TORTS Outline for Final

8/20/2019 TORTS Outline for Final

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NEGLIGENCE

-- GENERAL --

Elements of Negligence: Duty; Standard of Care; Breach of Duty; Cause-in-fact’ Scope of

Liability (Proximate Cause); Damaes!

General Duty to those around you (7!: "e#ery dri#er on the public hih$ays o$e to all

other users of the hih$ays a duty to dri#e carefully so as not to sub%ect them to unreasonable

ris&s of harm'

Duty "y #$ecial Relationshi$: enerally if the (D)’s acts did not create the ris& of harm that

befell the (P) there is not duty! *hus there is no duty to act or rescue someone from harm $here

the actions ha#e not created the ris& unless there $as a special relationship bet$een the parties

such as parent-child! *eacher-student doctor patient employer-employee and common carrier-

passener!

NEGLIGENCE % #&ANDARD ' CARE

)icarious Lia"ility: enerally employers and principals are #icariously liable for nelience of

their employees and aents committed $ithin the scope of the employment or aency!

-- R** #&ANDARD --

&he Reasona"le #tandard of Care (7+!: +n most nelience cases the measure of the duty

o$ed is that of a reasonable prudent person under the same or similar circumstances; an

ob%ecti#e standard!

,reach of the #tandard of Care: Breach of duty comprises of t$o elements, foreseeable ris&s

of harm and unreasonable conduct in liht of those ris&s! *his breach determination is made

throuh the lens of a reasonable person! *he ob%ecti#e standard reuires a determination of $hat

a hypothetical reasonable person $ould ha#e done under the circumstances and then measures

(D)’s conduct aainst the standard!

Reasona"le *erson ith Di.erent *hysical Characteristics #tandard (+/!: +n e#aluatina party’s conduct the reasonable person of ordinary prudence is assumed to ha#e the rele#ant

physical disability of that party!

#tandard for the 0entally Disa"led: the standard of care for the mentally disabled and the

insane is that of a sane mentally able person! . mentally ill (or insane) person $ill be held to the

reasonable person standard of care; their illness $ill not be any defense to nelience! /o

distinction is to be made bet$een mental illness that is not sudden and that $hich is sudden and

unanticipated! *his is an o#er$helmin ma%ority decision!

#$ecial Child #tandard: a child’s conduct is compared to that expected of a reasonably careful

child of the same ae intellience maturity trainin and experience!

Inherently Dangerous Acti1ity E2ce$tion (/3!: $hen the acti#ity a child enaes in is

inherently danerous the child should be held to an adult standard of care!

Adult Acti1ities E2ce$tion: Children enain in an acti#ity $hich is normally one for

adults (motori0ed #ehicles) $ill be held to the adult reasonable prudent person standard of

care! *here $ould be ha0ards to the public if the rule is other$ise!

Age ,ased $resum$tions: minority pro#ide that belo$ 1years the child is incapable of

nelience! 2thers pro#ide a rebuttable presumption of an incapability of nelience in

aes bet$een 1 and 34!


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#u$erior #4ill R** #tandard (//!: *he actor must utili0e not only those ualities and facilities

$hich as a reasonable person he is reuired to ha#e but also those superior ualities and

facilities $hich he himself has!

-- ,reaching the R** #td --

,alancing of Ris4s and 5tility (6ands Ris4 Calculus!: B < P x L; +f the burden is less than

probability of the ris& times the nature and seriousness of the harm then the reasonable prudent

person standard has been breached! "Primary factors to consider in ascertainin $hether a

person’s conduct lac&s reasonable care are the foreseeable li&elihood that it $ill result in harmthe foreseeable se#erity of the harm that may ensue and the burden that $ould be borne by the

person and others if the person ta&es precautions that eliminate or reduce the possibility of

harm!

Due Care: Due care is that care $hich is optimal i#en that the potential #ictim is himself

reasonably careful; a careless person cannot by his carelessness raise the standard of care

of those he encounters8

Role of Custom: Customary practices are enerally allo$ed into e#idence to uide %uries in

determinin reasonableness of party’s conduct! *he plainti5 may introduce the (D)’s de#iation

from custom as e#idence of (D)’s unreasonable conduct! Con#ersely (D) may be the party

introducin e#idence of customary practice in order to sho$ that (D)’s compliance $ith customdemonstrates reasonableness! Compliance $ith the local customary standards is not compliance

$ith the reasonable person standard! . defendant’s conduct is not to be considered

unreasonable simply because someone else may ha#e used a better or safer practice; $hat you

must decide is $hether ta&in all the facts and circumstances into account defendant acted

$ith reasonable care!

-- Negligence *er #e #tandard --

Negligence *er #e (0a9ority!: *ra6c la$s includin statutes reulations and local

ordinances set the standard of a reasonable person and thereby reuire a 7ndin of nelience

in a tort action if (P) can pro#e that (D) committed an unexcused #iolation unless excused!

Before a (P) is entitled to an instruction de7nin the #iolation as to nelience per se he must7rst demonstrate that he is amon the protected class and second that the in%ury $as caused

by a harm aainst $hich the la$ $as desined to protect (the *$o Step 8ele#ancy *est)!

• &o-#te$ Rele1ancy &est (3!: +n determinin if the statute is rele#ant the courts

consider $hether the facts of the case 7t $ithin the o#erall lanuae and purpose of the

statute! Class of persons protected 9 the courts consider $hether the plainti5 $as a

member of the class of persons the leislature souht to protect! Type of harm prevented

9 $hether the type of harm su5ered $as a type the leislature souht to pre#ent!

Licensin statutes are usually not adopted because the lac& of a license is not really itself

e#idence of lac& of due care!

&o #te$ Rele1ancy &est for N*#Class of persons protected

*ype of harm pre#ented

N*# #ome E1idence A$$roach (/!: Sini7cant minority; the standard of care remains the

reasonable person standard and the #iolation of the rele#ant statute may be considered by the

%ury in its breach determination!


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N*# E2$ress *resum$tion (/!: a fe$ states follo$ an express presumption of nelience

approach under $hich the burden is shifted to the defendant to rebut the impact of the statutory

#iolation based on the accepted excuse doctrines in the states!

• *otential E2cuse Doctrines (;

to permit such excuse its #iolation is excused $hen (a) the #iolation is reasonable

because the actor’s incapacity; (b) he neither &no$s or should &no$ of the occasion for

the compliance; (c) he is unable after reasonable dilience or care to comply; (d) he is

confronted by an emerency not due to his o$n misconduct; (e) compliance $ould in#ol#ea reater ris& of harm to the actor or to others! (f) . minority formulates an all-purpose

eneral excuse doctrine based on $hether the statute #iolator’s conduct $as nonetheless

reasonable under all the circumstances!

