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43 Cards in this Set
- Front
- Back
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Rowland Factors
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To invoke a special duty:
- Foreseeability of harm - Purpose for which the entrant came to premises - Time, manner, circumstances under which entrant came to premises - What the place is used for or expected to be used for - Rsnblness of inspection, repair, warning - Opportunity and ease of repair, correction, warning - Burden on owner and community of inconvenience or cost to provide adequate land protection |
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Expert Testimony
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Quality/Admissibility is key
- Whether the theory can be and has been tested according to the sci. method - Whether the theory or technique has been subject to peer review, publication - Known potential rate of error for a particular scientific technique - Whether the theory is generally accepted (Daubert) |
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Unforeseeable EXTENT of harm
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- Take the victim as you find them
- Eggshell P (Benn v. Thomas) - Just because there is more than the right type of harm does not matter |
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Unforeseeable TYPE of harm
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- Need a certain kind of injury
- RISK RULE: What are the foreseeable risks created by the D's conduct? -- If P's injury is one of them, PX is est. -- If not, no PX (Wagon Mound) |
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Unforeseeable MANNER of harm
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Even if it is a foreseeable type of harm, the D still may not be liable b/c of the way the injury came about
- SUPERSEDING when -- Culpability of the intervening force -- Freakish and bizarre -- Passage of time and space -- D does not have to foresee the exact way the accident could happen, just the general risk/character of the injuries (McLaughlin) |
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Superseding Causes + 3rd Parties
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Unforeseeable MANNER of harm, If intervention by a 3rd party is a foreseeable consequence of the situation created by D's neg. then it is NOT a superseding act (Derdarian)
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Rough Sense of Justice
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(Palsgraf - dissent)
- Must be something wo which the event would not happen - Natural, continuous sequence between cause and effect - Was one a substantial factor in producing the other - Direct connection between them w/o too many intervening causes - Is the effect of cause on the result not too attenuated - In the usual judgment of mankind is the cause likely to produce the result - If prudent foresight was exercised could the result be foreseen - Is the result too remote in time and space from the cause |
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Contributory Negligence
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P's recovery isbared b/c of P's ownc onduct, even if it was only 1%
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Comparative Fault
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Where both P and D are at fault, they should share the responsibility rather than have it fall entirely on one party or the other
PURE - any ratio MODIFIED - P < D |
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Avoidable Consequences
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Once P is injured, they must take rsnbl steps to not exacerbate the injury
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AOR Express
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- Where one person gives written or oral permission to release another party from an obligation of rsnbl care
- Do not relieve D for intentional/reckless conduct |
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Tunkl Factors
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Courts can void on express waiver based on:
- Concerns a business of a type generally thought suitable for pub regulation - D performs service of great importance to public, necessity to some - D offers service to anyone or ppl who meet certain standards - D has a decisive advantage in bargaining based on essential nature - D gives an adhesion K and does not offer additional protection options - the person/property of the buyer is placed under control of the seller |
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AOR Implied Primary
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Inferred from conduct/circumstances that P had
- KNOWLEDGE of the risk - APPRECIATION of the risk - VOLUNTARY exposure to the risk (Murray) -- Has to be SPECIFIC risk (Bowen) |
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AOR Implied Secondary
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Even though D is at fault, P is barred from recovery b/c he knew of the unrsnbl risk created by D and chose to encounter it
- Gen duty does not apply to coparticipants of a sport where conditions or conduct that otherwise might be viewed as dangerous is integral (Cheong) -- Not a defense when it is intentional or reckless conduct outside the ordinary activity of the sport (Shin) |
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Firefighter's Rule
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A firefighter or police officer who enters private property int eh exercise of his duties occupies the status of a licensee, not invitee b/c
- inherently dangerous jobs/vol chosen - worker's comp/taxes, no double recovery - landowners would have to keep property immaculate, cannot predict when police will come LIMIT - once FF is there failureto warn about known risks in some JXs like viscous dogs = neg |
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Professional Rescuer AOR
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Inherently dangerous career, implied knowledge that ppl will be negligent and need your help
- worker's comp, no double recovery - don't want ppl to be afraid of calling rescuers |
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Non-Natural Use
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If you bring something on your property that is not naturally there and if you know it will cause harm if it escapes you are SL for the harm
(Fletcher) |
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Non-Predominant Nature
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If you are using your land in a way other than the predominant nature of use you are SL for harm that you cause
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Strict Liability (Rest 1st)
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If D is engaged in an ultrahazardous activity, which is an uncommon activity w/unavoidable risks of serious harm SL applies
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Strict Liability (Rest 2nd)
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- Existence of a high degree of risk of some harm to persons/chattel/land
- Likelihood that the harm that results from it will be great - Inability to eliminate the risk by the exercise of rsnbl care - Extent to which the activity is not a matter of common usage - Inappropriateness of the activity to the place where it is carried on - Extent to which its value to the community is outweighed by its dangerous attributes |
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SL + Superseding Causes
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If the injury suffered is not the kind of injury that makes the activity abnormally dangerous in the first place SL does not apply
