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What is the Doctrine of Avoidable Consequences

a legal principle that places the responsibility of minimizing damages upon the person who has been injured. The plaintiff after an injury or breach of contract should make reasonable efforts to mitigate the effects of the injury or breach.

Also known as Mitigation, or Mitigation of Damages

What is the Doctrine of Avoidable Consequences otherwise known as?

Mitigation of Damages

What is required of the plaintiff under the doctrine of avoidable consequences?

The plaintiff should make reasonable efforts to lessen/mitigate/control the effects of the injury

how do you stop the bleeding..?

How can the defendant use avoidable consequences to his/her advantage?

If the defendant can show that the plaintiff failed to mitigate damages, the plaintiff's recovery can be barred or reduced.
What kind of efforts does the plaintiff need to make under the doctrine of avoidable consequences?
Reasonable efforts only. Sometimes known as using 'ordinary care'
What is 'Assumption of Risk' in line with or Comparable to?
Contributory Negligence

What is Contributory Negligence in line with or Comparable to?
Assumption of Risk

Is Assumption of Risk a Defense, or a claim?
A Defense ONLY

Is Assumption of Risk a complete bar to recovery?
yes

What is Assumption of Risk?

When it is said that the plaintiff voluntarily assumed a known risk

What is it called when a plaintiff is said to have voluntarily assumed a KNOWN risk?

Assumption of Risk

Comparative fault has moved to abolish which defense?

Assumption of Risk

What is a prime example of an Express Assumption of Risk?

An Exculpatory Agreement

gym contract

What is an exculpatory agreement, or exculpatory clause?

a contract agreement, or contract clause, which releases one of the parties from liability for his/her wrongful acts

What are the elements of Enforcement for exculpatory agreements? (pg503)

(1) it does not adversely effect the public interest;


(2) the exculpated party is not under a legal duty to perform;


(3) it does not involve a public utility or common carrier; or


(4) the contract does not grow out of unequal bargaining power or is otherwise unconscionable

What is express assumption of the risk similar to?

consent by the defendant. An exculpatory clause is made in advance of the relationship between the parties, so the defendant acts in reliance on the plaintiff's agreement not to hold the defendant liable. The exculpation clause can also specify the scope of the conduct covered by the contractual exculpation.

what does express assumption of risk do?

allows the plaintiff to be exposed to defendant's conduct only if the plaintiff agrees to exculpate the defendant from liability for negligence

Who uses exculpation clauses?

Defendants who engage in risky business and possible negligent conduct (like a gym owner)

What are the elements of a Negligence claim?

(1) Duty (duty of care)


(2) Breach (breach of that duty)


(3) Cause in fact (but for..)


(4) Proximate Cause (foreseeable


(5) Harm

To be enforceable, an exculpatory agreement must..?

(1) reflect the unequivocal expression of the party giving up his or her legal rights (plaintiff giving up right to sue) that their decision to enter the agreement was made:


(1) Voluntarily


(2) Intelligently


(3) with full knowledge of the legal consequences.




and




(2) it is presumed that the parties entering the contract assent to its terms, unless fraud is expected

What must be shown by the party giving up his or her right in a contract containing an exculpatory agreement for it to be enforceable?

That the person giving up his or her rights entered into the contract:


(a) Voluntarily


(b) Intelligently


(c) with full knowledge of the legal consequences

What type of conduct cannot be covered by an exculpatory agreement?

Willful or Wanton conduct. Recklessness

In using assumption of the risk as a defense, must the defendant already be liable for negligence?

yes

What is a major difference between express assumption of risk and implied assumption of risk?

(1) Express assumption is in a written document signed by the plaintiff (an exculpatory agreement in a gym contract)


OR


(2) Express assumption can be invalidated by lack of specificity in the contract


OR


(3) Express assumption relies on whether or not the offending behavior violates statutes or public policies and laws

Can you exculpate someone from an intentional tort?

NO!!

What is the express assumption of risk enforcement test?

(1) cannot be contrary to public interest


(2) exculpated party is not under a legal duty to perform


(3) it does not involve a public utility or common carrier


(4) the contract does not grow out of unequal bargaining power

What is recklessness?

