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124 Cards in this Set

  • Front
  • Back
BATTERY
A person is liable for battery if
1. he acts intending to cause a harmful or offensive contact with another or
2. cause imminent apprehension of such a contact and
3. an offensive contact with the other person directly or indirectly results
ASSAULT
A prerson is liable for battery if he acts
1. with the intention to cause a harmful or offensive contact with another person
2. or to create an imminent apprehension of such conduct in another and
3. the other person is put in such imminent apprehension
INTENTIONAL
The defendant either
1. intends to cause the consequences of his act or
2. there is a substantial certainty that a tortious act will result form the conduct
TRANSFERRED INTENT
If the defendant intends tortious conduct to one party but the resulting harm is caused to another party, the defendant's intent is said to be transferred from the intended party to the party who was actually harmed.
FALSE IMPRISONMENT
False imprisonment occurs if the defendant
1. intentionally confines the plaintifff (physicallly or by overcoming the plaintiff's will)
2. to a bounded area from which there is no reasonably apparent means of escape and
3. plaintiff was aware of the confinement or harmed by it
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Intentional infliction of emotional distress requires:
1. an extreme and outrageous act by the defendant
2. intended to cause
3. severe emotional distress
4. damages
EXTENT OF LIABILITY FOR INTENTIONAL TORTS
A tortfeasor is liable for all consequences, whether foreseeble or not, that were an actual ("but for") cause of his actions.
TRESSPASS TO LAND
Trespass to land is the unauthorized intentional entry onto plaintiff’s realty.
TRESPASS TO CHATTEL
Trespass to chattel is an intentional interference the personal property of another resulting in damage. It is a minor intermeddling.
CONVERSION
Conversion is a serious intentional interference with plaintiff’s chattel resulting in damage. It results in is greater damage than trespass to chattel. The remedy may be a forced sale to the converter (payment of the value of the chattel at the time of conversion.)
DEFENSES
Consent
Consent can be express, implied, implied in law and it is a defense against intentional torts.
DEFENSES
Self-defense
Defense of others
A person is privileged to use reasonable force to prevent a tort. Deadly force is only reasonable when faced with deadly force.
DEFENSE
of property
A person is privileged to use reasonable, but not deadly force, in defense of property.
DEFENSES
Recovery of property
Recapture of chattel
A person who is in hot pursuit may invade land and use reasonable force to regain possession of a chattel if
1. the chattel was wrongfully taken and
2. posession was first requested and refused
PRIVILEGES
Shopkeepers
A shopkeeper is privileged to detain a suspected shoplifter as long as
1. there are reasonable grounds to believe a theft has occur
2. detention is in a reasonable manner and
3. for only the time necessary to make an investigation.
PRIVILEGES
Public necessity
A person is privileged to invade the property rights of another in an emergency not caused by the defendant. If it is a public emergency, the defendant will not be liable for trespass or damages.
PRIVILEGES
Private necessity
A person is privileged to invade the property rights of another in an emergency not caused by the defendant. He will not be liable for trespass but will be liable for damages.
PRIVILEGES
Reclaiming chattel
A person may be privileged to invade another’s land to reclaim chattel that was wrongfully taken. A person also may be privileged to enter the land of another to prevent serious harm to the land’s owner, a third person, or the land and chattels of another.
PRIVILEGES
Authority of law
A police officer, if acting within limits of his appointment, is privileged to arrest another without a warrant. An arrest under a warrant is privileged if the officer reasonably believes the person to be the individual named in the warrant, or has knowingly caused the officer to believe he is the person in the warrant.
PRIVILEGES
Discipline
A parent is privileged to use reasonable force or reasonable confinement upon his child as he believes is necessary for the child’s training, control or education. This privilege can be extended in similar situations, such as schoolteacher and children or a ship captain and crew members.
JUSTIFICATION IN GENERAL
A person may be privileged to use reasonable force to control a situation involving the safety of others, such as the school bus driver who took unruly students to the police station.
NEGLIGENCE
Elements
Negligence is the failure to exercise that degree of care and caution which a reasonable and prudent person would exercise under like conditions and circumstances. A prima face case requires showing:
1. duty
2. breach
3. cause (actual and proximate)
4. damages
STANDARD OF CARE
General
What a reasonable person would do in like and similar circumstances
DUTY
Products liability
A manufacturer has a duty to produce safe products.
