Torts

Which of the following is correct regarding duty of care in a products liability case based in negligence? A A retailer that labels a product as its own is liable for the manufacturer's negligence B Those who commercially repair a product owe a duty of care as commercial suppliers of the product C The duty of care is owed only to those in privity with the defendant

A. For the duty of care in a products liability case based in negligence, a retailer that labels a product as its own is liable for the manufacturer's negligence, even though the retailer was not personally negligent. Those who commercially repair a product do NOT owe a duty of care as commercial suppliers of the product. In the usual case, the duty of due care arises when the defendant engages in the affirmative conduct associated with being a commercial supplier of products. Those who repair a product owe a general duty of care, but are not usually suppliers for purposes of products liability cases. The duty of care is NOT owed only to those in privity with the defendant. The duty of due care is owed to any foreseeable plaintiff, such as a user, consumer, or bystander. QUESTION ID: T0071B Additional Learning

Which of the following may prevent establishing causation against a manufacturer in a strict products liability action? A The failure of a retailer to take action after discovering a dangerous defect B The destruction of the product because of its dangerous defect C The negligent failure of a retailer to discover a dangerous defect

A. The failure of a retailer to take action after discovering a dangerous defect may prevent establishing causation against a manufacturer in a strict products liability action. The same concepts of proximate cause that govern negligence and strict liability actions are applicable to strict liability actions for defective products. As with products liability cases based on negligence, the negligent failure of a retailer to discover a dangerous defect does not cut off the supplier's strict liability. On the other hand, when the intermediary's conduct becomes something more than ordinary foreseeable negligence, it becomes a superseding cause. Hence, the conduct of a retailer who discovered a dangerous defect and then took no action (such as alerting the manufacturer, warning the consumer, or removing the product from sale) constitutes more than ordinary foreseeable negligence and may cut off the manufacturer's liability. The destruction of the product because of its dangerous defect does not prevent establishing actual cause. If the product has been destroyed, the plaintiff may rely on an inference that this type of product failure ordinarily would occur only as a result of a product defect. QUESTION ID: T0077B Additional Learning

A homeowner purchased a ladder from a home supply retailer. While he was using the ladder, an improperly installed bolt fastening one of the rungs gave way, causing him to fall and break his leg. The homeowner sued the manufacturer of the ladder to recover damages for his injury. If it is established at trial that the home supply retailer could have discovered the defectively installed bolt if it had conducted a reasonable inspection of the ladder, what is the effect of the retailer's failure to inspect? response - correct A It has no legal effect on the manufacturer's liability. B It is a superseding cause that relieves the manufacturer of liability to the homeowner. C It is attributable to the manufacturer under the doctrine of respondeat superior. D It will allow the manufacturer to bring an action for indemnity against the home supply retailer if the manufacturer is found liable to the homeowner.

A. The failure of the home supply retailer to inspect the ladder has no legal effect on the manufacturer's liability, regardless of whether the plaintiff is suing in negligence or strict liability. Under either theory, an intermediary's negligent failure to discover a defect is not a superseding cause, so the defendant who supplied the defective product will still be liable. Thus, even if the home supply retailer were negligent in not discovering the defect, it would not relieve the manufacturer of liability. (B) is incorrect because an intervening force must be unforeseeable for it to be superseding. Here, the failure of the retailer to discover the defect was ordinary foreseeable negligence that does not break the causal connection between the initial wrongful conduct and the ultimate injury. (C) is incorrect because there is no evidence of an employer-employee relationship for which respondeat superior liability would apply. The only relationship between the two companies appears to be a contractual one; hence, the manufacturer will not be vicariously liable for the negligence of the retailer under respondeat superior principles. (D) is incorrect because it is a reversal of one of the situations in which indemnity is available. When strict liability applies, each supplier of a defective product is liable to an injured person, but each supplier has a right of indemnification against all previous suppliers of the defective product in the distribution chain, with the manufacturer of the defective product ultimately liable. Here, both the home supply retailer and the manufacturer may be liable as suppliers in a strict liability action if they supplied a defective product. However, the manufacturer, as the previous supplier in the chain, would be liable to the home supply retailer for indemnity, rather than the other way around as (D) states.

