Law School Outlines - Torts

TORTS five different purposes behind tort law that play against each other 1. compensation: V is compensated for harm D caused 2. deterrent and/or behavior modification --- generally strict liability 3. reliance by others on community norms -- modify D's behavior 4. moral fault- blameworthy from moral standard; negligent 5. ease of judicial administration Duty to act: a person has a duty to act when: 1. they have created that duty, example: D provides initial assistance to accident victim and says he will call for help-- D has a duty to continue to help P 2. D created the peril to P 3. D is contracted to help-- example: day care provider, in-home care for elderly 4. family member Liability without fault Strict Liability Generally, strict liability is not imposed for breach of any specific duty but is imposed by the courts and legislatures for certain activities that should "bear the cost of doing business"-- victims should be compensated for their injuries even though the person who caused the injury may be as innocent as the victim. Policy: Strict liability is used to a. deter behavior, b. internalize the cost of business c harm caused may be more readily and easily paid for by corporation than private consumer/citizen- may be harm that individual can't insure against. Some look at strict liability imposed where there is a duty to "make safe" and damage or injury is evidence of a breach of that duty if it was the actual or proximate cause of the injury. I. Animals 1. Trespassing animals: generally, the owner is held liable for any damage done by the trespass of his animals (other than household pets) as long as it was reasonably foreseeable. Grazing cattle that have wandered, dog destroying lawn/shrubs. 2. Wild Animals: (based on species- which cannot be safely kept by humans without special training or restraint-- not normally a pet) Owner is strictly liable for any damage or injuries caused by a wild animal-- as long as the person injured did nothing to voluntarily or consciously, to bring about the injury. 1 3. Domestic Animal: (a species which because of its nature or its long association with humanity, can be safely kept by humans without special training.) a. Normally, liability is not imposed on owners of domestic animals without showing fault. b. Strict liability can be held however if the domestic animal is known by the owner to have a propensity towards dangerous or vicious behavior. Liability can also lie for what may normally be considered non-dangerous behavior but causes harm in an abnormal situation-- example would be a large, friendly dog that greets people by jumping up and placing paws on shoulders while licking the persons face. Normally this would not cause harm or be considered dangerous-- but it would be and the owner liable if the person being greeted in this way was an elderly person or small child. If injury occurred, the owner would be liable. Some jurisdictions do not hold strict liability for keeping an animal-- they tend to hold that it is negligent for a person to keep a wild or domestic animal, which the owner knows, has a propensity for dangerous or vicious behavior. Harm: strict liability is only imposed when the injury is the result of the behavior that classified the animal as dangerous, i.e., the dangerous trait that required strict liability in the first place. Example: Elephant is dangerous because of its size and weight and ferocity. A person who is injured by slipping on the elephant's droppings does not have a cause of action-- the vendor at a circus where a "trained elephant" gets loose and knocks over his booth does. Example: liability for wild v domestic. D keeps a cow in one pen and a lion in another. A tornado strikes leaving the gates to both pens damaged allowing the cow and lion to escape. The lion eats the neighbor's dog and the cow eats the neighbor's flowers. P files suit-- D is liable for damage done by lion (wild animal) but not cow (domestic animal) II. Ultrahazordous or Abnormally Dangerous Activity General concept: some activities are so excessively dangerous that society has concluded that they should pay their own way- cost of doing business. (policy considerations is the business can spread the cost of potential damage across the business much more easily than a single plaintiff can afford to insure against) This is accomplished by imposing strict liability for damages resulting from the activity. According to restatement of Torts, (third), an activity is abnormally dangerous if: a. The activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors; and b. The activity is not a matter of common usage. An activity may be characterized as ultrahazardous or abnormally dangerous if it involves a substantial risk of serious harm to person or property no matter how much care is exercised. It is a question of law and is subject to a directed verdict. 2 Test: 6 elements considered by the courts 1. Activity must involve a risk of harm to persons or property 2. Harm must be serious or grave 3. risk cannot be eliminated by the exercise of reasonable care. 4. Must not be a commonly engaged in activity by persons in the community Common usage can be argued depending on the bounds-- example: exterminator harms D as a result of breathing chemicals used. Uncommon local activity but common industry nationwide. 5. Activity must be inappropriate for area Courts will consider the appropriateness of the activity to the location and the extent, which the dangerous attributes are outweighed by the benefits to the community. 6. Activity must be weighed against value to the community Storage of Substances: General concept- person who stores a substance, which is likely to do great harm if it escapes, should be strictly liable for the harm, which it does upon escape. Essential Elements: a. The use of the reality (property) in a non-natural manner b. The storage of a substance, which is ordinarily harmless while stored, but which is likely to do great harm upon its escape. Rylands v Fletcher P files suit when his mines are flooded by the "escape" of water from D's property. The water escaped from a reservoir on D's property-- the reservoir was not a natural use of the property and not common by other landowners in the community. D is liable for damages to P even though D was not negligent. Water escaped though D was not at fault-- D is liable for harm from escape of water. -- When a person brings onto his property anything that is "hazardous" he is liable for damages caused by its escape from his property even though the escape is not the fault of the person. Common law has generally held strict liability unless it can be shown that the P was negligent or damage was an act of God. In Rylands, the court held that P was not negligent, the escape of water was not an act of God and therefore D is liable for the damages caused by the escape of water. D is strictly liable and need not be negligent. 3 Yommer v McKenzie D's fuel storage tank appeared to leak and contaminate neighbors water supply. By applying 6 factor test, Court ruled that storage of large quantities of gasoline adjacent to a private residence is in the category of ultra-hazardous and relieves P of having to prove D was negligent. Indiana Harbor Belt RR v American Cyanamid D leased train tank car which leaked hazardous liquid in P rail road yard. Court finds that the transportation of the material is not so hazardous as to require strict liability. P argues for distributive(strict liability) rationale to find in favor of p- ie, given the activity is a required one, and P is a small company, the D who is better able to afford damages should absorb the cost. Other approach would be allocative - based on negligence- which would allocate the cost according to fault. In response to criticism of the 6 factor test which were: 1. appropriateness of location - indepentdent factor or factor to help determine reasonableness of risk of an unusual activity. 2. social value factor - a. utility and value are subjective evaluations and not condlusions of law. b. it is not logical that when an activity has great economic value that the costs should be borne by others The Third restatement revised the six factor test to: An activity is abnormally dangerous if: (1) The activity creates a foreseeable ahdn highly significant risk of physical harm even when reasonable care is exercised by all actors; and (2) the activity is not a matter of common usuage. III. Extent of Liability: Generally liability is imposed for injuries to persons or property resulting from the activity or storage. 