- Mink Farmer |
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SPL Test
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1. Is this a proper P
2. Is this a proper D 3. Was it defective when it left D's hands 4. Is it defective - manufacturing - design - warning 5. Warranties 6. Defenses |
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Proper P
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- Anyone who is a user or consumer
- Bystanders can recover if they suffer physical injury |
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Proper D
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Anyone who is in the business of selling or dealing with the product and is part of the marketing chain
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Successors (12)
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Responsibility for previous corporation if:
- There is an agreement assuming liability - A fraudulent conveyance - Consolidation or merger - CA: where the totality of the transaction between the successor and predecessor is basic continuity of the enterprise |
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Product was defective when it left D's hands
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Reached the user without substantial change in the condition in which it is sold
- 3rd Party Alterations -- Unfors. alterations can preclude liability -- Is the alteration foreseeable? -- PX issue, 3rd party alteration might be superseding cause |
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MANUFACTURING Defect
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Whena product has a specific design and the item strays from that design, aberration from the rest of the product line
1. OCE 2. 3rd Rest 3. CA natural food exception |
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DESIGN Defect
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The original concept of the product is flawed, the product comes out as intended but the entire product line is defective
1. OCE 2. 3rd Rest 3. RU Balancing |
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OCE
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The product is more dangerous than the ordinary consumer would expect when using the product in its intended or foreseeable manner
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3rd Rest (SPL)
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It is not as the manufacturer intended it to be
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Risk Utility Balancing
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Risk of danger > Benefit of design
- likelihood product will cause injury - probable seriousness of injury - manufac's ability to eliminate the unsafe aspect w/o impairing usefulness - expense of eliminating unsafe character of product - feasibility of spreading loss - user's anticipated awareness of the danger - utility of the product to user and public as a whole - availability of substitute product which would meet the same standard |
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RAD
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Under 3rd, have to give one
Under R/U less strict - magnitude/probability of harm - Instructions/warnings w/the product - Nature/strength of consumer expectations regarding the product including portrayal and marketing - Advant/Disadvant of the product and its proposed alternative, impact on product costs, longevity, maintenance, repair, esthetics - No RAD = should not have been made in the first place |
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Simple Tool Rule
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Products whose benefits and risks are evident to everyone, things like lighters, not subject to OCE or RUB
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Inadequate WARNING Defect
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- Question of rsnblness
- Too many warnings takes away from important ones - Consider font, size, placement - Dramatic/Succinct is better than long and detailed - Warning must reach person that is likely to use the product (children) |
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Failure to WARN Defect
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Hindsight - a manufac is fully informed of all risks associated w/the product, strict liability (min)
402A - Neg standard, manufac must qarn against a danger if he has knowledge, or by application of rsnbl/developed human skill and foresight they should have discovered the danger (maj) |
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Comment K
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The maker of unavoidably unsafe products is not liable for injuries resulting from its use if the product is properly prepared and accompanied by proper directions and warnings
- Great Social Utility: Whether the product was intended to give an exceptionally important benefit that made its availability highly desirable - No Safer Alt: Whether the then-existing risk posed by the product was substantial/unavoidable - Whether the interest in availability at the time of distribution outweighs the interest in promoting enhanced accountability through SL |
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Learned Intermediary Doctrine
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Shield the manufac of prescription drugs from liability if the manufac adequately warns the physician of the dangers
- Manufac can assume that if the product has all the necessary instructions the Dr. will warn patient EXCEPTIONS: FDA mandates warning must me given to consumer, mass immunizations |
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Warning Defect + CIF
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P has to prove that the warning would have made a difference or stopped the harm from happening
- Heeding Presumption: requires D to show that the user would have not followed the warning - Market Share Liability |
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Misuse
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If P uses the product in a way that is neither intended nor foreseeable it is not defective
- Warning about something means it is foreseeable - Alteration could be foreseeable and might not be a superseding cause |
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WARRANTIES
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- Notice requirements/disclaimers
- Privity limitations on who can sue - SOL runs when K is formed, not when harm occurs like torts - Injures only itself (East River) - Express vs. Imlied |
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Express Warranties
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Express: affirmative assertion by anyone about the quality of a product that becomes the basis of a bargain
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Implied Warranties
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- Implied warranty of merchantability
-- only applies to merchants -- in every sale there is implied warranty that the product is fit for its intended use |
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When a Product Injures only Itself
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Maj - Preserve role of K, no tort liability if product causes purely econ harm
Min - Manufac's duty to make non-defective products encompasses injury to the product itself whether or not the defect created an unrsnbl risk of harm Intermed - Allow tort in some cases dependent on nature of defect, type of risk, manner of harm East River - Manufac has no duty under neg or SPL to prevent a product from injuring istelf |