A shopper was in a large department store that was remodeling its menswear department and had hired a contractor to do the work. A carpenter employed by the contractor was working on the remodeling job. When the carpenter left the store to take a break, she left a carpenter's level projecting out into one of the aisles, unbeknownst to any store employees. Shortly before she returned 15 minutes later, the shopper came down that aisle and tripped over the level. He fell and struck his head on the sharp corner of a display case. The shopper required hospitalization and sued the store for his injuries. Will the shopper prevail in his suit against the store? response - incorrect A Yes, because the contractor's employee left the level in the aisle. B Yes, because the store's employees had a reasonable time to discover the level before the shopper fell. C No, because the store's employees did not leave the level in the aisle. D No, because the store's employees were unaware that the level was in the aisle.

A. The shopper will prevail because the employee of the contractor hired by the store left the level in the aisle. The general rule that a principal will not be vicariously liable for the acts of its independent contractor's agent is subject to several broad exceptions, including one for duties that are nondelegable because of public policy considerations. One of these duties is the duty of a business to keep its premises safe for customers. Hence, a business would be liable for the negligence of an employee of an independent contractor to the same extent as for the negligence of its own employee. Here, the carpenter was employed by the contractor, which was hired by the store. The carpenter breached the duty owed to customers such as the shopper by leaving the level projecting out into one of the aisles. The shopper was injured as a result, so he will prevail in a suit against the store. (B) is wrong. As part of the duty owed to customers, the store employees have a duty to make reasonable inspections of their premises to discover unsafe conditions (such as if a customer had spilled something slippery in an aisle). However, regardless of whether they had a reasonable time to discover the level, the store is liable because it is responsible for the carpenter's conduct. (C) is wrong because, as discussed above, the store is liable under these circumstances for the conduct of its independent contractor's employee. (D) is wrong because the store is liable regardless of the knowledge of its employees.

Which of the following statements is true regarding a products liability action based on breach of an express warranty? A The warranty must be part of the basis of the bargain. B Vertical privity must exist between the plaintiff and the defendant. C The warranty must be made by a merchant dealing in the type of goods sold. D Proof of the defendant's fault must be shown.

A. The warranty must be part of the basis of the bargain for an action based on breach of express warranty. Pursuant to U.C.C. section 2-313, an express warranty arises when a seller or supplier makes an affirmation of fact or promise to the buyer relating to the goods in question that becomes part of the basis of the bargain. If a buyer is suing, the express warranty must have been part of the basis of the bargain. If someone not in privity is suing, the remote person must show that the express warranty was part of the basis of the bargain for someone in the chain of distribution. An express warranty does NOT need to be made by a merchant dealing in the type of goods sold. Unlike an implied warranty of merchantability, an express warranty may be made by any seller or supplier. Also, vertical privity between the plaintiff and the defendant does NOT need to be shown. As with implied warranty actions, most courts no longer require vertical privity between the buyer and the manufacturer in express warranty cases. As stated above, if the plaintiff in an express warranty case is not in privity, she can still bring an action as long as she demonstrates that the express warranty was part of the basis of the bargain for someone in the distribution chain. As with an implied warranty action, an express warranty action does NOT require proof of the defendant's fault. If a product does not meet the standards imposed by an express or implied warranty, then the warranty is breached. The plaintiff does not need to prove any fault on the defendant's part. QUESTION ID: T0081 Additional Learning

In contrast to products liability cases based on negligence, those based on strict liability do not: A Require that suppliers have an opportunity to inspect. B Impose liability when an intermediary negligently failed to discover the defect. C Require an injured bystander to be foreseeable. D Prohibit recovery of solely economic losses.

A. Unlike with products liability cases based on negligence, those based on strict liability do not require that suppliers have an opportunity to inspect. Thus, for a case based on the sale of a defective product, a retailer in a strict liability action may be liable for a manufacturing or design defect simply for being a commercial supplier of that defective product, even if it had no opportunity to inspect the manufacturer's product before selling it. In a negligence action, the supplier's negligence must be proved. Products liability cases based on negligence and those based on strict liability both require that an injured bystander be foreseeable. While privity is not required in these cases, and bystanders are protected and may bring a claim under either theory, they must be foreseeable. Liability under these theories applies to foreseeable plaintiffs. Products liability cases based on negligence and those based on strict liability both prohibit recovery of solely economic losses. The types of damages recoverable under both theories are the same: personal injury and property damages. Economic loss cannot be the sole damage claim. As under claims based on negligence, those based on strict liability will impose liability even though an intermediary negligently failed to discover the defect. The same concepts of proximate cause govern negligence and strict liability actions. The negligent failure of an intermediary to discover a defect is not a superseding cause and does not cut off the supplier's strict liability. However, if the intermediary's conduct becomes something more than ordinary foreseeable negligence, then it does become a superseding cause. QUESTION ID: T0075 Additional Learning

