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62 Cards in this Set

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PUBLIC NUISANCE - REQs
1. SUBSTANTIAL harm/interference with a party's use or enjoyment of its land
2. UNREASONABLE harm/interference (etc)
3. Injury must be to the public at large
4. Personal harm is separate from public (must show that he suffered a different kind of harm than the gen. public)
PRIVATE NUISANCE (General Definition)
(CIVIL CASE)
DEF: a SUBSTANTIAL and UNREASONABLE interference with a party's use or enjoyment of its land. (either intentional or unintentional)

Private nuisance is one private citizen suing someone for a nuisance on her property

restricted to ongoing interference with another's right to use and enjoy REAL property.
trespass v. nuisance: 6 SIMILARITIES
1. interference with land
2. P must have a possessory interest in the relevant prop.
3. often injunction and/or damages are requested
4. neither requires proof of actual damages or harm
5. neither requires proof that D acted to purposely interfere with P's rights
6. neither requires that D's conduct fall below the threshold of reasonableness
trespass v. nuisance:
DIFFERENCE
TRESPASS:
1. physical invasion
2. trivial interferences with exclusive control and possession okay.
3. little to no consideration given to the value of trespassory activity

NUISANCE:
1. non-physical interference with enjoyment okay
2. requires UNREASONABLE interference with another's use (unreasonable as to what P should have to put up with, not D's behavior)
3. balancing; value of D's activity taken into account.
Definition of SUBSTANTIAL (for nuisance)
Determined by its effect on the average/reasonable person (a supersensitive person will not recover)

nonminal injury not enough - must be actually and substantially discomforted.
Test to determine if nuisance is unreasonable (generally, and 5 factor test)
1. Balancing: harm to P against benefits of D's conduct to community.

Penland 5 factor test:
a. location
b. character of neighborhood
c. nature of thing complained of
d. frequency of intrusion
e. effect upon P's enjoyment of life, health and prop.
OVERVIEW TEST OF HOW TO DETERMINE PRIVATE NUISANCE (a la Penland v. Redwood Sanitary Sewer)
1. Is it SUBSTANTIAL?
nonminal injury not enough - must be actually and substantially discomforted.

2. Is it UNREASONABLE? 5 Part Test:
a. location
b. character of neighborhood
c. nature of thing complained of
d. frequency of intrusion
e. effect upon P's enjoyment of life, health and prop.
THREE General Approaches to Remedies of Nuisance
o balancing approach

o Restatement: financial burden of paying for the harm would not make the continuation of the D’s enterprise feasible. – Depends on D’s ability to pay. WEIRD.

o Harm caused to the P is more than the P should be asked to bear without compensation
DEFENSES TO NUISANCE
CARGO

(C)ontributory Negligence: D must claim that P negligently created the nuisance (aka only for unintentional nuisance claims)

(A)ssumption of the (R)isk: -applies if D engaged in neg. or ultrahazardous conduct, or
- or P comes to the nuisance (restatement says this is just one factor)

(G)ovt Authority: conforming to local zoning laws is persuasive but not conclusive evidence that it's not a nuisance

(O)thers are liable: when several parties combine to produce a nuisance, each party is only liable for portion of damages he/she caused.
Sturges v. Bridgman
Takeaway: balance competing interests and look at specific circumstances

Doc sues for shaking and noise through adjoining wall between doc and sausage-maker

P claims Prescription Act (like easement, he’s been doing it for so long, he now has a right to do it)

Brit. Court says there couldn't have been consent.
Economic/Reality considerations in determining remedy for public nuisance: In Boomer v. Atlantic Cement, what were Court's three options and which didit choose?
Acknowledges there is a nuisance. Court says it has three options:

(1) Trial Judge gives temporary damages for the continued operation of plant every three years (hoping that parties will settle).

