TORTS
Vicarious Liability: when you are liable based on status rather than fault
1. Is it an employee or an independent contractor?
a. Whether the employer exercised (or had the right to exercise) control over the manner and means
by which the person employed conducted the work
i. Things to consider: length of employment, method of payment, who provides the tools
and place of work, whether employer withholds taxes and social security
b. EMPLOYEE:
i. Respondeat Superior was the employee tortious?
1. Must establish negligent act of employee,
2. That the breach of duty is the cause of plaintiff’s injury, AND
3. establish that the negligent act was within the scope of employment
a. related to employment enterprise?
b. Occur within time and space of employment?
c. Did enterprise derive any benefit from the activity?
c. INDEPENDENT CONTRACTOR:
i. General rule: employers are not responsible for the negligent acts of independent
contractors
ii. Exception 1: apparent authority when an independent contractor performs services for
another which are accepted in the reasonable belief that services are being rendered by
employer and his servants
1. Actions by the principle?
2. Conduct by principle that would lead a reasonable person to believe that the IC is
acting on principle’s behalf?
3. Acceptance of the agent’s service by one who reasonably believes its renderedon behalf of principle (minority)
iii. Exception 2: non-delegable duties usually arises when a person contracts for the
performance of dangerous activities
1. If you hire someone to perform dangerous activities, employer is liable for the
negligence of the contractor
a. Ex: transporting dynamite
2. Obligation to exercise reasonable care in inspecting the work of IC when IC is
charged with maintenance of chattel and land for use by others
a. Ex: Owner of a car rental company or office building cannot delegate his
duty to inspect
Negligence – Breach of Duty
- Jury question
1. Reasonable Person Standard: what would a reasonable person in a similar situation have done/ what
should he have done?
a. People with mental handicaps are still held to the reasonable person standard
b. Variations:
i. Youth: those that qualify as a child AND are old enough to be found negligent are held to
a standard of care of a reasonable person of like age, intelligence, and experience under
the circumstances
ii. Emergency situation: someone in an emergency situation will be held to the standard of
care of someone in a similar emergency situation
iii. Physical disability: held to a standard of care of what a reasonable person with the same
physical disability would reasonably be expected to do in a life situation
iv. Special training: what would the reasonable person have done under those circumstances,
taking into consideration the special training of that person
c. Malpractice: doctors, lawyers, engineers, accountants, architects
i. Charged with a standard of reasonable care for a person of the same profession in a like
situation  what would a reasonable doctor have done? Did this one do that?
2. How do you calculate risk?
a. Learned Hand Model: (pretty much only applied in admiralty cases in the second circuit)
b. PL>B
i. P= foreseeability/ probability of harm
ii. L= potential loss (gravity of the foreseeable risk)
iii. B= burden of adequate precautions
c. To have breached under LH Formula some foreseeability of harm had to have existed when
defendant acted AND the defendant must have been able to act differently
3. What happens if you violate a safety statute?
a. Per se negligence: (handcuffs jury)
i. Did defendant violate a safety statute?
ii. Was the statute designed to protect the type of injury sustained by plaintiff?
b. Prima Facie negligence: creates a rebuttable presumption if defendant puts on a colorable
defense, goes to jury/ if puts on no defense, plaintiff wins as a matter of law
i. Does the violation qualify as a special excuse?
1. Violation is reasonable in light of childhood, physical disability, physical
incapacitation
2. Exercised reasonable care in trying to comply with safety statute
3. Neither knew nor should have known of the factual circumstances that render the
statute applicable
4. Violation is due to the confusing way in which the requirements of statute are
presented
5. Compliance would have caused a greater risk of physical harm than
noncompliance
4. What if it’s an industry custom?  admissible but not conclusive evidence of breach
a. “fairly well defined”
b. has to be a custom of defendant’s actual profession and meant to protect for that injury
c. if find it’s an industry custom, defendant is charged with knowledge
5. Who has the burden of proof?
6. What if the plaintiff can’t prove what the defendant did wrong? GO TO PAGE 251
a. Res Ipsa Loquitor
i. Was the item of harm in defendant’s control?
ii. Is the injury of the type that normally wouldn’t occur absent negligence?
