Torts Ii

Front 1

Strict liability (non-products)

Back 1

An act or failure to act which breaches an absolute duty of care to make safe to another, resulting in injury to other's person or property, result in liability without fault.

Front 2

Strict liability (wild & domestic animals)

Back 2

An owner is strictly liable for injuries caused by wild animals dangerous propensity. An owner of a domestic animal is not strictly liable for damages caused by the animal unless the owner knows or has reason to know of the animal's dangerous propensities.

Front 3

Restatement 2nd 502 factors - whether an activity is abnormally dangerous

Back 3

(a) existence of a high degree of risk of some harm to the person; land or chattels of others;

(b) likelihood that the harm that results will be serious;

(c) inability to eliminate the risk by the exercise of reasonable care;

(d) the activity is not a matter of common usage;

(e) inappropriateness of the activity to the place where it is carried out;

(f) the value of the activity to the community is outweighed by its dangerous attributes.

Front 4

Abnormally dangerous/ultra hazardous activities

Back 4

A defendant engaged in abnormally dangerous/ultra hazardous activity is strictly liable to those suffering personal injury or property damage resulting from the risk of such activity, even if the defendant acted with due care.

Front 5

Defenses to strict liability

Back 5

Contributory negligence (unknowing contributory negligence is no defense)

Comparative negligence

Assumption of risk

Front 6

Strict liability for defective product

Back 6

Where a defective product causes personal injury, the retailer, manufacturer and distributor are strictly liable for the harm caused without fault.

To prevail, the plaintiff must show that the plaintiff is a proper plaintiff, suing a proper defendant, that the product is defective, causation and damages

Front 7

Proper plaintiffs

Back 7

Proper plaintiffs include anyone in the foreseeable zone of danger, including bystanders and users who were not purchasers since privity is not required.

Front 8

Proper defendants

Back 8

Proper defendants include retailers, wholesalers, suppliers, manufacturers and distributors.

Front 9

Product liability theories (3)

Back 9

1. Negligence

2. Warranty

3. Strict liability

Front 10

Defective product

Back 10

A product is defective if it has a design defect, a manufacturing defect or a defective warning.

Front 11

Manufacturing defect

Back 11

A product has a manufacturing defect if it was not made in the manner intended.

Front 12

Design defect

Back 12

A product has a design defect if it is not safe for its intended use or could be made reasonably safe without adverse impact on price and utility.

Front 13

Warning defect

Back 13

A product has a warning defect if the warning given was not adequate or a warning was appropriate but not given.

Front 14

Risk utility test

Back 14

Products are defective where the danger posed by the product outweighs its utility given the commercial practicability of making it safer without destroying the product's utility.

Front 15

Reasonable alternative design

Back 15

Feasible alternatives exist that could have made the product reasonably and materially safer without an adverse impact on its price and utility.

Front 16

Consumer expectation test

Back 16

Defective products fail to meet the consumer expectation test, that is, they do not conform to the expectation of a reasonable consumer regarding ordinary use of the product.

If product is defective, P must prove that the defect existed at the time of sale and the product reached the consumer with no substantial change in condition.

Front 17

Breach of implied warranty of fitness for a particular purpose

Back 17

Defendant breaches the implied warranty of fitness for a particular purpose where defendant sells the goods knowing plaintiff's specific intended use, where plaintiff relies on defendant's skill or judgment in selecting the goods, and there is actual and proximate cause and injury to plaintiff.

Front 18

Breach of implied warranty of merchantability

Back 18

Defendant breaches the implied warranty of merchantability where defendant offers goods for sale that are not fit for the ordinary purpose for which such goods are used, when the goods are unreasonably dangerous for that use, and where there is actual and proximate cause, and injury to plaintiff.

Front 19

Breach of express warranty/misrepresentation

Back 19

Defendant is liable for breach of express warranty where defendant sold goods with express representations about the goods, where plaintiff relied on the warranties, the warranties were breached and where the failure of the goods to perform as warranted made it unreasonably dangerous, and where there is actual cause, proximate cause and injury to plaintiff.

Front 20

Negligence (products liability)

Back 20

One who negligently fails to use reasonable care to manufacture, design, label, pack or ship a product is liable for any harm to person or property caused by such negligence.

Front 21

Duty

Back 21

A person (manufacturer, retailer, wholesaler) has a duty to act reasonably and to not place an unreasonably dangerous product into the stream of commerce causing personal injury to consumer or his property. A person (manufacturer, retailer, wholesaler) making express representations about a product assumes a duty to make sure they are accurate and do not create peril.

Front 22

Breach

Back 22

Defendant breaches the duty of care when it acts below the standard of care that it creates a risk of harm to others.

