Torts (Mbe)

Front 1

True/False:

There is liability for domestic pets ONLY at second instance.

However, there is _________ _________ for those w/ __________ dangerous propensities from the outset (result NOT changed if "tamed").

Back 1

True!

There is liability for domestic pets ONLY at second instance.

However, there is STRICT LIABILITY for those w/ INHERENT dangerous propensities from the outset (result NOT changed if "tamed").

Front 2

_________ ALTERNATIVES APPROACH--->

If one could have cured a defect for a ______ amount of $ relative to the risk involved, he _______ _______ done it and a warning (will/will not) save him.

Back 2

FEASIBLE ALTERNATIVES APPROACH--->

If one could have cured a defect for a MINOR amount of $ relative to the risk involved, he SHOULD HAVE done it and a warning WILL NOT save him.

Front 3

GOVERNMENTAL IMMUNITY

Immunity (is/is not) available for GOVERNMENTAL functions; it (is/is not) available for PROPRIETARY functions.

Back 3

GOVERNMENTAL IMMUNITY

Immunity IS available for GOVERNMENTAL functions; it IS NOT available for PROPRIETARY functions.

Front 4

A function is a PROPRIETARY FUNCTION if:

It would normally be performed by a _________ __________.

Back 4

A function is a PROPRIETARY FUNCTION if:

It would normally be performed by a PRIVATE BUSINESS.

Front 5

General rule-->
There is NO duty to retreat before using self-defense.

Modern trend-->
There IS a duty to retreat before using serious force if one: (1) can do so _______ and (2) (is/is not) in his home.

Back 5

General rule-->
There is NO duty to retreat before using self-defense.

Modern trend-->
There IS a duty to retreat before using serious force if one: (1) can do so SAFELY and (2) IS NOT in his home.

Front 6

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Unlike for other intentional torts, ___________ as to the effect of D's conduct will satisfy the ________ requirement.

Back 6

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Unlike for other intentional torts, RECKLESSNESS as to the effect of D's conduct will satisfy the INTENT requirement.

Front 7

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

______ ________ (severe damages) are required (ie. need NOT be physical).

PHYSICAL INJURY is NOT required, but clear proof of ___________ emotional distress is.

Back 7

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Actual damages (severe damages) are required (ie. need NOT be physical).

PHYSICAL INJURY is NOT required, but clear proof of SUBSTANTIAL emotional distress is.

Front 8

EXPRESS (ACTUAL) CONSENT

D is NOT liable if P expressly consents to D's conduct.

EXCEPTIONS--->
(1) ________ will undo express consent if D ______ of and took advantage of the mistake;

(2) Consent induced by FRAUD will be invalidated if it goes to an _________ matter; and

(3) Consent obtained by _______ will be invalidated UNLESS it is only threats of _______ action or economic deprivation.

Back 8

EXPRESS (ACTUAL) CONSENT

D is NOT liable if P expressly consents to D's conduct.

EXCEPTIONS--->
(1) MISTAKE will undo express consent if D KNEW of and took advantage of the mistake;

(2) Consent induced by FRAUD will be invalidated if it goes to an ESSENTIAL matter; and

(3) Consent obtained by DURESS will be invalidated UNLESS it is only threats of FUTURE action or economic deprivation.

Front 9

When is consent implied by law?

Back 9

When action is necessary to save a person's life or some other important interest in property.

Front 10

APPARENT CONSENT is that which a ________ person would infer from ______ and ______ or from P's ________.

Back 10

APPARENT CONSENT is that which a REASONABLE person would infer from CUSTOM and USAGE or from P's CONDUCT.

ie. Normal contacts are inherent in body-contact sports.

Front 11

CONTRIBUTORY NEGLIGENCE

In a contributory negligence state, _____ contributory negligence __________ ______ recovery.

Back 11

CONTRIBUTORY NEGLIGENCE

In a contributory negligence state, ANY contributory negligence COMPLETELY BARS recovery.

Front 12

COMPARATIVE NEGLIGENCE

In a "pure" comparative negligence state, contributory negligence _______ the recovery.

Back 12

COMPARATIVE NEGLIGENCE

In a "pure" comparative negligence state, contributory negligence REDUCES the recovery.

NOTE: Even the more negligent party can recover in a "pure" comparative negligence state!

Front 13

In a "partial" comparative negligence state, there is _____ recovery if one party was more negligent than the other party.