1. Majority: plaintiff has established a permissible inference
a. Defendant can still be found to have acted reasonably
2. Minority: plaintiff has established a prima facie case
a. Rebuttable presumption
b. If defendant puts on no contrary evidence, plaintiff wins as a matter of
law
Negligence – Duty
Assuming that the defendant acted unreasonably, should the court impose a legal duty to have acted reasonably?
- Judge question
1. Did defendant’s conduct create a risk?
a. But for test (Rest. 3): but for the defendant’s conduct, would this injury have occurred?
b. General rule: an actor ordinarily has a duty to use reasonable care when the actor’s conduct
creates a risk of physical harm
2. MISFEASANCE
a. Majority: (1) was the risk foreseeable? (2) was the risk foreseeable to this plaintiff?
i.
ii.
iii.
iv.
Yes duty, unless public policy considerations
No no duty
Specific risk foreseeability focus is on specific injury in that case
Foreseeability of a class of risks some class of foreseeable injuries of which the
plaintiff’s injury is a member of
b. Minority: Yes duty, unless public policy considerations
i. General risk foreseeability whether defendant’s conduct created some general range of
risk; plaintiff or type of injury doesn’t matter
3. NONFEASANCE
a. General rule: no duty
b. Exceptions:
i. Special relationship between plaintiff and defendant
1. Common carriers with its passengers, innkeeper with guests, possessor of land
that holds it open to public, an employer with employees who are in imminent
danger or who are injured at work and become helpless, school with students,
landlord with tenants, custodians with those in custody
2. Question of law for the courts
ii. Voluntary rescue: when you begin a rescue, have a duty to do so reasonably
1. Have a duty not to leave the person in a worse position than when you started the
rescue
2. If you promised rescue, and there was reasonable reliance on that promise (and
the promisor expected that reliance), then you have an affirmative duty to rescue
iii. If defendant’s conduct created a risk
1. Maldonado if I’m the one who put you in a position that requires you to be
warned, protected, rescued, I have an affirmative duty to do so
iv. Special relationship between defendant and third party
1. Parent with dependent child, custodian with those in custody, employer with
employee when employment facilitates harm, mental health professionals with
patients
2. Tarasoff: have to warn the potential victim or people who could warn the victim
a. Only for foreseeable victims
b. Have to protect the identity of the patient
4. Policy considerations: serving alcohol at parties, “too big to fail” public utilities, effectiveness of parole
program, etc.
a. If courts don’t want to impose a duty, defer to public policy
5. SPECIAL DUTIES
a. Landowners: have an affirmative duty to protect against dangerous conditions on their land
i. Invitee: someone who goes onto another’s property in response to an express or implied
invitation and does so for the mutual benefit of the owner and himself
ii. Licensee: one who enters another’s property with express or implied permission, solely
for his own benefit (party guest)
iii. Trespasser: have no permission to enter the land
1. Split 1: trichotomy
a. duty to invitee use ordinary care to keep property reasonably safe and
to warn of hidden perils or unsafe conditions that could be discovered by
reasonable inspection or supervision
b. duty to licensee to make safe dangers of which the possessor is aware
c. duty to trespasser none (takes the land for better or worse); can’t
intentionally harm
2. Split 2: duty owed to trespasser and licensee is the same duty to refrain from
willful injury or wantonly and recklessly exposing them to risk
3. Split 3: licensees and invitees are owed an ordinary duty to maintain the property
and protect/ warn from known or should have known dangers
4. Split 4: elimination of trichotomy 
a. Exception for flagrant trespassers  no duty
5. Some courts have found no duty when the dangerous condition was open and
obvious
6. Most jurisdictions treat known trespassers as implied licensees, meaning they are
owed a duty of protection against known dangers
iv. Regardless of a person’s status, should the visitor become injured on land such that the
visitor cannot aid herself, the landowner owes an affirmative duty of reasonable care to
rescue the visitor
v. Attractive nuisance doctrine: a possessor of land is subject to liability for physical harm
to children trespassing thereon caused by an artificial condition IF
1. Possessor knew or should have known of the likelihood of kids trespassing on
this part of the land
2. Possessor knew or should have known of the condition and realized or should
have realized the risk of death or serious bodily injury
3. Because of their youth, kids don’t realize the risk
4. Maintaining or eliminating the condition would be a minor burden to the
landowner
5. Landowner fails to exercise reasonable care to eliminate the danger/ protect the
