Contents
I)
Intentional Torts .................................................................................................................................... 2
II)
Negligence ........................................................................................................................................ 5
III)
Strict Liability ................................................................................................................................. 13
Negligence
I)
IIED
Intentional Torts
Intentional Torts
A) Intent (Directly intended or realizes to a substantial certainty that contact or apprehension will result)
1) Specific – willful and conscious act with the purpose of causing a particular result
2) General – willful and conscious act with the awareness of a substantial certainty of a particular result
(Garratt - asshole kid pulls chair out from under woman)
3) D takes P as he finds them (does not have to intend extent of harm)
These situations to do no constitute a lack of intent:
(i) Mistake (as to the target of the harm) (Ranson - shot dog when hunting wolves)
(ii) Insanity (McGuire - D had mental illness and hit P over the head)
(iii) Infancy (Garratt - asshole kid pulls chair out from under woman)
4) Transferred intent
(i) D intended to commit one of five (Battery, Assault, False Imprisonment, Trespass to Land,
Trespass to Chattel) and instead committed another (Altieri - stone throw to scare someone that
hit P)
(ii) Can be an attempt of one of the five torts on one person, with harm to a third person
5) Eggshell plaintiff rule
(i) You take the plaintiff as you find them and are responsible for all injury that arise from the tort
6) Liability without intent is possible in cases where absolute liability is a public good
(i) (Spano - dynamite blasting case)
B) Torts to the Person (all must include injury: nominal damages available for battery and assault)
1) Battery
(i) Voluntary (direct or indirect) Act
(ii) Intent (General or Specific)
(iii) Causing Harmful (physical impairment of the condition of another’s body, physical pain, or
illness) or Offensive Contact (Bodily contact that would offend a reasonable sense of personal
dignity)
(a) Actual physical contact is not required (Fisher - Restaurant owner ripped plate out of man’s
hand)
(b) Offensive contact must be offensive to a reasonable person (Wallace – fire drill where
teacher touches parent to get her to move)
(1) Crowded world – certain amount of contact is inevitable
2) Assault
(i) Voluntary Act (word alone not enough)
(ii) Intent (General or Specific) to cause
(iii) Reasonable Apprehension of
(iv) Imminent Harmful or Offensive Contact (apparent ability to carry it out, not actual ability)
(a) Western Union Telegraph – man reached for woman over desk after sexual comments
3) False Imprisonment
(i) Voluntary Act
(ii) Intent (General or Specific) to confine
(iii) Actual Confinement, without consent (no reasonable means of escape/get away)
(a) Can be:
(1) Threats of physical force
(2) Actual barriers
(3) Indirect threats of force
(4) Failure to provide a means of escape
(b) Is not:
(1) moral persuasion or feeling compelled to stay
(2) shopkeeper acting under reasonable suspicion
(iv) P was conscious of confinement or was harmed by it
(a) Consciousness of confinement DURING the confinement is what is necessary, not after
(1) Parvi – cops take to golf course out of town and abandon them
(2) Children and mentally ill need not have consciousness of confinement
4) Intentional Infliction of Emotional Distress (IIED)
(i) Voluntary Act
(ii) Act constituted EXTREME AND OUTRAGOUS conduct (reasonable person standard)
(iii) Intent (General or Specific) or recklessness
(iv) Causing severe EMOTIONAL DISTRESS (no physical manifestations required)
(a) If defendant was on notice that person was more susceptible, they are held to the standard of
that person being more susceptible
(b) (doctor testimony, missing work, losing sleep) are all proof
(c) No nominal damages
C) Torts to the Property
1) Trespass to Land
(i) Voluntary Act to enter on, beneath or above property of another
(ii) Intent (specific or general) to enter the land in possession of another
(iii) Causing entry onto the land by D or y a thing or 3 rd person, without consent
(iv) Irrespective of harm to land (damages are implied)
2) Trespass to Chattels
(i) Voluntary Act
(ii) Intent (General or Specific) to interfere with possessor’s chattel