Which of the following is not a valid plaintiff/defendant combination in a products liability case based on negligence? A A bystander injured by the product suing the assembler of the product B A user of the product suing the business that repaired the product C The purchaser of the product suing the retailer that labeled the product as its own

B. A user of the product suing the business that repaired the product is not a valid plaintiff/defendant combination in a products liability action. Usually, the duty of due care in this type of action arises when the defendant engages in the commercial supplying of a product. In contrast, those who repair a product owe a general duty of care, but are not usually "suppliers" for purposes of products liability cases. The purchaser of the product suing the retailer that labeled the product as its own states a valid plaintiff/defendant combination. A retailer who labels a product as the retailer's own or assembles a product from components manufactured by others is liable for the negligence of the actual manufacturer, even though the retailer is not personally negligent. A bystander injured by the product suing the assembler of the product also states a valid plaintiff/defendant combination. The duty of due care is owed to any foreseeable plaintiff—user, consumer, or bystander—and the assembler of a product is treated as a commercial supplier. QUESTION ID: T0071A Additional Learning

With respect to a products liability case based on negligence, which of the following statements is correct? A Negligence may be shown as to a design defect even if the product's danger became reasonably apparent only after it reached the public. B A dealer who buys from a reputable supplier need only make a cursory inspection of the goods to avoid liability for manufacturing defects. C Retailers and wholesalers owe a duty only to their customers with regard to manufacturing defects. D The plaintiff may not invoke res ipsa loquitur to establish a manufacturing defect.

B. In a products liability case based on negligence, a dealer who buys from a reputable supplier need only make a cursory inspection of the goods to avoid liability for manufacturing defects. No breach of duty is established merely because the dealer supplied a defective product. To prove negligence in a products liability case, a plaintiff MAY invoke res ipsa loquitur to show a manufacturing defect. The plaintiff may use res ipsa loquitur to show that the error that occurred is something that does not usually occur without the negligence of the manufacturer. In a products liability case based on negligence, retailers and wholesalers do NOT owe a duty only to their customers for manufacturing defects. They owe a duty to all foreseeable plaintiffs, including bystanders. For design defects, negligence may NOT be shown if the product's danger becomes reasonably apparent only after it has reached the public. In a design defect case based on negligence, the plaintiff must show that those designing the product knew or should have known of enough facts to put a reasonable manufacturer on notice about the dangers of marketing the product as designed. QUESTION ID: T0072 Additional Learning

Vertical privity is present in a products liability action when the injured plaintiff, usually the buyer, is suing the party that made the sale directly to the plaintiff (e.g., the retailer). Which of the following is true regarding the vertical privity requirements for actions based on breach of implied warranties of merchantability and fitness? A Vertical privity was never required in these actions B In the past, vertical privity between the plaintiff and defendant was required, but today most courts do not require vertical privity in these actions C In the past, courts did not require vertical privity, but today most courts require it between the plaintiff and defendant in these actions D Courts both in the past and today require vertical privity between the plaintiff and defendant in these actions

B. In actions based on breach of implied warranties of merchantability and fitness, in the past, vertical privity was required, but today most courts do not require vertical privity. In the early period of warranty law, courts held strictly to the requirement of complete privity between the plaintiff and the defendant. However, a trend developed with courts finding the needed privity between remote parties on various fictions and theories (e.g., the warranty ran with the goods, or the retailer was the manufacturer's agent). As a result, most courts no longer require vertical privity between the buyer and the manufacturer in implied warranty actions. QUESTION ID: T0079B Additional Learning

In an action based on breach of express warranty, __________. A Privity is required B Fault is not at issue C The warranty must be made by a merchant dealing in goods of the kind sold

B. In an action based on breach of an express warranty, fault is not at issue; i.e., the plaintiff does not need to show that the breach occurred through the fault of the defendant. Rather, the plaintiff need only show that a breach of the warranty did in fact occur. Privity is NOT required in an express warranty case. Although U.C.C. section 2-318 declares that its privity alternatives apply to express as well as implied warranties, most courts have held privity to be irrelevant in express warranty cases. An express warranty does not need to be made by a merchant dealing in goods of the kind sold. Unlike an implied warranty of merchantability, an express warranty may be made by any seller or supplier. QUESTION ID: T0081A Additional Learning