kids from it
a. Doctrine extends to adults trying to save a child from an attractive
nuisance (doesn’t apply to professional rescuers)
vi. Posecai duty owed to invitee to protect against third party crime
1. Specific harm test: have to know that this injury will happen to this plaintiff
2. Prior similar incident foreseeable in light of prior incidents
3. Totality of circumstances test considering all of the factors, protect against
known and should have known dangers
a. Most common test
4. Balancing test basically learned hand
b. Emotional Harm: (Misfeasance)
i. Basic rule: no duty/ no ability to recover for purely emotional harm that is not in
conjunction with physical harm
ii. Exceptions:
1. Corpse cases
a. Catsouras: negligent infliction of severe emotional distress
b. Mis-notification/ non-notification of death of close relative
c. Mishandling of corpse of a close relative
2. Zone of danger
a. Falzone where defendant’s negligence causes fright from a reasonable
fear of immediate, personal, injury which fright results in substantial
bodily injury or sickness
b. So long as the reasonable person would have suffered fear, defendant
owed a duty
3. Exposure to particularly deadly and dreaded disease/toxin
a. Fear that you have it when you don’t
b. Fear that you might get it
4. Bystander
a. Portee v Jaffee (third party derivate claim)
b. Death or serious injury of another caused by defendant’s negligence
c. A marital or intimate familial relationship between plaintiff and injured
person
d. Observation of the death or injury at the scene of the accident
e. Resulting in severe emotional distress
c. Economic Harm:
i. General rule: no duty to not inflict purely economic harm
ii. Exceptions:
1. Special relationship between plaintiff and defendant
2. Commercial fishermen in some sort of disaster
3. Particular foreseeability to plaintiff
6. Causes of action when someone has died
a. Survival act claim
i. Brought by dead person’s estate
ii. Any harm the deceased suffered up to but not including death itself
iii. Basically, pain and suffering damages for lead up to death (don’t get any if died instantly)
b. Wrongful death claim
i. Brought by family
ii. Suing for loss of life, emotional distress, loss of consortium, lost wages, etc.
iii. Basically, damages for the value of the dead person’s life to surviving family members
Immunity
- Immunity consists of a judgment by the court that although the defendant may have acted tortuously,
defendant ought not be held liable due to certain considerations of public policy
- Bars against suit (not just liability)
1. Charitable immunity
a. Public policy: don’t want to take money away from charity for pay-outs
b. Largely dead, some places have brought it back through statutes
2. Inter-spousal Immunity
a. Largely been abolished
3. Parental Immunity
a. Gibson: reasonable parent standard
i. Jury question
b. Goller: immunity for acts of parental discretion
i. Judge question
ii. No matter how unreasonable, get immunity for discretionary decisions regarding things
life food, clothing, medical care, etc.
iii. Brunner court applied this
4. Governmental Immunity
a. Federal government
i. Historically, the federal government could not be sued
ii. Federal Tort Claims Act (1946): can now sue federal government for wrongs as if
individuals
1. Exceptions:
a. No strict liability  has to be negligence or intentional tort
b. Any governmental function that requires discretion gets immunity
c. Can’t sue the post office for not delivering your mail
d. Ferez doctrine: military personnel can’t sue for injuries arising out of
combative duties (applied broadly)
b. State/ county/ municipal government
i. Nonfeasance general rule= no duty
1. Public duty doctrine: there is no governmental duty to warn, protect, or rescue
a. Exceptions:
i. Explicit promise to act on behalf of the injured party (MAJ)
ii. It was foreseeable that inaction could result in harm to injured
party (MAJ)
iii. There was justified reliance by the injured party on the
government’s affirmative undertaking to the injured party’s
detriment (MAJ)
1. Reliance, foreseeability, explicit assurance
iv. Cuffy Test: direct communication between injured party and
dispatcher
ii. Misfeasance
1. Majority discretionary versus ministerial test
2. Governmental function versus proprietary test also used
3. If no immunity, then go onto duty analysis
Cause in Fact (more likely than not standard)
1. But for: but for defendant’s negligence, would plaintiff have been injured? (MAJ)
a. Yes, no causation unless...
b. No, causations
2. Overdetermined cause rule: when 2+ independent and sufficient causal elements both caused a result and
neither are but for elements, both are considered a cause in fact
3. Concerted action rule: only applicable with joint tortfeasers; both/ all found liable even if not all of them
are responsible for the injury
a. Applicable when working towards the same goal
b. Ex: hunting parties, cops, etc.