(iii) Causing SUBSTANTIAL INTERFERENCE to chattel [including dispossession, impairment,
deprivation for substantial time, or intermeddling (CompuServe)] or bodily harm to possessor
(iv) Actual Damages (must be monetary relief)
3) Conversion
(i) Same as trespass to chattel EXCEPT: conversion is so severe as to justify payment of the full
value of chattel
D) Defense
1) Consent – specific consent can exist
(i) Express or implicit (Koffman v. Garnett – tackling demonstration, may have consented but not
sure if specific enough
(ii) Procured through fraud is invalid (De May v. Roberts – woman giving birth, doctor brought
random guy for assistance)
(iii) Absence of evil intent or negligence is not defense (Mohr v. Williams – consent to ear surgery on
ear 1, but doc ended up deciding to do ear 2 without asking P)
(iv) Informed consent
(v) Sports: consent to contact within rules of the game
(vi) No consent for infancy, intoxication or mental incompetence
2) Self Defense
(i) Reasonable belief that they will be seriously injured/attacked
(ii) Force only used as long as threat of injury continues
(iii) Only use as much force as is necessary
(a) Amount of force defender exerted
(b) Means or the object by which the defender applied force
(c) Manner or method used by defender to apply force
(d) Surrounding circumstances under which defender applied the force
(iv) *RETALIATION NOT PERMITTED*
(v) Defendant cannot defend on self-defense if defendant was initial aggressor
(a) But can if initial aggressor retreats with intent to stop altercation
(b) May also use force if other is using excessive force
(vi) Abusive words alone are not enough, need actual threat of harm
(vii) Deadly force may be used in self-defense, but only if necessary and proportionate
3) Defense of Others
(i) Same as defense of self (steps into their shoes)
4) Defense of Real Property
(i) Property owner can use as much force as is necessary to prevent another from unlawfully coming
onto their property or to remove another who is trespassing on their property
(a) Must prove:
(1) P was trespassing
(2) D believe force used was reasonably necessary to remove P from property
(3) D first asked P to leave, and P refused
(ii) NEVER use force that endangers life or inflicts serious bodily harm (Katko v. Briney – spring
gun in house unlawful)
(iii) Inaction may be construed as consent
5) Defense and Recovery of Personal Property
(i) Can retake property if can be done without unnecessary violence (Hodgeden v. Hubbard – D
retakes stove after man steals it)
(ii) Must demand return first
(iii) Large lag in time takes away privilege
(iv) D reasonable but mistaken belief does not create privilege unless that belief was induced by P
(v) Shopkeepers privilege (Store can detain someone reasonably believed to have shoplifted)
(a) Bonkowski
6) Necessity
(i) Public: Surocco v. Geary – D blew up house to stop city wide fire from spreading
(a) Acting as champion of the public a person can destroy, damage, or use property if reasonably
believes doing so stops imminent danger
(ii) Private: Vincent v. Like Erie Transp. Co. – Boat fastened to dock during storm damaged dock.
D responsible for damages
(a) When a person commits intentional tort, still required to pay for damages
(1) P cannot resist if D is acting reasonably
(iii) Defense requirements
(a) Reasonable belief
(b) Right to commit an intentional tort while invoking
(c) If person tries to stop you , that person liable for a tort
7) Justification
(i) Reasonable restraint or detention for the purpose of preventing another from inflicting personal
injury or interfering with or damaging real or personal property is not unlawful
(a) Taking someone who is intoxicated to a position of greater safety is justification
(b) NOT Parvi(cops dropped dudes at golf course) as they were just avoiding work
II) Negligence
A) Duty
1) RPP
(i) Reasonably Prudent Person – Vaughan v. Menlove (haystack that burnt down homes)
(a) Internal Circumstances
(1) Disability
i.
ii.
Physical
a.
Reasonably prudent physically disabled person
b.
Roberts v. State of Louisiana (blind man who worked in hospital)
Mental
a.
Held liable as long as they have capacity
1.
b.
Bruenig (Batman Case, wrecked car during delusion, previous diagnosis)
Narrow exception:
1.
Gould v. American Family Mutual (Alzheimer’s patient)
(2) Infancy Dellwo (Kid driving boat)
i.
Doing Child Activity
a.
ii.