The driver brought an action against the homeowner for his injuries. The parties stipulated to the above facts, and that the driver violated a state statute by driving off of the road. Both parties moved for judgment as a matter of law on the liability issue. How should the court rule? response - incorrect A Grant the driver's motion and deny the homeowner's motion, because the homeowner is strictly liable for the injury caused by the snake. B Deny the driver's motion and grant the homeowner's motion, because the driver was a trespasser on the homeowner's property. C Deny the driver's motion and grant the homeowner's motion, because the driver's violation of the state statute establishes contributory negligence as a matter of law. D Deny both parties' motions, because both parties were engaged in an activity for which strict liability is imposed.

B. The court should grant the homeowner's motion for judgment as a matter of law because the driver has not established a prima facie case against the homeowner. An owner of wild (dangerous) animals is strictly liable for injuries caused by those animals as long as the person injured did nothing, voluntarily or consciously, to bring about the injury. However, strict liability generally is not imposed in favor of undiscovered trespassers against landowners in the absence of negligence, such as when the landowner knows that the trespassers are on the land and fails to warn them of the animal. Here, despite the fact that the driver did not intend to enter the homeowner's land (and thus would not be liable for the intentional tort of trespass), his status on the homeowner's land is that of a trespasser rather than a licensee or invitee. The driver has presented no evidence of negligence on the homeowner's part and therefore has not established a prima facie case against the homeowner. (A) is wrong because, as discussed above, the homeowner is not strictly liable to the driver because the driver was a trespasser. (C) is incorrect because the driver will not prevail regardless of whether he was contributorily negligent, because he cannot establish a prima facie case against the homeowner in either negligence or strict liability. (D) is incorrect for several reasons: While the driver's transport of radioactive waste may have been an abnormally dangerous activity, that danger had nothing to do with the accident that occurred. Furthermore, the fact that the driver may have been engaged in an abnormally dangerous activity would not prevent him from recovering damages from another tortfeasor if he established the requisite prima facie case. Finally, the fact that the parties were engaged in activities potentially creating strict liability has nothing to do with whether issues of fact regarding liability still exist that would require denying both motions and going to trial.

Horizontal privity is present in a products liability action when the injured plaintiff is the buyer of the product rather than a family member or bystander. Which of the following is correct regarding horizontal privity in actions based on breach of implied warranties of merchantability and fitness? A Most states still require horizontal privity between the plaintiff and the defendant in all implied warranty cases B Most states extend implied warranty protection to cover any natural person who suffers a personal injury C Most states extend implied warranty protection to cover a buyer's family, household, and guests who suffer a personal injury D Most states extend implied warranty protection to any person who suffers any injury

C. For an action based on breach of an implied warranty, most states have extended implied warranty protection to cover a buyer's family, household, and guests who suffer personal injury. Thus, it is inaccurate to state that most states still require horizontal privity in all implied warranty cases. U.C.C. section 2-318 offers states three alternative versions on the issue of horizontal privity. Most states have adopted Alternative A, described above and with the most narrow protection. Only a few states have adopted Alternative B, which extends protection to any natural person who suffers a personal injury. Alternative C extends protection to any person who suffers any injury. QUESTION ID: T0079A Additional Learning

Which of the following is correct as to actual cause in a strict products liability action? A The plaintiff must provide evidence of the defect to establish actual cause B To establish actual cause against a manufacturer, the plaintiff need show only that the defect existed when he purchased the product C If the plaintiff claims lack of adequate warning, he is entitled to a presumption that he would have read and heeded a warning if provided

C. If the plaintiff claims that one of the defective conditions of a product was lack of an adequate warning, the plaintiff is entitled to a presumption that he would have read and heeded a warning if provided. To prove actual cause against a manufacturer, it is not correct that the plaintiff need show only that the defect existed when he purchased the product. Rather, the plaintiff must trace the harm suffered to a defect in the product that existed when the product left the manufacturer's control. Also, it is not required that the plaintiff provide evidence of the defect to establish actual cause. If the product has been destroyed, the plaintiff may rely on an inference that this type of product failure ordinarily would occur only as a result of a product defect. QUESTION ID: T0077A Additional Learning

In a products liability case based in negligence, a plaintiff may recover _________. A Only damages for economic losses B Personal injury damages, property damages, and damages for economic losses C Personal injury and property damages D Only personal injury damages