However, even the more negligent party can recover in a _______ comparative negligence state!

Back 13

In a "partial" comparative negligence state, there is NO recovery if one party was more negligent than the other party.

However, even the more negligent party can recover in a "PURE" comparative negligence state!

Front 14

DISCLAIMERS are _________ in _________ or _________ __________ cases if personal injury or property damages occur.

Back 14

DISCLAIMERS are IRRELEVANT in NEGLIGENCE or STRICT LIABILITY cases if personal injury or property damages occur.

Front 15

PRODUCTS LIABILITY

Breach of a duty is shown by:

(1) ________ CONDUCT of D leading to

(2) The supplying of a __________ PRODUCT.

Back 15

PRODUCTS LIABILITY

Breach of a duty is shown by:

(1) NEGLIGENT CONDUCT of D leading to

(2) The supplying of a DEFECTIVE PRODUCT.

Front 16

D will be liable to anyone injured by an unsafe product if D ___________ the consequence or it was _________ _________ to occur.

Back 16

D will be liable to anyone injured by an unsafe product if D INTENDED the consequence or knew that it was SUBSTANTIALLY CERTAIN to occur.

Front 17

Who can sue for products liability?

Any ________ P (including a BYSTANDER) can sue any _________ SUPPLIER in the ________ of ____________ regardless of an absence of a contractual relationship between them.

Back 17

Who can sue for products liability?

Any FORESEEABLE P (including a BYSTANDER) can sue any COMMERCIAL SUPPLIER in the CHAIN of DISTRIBUTION regardless of an absence of a contractual relationship between them.

Front 18

True or false?

A defect must exist when the product leaves D's control.

Back 18

True!

A defect must exist when the product leaves D's control.

Front 19

UNAVOIDABLY UNSAFE PRODUCTS

Manufacturers will NOT be held liable for some dangerous products (ie. knives) if the danger is _________ and there is no _______ way to make the product.

Back 19

UNAVOIDABLY UNSAFE PRODUCTS

Manufacturers will NOT be held liable for some dangerous products (ie. knives) if the danger is APPARENT and there is no SAFER way to make the product.

Front 20

What is P's COA when all products of a line are the SAME but have DANGEROUS PROPENSITIES?

P must show that D ______ _______ made the product safer, w/o ________ impact on the product's price or utility.

Back 20

DEFECTIVE DESIGN: When all products of a line are the SAME but have DANGEROUS PROPENSITIES.

P must show that D COULD HAVE made the product safer, w/o SERIOUS impact on the product's price or utility.

Front 21

What is P's COA when a product emerges from manufacturing different and more dangerous than the products made properly?

D will be liable if P can show that the product _________ to perform as SAFELY as an ________ consumer would expect.

Back 21

DEFECTIVE MANUFACTURE: When a product emerges from manufacturing different and more dangerous than the products made properly.

D will be liable if P can show that the product FAILED to perform as SAFELY as an ORDINARY consumer would expect.

NOTE: D must anticipate REASONABLE MISUSE!

Front 22

A product may be defective as a result of the manufacturer's failure to give ________ _________ as to the risks involved in using the product.

Back 22

A product may be defective as a result of the manufacturer's failure to give ADEQUATE WARNINGS as to the risks involved in using the product.

Front 23

To find liability under any products liability theory, P must show:

(1) A __________; and

(2) Existence of the defect when the _________ left D's _______.

Back 23

To find liability under any products liability theory, P must show:

(1) A DEFECT; and

(2) Existence of the defect when the PRODUCT left D's CONTROL.

Front 24

NECESSITY - WHAT TYPE?

o For the benefit of many

o Absolute unlimited privilege (ie. no liability)

Back 24

PUBLIC NECESSITY:

o For the benefit of many

o Absolute unlimited privilege (ie. no liability)

Front 25

NECESSITY - WHAT TYPE?

o For the benefit of a limited number

o Limited privilege (ie. D liable for actual damage)

Back 25

PRIVATE NECESSITY:

o For the benefit of a limited number

o Limited privilege (ie. D liable for actual damage)

Front 26

NOTE: NECESSITY prevails over DEFENSE OF ________!

Back 26

NOTE: NECESSITY prevails over DEFENSE OF PROPERTY!

Front 27

DEFENSE OF NECESSITY

Tort defended against must be a _________ TORT.