Tolerate children doing childish acts
Doing Adult Activity Dellwo (Driving speedboat)
a.
Child engaging in adult activities held to adult standard
(b) External Circumstances
(1) Sudden Emergency
i.
Someone in emergency not held to RPP (judge will throw out if no reasonable juror
could find facts judge found)
ii.
An act by a reasonable person that is considered negligent when done under normal
circumstances is not per se negligent if performed by a reasonable person during an
emergency in which he is suddenly faced with certain danger.
a.
Cordas (taxi driver held at gunpoint)
(2) Custom
i.
Not determinative of RPP, ONLY EVIDENCE of RPP
a.
Sears and Roebuck (Gas stove that blew up, voluntary gas check program)
1.
If industry standard is itself unsafe, court can change it
(ii) Reasonably Prudent Professional
(a) Reasonable Prudent Professional standard in particular profession is objective standard and
does not vary based on training and experience of individual professional Heath v. Swift
Wings (Plane crash, overweight plane)
(b) Attorney
(1) Use skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly
possess and exercise in the performance of the tasks which they undertake (Reasonably
Prudent Professional) Wolski (trust dispute negligence case)
i.
Difference in opinion of professionals is not negligence
(2) Legal malpractice is case within a case
(c) Medicine
(1) National standard of care is the general standard of care of medical field Morrison v.
MacNamara (guy passed out standing during STD test, national standard to do sitting)
(2) Even following standard of care, reasonable prudence should still be practiced Helling v.
Carey (glaucoma case)
i.
Custom does not insulate from liability (see above)
ii.
Learned Hand Formula: low burden to fix possible issues
(3) Informed consent:
i.
ii.
Subjective standard, P must prove: Scott v. Bradford (Ear surgery case)
a.
Doctor failed to inform her of material risk
b.
If she had been informed, she would not have consented
c.
Consequences not made known did occur and there was injury
Objective standard, P must prove: Ashe v. Radiation . . . (cancer treatment)
a.
Doctor failed to inform her of material risk
b.
A reasonable person in P position would not have consented
c.
Consequences not made known did occur and there was injury
(4) Doctor has duty to disclose all material person interests that may influence judgement
before securing consent Moore v. Regents of University of California (cells used for
profit)
(iii) “Aggravated Negligence” – Not a specific thing
(a) Quasi-intent – Recklessness so extreme it should be treated as intent and intentional tort
(b) Archibald v. Kemble (hockey player broke rules and caused bad injury)
(c) Willful and wanton behavior is “intentional” Parret v. Unicco Serv. Co. (P decedent
electrocuted at work)
(d) Merely a way to think about recklessness so extreme as to be considered intentional – helps to
designate where the line is between negligence and intent
2) Rule of Law
(i) Standard of conduct of a reasonable person may be established by established by a judicial
decision
(ii) Black letter, judge made law
(a) Not always effective Baltimore & O. R. Co. v. Goodman and Pokora v. Wabash Railway
Co. (train crossing cases, one setting get out and look rule, the other abolishing it)
(b) Takes it away from the jury by setting a rule
(1) Rule: drive 60 mph
(2) Standard: don’t drive too fast
3) Statute (Non-Tort)
(i) Negligence per se
(a) an act is considered negligent because it violates a statute Perry v. S.N. (child abuse case
TX), Stachniewicz v. Mar-Cam Corp (overserving bar brawl case), Sanchez v. Wal-Mart
(Suit against Wal-Mart for overfilling prescriptions leading to car accident from high
customer)
(1) Violation must result in injury to a member of the class of persons intended to be
protected by the legislation and (Stachniewicz, Not Sanchez)
(2) The harm is the kind of harm the statute was enacted to prevent (Stachniewicz)
(3) Caveat: only if court determines it appropriate to impose such civil liability (Perry)
i.
Can be issues with inflation of statute to include tort claims – policy reasons
(b) Some JDX: Rebuttable Presumption
(1) The presumption: violation of a statute constitutes prima facie case of negligence
i.
Rebuttable by offering an adequate excuse under circumstances of the case
ii.