C. In a products liability case based in negligence, a plaintiff may recover personal injury and property damages as under the usual negligence analysis. If the plaintiff's complaint is only that the product does not work as well as expected or requires repairs (i.e., no personal injury or property damages), most courts do not permit recovery of damages for economic losses under a negligence theory; the plaintiff must bring an action for breach of warranty. Thus, only personal injury damages or only damages for economic loss are incorrect. QUESTION ID: T0073A Additional Learning

A law enforcement officer was transporting a prisoner on a plane to testify in a criminal case. Unknown to those on the plane, an assassin hired to kill the prisoner had bribed an airport baggage handler to sneak a timed-release crate of poisonous snakes into the cargo hold of the plane. Once the crate was triggered to open, the snakes were able to slither into the passenger compartment through gaps in the conduits between the cargo hold and the passenger compartment. In the ensuing panic caused by the snakes, the officer was struck in the head by a fire extinguisher that another passenger threw at a snake, and suffered a severe concussion. The officer filed suit against numerous parties, including the person who designed the conduit system on that type of plane. At trial, evidence established that the design for the conduit system that he used had been rejected in the industry because of the danger of pressure loss between the cargo hold and the passenger compartment. An industry-approved design that the designer could have used would have kept the snakes from getting into the passenger compartment of the plane. As between the officer and the designer, which party is likely to prevail? response - incorrect A The officer, because the designer is strictly liable for designing the conduit system of the plane. B The officer, because of the high degree of care owed to passengers of a common carrier. C The designer, because the assassin's actions were an unforeseeable intervening force. D The designer, because the officer was injured by another passenger rather than a snake.

C. The designer will prevail because the assassin's actions were an unforeseeable intervening force. To establish a prima facie case for negligence, the following elements must be proved: (i) the existence of a duty on the part of the defendant to conform to a specific standard of conduct for the protection of the plaintiff against an unreasonable risk of injury; (ii) breach of that duty by the defendant; (iii) the breach of the duty by the defendant was the actual and proximate cause of the plaintiff's injury; and (iv) damage to the plaintiff's person or property. The general rule of proximate cause is that the defendant is liable for all harmful results that are the normal incidents of, and within the increased risk caused by, his acts. An indirect cause case is one where the facts indicate that a force came into motion after the time of defendant's negligent act and combined with the negligent act to cause injury to the plaintiff. Whether an intervening force will cut off the defendant's liability for the plaintiff's injury and be deemed superseding is determined by foreseeability. Here, the designer, as a professional designing a component of a plane, owed a duty of care to passengers such as the officer. He breached that duty of care by using a design for the conduit system that had been rejected in the industry because of the danger of pressure loss. His breach was the actual cause of the officer's harm because, but for his use of that design, the snakes would not have gotten into the passenger compartment of the plane. However, the conduct of the assassin in causing snakes to be placed on the plane is an unforeseeable intervening force. While criminal acts of third persons may be foreseeable if the defendant's negligence increased the likelihood of the crime being committed, there is nothing to suggest that the designer's negligence had any influence on the assassin's conduct. Hence, that conduct cuts off the designer's liability to the officer for the negligent design of the conduit system. (A) is incorrect. To establish strict tort liability, the plaintiff must prove that the defendant is a commercial supplier of a product. The designer, however, provided a service of designing a conduit system in a plane; because the facts do not suggest that he is a commercial supplier of a product, he cannot be held strictly liable. (B) is incorrect. Even assuming that the designer would be held to the high degree of care that common carriers owe their passengers, the officer must still establish the other elements of the tort. As discussed above, he would not be able to establish proximate cause under these facts. (D) is incorrect because the response by the other passenger is a foreseeable "reaction" force that does not cut off the causal connection between the act and the harm. If the designer were deemed to be a proximate cause of the snakes getting into the passenger compartment, the fact that the officer's injury was caused by the reaction of another passenger rather than a snakebite would not matter.

Which of the following may prevent establishing causation against a manufacturer in a strict products liability action? response - incorrect A The retailer's labeling of the product as its own B The destruction of the product because of its dangerous defect C The failure of a retailer to take action after discovering a dangerous defect D The negligent failure of a retailer to discover a dangerous defect

C. The failure of a retailer to take action after discovering a dangerous defect may prevent establishing causation against a manufacturer in a strict products liability action. The same concepts of proximate cause that govern negligence and strict liability actions are applicable to strict liability actions for defective products. As with products liability cases based on negligence, the negligent failure of a retailer to discover a dangerous defect does not cut off the supplier's strict liability. On the other hand, when the intermediary's conduct becomes something more than ordinary foreseeable negligence, it becomes a superseding cause. Hence, the conduct of a retailer who discovered a dangerous defect and then took no action (such as alerting the manufacturer, warning the consumer, or removing the product from sale) constitutes more than ordinary foreseeable negligence and may cut off the manufacturer's liability.