DUTY
General
Under the majority view, a duty is owed to foreseeable plaintiffs in the zone of danger. Under the minority view, a duty is owed to all persons
STANDARD OF CARE
Professionals
Professionals are held to the skill and knowledge exercised by similar professionals either in the community, the state or their speciality.
DUTY
owed to trespassers
No duty is owed to undiscovered trespassers.
No duty is owed to discovered or anticipated trespassors for natural conditons of the land but a duty is owed to use reasonable care in the active operations or creation of unnatural hazards.
DUTY
owed to licensees
The land's possessor must
1. warn of dangerous natural or artificial conditoins on the land that create an unreasonable risk of harm to the licensee that the licenssee is unlikely to discover and
2. exercise reasonable care in the conduct of active operations on the property
3. has is no duty to inspect or repair.
STANDARD OF CARE
Children
Childern are hled to the same standard of care of a child of similar age, education, intelligence and experience except when engaged in adult activities or entrusted with a dangerous instrumentality.
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
Where the defendant’s negligence causes only mental disturbance, without physical injuries or symptoms, the great majority of courts hold there is no recovery. Where the defendant’s negligence inflicts physical injury accompanied by mental suffering, such as fright, courts allow the plaintiff to recover for the mental as well as physical harm. If the physical harm is not immediate, some states do not allow recovery. Others allow recovery if there is an “impact” on the plaintiff (even dust in the eyes).
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
(third parties)
Where the mental disturbance is caused by witnessing harm to another, most jurisdictions do not allow recovery. Some allow recovery if the third party is in the zone of danger.
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
California
California allows recovery for damages for emotional distress caused by observing the negligently inflicted injury of a third person if the plaintiff is
1. closely related to the injury victim
2. present at the scene of the injury-producing event and
4. is aware that it is causing injury and
4. and, as a result, suffers serious emotional distress -- a reaction beyond that which would be anticipated in a disinterested witness
BREACH OF DUTY
A duty is breached by the defendant's failure to follow the proper standard of care.
ACTUAL CAUSE
Actual cause exists if "but for" the acts of the defendatnt, the plaintiff would not have been injured.
INJURIES TO UNBORN CHILDREN
Recovery can be had for injuries to unborn children.
PROXIMATE CAUSE
Proximate cause exists if the inury was foreseeable, close in time and place and the direct result of chain of causation unbroken by independent intervening events such that the law will impose liability.
WRONGFUL BIRTH
A wrongful birth cause of action is brought by parents who claim negligent advice or treatment deprived them of the choice of avoiding conception or ending the pregnancy. In the majority of the jurisdictions where the cause of action is allowed, only pecuniary damages can be awarded. A minority of jurisdictions also allow recovery for pain and suffering.
WRONGFUL LIFE
A wrongful life cause of action is brought by or on behalf of a defective child who claims
ATTRACTIVE NUISANCE DOCTRINE
A landowner/possessor of land must use reasonable care to avoid hazards to children if
1. there is an artificial dangerous condition on the land of which the owner knows or should know
2. the owner knew or should have known that children frequent the vicinity
3. the condition/object on the land is likely to cause injury because of the children's inability to perceive the risk and
4. the cost of remedying the situation is slight compared to the risk (balancing test)
WRONGFUL DEATH ACTION
A wrongful death action brought by a personal representative or spouse directly compensates the survivors for losses resulting from the decedent’s death. Pecuniary damages include loss of support, loss of services, loss of consortium but not pain and suffering. They are not subject to claims by creditors.
WRONGFUL DEATH OF A FETUS
Most jurisdictions will allow recovery for the wrongful death of a fetus if it was viable.
SURVIVAL ACTION
A survival action preserves the claims of the decedent existing at death. Damages form pain and suffering, medical expenses and lost wages until the time of the decedent’s death are paid to the estate and subject to claims by creditors.
CONTRIBUTORY NEGLIGENCE
Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he is required for his own protection and which contributes as a legal cause to the harm he has suffered. In a contributory negligence jurisdiction, a negligent plaintiff cannot collect.