#ome *otential E2cuse Doctrineso Physical incapacity

o /o &no$lede of 2ccasion for Compliance

o +nability after reasonable dilience to comply

o merency

o Compliance in#ol#es reater ris&s

o 8easonableness under all the circumstances

• No E2cuse )iolations: *here are rare circumstances in $hich no excuses are permittedbecause the nature of the statutes such as child labor la$s pure food and dru la$s and

ha0ardous materials safety rules! *hese end up bein strict /PS applications!

#trict Negligence *er #e: /o excuses are permitted if the defendant #iolates a rele#ant

statute under the rele#ancy test!

Child Negligence *er #e (;=!: *he %ury may be instructed that #iolation of a rele#ant statute

under the rele#ancy test may be considered as e#idence of nelience only if the %ury 7nds that

a reasonable child of the same ae intellience maturity and experience as petitioner $ould not

ha#e acted in #iolation of the statute under the same circumstances!

NEGLIGENCE % CIRC50#&AN&IAL E)IDENCE CA5#E ' AC&I'N

Circumstantial E1idence (;+!: e#idence from $hich a reasonable inference can be dra$n;

this plays an important role in Slip and Fall cases and Res Ipsa Loquitur !

#li$ and all % Duties of a store 4ee$er: "+t is the duty of a store&eeper to pro#ide reasonably

safe aisles for customers and he is liable for in%ury resultin from an unsafe condition either

caused by the acti#e nelience of himself and his employees or if other$ise caused $here

&no$n to the store&eeper or is of such character or has existed a su6cient lenth of time that he

should ha#e had &no$lede of it!'

Inference &est (3

appears to be %ust as probable as its nonexistence (or more probable than its existence) then theconclusion that it exists is a matter of speculation surmise and con%ecture and a %ury $ill not be

allo$ed to dra$ from it!

Res I$sa Lo>uitor (3?!: a %ury may dra$ a permissible inference of nelience from the

circumstances surroundin certain accidents pendin on the satisfaction on three conditions, (3)

the accident $hich produced a person’s in%ury $as one $hich does not happen unless someone

$as nelient (=) the instrumentality or aent $hich caused the accident $as under the

exclusi#e control of the defendant and (>) the circumstances indicate that the unto$ard e#ent

$as not caused or contributed to by any act or nelect on the part of the in%ured person! Some


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%urisdictions also reuire (P) to sho$ that (D) has reater &no$lede about $hat caused the harm

than (P)!

@ury may infer negligence if:- .ccident doesn’t usually occur $ithout nelience- (D) $as in exclusi#e control of the instrumentality- (P) $as not contributory to the nelience

Defendants '$tions to Re"ut RIL: Defendant can try to defeat the existence of 8+L bysho$in that one of the elements cannot be established by (P)! (D) can also sho$ that

they exercised due care!

E2clusi1e ControlB: *he trend has been to$ards a liberation or elimination of the

"exclusi#e control'; the control element is a ?exible concept $hich denotes no more than

elimination $ithin reasonable of all explanations for the enesis of the in%urious e#ent

other than the defendant’s nelience!

Ybarra 'utlier % RIL in 6os$itals:


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No lia"ility for inherent Ris4s: Aany medical procedures come $ith inherent ris&s! @or

example no matter ho$ careful the medical personnel some percentae people

underoin surery $ill et an infection!

Nature of E2$ert &estimony (=/!: +n order to be a uali7ed expert the expert need no

necessarily practice the same area of medicine as the defendant! Courts ha#e typically held that

it is su6cient for the expert to sho$ that she has &no$lede of the customary practice in the

area of medicine practiced by the defendant in the rele#ant eoraphical area e#en if that is not

her o$n practice area! Some courts ho$e#er reuire an expert to ha#e trainin and experiencein the 7eld of medicine practiced by the defendant!

Common noledge E2ce$tion to E2$ert &estimony (7!: a %ury is permitted to 7nd

nelience based on the nature of the e#ents that brouht about the plainti5’s harm $ithout

expert testimony if no components reuire any expertise! 2ften these common &no$lede

exception cases in#ol#e proof by 8+L!

Doctrine of Informed Consent (73!: Aedical and surical procedures that in#ol#e touchin a

patient’s person e#en the simplest manipulation of a limb must be properly authori0ed or the

person performin the procedure $ould be sub%ect to an action for battery! .bsent special

circumstances a competent indi#idual has a riht to refuse to authori0e a procedure! *here are

t$o ma%or standards! *he Professional edical Standard % Traditional standard and the Laystandard % materiality of the ris& % prudent patient standard'

• *rofessional #tandard: the physician is reuired to disclose those ris&s $hich a

reasonable medical practitioner of li&e trainin $ould disclose under the same or similar

circumstances!

• Lay #tandard: *he physician’s disclosure duty is to be measured by the patient’s need

for information rather than by the standards of the medical profession! *he lay standard

des not ordinarily reuire an expert testimony as to medical standards to establish the

physician’s duty to disclose; rather it is for the %ury to determine $hether a reasonable

person in the patient’s position $ould ha#e considered the ris& sini7cant in ma&in his or

her decision! :nder this standard a physician must disclose those &no$n ris&s $hich $ould

be material to a prudent patient in determinin $hether or not to undero the suestedtreatment!

• Causation &ests: *o reco#er under Do+C as in all nelience cases there must be a

causal connection bet$een breach and the in%uries su5ered! Some states ha#e adopted a

sub%ecti#e standard reuirin the plainti5 to testify or other$ise pro#e that she $ould not

ha#e consented to the proposed treatment if she had not been fully informed! *he ma%ority

test ob%ecti#e considers $hether or not a reasonably prudent patient fully ad#ised of the

material &no$n ris&s $ould ha#e consented to the suested treatment!

• Disclosure List: (3) dianosis; (=) nature and purpose of the proposed treatment; (>)

ris&s and conseuences of the proposed treatment; (4) probability that the proposed

treatment $ill be successful; () feasible treatment alternati#es; and () pronosis if the

proposed treatment is not i#en!

Legal 0al$ractice (+!: an attorney does not ordinarily uarantee the soundness of his

opinions and accordinly is not liable for e#ery mista&e he may ma&e in his practice! e is

expected ho$e#er to possess &no$lede of those plain and elementary principles of la$ $hich

are commonly &no$n by $ell-informed attorneys and to disco#er those additional rules of la$

$hich althouh not commonly &no$n may readily be found by standard research techniues! +f

the la$ on a particular sub%ect is doubtful or debatable an attorney $ill not be held responsible

for failin to anticipate the manner in $hich the uncertainty $ill be resol#ed! But e#en $ith an

unsettled area of the la$ $e belie#e an attorney assumes an obliation to his client to

underta&e reasonable research in an e5ort to ascertain rele#ant leal principles and to ma&e an


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informed decision as to a course of conduct based upon an intellient assessment of the

problem!

• Causation: *he plainti5 must usually pro#e that he $ould ha#e been successful in his

initial la$suit had the attorney not been nelient!

