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44 Cards in this Set
- Front
- Back
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What is P's liability if his dog bites someone for the first time?
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Negligence
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What is the standard for P's liability if his dog bits someone for the second time?
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Strict liability (because P keeps an animal with known dangerous propensities)
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What is the standard for keeping wild animals?
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Strict liability
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How do safety precautions play into keeping wild animals?
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They don't - ignore them - because strict liability applies
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What is an abnormally dangerous activity? (2 parts)
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Foreseeable risk of serious harm even when reasonable care is exercised, not in common use in community
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What is the effect of contributory negligence on an intentional tort?
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None - they can never recover on negligence claim against landowner/possessor
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What is the effect of contributory negligence under traditional common law?
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P's negligence completely barred recovery, unless last clear chance applies
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What is the last clear chance doctrine?
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P recovers despite contributory negligence; the person with the last clear chance to avoid an accident who fails to do so is liable for negligence
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Is last clear chance used in comparative negligence jurisdictions?
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No
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What is assumption of risk?
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If P knew of risk and voluntarily proceeded in face of the risk, P may be denied recovery in strict liability
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Is a casual seller a merchant?
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No.
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Is a service provider a merchant of goods provided that are incidental to the service?
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No
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Is a lessor a merchant for purposes of strict liability?
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Yes
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Every firm in a product distribution change is…
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A merchant subject to strict liability
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Is privity required for strict liability?
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No
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What is liability for reasonably foreseeable damages done by a trespass of his animals?
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Strict liability
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Is an owner strictly liable for damages by wild animals to trespassers?
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No
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How to tell when a product has a design defect?
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Hypothetical alternative design is safer, cost-justified, and practical
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How to tell when a product has a manufacturing defect?
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An unusual problem - the one in a million - exploding toaster!
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When is a warning necessary?
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If a product has physical risk that can't be remedied by different designs, and consumer would not be aware of them
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What is the effect of a product that needs a warning but lacks it?
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It's like a defective design
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When will a warning not remove liability?
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When the product can physically be altered to be safer at a low cost
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How can P prove a manufacturing defect?
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By showing that the product failed to perform as safely as an ordinary consumer would expect
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Must D anticipate reasonable misuse?
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Yes
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Compliance with government safety standards is…
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Nonconclusive evidence that product is not defective
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Noncompliance with government safety standards is …
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Conclusively establishes that the product is defective
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What about strict liability and knives?
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Manufactures will not be held liable for some dangerous products if danger is apparent and there is no safer way to make the product
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Can a bystander sue a commercial supplier in the chain of distribution in strict liability?
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Yes - there is no privity requirement
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Does comparative negligence reduce recovery in strict liability cases?
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Yes
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When is employer liable for employee's intentional tort?
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When job involves danger (repo man), authorized violence (bouncer), or when employee is engaged in a misguided effort to serve boss's purposes
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When is hiring party liable for tort of independent contractor?
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When hiring party is land possessor and P is an invitee (duty to invitee is nondelegable)
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When is car owner liable for tort of driver?
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When driver is using the car to do an errand for owner
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Are parents liable for the torts of their kids?
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No, but parents can be liable in negligence for actions that led to tort (e.g., leaving loaded gun around)
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What to watch for in vicarious liability questions?
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D may not be vicariously liable, but D can be liable for underlying tort
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When does indemnification apply?
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Vicarious liability (e.g., car owner from driver), products liability (for nonmanufacturer from manufacturers)
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What recovery for loss of consortium?
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Services, society, sexual intimacy
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May a landowner use a vicious dog to protect only his property?
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No!
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When does governmental immunity not apply?
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When government is engaged in an activity that is normally conducted by private industry
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Does a city operating a parking lot for profit retain government immunity re activities in the parking lot?
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No, because it's enacting in an activity that's normally conducted by private industry
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Just because one party is negligent doesn't mean other potential Ds aren't …
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liable, too (either strictly or in negligence)
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Which determines matters of law, judge or jury?
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Judge
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Which determines whether an activity is abnormally dangerous?
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Judge, because it is a mater of law
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Which decides whether misuse of product is reasonably foreseeable?
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Jury
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Which decides whether inadequate warnings make product so defective as to be unreasonably dangerous?
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Jury
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