Knowingly disregarding that your conduct has a high probability of causing injury.

Exculpation clauses apply to Gross Negligence. True or False.

FALSE. Exculpation clauses do NOT apply to recklessness.

Can exculpation clauses apply when a company is simply negligent?

YES. Exculpation clauses do NOT apply to GROSS Negligence which involves RECKLESSNESS

What is the test for Mitigation of damages & avoidable consequences?

"Did you do everything you can do to prevent further harm?"

What is the plaintiff's burden in a mitigation of damages, or avoidable consequences defense?

Plaintiff's burden is to show:


(1) Quantity of damages/quantity of damages or harm that should have been added


(2) plaintiff must prove that they have done everything reasonable to prevent continued harm.

Is comparative fault a claim, or a defense?

A defense

Comparative Fault is a defense to intentional torts. True or false.

False. Comparative Fault is a defense to negligence.

Is comparative fault a defense to negligence?

yes.

What is comparative fault?

Comparative fault involves a reduction in awarded damages to the plaintiff due to the plaintiff's contributory behavior in the harm.

Is comparative fault a complete bar to plaintiff's recovery?

No.

Comparative fault completely bars the plaintiff's recovery. True or false.

false. Comparative fault still allows the plaintiff to recover something.

Does avoidable consequences completely bar the plaintiff's recovery?

yes. KINDOF. (if you fail to act reasonably after the incident/injury). Avoidable consequences completely bars recovery ONLY to the damages that should have been avoided.

If successful, the Avoidable Consequences defense completely bars plaintiff's recovery. True or False?

True. KINDOF. (if plaintiff failed to act reasonably after the injury). Avoidable consequences completely bars recovery ONLY to the damages that should have been avoided.

Does avoidable consequences bar plaintiff's total recovery amount, or just the damages that should have been avoided?

ONLY to the damages that SHOULD HAVE been avoided.

What are the two types of Assumption of Risk?

Implied and Express

Assumption of Risk is an affirmative defense to negligence based on conduct. True or false?

True.

What is an immunity?

immunity means that an individual is not subject to liability because of their status

What are the four types of immunities?

(1) Intrafamily Immunity


[a] parents


[b] spouses


(2) Charitable Immunity


(3) Government Immunity


(4) Military Immunity



Words and conduct accepting risk can be implied assumption of risk. True or false?

True. Implied assumption of risk usually has to do with the plaintiff’s response after they receive information about the risk.

True or False. Implied assumption of risk usually has to do with the plaintiff’s response after they receive information about the risk.

True.

Intrafamily immunity bars interspousal litigation and suits between children and parents. True or false?

True. Within reason- where fraud is suspected, it will not bar litigation. If conduct is outrageous, it will not bar litigation (especially interspousal)

Interspousal and Parental immunity have mostly been dismantled by courts. True or False?

True. The Married Women's Property acts, allowing women to own property in their own right has given married women independent legal standing which does not bar their right to litigate in instances of outrageous or abusive conduct. Regarding parents, the courts will not uphold the immunity if the claim goes outside of: (1) where the negligence involves parental discipline, and (2) where the negligence involved normal parental discretion such as providing food, clothing, shelter or medicine.

The Federal Tort Claims Act (FTCA) abolished tort immunity against the federal government. True or False?

True. WITH LIMITATIONS

The FTCA is binding ONLY on the Federal government. True or False?

TRUE. the FEDERAL tort claims act..

What does the Federal Tort Claims act grant?

the FTCA grants the Federal Government immunity from tort liability when it involves the consequences of the discretion of the federal employee

Under what circumstances does the Federal Tort Claims act grant immunity?

The Discretionary Function Exemption: (1) exercise or performance, or the failure to exercise or perform, a discretionary function of duty on the part of a federal agency or an employee of the Government

How do you determine if the Federal Tort Claims Act bars liability in a tort claim?

You have to determine if the Federal Government employee's act was discretionary. if the employee exercised their discretion in a situation, and therefore the Discretionary exemption applies, the US retains immunity from the tort claim. If the employee strictly followed a policy or procedure which caused harm, then the FTCA does NOT bar suit against the government.