-- '5&LINE --

#tandards of Care:

• R**o .dopts physical conditions

o +nores mental conditions

o Considers emerencies

o BEPL

• Child R**

o .dult acti#ity exception

o +nherently Danerous .cti#ity exception

o Std, reasonable child of same aeFexperienceFintellience

o /o nelience under 1 years old

• #tatutory N*#o +s P in the class of personsGo +s this the type of harm meant to be pre#entedG

o xcusesG

o Hiolates statute I nelience

• *rofessionalo Doctors

Aedical malpractice

+nformed consented

• Professional standard

• Aateriality of the ris&s F patient standard

o 2ther professionalsG

o .ttorneys

NEGLIGENCE % D5&

-- Limited Duty for Land 'ners --

&he #tatus &richotomy for 1isitors of an oners land: *he common la$ a#e lando$ners

special protection $hen a #isitor $as in%ured on their land pendin on their #isitor status! *he

duty o$ned to the defendant di5ers dependin on $hether at the time of the accident the

defendant $as an in#itee a licensee or a trespasser!

In1itee: one $ho enters on another’s land $ith the o$ner’s &no$lede and for the mutual

bene7t of both! .n o$ner or occupier of land has a duty to use reasonable care to protectan in#itee from conditions that create an unreasonable ris& of harm of $hich the o$ner or

occupier &no$s or by the exercise of reasonable care $ould disco#er! *his status may be

determined throuh the economic bene7t test (are they in business toetherG) or the

public in#itation test (is this land open to the eneral public for businessG)!

Licensee: enters and remains on the land $ith the o$ner’s consent and for his o$n

con#enience or on business $ith someone other than the o$ner! *he duty o$ed to a

licensee s not to in%ure the licensee $illfully $antonly or throuh ross nelience and

in cases in $hich the o$ner or occupier has actual &no$lede of a danerous condition

un&no$n to the licensee to $arn of or ma&e safe the danerous condition!


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&res$asser: . trespasser enters another’s property $ithout any la$ful authority

permission or in#itation! *he only duty a premises o$ner or occupier o$es to a trespasser

is not to cause in%ury $illfully $antonly or thouh ross nelience!

Acti1ity on Land E2ce$tion:

Attracti1e Nuisance Doctrine (?=!: . possessor of land is sub%ect to liability for

physical harm to children trespassin thereon caused by an arti7cial condition upon the

land if, (a) the place $here the condition exists is one upon $hich the possessor &no$s or

has reason to &no$ that children are li&ely to trespass and (b) the condition is one of

$hich the possessor JshouldK &no$JsK and JshouldK reali0eJsK $ill in#ol#e an unreasonableris& of death or serious bodily in%ury to such children and (c) the children because of their

youth do not disco#er the condition or reali0e the ris& in#ol#ed in intermeddlin $ith it or

in comin $ithin the area made danerous by it and (d) the utility of the possessor of

maintainin the condition and the burden of eliminatin the daner are sliht as compared

$ith the ris& to the children in#ol#ed and (e) possessor fails to exercise reasonable care to

eliminate the daner or other$ise to protect the children!

Lia"le to children tres$assers if:(a) children are li&ely to trespass(b) condition poses an unreasonable ris& of in%ury to children(c) children are too younFdumb to disco#erFunderstand the ris&(d) utility and burden is out$eihed by the ris&(e) possessor fails to exercise reasonable care

*olicy for Determining an unrecogniFed Duty Rowland actors:


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foreseeable, (3) speci7c harm test (=) the prior similar incidents test (>) the totality of the

circumstances test and (4) the balancin test!

#$ecic 6arm &est: a lando$ner o$es no duty unless the o$ner &ne$ or should ha#e

&no$n that the speci7c harm $as occurrin or $as about to occur! Aost courts are

un$illin to hold a criminal act is foreseeable only in these situations!

*rior #imilar Incidents &est: a lando$ner may o$e a duty or reasonable care if

e#idence or prior similar incidents of crime on or near the lando$ner’s property sho$s that

the crime in uestion $as foreseeable! *he important factors to consider are the numberof prior incidents their proximity in time and location to the present crime and the

similarity of the crimes! *his test is often re%ected for public policy reasons

&otality of the Circumstances &est: a court considers all circumstances surroundin an

e#ent includin the nature condition and location of the land as $ell as prior similar

incidents to determine $hether a criminal act $as foreseeable!

,alancing &est: *he court balances "the deree of foreseeability of harm aainst the

burden of the duty to be imposed!'

-- Limited Duty to Rescue or Assist --

General Duty u$on Ris4 Creation: . duty of reasonable care is imposed by the la$ if the

defendant has enaed in a6rmati#e conduct that created the ris&s of harm that resulted in anaccident!

0isfeasance 1s Nonfeasance: Courts di5erentiate bet$een situations $here (3) ris&s of harm

arose out of one’s conduct (misfeasance) and (=) $here ris& of harm did not (nonfeasance)! *he

courts allo$ claims based on misfeasance and disallo$ed claims premised on nonfeasance!

enerally there is no duty to assist or rescue!

#$ecial Relationshi$ E2ce$tion to Nonfeasance: duty is imposed $hen there is a

special relationship bet$een the parties! *he exceptions include special dependency and

interdependency relationships such as parentFchild and teacherFstudent; contractual

relationships $here a party has areed to pro#ide aid; situations $here a party has

#oluntarily beun to assist; companions on a social #enture enaed in a commonunderta&in; innocent proper conduct creatin the ris&; reliance on a ratuitous promise;

intentional pre#ention of aid by others and $here a statute imposes a duty to assist!

)ies on )oluntary Assum$tion of Duty (?;;!: (3) many cases say that there is no

liability if a #olunteer uits lea#in the other party no $orse o5 than he $as before! (=) .n

alternati#e #ie$ is that the #olunteer us held to a standard of reasonable care and may not

uit if it is unreasonable to do so!

AHrmati1e Duty to rescue (0inority! (?;7!: (a) a person $ho &no$s that another is

exposed to ra#e physical harm shall to the extent that the same can be rendered $ithout

daner or peril to himself or $ithout interference $ith important duties o$ed to others i#e

reasonable assistance unless assistance is pro#ided by others! (b) *hose $ho pro#ide assistance

shall not be liable in ci#il damaes unless his acts constitute ross nelience or he expectsremuneration!

Duty to arn (?3

that person may ha#e a duty to ta&e protecti#e action aainst a foreseeable criminal indecent! .

defendant o$es a duty of care to all persons $ho are foreseeably endanered by his conduct

$ith respect to all ris&s $hich ma&e the conduct unreasonably danerous! +f special relationship

exists bet$een defendant and a foreseeable and identi7able #ictim he must $arn the #ictim and

police if reasonable to do so!