COMPARATIVE NEGLIGENCE
In a pure comparative negligence jurisdiction, the plaintiff’s recovery will be decreased by the percentage that he is judged to have contributed to his injury. In a modified comparative negligence jurisdiction, the plaintiff’s recovery will be decreased by the percentage that he is judged to have contributed to his injury, but if he contributed more than 50 or 51 percent (depending upon the state), he will not collect.
VICARIOUS LIABILITY
Respondeat superior
An employer is liable for the tortious acts of his employee that
1. are committed during the scope of employment and
2. which cause injuries or property damage to a third person.
JOINT ENTERPRISE
When two or more individuals agree to enter an undertaking in the performance of which they have a community of interest and mutual right of control, each member in the joint enterprise (or joint venture) is vicariously liable for the torts of others committed within the scope of the enterprise.
INDEPENDENT CONTRACTORS
The employer of an independent contractor is not vicariously liable for the physical harm caused to another by an act or omission of the contractor or his servants. The employer, however, is liable for negligence in selecting, instructing or supervising the contractor, or for non-delegable duties of the employer, or for work which is inherently dangerous.
IMPUTED CONTRIBUTORY NEGLIGENCE
A parent is not generally vicariously liable for the tortious conduct of his child unless
1. the parent entrusts the child with a dangerous instrumentality
2. the child engages in tortious conduct as a servant of the parent
3. the parent knows of the child’s wrongdoing and consents to it and
4. parent fails to exercise proper control over the child.
NEGLIGENT ENTRUSTMENT
If the owner of a vehicle knows or should know of the negligent propensities of the driver to whom the vehicle is entrusted, the owner may be liable for subsequent negligent acts of the driver.
JOINT TORTFEASORS
Joint tortfeasors should share financial responsibility for the harm which has been inflicted on the plaintiff.
STRICT LIABILITY
Under strict liability, a defendant is held liable although he neither intentionally injured the plaintiff nor failed to live up to the objective standard of reasonable care as in negligence. There are three primary areas of strict liability: 1. wild animals,
2. ultrahazardous activities and
3. products liability
WILD ANIMALS
A possessor of a wild animal is subject to strict liability to another for harm done by another person if the harm results from a dangerous propensity that is characteristic of animals of that class or of which the possessor has reason to know.
DOMESTIC ANIMALS
One is strictly liable for harm done by a domestic animal if the person had knowledge of the dangerous propensities of the animal.
ABNORMALLY DANGEROUS ACTIVITIES
In weighing if the activity is ultrahazardous, these factors apply:
1. the harm arises from that which makes the activity dangerous
2. high risk of harm
3. risk cannot be eliminated by use of ordinary care
4. activity is not common
5. inappropriateness of activity to the place where it is carried out 6) extent to which the value to the community is outweighed by the dangerous attributes of the activity
PRODUCTS LIABILITY
One who manufactures, sells or otherwise places in the stream of commerce a dangerous or defective product may be held liable for personal injury or property damage resulting from the use of such products.
PRODUCT LIABILITY
Five causes of action
A cause of action can be brought for products liability in five ways"
1. intentional tort
2. negligence
3. breach of express warranty
4. breach of implied warranty and
5. strict products liability.:
PRODUCTS LIABILITY Negligence
Duty -- A duty is owed to those who may foreseeably come in contact with the product. Could be anyone who may reasonably expected to use, consume or be affected by the goods and who suffers injury.
Then assess AC, PC and D.
Breach – Did the defendant make the product in a reasonable manner? Consider these factors:
1.design
2. manufacture and
3.warning.
Then assess actual cause, proximate cause and damages.
PRODUCTS LIABILITY
Breach of express warranty
The plaintiff must show that defendant
1. sold goods
2. with express representtions
2. that made them unreasonably dangerous
3. and that it was the cause (actual and proximate) of
4. injury to plaintiff (damages)
PRODUCT LIABILITY
Defenses
Defenses include assumption of the risk, notice requirements and improper and unforeseeable misuse of the product. Disclaimers and comparative fault may be defenses.
BREACH OF IMPLIED WARRANTY
The two types of breach of implied warranty are breach of implied warranty of merchantability and breach of implied warranty of fitness for a particular purpose.