Statute is evidence of negligence, to be rebutted Zeni v. Anderson (woman hit
walking in road during blizzard)
(c) Other JDX: Evidence of Negligence
(1) Defendant is liable for damages caused by a violation of a statute unless D establishes
legal excuse for violating statute – excuse must be a good one Teply v. Lincoln (Idaho
wreck on icy roads, driver blames roads)
4) Tort – Specific Statute
(i) Standard of care of a reasonable person may be established by a legislative enactment or
administrative regulation which so provides
(a) Ex. Dram Shop Act
5) Public Policy (REASONABLY FORSEEABLE PLAINTIFF) – duty can be expanded or limited for
policy reasons
(i) No duty of care to unforeseeable plaintiff Palsgraf (Woman hit with scale after man dropped
package containing fireworks, causing explosion, onto rail more than 30 feet away)
(ii) Social hosts who serve alcohol to guest are liable (in New Jersey) for injury caused by guest in
operating vehicle afterward (if drunk) Kelly v. Gwinnell (drunk guest drove car and hurt p)
(iii) Pharmaceutical company liability for defective drugs does not extend to those who were never
exposed to drugs directly or in utero Grover v. Eli Lilly (miscarriage drug caused side effects to
grandchildren)
6) Advanced Topics (Black Letter Duty) : General rule: No duty to control conduct of others nor warn
those endangered by such
(i) Failure to Act/Omission – Should a duty be imposed?
(a) General Rule: No duty to control the conduct of others, nor to warn those endangered by such
conduct Hegel v. Langsam (Parents sue University because daughter went full deadhead)
(b) Special Relationship can create a duty when:
(1) Relationship has an element of trust, arising especially when one person trusts another to
exercise a reasonable degree of care
(2) The other knows or should know about the reliance
i.
Spouse J.S. and M.S. v. R.T.H. (wife of abuser had special relationship because
she also knew or should have known of husband’s abuse)
ii.
Therapist – Patient Tarasoff v. Regents (therapist should have warned victim, CA)
and Thapar v. Zezulka (therapist had not duty to warn, Texas)
(ii) Negligent Infliction of Emotional Distress (physical limits)
(a) Physical manifestation required
(1) Physical symptoms of mental/emotional distress
(b) Physical Impact Rule
(1) Requirement a physical impact to be the cause of distress/physical manifestation
(Rejected Daley v. LaCroix utility pole explosion caused emotional distress to family)
(c) Zone of Physical Danger
(1) Plaintiff must be in zone of physical danger to recover for NIED Hedgepeth (HIV clinic
misdiagnosis, Hedgepeth reaction to misdiagnosis is not in zone of danger)
(2) Some state zone of physical danger requirement only applicable to bystanders
(3) Increase in risky behavior that aren’t defendant weakens zone of danger connection
(d) Perception
(1) Visual Perception – must see the injury inducing incident firsthand Thing v. La Chusa
(Woman discovers son after hit by a car)
(2) Contemporaneous sensory perception – Must have some sensory (hear or see) perception
of incident Jaynes v. Strong – Thorne Mortuary, Inc. (family didn’t see or hear any of
the injury inducing incident)
(iii) Landowner Liability - Duty
(a) Trespassers – Duty to trespasser is to avoid intentionally or recklessly injuring a trespasser
(1) Duty of care in negligence required once there is actual notice of the trespasser Sheehan
v. St. Paul & Duluth Ry. Co. (P walking along tracks got foot stuck, was trespasser and
train exercised reasonable duty when it became aware of the trespasser)
(b) Licensees – Have to warn of only known dangers, and no willful or wanton injury Evans v.
Hodge (if licensee, no duty to warn of unknown icy mat on porch)
(1) Enters premises of the owner by permission, for licensee’s own purposes Barmore v.
Elmore (D son attacked and stabbed guest there to talk about Masonic Lodge business)
(c) Invitees – Have to exercise reasonable care in keeping premises safe for invitee
(1) Invited onto property by owner for the owner’s purposes (or mutuality) Campbell v.