Back 27

DEFENSE OF NECESSITY

Tort defended against must be a PROPERTY TORT.

Front 28

Shifting the entire loss between or among tortfeasors

Back 28

INDEMNITY: Shifting the entire loss between or among tortfeasors

Front 29

One who is VICARIOUSLY LIABLE may obtain indemnification from ________________________________________?

Back 29

One who is VICARIOUSLY LIABLE may obtain indemnification from THE PERSON WHOSE CONDUCT ACTUALLY CAUSED THE HARM.

Front 30

In regards to defamation, MAL SE means material was:

o Published w/ _________ that it was false; or

O With ________ _________ as to its truth or falsity

Back 30

In regards to defamation, MAL SE means material was:

o Published w/ KNOWLEDGE that it was false; or

O With RECKLESS DISREGARD as to its truth or falsity

Front 31

What damages must P prove for libel?

Back 31

NONE!

P need NOT prove damages for libel - GENERAL DAMAGES ARE PRESUMED!!!

Front 32

Defamation in written form

Back 32

LIBEL: Defamation in written form

Front 33

When responsibility is apportioned among those who are at fault

Back 33

CONTRIBUTION: When responsibility is apportioned among those who are at fault

NOTE: Allows any D required to pay more than his share of damages to have a claim against any other jointly liable parties for the excess!

Front 34

Where each D is liable to P for the entire damage incurred

Back 34

JOINT AND SEVERAL LIABILITY: Where each D is liable to P for the entire damage incurred

NOTE: P can recover the entire judgment from any one D

Front 35

For what type of conduct are PUNITIVE DAMAGES recoverable?

Back 35

PUNITIVE DAMAGES are only recoverable if D's conduct was:

o RECKLESS

o MALICIOUS

o WILLFUL + WANTON

Front 36

Are NOMINAL DAMAGES allowed for negligence?

Back 36

NO!

Nominal damages are NOT allowed for negligence.

Front 37

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Must there be physical injury in order for D to recover?

Back 37

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

o Actual damages required:

Physical damages - NO

Severe emotional distress - YES

Front 38

BATTERY

Is an actor liable for INDIRECT CONTACT?

Back 38

BATTERY

YES! It will be sufficient if an actor sets in motion a force that brings about the harmful or offensive contact to P's person.

Front 39

PRODUCTS LIABILITY - STRICT LIABILITY IN TORT

P must be a _________ _________ of the product (ie. not just a CASUAL SELLER)

Back 39

PRODUCTS LIABILITY - STRICT LIABILITY IN TORT

P must be a COMMERCIAL SUPPLIER of the product (ie. not just a CASUAL SELLER)

This means that he is a MANUFACTURER, RETAILER, ASSEMBLER, WHOLESALER!

Front 40

Strict liability is imposed ONLY on one who supplies a _______!

Back 40

Strict liability is imposed ONLY on one who supplies a PRODUCT!

Strict liability is NOT imposed on one who PERFORMS SERVICES!

Front 41

To hold a commercial supplier strictly liable for a product defect, the product must reach the consumer ____________________________________.

Back 41

To hold a commercial supplier strictly liable for a product defect, the product must reach the consumer WITHOUT SUBSTANTIAL CHANGE IN CONDITION.

Front 42

MERCHANTABLE: When goods are of a quality equal to that GENERALLY ____________ among those who deal in similar goods and are GENERALLY _____ FOR THE __________ PURPOSE for which such goods are used.

Back 42

MERCHANTABLE: When goods are of a quality equal to that GENERALLY ACCEPTABLE among those who deal in similar goods and are GENERALLY FIT FOR THE ORDINARY PURPOSE for which such goods are used.

Front 43

When does an implied warranty of fitness for a particular purpose arise?

Back 43

IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE

Arises when seller knows or has reason to know:

o The PARTICULAR PURPOSE for which the goods are required; and

o That the buyer is RELYING on seller's skill and judgment to purchase suitable goods

Front 44

Arises where a seller or supplier makes an affirmation of fact or promise to the buyer relating to the goods that becomes part of the "basis of the bargain"

Back 44

EXPRESS WARRANTY: Arises where a seller or supplier makes an affirmation of fact or promise to the buyer relating to the goods that becomes part of the "basis of the bargain"

Front 45

ACTUAL CAUSE

Before D's conduct can be considered a ______________ of P's injury, it must first be a CAUSE IN FACT of the injury.