4. Alternative liability rule: when multiple parties could have done it, and can’t prove which did it
a. Burden of proof shifts to defendant
b. Only applies when both actually wrongdoers and both could have possibly done it
c. Has to be a small amount of defendants
5. Expert testimony: there has to be some fact that the jury cannot understand on their own
a. Courts not supposed to allow expert testimony to explain the law
b. Dalbert Standard: test for whether expert testimony is reliable
i. Is it derived by the scientific method?
ii. Is it well accepted in the field?
6. Defective drug cases plaintiff takes a generic drug which multiple companies sold
a. Some courts have found market share liability
7. Loss of chance when you can’t prove more likely than not defendant caused your injury/ death but
CAN prove more likely than not defendant caused a loss of chance
a. Have to have actually suffered an injury due to the loss of chance in order to recover
i. X= original percentage of harm
ii. Y= percentage of harm due to negligence
iii. (x-y)/ (100-y) > 50%
b. When loss of chance is over 50%, that means you can prove that more likely than not defendant’s
negligence is what caused death can recover fully
Proximate Cause/Scope of Liability jury question
- Was this particular injury foreseeable to this particular plaintiff?
1. Directness/ remoteness: literally, was this injury was direct, did it directly cause the injury or is it too
remote
2.
3.
4.
5.
6.
7.
8.
a. Takes into consideration intervening causes
b. Doesn’t matter if its foreseeable
Foreseeability
a. Palsgraf Dissent (Andrews)  just a rough sense of justice
b. Plaintiff foreseeability is required for proximate cause
c. Wagon Mound
Risk Rule: actor’s liability is limited to harms that result from the risks that made defendant’s conduct
tortious
a. Was this harm to this plaintiff one of the risks that made defendant’s conduct tortious?
b. Was this injury one of those risks we (as a jury) expected
Difference between foreseeability and risk rule tests:
a. Wording
b. The manner in which the risk occurred doesn’t matter for the risk rule
i. Type of harm still matters but not how it happened
ii. Hole in sidewalk example
1. Risk rule doesn’t matter how you fell into the hole, just matters that falling into
the hole was a potential harm
2. Foreseeability is it foreseeable that falling into the hole would happen in this
manner?
c. Foreseeability has no scope definition for harm
i. Risk rile general type of harm
Eggshell psyche rule: take the plaintiff as you get them
a. If the reason a proximate cause test would fail is because of pre-existing emotional/ physical
condition, then as a matter of law, there is proximate cause
b. Every jurisdiction has this rule
Intervening causes: an event that occurs after a tortfeasor's initial act of negligence and causes
injury/harm to a victim
a. If an intervening cause is UNFORESEEABLE, that makes it a superseding cause which destroys
proximate cause
i. Jurisdictions that apply the foreseeability test, apply superseding/ intervening cause rule
b. RS3: when a force of nature or an independent act is also a factual cause of harm, an actor’s
liability is limited to those harms that result from the risks that made the actors’ conduct tortious
i. Intervening causes don’t matter
ii. Just ask whether harm was foreseeable and ignore intervening causes
1. Theory is now that we have comparative fault, don’t need the intervening/
superseding cause test
2. Jurisdictions that apply the risk rule approach intervening causes like
Restatement 3
Where the risk of an intentional tort is one of the reasons defendant’s conduct is negligent, then defendant
is liable (Bauer)
The intervening negligence of a doctor or health care professional doesn’t not supersede the negligence of
the original tortfeaser
a. Bright line rule
b. A plaintiff’s own negligence will not reduce plaintiff’s recovery against a doctor who was
negligent
c. A doctor’s negligence will not destroy proximate cause
d. Ex: if you get in a car accident and break your leg, if the ER doctor is negligent and messes up
your leg more, the guy who ran into you is still liable
Others’ Conduct as a Contributing Cause
PLAINITFF- DEFENDANT
1. Contributory Negligence
a. Historically, this is how courts dealt with having a plaintiff also at fault
b. Rationale:
i. Only plaintiffs with “clean hands” should be able to sue
ii. Plaintiffs should take care of themselves, want to incentivize this