Front 23

Negligent conduct that can create product liability (5)

Back 23

Negligent design (all products are made defective)

Negligent manufacture (only one product is defective)

Negligent inspection

Negligent warnings or failure to warn

Negligent packing and shipping

Front 24

Actual cause

Back 24

Defendant is the actual cause of plaintiff's injury where but for defendant's negligent conduct the harm would not have occurred.

Front 25

Proximate cause

Back 25

A defendant's acts are the proximate cause of plaintiff's injury if the type of injury is foreseeable with no intervening, superseding forces to break the chain of causation.

Front 26

Assumption of risk

Back 26

Where plaintiff assumes the risk of harm knowingly and voluntarily, whether impliedly or expressly, plaintiff's recovery is barred.

Front 27

Contributory negligence

Back 27

Contributory negligence is a defense to strict liability where plaintiff knows and unreasonably subjects himself to the risk.

Front 28

Comparative negligence

Back 28

In a comparative negligence jurisdiction (majority view) where plaintiff's negligence contributes to the harm, plaintiff's recovery is reduced by the percentage of plaintiff's harm.

Front 29

Pure comparative fault/modified comparative negligence

Back 29

With pure comparative fault, the plaintiff's recovery is reduced by the percentage of the plaintiff's negligence. In a modified comparative negligence jurisdiction, the same is true unless plaintiff's negligence exceeds 50%, then plaintiff is barred from recovery.

Front 30

State of the art

Back 30

Evidence that a particular risk of the product was not known or knowable by the application of scientific knowledge available at the time of manufacture and/or distribution of the product.

Front 31

Misuse of product

Back 31

Where misuse of a product is foreseeable, it will not serve as a defense. However, where misuse of a product is not foreseeable, it will serve as a defense.

Front 32

Disclaimers of liability

Back 32

Irrelevant in negligence or strict liability products cases if personal injury or property damage has occurred.

Front 33

Damages

Back 33

General and special damages for personal injury and property damage, but no recovery for purely economic loss.

Front 34

General damages

Back 34

Non-economic losses that compensate plaintiff for pain and suffering, loss of consortium.

Front 35

Special damages

Back 35

Compensate for economic loss or out of pocket expenses.

Front 36

Punitive damages

Back 36

Punitive damages can be awarded to penalize a defendant whose conduct is particularly outrageous.

Awarded in product liability suits if P shows that D knew its product was defective or recklessly disregarded the risk of a defect.

Front 37

Hedonic damages

Back 37

Damages for the loss of the ability to enjoy life.

Front 38

Collateral source rule

Back 38

P is entitled to recover her out of pocket expenses, even if P was reimbursed for these losses by some third party.

Front 39

Future damages

Back 39

When P is recovering future damages, courts generally instruct the jury to award P only the present value of these losses.

Front 40

Mitigation

Back 40

Plaintiff cannot recover for any harm which, by the exercise of reasonable care, plaintiff could have avoided.

Front 41

Contribution

Back 41

Partial reimbursement available to a defendant from another defendant where two or more defendants are jointly and severally liable and one defendant pays more than its comparative share of responsibility.

Front 42

Comparative contribution

Back 42

Contribution is imposed in proportion to the relative fault of the various tortfeasors.

Front 43

Indemnification

Back 43

Complete reimbursement of a loss by one who is only vicariously liable to another who is directly liable for the loss.

Front 44

Joint and several liability

Back 44

Each defendant is liable for the entire indivisible harm whether the defendants are concurrent tortfeasors or joint tortfeasors.

Front 45

Release

Back 45

Giving up a right or claim to the person against whom it could have been enforced.

Front 46

Immunity

Back 46

An absolution from tort liability based on a defendant's status.

Front 47

Governmental immunity

Back 47

Protects governmental agencies from being held liable for tortious conduct that caused injuries.

Front 48

Vicarious liability

Back 48

Where an employee commits a tort while acting within the scope of his employment, the employer is liable based on respondeat superior.

Front 49

Tortious interference with prospective business advantage

Back 49

Where due to defendant's interference, plaintiff loses the benefit of prospective potential contracts.

Front 50

Tortious interference with contract

Back 50

Where defendant improperly induces another to breach a contract with plaintiff.

Front 51

Abuse of process

Back 51

Claim that a party started or continued a civil or criminal proceeding for an improper motive, out of ill will, and without an honest belief in the merits.

Front 52

Malicious prosecution

Back 52

Claim that a party maliciously started or continued a legal proceeding against a plaintiff without an honest and reasonable belief probable cause existed, causing injury to the plaintiff.

Front 53

Fraud/misrepresentation

Back 53

Where defendant made a misrepresentation (false statement of fact) intentionally, recklessly or negligently about a fact material to the transaction and plaintiff acted in justifiable reliance on that misrepresentation and suffered injury as a result.