1. Liability extends to foreseeable plaintiffs (some jurisdictions, depending on the activity may extend liability for all damages resulting) 2. Harm must be the type created by the activity. Example: driver of dynamite truck not strictly liable for harm caused to pedestrian as a result of tire blowout-- but would be liable for harm caused by ensuing explosion of dynamite Liability can be cut off by unforeseeable intervening forces. 4 IV. Affirmative Defenses Contributory and comparative fault : since fault is not an issue in S/L, it is not a defense in contributory negligence jurisdictions. Some comparative fault jurisdictions will allow P's negligence to be used as a defense. Assumption of risk: some jurisdictions permit assumption of risk as a defense in strict liability cases. A. Contributory Negligence jurisdictions-- P's contributory negligence is no defense if P simply was unaware of the danger, didn't recognize the danger or guard against its existence. It is a defense if P knew of the danger and his unreasonable conduct was the cause of the ultra hazardous activity resulting in harm. Similar to assumption risk where P knew of the hazard and failed to conduct himself to avoid creating the harm. B. Comparative Negligence jurisdictions-- they will apply comparative negligence rules and reduce the amount P can recover. V. Workman's Compensation. Workman's comp provides compensation to injured employee regardless of fault for on-the-job injuries. This generally bars recovery for damages in Tort. Exceptions: If P can show employer intentionally harmed him the employee may pursue a common-law action. If P is injured by a tool provided by the employer, P may file suit against the manufacturer of the tool but cannot bring action against employer. Vicarious liability Restatement 2nd sec 423 "One who carries on an activity which threatens a grave risk of serious bodily harm or death unless the instrumentalities used are carefully maintained, and who employs and independent contractor to maintain such instrumentalities, is subject to the same liability for physical harm caused by the negligence of the contractor in maintaining such instrumentalities as though the employer had himself done the work of maintenance." sec 424 " One who by statute or by administrative regulation is under a duty to provide specified safeguards or precautions for the safety of others is subject to liability to the others for whose protection the duty is imposed for harm caused by the failure of a contractor employed by him to provide such safeguards or precautions." **Does not remove liability from tortfeasor even though someone else is being held liable 5 **If D is held liable vicariously for x's act, D is entitled to indemnity i.e., repayment from x. Respondeat superior: an employer is vicariously liable for certain acts and omissions to act by employee. If an employee commits a tort during the "scope of his employment" the employer will be liable jointly with the employee. Essential elements: a. Tortfeasor was an employee of the defendant b. Employee was acting within the scope of employment Employer: anyone who hires or employs another to perform services. Employee: Must distinguish between employee and independent contractor. a. control of details: If the employer has the right to control details of the work being performed, the worker is more likely to be considered and employee. If the worker has the right to control the details of the work being performed, he is more likely to be considered an independent contractor. For an employee, the employer has close control vs. and independent contractor where the person hiring a job done does not have close control of the worker. Example: a newspaper boy would be more likely to be considered an independent contractor since he controls the method of delivery-- the paper company only determines time of pick-up. The newspaper company only controls the general terms of employmentnot the specifics on how the job gets done. b. Negotiating: Even in employing an independent contractor, an employer may determine some details of the work by negotiating for condition sin the contract between them. this does not make the worker and employee, since conditions of work were the result of negotiation and agreement by the parties prior to commencement of work. However, if the employer has the right to change the conditions or add to the contract after work has been commenced, the contractor is more likely to be considered and employee. Scope of Employment: Intent to further the employer's business purpose--(even if means is indirect, unwise or forbidden.) This can also include personal needs of the employee that are incidental to employment so long as employee cannot continue to work without it. Trips to/from work are generally not considered within the scope. Detours, if reasonable can be. A 5 min detour to pick up a personal item may be within the scope where a 2 hr detour for a 10 min trip would not be. Independent contractors: a person is not generally liable for damages or torts caused by an independent contractor. . If the worker has the right to control the details of the work being performed, he is more likely to be considered an independent contractor 6 Exceptions a. particular risk: If and independent contractor is employed to perform a job with a particular risk associated, the employer may be held liable for the contractors unreasonable conduct in the face of that risk. b. employers negligence towards contractor: Employer contracts for work that employer knows is hazardous and does not take reasonable care to ensure contractor is aware of the dangers and takes reasonable precautions. If P is inured as a result, the employer is liable for the injury even though the contractor performed the work negligently. May also include negligent management of independent contractor by no exercising reasonable care in instructing, supervising, or inspecting work of the contractor. c. non-delegable duty: duty considered too important to be delegated to anyone. Examples, city can't delegate duty to care for city roads, vehicle owner can't delegate duty to take care of brakes. May also be assigned by statute or administrative regulations. d. extremely dangerous activities: Employer can be held liable for contractor involved in activity that would normally be fall under strict liability. e. unusual risk: Employer may be held vicariously liable for unusual risks created by work that independent contractor was hired to do. Road repair, ditch, injury sustained when motorists drives into ditch. City could be vicariously liable for actions of construction company. Joint Enterprise: members of joint enterprise are vicariously liable for torts committed by other members of the joint enterprise acting within the scope of the enterprise. joint enterprise is defined by two or more undertaking for profit and agree to share control of the undertaking. commercial chains are generally not considered joint enterprises-- D purchases electrical equipment from manufacturer. P buys from D and is injured by product. D is not liable for P's injury since D had no control over the manufacturing process. concert of action: a court may find a joint enterprise even though there was not a joint undertaking if one party aids, assists, or tacitly encourages another in accomplishing a commercial purpose. Nuisance Generally, this is a type of injury, which P has sustained. A public nuisance is the loss of any right that P has by virtue of being a member of the public. A private nuisance is generally P's loss or interference in his use or enjoyment of his land. a nuisance is the result of either: a. intentional and unreasonable interferences with P's rights b. unintentional and otherwise actionable for negligence, recklessness; or c. abnormally dangerous activity or other conduct giving rise to strict 7 liability. Intentional: D acts with knowledge or substantial certainty that his conduct results in an invasion of a public right (public nuisance) or of P's right to use and enjoy his realty (private property). Example: chemical company (D) production process gives off noxious fumes into the community. D is unaware that fumes are making residents of town sick and destroying resident's plants and shrubs. P notifies D of damage. After being informed, D