There are several tests:
(1) "BUT FOR" TEST
(2) Additional tests:
- ______________________
____ (joint causes)
- ___________ CAUSES APPROACH (burden of proof shifts to D's)

Back 45

ACTUAL CAUSE

Before D's conduct can be considered a PROXIMATE CAUSE of P's injury, it must first be a CAUSE IN FACT of the injury.

There are several tests:
(1) "BUT FOR" TEST
(2) Additional tests:
- SUBSTANTIAL FACTOR TEST (joint causes)
- ALTERNATIVE CAUSES APPROACH (burden of proof shifts to D's)

Front 46

CAUSATION IN FACT - "BUT FOR" TEST

An act/omission to act is the cause in fact of an injury when the injury would ___ have occurred BUT FOR the act.

CONCURRENT CAUSES: This test applies where _______ acts combine to cause the injury, but _____ of the acts STANDING ALONE, would have been sufficient. But for ANY of the acts, the injury would NOT have occurred.

Back 46

CAUSATION IN FACT - "BUT FOR" TEST

An act/omission to act is the cause in fact of an injury when the injury would NOT have occurred BUT FOR the act.

CONCURRENT CAUSES: This test applies where SEVERAL acts combine to cause the injury, but NONE of the acts STANDING ALONE, would have been sufficient. But for ANY of the acts, the injury would NOT have occurred.

Front 47

NEGLIGENCE - CAUSATION IN FACT

Does the "but for" test apply where there are CONCURRENT CAUSES?

Back 47

NEGLIGENCE - CAUSATION IN FACT

Yes, the "but for" test apply where there are CONCURRENT CAUSES.

Front 48

CONCURRENT CAUSES: Where _______ acts combine to cause an injury, but NONE of the acts ________ _____ would have been sufficient.

But for ANY of the acts, the injury would NOT have occurred.

Back 48

CONCURRENT CAUSES: Where SEVERAL acts combine to cause an injury, but NONE of the acts STANDING ALONE would have been sufficient.

But for ANY of the acts, the injury would NOT have occurred.

Front 49

Define CONCURRENT CAUSES.

Back 49

CONCURRENT CAUSES: Where SEVERAL acts combine to cause an injury, but NONE of the acts STANDING ALONE would have been sufficient.

Front 50

ADDITIONAL TESTS - CAUSATION IN FACT

* Under certain circumstances, the "but for" test is inadequate to determine causation in fact.

(1) _____ ______ (SUBSTANTIAL FACTOR TEST)

(2) ___________ CAUSES APPROACH

Back 50

ADDITIONAL TESTS - CAUSATION IN FACT

* Under certain circumstances, the "but for" test is inadequate to determine causation in fact.

(1) JOINT CAUSES (SUBSTANTIAL FACTOR TEST)

(2) ALTERNATIVE CAUSES APPROACH

Front 51

CAUSATION IN FACT - JOINT CAUSES

SUBSTANTIAL FACTOR TEST. What is it?

Back 51

CAUSATION IN FACT - JOINT CAUSES

SUBSTANTIAL FACTOR TEST: Where several cuases concur to bring about an injury (and any one alone WOULD HAVE BEEN SUFFICIENT to cause the injury), it is sufficient if D's conduct was a "substantial factor" in causing the injury.

Front 52

CAUSATION IN FACT - ALTERNATIVE CAUSES APPROACH

Define it.

Back 52

CAUSATION IN FACT - ALTERNATIVE CAUSES APPROACH

Where two or more persons have been negligent, but uncertainty exists as to WHICH ONE caused P's injury.

P must prove that harm has been caused by ONE OF THEM (w/ uncertainty as to which one).

The burden of proof then shifts to D's, and EACH must show that his negligence is NOT the actual cause.

Front 53

PROXIMATE CAUSATION

Are injuries "actually" caused by D proximately caused by his acts?

Back 53

PROXIMATE CAUSATION

NO! Not all injuries "actually" caused by D are proximately caused by his acts.

Proximate causation is a LIMITATION OF LIABILITY and deals w/ liability for UNFORESEEABLE OR UNUSUAL CONSEQUENCES OF ONE'S ACTS.

Front 54

What is the general rule of proximate causation?

Back 54

PROXIMATE CAUSE: D is liable for ALL HARMFUL RESULTS that are the NORMAL INCIDENTS OF and WITHIN THE INCREASED RISK CAUSED BY his acts.