(2) Grant injunction but postpone its effect to a future date so that the D can eliminate the nuisance

(2) Grant injunction conditioned on payment of permanent damages to Ps which would compensate them for the total economic loss of their property

Court chooses the third option because it doesn’t really think the D could ever get rid of the nuisance
Ultrahazadous Activites: STRICT LIABILITY

Two Types?
Animals
Abnormally dangerous activities
Two categories for strict liability for animals
Wandering Livestock: only liable for the type of damage expected
(Exceptions: wandering cats and dogs; livestock wandering off a road)

Inherently dangerous animals: (2 reqs)
1. inherently dangerous animal
2. Tort occurred in a place where presence of animal is unexpected
What is considered a "Dangerous" animal?
two kinds

wild
lion causes damage. A is strictly liable for the injuries that the lion causes as long as they are of the type that would be expected of a lion.

animals where the owner knows/should know that the particular animal is dangerous.
A has a dog that always threatens the mailman. Strictly liable for the injuries that the dog cause that are the type that would be expected of this animal.


Essentially, the question is whether the person is introducing a new risk into the environment.
Def: ULTRAHAZARDOUS ACTIVITIES: Generally
inherrently dangerous, non-natural use (dangerous, out of place activity)

Question is whether you are introducing a new risk into the environment.

strict liability only applies when the type of injury suffered is the type of injury meant to be avoided.
Rylands v. Fletcher
D floods P’s mine by creating a nearby reservoir.

Not trespass because no intent.
Not nuisance because not ongoing.
Not negligence because dangers of a properly built res would have been low, and there was a good purpose for it, so probably not negl. to build it in the first place.

So strict liability because adding a new risk into the environment.
Who decides if there is strict liability question to be brought?
The Court!
Klen v. Pyrodyne:

SIX FACTORS to consider in determining if an activity is abnormally hazardous (where strict liability will be applied)
Fireworks case where injured P sues pyrotechnicians. Evidence has been necessarily destroyed, b/c they are fireworks, so how do you determine nuisance?

Restatement: ALL ABOUT APPROPRIATENESS

1. Existence of a high degree of risk of some harm to ther person, land or chattel of others,
2. Likelihood that the harm that results from it will be great;
3. Inability to eliminate the risk by the exercise of reasonable care;
4. Extent to which the activity is not a matter of common usage;
5. Inappropriateness of the activity to the place where it is carried on; and
6. Extent to which its value to the community is outweighed by its dangerous attributes
Can you have comparative responsibility in strict liability cases?
YES (in some juris.), but hazy on how to divvy up responsibility.

Causation for cont. resp must be ACTUAL and PROXIMATE

IE: If a lab owner with particularly delicate equipment has his shit destroyed by a tiny explosion. Lab owner should bear the risk of the oddity of the nature of the equipment. (If it was a BIG explosion, then lab owner probably not in trouble)
Strict liability hypo: explosives set off vibrations that upset a mama cat, who then killed its kittens. Liability on the part of the dynamiter?
NO. You would not expect that sort of behavior in reaction to the explosion. Maybe if the explosion blew up the kitties.
Prima Facie products liability case:
A is subject to liability to a person P in products liability if:
1. PRODUCT: A sold a product;
2. SELLER: A is a commercial seller of such products;
3. INJURY: P has suffered an injury;
4. DEFECT: At the time it was sold by A, the product was in defective condition; AND
5. CAUSE: The defect functioned as an ACTUAL and PROXIMATE cause of P's injury

P.S. I D(on't) C(are)
What about docs who do hip replacement? Service or sale of product?
Docs are in special class. Doc not liable, because even though he sold you a hip, it is considered a service contract.
What about expensive dinner at restaurant?
Sale; not a service.

GENERALLY, when a sale is incorporated into a service, it's possible the service provider isn't liable in products liability depending on juris.
Which items are NOT considered a product?
1. services
2. real property that isn't a product (though prefab houses are)
3. body parts
4. animals generally
5. textual materials (books)
6. intangibles (elec., x-ray)
7. used products
Three classifications of what is "defect"
1. Manufacturing defect

2. Design defect

3. Failure to warn
Manufacturing Defect
A particular product has manufacturing defect if it diverges from the mfg's own specs.

mfg defects culpability flow down, not up.