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Duty to Control (?3?!: under the common la$ one person o$ed no duty to control the

conduct of another unless the defendant stands in some special relationship to either the person

$hose conduct needs to be controlled or in a relationship to the foreseeable #ictim of that

conduct!

• &hera$ist-*atient #$ecial Relationshi$: the therapist o$es a leal duty not only to his

patient but also to his patient’s $ould-be #ictim and is sub%ect in both respects to scrutiny

by %ude and %ury!

E2ce$tion to *sychothera$ist-*atient *ri1ilege (??3!: *here is no pri#ilee if thepsychotherapist has reasonable cause to belie#e that the patient is in such mental or emotional

condition as to be danerous to himself or to the person or property of another and that

disclosure of the communication is necessary to pre#ent the threatened daner!

#$ecial Relationshi$ Duty to *rotect (?=!: in certain types of relationships the common

la$ imposes a duty on one party to ta&e reasonable a6rmati#e measures such as security

precautions to protect the other party from foreseeable criminal acti#ity! *hese relationships

include landlord-tenant business o$ner-patron property o$ner-in#itee hotel-uest and

employer-employee! *he school-student relationship at least belo$ the collee le#el has also

i#en rise to a leal obliation to protect the foreseeable misconduct of others!

*u"lic Duty Doctrine (?7!: a municipality may not be held liable for in%uries resultin from asimple failure to pro#ide police protection! . municipality’s duty is to pro#ide police protection to

the public at lare and not to any particular indi#idual or class of indi#iduals!

#$ecial Relationshi$ "eteen munici$ality and the claimant e2ce$tion: .

municipality may be held to o$e a duty to an indi#idual if a special relationship is

established! *he elements of this special relationship are, (3) an assumption by the

municipality throuh promises or actions of an a6rmati#e duty to act on behalf of the

party $ho $as in%ured; (=) &no$lede on the part of the municipality’s aents that inaction

could lead to harm; (>) some form of direct contact bet$een the municipality’s aents and

the in%ured party; (4) that party’s %usti7able reliance on the municipality’s a6rmati#e

underta&in-- Emotional Distress In9uries --

Im$act Rule (?+?!: Plainti5 may reco#er $here there $as a physical impact but no physical

in%ury e#en the slihtest touchin in an accidental context! Courts in these cases also reuired

proof of physical manifestations of in%ury arisin from the emotional distress as a sort of

corroboration of the distress but most cases ha#e dropped this reuirement!

Jone of *hysical Danger Rule I: @ear for one’s physical $ell-bein; a plainti5 may reco#er for

pure emotional distress if the party $as in the foreseeable 0one of physical daner but escaped

$ithout physical in%ury at least $here the distress arose from a fear for the plainti5’s safety! *he

0one of physical daner is the eoraphic space $ithin $hich a party is at foreseeable ris& of

physical in%ury!

Jone of *hysical Danger Rule II: @ear for the physical


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su5er manifest physical conseuences from the emotional distress! Clohessy also adds that (e)

the in%ury of the #ictim be substantial!

Inde$endent Duty for Emotional ell-,eing: Some emotional distress claims are directly

based on the defendant’s breach of an independent duty obliation to act reasonably for the

plainti5’s emotional $ell-bein! x, Aishandlin the remains of a decedent; a doctor tellin a

patient to tell her husband she has syphilis $hen she didn’t; a mom is entitled to sue $hen a

therapists sexually abuses her son that he is treatin!

KK Burgess - Direct )ictim (defendant as a matter of la$ or that arises out of a relationship bet$een the t$o!

Duty to *rotect against ear of uture Disease (?!: a ma%ority of the courts ha#e

considered claims for fear of contractin .+DS and ha#e reuired a sho$in of actual exposure to

+H; ob%ecti#e! *he fear must be reasonable!

-- *ure Economic In9ury --

Duty to Direct Customers: .lthouh in%uries may be foreseeable to the eneral public a utility

company is only liable $hen there is a contractual relationship bet$een the plainti5 and the

utility! .s a matter of policy liability is restricted for damaes in nelience to direct customersof utility in order to a#oid crushin exposure to the suits of millions!

Duty to Reliant ,usiness *artners % Negligent 0isre$resentation (6' *?7!: 2ne $ho in

the course of his business profession or employment or in any other transaction in $hich he has

a pecuniary interest supplies false information for the uidance of others in their business

transactions is sub%ect to liability for pecuniary loss caused to them by their %usti7able reliance

upon the information if he fails to exercise reasonable care of competence in obtainin or

communicatin the information! Loss su5ered (a) by the person or one of limited roup of

persons for $hose bene7t and uidance he intends to supply the information or &no$s that the

recipient intends to supply it; and (b) throuh reliance upon it in a transaction that he intends the

information to in?uence or &no$s that the recipient so intends or in a substantially similar

transaction!

No Duty to su$$ly more than ,argained for: . denial of a bene7t is not the commission of a

$ron! +f conduct has one for$ard to such a stae that inaction $ould commonly result not

neati#ely merely in $ithholdin a bene7t but positi#ely or acti#ely in $or&in an in%ury there

exists a relation out of $hich arises a duty to o for$ard!

CA5#A&I'N

Causation ,urden: +n order for the causation reuirement to be met a trier of fact must be

able to determine by a preponderance of the e#idence that the defendant’s nelience $as

responsible for the in%ury!

Defendant ould Not 6a1e 0ade a Di.erence:


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#u"stantial actorB (=+!: if (a) a nelient act $as deemed $ronful because that act

increased the chances that a particular type of accident $ould occur and (b) a mishap of that

#ery sort did happen this $as enouh to support a 7ndin by the trier of fact that the nelient

beha#ior caused the harm! uenceB: as lon as the defendant’s nelience created a reasonably

foreseeable ris& of the eneral &ind of harm that befell the plainti5 the exact $ay or precise

manner the harm occurs does not matter for purposes of scope of liability! @oreseeable

conseuences are those $hich are probable accordin to ordinary and usual experience those

$hich because they happen so freuently may be expected to happen aain! 2ne is bound to

anticipate or foresee and pro#ide aainst that $hich is unusual or that $hich is only slihtly

probable!


12/24

&he Ris4 #tandard: an actor should be held liable only for harm that $as amon the potential

harmsFris&s that made the actor’s conduct tortious! *his standard excludes liability for harms

su6ciently unforeseeable at the time of the tortious conduct so that they $ere not amon the

ris&sFpotential harms that made the actor nelient! *his standard adapts better to defendants

$ith di5erent standards of care 9 doctors children etc!

oreseea"ility #tandard: a person is only liable for the reasonable foreseeable conseuences

of his or her actions! *he plainti5 must be $ithin the eneral class of persons one $ould

anticipate miht be threatened by the defendant’s conduct! *his must also be the &ind of harm

that one $ould reasonably anticipate!