IMPLIED WARRANTY OF MERCHANTABILITY
If a merchant deals in a type of goods, there is a warranty that the goods are fit for ordinary use.
IMPLIED WARRANTY OF FITNESS FOR PURPOSE
Where a seller knows or has reason to know that the buyer is purchasing goods for a particular purpose and the buyer is relying on the seller’s skill or knowledge, there is an implied warranty that the goods are fit for that purpose.
ELEMENTS FOR BOTH IMPLIED WARRANTIES
There must be
1. a sale of goods by dealers
2. an implied promise by the defendant
3. the plaintiff has the same three alternatives as under express warranty
and then AC, PC and D.
IMPLIED WARRANTY
Defenses
Defenses include assumption of the risk, notice requirements and improper and unforeseeable misuse of the product. Disclaimers and comparative fault may be defenses.
STRICT PRODUCTS LIABILITY
Liability is imposed without fault against manufacturers and suppliers of defective products for injuries cased by the defect.
STRICT PRODUCT LIABILITY
Elements
There is an absolute duty owed by a commercial supplier to provide a product free of any unreasonably dangerous defect if the product reaches the plaintiff without alteration. There is
1. absolute duty
2.parties who can bring action
3. must be a product
4. and the defect existed when it left defendant’s control -- manufacture, design, warnings, other problems
and then AC PC and D.
PRIVATE NUISANCE
A private nuisance is an invasion of a plaintiff’s interest in use or enjoyment of his land.
PUBLIC NUISANCE
A public nuisance is an unreasonable invasion in the use or enjoyment of common property.
NUISANCE
Elements
There must be
1. liability-forming conduct (intent, negligence or strict liability
2. interference which is substantial
3. interference is of such a nature, duration or amount as to be unreasonable and
4. causation.
NUISANCE
Remedies
The remedies are
1. tort action for damages
2. injunction and
3. self-help
DEFAMATION
Defamation is a false statement about the plaintiff that would lower the plaintiff’s reputation in the community and is communicated to at least one other party who understands it.
DEFAMATION
Elements
Elements are:
1. defamatory statement
2. about the plaintiff
3. falsity
4. fault
5. publication and
6. damages
DEFAMATORY STATEMENT
Under the majority view, a statement is defamatory if it would tend to lower the plaintiff’s reputation in the community. Under an older, minority view, it would hold the plaintiff up to scorn, hatred or ridicule. It does not have to be believed but it must be
1.understood by another in the defamatory way and
2. about the plaintiff
FALSITY
A statement is false if it is not substantially true. There is no such thing as a false opinion but if the opinion asserts by implication the existence of facts supporting it which are false, it can be defamatory.
FAULT
At common law, if the statement was false, malice was implied.
ACTUAL MALICE
Actual malice is the standard of fault for those making statements about public figures or public officials. Actual malice is if the defendant knew the statement was false or had serious doubts that it was true.
NEGLIGENCE OR MALICE
When the case involves a private individual v. a media or private defendant, the standard of fault can be negligence (majority) or malice (minority).
PUBLICATION
Defamatory words must be published to at least one person other than the plaintiff who understands the statement as being defamatory, and the defendant must have intended the publication.
LIBEL
Libel consists of
1. the publication
2. of defamatory matter
3. by written or printed words or a similar form of communication that has the potentially harmful qualities characteristics of written or printed words.
Factors to decide if it is libel (rather than slander):
1. area of dissemination
2. deliberate and premeditated character of its publication and
3. its durability
SLANDER
Slander consists of the publication of defamatory matter by spoken words, transitory gestures or any other form of communication other than those constituting libel.
INVASION OF PRIVACY
by intrusion on seclusion
Defendant will be liable if he
1. intentionally intrudes, physically or otherwise,
2. upon the solitude or seclusion of another or
3. his private affairs or concerns
4. if the intrusion would be highly offensive to a reasonable person.
INVASION OF PRIVACY
by appropriation
Defendant will be liable if he
1. appropriates to his own use or benefit the name or likeness
2. for the commercial purposes of promotion or advertising a product
INVASION OF PRIVACY
by public disclosure of private facts
Defendant will be liable if he
1. gives publicity to the intimate details of another’s private life
2. and the matter disclosed would be highly offensive to a reasonable person and
3. and the matter is not legitimate concern to the public. Liability can be found even if the statements are true.