iii. Avoids administrative difficulty of allocating fault
iv. Powerful tool for judges
c. Over time, too many exceptions and in the 1980s there was a movement to comparative fault
2. Comparative Negligence
a. Pure comparative fault: even if plaintiff is 99% responsible, can sue for 1%
i. There is no threshold
b. Modified comparative fault:
i. Only if plaintiff’s share of the fault is less than defendant’s fault can they recover
ii. Only if plaintiff’s share is less than/ equal to defendant’s fault can they recover
1. Actually, makes a huge difference because juries often find 50/50 fault
iii. In most modified comparative fault jurisdictions, courts will compare the aggregate of
defendants’ fault and compare it with the plaintiff’s
1. As elong as plaintiff’s fault is less than/ equal to all of defendants’ fault can
recover
a. Not true for every modified comparative fault jurisdiction
c. Uniform Comparative Fault Act
i. Jury question
ii. Compare fault of both parties
1. Trying to figure out which one is more wrong/ more proximately caused the
injury
2. Can also compare fault against strict liability defendants
3. Allows comparison for intentional tortfeasers
iii. Don’t do comparative fault when the defendant is intentional tortious and plaintiff is only
negligent
iv. Defendants might end up paying more than their fair share, up to them to get their money
back from other defendants
v. If a defendant’s share is uncollectible, gets reallocated among everyone else, including
the plaintiff
vi. If one person settles, the fault is “taken out of the suit” for that person, even if plaintiff
didn’t receive the full share of the settling party’s fault
1. If A is 40% liable and settles for 25%, the difference between fault and
settlement doesn’t get reallocated  the 40% fault is effectively taken out of the
suit
2. Disincentives settlements
3. Proportionate share rule
a. Versus pro-tante (dollar for dollar reduction rather than percentage)
MULTIPLE DEFENDANTS
1. Joint and several liability
a. Plaintiff can recover combined shares of fault from any one (or combination of) defendants
i. Even when the combined total is greater than individual’s fault
b. Uniform Comparative Fault Act uses joint and several liability
c. Can defendants rope in non-parties?
i. If they can, juries can consider a portion of fault to non-parties
ii. If cannot, parties will have to pay more because will have to assume the fault of nonparties
1. Just need to have enough facts to know there is another party, don’t need to
actually know who the party is
2. Several liability
a. Plaintiff can only recover the share of the fault from each defendant
i. If A is 30% at fault, can only recover 30% from A
b. Can defendants rope in non-parties?
i. Can consider parties won’t be responsible for the non-parties
ii. Cannot consider probably going to assume the fault of the non-parties
c. Under pure several liability, if a defendant’s share is uncollectible, plaintiff ends up paying
because that share can’t be reallocated
3. Who bears the burden of joining the parties?
4. Who bears the burden of bad luck when a defendant can’t pay?
5. Right of contribution: can sue for the shares of fault the other defendants didn’t have to pay the plaintiff
a. Happens when plaintiff recovers from only one defendant by other parties were defendants
6. Analysis:
a. Comparative fault versus contributory negligence?
i. What type of comparative fault?
b. Have to decide whether both plaintiff AND defendant acted unreasonably
c. Cause in fact what was each party a cause in fact of
d. Proximate cause
i. Was there an intervening cause?
ii. Did it supersede
e. In trying to allocate damages, have to figure out cause in fact and proximate cause for each set of
damages
ASSUMPTION OF RISK
- COMPLETE bar to liability (versus comparative fault which is a reduction in damages)
o Should have known standard; plaintiff could have been acting reasonably
o Defense to negligence and strict liability
 Affirmative defense defendant doesn’t have to prove unreasonableness of plaintiff
 If decided that plaintiff assumed the risk, don’t recover at all
o ff
1. Express based on concept of contract
a. Belief that if you want to, you can contract away liability
b. (1) Pure contractual question was there a contract? Does the waiver cover the action that led to
injury?
c. (2) is this contract enforceable as a matter of public policy?
i. Always interpret exculpatory clauses narrowly and against the drafters
ii. Is there a statute that prohibits its enforceability?
