Torts - Strict Liability, Nuisance, Vl, Co-Ds, Other Other Misc Torts

Front 1

STRICT TORT LIABILITY
(safety precautions are irrelevant)
APPLIES TO 3 AREAS:

Back 1

(P must prove the existence of an absolute duty on D to make safe, breach of that duty, causation, & damage)
1. Injuries caused by animals
2. Abnormally dangerous activities
3. Injuries caused by products

Front 2

STRICT LIABILITY - Injuries Caused by Animals
1. Domesticated Animals Rule
2. Wild Animals Rule

Back 2

1. Domesticated Animals:
- General rule: P NOT strictly liable for domesticated animal P keeps EXCEPT if P has KNOWLEDGE OF animal's dangerous propensities, but CHOOSES to keep it (have notice if, i.e., dog has bitten someone before. For Bite #1, owner may be liable (under negligence), but for Bites 2 & 3, strictly liable).
2. Wild Animals: STRICTLY LIABLE

Front 3

STRICT LIABILITY - Abnormally Dangerous Activities

Back 3

1. Activity involves a foreseeable risk of serious harm even when reasonable care is exercised, and
2. Activity is not a manner of common usage in the community (D is the only one doing it).
3. Injury must arise form the abnormally dangerous propensity of D's activity.

Front 4

INJURIES CAUSED BY PRODUCTS:
- Causes of Action

Back 4

1. Strict Products Liability
2. Negligence
3. Implied Warranties of Merchantability and Fitness
4. Misrepresentation (Express Warranty & Misrepresentation)
5. Fraud
6. Battery

Front 5

Injuries Caused by Products:

STRICT PRODUCTS LIABILITY
- Elements

Back 5

1. Strict Duty owed by MERCHANT/ COMMERCIAL SUPPLIER (routinely deals in goods of this type)
2. Breach: Product has a DEFECT making it UNREASONABLY DANGEROUS to users when it left D's control (presumption: not been altered if traveled in ordinary channels of distribution)
3. Cause: P makes a FORESEEABLE USE of the product.
4. P suffers DAMAGES.

Front 6

Injuries Caused by Products
Products Liability: Strict Liability
- MANUFACTURING DEFECT

Back 6

Product departs from its intended design in a way that makes it more dangerous than consumers would expect – an aberration.

Front 7

Injuries Caused by Products
Products Liability: Strict Liability
DESIGN DEFECT

Back 7

There is another way that product could have been physically constructed.
- P must show that HYPOTHETICAL ALTERNATIVE DESIGN meets 3 elements:
1. Must be safer than version of product that was marketed,
2. Must be economical (can’t be significantly more expensive), and
3. Must be practical (cannot make the product difficult to use).

Front 8

Injuries Caused by Products
Products Liability: Strict Liability

Type of defect:
- WARNINGS & INSTRUCTIONS:

Back 8

- If a product has residual risks that cannot be eliminated by a physical re-design, and a consumer would not be aware of those, the product will be defective UNLESS it carries an ADEQUATE WARNING (absent a warning, strict liability)
- Inclusion of a warning label is economically feasible and practical alternative (D liable).

Front 9

Strict Liability - Defenses
1. Comparative Responsibility
2. Assumption of the Risk
3. Contributory Negligence

Back 9

1. COMPARATIVE RESPONSIBILITY (similar to comparative negligence/fault - Most comparative negligence states apply their comparative negligence rules to strict products liability actions and jury will assign %)
2. ASSUMPTION OF THE RISK (voluntary & knowingly assume/ encounter a known risk)
3. Contributory Negligence (NOT a defense where P failed to discover the defect or guard against its existence BUT unreasonable conduct AFTER discovery does bar recovery)

Front 10

Injuries from Products - Cause of Action

Implied Warranties of Merchantability and Fitness
- ELEMENTS

Back 10

1. Merchantability: Implied warranty that goods are of quality GENERALLY ACCEPTABLE among those who deal in similar goods and are GENERALLY FIT for ordinary purposes for which goods are used.
2. Fitness: arises when seller knows or has reason to know (1) the particular purpose for which the goods are required & the buyer is relying on seller's skill/judgment to select/furnish suitable goods.
3. Vertical Privity no longer required.

Front 11

Injuries from Products - Cause of Action

Implied Warranties of Merchantability and Fitness - DEFENSES

Back 11

1. Assumption of Risk
2. Contributory Negligence (unreasonable failure to discover defect does not bar recovery BUT unreasonable conduct AFTER discovery does bar recovery)
3. Comparative Negligence
4. Notice of Breach (buyer must give seller notice w/i a reasonable time after buyer discovers breach)

Front 12

Injuries from Products - Cause of Action

Misrepresentation (Express Warranty & Misrepresentation)

Back 12

1. Express Warranty: D is a commercial seller/supplier; makes affirmation of fact or promise to buyer; privity not required; basis of the bargain; causation, damages, defenses same as implied warranties.
2. Misrepresentation: Misrep of a material fact about the product which induces reliance by the buyer; intent, proximate cause, damages, defenses same as implied warranties.

Front 13

NUISANCE

Back 13

Harm / Interference to an unreasonable degree with P’s ability to use and enjoy her land.
- Can be inflicted by D acting intentionally, negligently, or without any fault at all, and still liable.

Front 14

Joint and Severable Liability

Back 14

- EACH D is liable to P for FULL AMOUNT (entire damages).
- So P may recover from any D or all Ds.

Front 15

VICARIOUS LIABILITY
- 4 Relationships:

Back 15

- Doctrine of last resort. Based on a relationship between D and active tortfeasor.
Four relationships:
1. Employer – Employee ("Respondeat Superior"): if ee commits tort in scope of employment = VL
2. Hiring party is an independent contractor – hiring party NOT VL
3. Automobile owner – driver (driver = active tortfeasor, owner NOT VL)
4. Parents are NOT VL for their kids

Front 16

Vicarious Liability
- Respondeat Superior

Back 16

1. VL attaches if ee commits tort in SCOPE OF EMPLOYMENT = ee's conduct need not be authorized; if ee's conduct was actuated at least in part, by a purpose to serve eer, may be w/i SOE.
2. Intentional torts are outside of SOE, EXCEPT:
a. When the job generates friction.
b. Employer has authorized use of force (night club bouncer).
c. Carried out in a misguided effort to serve employer’s services.

Front 17

Indemnification

Back 17

One held liable for damages caused by another simply b/c of relationship to that person may seek indemnification from person whose conduct actually caused the damage.

Front 18

Co-Defendants
- Comparative contribution:
Two exceptions (out of pocket party entitled to get all his $ back – indemnification – held harmless):

Back 18

i. Person was held liable vicariously from responsible tortfeasor
ii. Products liability: any merchant who was held liable for a manufacturer
iii. Loss of consortium: entitles uninjured spouse of the victim (given separate COA against same D or Ds) to recover for: (1) loss of services (around the house), (2) loss of society (companionship), and (3) loss of sexual intimacy.