A bolt of lightning struck a tree, causing it to fall on a farmer's fence which enclosed a pasture containing the farmer's large bull. The bull escaped through the broken fence and entered the neighbor's property. It gored a hiker who was crossing the neighbor's property without permission. In the hiker's action against the farmer based on strict liability, is the hiker likely to prevail? response - incorrect A Yes, because the bull caused harm while trespassing on another's property. B Yes, because bulls have known dangerous propensities. C No, because a bull is a domestic animal. D No, because the hiker was a trespasser.

C. The hiker will not prevail because strict liability does not apply to a bull, which is a domestic animal. The owner of a domestic animal, including a farm animal, is not strictly liable for injuries it causes, as long as the owner has no knowledge that the animal has abnormally dangerous propensities (i.e., propensities more dangerous than normal for that species). A bull is a domestic animal, and nothing in the facts suggests that the bull was more dangerous than normal for that type of animal. Hence, strict liability will not apply. (A) is incorrect because the rule for trespassing animals does not apply. The owner of a trespassing animal is strictly liable for harm done by the trespass as long as it was reasonably foreseeable. Here, the bolt of lightning caused the fence to break and allowed the bull to escape. This unforeseeable intervening force was the cause of the trespass; hence, the strict liability rule for trespassing animals does not apply here. (B) is incorrect because, as discussed above, strict liability does not apply for domestic animals with normal dangerous propensities. Only domestic animals with propensities more dangerous than normal for the species may subject the owner to strict liability. (D) is incorrect because the hiker's status as a trespasser on the neighbor's land is irrelevant as to the farmer's liability. If the hiker were a trespasser on the farmer's land, strict liability would not apply even if the bull were abnormally dangerous, but the farmer's liability is not affected by the hiker's status as to the neighbor. Note that if strict liability applied for harm from an animal trespassing on a neighbor's property, the hiker's status as a trespasser might be relevant because strict liability applies only to injured persons who were rightfully on the property. However, as discussed above in (A), that liability is inapplicable here because the bull's trespass was unforeseeable.

A housecleaning agency was given a key to a customer's house so that the agency could have its employees clean while the homeowner was away. After a maid sent by the agency had finished and left the homeowner's house, she went back because she had forgotten her cigarettes. She neglected to lock the door when she left the second time because she was already late for the next job. When the homeowner returned after a few days away, she discovered that her house had been ransacked and several items of jewelry stolen. The front door was open, and there were no signs of forced entry. If the homeowner brings an action against the agency that employed the maid, what is the likely result? response - correct A She will not prevail, because she is limited to claims for breach of contract based on her agreement with the agency. B She will not prevail, because the act of the burglar was an independent superseding cause of the homeowner's loss. C She will prevail, because the maid's failure to lock the door created the risk that someone might enter and take the homeowner's valuables. D She will prevail, because when the maid returned after having completed her work, she was technically a trespasser, making the agency vicariously liable for any damage she caused to the premises.

C. The homeowner will prevail because the maid's negligence increased the risk of criminal conduct by a third party. Criminal acts and intentional torts of third persons are foreseeable independent intervening forces if the defendant's negligence created a foreseeable risk that they would occur. Here, the maid's failure to lock the door was negligent because it created a risk of burglary; hence, the burglary does not cut off the agency's liability for the maid's negligence. As the maid's employer, the agency is vicariously liable under respondeat superior. (A) is wrong because there is nothing in the facts to indicate that the homeowner waived her right to bring tort claims against the agency; having a contractual relationship with a party does not automatically preclude bringing a tort action against the party. (B) is wrong because the burglary was not a superseding cause of the loss; it was within the increased risk caused by the maid's negligence. (D) is wrong because she reentered to retrieve a personal item that she had brought with her when she went to the job; her return just to get the item was within the scope of her employment and would not make her a trespasser.