How do you determine if a Federal Government employee's act is discretionary?

(1) whether the action at issue was one of choice for the federal government employee; and
(2) if the conduct involved such an element of judgment, "whether that judgment is of the kind that the discretionary function exception was designed to shield"

Can a municipality be held liable for negligence of police officers for failure to provide adequate services?

Under Municipal Immunity, NO. Courts have drawn a distinction between governmental and proprietary functions. Governmental functions are immune, proprietary functions are not.

Can a municipality be held liable for negligence in maintaining public housing?

Under Municipal Immunity, YES.


Courts have drawn a distinction between governmental and proprietary functions. Governmental functions are immune, proprietary functions are not.

What does it take to become a joint tortfeasor?

(1) when multiple people act in concert to cause the harm; or


(2) where defendants acting independently cause indivisible injury; or


(3) Operation of law (court imposes a liability)

What is the joint tortfeasor test?

All those who, in pursuance of:


(1) a common plan or design to commit a tortious act;


(2) Actively take part in it, or further it by cooperation or request; or who lend aid or encouragement to the wrongdoer; or ratify & adopt his acts done for their benefit are equally liable with him.

What must someone do to become a joint tortfeasor?

They must:


(1) be part of a common plan or design to commit a tortious act;


(2) actively take part in it or further it by


[a] cooperation or request


[b] lend aid or encouragement to the wrongdoer


[c] ratify & adopt his acts done for their benefit

can one be a joint tortfeasor through inaction?

Yes. Vicarious liability may rest on inaction, or on words of encouragement.

Contributory negligence is the majority rule. True or false?

False. Comparative Negligence is rapidly replacing Contributory negligence and has been adopted by 46 states.

Comparative Negligence is being replaced by Contributory Negligence as the majority rule. True or False?

False. Comparative Negligence is rapidly replacing Contributory negligence and has been adopted by 46 states.

To be a joint tort-feasor, your words and actions must...?

one of the defendant's words and/or actions would have to give substantial assistance or encouragement to another defendant.

What are the three categories of duty owed by a landowner in a negligence action?

(1) Invitee


(2) Licensee


(3) Trespasser


(4) specific duty to children [Rest. 339] pg. 440

Duty to Trespassers is the highest standard of care in negligence actions against landowners. True or False?

FALSE! The highest standard of care, or highest DUTY is owed to Invitees upon property.

Duty to Licensees is the highest standard of care in negligence actions against landowners. True or False?

FALSE!! The highest standard of care, or highest DUTY of care, is owed to invitees upon property.

Duty to Invitees is the highest standard of care in negligence actions against landowners. True or False?

True! The highest standard of care, or highest duty, is owed to invitees upon a person's land. It is higher than Licensees and Trespassers.

What do you become when you give substantial assistance or encouragement to another defendant in a tort action?

Another defendant, and a joint tortfeasor

What standard of care is owed to invitees upon land or property?

Invitees owe an ordinary standard of care. "What a reasonably prudent person would do under the same or similar circumstances"

What is the test for beach in a negligence action?

What a reasonably prudent person would do under the same or similar circumstances.

What is the test for breach by a professional in a negligence action?

What a reasonably prudent professionl (doctor, accountant, lawyer, etc.) would do under the same or similar circumstances. "Did they do what they do?"

What standard of care, or duty, is owed to a Licensee upon land or property?

A licensee (like someone whom you let use your property for fishing, or a friend who comes over to watch a game) is only owed the duty of a warning of hidden dangers. The property owner is NOT liable if the dangers are not hidden, and they are not known. The property owner IS liable if they fail to warn users of the property against KNOWN, HIDDEN dangers.

For a property owner to be liable to a licensee, what must he fail to do?

The property owner must fail to warn against KNOWN, HIDDEN dangers.

A property owner owes a duty to a licensee on the property if there is an unknown hidden danger, and the owner fails to warn against that danger. True or false.