iii. Unequal bargaining powers?
iv. Public policy considerations?  activity is one of public regulation, public necessities,
defendant extends invitation to public, adhesion contract
v. As a matter of law, waivers don’t cover recklessness or intentional torts
2. Implied question of law
a. Should plaintiff be able to recover when plaintiff assumed the risk?
b. If express assumption of risk isn’t a viable argument, always fall back on implied assumption of
risk
i. Need to analyze express AND implied assumption of risk
c. Theory can’t/ shouldn’t be able to hold me liable because you knew what you were getting into
d. Plaintiff must have:
i. Known the risks,
ii. Appreciated the risks, and
iii. Made a deliberate and voluntary choice to expose themselves to that risk
e. Herod Not just that an ordinary person would have known but that the risk was so obvious that
there is no way he didn’t know
f. Primary implied assumption of risk: plaintiff assumes the risks that are inherent in the activity
i. Has nothing to do with whether the defendant acted unreasonably
g. Secondary implied assumption of risk: plaintiff knows defendant acted negligently, knows the
ramifications of defendant’s negligence, and voluntarily encountered that risk
h. Lots of jurisdictions have gotten rid of implied assumption of risk because no longer need it
thanks to comparative fault
i. Only five jurisdictions that have moved to comparative fault have kept implied
assumption of risk
Strict Liability
- Liability without regard to fault
o Does not matter if defendant acted unreasonably
o Still have to prove cause in fact and proximate cause
- Strict liability has no additional deterrence effect/ doesn’t make dangerous activities safer
o Just incentivizes companies to the dangerous activity less, somewhere else, or not at all
o The difference is in who pays the residual injuries
 Strict liability= defendants
 Negligence= plaintiffs
- Effects of strict liability:
o Don’t have to prove negligence (don’t have to prove defendant acted unreasonably) just have to
prove defendant caused the injury
o Easier to win
o Going to be more lawsuits
o Lowers cost of litigation
- Strict liability is only applicable in three instances
1. Animals
a. Wild animals: creatures that are not devoted to mankind, belong to a category which has not been
generally domesticated, likely unless restrained to cause personal injury
i. Restatement Third Test:
1. Not generally domesticated
2. Likely to cause personal injury unless restrained
ii. Test: Strictly liable for injuries resulting from the wild animals
b. Domesticated animals: an animal that is by custom devoted to the service of mankind at the time
and in the place where it is kept
i. “one bite rule”: defendant must have knowledge of the domestic animal’s abnormally
dangerous propensities
ii. Test: If you have an animal that has dangerous propensities that are abnormal to that
particular class
1. Standard: Know or has reason to know animal has dangerous propensities
abnormal to its class
2. The danger the defendant should have known about must be the danger/ injury
that actually materialized
a. Still liable even if you took the utmost care (aka acted unreasonably)
b. Still have to prove cause in fact and proximate cause
c. No strict liability for trespassers
2. Abnormally dangerous activities
- Restatement Second
a. One who carries on an abnormally dangerous activity is subject to liability for harm to the person,
land, or chattels of another resulting from the activity, although he has exercised the utmost care
to prevent the harm
b. The strict liability is limited to the kind of harm, the possibility of which makes the activity
dangerous
c. In determining whether an activity is abnormally dangerous, the following factors are to be
considered:
i. Existence of a high degree of risk of some harm to the person, land, or chattels of others;
ii. Likelihood that the harm that results from it will be great;
iii. Inability to eliminate the risk by the exercise of reasonable care;
iv. Extent to which the activity is not a matter of common usage;
v. Inappropriateness of the activity to the place where it is carried on; and
vi. Extent to which its value to the community is outweighed by its dangerous attributes
- Restatement Third
d. a defendant who carries on an abnormally dangerous activity is subject to strict liability for
physical harms resulting from that activity
i. 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 a matter of common usage
- manufacturing products does not count as an activity
3. Product defects  jury question
- On exam, if get a product defect question, analyze using strict liability and negligence- res ipsa loquitor
a. Manufacturing defect: this particular product is different than intended design
i. A manufacturer is strictly liable when an article he places on the market knowing that it
would be used without inspection for defects, proves to have a defect that causes injury to
a human being
1. Product had to been used as intended
a. Courts really apply this as foreseeability question
2. Plaintiff wasn’t aware of the defect