Weathers (Fell through trap door in floor on way to bathroom)
(d) No Status – General standard of care for all in some jurisdictions
(1) Harms must be reasonably foreseeable Foss v. Kincade (bookcase fell on toddler)
(iv) Vicarious Liability (Employer/Employee: ask “are they employee, are they acting within scope of
employment”)
(a) Respondeat Superior – An employer is vicariously liable for acts of employee when those acts
are committed within the scope of employment (jury question) Papa John’s International,
Inc. v. McCoy (delivery guy false report arrest case)
(1) Ratification Theory: If an employer supports a behavior, they have a responsibility to
control the employee as a result
(b) Independent Contractors – employer is generally not liable for the negligence of an
independent contractor Bell v. VPSI, Inc (van share car accident)
(1) Absent evidence of sham, agreement controls
(2) independent contractor if they have control over means and method
(c) Joint Enterprise Erickson v. Irving (drunk driver off the hook because claim of joint
enterprise with dead passenger)
(1) Agreement to enter undertaking
(2) Community of interest in the object and purposes to be accomplished in the undertaking
(3) Equal authority to control the undertaking
B) Breach – Proving Negligence– LEARNED HAND FORMULA B = P * L
1) Evidence – Plaintiff must prove that defendant was negligent Slip and Fall cases (bananas and
grapes)
(i) Direct – testimony by witness about matter within that person’s knowledge
(ii) Circumstantial– Requires drawing an inference
2) Premises Liability
(i) Actual constructive knowledge by D of some condition
(ii) Condition posed an unreasonable risk of harm
(iii) Owner/operator
3) Slip and Fall Cases
(i) Actual constructive knowledge by D of some condition
4) Res Ipsa loquitur – shifts duty to defense to absolve themselves Byrne v. Boadle (guy hit with barrel
of flour when walking beside flour dealer building
(i) ELEMENTS OF RES IPSA LOQUITUR
(a) D had full management and control of what caused the injury
(b) Harm would not normally have occurred absent negligence
(c) Other responsible causes, including P negligence, are sufficiently eliminated by evidence
(ii) Event is something that doesn’t ordinarily occur without negligence (Byrne v. Boadle), in full
control of the defendant Safeco Insur. Co. (electric panel worked on by another company right
before fire)
(iii) Extended to unconscious surgery in Ybarra v. Spangard (major medical issues following surgery
and no other explanation, doctor’s and others had control during unconsciousness)
C) Causation
1) Cause-in-Fact
(i) But for - The harm would not have occurred absent the conduct Perkins v. Texas and New
Orleans Ry. Co. (Speeding train hit negligently operated truck, negligent driving of truck was
but for)
(ii) Thin skull rule applies Riley v. Salley (pre-existing injury worsened after car accident caused by
D)
(iii) Negligence that greatly increases chance of harm
(a) The possibility that it could happen outside of greatly increased chance doesn’t break causal
chain Reynolds v. Texas & Pacific Ry. Co. (woman fell navigating steps at night)
(b) Mere possibility that one event caused another is not cause-in-fact Kramer Service, Inc. v.
Wilkins (glass fell on head and he later got cancer)
(c) Loss of chance doctrine
(1) Loss of opportunity to “survive” is an increase in risk of harm Herskovits (Suit because
doctor negligence decreased chance of survival by 14%)
(2) Should legislation make the change?
(iv) Multiple sufficient causes – If multiple acts exist, each of which alone would be a factual cause at
the same time, each act is regarded as a factual cause of the harm Anderson v. Minneapolis
(Railroad fire and unknown fire both burned property, railroad held liable)
(a) If many factors exist that also caused negligence, D actions not substantial enough to be liable
Trevino v. Hirsch (fire burned child)
(v) Uncertainty in who is the Tortfeasor of a group
(a) Doctrine of Alternative Liability
(1) Two tortfeasors held jointly liable if it is impossible to tell which one cause injury,
burden of proof shifts to defendants to absolve themselves Summers v. Tice (one of two
friends shot 3rd party while hunting)
(b) Concert of Action
(1) Person liable for others harm to 3rd party if
i.
Does tortious act in concert with another or pursuant to common design
ii.