FALSE! A) how can you warn someone about a danger you don't know about; and


B) The dangers must be KNOWN and hidden

A property owner owes a duty to licensees on his property for an obvious danger. True or False?

False. A property owner owes a duty to licensees only when dangers are both KNOWN and HIDDEN. IF the danger is obvious, the landowner owes no duty to warn.

What is a common defense in Premesis Liability claims?

The Open and Obvious doctrine. Defendant argues that he owed no duty to folks on his land because the dangers were open and obvious.

What is the purpose of categorizing users of land in negligence claims against landowners?

The purpose is to help determine the duty, or standard of care, owed to the user upon the land.

What standard of care, or duty, is owed to a trespasser upon land?

If man-made dangers are known to be present on the land, a court may determine that a landowner owes a duty to post signage, or provide some kind of duty to warn. Especially if the landowner knows of the likelihood of folks trespassing, or discovers KNOWN trespassers. Landowners or possessors may not engage in wanton or reckless behavior which causes injury to KNOWN trespassers. You have a duty not to intentionally harm KNOWN trespassers.

Is the standard of care owed to a child trespasser the same as the standard of care owed to an adult trespasser? Yes or no.

No. The standard of care owed to a child trespasser is much higher than that of an adult, provided certain conditions are met: Rest 339 A-E (pg 440)

What are the artificial conditions on land that may impose liability on a landowner to a child trespasser? (Rest. 339, pg 440)

Liability to a child trespasser occurs when:


(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and


(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and


(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and


(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and


(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children

What makes an invitee upon land, an "invitee" according to Rest. 332 (pg 441)

Invitees as defined by Rest. 332 are: (1) persons who are invited to come on the land for a purpose connected with the business dealings of the possessor and (2) persons who come on the land as a member of the public for a purpose for which the land is held open (public parks, government buildings, etc.)

if the highest standard of care is owed to an invitee upon land, then what exactly must the possessor of land do?

The possessor of land may be obligated to seek out and investigate all possible dangers and hazards of the property and will be obligated to warn the invitee against all known dangers.

What is a licensee?

someone who is on the possessor of land's property with the possessor's consent, but is on the land for their own purpose.

What kind of person makes a licensee in the eyes of the court?

-Social Guests


-Folks with permission to use shortcuts


-advertisers who are distributing ads with permission


-people soliciting charitable contributions



Open and obvious dangers remove a land possessor's duty to warn. True or false?

True. However- it does NOT remove a landowner's duty to maintain the property in a reasonably safe condition.

True or false? Open and obvious dangers remove a land possessor's duty to warn?

True.

What is generally required of a landowner regarding the land's condition?

To maintain their property in a reasonably safe condition.

Is a person who uses a train platform considered a licensee, an invitee or a trespasser?

The Gladon case tells us that, because a person uses a train platform for the purpose of utilizing the service provided by the train company, that the person is there for business dealings connected with the train company and is therefore an invitee and is owed the highest standard of care.

A jury determines the status an an entrant upon land. True or False?

False. It is the duty of the court, not the jury, to determine the status of an entrant on land.

The Court, not the jury, determines the status of an entrant upon land. True or false?

True. It is the duty of the court, not the jury, to determine the status of an entrant on land.

An invitee needs express written invitation to be considered an invitee upon land. True or false?

False. Invitees may rightfully enter upon land by express, or implied invitation of the possessor. Would you need a written invitation every time you went to the store to buy something?

What is the very first thing that you must do in arguing a premesis liability case?

Determine the category of the entrant upon the land (invitee, licensee, trespasser)

After establishing what you must first do in arguing a premesis liability case, what must you next do? What is the second step?

After establishing the category of the entrant (whether they are an invitee, licensee or trespasser) you must then determine the duty that is owed to that entrant by the possessor of land.

A landlord is generally accepted as being liable in tort for injuries resulting from defective and dangerous conditions on the premises if the injury is attributable to what 4 things? (rest. 2nd, 358-62) pg 468

(1) a hidden danger in the premisis of which the landlord but not the tenant is aware


(2) premises leased for public use


(3) premisis retained under the landlord's control, such as common stairways


(4) premises negligently repaired by the landlord

What are the 3 main areas where Strict Liability is the predominant way to deal with harm?

