilized community

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Prima Facie Element: Conduct
IIED - Factors to consider

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SEVERITY; REGULARITY; CONTEXT; RELATIONSHIP BETWEEN PARTIES

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Prima Facie Element: Result
IIED

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• conduct causes severe emotional distress
• no reasonable man could be expected to endure it.

 Rest 2nd

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Negligent Infliction of Emotional Distress (NIED)

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• physical injury
• parasitic -“tack on” a claim for emotional harm
• emotional harm only
• impact rule
• zone of danger

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NIED - Impact Rule

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requires a physical impact in order for ∏ to recover for emotional harm.

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NIED - Zone of Danger Rule

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• ∆’s negligence places ∏ in imminent physical peril
• ∏ is aware of the peril
• physical symptoms

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NIED & IIED third party claims
Courts Skeptical:

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• fictitious claims
• distrust of the proofs offered
• difficulty in measuring damage awards
• difficulty of setting up any satisfactory boundaries to liability

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NIED: Third Party Bystander Claims

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• ∏ is closely related to the third party;
• ∏ is present at the scene of the injury producing event and is aware that an injury is being caused to the third party;
• results in severe emotional distress

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IIED: Third Party Claims

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• (1) ∆ who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to the ∏ is liable for such emotional distress.
• (2) Where such conduct is directed at a third person, ∆ is subject to liability if ∆ intentionally or recklessly causes severe emotional distress:
• (a) to a member of such person’s immediate family who is present at the time, whether or not such distress results in bodily harm, or
• (b) to any other person who is present at the time, if such distress results in bodily harm.

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IIED: third party claims
Family vs Non-family

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1. P must demonstrate that D intentionally or recklessly directed extreme and outrageous conduct to a third party; and
1. P must also demonstrate that D intentionally or recklessly caused P severe emotional distress

family member
Present at the time
non-family member
Present at the time
Suffers bodily harm

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Privacy Torts:
What are the prima facie elements?

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One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.

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Privacy Torts: 4 subtorts

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Intrusion Upon Seclusion
Appropriation of Name or Likeness
publicity placing person in a false light
publicity given to private life

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publicity placing person in a false light:

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• D publicized a matter that places P in a false light
• the false light would be highly offensive to a reasonable person
• D knew of the falsity or acted in reckless disregard of its falsity and the false light it placed P in.

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Publicized

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o making a matter public by communicating to the public at large or to so many persons that it is substantially certain to become public knowledge

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Highly Offensive

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• reasonable person would be justified in the eyes of the community in feeling seriously offended and aggrieved
• unimportant false statements about P is insufficient
• major misrepresentations about P’s
*character,*
*history,*
*activities* or
*beliefs*
that serious offense may reasonably be expected to be taken by a reasonable man in his position.

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Public Disclosure of Private Life

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• P gave publicity
• to the D’s private life not public life
• the matter publicized was highly offensive to a reasonable person
• not of a legitimate public interest

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Consumer Expectations Test:

Sufficient factors to show consumers have expectations

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- prolonged use
- knowledge
- familiarity of the product's performance