continues without making any attempts to mitigate the effects for change the process to be eliminate harm to residents. Prior to notification, D was unaware of harm-- after P complained it now becomes an intentions interference with the rights of the public. Negligence: if invasion of public right or persons right to use and enjoy their land resulting from D's failure to act reasonably in the face of a foreseeable risk. Example- D knew of noxious odor and new of low cost way to avoid but elected not to. Abnormally dangerous activity: strict liability when the activity that invades public right or interferes with individuals right to use and/or enjoy realty, is one that normally would fall under strict liability. Public Nuisance: invasion of right of the general public, which results from the conduct of the defendant. Must be substantial harm. public right- general right all members of public are entitled to. Examples are health hazards, improper businesses like an unlicensed bar, or obstruction of public streets. Does not require that many members of public are affected only that it is a right that a person has because they are part of the general public, i.e., the number of persons affected does not make something a public nuisance, rather it has to affect a right that a person has as a member of the public In pubic nuisance, the P is the public and generally remedies are paid into the public treasury. If damage award is in appropriate, the court may issue and injunction to refrain from activity. A private individual may maintain an action for a public nuisance if harm suffered is different from that suffered by the public. Private Nuisance: an unreasonable interference with P's use and enjoyment of his land. To sustain private nuisance, P must demonstrate: a. his use and enjoyment of his land was interfered with in a substantial way; and b. D's conduct was either intentional, negligent or abnormally dangerous Distinguished from Trespass-- Trespass must have some sort of tangible interference with the possession. 8 Possessory right: P must have a possessory right to the realty, which has been invaded. Unreasonable invasion: harm to P outweighs utility of D's conduct or harm caused to P is greater than P should be required to bear without compensation. Example: concrete plant ruins farmers crop. Although both activities are useful, the loss to the farmer is more than he should bear and the concrete company can afford to pay the damages and would not cause them to go out of business. Remedies - P may recover compensatory damages for harm that has occurred and may get injunctive relief to prevent continuation of the nuisance-- if P can show injunction outweighs the utility of D's conduct. Defenses: Contributory negligence where claim is based on D's negligent maintenance of the nuisance. Assumption of risk may also apply. Coming to the nuisance: not an absolute defense but a factor to be considered in resolution. Trespass Intentional physical unauthorized invasion/intrusion on land of another with vested right of possession or by causing a 3rd person to intrude. Intent: desire or knowledge to a substantial degree of certainty that the D's act would result in entry to land Example: D's plane runs out of gas- D loses control and crash-lands of P's property. No trespass since D did not voluntarily intend to go onto land. Example: D's plane runs out of gas-- D glides looking for a place to land and chooses P's property. P has a claim of trespass since D intentionally landed on property (D has a defense of necessity) Intent does not require intent to do harm, violate any person's rights or knowledge that land belongs to another or that presence is not allowed by owner- all that’s required is to voluntarily enter land of another w/o intent. Entry, invasion/intrusion: to go upon the land-- requires some physical presence either of a person or tangible object D caused to be on land. Example: D fires shotgun onto P's land. P has claim of trespass even though D did not go on land but D caused shot to go onto P's land 9 **** generally gases and microscopic particles undetectable to human senses don't count but… in some jurisdictions they may. ***** Remaining on reality-- once permission is expired, trespass lies Right of possession: custody and control- owner, occupier, renter, etc Necessity General concept is that necessity allows the violation of property rights for the purpose of protecting persons or property threatened by an emergency. D is liable for damages caused by action/conduct taken out of necessity. Necessity may excuse conduct but not liability for damages. Essential elements: a. An emergency- situation that threatens life or property and which requires immediate action. b. A reasonable invasion of property rights in response to it. Emergency- public v private Public emergency: situation that threatens lives or property of general public, which requires immediate action. Public emergency-- public necessity = no trespass, and no liability Private emergency: situation that threatens lives or property of D or limited group of people. Private emergency-- private necessity = no trespass but D is liable for damages If D creates emergency, D cannot claim public or private necessity Reasonable invasion: courts balance value of property protected against value of right invaded. Vincent v Lake Erie Transport Co D ties up to P's pier using good judgment and proper care to save ship from storm-- pier sustains damage. P sues for trespass- D claims there is no trespass because action taken was prudent and D had no control over the events (wx) that caused the damage. Court holds that D is not guilty of trespass but is liable for damage to the pier since D availed himself of the use of the pier to save his ship. ** Had P forced D to not use pier and head out into the storm, P could have been liable for damages to D's ship and/or cargo. (Ploof v Putnam) 10 Negligence D's conduct imposes an unreasonable risk upon another which results in injury to that other Prim Facie case: Duty: legal duty requiring D to conduct himself according to standard to avoid creating an unreasonable risk to another (calculus of risk, statutes, custom) Breach: failure to conform to duty Cause: breach of duty was cause in fact and proximate cause of injury to P Damage: P must have suffered actual harm Negligence and cost - benefit comparisons learned hand approach: P= probability of harm L= magnitude of harm or loss B= benefit from activity BR= burden of implementing precaution Compare PxL with B and Br to what extent can the issue of negligence be reduce to a cost-benefit analysis, weighing the cost of preventing the accident against the benefits achieved in reducing the costs that result from the accident. degree of care demanded result of 3 factors 1 probability of causing harm to others 2 impact or seriousness of injury 3 cost to avoid accident/injury the risk is unreasonable and the act negligent if the risk is of such magnitude to outweigh what the law regards as utility of the act or the manner in which it was done. or for an act to be negligent, the jury must weigh the magnitude of loss, the probability of occurrence and the cost or burden of precautions to prevent. to make conduct negligent, the risk must be unreasonably great--Unreasonable conduct in the face of a foreseeable risk that harm may result Duty of reasonable care- D owes P a duty of reasonable care only if a foreseeable risk to the plaintiff is created by his conduct. Foreseeable risk: danger, which would be anticipated by reasonable person in D's position- under same circumstances. reasonable care standard- objective test- ordinary reasonable prudent person. 