Torts II Outline I.

Strict LiabilityNo Regard to the Actors State of Mind: One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land, or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm. A. Act 1. Abnormally Dangerous Activity a. risk of harm 1) uncertain or uncontrollable risk b. likeliness that the harm that results will be great 1) what property owner does with adjacent land c. reasonable care does not eliminate the risk d. not a matter of common usage 1) common usage a) customarily carried on by the great mass of mankind OR many people in the community b) ***ARGUMENTS FOR CARRIED ON*** 1. Carried on means the person or the entity who undertakes in the activity. Courts prefer easy rules because they promote predictability and consistency for future cases. Adopting this rule will further this value because it is easier to establish who carries on the activity rather than who is affected by the activity. Here, ____________ and therefore was the person undertaking in the activity. 2. CounterCarried on means those persons affected by the activity. Easy Rules ignore relevant factors. Adopting this rule will further this value because the court can look to the surrounding circumstances and determine who is affected by the activity. Here, ____________ and therefore is affected by the activity. 3. Alternative--Carried on means those persons affected by the activity. Crop dusting is a business the court should encourage. Adopting this rule will further this goal because crop dusting is widely used and beneficial to the citizens of the state. If the court penalizes this business for a mistake, it will deter this business. Here, ____________and therefore is affected by the activity. e. Inappropriate place 1) Where is the activity? 2) Where is it taking place?
1

f. Balancing the risk of the activity versus the benefit to the community 1) ***ARGUMENTS FOR RISK V. BENEFIT*** a) RISK: The court should encourage crop dusting. Adopting this rule will further this value because crop dusters can still benefit economically from spraying other farms. Because they benefit economically, they can also pay for the damages they cause. Since they can spread the cost of damage to other consumers, they can pay for damages. Here, _________________and therefore the risk outweighed the benefit. b) BENEFIT: The court should encourage crop dusting. Adopting this rule will further this value because relaxing liability for mistakes will encourage this business and will not impose unnecessary costs. Here, _______________ and therefore the benefit outweighed the risk. B. CausationLimitation of Liability 1. Risk that makes the activity abnormally dangerous must be the risk that causes the injury. a. Risk directly effected the outcome RISK = OUTCOME b. Likelihood of harm will be great 2. is not responsible for s non-natural use of the land a. ***ARGUMENT FOR RISK*** 1) Risk that makes the activity abnormally dangerous must be the risk that causes the injury. People have a duty to protect others. Adopting this rule will further this value because people with knowledge of the risk are in a better position to protect others who have no knowledge of the risk, and the above interpretation reflects this. Here, the risk was __________ and caused the injury. b. ***ARGUMENT FOR NON-NATURAL*** 1) is not responsible for s non-natural use of the land. People should only be responsible for anticipated risks. Adopting this rule will further this value because it will relax liability on those who cannot anticipate the risk and prevent frivolous claims. Here, ________________ and there for is not responsible for the non-natural use of s land. C. Defenses 1. Acts of God a. Plainly beyond the capacity of anyone to anticipate 1) act of God not necessarily weather related 2) MAJORITY: because it hasnt happened before 2. Contributory negligence-- s own conduct 4-PART TEST a. Unnecessarily b. Probable Consequences
2

c. Knowledge of the Consequences 1) Actual Knowledge or Should have known a) ***ARGUMENT FOR KNOWLEDGE*** 1. Majority view prefers knowledge as what the should have known. Courts like easy rules. Adopting this rule will further this value because it is a consistent and predictable standard for future cases. Here, was an *adult, child of ___yrs old, and therefore should have known________. 2. Alternative: The court should deter careless actions. adopting this rule will further this value because it will place liability on the person in the best position to anticipate danger and change their behavior. People will want to change their behavior because they are motivated by money, and this is a behavior they can change. Here, was careless and therefore should have known the danger. d. Voluntary 1) Acting under ones own power a) ***ARGUMENT FOR ACTING UNDER ONES OWN POWER*** 1. People are responsible for their own actions and should take care of themselves. Adopting this rule will further this value because liability will be placed on the careless individual and it will deter careless actions. here, was__________and therefore acted under his own power. Strict Liability Analysis I. II. III. What activity is engaged in? Is it abnormally dangerous A. 6-part balancing test Are there any limitations? A. Causation 1. Risk directly effected the injury OR 2. Is engaged in non-natural use of land? Defenses A. Acts of God B. s own conduct 1. Voluntarily and unnecessarily putting ones self in harms way knowing the probable consequences of his act.