NOTE: What makes D's act negligent is that there is a > risk of a particular harmful result occurring.

Front 55

PROXIMATE CAUSE - DIRECT CAUSE CASE

Where there is an ____________ ______ of events from the time of D's negligent act to the time of P's injury.

*In short, there is NO __________ INTERVENING FORCE.

Back 55

PROXIMATE CAUSE - DIRECT CAUSE CASE

Where there is an UNINTERRUPTED CHAIN of events from the time of D's negligent act to the time of P's injury.

*In short, there is NO EXTERNAL INTERVENING FORCE.

Front 56

DIRECT CAUSE CASES

(1) FORESEEABLE HARMFUL RESULTS - Is D liable?

(2) UNFORESEEABLE HARMFUL RESULTS - Is D liable?

Back 56

DIRECT CAUSE CASES

(1) FORESEEABLE HARMFUL RESULTS - D liable

If a particular harmful result was AT ALL foreseeable from D's negligent conduct, the UNUSUAL MANNER IN WHICH THE INJURY OCCURRED is irrelevant to D's liability.

(2) UNFORESEEABLE HARMFUL RESULTS - D NOT liable

Where D's negligent conduct creates a risk of a harmful result, but an ENTIRELY DIFFERENT AND UNFORESEEABLE TYPE OF HARMFUL RESULT occurrs, most courts hold that D is NOT liable for them.

Front 57

PROXIMATE CAUSATION - INDIRECT CAUSE CASES

Where a force came into motion _____ the time of D's negligent act and ________ W/ THE NEGLIGENT ACT to cause injury to P.

Those where ___________ FORCES are present.

Whether an intervening force will _______ D's liability for P's injury is determined by ______________.

Back 57

PROXIMATE CAUSATION - INDIRECT CAUSE CASES

Where a force came into motion AFTER the time of D's negligent act and COMBINED W/ THE NEGLIGENT ACT to cause injury to P.

Those where INTERVENING FORCES are present.

Whether an intervening force will CUT OFF D's liability for P's injury is determined by FORESEEABILITY.

Front 58

PROXIMATE CAUSATION - INDIRECT CAUSE CASE

FORESEEABLE RESULTS CAUSED BY FORESEEABLE INTERVENING FORCES - D liable

Dependent intervening forces: Normal responses or reactions to the situation created by D's negligent act. They are ALMOST ALWAYS foreseeable.

Give some examples.

Back 58

PROXIMATE CAUSATION - INDIRECT CAUSE CASE

FORESEEABLE RESULTS CAUSED BY FORESEEABLE INTERVENING FORCES - D liable

Dependent intervening forces: Normal responses or reactions to the situation created by D's negligent act. They are ALMOST ALWAYS foreseeable.

Ex. Subsequent medical malpractice; Negligence of rescuers; Subsequent disease; Subsequent accident

Front 59

PROXIMATE CAUSATION - INDIRECT CAUSE CASE

FORESEEABLE RESULTS CAUSED BY FORESEEABLE INTERVENING FORCES - D liable

Independent intervening forces: Independent actions rather than natural responses or reactions to the situation.

They may be foreseeable where D'S NEGLIGENCE INCREASED THE RISK THAT THESE FORCES WOULD CAUSE HARM to P.

Give some examples.

Back 59

PROXIMATE CAUSATION - INDIRECT CAUSE CASE

FORESEEABLE RESULTS CAUSED BY FORESEEABLE INTERVENING FORCES - D liable

Independent intervening forces: Independent actions rather than natural responses or reactions to the situation.

They may be foreseeable where D'S NEGLIGENCE INCREASED THE RISK THAT THESE FORCES WOULD CAUSE HARM to P.

Ex. Negligent acts of 3rd persons; Criminal acts / intentional torts of 3rd person; Acts of God

Front 60

PROXIMATE CAUSATION - INDIRECT CAUSE CASE

FORESEEABLE RESULTS CAUSED BY UNFORESEEABLE INTERVENING FORCES - D usually liable

Where D is negligent b/c his conduct threatens a result of a particular kind that will injure P. This result is ultimately produced by an UNFORESEEABLE intervening force. Most courts would generally find liability here.

EXCEPTION: Where the intervening force is an unforeseeable CRIME or INTENTIONAL TORT of a 3rd party; it will be deemed a "SUPERCEDING FORCE" that cuts off D's liability.