11 **** individual mental handicaps are not considered, or low IQ. Insanity is no defense for tort liability- insane person is held to ordinary reasonable person standard*** however sudden insanity may be a defense if the 'sudden insanity' was unforeseeable Ordinary person = average physical capabilities, average mental capabilities and average level of knowledge. Standards of Conduct: ordinary reasonable person is basic standard professionals: expected to possess and use knowledge and skill of member of profession in the community *** duty to disclose risks-- Dr's are expected to disclose risks to patients so patients can make informed decisions-- P would have to show harm came from failure to disclose- Example: Dr failed to disclose 40% chance of paralysis from surgery to fix minor problem. P1 has surgery and is paralyzed. P may sue because a reasonable person may not have opted to have the surgery had the Dr disclosed the risk. Informed consent: a Dr is required to inform or adequately disclose the risks of proposed treatment to the patient in advance. Must include all information that are sufficiently material to the treatment that a reasonable person would take them into account in making a decision regarding the treatment. Failure to get informed consent is considered malpractice and a form of negligence. Exceptions: 1. Emergency or patient is unconscious 2. grave risk to patients health from disclosure that precludes it. (disclosure may trigger the illness or more sever illness Patient must show, to recover, that: i. it would have been material to the decision (would have mattered) ii. reasonably prudent person would not have gone ahead with the treatment. Children: children are held to a standard of care based on child's experience, intelligence, maturity, training or capacity to conform his conduct to a standard of care. I.e., what would normally be expected of a child of similar age. Although generally not fixed age, children below age of 4 don't have the capacity to be negligent. ****Exception: children engaged in adult activities are held to an adult standard of reasonable care. **** parents are not generally held liable for torts of children, EXCEPT when the child has a propensity towards particular behavior that causes harm. ******* Custom Generally, custom indicates how an ordinary person would act--- may be relevant in determining that D's conduct was unreasonable-- however it can't stand alone. Conduct is considered unreasonable if the disadvantages or cost outweigh the advantages or gain. 12 Custom can be a benchmark but not conclusive proof Fellow servant rule ??????? master not liable Foreseeable plaintiff: general rule- duty of reasonable care owed to foreseeable plaintiff- this includes anticipating some negligence on part of P. Unforeseeable plaintiff- D breaches duty of reasonable care and harms P1 and also causes injury to P2 Two Views -- Palsgraf case Andrews: D owes a duty of care to anyone who suffers injuries as a proximate result of D's negligence (breach of duty)-- if D's act was negligent, then D is liable for all harm that follows as a direct result of that act with no intervening factors to cut off liability. D is liable for injuries to P1 and P2 Cardoza: to recover, P2 needs to prove that she was in the zone of foreseeable danger by D's conduct i.e., a reasonable person would have foreseen the risk of injury to P2 under the circumstances. Special situations: Anticipating conduct of others: a reasonable person possesses at least the limited ability to anticipate the conduct of others. D may be required to anticipate the negligence of others -- does not generally include criminal acts. Emergencies: If D is confronted with an emergency, and is forced to act with little to no time to think, D must merely behave as a reasonable person would if confronted with same emergency, not as a reasonable person with time to think. Rescuers: A rescuer is a foreseeable plaintiff as long as the rescue is not wanton-D is liable if he negligently puts himself or a third person in peril and plaintiff is injured in attempting a rescue. Risk to Rescuer: If D creates a situation that invites rescue, D is liable for harm to rescuer. D owes a duty of reasonable care to any person his conduct puts in peril-- "danger invites rescue" Observers: in majority of jurisdictions, only if the observer is in the zone of danger can he recover for damages/ harm caused by D's negligent act. In a minority of jurisdictions, observers can recover (D owes duty of reasonable care to observer) if: 1. P is closely related to the injured person 2. P is nearby when injury occurs 13 3. P perceives the injury with own senses Foreseeable mental suffering: In a few jurisdictions, P2 can recover for mental suffering for injury to P1 caused by D if it is foreseeable that they will experience mental suffering from injury. Example: Sis is crossing street with little brother. Mother is watching from window. D driving too fast hits little brother. little brother, sis and mother have cause of action for injury to little brother. little brother, because he was injured. Sis because she meets 1-3 above. Mother because it was foreseeable that injury to her child would cause mental suffering. Risk created by D's conduct-- D is liable for harm that follows to P1 as a result of risk to P1 that was created by D's conduct. Landowner/occupier Liability Three different systems that vary with jurisdictions I 3 Tier invitee licensee trespasser II 2 Tier invitee/licensee trespasser III Negligence under 2 tier system -- permitted visitors v trespassers: for permitted visitors, reasonable standard of ordinary care for dangerous conditions on the land under Negligence jurisdiction, there is no distinction between persons on land and reasonable standard for dangerous conditions in applied Duty of Landholder (renter, owner, etc) In general, D owes no duty to protect P outside the premises from the natural conditions of the land. Artificial conditions: 1. unreasonably dangerous conditions- D can be liable for artificial conditions that cause harm to adjacent land. Example: physical pollutants that settle on P's land causing damage. 2. D must take precautions to prevent injury to persons passing by property--- like falling into a ditch, Conduct on land: D can be held liable if conduct on land creates risk to persons not on land- D must take reasonable precautions.. Unless D's conduct or condition of land creates a risk, D owes no duty/ is not liable. . P not on D's land-- reasonable care to 14 prevent activity on land from causing harm to P who is not on land. This duty applies to all 3 tier jurisdictions Level of reasonable care owed depends on status of plaintiff . Trespassers: someone who is on land without permission or privilege undiscovered trespasser - no duty discovered trespasser (person who D knows is on land or has reason to believe is on land): If D is aware of presence on land, D must take ordinary care to warn or make safe artificial conditions known to D that could cause death or serious injury and that the trespasser is unlikely to discover on his own. No duty to warn of natural conditions or less dangerous artificial conditions. Same duty as to a licensee anticipated trespasser: treated in most jurisdictions same as discoveredbasically trespassers that owner knows pass through his land. No trespassing sign may make P an 'undiscovered' trespasser. Children-- "attractive nuisance" doctrine: D must take ordinary care to avoid reasonably foreseeable risk of harm to children caused by artificial conditions on landfor D to be liable, P must show: 1 dangerous condition present that D should have known about 2 owner knows or should know that children frequent the vicinity of dangerous condition 3 condition is likely to cause injury- dangerous because of child's inability to appreciate the risk; and 4 the cost of removing risk is slight compared with the magnitude of the risk Licensee: someone who enters land with permission but for their own purposes rather than the landowners. Person allowed or invited onto land but not for business purposes or benefit of owner. Example- public sidewalk that passes through D's land. Also, social guests are considered licensee Duty owed: warn or make safe concealed hazards D knows of or should know of, that would not be noticed by licensee-- If hazard is obvious, there is not duty to warn. No requirement for inspection of property by owner to discover hazards Invitee: person who enters onto property in response to an express or implied invitation of the landowner. person invited onto land for business or purpose of owner a. persons who enter as members of the public for public person land is being used for- museums, churches, airports, etc b. persons entering land for business or other interest of landowner. Employees, store customers, persons making deliveries 15 Duty owed: reasonable and ordinary care in keeping the property reasonably safe. This includes inspection of property to locate hazards and to warn and make safe all hazards to invitees on land. Obvious hazards do not generally require warnings however "obvious" is determined by circumstances-- not obvious if foreseeable that p will be distracted