-- Inter1ening Cause --

Inter1ening Cause: .n inter#enin act may not ser#e as a supersedin cause and relie#e an

actor of responsibility $here the ris& of the inter#enin act occurrin is the #ery same ris& $hich

renders the actor nelient!

&hree-*ronged &est for *ro2imate Causation: (3) *he tortfeaser’s conduct must ha#e been

a substantial factor in brinin about the harm bein complained of; and (=) there is no rule or

policy that should relie#e the $rondoer from liability because of the manner in $hich the

nelience has resulted in the harm; and (>) the harm i#in rise to the action could ha#e

reasonably been foreseen or anticipated by a person of ordinarily intellience and prudence!

&hird *artys Inter1ening Act:


13/24

• A$$lies only to Negligence Cul$a"ility8 *he defense can only be used if the

defendant’s conduct $as nelient and this defense thus $as not a#ailable for any hiher

form of culpability!

• Last Clear Chance: a nelient plainti5 could still reco#er aainst a nelient defendant

upon proof that the defendant $as more culpable because he had the last opportunity to

pre#ent the harm!

• Dis>ualifying #tatute: the defense could not be permitted to ser#e as a defense in

some contexts such as $here the plainti5’s fault $as based on a statute enacted to

protect a class of persons from their o$n inability to exercise self-protecti#e care!

Com$arati1e ault (37!: $here both a plainti5 and a defendant are at fault they should

share the responsibility rather that ha#e it entirely on one party! Ourisdictions are split on Pure

Comparati#e @ault and Aodi7ed Comparati#e @ault!

*ure Com$arati1e ault: a nelient plainti5 reco#ers some damaes from a nelient

defendant reardless of the plainti5’s deree of fault! *hus under a pure approach if a

%ury determines that the plainti5 $as QR at fault the plainti5 $ould reco#er =R of the

damaes from the nelient defendant!

0odied Com$arati1e ault: +n a t$o-party accident the plainti5’s reco#ery is barred if

the plainti5’s fault exceeds a certain percentae! *hus in some %urisdictions follo$in a

modi7ed approach the plainti5 is denied reco#ery if the fault of the plainti5 is found toexceed that of the defendant (more than R)! 2ther %urisdictions set the cuto5 point to

reco#ery at R!

• Doctrine of A1oida"le Conse>uences: Defendant need no pay for any additional harm

that P could ha#e a#oided throuh reasonable care! .fter bein harmed plainti5s must

ta&e reasonable steps to a#oid exacerbatin their in%uries!

• Com$arati1e ault Assessment actors: +n assessin comparati#e fault the follo$in

factors should be considered, (3) $hether the conduct resulted from inad#ertence or

in#ol#ed an a$areness of the daner (=) ho$ reat a ris& $as created by the conduct (>)

the sini7cance of $hat $as souht by the conduct (4) the capacities of the actor $here

superior or inferior and () any extenuatin circumstances $hich miht reuire the actor

to proceed in haste $ithout proper thouht!

E2$ress Assum$tion of the Ris4: arises $hen one person i#es explicit $ritten or oral

permission to release another party from an obliation of reasonable care! xpress assumption of

the ris& situations include the limitations of liability typically included on s&i lift tic&ets

permission slips for a teenaer to play hih school football and health club contract! /ote that

the person sinin the $ai#er is i#in up more than the riht to reco#er if harmed by inherent

ris&s of the acti#ity; the person is i#in up the riht to reco#er for in%uries su5ered as a result of

the defendant’s unreasonable conduct!

In1alid E2cul$atory Clause *olicy Analysis Trunkl actors: (a) it concerns a

business of a type enerally thouht suitable for public reulation; (b) *he party see&in

exculpation is enaed in performin a ser#ice of reat importance to the public $hich isoften a matter of practical necessity for some members of the public; (c) *he party holds

himself out as $illin to perform this ser#ice for any member of the public $ho see&s it or

at least any member comin $ithin certain established standards; (d) .s a result of the

essential nature of the ser#ice in the economic settin of the transaction the party

in#o&in exculpation possesses a decisi#e ad#antae of barainin strenth aainst any

member of the public $ho see&s his ser#ices; (e) +n exercisin a superior barainin po$er

the party confronts the public $ith a standardi0ed adhesion contract of exculpation and

ma&es no pro#isions $hereby a purchaser may pay additional fees and obtains protection

aainst nelience; and (f) .s a result of the transaction the person or property of the


14/24

purchaser is placed under the control of the seller sub%ect to the ris&s of carelessness by

the seller of his aents!

Trunkl actors for In1alid E2cul$atory Clausea! Business suitable for public reulationb! ser#ice of reat public importanceFnecessityc! ser#ice a#ailable to public F members $ithin certain standardsd! ad#antae in barainin strenthe! Strict Standardi0ed Contractf! under sellers control and sub%ect to ris&s of carelessness

Im$lied Assum$tion of the Ris4: sub%ecti#e; comprised of three basic elements, (a)

&no$lede of the ris&; (b) appreciation of the ris&; and (c) #oluntary exposure of the ris&! *he

burden of pleadin and pro#in assumption of the ris& is on the defendant! +n its simplest and

primary sense assumption of the ris& means that the plainti5 in ad#ance has i#en his consent

to relie#e the defendant of an obliation of conduct to$ard him and to ta&e his chances of in%ury

from a &no$n ris& arisin from $hat the defendant is to do or lea#e undone! @or a plainti5 to

assume the ris& not only must she &no$ and comprehend the ris& she must also #oluntarily

expose herself to the ris&! 2ne cannot assume a ris& in#oluntarily!

Im$lied #econdary Assum$tion of the Ris4: the larest cateory of assumption of ris& cases

$here the plainti5 is said to assume the ris& of the defendant’s nelience! #en thouh the

defendant in such cases is found to be at fault the plainti5 is barred from reco#ery on the round

that he &ne$ of the unreasonable ris& created by the defendant’s conduct and #oluntarily chose

to encounter that ris&!

A' as Contri"utory Negligence: it may be said that a reasonable prudent person exercisin

due care for his o$n safety $ould not ha#e enaed in the conduct! . miscalculation of the ris&

constitutes contributory nelience!

*rimary Assum$tion of the Ris4 % Limited Duty: occurs $hen a party enters into a

relationship $ith another &no$in and expectin that the other person $ill not o5er protection

aainst certain ris&s arisin out of the relationship! +f a participant is in%ured in the ordinarycourse of the acti#ity or by #oluntarily obser#in the acti#ity he $ill not ha#e a #iable claim

aainst the o$ner of the instrumentality because there is either no duty to remo#e all ris&s or

the o$ner has not breached any duty to the participant and courts $ill dismiss the claim!

*ypically proof that the plainti5 $as una$are of the ris& is una#ailin!