Which of the following statements of law does NOT relate to proving actual cause in a strict products liability case? response - incorrect A If the defect is difficult to trace, the plaintiff may rely on an inference that such a product failure ordinarily would occur only as a result of a defect. B If the defect has inadequate warnings, the plaintiff is entitled to a presumption that an adequate warning would have been read and heeded. C The defendant cannot avoid liability by showing negligent failure of an intermediary to discover the defect. D The defect in the product must have existed when the product left the defendant's control.

C. The rule that the defendant cannot avoid liability by showing negligent failure of an intermediary to discover the defect does not relate to actual cause; rather, it relates to the proximate cause principle that negligence of an intermediary is foreseeable and not a superseding cause. Under this principle, the intermediary's negligence does not cut off the defendant's liability for supplying a defective product. The basic requirement to show actual cause is that the defect in the product must have existed when the product left the defendant's control. When a defect is difficult to establish (such as if the product is destroyed), the plaintiff may rely on an inference that such a product failure ordinarily would occur only as a result of a defect (similar to res ipsa loquitur). To show that inadequate warnings were an actual cause of the injury, the plaintiff is entitled to a presumption that an adequate warning would have been read and heeded (i.e., but for the lack of an adequate warning, the plaintiff would not have been injured).

Which of the following is not correct with regard to a products liability action based on inadequate warnings? A A warning may be inadequate even if it complies with government labeling requirements B Inadequate warnings are analyzed as a type of design defect C Warnings of dangers must always be made directly to the consumer D A product must have clear warnings for any unapparent dangers

C. While ordinarily warnings must be directed to consumers, under the "learned intermediary" rule, warnings of dangers need not be made directly to the patient as to prescription drugs and medical devices; a warning to the prescribing physician usually will suffice. With regard to inadequate warnings in a products liability action, a product must have clear and complete warnings of any dangers that may not be apparent to users. Inadequate warnings are analyzed like design defects, not like manufacturing defects. Courts will look at whether more effective warnings were feasible. A warning may be held inadequate even though it complies with government labeling requirements. A product's compliance with applicable government safety standards (including labeling requirements) is evidence—but not conclusive—that the product is not defective. Furthermore, federal labeling requirements do not preempt state products liability law on defective warnings. QUESTION ID: T0080A Additional Learning

Which of the following is correct regarding strict liability for abnormally dangerous activities? response - incorrect A To be characterized as an abnormally dangerous activity, the activity must be considered abnormally dangerous in every community B Strict liability will arise for any type of harm caused by engaging in the abnormally dangerous activity C Whether an activity is abnormally dangerous is a question of fact for the jury to decide D To be abnormally dangerous, the activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors

D. Answer Discussion - Incorrect An activity may be characterized as abnormally dangerous if it creates a foreseeable risk of serious harm even when reasonable care is exercised by all actors. Determining whether an activity is abnormally dangerous is NOT a question of fact for the jury to decide; rather, it is a question of law that the court can decide on a motion for a directed verdict. It is incorrect that strict liability will arise from any type of harm caused by the activity. The harm must result from the kind of danger to be anticipated from the abnormally dangerous activity; i.e., it must flow from the "normally dangerous propensity" of the condition or thing involved. It is also incorrect that the activity must be considered abnormally dangerous in every community. Courts generally impose a requirement that the activity must not be a matter of common usage in the community where it takes place. An activity may be considered abnormally dangerous in some areas but not in others.

Which of the following will preclude recovery in a products liability action based on negligence? A The plaintiff was a bystander who was not using the product. B The defendant only assembled the product from component parts manufactured by others. C An intermediary negligently failed to discover the defect. D The plaintiff suffered only economic loss.

D. If a plaintiff suffers only economic loss, then she will be prohibited from bringing a products liability action based on negligence. Under the usual negligence analysis, the plaintiff may recover for personal injuries and property damages. But if the plaintiff only suffers economic loss, like the product does not work as well as expected or requires repairs, she will not be permitted to recover under a negligence theory and will need to bring an action for breach of warranty. If an intermediary negligently fails to discover a defect, this will not prevent a products liability action based on negligence. The intermediary's failure is not a superseding cause in this instance, and the defendant who originally created the defect by his negligence will be held liable along with the intermediary. The intermediary's conduct, however, will become a superseding cause if it was more than ordinary foreseeable negligence. A defendant who assembles a product from components manufactured by others is liable for the negligence of the actual manufacturer, even though the assembler is not personally negligent. The fact that the plaintiff was a bystander who was not using the product will not prevent a products liability action based on negligence. The lack of contractual privity between the parties is not a defense. The duty of due care is owed to any foreseeable plaintiff, such as a user, consumer, or bystander. QUESTION ID: T0073 Additional Learning