EX. RJR sells cigs with a toe in it unknowingly. Gas station resells it. Gas station held strictly liable, even if they had no knowledge or reason to know.
Design Defect
Design defects inherent in an entire line of products - there is a flaw in the design
Failure to Warn
A product that should carry a warning doesn't
Can you recover for pure economic damages in products liability?
Generally, no
Escola v. Coca-Cola
Traynor concurrence said strict liability should be the standard when are article is placed on the market by a mfg who knows it will be used without further inspection and that article proves to have a defect to cause an injury
Henningsen v. Bloomfield
Court found no negligence for failed driveshaft, but gave case to jury on implied warranty of Chrysler. Signed waiver was unconscionable.

Why? Four Reasons:
1. Mfg in best position to make product safe or spread the losses equitably.
2. Warranties for dangerous products extend from mfg to expected ultimate consumers.
3. Chrysler created demand knowing they wouldn't be in privity.
4. No chance to negotiate K
5. Against public policy to disclaim
SOL for warranty? Strict Liability?
Strict Liab: 3 yrs

Warranty: 4 yrs
Cronin v. J.B.E. Olson
Chevy makes truck. Olsen customizes it, sells to Chase, who sells it to bread Co. Cronin drives and gets injured.

Take away points:
1. RESELLERS are also subject to strict liability

2. favoring customers by taking our "unreasonably dangerous" req. - D better to handle the loss

3. Failure to discover defect is not a defense.
Design Defect test: TWO APPROACHES
1. Consumer Expectation Test:
a. Compare actual product to a prototype in the mind of the ordinary customer. (Was the product more dangerous than the ordinary consumer would have expected?)

2. Risk-Utility Test:
a. Risks of its design outweigh its utility (D must prove)
b. cigarette companies would be FUCKED under this test.
Gower v. Savage Arms
Dude shoots himself in the foot. sues on 4 claims:

1. unloading defect: dismissed...wasn't unloading the gun when he shot the foot.

2. Detent defect: no real merit, but allows it to proceed

3. Manufacturing Defect: Allows it to be heard, but problem is whether the ridge on the gun is from regular wear and tear.

4. Failure to warn: dismissed. no causation. Gower knew the risks of guns.
Crashworthiness Doctrine
Used to be able to say that cars weren't intended to be crash, BUT no it is considered forseeable that a car will be involved in an accident.
Cepeda v. Cumberland Engineeering
Factory worker, guard was off, and lost 4 fingers. Suing the mfg for design defect.

Take away point: You MUST design your product for forseeable misuse, unless P expressly assumes the risk.
Cepeda's 7 factors to consider to determine if liability under products liability is appropriate.
1. The usefulness and desirability of the product -its utility
2. The saftey aspects of the product - the likelihood that it will cause injury, and the probably seriousness of that injury
3. The availability of a substitute product which would meet the same need and not be as unsafe.
4. The mfg's ability to eliminate the unsafe character of the product without impairing its uselfulness or making it too expensive to maintain its utility.
5. The user's ability to avoid danger by the exercise of care in the use of the product.
6. The user's anticipated awareness of the dangers inherent int he product and their avoidability, because of general public knowledge or existence of suitable warnings.
7. The feasibility, on the part of the mfg., of spreading the loss by setting the price of the product or carrying liability insurance.
Defenses in products liability?
Comparative Fault: Recovery is decreased (replaces contributory negligence)

Expressed assumption of risk
Barker v. Lull Engineering
CA is P-friendly state:
construction site loader had some shit not safe on it. Dude got his leg crushed. Used incorrectly, so D wins.

Take away point - P's choice to use either consumer expectation test of risk-utility approach
Consumer Expectation Test, Risk Utility Test as defined by Barker
Expectation: 1. If the product has failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably forseeable manner

Risk Utility: If, in light of certain factor, the benefits of the challenged design are outweighed by the risk of the danger inherent in such a design.
"forseeable misuse" as defined by Barker:
Used in a reasonably forseeable way
Soule v. GM (design defect)
P driving in Camaro, hit by Datsun, ankle hurt b/c footboard was crushed. P won under risk-utility test.

