Torts 4 (Causation, Damages, Sl)

Front 1

What tests can be used to establish actual cause (CIF)?

Back 1

1. BUT FOR test
2. Subtantial Factor Test
- Where several causes bring about injury, and any one ALONE would have been sufficient to cause the injury, D's conduct is the CIF if it was a substantil factor in causing the injury.
3. Alternative Causes Approach
- TWO acts, only ONE of which causes the injury. BURDEN OF PROOF shifts to Defendants, and each must show his negligence is not the actual cause.

Front 2

What are some other ways a product is defective other than design or manufacturer's defect?

Back 2

1. Misuse
2. Scientifically Unknowable Risks
3. Allergies

WARN WARN WARN!

Front 3

What is the exception to the general no privity requirement????

Back 3

Generally irrelevant except in some of the warrant theories of liability.

Front 4

In a PL case based on Negligence, how does P prove D had duty?

Back 4

Usual case is duty of care arise when D is a COMMERCIAL SUPPLIER -- manufacturer, assembler, wholesaler, retailer or even used car dealer.
NOTE: A retailer who LABELS a product as the retailer's own or assembles a product from components manufactured by others is liable for the negligence of the actual manufacturer.

Front 5

How does P prove breach of duty in a PL cased based on negligence?

Back 5

P must show
1. Negligent conduct by D
- In Mftr Defect Case: Liability of Mftr or Liability of Dealer
- In Design Defect Case: P must show those designing the product knew or should have known of enough facts to put a reasonable mftr on notice about the dangers
2. Supplying of a "defective product" by the defendant.

Front 6

What are the different types of comaprative negligence?

Back 6

1. Partial Comparative Negligence -
2. Pure Comparative Negligence - allow recovery no matter how great P's negligence is. (assume this is test for MBE)

Front 7

How is PX Cause proven?

Back 7

General Rule: D is liable for all harmful results that are the NORMAL INCIDENTS OF AND WITHIN THE INCREASED RISKS CAUSED BY his acts.

1. DIRECT CAUSE CASES
a) Foreseeable Harmful Results - D liable (If particular harmful result was at all foreseeable from D's negligent conduct, the unusual manner in which injury occurred or the unusual timing of cause/effect is irrelevant to D's liability)
b) Unforeseeable Harmful Results - D NOT liable (D's negligent conduct creates a risk of harmful result, but an entirely different and totally unforeseeable type of harmful result occurrs)
c) Indirect Cause Cases (INTERVENING FORCES)
- Foreseeable Results Caused by Intervening Forces - D LIable
- Foreseeable Results Caused by Unforeseeable Intervening Forces - D Usually Liable
- Unforeseeable Results Caused by Foreseeable Intervening Forces - D Not Liable
- Unforeseeable Results Caused by Unforeseeable Intervening FOrces - D Not Liable
d) Unforeseeable Extent or Severity of Harm - D Liable

Front 8

What are the types of Indirect Cause Cases where D is or may be held liable????

Back 8

1. FORESEEABLE RESULTS CAUSED BY FORESEEABLE INTERVENING FORCES
(a) Dependent Intervening Forces (normal responses/reactions) -- almost always foreseeable
- Subsequent malpractice
- Negligence of rescuers
- Efforts to protect person or property
- "Reaction" Forces
- Subsequent Disease
- Subsequent Accidentn
(b) Independent Intervening Forces (not natural respones/reactions) but D's negligence increased the risk that these forces would cause harm to the P
- Negligent Acts of Third Persons
- Criminal Acts and Int'l Torts of Third Persons
- Acts of God
2. FORESEEABLE RESULTS CAUSED BY UNFORESEEABLE INTERVENING FORCES
- D usually liable unless unforeseeable crime or tort of 3P is the intervening force.

Front 9

What are defenses to Negligence claims????

Back 9

1. Contributory Neglience
- defense to NPS unless statute was designed to protect class of P's
- no defense to int'l torts
2. AOR -- 1) known of the risk 2) voluntarily proceeded in the face of the risk
- Implied, Express
- no defense to int'l torts
3. Comparative Negligence
- Partial: bars P's recovery if his negligence was equal to or MORE serious than D's)
- Pure: Allow recovery no matter how great P's negligence

NOTE: on MBE, assume PURE comparative applies unless question states otherwise.

Front 10

What elements must be proven for a SL case?

Back 10

1. Nature of D's activity imposes an absolute duty to make safe
2. Dangerous aspect of the activity was the actual and px cause of the P's injury
3. P suffered damage to person or property.

NOTE: Abnormlly dangerous activies (decided by motion for DV) usually have 2 requirements before finding activity to be abnormally dangerous:
1) activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors
2) activity is not a matter of common usage in the community.

Front 11

What theories of liability can P use in a products liability case?

Back 11

1. Intent
2. Negligence
3. SL
4. Implied warranties
5. Representation theories (express warranty and misrepresentation)

Front 12

What must be proved in a Products Liability case, regardless of what theory of liability is used?

Back 12

EXISTENCE OF A DEFECT (when left D's control!!)
(a) Manufacturing Defect
(b) Design Defect
- Inadequate Warning

NOTE: No requirement of K privity between P and D.

Front 13

What must P prove in order to show that produce is "defective"?

Back 13

1. Manufacturing Defect
- Product was dangerous beyond expecation of the ordinary consumer (including food products).
2. Design Defects
- P must show a reasonably alternative design (RAD) -- less dangerous modification or alternative was economically feasible considering:
a) usefulness and desirability of the product
b) available of safer alternative products
c) dangers of the product that have been identified by the time of trial
d) likelihood and probable seriousness of injury
e) normal public expecation of danger
f) avoidability of injury by care in use of product
g) feasability of eliminating the danger without seriously impairing the product's function or making it unduly expensive.

Front 14

What is the effect of government safety standards for PL cases?

Back 14

Product is deeemed to be defective in design or warnings if it fails to comply with applicable government safety standards.
However, a product's COMPLIANCE is evidence but NOT conclusive that the product is NOT defective.
NOTE: FEderal labeling requirements DO NOT PREEMPT state PL law on defective warnings.