(1) Possession of Animals


(2) Abnormally Dangerous Activities


(3) Products Liability

Indemnity applies only to vicarious liability. True or false?

True.

What is Strict liability otherwise known as?

Liability without fault.

What is Strict Liability based on?

Strict Liability is based on the defendant's lawful conduct causing harm to the plaintiff. Strict Liability imposes a liability upon a defendant who may have been acting lawfully, but who's behavior injured the plaintiff.

Strict Liability imposed on Posessors of Animals is split into how many categories?

3.

Strict Liability under posession of Animals is split into what 3 categories?

(1) Livestock


(2) Wild Animals (confined for a number of reasons both personal and professional)


(3) Domesticated Animals (Dogs, cats, other domesticated animals other than livestock)

What are considered domesticated animals?

household pets and other domesticated animals other than livestock.

True or False? Under Strict Liability, a defendant who causes harm is liable even if the actor exercises reasonable care and does not intend to interfere in any way with the plaintiff.

True.

True or False? Under strict liability, a defendant who causes harm is NOT liable if the actor exercises reasonable care and does not intend to interfere with the plaintiff in any way.

False. Under Strict Liability, a defendant who causes harm is liable even if the actor exercises reasonable care and does not intend to interfere in any way with the plaintiff.

When is strict liability imposed on owners of dogs, cats, pets, etc.?

Courts impose strict liability on possessors of dogs, cats and other domesticated pets, ONLY if the plaintiff proves that the defendant pet owner knew ahead of time that the animal was prone to violence.

True or False? Strict Liability is imposed on owners of livestock, cattle, horses, (farm animals) when those animals escape and cause damage to land, crops and other property. Restatement, Third, of Torts sect. 21

True. The majority of strict liability cases involving livestock have to do with escaping farm animals destroying the property, land or crops of another. Restatement, Third, of Torts sect. 21

What is the difference between strict liability and the intentionally torts?

Strict liability is liability that is imposed upon a defendant without fault

A "one bite rule" exists for pet owners under strict liability? Yes or no?

NO. Some jurisdictions used to recognize that strict liability could not attach if your pet had never bitten anyone before, but this no longer applies. For the purpose of Torts II class. .THERE IS NO ONE BITE RULE.

What is the difference between strict liability and negligence?

Strict Liability makes a defendant negligent without fault. Negligence requires fault.

What types of prior pet behavior that an owner knows about may be required for strict liability to attach to a pet owner?

Knowledge that it is a dangerous breed, the animal baring it's teeth, the animal snipping or biting at other people or animals

Can you pursue a pet owner for negligence if it is known that the animal has shown a prior history of viciousness?

no. Once we know, or should know, that a domesticated animal is vicious , negligence is off the table and strict liability attaches.

What is the first step in your analysis if you see the words "domesticated animal" on the exam?

The first step if you see "domesticated animal" on the exam is the ask what the owner's prior knowledge is about the animal's proclivities or prior behaviors

Most jurisdictions will hold you strictly liable for the damage that the animal does to persons or property. True or false?

True.

What is the predominant way in which we address accidents?

Negligence

Negligence is the predominant way in which we address accidents. True or False?

True.

What are the 6 elements in the test for strict liability in abnormally dangerous activites?

(1) The risk (probability) of harm was great


(2) the harm that would ensue if the risk materialized could be great,


(3) such an accident could not have been prevented by due care


(4) the activity was not a matter of common usage (was not of value to the community)


(5) the activity was inappropriate to the place in which it took


(6) the value to the community of the activity of the risky activity offsets its unavoidable risks.

Negligence applies when the hazards of an activity can be avoided by being careful. True or False?

True! STRICT Liability applies when the hazards of an activity cannot be avoided by being careful (hot-air ballooning, sky diving, bungee jumping, etc.)

an activity such as driving an automobile can be considered an abnormally dangerous activity. True or false

false. If the activity is extremely dangerous, but is likely to take place on a daily basis, and out of need, AND on an appropriate place like a roadway, it's unlikely to be considered an abnormally dangerous activity. The case for strict liability in driving a car is weak.

what is involved (what happens) in the largest class of cases in which strict liability has been imposed under the 2nd Restatment?