IV.

NEGLIGENCE I. Negligence (Cardozo) A. Duty of Care 1. Statutes 2. Common Law a. Foreseeable 1. Are they in s zone of danger a) Sufficient Connection 1) Physical closeness 2) Time connection between act and injury 3) Relationship between and a. Professional? b. Personal? 4) If unclear, make a short argument why there is a sufficient connection. 2. Special Relationship will determine the duty of care a) Trespasserlow standard 1) No permission to use s land 2) Duty arises at the moment of discovery b) Licenseeshigher standard 1) Social guest 2) On the s property for his own purpose c) Inviteehighest standard 1) Person invited on the owners property 2) To further the owners purpose/business b. Foreseeable Risk 1. General RuleReasonably Prudent Person under the circumstances a. Situations 1) Emergency Standard a. Why? ***ARGUMENTS FOR EMERGENCY STANDARD*** 1. --Not held to an emergency standard. One who breaks the law should be liable for all results. Adopting this rule will further this value because liability will be placed on the one who caused the injury rather than a burden on the innocent, injured party. Here, __________ and therefore held to a reasonably prudent person under like circumstances.
4

2. --Emergency Situation Standard. It is reasonable to expect that a person will not act rationally in an emergency situation. Adopting this standard will further this value because it will relax liability during circumstances where a reasonable person is unable to act rationally. Here, _________ and therefore held to a standard in an emergency. The Emergency standard is: b. ELEMENTS: APPLY THIS 1. Situation not of s own making 2. Patent danger a) Threatens your or others safety 1) Outside force 2) 3rd party conduct creates situation 3. Only a moment left to extricate selfTIMING 2) Traits a. Age 1. Why? ***ARGUMENTS FOR STANDARD OF CARE FOR CHILDREN*** a) Same standard of care as adults if it is an inherently dangerous activity. The courts should discourage dangerous activities regardless of age. Adopting this rule will further this goal because children will be liable if they undertake inherently dangerous activities while preserving the encouragement of undertaking in other child activities. Children will want to change their behavior because they do not want to be in trouble, and this is a behavior that every child can change. Here, s conduct was____________ and therefore held to the same standard as a reasonably prudent adult under like circumstances. 1) Inherently dangerous activity a) Operating a motorized vehicle 1. IF NOT A MOTORIZED VEHICLE: a. Arguments 1) SITS ________ is similar to a motorized vehicle because ___________. Those who operate _________ can be liable. If we treat _______ and ________ similarly, and those who operate _________ can be liable, then necessarily those who operate __________ can be liable, and the
5

above rule reflects this. Here, was operating a _______ and is therefore inherently dangerous. b) Standard of care of a child with similar age, intelligence, experience, training, and maturity. We want to encourage children to pursue childhood activities without the same burden and responsibilities with which adults must contend. Adopting this interpretation of reasonable care will encourage children to pursue such activities without the burden adults contend with because they will not be liable for acts that require an adult capacity and judgment. Here, is a __-year-old child and therefore is held to a standard of care expected of child with similar age, intelligence, maturity, training, and experience. 1. May be heightened if these factors are high: a. Child with heightened age, experience etc. b. Physical Disability 1. General Rule OR Exception a. Reasonably prudent personGeneral Rule 1) Which One and Why? a) Reasonably prudent personsimilar interests are treated similarly. A person with ______ disability is similar to a person with permanent disability because _________. If we expect people with permanent disability to exercise the same standard of care as a reasonably prudent person, and a person with _______ disability is similar, then necessarily the person with __________ disability is held to the same standard of care as a reasonably prudent person. Here, has ____________ disability and is therefore held to the standard of a reasonably prudent person in like circumstances. b) Exception to the rule. No liability without fault. Fault requires the ability to anticipate consequences of ones action. People who are temporarily incapacitated mentally have no ability to anticipate consequences, and therefore cannot be at fault. Here, is temporarily incapacitated
6