INVASION OF PRIVACY
by false light
Defendant will be liable
1. plaintiff was placed in a false light
2. that. would be highly offensive to a reasonable person and
2. there was publicity.
CIVIL RIGHTS
Every person who under color of state law subjects or causes to be subjected any person to the deprivation of any right, privilege or immunity secured by the U.S. Constitution shall be liable for damages.
MALICIOUS PROSECUTION
Malicious prosecution is the wrongful institution of criminal proceedings used as a means of causing harm. The elements are
1. criminal proceedings
2. termination in favor of the plaintiff
3.lack of probable cause
4.malice and
5. damages
WRONGFUL CIVIL PROCEEDINGS
A defendant may be liable if he
1. instituted civil proceedings
2. that were terminated in favor of the plaintiff
3. for an improper purpose of the defendant and
4. damages
ABUSE OF PROCESS
Defendant may be liable for
1. Legal process started
2. in proper form with probable cause and a possibility of success but
3. is used for an ulterior purpose for which it not designed
INJURIOUS FALSEHOOD
An injurious falsehood is a false and malicious statement with respect to plaintiff’s property which results in a financial loss.
MISREPRESENTATION
Misrepresentation is a tort that protects the economic interest of those who are induced to enter into transactions as result of someone’s falsehood.
INTERFERENCE WITH CONTRACTURAL RELATIONS
One who invades a contractual right to gain profit or to prevent another from enjoying the benefit of a contract can be held liable for interference with contractual relations.
INTERFERENCE WITH PROSPECTIVE ADVANTAGE
One may be liable for invasion of a prospective contractual right to gain profit or for preventing another from enjoying the benefits of a prospective contract.
LICENSEE
A licensee is one who enters onto the land with the possessor's permission for her own purpose or business, rather than that of the owner.
INVITEE
An invitee enters the land in response to the possessor's invitation for
1. a business purpose of the owner
2. a purpose for which the land is held open to the public
3. or as a social guest
DUTY
owed to invitees
The land's possessor must
1. warn of dangerous natural or artificial conditions on the land that create an unreasonable risk of harm to the licensee that the licenssee is unlikely to discover and
2. exercise reasonable care in the conduct of active operations on the property
3. to make reasonable inspections to discover latent dangerous conditions and
4. to repair such latent dangerous conditions
DUTY
owed to users of recreational land
One who permits the public to use his land for recreational purposes without charging a fee is not liable for injuries suffered by a recreational user unless the the landowner wilfully and maliciously failed to guard against or warn of the danger.
DUTY
Modern trend
The modern trend is to reject the licensee/invitee distinction and apply a reasonable person standard in all cases.
PRODUCTS LIABILITY
Manufacturing defect
A manufacturing defect exists if a produce emerges from themanufacturing process different and more dangerous than those products made properly.
Plaintiff must show that the the product failed to perform as safely as an ordinary consumer would expect. The defendant must anticipate reasonable misuse. (This test also applies to defective food products.)
PRODUCTS LIABILITY
Design defect
When all products of a line are the same but have dangerous propensities, they may be found to have a design defect.
Plaintiff must show that the product could have been made safer without serious impact on the product's price or utility.
NEGLIGENCE
Compliance with government safety standards
Lack of compliance with government safety standards establishes that a product is defect, but compliance is evidence -- but not conclusive -- that the product is not defective.
STRICT PRODUCTS LIABILITY
Elements
Plaintiff must prove
1. seller was a commercial supplier
1. a dangerous defect
2. the defect existed when it left the defendant's control
PRODUCT LIABILITY
Test for control
The defect must have existed when it left the defendant's control.
PRODUCT LIABILITY
Of wholesalers and retailers
Under strict products liability, wholesalers and retailers will be liable but can seek idemnification from the manufacturer. Under negligence, they are not negligent if the defect would not have been detectable if they conducted at least a cursory inspection of the product.
PRODUCTS LIABILITY (ALL CAUSES OF ACTION)
Damages
Physical injury or property damage must be shown. Economic losses are not enough.