The use of dynamite and other explosives for demolition in residential and urban areas.

What is the Restatement sect. 20 test for Strict Liability in Abnormally Dangerous Activities?

(a) an actor who carries on an abnormally dangerous activity is subject to strict liability for physical harm resulting from the activity.


(b) an activity is abnormally dangerous if:


(1) the activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors; and


(2) the activity is not one of common usage.

if an activity is such that due care would have prevented the harm, you can still get a jury instruction for strict liability. True or False?

False! If Due Care/Reasonable Care would have prevented the harm, then you have a negligence claim. NOT a strict liability claim.

What are the 6 legal theories which support a plaintiff's claim for a defendant's liability?

1. Negligence


2. Strict Liability


3. Express Warranty


4. Misrepresentation


5. Implied Warranty of Merchantability


6. Implied Warranty of Fitness for a particular purpose

What area of Tort law centers on injury caused by defective and dangerous products?

Product Liability

What is product liability?

an area of Tort law which centers on injury caused by defective and dangerous products
An area of Tort law which centers on injury caused by defective and dangerous products is called Strict liability. True or False.

True. More specifically, it's called Product liability

An area of Tort law which centers on injury caused by defective and dangerous products is called Negligence. True or False.

False.

Product liability is the most rapidly growing area of tort law. True or False?

True. There was a trickle of cases in the 1950s, and now the area has exploded.

Product liability cases involve litigation against whom?

manufacturers & retailers

Restatement, Third, Sect. 402(a) regarding product liability states:

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if


(a) the seller is engaged in the business of selling such a product, and


(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold

What is the 'consumer expectation test'?

The article/good/thing sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with ordinary knowledge common to the community as to its characteristics.

Rest. 3rd, Sect. 402(a) applies to your average seller on Ebay. True or false?

FALSE. Rest. 3rd, Sect. 402(a) applies to businesses and sellers who REGULARLY engage in the practice of selling the type of product that caused the harm

in a Product Liability claim, plaintiffs are sellers or merchants. True or False?

False. In a product liability claim, plaintiffs are users or consumers. They are customers.

In a product liability claim, plaintiffs are users or consumers. They are customers. True or false?

True. Product liability involves a seller or merchant selling a defective or dangerous product to a consumer which harms the consumer when using it.

True or false? You determine if a product is defective by comparing it to another non-defective product of the same type.

True.

True or False? You determine if a product is defective by employing the Higgs-Boson model found in the Bennett case.

False. You determine if a product is defective by comparing it to another non-defective product of the same type

A manufacturing defect is a product which departs from its intended design. True or false?

True.

You can determine if a product is unreasonably dangerous by using the consumer expectation test. True or false?

True. A defective product in question must be 'unreasonably dangerous'- you determine this by determining if an ordinary consumer who purchases it, with the ordinary knowledge common to the community could contemplate a product's dangerous characteristics through a simple examination or ordinary use.

what is required of a seller or merchant in a product liability claim if strict liability is to attach to the seller or merchant?

The seller or merchant must:


(1) sell any product in a defective condition unreasonably dangerous to the user or consumer; and


(2) must be engaged in the business of selling such a product

Everyone in the chain of distribution is liable under strict liability in a product liability claim. True or false?

True. From the moment a product is manufactured, to the moment it reaches the consumer unchanged, everyone is liable for the harm that occurs.

Restatement Third, Sect. 402(a) covers all goods. True or false?

FALSE. Restatement Third, Sect. 402(a) covers only defective goods.

Restatement third, Sect. 402(a) covers only defective goods. True or false?

True.

What is a defective product?

A product which departs from its original, intended design

How do you prove a product defect?

by comparing the defective product to another non-defective product of the same type.

In order to make a winning product liability claim in a Prentiss Jurisdiction, the plaintiff must present what two things?