In a products liability case based on negligence or strict liability where personal injury resulted, when may a disclaimer of liability be raised as a defense? A In strict liability actions but not in negligence actions B In both negligence and strict liability actions C In negligence actions but not in strict liability actions D In neither negligence nor strict liability actions

D. In a products liability case based on negligence or strict liability where personal injury resulted, disclaimers of liability may not be raised as a defense in either negligence actions or strict liability actions. Disclaimers of liability are irrelevant if personal injury or property damage has occurred; a plaintiff can recover under either theory regardless of the supplier's attempt to disclaim liability. QUESTION ID: T0076B Additional Learning

An investigation by the building inspector revealed that the awning collapsed because the brackets used by the contractor were cheaper and weaker than the required brackets, although they looked the same. The developer and the contractor are now both bankrupt. If the customer sues the barber for his injuries, is the customer likely to prevail? response - incorrect A Yes, because the barber had a nondelegable duty to keep the premises safe for customers and those passing by. B Yes, because the developer did not exercise reasonable care in hiring the contractor to install the awnings. C No, because the contractor assumed all of the risks from his work. D No, because the barber had no opportunity to oversee the contractor's actions.

D. The customer is not likely to prevail because the barber had no opportunity to oversee the contractor's work. A property owner owes a duty to those adjacent to the premises to take due precautions to protect them from dangerous conditions, and a business owes its customers a duty to make reasonable inspections to discover and make safe any dangerous conditions. Further, that duty cannot be delegated to an independent contractor; the owner remains vicariously liable. However, nothing in the facts establishes that the barber breached his duty to the customer. There was nothing wrong with the brackets evident from a reasonable inspection, and the awning collapsed without warning. Further, the barber was not involved in hiring or supervising the contractor and would not be responsible for the contractor's negligence. Hence, because no facts point to negligence by the barber, the customer is not likely to prevail. (A) is incorrect even though it is true that a business owner would be vicariously liable to customers and passersby injured by the negligent work of an independent contractor that he hired. Here, however, the barber did not engage the contractor and is not responsible for the contractor's conduct. (B) is similarly incorrect. While the developer arguably was negligent in hiring a contractor who does shoddy work, her negligence will not be imputed to the barber. (C) is incorrect because it is irrelevant. Had the barber hired the contractor, the fact that the contractor contractually assumed all of the risks of liability would not preclude the customer from recovering against the barber.

To prove breach of duty in a products liability action based on negligence, the plaintiff must show: A The product was dangerous because it departed from its intended design B The conduct involved was below the level of care generally exercised by the defendant C Res ipsa loquitur D The defendant supplied a defective product

D. To prove breach of duty in a products liability action, the plaintiff must show (i) negligent conduct by the defendant leading to (ii) the supplying of a defective product by the defendant. Negligent conduct is demonstrated by showing that the defendant's conduct fell below the standard of care expected of a reasonable person under like circumstances, not the level of care generally exercised by the defendant. To show negligence in a manufacturing defect case, the plaintiff may invoke res ipsa loquitur, but it is not required that the plaintiff prove res ipsa loquitur in establishing breach of duty. A plaintiff may show that a product was dangerous because it departed from its intended design to establish a manufacturing defect, but may instead show that the design itself is deficient (to establish a design defect). QUESTION ID: T0072A Additional Learning

Which of the following is correct regarding a products liability case based on intent? A The intentional tort on which the cause of action most likely will be based is assault B Punitive damages are available in a products liability case based on an intentional tort C Privity becomes relevant when products liability is based on an intentional tort D Products liability based on an intentional tort is a common cause of action

Punitive damages are available in a products liability case based on an intentional tort, in addition to compensatory damages, to the same extent as with intentional torts in general. Products liability based on an intentional tort is NOT very common. A defendant will be liable to anyone injured by an unsafe product under an intent theory if he intended the consequences or knew that they were substantially certain to occur. This is not often the case; other theories of liability are more common. The intentional tort on which the cause of action most likely will be based is NOT assault. If the requisite intent on the part of the defendant is established, the cause of action will most likely be based on battery. The presence or absence of privity is irrelevant where liability is based on an intentional tort. A defendant will be liable to anyone injured by an unsafe product if the defendant intended the consequences or knew that they were substantially certain to occur, even if the parties are not in contractual privity. QUESTION ID: T0070A Additional Learning