and therefore is held to relaxed standard of care. The mental condition must affect: b. The ability to control conduct OR c. Understanding and appreciation of the duty AND d. Must not have notice or forewarning c. Physical Disability 1. What standard and Why? ***ARGUMENTS*** a. General Ruleone who breaks the law should be liable for all resulting injuries. Adopting this rule will further this value because it will not preclude ones liability for an injury on an innocent party who had no control over the situation. Here, __________ and is therefore held to the standard of a reasonably prudent person. b. Reasonably prudent blind person. People with physical disabilities are similar to other people with the same disabilities because their lifestyles require an enhancement of other senses and activity to make up for those that they lack. Here, has _________ disability and should therefore be held to the standard of a reasonably prudent [disability] person. 3) Professionals a. General RuleReasonably prudent [professional] in similar circumstances 1. Comparable to professional with the same learning skill and ability as another similarly situated in the profession. b. Lawyers 1. Requisite knowledge a) Usually conceded 2. Best Judgment a) Not a mere error of judgment BUT b) LACK OF Discretion 1) Subjective good faith determination 2) ArgumentSITS. Doctors = Lawyers 3. Exercise of Due Care a) Mechanical determination 1) Examplefailure to research claim 2) Failure to file before the statute of limitations has run. 3) ArgumentSITS. Doctors = Lawyers c. Physicians and medical facilities a) Locality Rule
7

1) ArgumentThe court should encourage medical profession the provide medical care for their community. The national standard will discourage the hospital form caring for their patients because they will not want to be liable. Here, hospital/physician is ________ and should be held to the local standard. b) Similar Rule 1) Institutional Competence. The court is in a better position to hear and decide facts of similar localities based on demographics, ethnic compound, and socioeconomic issues such as funds and expenses. Adopting this rule will further this value because the legislature cannot provide an accurate determination on a national basis. Here, is ___________ and should therefore be held to the standard of a similar community. c) National StandardAdmininstrability. Social Policy. The courts should encourage high quality medical care. Adopting this rule will further this value because the other standards, such as the local rule and similar rule breed a sub-standard of medical care. Here, is _______ and should therefore be held to the national standard. 2. Looking through the Eyes of the Defendant a. Was the Risk something the should have foreseen OR was conduct reasonable or unreasonable 1) For liability, the probability and gravity of the injury must outweigh the burden of adequate precautionsBALANCE a) Burden 1. Knowledge a. argues HIGHREASONABLE INSPECTION b. argues LOWER 1) ACTUAL KNOWLEDGE OR 2) CONSTRUCTIVE KNOWLEDGE 2. ***ARGUMENT IN SUPPORT OF CHOICE*** a. argues LOWER. Burden should be measured by what the knew or should have known. The court should encourage safety towards other individuals. Adopting this rule will further this value because it will place liability on those who are in a better position to know of
8

the danger. Liability will encourage people to change their behavior. Finally, this is a behavior that people can change, and the above rule reflects this. Here, ______ and therefore should have known of the danger. b. argues HIGHERThe burden should be measured by whether the should have known through reasonable inspection that the danger exists. Social policy should encourage the free use of ones land. Holding s liable for failure to inspect every aspect of their land would discourage the free use and enjoyment of ones land and would therefore contradict the policy, and the above interpretation reflects this. Here, __________ and is therefore held to the higher standard of reasonable inspection. 3. If TRESPASSER a. FOR KNOWLEDGE, ARGUE: Moment of Discovery OR reasonable effort to reduce the risk 1) : Look to the s conduct. must make a reasonable effort to reduce or avoid the risk to trespassers because one who breaks the law should be responsible for the resulting injuries. Adopting this rule will further this value because the party causing the injury is in a better position to protect the innocent, injured party, and the above rule reflects this. Here, s conduct was ___________ and therefore must make reasonable effort to reduce or avoid the risk. 2) : The moment of discovery means actual discovery or knowledge because the law should discourage trespassing. Adopting this interpretation will further this value because the court will discourage trespassing and impose liability only when the can actually anticipate an injury. Another decision would encourage trespassing because the court will condone trespassing by imposing a harsh duty on the . Here, ___________ and therefore did/did not have actual or constructive knowledge. 4. If Licensee: a. Duty to warn if: 1) Hidden danger
9