Back 60

PROXIMATE CAUSATION - INDIRECT CAUSE CASE

FORESEEABLE RESULTS CAUSED BY UNFORESEEABLE INTERVENING FORCES - D usually liable

Where D is negligent b/c his conduct threatens a result of a particular kind that will injure P. This result is ultimately produced by an UNFORESEEABLE intervening force. Most courts would generally find liability here.

EXCEPTION: Where the intervening force is an unforeseeable CRIME or INTENTIONAL TORT of a 3rd party; it will be deemed a "SUPERCEDING FORCE" that cuts off D's liability.

Front 61

PROXIMATE CAUSATION - INDIRECT CAUSE CASE

UNFORESEEABLE RESULTS CAUSED BY UNFORESEEABLE INTERVENING FORCES - D NOT liable

General rule: Intervening forces that produce unforseeable results (ie. results that were not w/i the increased risk created by D's negligence) will be deemed to be unforeseeable and SUPERCEDING.

SUPERCEDING FORCE: One that serves to BREAK THE CAUSAL CONNECTION between D's initial negligent act and the ultimate injury, and itself becomes a DIRECT, IMMEDIATE cause of the injury.

Thus, D will be relieved of liability for the consequences of his antecedent conduct.

Back 61

PROXIMATE CAUSATION - INDIRECT CAUSE CASE

UNFORESEEABLE RESULTS CAUSED BY UNFORESEEABLE INTERVENING FORCES - D NOT liable

General rule: Intervening forces that produce unforseeable results (ie. results that were not w/i the increased risk created by D's negligence) will be deemed to be unforeseeable and SUPERCEDING.

SUPERCEDING FORCE: One that serves to BREAK THE CAUSAL CONNECTION between D's initial negligent act and the ultimate injury, and itself becomes a DIRECT, IMMEDIATE cause of the injury.

Thus, D will be relieved of liability for the consequences of his antecedent conduct.

Front 62

Define SUPERCEDING FORCE.

Back 62

SUPERCEDING FORCE: One that serves to BREAK THE CAUSAL CONNECTION between D's initial negligent act and the ultimate injury, and itself becomes a DIRECT, IMMEDIATE cause of the injury.

Front 63

What are UNFORESEEABLE RESULTS?

Back 63

UNFORESEEABLE RESULTS: Results that were not w/i the increased risk created by D's negligence.

Front 64

PROXIMATE CAUSATION - UNFORESEEABLE EXTENT OR SEVERITY OF HARM

D liable

In both direct / indirect cause cases, the fact that the extent or severity of harm was NOT foreseeable does NOT relieve D of liability (ie. tortfeasor takes his victim as he finds him).

Thus, where D's negligence causes an AGGRAVATION OF P'S EXISTING PHYSICAL OR MENTAL ILLNESS, D is liable for the damages caused by the aggravation.

Back 64

PROXIMATE CAUSATION - UNFORESEEABLE EXTENT OR SEVERITY OF HARM

D liable

In both direct / indirect cause cases, the fact that the extent or severity of harm was NOT foreseeable does NOT relieve D of liability (ie. tortfeasor takes his victim as he finds him).

Thus, where D's negligence causes an AGGRAVATION OF P'S EXISTING PHYSICAL OR MENTAL ILLNESS, D is liable for the damages caused by the aggravation.

Front 65

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

(1) P must suffer ______ INJURY (shock is enough)

(2) P must be w/i the ______ ____ of D's negligent conduct.

Back 65

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

(1) P must suffer PHYSICAL INJURY (shock is enough)

(2) P must be w/i the TARGET ZONE of D's negligent conduct.

Modern trend: P can recover if he is a close relative who perceived the injury

Front 66

DESIGN DEFECT.

What is it?

Back 66

DESIGN DEFECT: When all products of a line are the SAME but have DANGEROUS PROPENSITIES

Front 67

MANUFACTURING DEFECT.

What is it?