Knows that the others conduct is breach of duty and gives assistance or
encouragement Hellums v. Raber (hunting party shot knowing P was near deer)
iii. Gives assistance to the other in accomplishing a tortious result and his own conduct
constitutes breach of duty to harmed party
(c) Enterprise Liability
(1) Holding all of industry severally responsible due to industry standard
(2) Unfair to hold small company responsible
(d) Market Share Sindell v. Abbot Labs (miscarriage drug that caused horrible side effects)
(1) Hold industry liable for injury based on their share of market
(2) “More likely than not” includes the defendant
2) Proximate Cause – Courts may use arbitrary limits to establish cause and effect, limiting scope of
causation MUST BE SUBSTANTIAL FACTOR
(i) Proximate cause established:
(a) Conduct is a substantial factor in bringing about the harm, and
(b) There is no rule of law relieving the actor from liability because of the manner in which
his negligence has resulted in the harm
(ii) Unforeseeable Consequences
(a) Negligent person is liable for the proximate results of his own acts, but not for remote
unforeseen damages Opposite results in following cases:
(1) Ryan v. New York Central R.R. Co. (rail ashes burned woodshed, and fire jumped and
burned house) D not liable for next building
(2) Atchison ,T. v. Stanford (sparks lit fire that spread across multiple landowners and
their property) D liable for next property
(b) Negligent actor can be held liable for all damages, even if those damages were not reasonably
foreseeable Opposite Results:
(1) Polemis (worker dropped board and blew up ship) D liable
(2) Overseas tankship Wagon mound 1 (P owned wharf and sued ship for spilling
flammable substance onto water) D not liable
(c) Disregarding a reasonably foreseeable risk, no matter how small, is not justified if there is no
reason for disregarding (LEARNED HAND)
(1) Overseas Tankship Wagon Mound 2 (small risk but engineer should have noticed and
stopped leak)
(2) Wilke v. Woodhouse Ford, Inc (simple inspection may have discovered problem with
car)
(d) Negligent actor is cause to all natural and continuous effects
(1) Palsgraf (dissent: you have a duty to everyone, so if there is natural and continuous
flow of cause and effect, causation)
(e) Liability is not limited when injury is different in manner and extent than expectable
(1) In Re Kinsman Transit Co. (D boat unmoored by ice, hit two boats, then bridge, then
dammed river causing flooding)
(iii) Intervening Causes
(a) If intervening cause is foreseeable, D is liable. If level of care is the issue, then it must be
appropriate level of care.
(1) Derdiarian v. Felix Contracting Corp (Third party drove into unsecured worksite and
injured P)
(b) If intervening cause is not foreseeable, D is not liable if intervening cause is SUPERSEDING
(1) La Quinta Inn, Inc. v. Leech (P dad killed himself, D hotel wouldn’t allow P access to
father before the suicide)
(c) Criminal Acts GENERALLY (but not always) not foreseeable
(1) Watson v. Kentucky & Indiana Bridge & R.R. Co. (gas spill and Charles blows it up)
(d) Injury must be a reasonably foreseeable consequence of the alleged conduct and not highly
extraordinary (type of injury, not gravity of injury: thin skull rule still applies)
(1) Fuller v. Preis (man killed himself (Irresistible impulse) as a result of mental
deterioration from car accident injury)
D) Damages
1) Nominal
(i) Tort Committed but plaintiff has not suffered
(ii) Usually, a trivial amount like $1
2) Compensatory
(i) Economic losses
(a) Objective measurement
(b) Lost earning
(c) Loss or impairment of future earning capacity
(d) Past and future med expenses
(e) Policy reasons
(1) 9/11 case
(2) Less of diminution of property’s market value (as promise – performed) or its
replacement cost
(ii) Non-economic losses
(a) Past and future pain and suffering
(b) Past and future mental pain
(c) Permanent disability and disfigurement
(d) How to guard against double counting?