2) Unknown to the licensee 3) And known to the owner a) if known to the owner, look to the TIME that has passed (BARMORE) b) : Constructive Knowledge ARGUMENT. c) : The sole benefit is to the licensee because of purpose, scope, and time. The law should not make business insurers of all their customers because there is no liability without fault. Adopting this interpretation will further this value because fault requires the ability to anticipate injury, and business managers and owners cannot anticipate injuries to every customer that enters the establishment. Here, s purpose, scope, and time is __________, ___________, _________, and therefore should be treated as a licensee. 5. If Invitee: a. Open to the public b. Customer: 1) Invitee has done business in the past 2) Is currently doing business 3) Will do business in the future a) argues that the knew or had reason to know the was a customer because the law should encourage safe facilities for customers who are actually beneficial to the owner. Adopting this rule will further this value because the court will deter owners from having unsafe facilities for their customers, the owners will change because of liability, and the owners can take measures to safeguard their premises. Here, ___________ and therefore knew or should have known _____________. 6. If there is a great danger and the owner has warned the : a. A duty to warn is insufficient is some circumstances if b. Unreasonable danger known to the c. Should reasonably anticipate that might still be injured. 1) Actual or Constructive ARGUMENTS 2) Reasonable Inspection ARGUMENTS 7. What conduct could the take to reduce the Risk?
10

a. FACT ANALYSIS 1) would want to isolate the burden from probability and injury. 2) does not want to isolate, rather weigh against other factors. b) Probability 1. argues lowunusual, extraordinary, and improbable because it never happened before. 2. argues highlikelihood of damage of appreciable weight and moment a. weight = severity b. moment = time 3. FACT ANALYSIS c) Gravity of the Injury 1. FACT ANALYSIS a. Total loss? b. Minor loss? c. Monetary loss?

I.

II.

Negligence Per Se *Foreseeable (Common Law) = Class of Persons (Statutory Breach)* *Foreseeable Risk (Common Law) = Class of Harm (Statutory Breach)* Source of Duty A. State Statute B. City or County Ordinance C. Regulation Breach A. Violation of the Statute 1. is in the class of persons that the statute is intended to protect 2. The harm is of a kind that the statute was intended to prevent a. Look to: 1) plain language and definitions 2) Title, purpose, and Date 3) Amendments, Notes, and Comments 4) Penalties 5) Is the statute silent on the issue? a) Argumentif its left out, legislature did not intend to include it
11

b) Argumentif its left out, legislature left it to the court for interpretation 6) Case Law B. If there is a violation 1. Rebuttable Presumption of Negligence a. The rebuttal must be strong, credible, and unequivocal b. Burden is on the party who violated the statute 1) Common practices 2) Common knowledge 3) Violation was reasonable 2. Evidence of Negligence 3. Negligence as a Matter of Law 4) Argument: Evidence of negligence as a standard is too discretionary and yields unpredictable results. Negligence as a matter of law is too harsh of a standard because the partys case will automatically be dismissed, relevant factors will be ignored, and the court would encourage unjust enrichment. Violations of statutes are fact-specific and therefore a rebuttable presumption of negligence should be the standard. The court is a better forum to decide this issue because there are relevant facts that surface in the courtroom that the legislature has no access to. Adopting this rule will further this value because the court can hear evidence and choose whether the violation was reasonable as opposed to a strict application of the law which may be unreasonable. Here Res Ipsa Loquitor I. Res Ipsa Loquitor A. When does it arise? 1. No statute 2. No knowledge of s conduct a. No one knows who committed negligence b. It is an alternative pleading in favor of the B. Rule 1. Injury would not ordinarily occur absent some negligence a. Obvious to a lay person OR b. Usually some type of expert testimony 2. Injury was not due to any voluntary action of the 3. Instrumentality must be in s exclusive control 4. If elements are met, burden shifts to to disprove negligence a. Exclusive control 1) Sole Possession
12