Back 67

MANUFACTURING DEFECT: When a product emerges from manufacturing process different and more dangerous than the products made properly

NOTE: For P to prevail, the product must be DANGEROUS BEYOND THE EXPECTATION OF THE ORDINARY CONSUMER

Front 68

PROXIMATE CAUSATION

DIRECT CAUSE CASES--->Define

INDIRECT CAUSE CASES--->Define

Back 68

PROXIMATE CAUSATION

DIRECT CAUSE CASES: An uninterrupted chain of events from the time of D's negligent act to the time of P's injury (ie. no external intervening forces)

INDIRECT CAUSE CASES: Where a force comes into motion after D's negligent act and combines w/ the negligent act to cause injury to P (ie. intervening forces are present)

Front 69

CAUSATION IN FACT

CONCURRENT CAUSES--->Define

JOINT CAUSES--->Define

Back 69

CAUSATION IN FACT

CONCURRENT CAUSES: Where several acts combine to cause the an injury, but none of the acts standing alone would have been sufficient

JOINT CAUSES: Where several causes concur to bring about an injury (and any one alone would have been sufficient to cause the injury)

Front 70

PROXIMATE CAUSATION

DEPENDENT INTERVENING FORCES: Normal responses/reactions to the situation created by D's negligent act (almost always foreseeable)

INDEPENDENT INTERVENING FORCES: Independent actions rather than natural responses/reactions to the situation created by D's negligent act (may be foreseeable where D's negligence increased the risk that these forces would cause harm to P)

Back 70

PROXIMATE CAUSATION

DEPENDENT INTERVENING FORCES: Normal responses/reactions to the situation created by D's negligent act (almost always foreseeable)

INDEPENDENT INTERVENING FORCES: Independent actions rather than natural responses/reactions to the situation created by D's negligent act (may be foreseeable where D's negligence increased the risk that these forces would cause harm to P)

Front 71

PROXIMATE CAUSATION

NEGLIGENT ACTS OF 3RD PERSONS--->Is D liable?

CRIMINAL ACTS AND INTENTIONAL TORTS OF 3RD PERSONS--->Is D liable?

ACTS OF GOD--->Is D liable?

Back 71

PROXIMATE CAUSATION

NEGLIGENT ACTS OF 3RD PERSONS--->Yes, where such negligence was a FORESEEABLE RISK CREATED BY D'S CONDUCT

CRIMINAL ACTS AND INTENTIONAL TORTS OF 3RD PERSONS--->Yes, if D's negligence created a foreseeable risk that a 3rd person would commit a crime/intentional tort (ie. D's liability will not be cut off)

ACTS OF GOD--->Yes, if THEY ARE FORESEEABLE

Front 72

Define the following:

CONTRIBUTORY NEGLIGENCE

"PARTIAL" COMPARATIVE NEGLIGENCE

"PURE" COMPARATIVE NEGLIGENCE

Back 72

CONTRIBUTORY NEGLIGENCE: P's contributory negligence COMPLETELY BARS his right to recover

PARTIAL COMPARATIVE NEGLIGENCE: P may recover ONLY if his negligence was LESS SERIOUS (ie. 49% or less at fault) or NO MORE SERIOUS (ie. 50% or less at fault) than that of D

"PURE" COMPARATIVE NEGLIGENCE: Allows recovery no matter how great P's negligence is (ie. if P is 90% at fault and D 10%, P may still recover 10% of his damages)

Front 73

Define the following:

DESIGN DEFECTS

MANUFACTURING DEFECT

Back 73

DESIGN DEFECTS: When all the products of a line are the same but have dangerous propensities

MANUFACTURING DEFECT: When a product emerges from the manufacturing process different and more dangerous than the other products

Front 74

CONCURRENT CAUSES--->Would any of the acts standing alone have been sufficient to cause P's injury?

JOINT CAUSES--->Would any of the causes have been sufficient to cause P's injury

Back 74

CONCURRENT CAUSES--->None of the acts standing alone would have been sufficient to cause P's injury

JOINT CAUSES--->Any of the causes would have been sufficient to cause P's injury

Front 75

DESIGN DEFECTS

P must show a REASONABLE ALTERNATIVE DESIGN (ie. that a LESS DANGEROUS ATLERNATIVE IS ECONOMICALLY FEASIBLE)

Back 75

DESIGN DEFECTS

P must show a REASONABLE ALTERNATIVE DESIGN (ie. that a LESS DANGEROUS ATLERNATIVE IS ECONOMICALLY FEASIBLE)

Front 76

Is a product's COMPLIANCE w/ applicable government safety standards CONCLUSIVE that the product is NOT defective?

Back 76

NO! A product's compliance w/ applicable government safety standards is evidence (but NOT conclusive) that the product is not defective