SM 426: Chapters 1-5

For liability to be found....

... The breach must be the cause of the injury

For the court to find negligence....

...Substantial damage must exist

Under product liability...

...the manufacturer, wholesaler, retailer, supplier, and vender are liable for placing a defective product (that might cause injury) on the market

When is a person held to a duty to warn (Wittenberg)

1) Conspicuous 2) Specific 3) Forceful

Five elements of negligence

1) Duty 2) Breach of Duty 3) Factual Cause 4) Scope of liability (foreseeability) 5) Damage

Three different legal duties / standards of care

1) Reasonable person 2) Special Relationship 3) Professional standard

When negligence is based on violation of a statute...

1) Was the statute designed to protect the type of conduct the actor violated? 2) Is the accident victim within the class of persons that statute was designed to protect?

Elements of fraud & deceit

1) a false representation of a material fact 2) knowledge that the fact is false 3) Intention to induce the other party to rely on the representation 4) the other party's reliance on the representation 5) substantial damage as a proximate result of the other party's reliance

Warranty

A guarantee by a manufacturers, wholesaler, or retailer to a buyer that the product will perform according to identified standards for a specified period of time

Special Relationship

A special relationship that creates a distinct standard of care (ex Parent or Teacher). Exception to the "no duty to rescue" rule is parents with children

Assault

Apprehension/belief that one will experience imminent contact; does NOT require physical contact

Implied warranties

Assumed by users exist at the time the person contracts for an article/good Include merchantability and fitness for a particular purpose

Risk management processes'

Can be used to establish foreseeability

Design defect

Category of product detect When product is built it has a design flaw that will subject the user to unreasonable harm Original plans are flawed Could be all products of just a few random ones

Manufacturing defect

Category of product detect Unreasonably unsafe product created in the construction profess, improper construction of product or the improper assembly of parts Could be all product or just a few random ones

Hazing

Civil or criminal

Product liability

Concern to manufacturers, retailers, and sellers of sport and physical activity equipment Historically product liability = strict liability

Common defenses for negligence

Contributory negligence, assumption of risk, comparative fault/ comparative negligence

Defenses to product liability:

Contributory negligence, assumption of risk, misuse, and Uniform Commercial Code (UCC) disclaimers

Self-defense

Defense to intentional tort Permits a person who is under attack to take reasonable steps to prevent harm to him/her self or to others

Necessity

Defense to intentional tort Privilege due to unusual circumstances to harm a person or property even through the person or property has done nothing wrong

Consent

Defense to intentional tort When reasonable person does not object to or attempt to stop the actions of another (implied or verbal)

Recklessness

Describes a significantly high level of risk of which the actor is aware. Person acts reckless if: 1) persons knows the risks and the risks are made obvious 2) precaution that would eliminate or reduce the risk involves burdens that are so slight relative to the magnitude of the risk as to render the person's failure to adopt the precaution a demonstration of the person's indifference to the risk

Professional

Established when a body of professional knowledge exists and a recognized level of performance is adhered to by members of that profession Duty is held higher than the reasonable person

Misrepresentation

Falsely denying knowledge of the facts Actively concealing the facts Disclosing only parts of the facts Providing a false picture

Compensatory Damages

Fees paid for medical expenses, property repair, lost wages, pain/ emotional suffering, loss of property, loss of bodily functions, and bills towards incident

Open and Obvious

For sports, Water. Land whose danger is known of obvious to them, unless the possessor should anticipate the harm despite such knowledge of obviousness

Immunity

Freedom from liability/suit Found most in government entities Includes: federal, state, local government, Good Samaritan, hazardous recreation activity, and volunteer law

Licensees

Given less care, person who is on the land with the owners consent but does not have a business purpose for being on the land

Invitees

Greatest protection, person who has either expressly or impliedly been invited onto land of another for an economic benefit to the person who owns the land

Recreational Use Statutes

If someone participates in hazardous activity, public entity & employees aren't liable Skiing

Intentional Interference (with property damage)

Includes trespass to land, to chattel (possessions), and conversion. Substantial damage is not required

Contributory negligence

Injured person is responsible for part of their injuries, has a duty to protect one's self from injury. has CONTRIBUTED to harm

Intentional Tort

Injuries caused by a deliberate act "the person acts with the purpose of producing a consequence or the person acts knowing that the consequence is substantially certain to result" Ex. person hitting another competitor in the heat of the moment

Battery

Intentional, harmful, or offensive contact with another person without their consent. Physical contact but be intentional, doesn't need to have to have intent to injure

Persons entering land are classified as...