a) Argument: Exclusive control should be defined as sole possession because the court prefers a consistent and predictable standard for precedent. Adopting this interpretation will further this value because it is easier to decide if one person has sole possession as opposed to multiple persons, and the above rule reflects this. Here, the instrumentality was in the sole possession of ___________ and therefore has exclusive control. b) Alternative: No liability without fault. Adopting this interpretation will further this value because fault requires the ability to anticipate injury, and the court might impose liability on an innocent party who did not have sole possession of the instrumentality, and the above rule reflects this. Here, the instrumentality was in sole possession of ___________ and therefore has exclusive control. 2) Custody over instrumentalities a) Argument: Exclusive Control should be defined as custody over the instrumentalities because it is reasonable to expect that a persons safety does not lie in the hands of one individual, especially when dealing with multiple parties. Adopting this rule will further this value because liability will be imposed on everyone who is in control of the instrumentality that caused the injury, and people can expect that their safety is ensured. Here, the instrumentality was in possession by multiple s and therefore was in their exclusive control. b) Alternative: The court should encourage people to tell the truth about an injury. Adopting this rule will further this value because it will encourage the s to come forward with the truth instead of keeping their mouth shut about the fucking injury, and the above rule reflects this... II. Causation A. Factual 1. Was the a cause in fact of s injury 2. Did s conduct contribute sufficiently to s injury so a jury could conclude that is a cause in fact of s injury 3. Test: a. BUT FORONE CAUSE/ONE 1) s conduct is a cause in fact if the event would not have occurred but for the s negligence. a) Take away s conductif injury would occur anyway there is no liability b. SUBSTANTIAL FACTOR MULTIPLE s and CAUSES 1) ONE KNOWN AND ONE UNKNOWN CAUSE: a) Unknown = injury THEN no substantial factor
13

b) Known + Unknown COMBINE to produce something greater and = injury THAN substantial factor c) Known + Unknown MINGLE or ONE SWEEPS OVER THE OTHER THAN DO A FACT ANALYSIS/ARGUMENT 2) KNOWN CAUSES a) If the two known causes COMBINE to produce the s SOLE INJURY, than each tortfeasor is a substantial factor and splits the cause of liability. 3) FAILURE TO DIAGNOSE or similar events (Usually Med-Mal) a) If s conduct INCREASED the risk of harm AND b) Contributed significantly to s injury (JURY QUESTION) THEN c) s conduct was a substantial factor d) liability is limited to the amount the contributed to the injury 4) BURDEN OF PROOF a) must prove by a PREPONDERANCE OF THE EVIDENCE (50%) b) MUST ONLY PROVE HIS CONDUCT WAS NOT SUBSTANTIAL, NOT DISPROVE THE CAUSE 1) POLICYotherwise, the burden of proof would shift because would have to prove the cause, and this is to great a burden to place on the . 5) TWO DEFENDANTS, ONE CAUSE (RARE) a) s must be ACTING IN CONCERT 1) Implicit agreement to act negligently 2) Between two parties 3) Whether or not they no each other 4) POLICY IN FAVORReasonable expectationsif two parties have an implicit agreement, there is a reasonable expectation that they will perform the same act. If the act is negligent, they have implicitly agreed to accept one anothers responsibility. c. ALTERNATIVE TO SUBSTANTIAL FACTOR 1) s conduct GREATLY MULTIPLIES the risk AND 2) Naturally leads to the occurrence DEFENDANTS NEGLIGENT INJURY CONDUCT FORESEEABLE