A'R Limited Duty Intentional In9ury E2ce$tion: the eneral test is that a participant

in an acti#e sport breaches a leal duty of care to other participants only if the participant

intentionally in%ures another player or enaes in conduct that is so rec&less as to be

totally outside the rane of the ordinary acti#ity in#ol#ed in the sport!

*rofessional Rescuers Rule: e#en if actin in a #olunteer capacity rescuers are barred

from brinin actions aainst third parties $hose proper nelience necessitated arescuers response in $hich the rescuer $as in%ured! *his is because rescuers $ere said to

ha#e assumed the ris&s related to their %obs in underta&in the employment! .n exception

exists for situations $here an o6cer is in%ured in the line of duty merely because he or she

happened to be present in a i#en location but $as not enaed in any speci7c duty that

increased the ris& of recei#in that in%ury!

#tatutes of Limitations

IN&EN&I'NAL &'R


15/24

Intent (=;!: a person acts $ith intent to produce a conseuence if, (a) *he person has the

purpose of producin that conseuence; or (b) *he person &no$s to a substantial certainty that

the conseuence $ill ensue from the person’s conduct! *he intention need not be malicious nor

need it be an intention to in?ict actual damae! *he intent is not necessarily a hostile intent or a

desire to do any harm! *he defendant may be liable althouh intendin nothin more than a

ood-natured practical %o&e or honestly belie#in that the act $ould not in%ure the plainti5 or

e#en thouh see&in the plainti5’s o$n ood!

•

Em$loyers Intent to harm an Em$loyee Van Fossen &est: (3) &no$lede by theemployer of the existence of a danerous process procedure instrumentality or condition

$ithin its business operation; (=) &no$lede by the employer that if the employee is

sub%ected by his employment to such danerous process procedure instrumentality or

condition then harm to the employee $ill be a substantial certainty and %ust not a hih

ris&; and (>) that the employer under such circumstances and $ith such &no$lede did

act to reuire the employee to continue to perform the danerous tas&!

Assault: .ssault is an act by the defendant $hich arouses in the plainti5 a reasonable

apprehension of imminent battery caused by the defendant $ho has the reuired intent!

• ords Alone: 2rdinarily $ords alone cannot be an assault! o$e#er $ords can

constitute assault if toether $ith other acts or circumstances they put the other inreasonable apprehension of imminent harmful or o5ensi#e contact $ith his person!

• A$$rehension: *he plainti5 must ha#e been a$are of the defendant’s threatenin at the

time before it is terminated! /ote that apprehension of the contact is all that is reuired; it

is not necessary that the plainti5 experience the emotion of fear

Elements of AssaultAHrmati1e )oluntary Act- $ords alone insu6cientIntent- D’s purpose or desire is to cause the apprehension or D attempts a battery or false

imprisonment and fails

- substantial certainty rule- transferred intentCausation)olition- But for causationReasona"le A$$rehension of o5ensi#e contact or false imprisonment- imminence of the threat 9 no sini7cant delay- apparent ability to carry out threat- P must be a$are of threat- fear not necessary- (xception, D &no$s of P’s timidity)&o a *erson

,attery: Battery is a harmful or o5ensi#e contract (direct or indirect) $ith the plainti5’s person

caused by the defendant $ho has the reuired intent! Courts are split on $hether it is only

reuired to intend the contact $hich is in fact harmful (sinle intent) or $hether the plainti5

must also pro#e that the defendant intended not only the contact but also harm or o5ense (dual

intent)!

• '.ensi1e Contact: contact $hich is o5ensi#e to a reasonable sense of personal dinity

is o5ensi#e contact! "25ensi#e' means "disareeable or nauseatin or painful because of

outrae to taste and sensibilities or a5rontin insultinness!'


16/24

• Cigar #mo4e: "


17/24

alse Im$risonmentConnement- actual or apparent barriers- no reasonable means of escape- only brief time reuired- &no$lede by P usually reuired- challeneableG'f A *erson

Causation)olition- But @or causation- a6rmati#e #oluntary conduct- $ords alone may be su6cientIntent- purpose or desire to cause con7nement- substantial certainty- transferred intent

-- Defenses and *ri1ileges to Intentional &orts --

Consent: Consent to sexual intercourse is not the eui#alent of consent to be infected $ith a

#enereal disease; &no$lede of the harm to be in?icted is reuired! *o constitute a consent the

assent must be to the in#asion itself and not merely to the act $hich causes it! Persons $ho

enae in rouhhouse horseplay also accept the ris& of accidental in%uries $hich result from

participation therein! Consent is ine5ecti#e if the person lac&s capacity to consent to the

conduct!

Defense of *ro$erty (7?!: *he #alue of human life and limb out$eihs the interest of a

possessor of land! /o pri#ilee to use force intended or li&ely to cause death or serious harm

aainst another $hom the possessor sees about to enter his premises or meddle $ith his chattel

unless the intrusion threatens death or serious bodily harm to the occupiers or users of the

premises! e cannot ain pri#ilee to install for the purpose of protectin his land from

intrusions harmless to the li#es and limbs of the occupiers or users of it a mechanical de#ice$hose only purpose is to in?ict death or serious harm upon such as may intrude!

Necessity: *he pri#ilee of necessity may be in#o&ed $hen the defendant in the course of

defendin himself or his property (or others or their property) from some threat of imminent

serious harm for $hich the plainti5 is not responsible intentionally does some act reasonably

deemed necessary to$ard that end $hich results in in%ury to P’s property and $hich $ould

other$ise be a trespass or con#ersion! *here are three elements to necessity! *he 7rst element is

that the defendants must ha#e acted under the reasonable belief that there $as a daner of

imminent physical in%ury to the plainti5 or to others! *he second and third elements of the

necessity defense are intert$ined! *he second element is that the riht to con7ne a person in

order to pre#ent harm to that person lasts only as lon as is necessary to et the person to the

proper la$ful authorities! *he third element is that the actor must use the least restricti#e meansof pre#entin the apprehended harm!

Guard Dog: +f any do shall do any damae to either the body or property of any person

the o$ner shall be liable for such damaes unless such damae shall ha#e been

occasioned to the body or property of a person $ho at the time such damae $as

sustained $as committin a trespass or other tort or $as teasin tormentin or abusin

such do!


18/24

*u"lic necessity: +f the daner a5ects an entire community or so many persons that the public

interest is in#ol#ed the pri#ilee is complete and the defendant’s tort liability is entirely excused!

*his is the case $hether the defendant is a public o6cial or a pri#ate citi0en!

*ri1ate Necessity: +f the daner threatens only harm to the defendant or his property (or to a

third person or his property) the defendant is pri#ileed to commit the act $hich causes the

trespass or con#ersion but he is sub%ect to liability for compensatory damaes for any resultin

actual physical harm!