and not see hazard. Landlord is responsible for public areas-- corridors, hallways Judge v Jury Burden of production: P has the burden to show that P was harmed, some evidence that D was negligent and D's negligence proximately cause the harm Burden of persuasion: P must persuade the jury that D was negligent and that D's negligence more likely than not caused the harm. Judge: decides the law Juries: decide the facts . Proof of Breach plaintiff has burden to prove - must offer evidence to support a prima facie case: D's conduct created a foreseeable risk D owed a duty of reasonable care to P D failed to act reasonably (breached duty) D's conduct caused P's injury Proof may be given in direct or circumstantial evidence (from one fact another can be inferred) Res Ipsa Loquitur (RIL): "the thing speaks for itself" -- the type of accident doesn't occur unless someone is negligent. Generally used when: a. P is unable due to lack of information to determine who is negligent; or b. P is unable to prove who is negligent because evidence was destroyed in the accident. Elements of RIL: 1. harm caused by agent/instrumentality in exclusive control of D (and D's agents whom D is vicariously liable) 2. type of accident that doesn't ordinarily occur without negligence 3. P did not causally contribute to harm; no contributory Negligence 16 Yabara v Spangard P goes into surgery and comes out with pain in right arm and shoulder- not reason for surgery. P files suit under doctrine of RIL. P has no knowledge of what caused injury other than P was fine prior to surgery. D has ability to know what caused harm. RIL applies where P receives unusual injuries while unconscious and in the course of medical treatment, all D's who had any control over his body or the instrumentalities, which might have caused the harm, are liable unless they can show other wise. The hospital is liable for actions of employees Surgeon is liable for those on his surgical team as Respondeat superior. each member of surgical team is liable for his or her actions Violation of Statute: Role of statute: violation of a statute does not in itself prove that D was negligent and liable-- It must be proven that the violation of the statute was material to the cause of harm. Wolf v Kaufmann violation of statute may help to establish negligence if: a. the p belongs to the class of persons the statute was designed to protect b. the statute was put in place to protect against the harm/injury that happened to p violation of statute doesn't establish negligence if the violation is excused-violations may be excused because: 1. circumstances beyond violator's control 2. ignorance of the facts, which made the statute applicable 3. existence of an emergency or conditions, which made obeying the statute more dangerous than not. Effect of violation re negligence depending upon jurisdiction--- 3 views a. negligence per se: conclusive evidence of negligence, i.e., if D violated the statute, D is negligent. Martin v. Herzog b. prima facie : violation of statute presents a rebuttable presumption of negligence. D is negligent unless he can show his violation of statute was excused Combs v Los Angles RR Co c. mere evidence: jury may look at violation as evidence of negligence but are not required to find D negligent because he violated a statute. ***** in determining contributory negligence, courts may be more lenient with p if p violated a statute and it was excused. Example: P was walking on wrong side of road and 17 struck by D's car. P would be contrib. negligent except that due to traffic or other reason it was safer than walking on the correct side. ******* *******P must show that harm was caused as a result of statute violation****** Conduct more Egregious than Negligence ***Many jurisdictions don't recognize and treat as either negligence or an intentional act, i.e. D intended to cause the harm. ******, "Reckless failure to act involves an intentional or unreasonable disregard of a risk that presents a high degree of probability that a substantial harm will result to another." "The risk of death or grave bodily injury must be known or reasonably apparent and the harm must be a probable consequence of the defendant's election to run that risk or of his failure to reasonably to recognize it." Many courts take the position that a 'subjective' knowledge of risk is not required, it is enough that a reasonable person would recognize the risk. Significance of finding Willful and Wanton conduct: a. damages may be enhanced b. effect of contributory or comparative negligence may be avoided *** contributory negligence may bar recovery unless conduct was willful and wanton** c. allow employee to sue employer not withstanding the exclusivity of remedy provision of state's workman's comp statute d. recovery may be possible for a undiscovered trespasser or licensee who would otherwise be unable to recover under ordinary negligence in some jurisdictions e. immunity of parent from most suits by a minor child alleging tortuous conduct by the parent may more readily be avoided in some jurisdictions where parents misconduct transcends negligence f. where reasonable conduct would not be actionable, unless it is willful and wanton-- example: emergency vehicles- not liable unless gross negligent or reckless. g. bankruptcy- debt not exempted if due to claims resulting from willful and wanton conduct by D 18 CAUSATION Causation-in-Fact/Proximate cause Can't have proximate cause with out cause in fact but can have cause in fact without proximate cause. Proximate cause addresses the causal chain and is a vehicle to enclose the number of actors/elements of the causal chain that resulted in harm. Repeatability: the concept that D's act caused the harm and would cause similar if act completed again-- if D leaves ice on the walkway, it is probable that P will slip and so will another P. Causation in fact actual or direct cause of the harm. Before D's conduct can be considered a proximate cause, it must be found to be a cause in fact, several tests exist-"But for" test : an act or omission to act is the cause in fact when the injury would not have occurred "but for" D act. The "but for" test applies when several acts combine to cause the injury but none of the acts standing alone would have caused it. But for any of the acts, the injury would not have occurred. additional tests: joint causes- substantial factor test: where several factors concur to bring about an injury-- and any one alone would have been sufficient to cause the injury-- it is sufficient if D's conduct was a substantial factor in causing the injury. Multiple Defendants Over-determined causation: Each D alone w/o the other would have caused the harm-each D's act/conduct caused the harm to P. Corey v Havener - D's drove motorcycles past P's horse-drawn wagon at excessive rate of speed scaring horse resulting in damage and injury to P and his wagon. Court held each D who is found liable for a single indivisible harm, is subject to liability to the P for the entire harm. "Joint and several" liability. Also called concurrent causes or substantial factor-- where 2 events concur to cause harm and either one would have been sufficient to cause substantially the same harm without the other. Each of these concurring events is deemed a cause in fact of the injury, since it would have been sufficient to bring the injury about. Substantial factor rule-- If P sustains injury as a result of the negligent conduct of both D and 3rd party and it appears that the conduct of either one would have been sufficient to cause the injury; both are liable if each person's conduct was a substantial factor. (joint and several liability) Under-determined causation: two or more D's participated in conduct that caused the harm to P but it is unknown which D's conduct actually caused the harm to P when the harm was only caused by one D. Example; Group of hunters all shooting at one bird-- 19 guide is shot but can't tell which hunter actually shot the guide-- If negligent hunter can't be identified, then all hunters are liable . Restatement of Torts: "For harm resulting to a third person from the tortuous conduct of another, a person is liable if he - knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so conduct himself, or give substantial assistance to the other in accomplishing a tortuous result and his own conduct separately considered constitutes a breach of duty to the third person. Aggregate causation-- market