a. Open and obvious question
b. If the plaintiff was aware of this “defective condition” then maybe it
wasn’t defective
3. Product
4. Placed on the market
a. Product that is placed on the market that is defective and causes injury to
the person
ii. Plaintiff can sue anyone involved in the production and manufacturing of the defective
product
iii. Plaintiff’s burden to prove where the defective product entered the market
iv. If defendant can prove the defect came to be after it handled it, then they are dismissed
from suit
v. Restatement (second) 402A:
1. One who sells aby 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
i. This rule applies even if the seller has exercised all possible care
in the preparation and sale of his product and
ii. The user or consumer has not bought the product from or entered
into any contractual relationship with the seller
vi. Restatement (Third):
1. One engaged in the business of selling or otherwise distributing products who
sells or distributes a defective product is subject to liability for harm to persons or
property caused by the defect
2. A product is defective if at the time of sale or distribution it contains a
manufacturing defect, is defective in design, or defective because of inadequate
instructions or warnings
a. It 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
o There is a split in jurisdictions between the second and third restatements but there is a surge
towards the third restatement approach
o Circumstantial evidence: 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:
 Was of a kind that ordinarily occurs as a result of a product defect and
 Was not in the particular case solely the result of causes other than product defect
existing at the time of sale or distribution
 Shifts the burden to defendant to prove there wasn’t a defect
vii. Bystanders can sue but have to be foreseeable victims
b. Design defect: this is how the product was designed, it’s just a dangerous or defective design
i. R3: defective in design 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
ii. Risk utility test
iii. Mixed consumer expectation and risk utility test: (start with CE test and if jury can’t
apply it risk utility test)
1. Usefulness and desirability of the product
2. Probability and magnitude of potential injury
3. relative R/U of reasonable alternative designs (RAD)
4. manufacturer’s ability to eliminate unsafe characteristic
5. user’s ability to avoid danger
6. user’s probable awareness of danger (open and obvious dangers, warning)
7. manufacturer’s ability to spread the loss
8. price of product (if safer alternative are available for more money, design may
reflect balance that consumer freely chose)
iv. Restatement (Third) test: reasonable alternative design
1. Product defective if foreseeable risks of harm could have been reduced by
adoption of reasonable alternative design (“RAD”), the omission of which
renders the product not reasonably safe.
a. Has to be a technologically feasible reasonable alternative design
b. At what time?  time of manufacture
c. CE test for food and, in a limited way, used products
d. Some courts have adopted exception for products whose danger is known
and great, but for which there exists no RAD - in such case, liability if
R>U
v. Consumer expectation test:
1. In consumer expectation jurisdictions, when the product is used by a specialized
subgroup. The relevant consumer is someone in that subgroup
2. Exception to no testimony in CE jurisdictions
vi. Just because there is a safer design doesn’t mean yours is defective had to be
unreasonably dangerous relative to the alternatives
c. Warning defect: product needed a warning because dangerous in some way the consumer
wouldn’t realize OR there was something wrong with the warning
i. R3: when the foreseeable risks of harm posed by the product could have been reduced or
avoided by the provision of reasonable instruction or warnings by the seller or other
distributor, or as a predecessor in the commercial chain of distribution and the omission
of the instructions or warnings renders the product nor reasonably safe
ii. Risks inherent and irreducible in the product
iii. Risks on how to use product safely
iv. Warning about the uses that are unintended
1. Does this product need a warning?
2. If so, was the warning adequate?
a. adequately indicate scope of danger
b. reasonably communicate extent or seriousness of the harm that could
result
c. physical aspects adequate to alert reasonably prudent user to danger
(prominence)
d. simple directive may be insufficient if it doesn’t indicate consequences
e. adequacy of means used to convey warning (on product, in manual, etc.)
f. appropriate for likely audience
g. balance of costs and benefits of additional warning
v. courts impose a rebuttable presumption that the plaintiff would have read the warning
and headed it had the warning been adequate
- Have to decide which product defect it is beforehand because that will determine which test to apply
- g
4. Consumer expectation test: would the consumer have expected the food to make then sick? (only for
food?)
Intentional Torts ac