3) Punitive
(i) Meant to punish defendant
(ii) Beyond compensatory
E) Defenses
1) Contributory Negligence
(i) Originally – Negligence by the Plaintiff bars recovery Butterfield v. Forrester (man riding horse
too fast down road hit pole)
(ii) Lessened by last clear chance doctrine: If the defendant had the last clear chance to avoid the
harm, he is still liable even in plaintiff was negligent
(a) Davies v. Mann (D ran over negligently parked donkey but was driving too fast and could
have avoided the donkey otherwise)
(iii) Can be proven with circumstantial evidence to show proximate cause by P to own damage
Burleson v. RSR Group Florida, Inc (guy shot himself hanging revolver)
2) Comparative Fault (if level of fault is the question at issue, it should go to the jury) (D only gets
summary judgement if they prove they were not negligent)
(i) Pure Comparative Fault (uncommon)
(a) P can collect damages based on their own level of negligence:
(1) If P 90% at fault, can collect 10% of damages
(ii) Modified Comparative Fault
(a) If P negligence is less than 50% (or 51%) of fault they can recover based on that level of fault
McIntyre v. Balentine (P and D both drinking and driving, D was speeding and hit P)
3) Assumption of the risk – Burden on defense because it is a defense
(i) Express – Written or oral agreement to relieve defendant of his or her legal duty to the plaintiff
McCune v. Myrtle Beach (paintball case)
(a) Strictly construed, signer must be aware, and can’t relieve defendant of gross negligence
(1) Jiminez v. 24 Hour Fitness USA, Inc. (P couldn’t read or speak English and signed up
for gym membership, fell and got hurt due to negligence by D)
(ii) Implied – Assumption of the risk is implicitly assumed Wirtz v. Gillogly (tree felling dude refused
to wear helmet and got hit by trunk)
(a) Knowingly assumes the risk (Foul ball at baseball game)
(b) Voluntarily assumes the risk (bought ticket)
(c) Acknowledgement of Risk is not assumption of the risk Kerns v. Hoppe (P was addicted to
painkillers, signed acknowledgment of risk but no release, voluntariness not so certain it
could be taken from the jury)
III) Strict Liability
A) Strict Liability (including animals and activities) Liability imposed without regard to D’s intent or
breach of the duty to use reasonable care (attached to unreasonably dangerous things)
1) Activities – Liability imposed without regard to D’s intent or breach of the duty to use reasonable care
(i) Strict liability is attached to unreasonably dangerous things
(ii) Test for applying strict liability: Indiana Harbor Belt R.R. Co v. American Cyanamid Co. (D
leaking rail car in P yard)
(a) Learned Hand Formula (is there or should there be a duty)
(b) Can damage be prevented by due care
(c) Can it take place somewhere else (if it is of common usage)
(iii) Purpose of strict liability is to provide incentive to look for ways to relocate, change or reduce the
activity because all attempts at greater care are futile
(iv) 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.
(1) An activity is abnormally dangerous if:
i.
The activity creates a foreseeable and highly significant risk of physical harm even
when reasonable care is exercised by all actors; and
ii.
The activity is not one of common usage
2) Animals
(i) Owners of wild animal strictly liable for physical harm from animal if harm results from
dangerous propensities that is characteristic of wild animals of that class Irvine v. Rare Feeling
Breeding Ctr. (Drunk visitor petting tiger before bed mauled)
(a) Includes known (or should have known) vicious animals
(b) Liability imposed even if the owner exercised due care
(ii) Owner’s not liable for willful or negligent trespassers
(iii) Defenses
(a) Negligent assumption of the risk
(1) Plaintiff must know what they are doing is negligent
B) Products Liability (although this includes both strict liability and negligence)
1) Theories of Recovery Under Products Liability
(i) Negligence MacPherson v. Buick Motor Co. (P purchased car with defective, wooden, wheel)
(a) Death of privity requirement
(b) A manufacturer of articles that are not inherently dangerous but that may become dangerous
when improperly constructed owes a duty of care to anyone beyond the purchaser who might
foreseeably use the articles, when it is reasonable to expect no further tests will be performed.