CONSEQUENCE
14

B. PROXIMATE OR LEGAL CAUSE 1. When negligent conduct creates a risk, setting off foreseeable consequences that lead to the s injury, the conduct is deemed the proximate cause of the injury. a. FORESEEABLE CONSEQUENCE 1) s conduct naturally or ordinarily leads to the consequence 2) Injury is within the scope of risk created by the s conduct a) IS THE CONSEQUENCE LIKELY TO OCCUR AS A RESULT OF s NEGLIGENT RISK CREATING CONDUCT 3) Do not look to the exact sequence of eventsany and all risk creating acts leading to the injury is controlling 4) ARGUMENT-- is in a better position to avoid the consequence than the innocent injured party is. b. INTERVENING CAUSE 1) The consequences would still occur and directly flow in the events 2) Does not break the chain of liability c. SUPERCEDING CAUSE breaks the chain of liability IF: 1) Independent Act AND 2) Different conduct creates a new risk AND 3) Injuries are so different from the injury that would result from s conduct OR 4) Independent criminal act MAY break the chain of causation because criminal conduct is not foreseeable to the 5) ARGUMENTSThere is no liability without fault. Fault requires the ability to avoid consequences. Independent acts that create new risks to the plaintiff and cause different injuries not foreseeable to a who, although negligently, has created an entirely different risk. Here, created X risk, _______ created Y risk, and therefore supercedes s original negligent conduct, thus breaking the chain of liability. III. Damages A. Background 1. Lump sum payment 2. Structured Settlementsusually for children a. Incapacity b. Protecting investments c. Over a period of time: WHY? 1) Annuitieshigh interest = more money
15

2) Guaranteed income 3) Tax Free d. Why not? 1) Less common for older s 2) Might not want to wait 3. a. Collateral Source Rule Coll. Income is not calculated or

known to the jury at trial to prevent prejudice or leniency to the . B. Economic Losses 1. Medical expenses a. Reasonable b. Expert testimonyanticipated costs 2. Lost Wages 3. Loss or Impairment of Future Earning Capacity 4. Damage Calculation: Present Value 5. Future Inflation 6. Federal Income Tax C. Non-Economic Losses 1. Physical Pain and Suffering, Mental Anguish 2. Loss of Enjoyment of Life a. Must be conscious of the loss 1) ArgumentsReasonable Expectations: a reward for damages should benefit the injured party in the future. An injured party who is not conscious of the loss cannot benefit from an award of damages. 2) Administrabilityyou are either conscious or unconscious 3) Unjust Enrichment 3. Per Diem 4. Reduced Life Expectancy D. Punitive Damages: not in negligence unless s conduct is willful, wanton, or reckless. E. Hypo in classpregnant mother who became vegetable after routine c-section: loss of household services, future medical care, permanent disability, public sector job, future earnings. IV. Affirmative Defenses A. Two Steps in Defense Analysis 1. must prove s duty, breach, and causation a. Duty and breach 1) s standard of care 2) BAP v. Prob x Injury ( s own injury) 3) BAP = knowledge and steps to reduce risk 4) Prob = s conduct increasing the likelihood of the injury
16

b. Causation 1) Factual a) But-for wont work because there is probably 2 causes b) Substantial Factor Test 2) Proximate Cause a) s conduct Foreseeable Cons. Injury b) s conduct either intervening or superceding c) Consequences must be within the scope of risk c. If Negligent, Go To: EFFECT OF NEGLIGENCE 2. Effect of Negligence a. Contributory Negligence 1) No Recovery 2) Exceptions a) Last Clear Chance Doctrine b. Comparative Negligence 1) ARGUMENTfairness and Administrabilityeasy standard to apply, and its fair to both parties who are equally at fault. 2) Pure comparative approach a) can only recover the percentage he was not at fault 3) Modified comparative negligence a) PA50/50 Rule i. If s negligence is greater than 50%, cannot recover ii. prefers this argument but requires more litigation b) 51/59 Rule i. s negligence must be less than 50% in order to recover ii. Usually settle before trial because juries usually say youre both equally negligent c. Assumption of Risk 1) Actual Knowledge of risk 2) Voluntary encounter 3) Appreciation of the magnitude of danger/risk 4) Waiver or consent, either express or implied can meet the AOR test Immunities A. Complete Defense and Bar to RecoveryUSE THIS AS A THRESHOLD QUESTION B. Interspousal immunity 1. Abrogation a. Generaltotal abandonment of the immunity
17