D responsible for only "enhanced" injury

Take away point: Sometimes the Consumer Expectation test in not available:
for highly TECHNICAL and MECHANICAL matters

The consumer has no basis to expect anything
Reasons why Risk-Utility is D friendly
1. D get to use its experts and testimony about design.

2. Gets it out of hindsight land (CE test)

3. Focus is not on injuries
RISK-UTILITY DOMINATES THROUGHOUT THE US
JUST REMEMBER THAT RISK-UTILITY DOMINATES THROUGHOUT THE US
Failure to Warn
only applicable where a properly manufactured and designed product carries a non-obvious risk
Which test is used in failure to warn cases? (according to Restatement, anyway)
RISK-UTILITY
Soule v. GM (design defect)
P driving in Camaro, hit by Datsun, ankle hurt b/c footboard was crushed. P won under risk-utility test.

D responsible for only "enhanced" injury

Take away point: Sometimes the Consumer Expectation test in not available:
TECHNICAL and MECHANICAL matters

The consumer has no basis to expect anything
Reasons why Risk-Utility is D friendly
1. D get to use its experts and testimony about design.

2. Gets it out of hindsight land (CE test)

3. Focus is not on injuries
RISK-UTILITY DOMINATES THROUGHOUT THE US
JUST REMEMBER THAT RISK-UTILITY DOMINATES THROUGHOUT THE US
Failure to Warn
only applicable where a properly manufactured and designed product carries a non-obvious risk
Which test is used in failure to warn cases? (according to Restatement, anyway)
RISK-UTILITY
How does P prove that, had there been a warning, he would have done something differently?
1. MOST courts create a presumption that if there had been a warning, the consumer would have read it and acted accordingly.

2. Then D has burden or proving that the P would NOT have read the warning.

3. GENERALLY A JURY QUESTION, though the judge will occassionally rule as a matter of law that a P would not have read a warning.
Anderson v. Owens Corning
P says warning should have been but on asbestos products. D wants to make "state of the art" defense (They didn't know it was dangerous in the 1950's)

Take away point: Warning need only be issued if risk was KNOWN or KNOWABLE. (P must prove)
Dangers you must warn about
1. Must be known or knowable AND

2. non-obvious risk

3. Is the risk serious enough that it would be infringing on the P autonomy not to warn?

4. Will the uses not be careful enough, if they don't know about the risk?
NEGLIGENCE? PRODUCT LIABILITY?
HYPO:
D makes drug that can cause rash. Puts wrong dosage amount on label.

Liability?

Assume no Negligence (maybe D couldn't prevent misprinting)
YES. Uunder products liability, if a risk is knowable, the D is liable.

(Under negligence, it's possible for a risk to be knowable and for a reasonable D not to know about it w/o liability)
McDonald case
birth control pills with stroke risk – lady had stroke. Warning included abnormal blood clotting would could lead to death. The word stroke is not used, but that is what a stroke it.

Take away point: Is the warning adequate? Would a layperson know what that means? Consequences of a stroke would be worse than risk of death, possibly? FDA approved it, but this is evidentiary, not conclusive.
LEARNED INTERMEDIARY DOCTRINE
The manufacturer has to warn the doc, not the patient.
What's the causation problem in failure to warn cases?
P has to prove that, had she been properly informed, she would have acted differently.

(If you knew there was suicide risk in taking zoloft, but doc prescribed it anyway, would you not take it?)
Motus v. Pfizer
zoloft - no suicide warning.


no rebuttable presumption here.
Here, the TYPE of doctor is important. How would he have acted?

P needed to show 1 of 2 things:
1. Doc wouldn't have prescribed the drug; OR

2. Doc would have prescribed the drug but would have monitored the patient more closely.
Rebuttable Presumption
assume that if the doc would have received an adequate warning, he would have headed it. SOME JURIS. USE THIS.
PURPOSES OF TORTS
1. keeping peace

2. deterring bad behavior:
insurance undermines this (but people don't like to be sued, and premiums will go up)

3. Give peeps freedom to act without being afraid of liability

4. compensate injured peeps

5. Spreading loses