#&RIC& LIA,ILI&

Domestic Animals: 2ne $ho possesses or harbors animals customarily domesticated in that

reion is strictly liable for harm (ther than harm resultin from trespass) only if (a) he &ne$ or

had reason to &no$ that the animal had a harmful or danerous propensity or trait and (b) that

particular trait or propensity $as the cause of the harm! Statutes in come %urisdictions impose

strict liability for certain &inds of harm (e!! do bites); irrespecti#e of the &eeper’s &no$lede of

any propensity to cause that harm!

ild Animals: 2ne $ho possess or harbors animals not customarily domesticated in that reion

is strictly liable for all harm done by the animal as a result of a harmful or danerous propensity

or characteristic of such animal!

-- A"normally Dangerous Acti1ities --

5ltra 6aFards: Strict liability is imposed on those enain in an "ultra ha0ardous' acti#ity! .n

ultra ha0ardous acti#ity is an acti#ity that (a) necessarily in#ol#es a ris& of serious harm to the

person land or chattels of others $hich cannot be eliminated by the exercise of the utmost care

and (b) is not a matter of common usae!'

A"normally Dangerous actors: (a) existence of a hih deree of ris& of some harm to the

person land or chattels of others; (b) li&elihood that the harm that results from it $ill be reat;

(c) inability to eliminate the ris& by the exercise of reasonable care; (d) extent to $hich the

acti#ity is not a matter of common usae; (e) inappropriateness of the acti#ity to the place $here

it is carried on; and (f) extent to $hich its #alue to the community is out$eihed by its danerousattributes!

Restatement (#econd! A"normally Dangerous actors: #amn( om I )specially Love *a"ina(D)eree of ris& harm to persons or land(A)atter of common usae (ho$ common is the acti#ityG)(+)nappropriateness of the location of acti#ity()xercise of reasonable care (could you eliminate ris& by exercisin reasonable careG)(L)i&elihood that the harm that results $ill be reat(H)alue of community balanced aainst danerous attributes

Restatement (&hird! A"normally Dangerous actors: (3) the acti#ity creates aforeseeable and hihly sini7cant ris& of physical harm e#en $hen reasonable care is

exercised by all actors and (=) the acti#ity is not one of common usae!

-- #trict *roducts Lia"ility --

*roducts Lia"ility *rima acieDuty- Aanufacturer or Seller- Business 8elated to oods- 2ther issuesDefecti1eness


19/24

- Aanufacturin Defect- Desin Defect

• Consumer xpectations *est

8is&-:tility *est

*$o-Proned *est

- ) if the buyer fails to i#e reasonably prompt and full notice; or

(4) if the product is considered merchantable because it matched customary industry

desin standards for such products!

0anufacturers: a manufacturer incurs an absolute liability $hen an article that has been

placed on the mar&et &no$in that it is to be used $ithout inspection pro#es to ha#e a defect

that causes in%ury to human beins! *he pri#ity of contract is not reuired to assert an implied

$arranty of merchantability claim aainst the manufacturer!

Elements of #*L: (3) article $as placed &no$in it is to be used $ithout inspection; (=) pro#es

to ha#e a defect and; (>) in%ury to a human bein!

Restatement (?nd! on #*L #ection ;


20/24

Alteration: modi7cations or hamperin of the product by a third party may cut o5 liability!

Section 4=. applies $here the product is at the time it lea#es the seller’s hands in a condition

not contemplated by the ultimate consumer $hich $ill be unreasonably danerous to him! *o

pre#ail in a strict liability case a plainti5 must pro#e that his in%uries resulted from an

unreasonably danerous or defecti#e condition of the product and that the condition existed at

the time the product left the manufacturer’s control! Plainti5 must also eliminate a possible

secondary cause!

'rdinary Consumer E2$ectation &est, +s the product more danerous than an ordinary

consumer $ould expect $ith reasonable useG 4=. applies only $here the defecti#e condition of

the product ma&es it unreasonably danerous to the user or consumer! *he article sold must be

danerous to an extent beyond that $hich $ould be contemplated by the ordinary consumer

$ho purchases it $ith the ordinary &no$lede common to the community as to its

characteristics! 2b%ecti#e!

&y$es of *roduct Defects: Section 4=. $as applied by the courts to cases in#ol#in the three

basic types of product defects, manufacturin desin and $arnin defects!

0anufacturing Defect: an imperfection shortcomin or abnormality in a product that departs

from its desin speci7cations and pre#ents the product from safely performin its intended

function! *he product in uestion typically is compared to the manufacturer’s o$n standards or

speci7cations to determine if there is a di5erence that ma&es the product less safe! *he ordinary

consumer expectation test is applicable! *his is a strict liability standard! *here are essentially

t$o $ays to pro#e a manufacturin defect, (3) proof of de#iation from desin speci7cations and

(=) circumstantial e#idence allo$in an inference of such a defect

• ,urden: a plainti5 has the burden of sho$in that the product $as defecti#e that the

defect $as the proximate cause of his or her in%uries and that the defect existed at the

time the product left the manufacturer! *he plainti5 need not present direct e#idence of

the defect! *he plainti5 may present a case-in-chief e#idencin the occurrence of a

malfunction and eliminatin abnormal use or reasonable secondary causes for the

malfunction!

• Circumstantial E1idence: it may be inferred that the harm sustained by the plainti5 $ascaused by a product defect existin at the time of sale or distribution $ithout proof of a

speci7c defect $hen the incident that harmed the plainti5, (a) $as the &ind that ordinarily

occurs as a result of product defect; and (b) $as not in the particular case solely the

result of causes other than product defect existin at the time of sale or distribution!

Design Defect: *o 7nd a desin defect most %urisdictions use both the 2C test and the 8F: test

(some use only one or the other)! enerally a desin defect exists $hen safety ha0ards in the

desin could reasonably ha#e been eliminated! Aost commonly a desin defect can be found if a

reasonable safer cost-e6cient desin $as technoloically feasible $hen the product $as sold

that $ould not unduly impair the o#erall utility of the product! *hus a manufacturer can be liable

for desin defects e#en thouh the product satis7es its o$n desin standards! *he consumer

expectation test and ris& utility test are applicable! *his is a nelience not a strict liability

standard

Ris4 5tility Analysis:


21/24

Barker actors for the Ris4-5tility ,alancing &est(a) *he ra#ity of the potential harm resultin from the use of the product(b) *he li&elihood that such harm $ould occur(c) *he feasibility of an alternati#e desin(d) *he cost of an alternati#e desin(e) *he disad#antae of an alternati#e desin(f) other rele#ant factors

Reasona"le Alternati1e Design: a product is defecti#e in desin $hen the foreseeable

ris&s of harm posed by the product could ha#e been reduced or a#oided by the adoption of

a reasonable alternati#e desin by the seller or other distributor or a predecessor in the

commercial chain of distribution and the omission of the alternati#e desin renders the

product not reasonably safe! *his does not apply $hen the product desin is manifestly

unreasonable! Plainti5 are additionally not reuired to produce expert testimony in cases

in $hich the feasibility of a reasonable desin is ob#ious and understandable to

laypersons!