V.

b. Partiallimited to only special circumstances c. Arguments 1) In favor of general abrogationadministrability 2) Against general, thus Partial abrogationpreserve the institution of marriage C. Parent-Child Tort Immunity 1. General AbrogationReasonable Parent Standard a. Argumentsrequires a heightened standard such as this because it fits situations where parents are most likely negligent. The court should encourage parents to exercise a heightened standard of care when dealing with their children because children cannot easily protect themselves from dangers. Heightening the standard will encourage parents to use higher care for their children and encourage a change in their behavior as a result. Therefore, the immunity should be abrogated. 2. Partial abrogationcar accidents, yes, negligent supervision, no a. Conduct that is separate from parenting duties, no immunity should be had b. Conduct integral to parenting duties, immunity should be had c. Argumentit is reasonable to expect that a parent can be sued by anyone if his or her negligent conduct causes an injury. A s child should not be excluded from this category because a parents negligent conduct, not integrally related to parenting duties, causes injury. Therefore, there should be no immunity when a parent injures his or her child when acting negligently outside the role of parenting. D. Governmental Immunities 1. Municipal or Local GovernmentMost states say no immunity (PA general abrogation)POLICY ARGUMENT: When the state causes injury to an individual, the individual should be entitled to recover for injuries sustained because the innocent injured party is not in a better position to protect itself from injury. 2. Partial Abrogation a. Performing a discretionary act 1) Immunity applies b. Performing a non-discretionary act 1) No Immunity c. Example: Police complaintjudgment call = immunity; mistake = no immunity Products Liability I. Injury by a defective productGenerally
18

II.

A. Recovery for negligencefocus on the conduct of the B. Recovery for strict liabilityfocuses on the product itself without regard to s conduct C. Recovery for breach of warranty 1. representations a. written b. verbal 2. product falls below expectations D. 402(a) has been adopted by the state supreme courts across the nation as the standard for manufacturers Sale of a product A. Product and service hybrid 1. argues PRODUCT a. Consumer is seeking the product, not just the service 1) Example Kidney Donor Companyorgan for profit: an entity that profits from the product is in a better position to absorb the cost of liability and spread it to its consumers. Imposing liability for defective products in connection with services will assure the safe implementation of products when the consumer is seeking the product, and the company can and will change its behavior accordingly. 2) argues SERVICE a) the essence of the transaction is the provision of service, not the product itself. b) Example Kidney donor company: company acts as a middle-man for the selection of the kidney, not selling the kidney itself. When the courts are dealing with a new category under strict liability such as the product service combination, the court should defer to the legislature to make the determination and rule accordingly. Since the legislature has not expressed whether a product service combination is necessarily classified as a product for strict liability purposes, the court should rule according to the essence of the transaction. Thus, if the service depends on the skill, judgment, and experience of the provider, the hybrid does not fall within the scope of product for liability purposes.

III.

Defective Condition Unreasonably Dangerous A. Manufacturing Defects 1. where the product is designed correctly, but the particular product that caused the injury deviated from the intended design
19