share liability: in dell v Abbot Labs When P states a cause of action for damages from a fungible product, produced by many companies, the producers of the product can be held severally liable with damages equal to their market share- i.e., each individual D is liable for a percentage of injury to P equal to D's share of the market. D can escape liability if it can prove that it did not cause P's injury-- i.e. didn't produce the product during the time frame that P suffered the injury. Market share liability is appropriate (CA view) when: All named defendants are possible tortfeasors, The harmful product is fungible, P is unable to identify which D caused the injury through no fault of P, and All substantially all of the manufacturers, which created the product during The relevant time are named as defendants Rationale: each manufacturer's liability would approximate its responsibility for the injuries caused by its own products. PRO: Policy considerations behind holding: in today's society, fungible goods are produced by many manufactures making it impossible in some instances for P to specifically identify which manufacturer produced the product that caused P's injury. If the Summers rule was strictly held to, then for P to recover, P would have to specifically identify the D causing the specific harm to P. The effect would be to leave P without remedy. In effect, the over-riding policy consideration is that between an innocent P and negligent D's, the D's should bear the cost of the injury-- further, the D's (producers of the product) are better able to bear the cost of injury resulting from the manufacture of a defective product. Where the injury to the individual P can be overwhelming, it is a risk that can be insured against by the manufacturer and distributed across the public as a cost of doing business. By holding each D liable, as a percentage of market share, is a way to hold each D liable in relation to the likelihood that the D supplied the defective product that caused the harm.---- also provides a ready means to apportion damages. 20 CON: there is a basic 'unfairness' in holding a D liable when the P is no more able to prove that D caused the harm than D is in proving that he didn't. This policy subsumes the necessity in tort law to have a causal relationship to the harm. It also holds D's liable when there is a strong possibility that D did not cause the harm. Given the farreaching effects of this policy, it is more appropriately left in the legislature than the courts. Alternate liability: Where two or more D's commit identical acts, either of which could have caused the harm, but it is impossible to determine which D caused the injury, it may be presumed that both caused the injury. Collective liability: alternative causes a. burden shift to D when two or more D's were negligent but uncertain which one caused the injury. Underdetermined causation. b. applied in enterprise liability-- when several companies produced a fungible product that was defective, some courts have held companies accountable based on market share. Proximate Cause: doctrine of proximate causation deals with limitation on liability. concept to account for and include the actors and elements of the causal chain that resulted in harm to P [Proximate cause consists of two elements: Cause in fact: the "but for" consequences of an act. The conduct of D is the cause of the event if the event would not have occurred but for the conduct of D. Legal causation: concerns determination of whether legal liability should be imposed as a matter of law where cause in fact is established and depends upon considerations of common sense and policy.] according to Calabresi, in order to conclude that an action is a proximate cause, must take into account the tort goals of deterrence, cost spreading, and distributional General rule of liability, D is liable for all harmful results that are the normal incidents and within the increased risk caused by his acts. If actions of D increase the risk of harm to P and that harm occurs, then D is liable. When there is no conclusive evidence of actual cause, but D's negligent conduct- either action or in-action, greatly increases the chance of harm, D can be held liable. Reynolds 21 v Texas & Pac RR. P harmed when she fell down an unlit stairway. No conclusive evidence as to what caused the fall but the negligence of D in not keeping the stairway lit greatly increased the chances that a P would fall and be hurt-- therefore D was held liable Direct cause cases: D's act directly causes harm to P with no intervening forces-uninterrupted chain of events by external force of any kind a. foreseeable harm results- If the injury or harm that occurs is the foreseeable result of D's negligent conduct, D is liable- doesn't matter how the harm occurred - unusual timing or unusual manner-- just the foreseeable type of harm based on D conduct. b unforeseeable harm results- some jurisdictions hold that if the harm is not foreseeable from the negligent conduct, D is not liable. Other jurisdictions hold that as long as the act is negligent, any harm that follows D is liable as long as there were few to none intervening factors Palsgraph Cardoza: zone of duty where D owes a duty to only those within the zone of foreseeable danger of the negligent act under the circumstances. Andrews: if duty to anyone then duty to all. D owes a duty to care to anyone who is injured by his negligent act. D is liable to P if D's act was the proximate cause of P's injury even though the harm to P was unforeseeable. As long as D's act was negligent to someone, P can recover. Polemis If causation is direct, proximate cause is established and liability lies for all harms in the zone of danger *** liability for all direct harms Indirect cause cases: a case where the facts indicate that a force came into motion after the time of D's negligent act and combined with the negligent act to cause injury to plaintiff. Intervening forces. Foreseeability of injury determines where liability gets cut off. Foreseeable results caused by foreseeable intervening forces, D is liable. Where D's negligent act caused a foreseeable harmful response or reaction from an intervening force, or created a foreseeable risk that an intervening force would harm plaintiff, D is liable. Dependent intervening forces: normal responses to the situation created by D's negligent act. Dependent intervening forces are almost always foreseeable. common examples include: subsequent medical malpractice -- original tortfeasor is usually liable for aggravation of plaintiff's condition caused by the malpractice of plaintiff's physician. negligence of rescuers -- generally foreseeable and original tortfeasor is liable for their negligence 22 efforts to protect property or person-- original tortfeasor is liable for negligent efforts on part of persons to protect themselves, or third person endangered by D's negligence reaction forces--- if original negligent conduct causes a reaction, D may be liable for harm caused in reaction to D's negligent conduct subsequent disease --- original tortfeasor may be liable for disease that afflicts p as a result of p's weakened condition as a result of D's negligence subsequent accident -- Where p suffers a subsequent injury following her original injury, and the original injury was a substantial factor in causing the second accident, the original tortfeasor is usually liable for damages arising from the second accident. Independent intervening forces - forces that operate on the situation caused by D's negligence but are independent actions rather natural responses or reactions to the situation. They may be foreseeable where D's negligence increased the risk that these forces would cause harm to P. common examples include: Negligent acts of third persons- D is liable for negligence of third persons when D's negligent act created the foreseeable risk. Example: D negligently blocks sidewalk forcing p to walk in road. P is struck by negligently driven car. D is liable to p (driver would be too) Criminal acts** and intentional torts of third persons - D is liable if negligence creates foreseeable risk of criminal act or intentional tort. Example: D parking attendant leave keys in car and p's car unlocked. X steals car. D is liable to P Acts of God- Acts of god that are foreseeable will not cut off liability. Example: - D leaves hammer on roof while working. Strong wind blows hammer off roof and strikes P-- D is liable to P ** P's unauthorized or criminal conduct does not necessarily make D immune from liability. Example, P is driving a stolen car and D negligently rams him in the rear-- D is still liable to P as if P were the rightful driver of the car. Foreseeable Results caused by unforeseeable intervening forces-- D is usually liable D is liable because his negligence puts P at risk of harm. Although actual agent causing harm may not be foreseeable, the harm is therefore D is liable. Example: D negligently fails to empty a tank of all explosive gases. Lightening strikes, causes tank to explode and harm P. D is liable. Exception: D may not be liable if unforeseeable intervening force is a criminal act or intentional tort. i.e., D may not be liable if tank was exploded by arson. Unforeseeable results cause by foreseeable intervening forces -- D usually not liable most intervening forces that cause unforeseeable results are considered unforeseeable intervening forces. In the rare cases where foreseeable intervening forces cause unforeseeable results, most courts would not hold D liable. 