The plaintiff must use a risk-utility balancing test, and must present a Reasonable Alternative Design (RUB & RAD)

What are the three different categories of 'Product Defect' according to Rest. Third, Sect. 2?

1. Manufacturing


2. Design


3. inadequate instructions

According to Rest. Third, Sect. 2, when is a product considered 'defective'?

A product is considered defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings.

According to Rest. Third, Sect. 2, when does a product contain a 'manufacturing defect'?

A product contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product.

According to Rest. Third, Sect. 2, when does a product contain a 'design defect'?

A product contains a 'design defect' when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe.

According to Rest. Third, Sect. 2, when is a product defective because of 'inadequate instruction'?

A product is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product nor reasonably safe.

What does Restatement, Third, Section. 2 of Torts give us?

Categories of Product Defect

A product that departs from its intended design is defective. True or false?

True.

What is Restatement, Third, of Torts, sect. 2(c) regarding 'inadequate instructions' otherwise known as?

Failure to warn.

Regarding Restatement, Third, of Torts, Sect. 2(b)- Design Defect- what is the name of the test which the plaintiff must use to prove that there is a design defect in the product?

Learned Hand's Risk Utility Balancing Test. The plaintiff must use a risk-utility balancing test to decide whether a product design is reasonably safe by establishing that the foreseeable risk of harm could have been reduced, or avoided, by using a RAD (reasonable alternative design)

Section 2(b) - Design Defect- in Restatement, Third, of torts, utilizes which two tests to prove design defect?

RUB & RAD. A Risk Utility Balancing Test is required of the Plaintiff to establish that the Utility of using a RAD (reasonable alternative design) is greater than the risk of leaving the product as is, and not using a RAD

What is the main question that the Consumer Expectation really asks?

What is common knowledge about this product? What does the ordinary consumer know, or think, about this?

What is the first question you should ask yourself in arguing a Product Liability case?

is it a simple, or a complex design?

What is the main difference between a simple and a complex design?

Several options: (1) The difference lies in how easily the average person could figure out how to use the device without much instruction; or (2) how safe does the average person expect this device to be? or (3) Can an ordinary consumer look at something and figure out if it's dangerous or not. or (4) would the ordinary consumer find that the product violates ordinary safety expectations?

What is the main thing that the RIsk-Utility Balancing Test focuses on?

Whether or not the manufacturer acted reasonably in keeping the design as is without changing it.

What are some examples of products which have traditionally been excluded from product liability claims?

Alcohol, tobacco, etc.

What is the 'State of the Art' defense?

The affirmative defense of “state of the art” applies when a defendant manufacturer could not have known about a particular danger or hazard in a product by using the scientific or technical knowledge available at the time the product was made or sold.

This affirmative defense applies when a defendant manufacturer could not have known about a particular danger or hazard in a product by using the scientific or technical knowledge available at the time the product was made or sold.

The 'state of the art' defense

In an O'Brien jurisdiction, to make a viable claim in product liability, a plaintiff must...?

use a simple RUB test which does NOT require a reasonable alternative design. RUB, NO RAD.

In the O'Brien jurisdiction (regarding Product Liability) No RAD was required because the whole product is defective and never should have been put on the market anyway. True or False?

True. A reasonable alternative design is required if the product could be improved upon, not if the entire product is defective.

True or False? 'State of the Art' means what was/is scientifically knowable in the relevant period?

True

Strict liability is concerned mainly with the standard of due care or the reasonableness of a manufacturer's conduct. True or false?

False. REASONABLENESS is a NEGLIGENCE concern. Strict liability does not take into account either reasonableness, OR due care.

In strict liability, a manufacturer or retailer is given some leeway to determine if they think it's reasonable to warn or not to warn. True or false?

False. The manufacturer is liable if it failed to warn of any dangers known to the scientific, or manufacturing community at the time of manufacture or distribution.

What do informed-choice warnings mostly apply to?

Prescription drugs, toxic substances & Automobiles

What is it called when a defendant fails to warn and the court then presumes that the plaintiff would have read the warning and therefore should/would have avoided the warned-against risk?