Invitees, Licensees, or Trespassers

Governmental immunity

Law encourages risk management and appropriate insurance to cover potential risks

Knowlege and Appreciation

Need to know when involved in a dangerous situation, not based on a reasonable person standard but for a tailored individual

Are services covered under product liability?

No

Do professionals need to provide emergency care

No , but in some cases can still be found in breach of their duty if a client is injured

Punitive Damages

Not found that often in negligence Used to punish party for damages and award is to deter the person/ agency from doing that again

Breach of an express warranty

Occurs when the plaintiff is injured and the seller or manufacturer made statement of facts about the product that were false

Volunteer Immunity

Only used for negligence, not existent in recklessness Transfers the responsibility for the incident from non-paid staff to the facility

Trespassers

Owed lowest duty (zero duty), goes on someones land without permission and without knowledge of the land owners

Intentional Tort vs. Criminal Law

Purpose of intentional tort law is to vindicate and honor the victim while enforcing appropriate standards of care Purpose of criminal law is to support the states interest in deterring crime Litigation in tort law is between individuals or individuals agencies Litigation in criminal law is the state or federal government bringing a cause of action against an individual or agency

instructions

Show how the product is used and information about some potentially harmful issues with the products Includes: assembly, cleaning, periodic inspection, routine care, and method of repair

Express Consent

Signed agreement between participant and the service provider that meets the standard of a contract and can relieve the provider of a lawsuit for negligence Plaintiff assumes the risks and agrees prior to the time Under this agreement the plaintiff: -knows that the risk exists -understand the nature of the risk -freely chooses to incur the risk

Good Samaritan

State statutes that provide immunity from suit for negligence for person who administers emergency care to another Sport law: physicians & other emergency care personnel are exempt from negligence for assistance in practices/games

42 USC 1983

Statue often used in civil rights cases that permits tort claim for deprivation of federal rights under the color of state law. Victims can use it in place/or in addition to intentional torts to gain personal rights

Comparative negligence/ comparative fault

System in which the percentage of responsibility of the injured party and the percentage of responsibility that contributed to harm are balanced in a formula

Foreseeability

The capacity of the defendant to anticipate an accident or incident

In criminal law who is charged?

The person, with a crime

False Imprisonment

Unjustified, unlawful, and intentional confinement, restraint or detention of a person within a specific boundary against the persons will. Not a need for substantial damage

Implied Consent

WITHOUT signing a contract, defendant is not relieved of a responsibility, it's a split percentage

Reasonable Person

What the average adult would have done,

Warnings

When manufacturers/sellers become aware of a dangerous product they have to warn users about the dangers involved with it When the danger is not apparent, there IS a duty to warn the user of the product Need to be tailored to the specific skill level of the performer

Wavier of liability

When party agrees to encounter the risks, signs a statement acknowledging their understanding of the risks Specific/ clear Only adults can enter a contract, parents can't sign away rights of their children

Primary assumption of risk

When party or potential plaintiff voluntarily participates in a sporting event/ activity Relieves the defendant of fault

Secondary assumption of risk

When party voluntarily participates in a risky activity, has not consented to relieve the defendant of the duty of care, and the defendant breaches a duty of care owned by the plaintiff Not a bar to recovery (not removed, but reduced)

Assumption of risk

When the injured party becomes responsible for some part of the risk in the activity, as a result of assuming the risk, assumes liability for part of the damages

Attractive Nuisance

When the trespasser is minor, no defense is available

Express warranties

Written statements about the product, statement of description of the product