23 Example: D's negligent driving in a storm causes D to lose control and drive into a ditch. Strong wind from storm breaks branch loose above car, branch hits car, breaks glass and cuts P. Usually D is not liable for cut glass injury to P. Unforeseeable results cause by unforeseeable intervening forces- D usually not liable as a general rule, intervening forces that produce unforeseeable results- results were not within the increased risk caused by D's negligence - are usually deemed superseding causes and break the causal chain. Example: D's negligent driving blocks the road forcing P to take another rout. P is struck by A driving negligently on alternate route. D is not liable because his negligence did not INCREASE the risk of the type of harm that occurred to P. Unforeseeable extent of harm-- D is liable. "take P as you find him" Lost Chance doctrine: If P has a terminal disease and D's malpractice reduces chance of survival or length of survival, some jurisdictions recognize a "lost chance" cause of action. In such cases, damages are limited to those proximately caused by the malpractices, which aggravated a preexisting condition. Many jurisdictions won't recognize lost chance when patient had less than 50% chance of survival. Arguments against doctrine: 1. under doctrine, P entitled to damages if chance of recovery reduced from 40% to 10% even if P survives. 2. numerical quantifications necessary for experts to prove the case would be unreliable, misleading, easily manipulated and confusing to a jury. 3. questionable fairness when suit brought on behalf of decedent where P with 49% chance of survival recovers only 49% value of life and a P with 51% chance would recover entire value of life. Defenses to Negligence Contributory Negligence: if plaintiff negligence contributed to the harm P loses case P is expected to take ordinary reasonable care to protect him self. In jurisdictions that apply contributory negligence, P is barred from recovery. ** in these jurisdictions, juries are reluctant to find P negligent when if will result in what appears to be an unfair result** Last clear chance doctrine: applied in most contributory negligence jurisdictions-- may make P's contributory negligence immaterial . If P's negligence places P in a position of 24 peril from which she is unable to extricate herself, that negligence dos not provide the defendant with an affirmative defense if the defendant has had the last clear chance of avoiding the harm. The doctrine applies when: 1. plaintiff, because of own negligence is powerless to avoid injury; and 2 D discovers or should discover P's peril and can still avoid the injury by acting reasonably, but fails to do so. Imputed Contributory Negligence: negligence can be imputed along much the same lines as vicarious liability-- negligence of one is imputed to another master servant, servant negligence may be imputed to master partners in joint ventures, negligence of one may be imputed to other generally spouse negligence is not imputed to spouse child negligence is not imputed to parents. Comparative negligence: replaces contributory negligence (which was common law) by assigning degrees of fault among D's and P's. pure comparative negligence: P may recover but damages are in proportion to fault of P and D modified comparative negligence: P recovers in proportion to fault except where P's fault exceeds D then P is barred from recovery. ASSUMPTION OF RISK A P is said to have assumed the risk of certain harm if P has voluntarily consented to take the chance that harm will occur. Where assumption of risk is shown, P is barred from recovery. Examples are spectators at sporting events. (This does not bar recovery when negligence exists that is beyond normal activity) Express assumption (Participation agreements/release of liability forms): a P may expressly assume risk by agreeing that D will not be liable for injuries incurred from D's specified conduct. Implied assumption of risk: assumption of risk is implied by voluntary encounter of risk exceptions-- circumstances prevent free choice of P Rescue- voluntary encounter with risk to accomplish a rescue does not count as voluntary -- unless rescue is reckless or conduct during rescue is reckless 25 **** fireman's rule-- persons involved in occupation, which involves rescuing others, are considered to have assumed the risk*** known risk-- P knows of risk and is substantially certain of injury will probably occur. same risk-- P only assumes risk of what is known and voluntarily encounters. If harm comes from different risk, P did not assume that risk. Availability as a defense: Majority of jurisdictions treat assumption of risk as complete affirmative defense separate from either contributory or comparative negligence defenses. In these jurisdictions, P is barred from recovery Minority of jurisdictions (comparative negligence) not available as a separate defense and is factored into comparative negligence damages Compensatory damages make up majority of issues Elements: economic loss/ pain and suffering out of pocket expenses- medical bills lost wages future earnings future medical expenses property damage lost future earning capacity Doctrine of avoidable consequences-- reduce effect of damage by what P can do after injury has occurred to a) reduce impact of injury or b) P has duty to mitigate harm post accident. In case of wrongful death, survivors don't recover lost earnings but do recover lost support. If the purpose of the court is to cover costs to P, then damages will account for services P receives gratis as well as insurance If purpose is deterrence then court will make D pay all. Punitive Damages-- punish defendant and deter conduct awarded when D's conduct was malicious, deliberate intent to harm, willful and wanton Punitive damages are not based on D's wealth 26 immunities injury to person inter-spousal- most jurisdictions have abolished this immunity parent child - slight majority of states have abolished wanting to avoid interference in parenting activity. Those states that do maintain the immunity do not apply it to intentional torts and in many states automobile accidents. injury to property - no immunity within family Charitable institutions: reduced or eliminated in most states. The original intent was to not attach liability to organizations that provide public good. Federal Government immunity: still available for some specified torts but in general, Federal Tort Claims act waived immunity for tortious acts by government. Product liability Immigrant worker hires onto lawn crew and is injured by lawn mower- Does he have a claim? possible D's: Manufacturer Employer - may be barred by workman's comp Retailer causes of action: Design - negligent Failure to warn Manufacture - negligence in production If outside workman's comp -- possible cause of actions against employer: negligence to train failure to warn supply of equipment failure to meet osha standards Manufacturer can be held strict liability for design, failure to warn, 27 Parallel arguments and causes of action: Negligence if, Design manufacture, or assembly, failure to warn Strict Liability design, assembly defective productunreasonably dangerous to normal customer Breach of Warranty express or implied Negligence focuses on conduct of activity Strict Liability focuses on end product - defective: compare