"Heeding Presumption"

True or false? A warning MUST be provided if reasonable product user's choice to use the product would be influenced by the knowledge of potential, substantial dangers were associated with using the product?

True.

Foreseeability is an element in Proximate Cause. Yes or No?

Yes. Proximate Cause, a causal component of Negligence, requires a foreseeability test.

True or false. Comparative fault has been adopted in strict liability cases to produce "fairness"

True. Courts do not look at manufacturers and retailers as absolute insurers of user safety. A user can contribute to their own harm, and comparative fault takes into account how much a plaintiff is responsible for the accident. It reduces and limits recovery, but does not bar it.

Yes or no. Strict liability is ABSOLUTE liability.

NO.

True or false. Strict Liability is not Absolute liability.

True. A plaintiff can be involved in their own harm, and therefore comparative fault comes into play.

All courts require the plaintiff who uses a Risk-Utility Balancing Test to also provide a reasonable alternative design. True or false?

False. Jurisdictions differ on whether or not they require the plaintiff to also provide a reasonable alternative design after discussing Risk-Utility Balancing

What are the 2 legal policy considerations behind requiring a manufacturer or distributor to warn consumers?

(1) it will give the consumer the right to avoid using the product altogether, or choose not to use it at all


(2) it will compel a user to use the product more safely.

in a Failure to Warn case, a plaintiff proves causation by:

(1) showing that the plaintiff WOULD have read the warning


(2) showing that, if the plaintiff HAD read the warning, that they would have followed or heeded the warning (heeding presumption)

True or false? Manufacturers have an obligation to warn against obvious risks.

False. However, what may be obvious to some, may not be obvious to others.. so be prepared to flush out your reasoning. Think of the Bronco example. The plaintiff prevailed against Ford Motor Co. because at the time, a rollover risk in a Bronco was not OBVIOUS.

When a product is defective, everyone in the chain of distribution is jointly and severally liable for the harm. True or False?

True!

Producing cause is the remaining causation analysis in product liability. Proximate cause has been dumped. True or false?

False. PROXIMATE CAUSE is the analysis you should use. PRODUCING CAUSE HAS BEEN DUMPED.

True or False? Proximate Cause is the remaining causation analysis in product liability. Producing cause has been dumped.

True. DO NOT GO INTO PRODUCING CAUSE on the exam. Proximate cause stays.

In a strict liability, product liability case, a plaintiff MUST prove a manufacturing defect, design defect, AND a failure to warn. True or false?

FALSE. Manufacturing Defect, Design Defect, and Failure to warn are all different and separate causes of action.

What Res-Ipsa-like test do we use to determine where in the chain of distribution a defect may have occurred?

Restatement, Third, of Torts, Sect. 3, Circumstantial Evidence Supporting Inference of Product Design




It may be inferred that the harm sustained by the plaintiff was caused by a product defect existing at the time of sale or distribution, without proof of a specific defect, when the incident that harmed the plaintiff:


(a) was of a kind that ordinarily occurs as a result of product defect; and


(b) was not, in the particular case, solely the result of causes other than product defect existing at the time of sale or distribution.

it is strict liability when you are injured by a product. True or false.

False. It is strict liability when you are injured by a DEFECTIVE product.

it is strict liability when you are injured by a defective product. True or false?

True. Strict Liability can only attach when you have a defective product.

What are two product liability jurisditictions that require a simple and/or complex design analysis?

Soul & potter

What is the plaintiff required to show/prove in a simple design defect claim?

An application of the consumer expectation test

What is the plaintiff required to show/prove in a complex design defect claim?

An application of a risk-utility balancing test, then the consumer expectation test. Some jurisdictions, like the Vatour jurisdiction also require a RAD

What specifically does the Vatour jurisdiction require that the potter and soul jurisdictions do not?

that the plaintiff prove that had the manufacturer adopted a reasonable alternative design to their own, that it could have prevented the harm.

What is required of a private nuisance claim?

(1) That there has been some type of tortious conduct by the defendant


(2) The tortious conduct has led to a substantial & unreasonable interference with the use & enjoyment of plaintiff's property