(c) Ordinary and simple tests should be done before finished product is put on the market
(ii) Breach of Warranty
(a) Express:
(1) Promise made in context of contract can be relied upon by P even if P was not party to
contract
(2) Manufacturer is liable to a consumer for breach of an express warranty, even if there is
no privity between the manufacturer and the consumer Baxter v. Ford (Shatterproof
glass in catalog was an express warranty that was broken)
(3) Would be unjust to allow manufacturers to make a ton of false promises
(4) Even innocent mistake still a promise that can be basis for liability
(b) Implied:
(1) Unwritten guarantee that a product will meet reasonable expectations of the buyer
Henningsen v. Bloomfield Motors, Inc (wife driving new car when car broke and
veered off of road at 90-degree angle)
(2) The item is of average quality
(3) Disclaimers of implied warranties and limitations on liability are invalid if they are
unfairly procured if not brought to buyers’ attention or are unclear
(c) Merchantability:
(1) Product will meet reasonable expectations of the buyer
(d) Fitness:
(1) Product meets the buyer’s intended use
(e) No state-of-the-art defense
(1) Can’t use state of the art defense on a product because consumer should get what they are
being promised
(iii) Strict Liability – About the product CONDITION not manufacturer CONDUCT
(a) Defects – Manufacturer is strictly liable for a defect in a product that causes injury to the
ultimate user of the product Greenman v. Yuba Power Products, Inc. (Multi power tool
injury)
(1) DEFECTS GENERALLY:
i.
There is a defect
ii.
The defect caused the injury
iii. The defect made the product unreasonably dangerous
(2) Manufacturing Defect – Product departs from its intended design even though all possible
care was exercised in the preparation and marketing of the product
i.
Issue in workmanship/variations from the intended design
ii.
Marie Pierre-Louis v. DeLonghi America, Inc., et al. (Space heater with leaking
weld caught fire)
a.
Leaking welds were a defect in manufacturing, and not intended in the design
(3) Design Defect – All items are defective because of bad design of the product
i.
Harm could have been reduced or avoided by adoption of reasonable alternative
design; and
ii.
Omission of that alternative design rendered the product not reasonably safe
iii. Policy goal
a.
force manufacturer to anticipate issues
iv. A products utility can be so great to outweigh the risk to users Timpte Indus., Inc. v.
Gish (P fell off of trailer after climbing on top and walking on railing)
a.
Where the utility of a product’s design outweighs its risk to users, an injured
user will not be able to support a claim for negligent design.
v.
A manufacturer is liable if its product fails to perform as safely as an ordinary
consumer would expect when used as intended or in a reasonably foreseeable
manner or is dangerous to an extent beyond that anticipated by the ordinary user.
a.
Manufacturer KNEW there was a better design and failed to implement it
b.
Malcolm v. Evenflo Co., Inc. (kid died in car rollover because of bad design by
car seat manufacturer)
(4) Warning Defect – inadequate warnings or instructions supplied to the consumer, and if
warning was made, foreseeable risks of harm posed by the product could have been
reduced or avoided
i.
Warning defect has elements of negligence
a.
In a strict products liability action on failure to warn, actual or constructive
knowledge of the potential risk or danger is a component Anderson v. OwenCorning Fiberglas Corp. (guy sues for asbestos exposure, D wishes to bring
state of the art defense)
ii.
State of the art defense
a.
Manufacturer had no ability to know because the foremost scientists didn’t even
know at the time “cannot warn about what it does not know”
b.
Allowed in failure to warn cases
c.
Should not apply to consumer expectations cases
(b) Defenses
(1) Plaintiff Conduct
i.
In comparative negligence jurisdictions, comparative negligence applies in strict
products liability case to reduce plaintiff’s recovery only to the extent that his own
lack of reasonable care contributed to his injury (Daly v. GM, Drunk lawyer
wrecked car and was thrown from vehicle. Defective door latch?
(c) Proving defects
(1) Don’t need direct evidence, and doesn’t need to conclusively eliminate all other possible
causes Freidman v. GM (P turned key while car in drive, moved forward)
(2) Circumstantial evidence should prove that “more probable than not’ or more than
possibility - “probability”
(3) In 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:
i.
Was of a kind that ordinarily occurs as a result of a product defect; and
ii.
Was not, in the particular case, solely the result of causes other than product defect
existing at the time of sale or distribution