a. comparable to other products b. expert testimony 2. argues that the defect was present when it left the assembly line a. expert testimony to show the building of the products b. employee testimony to compare standard product to defective product c. blueprints showing a good design d. other owners 3. argues that there was an alteration after leaving the assembly line a. expert testimony b. request all maintenance records since the product left the assembly line to the date of injury c. request a list of trucks that came of that line at the time of manufacturing B. Design Defects 1. focus on UNREASONABLY DANGEROUS a. MFGargues that mfgs should not be insurers of every product that is placed on the market because the product might be dangerous, but highly useful to the public. Imposing liability would deter production of useful products. b. Consumermfg is in a better position to absorb the cost of liability and spread the cost amongst the consumers of the product. 2. Consumer Expectation Analysis a. Looking through the eyes of the reasonably prudent consumer b. Did the product perform as the reasonably prudent consumer would expect c. Was the product used in its intended manner d. Did the defective product proximately cause the injury e. ExampleNates bike hypo OR 3. Risk Utility Analysis a. Argument: The risk utility analysis is a proper because the court can balance seven factors to determine who should bear the cost of injury. From the mfg.s perspective, this analysis is fair because it reduces the likelihood that mfgs. will become insurers for all their products on the line and decreases absolute liability by placing the burden on the to prove the defect. From the consumers perspective, this analysis promotes fairness because a will be compensated for injuries resulting from a defective product by an entity who is in a better position to reduce the risk, spread the cost of injury, and prevent future defects. b. Balancing utility of the product v. the risk to the consumer 1) Safetyprobability x injury 2) Utility to public 3) Available substitute product
20

4) Inability to avoid injury when exercising care in use 5) Inability to eliminate risk without impairing utility and avoiding costs 6) Inability to anticipate the risk 7) Cost spreading 4. Timing and foreseeability a. Defect at the time the product is placed on the market (MOST JURISDICTIONSforeseeability before or at the time of marketing) OR b. at the time of trial (foreseeability after the fact) 5. State of the Art a. : Mfg has a duty to use state of the art (MAXIMUM STANDARD) 1) existing level of technology expertise and scientific knowledge relevant to a particular industry at the time of marketing b. : only a duty to use industry customs (MINIMUM STANDARD) 1) Normal or minimal standard pursuant to federal and state standardstoo costly so the mfg will merely comply with the minimum c. If is using the state of the art and cannot reduce risk, will claim absolute immunity, however: 1) this is no absolute defense 2) has the burden of proof because the product may still be dangerous: a) product is implementing the state of the art b) coupled with other evidence c) to justify placing the product on the market C. Failure to Warn in Strict Products Liability 1. Actual Knowledge of the defect OR 2. Constructive KnowledgeKNOWABILITY of the defect in light of scientific information available to the mfg 3. Arguments: a. --MFG has superior access to scientific information as compared to the user of the product that may have no access to scientific information. It follows that the party in a better position to access information that would decrease the risk of danger should be responsible for the cost of injury. Since mfg are also in a better position to spread the cost of injury, mfg should be liable for the knowability of a defect absent actual knowledge. b. --There is no liability without fault. Fault requires the awareness of the risk so the party can avoid injury. If a party is unaware of the risk, that the party cannot avoid the injury and should not bear the costs thereof. D. Defective Warnings
21

IV.

1. Warnings should be: a. noticeable b. succinct conveyance of the message c. provide enough information of the obvious and immediate risks involved d. and steps to treat the injury after encountering the risk 2. Drafting the warning label a. Format 1) bold print and caps 2) list of risks involved 3) bullets or numbering b. Content 1) Seal 2) List of all obvious and immediate risks 3) Picture of the risk involved 4) How to treat the risk 5) Adult supervision suggested if children are a risk factor 6) Information number Defenses to Strict Products Liability A. s prima facie case 1. Sale of a product, DCUD, Causation, Damages B. s defenses 1. Comparative negligence does not bar complete recovery a. is not liable for some misuse, but is liable for misuse that is reasonably foreseeable unless the abnormally handled the product OR 2. Assumption of Risk is a complete bar to recovery (PA APPROACH) a. Knowledge of the risk b. Appreciation of magnitude c. Voluntarily encounters the risk 1) argues should bear partial cost of the injury in order to deter the s negligent conduct. The underlying policy of products liability is to protect injured persons who are powerless to protect themselves from product defects. If the is not powerless to protect itself because of negligent misuse of the product, then necessarily the should bear the partial cost of injury

22