Torts Ii

Front 1

(AttractiveNuisance Doctrine)

Back 1

a) theplace where the condition exists is one upon which the possessor knows or hasreason to know that children are likely to trespass, AND

b) the condition is one of which the possessorknows or has reason to know and which he realizes or should realize willinvolve an unreasonable risk of death or serious bodily harm to such children,AND

c) thechildren because of their youth do not discover the condition or realize therisk involved in intermeddling with it or in coming within the area made dangerousby it, AND

d) theutility to the possessor of maintaining the condition and the burden ofeliminating the danger are slight as compared with the risk of the childreninvolved, AND

e) thepossessor fails to exercise reasonable care to eliminate the danger orotherwise protect the children

Front 2

Distress Occasioned by Harm to Another- Zone of Danger Rule

Back 2

Bystanders: Zone of Danger Rule

1.Within a physical “Zone of Danger”

2.Feared for his own safety, AND

3.Suffered physically manifested mental or physical injuries

-implied requirement of special relationship

- some “zone of danger” jurisditions haveallowed bystanders to recover damages for “fear of safety of another,” so longas the P was also at personal risk

Front 3

Distress Occasioned by Harm to Another- the Dillon Rule) –Foreseeability

Back 3

1. Near the scene of the accident;

2. Direct emotional impact on P from sensoryand contemporaneous observation of the accident;

3.Closely related to the victim

-no zone

Front 4

Distress Occasioned by Harm to Another - Thing v. La Chusa(modified the Dillon Test)

Back 4

For a bystander to recover, he or she must:

1.Be closely related to the victim,

2.Be present at the scene (physically), 3.Have serious emotional distress

Front 5

Distress Occasioned by Harm to Another- In Eskin v. Bartee

Back 5

1.Actual or apparent death or serious physical injury of the primary victim;

2.P’s close or intimate personal relationship with the primary victim;

3.At the scene of the accident before the scene has been materially altered;

4. Severe or serious emotional injury to theplaintiff

Front 6

Respondeat Superior- The acts were within the “scope of employment”

Back 6

a. It is of the kind he is employed to perform;

b.It occurs substantially within the authorized time and space;

c.It is actuated, at least in part, by a purpose to serve the master; and

d. If force is intentionally used by theservant against another, the use of the force is not unexpectable by themaster.

Front 7

Products Liability - Restatement(Second) of Torts § 402A

Back 7

(1) One who sells any product in a defective condition unreasonablydangerous to the user or consumer or to his property is subject toliability for physical harm thereby caused to the ultimate user or consumer, orto 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 useror consumer without substantial change in the condition in which it issold

(2)The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible carein the preparation and sale of his product, [Strict liability] and

(b) the user or consumer has not bought theproduct from or entered into any contractual relation with the seller [Privityof Contract NOT required]

Front 8

Products Liability - Restatement, Third, of Torts

Back 8

A product is defective when, at the time ofsale or distribution, it contains a manufacturing defect, is defectivein design, or is defective because of inadequate instructions orwarnings. A product:

(a) Contains a manufacturing defectwhen the product departs from its intended design even though all possible carewas exercised in the preparation and marketing of the product;

(b) is defective in design when theforeseeable risk of harm posed by the product could have been reduced oravoided by the adoption of a reasonable alternative design by the seller orother distributor, or a predecessor in the commercial chain of distribution,and the omission of the alternative design renders the product not reasonablysafe;

(c) Is defective because of inadequate instructionsor warnings when the foreseeable risk of harm posed by the product couldhave been reduced or avoided by the provision of reasonable instructions orwarning by the seller or other distributor, or a predecessor in the commercialchain of distribution, and the omission of the instructions or warnings rendersthe product not reasonably safe.

Front 9

Manufacturing Defects

Back 9

strict liability formanufacturing defects differs from negligence in that a P need not show that Dacted unreasonably in creating or failing to discover the flaw.

All the p must show is thatthe product was defective.

Front 10

Assumptionof Risk (AR) Elements:

Back 10

1. Subjective appreciation of thedanger

2. Voluntary confrontation of thedanger; AND

3. No expectation that the D will exercisecare (relieve the D’s liability)

Front 11

Express AR Agreementmust be:

Back 11

1. in advance of injury;

2.Express either orally or in writing;

3.In clear, explicit and comprehensible terms;

4.Not against public policy; AND

5.Untainted by deceptive behavior