'CE for Design Defects: a plainti5 must ordinarily pro#e (3) that the defendant

manufactured or sold the product (=) that the product $as unchaned from the date of

sale or that any chanes $ere reasonably foreseeable (>) that the product $as used in areasonably foreseeable manner (4) that the product did not perform as safely as an

ordinary consumer $ould ha#e expected () that the plainti5 $as harmed and () that

the product’s desin $as a substantial factor in causin the harm!

Causation: Aost courts today reuire the plainti5 to sho$ that the desin feature

ara#ated the plainti5’s in%uries and the defendant is then responsible for all the in%uries

except those that the

Defecti1e *er #e: . product desin that fails to comply $ith a safety statute or

administrati#e reulation renders it conclusi#ely defecti#e reardin the ris&s souht to be

reduced or eliminated by the safety rule!

'$en and '"1ious Rule: +f a product is desined so that it is reasonably safe for the use

intended the product is not defecti#e e#en thouh capable of producin in%ury $here thein%ury results from an ob#ious or patent peril! Aanufacturers are not liable for failure to

ma&e adult products child proof!

&o *ronged Design Defect &est: Court apply both the 2C and 8F: test!

arning Defect: Defendant is only held liable for not $arnin about ris&s it &ne$ or should

ha#e &no$n in most %urisdictions! Some allo$ &no$ability and e#en un&no$n ris&s! . product

may ha#e a $arnin defect if the manufacturer fails to $arn consumers of a material ris& of

daner in the use of the product! . $arnin defect may also exist $hen the $arnin i#en is

inadeuate! Courts typically use nelience principles to establish a failure to $arn claim under

section 4=.! *he plainti5 must pro#e that the manufacturer failed to exercise reasonable care in

pro#idin a $arnin! *his usually in#ol#es consideration of factors such as the explicitness of the

daners presented the clarity of the statements the manner of presentation and the persons to

$hom the $arnin is addressed! *his is a nelience not a strict liability standard!

Aanufacturers ha#e a duty to $arn users of latent ris&s and also ris&s that the users may not

fully appreciate! *hey also ha#e a duty to pro#ide instructions on ho$ to safely use the product!

• Ade>uacy of arning (+3!: . manufacturer may be liable for the failure to adeuately

$arn $here its $arnin is not prominent and not calculated to attract the user’s attention

to the true nature of the daner due to its position si0e or colorin of its letterin! .

$arnin may be found to be inadeuate if its si0e or print is too small or inappropriately

located on the product! *he $arnin must be su6cient to catch the attention of persons


22/24

$ho could be expected to use the product to apprise them of its daners and to ad#ise

them of measures to ta&e to a#oid these daners! *he failure to use a uni#ersal symbol of

$arnin such as a s&ull and crossbones can result in manufacturer liability!

*rinci$al Criteria in e1aluating the ade>uacy (reasona"leness! of a arning(a) the explicitness of the $arnin(b) $hether the $arnin lanuae is comprehensible to typical users(c) the clarity of the $arnin(d) the conspicuousness of the $arnin(e) the means used to con#ey the $arnin

• Causation: .s to causation liability for failure to $arn exists "$hen there is su6cient

e#idence that a $arnin miht ha#e made a di5erence!' #en $hen a $arnin is pro#ided

the failure to read it does not necessarily bar reco#ery $here the plainti5 is challenin

the adeuacy of the e5orts of the manufacturer to communicate daners of the product to

the buyer or user! Plainti5 must pro#e that (a) the product caused the in%ury and (b) that a

$arnin $ould ha#e altered the user’s beha#ior such as to a#oid the accident!

Learned intermediary doctrine: usually applied to prescription dru cases, the

producer need only $arn the learn intermediary (health care pro#ider) of the ris& and may

rely on the intermediary to ma&e reasonable choices and ad#ise the patient! +n the case of

prescription drus the duty to $arn runs to the physician not to the patient!

Allergic Reactions: *he eneral rule in cases in#ol#in alleric reactions is that a

$arnin is reuired $hen the harm-causin inredient is one $hich a substantial number

of persons are alleric!

5na1oida"le Ris4s Comment : Aanufacturers $ill be relie#ed from strict liability only $hen

it demonstrates that it has met the reuirements of "Comment T', (3) the product is properly

manufactured and contains adeuate $arnins (=) its bene7ts %ustify its ris& and (>) the product

$as at the time of manufacture and distribution incapable of bein made safer! :sually applied

to prescription dru cases!

5n4non Ris4s: Dru manufacturers are not strictly liable for a ris& that $as not &no$n or

reasonably scienti7cally &no$able! *hey are also speci7cally precluded from $arnin of ad#erse

reactions $hen di5erences of opinion exist $ithin the medical community $ith reard to

potential ad#erse reactions!

as the *roduct unforeseea"ly misusedK: Aishandlin or misuse by the consumer or by

anyone else other than the defendant itself is a limited and partial defense!

oreseea"le 0isuse of the *roduct: . defendant cannot defend aainst a products liability

suit on the basis of a misuse that he in#ited! . seller $ho is sub%ect to SPL is responsible for the

conseuences of sellin a defecti#e product e#en if the defect $as introduced $ithout any fault

on his part by his supplier or by his supplier’s supplier! Aanufacturers ha#e a duty to protect

aainst all foreseeable uses reasonable and unreasonable! *ypically there is no liability for

unforeseeable uses!

Causation: enerally the plainti5 must resent su6cient e#idence that the alleed defecti#e

condition of the product $as a but-for cause or a substantial factor in contributin the in%uries!

#uccessor Cor$oration Lia"ility: Shareholders of a dissol#ed company are enerally immune

absent fraud from the liabilities of the dissol#ed company! Companies are dissol#ed and

subsumed into other companies in a number of di5erent $ays! *here are essentially three

concepts for the $ays for companies to be bouht out, (3) a sale of assets (=) a statutory

merer or (>) a purchase for a controllin number of stoc&! *he exception to these rules include,


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consent fraud or the conclusion that the successor is essentially the same company as the

predecessor!

#co$e of Lia"ility:


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InMation: +n?ate and discount real interest rate and Cancel-2ut

Rule of A1oida"le Conse>uences: ) the di5erence bet$een the puniti#e damaes a$arded by the %ury and

the ci#il penalties authori0ed or imposed in comparable cases! enerally o&ay unless rossly

excessi#e in #iolation of due process!

rongful Death: racially based life expectancy ad related data may not be utili0ed to 7nd a

reduced life expectancy for a claimant in computin damaes based on predictions of life

expectancy! +t can no loner automatically be assumed that $omen $ill absent themsel#es from

the $or& force for proloned inter#als durin their child-bearinFchild-rearin years!

TORTS Outline for Final

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