end product to specs, Is product what MFR intended to produce? Does it operate as MFR intended? Breach of Warranty Implied warranty of merchantability (the goods are of a quality equal to that generally acceptable among those who deal in similar goods) Implied warranty of fitness - implied warranty is created when consumer makes requirement of product known and seller sells product to meet that requirement-- If sold, warranty is implied Strict Product liability - product does not meet or correlate to MFR's specs - when above not available, circumstantial evidence can be used to show defect much like RIL Instead of proving someone did something negligent, it may be enough that product did not meet normal expectations. By inference, the product was defective. **** on product liability, generally can argue RIL along with other cause of actions*** Injury to property in commercial context or commercial relationship is generally not settled in Tort. Usually dealt with within the Uniform Commercial Code. If injury is to person then Tort. 3 main categories for product defect- in addition to negligence or RIL 1. manufacturing defects (failure to warn is not part of this) - is product intact enough to determine what caused the malfunction that caused the harm? 2. design defects - failure to warn usually accompanies, could design defect be mitigated by warning 3. Failure to warn Scanlon Rule and restatement 3rd 28 It may be inferred that the harm sustained by the plaintiff was caused by a product defect existing at the time of sale or distribution, without proof of a specific defect, when the incident that harmed the plaintiff: (a) was of a kind that ordinarily occurs as a result of a product defect; and (b) was not, in the particular case solely the result of causes other than product defect existing at the time of sale or distribution. (or the defect in the product contributed to the harm) To find products liability, P must show that product was "defective" when the product left D's control Types of Defects: Manufacturing Defect: compare with specs- product emerges from production different and more dangerous than if it were made in the proper way- the product may be "unreasonably dangerous" as to be defective because of manufacturing process. Design Defect: when all products are made identically according to manufacturing specifications, but have dangerous propensities because of their mechanical features or packaging, the entire line may found to be defective because of poor design. a. inadequate warnings, i.e., "failure to warn": some defects may be mitigated with proper warnings. Products must have clear and complete warnings of any dangers that may not be obvious to the apparent user. What is a defective product? In most jurisdictions, a product can be the basis for a products liability action if it is in a "defective condition unreasonably dangerous" to users. 1) Manufacturing Defects: P must show that the product was dangerous beyond the expectation of the ordinary consumer because of a departure from its intended design. * defective food products are treated the same as manufacturing defects-consumer expectation * 2) Design Defects: P usually must show a reasonable alternative design, a less dangerous modification or alternative was economically feasible. How to analyze design defects-- Several alternative approaches 1) consumer expectation - product is unreasonably dangerous to ordinary consumer 29 Restatement Sec 402A imposes liability only for those defective products that are "unreasonably dangerous" to "the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics" Under this formulation, the manufacturer is strictly liable for any condition not contemplated by the ultimate consumer that will be unreasonably dangerous to the consumer. * some courts don't like this test because 1) it injects concept of foreseeablity into strict liability which is inappropriate because manufactures liability in not based on negligence; and 2) it places too much burden on P to prove "unreasonably dangerous" 2) risk-utility: totality of circumstances considered. Manufacturer bears the burden to prove the products utility is not outweighed by it risks. Several factors are considered, among which are: gravity of danger imposed likelihood that danger would occur mechanical feasibility of safer alternative design cost of improved design adverse affects on consumer and product of improved design usefulness of product availability of safer products obviousness of danger normal public expectations avoidability of injury feasibility of eliminating the danger 3) California formulation: P has choice of pursuing under consumer expectation or riskutility. Restatement 3rd provides: "A product is defective in design when the foreseeable risks of harm posed by the product would have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe." **** most jurisdictions don't impose a burden to prove an alternate design exists. A product that is unreasonably dangerous can be found to be defective even if there is no specific evidence of a specific defect. "State of the Art" design-- some jurisdictions recognize manufactures proof of state-ofthe-art design as a complete defense to design defect claims 30 other approaches jurisdictions take is NOT admissible since it goes towards reasonableness of manufactures conduct, which is irrelevant in strict liability claims Others admit as evidence but not conclusive. Compliance with Government safety standards: failure to comply is defective in design or failure to warn . On the other hand compliance is evidence that a product is not defective but not conclusive Common Defect problems: misuse: suppliers, manufactures are required to anticipate reasonably foreseeable uses of their product, including types of misuse. Examples: 1)screw driver used to open paint cans. 2) furniture polish-reasonable to expect it will be used in the home around small children that may get into it-- so they either make it safe to drink or put a child proof cap on it. scientifically unknown facts: courts have been reluctant to find drugs unreasonably dangerous when their potential side effects were impossible to anticipate so manufacturer could make safer or provide warnings. Negligence Manufacturing defect: P usually must invoke RIL if the defect does not occur without negligence; in pursuing the retailer and wholesaler, do owe a duty of care to their customers but if they buy from a reputable supplier or manufacturer with no reason to anticipate that the product is dangerous, need only to make a cursory inspection of goods to avoid liability. Design Defect: P must show that the manufacturer knew or should have known of enough facts to put a reasonable manufacturer on notice that the product was unreasonably dangerous as designed. Negligence is not shown if the danger is only evident after the product reaches the market. Strict Liability Prima Facie case: duty owed by commercial supplier, breach of that duty, causation and harm D must be commercial supplier. Strict liability applies when the D is a manufacturer (including manufacturer of defective component part), retailer, assembler, or wholesaler. Product must reach P not substantially altered from condition that left manufacturer. Any supplier in the chain can be held liable Breach of Duty: to establish breach of duty for strict liability, P must show that product is unreasonably dangerous. P does not need to show D at fault for selling or producing. 31 **** Different from action based on negligence, strict liability may hold retailer liable even though he may have had no opportunity to inspect. All in distribution chain can be held strictly liable if P can show product is unreasonably dangerous.**** Defenses: a. contributory negligence jurisdictions: under strict liability, ordinary negligence is not a defense. It is not enough that the P failed to discover the defect or guard against it's existence-- it must be more unreasonable conduct to be a defense b. comparative negligence jurisdictions: most states apply comparative neg rules. c. disclaimers-- disclaimers of liability are irrevlevant in negligence or strict liability actions if personal injury or property damage has occurred. Implied Warranties: Implied warranty exists when the seller knows or has reason to know: a. the purpose for which the goods are required; and b. the buyer is relying on the seller's skill or judgment to select or furnish suitable goods. 32