STRICT PRODUCTS LIABILITY
Defenses
Ordinary contributory negligence is no defense where the plaintiff merely failed to discover the he risk, or if the plaintiff's misuse was reasonable foreseeable.
Assumption of the risk may be defense.
IMPLIED WARRANTY OF MERCHANTABILITY
Under the implied warranty of merchantability, the goods must be of avreage acceptable quailty and are generally fit for the ordinary purpose for which the goods are used.
IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE
The implied warranty of fitness for a particular purpose arises when the seller
1. knows or has reason to know the particular purpose for which the goods are required and
2. the buyer is relying on the seller's skill and judgment in selecting the goods
DEFENSES
Assumption of the risk
Assumption of the risk is a defense to negligence if it is shown that the plaintiff was
1. aware of the risk
2. and acted urneasonably in placing himself at risk
DEFENSES
Last chance doctrine
In contributory negligence jurisdiction, the last chance doctrine says that even if the plaintiff were negligent, he may still recover if the defendant had the last clear chance to prevent the accident.
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
A defendant may be liable for NIED to a bystander to an accident or intentional tort that causes the bystander
1. suffer severe emotional distress
2. because they were close in time, place or relationship
3. to the other person . Some jurisdictions require an actual impact on the person of the plaintiff and others require a physical manifestation of teh emotional distree.
DEFAMATION
Defenses
Defenses to defamation are
1. Conset (exceed scope)
2. Absolute privilege
3. Truth
4. Privilege, qualified
CAT P
DEFAMATION
Absolute privilege
Absolute privileges are
1. legislative
2. executive (in national security matters)
3. judicial -- during proceedings
4. spousal communication
5. political broadcasts?
DUTY
Landlord
Under the common law, the landlord owed no duty to the tenant or the tenant's invistees except
1. latent defects -- duty to disclose known ones
2. short-term lease -- three months or less, furnished place
3. negligent repairs by landlord
4. public use -- knows of major defect; knows tenant won't fix it and knows the public uses the premises
5 common areas -- under the landlord's dominion/control
DEFAMATION
Test for defamatory statement
Traditionally, statement exposes plaintiff fo public hatred, contempt or ridicule.
Modernly, adversely affects plaintiff's reputation.
DEFAMATION
Slander per
Slander is oral defamation, and special damages are required unless the statement is slander per se. Slander per se are statements about the plaintiff's
1. chastity
2. criminal activities
3. communicable disease
4. or business
CCCB
DEFAMATION
Publication
The statement must have been communicated, either intentionally or negligently, to at least one other person who understood it.
DEFAMATION
Qualified privileges
1. First Amendment
2. Opinion?
3. Protection of private interest
4. Public interest
4. Published report of a public proceeding (newsworthy)
NEGLIGENCE
Res ipsa loquitor
The plaintiff can prevail without direct evidence of defendant's negligence if he can show that it is more likely than not that the defendant was negligent and that there is a causal connection to the defendant's harm. Irrelevant if there is direct evidence of negligence.
NEGLIGENCE
Actual cause -- "but for" test
The test of actual cause is "but for" -- the plaintiff's harm would not have occurred but for the plaintiff's negligence.
NEGLIGENCE
Actual cause -- substantial factor
If defendant would escape liability bcause other causes have contributed to the harm, and each cause woul dhave been sufficient to produce the result, defendant's conduct is still a cause of the event if it was a substantial factor in causing the harm.
CONTRIBUTORY NEGLIGENCE
Last clear chance doctrine
In a contributory negligence jurisdiction, a negligent plaintiff may still recover if the defendant had the last clear chance to avoid the accident.
INTERFERENCE WITH BUSINESS RELATIONS
A defendant may be liable for
1. unreasonably and
2. illegally
3. interferring with a person's
4. known or apparent business relationships
PRODUCTS LIABILITY
Breach of implied warranty
Plaintiff must show that the defendant
1. sold goods
2. by representing they were safe for ordinary use
3. goods were unreasonably dangerous for that use
4. and it was the actual and proximate cause of injury
5. of plaintiff's injury
PRODUCTS LIABILITY
Tests for design defects
The court will use either the
1. consumer expectations test
2. feasible alternative test