CH 5-6

•Actual Cause

- It must be true that "but for defendant's negligent act, injury would not have occurred." •E.g., if plaintiff was in poor health and likely would have had the heart attack whether or not he had taken the defendant's drug product, the drug is not the actual cause, and therefore, defendant shall not be held liable. -If two or more persons are liable for negligently causing injuries, they can all be liable if each was a substantial factor in causing the injury.

Breach of Duty

- a failure to exercise care or to act as a reasonable person would act. E.g., driver exceeding speed limit, camper throwing lit match on ground in forest, or surgeon failing to "scrub up" before surgery

•Res Ipsa Loquitur

-"The thing speaks for itself" -Defendant had exclusive control of situation that caused plaintiff's injury -Switches burden to defendant to prove that he or she was not negligent. -Injury would not have ordinarily occurred but for someone's negligence •E.g., surgical instrument left inside patient after surgery, or crashing elevator

Uninentional Torts

-A person is liable for harm that is the foreseeable consequence of his or her actions.

•Negligent Infliction of Emotional Distress

-A tort that permits a person to recover for emotional distress caused by the defendant's negligent conduct. -Some states require physical manifestation.

•Supervening Event

-Alteration or modification of a product by a party that absolves seller from strict liability. -Modification must be made after it leaves seller's possession. -Alteration must cause injury.

•Greenman v. Yuba Power Products, Inc., (1963)

-California is the first state to adopt doctrine of strict liability in tort as a basis for product liability actions. -Removes many of the difficulties for the plaintiff associated with relying on a negligence theory.

•Causation

-Causation in Fact (actual cause) and -Proximate Cause (legal cause)

•Generally Known Dangers

-Certain products are inherently dangerous. •E.g., guns, knives -Products known to the general population to be so. -Sellers are not strictly liable for failing to warn of generally known dangers.

Negligence

-Defendant breached a duty of due care to the plaintiff that caused the plaintiff's injuries. •E.g., negligent product design, failure to assemble properly, failure to inspect, failure to warn. • -Difficult theory to base a product liability action on.

•Assumption of Risk

-Defendant must prove that plaintiff knew and appreciated the risk, and -Plaintiff voluntarily assumed the risk. -Narrowly applied in strict liability cases.

•Proximate Cause

-Defendant not necessarily liable for all damages set in motion by his or her negligent act. -Liable only for foreseeable consequences. •Example: Palsgraf case (NY Ct of Appeals - 1928, pg. 95) Limitation on negligence.

•Intentional Infliction of Emotional Distress

-Defendant's extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another person. •E.g., outrageous collection agency practices -Also known as tort of outrage. -Requires more than an annoyance, rough language or occasional inconsideratre conduct.

•Malicious Prosecution

-Frivolous lawsuit maliciously brought. -Prevailing defendant sues original plaintiff to recover damages for injuries. -Elements: lawsuit started without probable cause ended in favor of defendant who suffered harm fom suit. -Difficult to prove. -NJ Frivolous Litigation Statute and NJ Court Rule.

•False Imprisonment

-Intentional confinement or restraint of another person without authority or justification and without that person's consent. •Physical force •Barriers •Threats of physical violence •False arrest -Threat of future harm or moral pressure not enough. -Must be complete imprisonment. •Locking only one of several doors not sufficient.

•Correction of a Product Defect

-Manufacturer must notify purchasers and users, and offers to correct defect by repair or replacement. •Letters, notices in newspapers -If user ignores notice, manufacturer has defense against product liability.

Duty of Care

-Obligation not to cause any unreasonable harm or risk of harm.

•Negligence

-Omission to do something which a reasonable person would do, or doing something which a prudent and reasonable person would not do.

•Doctrine of Transferred Intent

-Party A intends to harm party B, but actually injures Party C. -Law transfers perpetrator's intent from target to actual victim. -Party C can properly sue perpetrator.

•Injury to Plaintiff

-Personal injury or damage to property. -If defendant acted negligently but plaintiff luckily suffered no injury, there shall be no recovery in negligence. -Damages. What is the appropriate measure?

•Misuse of the Product

-Relieves the seller of product liability if the user abnormally misused the product. •Unforeseeable misuse. -Products must be designed to protect against foreseeable misuse. •E.g., toy manufacturers must foresee that babies will put small items in their mouths, which could cause choking.

•Misrepresentation

-Seller or lessor fraudulently misrepresents the quality of a product or conceals a defect in it. -Recovery limited to persons who relied on the misrepresentation. -Not often used as basis for a product liability action.

Special Negligence Doctrines •Professional Malpractice

-The liability of a professional who breaches his or her duty of ordinary care. -Reasonable professional standard •Medical malpractice •Legal malpractice •Accounting malpractice

Rationale:

-There are certain activities that can place the public at risk of injury even if reasonable care is taken. -The public should have some means of compensation if such injury occurs.

•Assault

-Threat of immediate harm or offensive contact; or -Any action that arouses reasonable apprehension of imminent harm. Actual physical contact is unnecessary

•Battery

-Unauthorized and harmful or offensive physical contact with another person. -Direct physical contact between victim and perpetrator unnecessary. •E.g., throwing a rock, poisoning a drink is Battery. -May accompany assault.

•Liability Without Fault

-Unlike negligence, strict liability does not require the injured person to prove that the defendant breached a duty of care. •May be liable even though exercised all possible care. •May not be disclaimed. -Does not focus on the behavior of the defendant but rather the product itself.

•Negligence Per Se

-Violation of a statute that proximately causes an injury -Plaintiff must be within class intended to be protected -Statute enacted to prevent the type of injury suffered -Example: maintenance of sidewalk

•Intentional Misrepresentation (Fraud or Deceit)

-Wrongdoer deceives another person out of money, property, or something of value. Injured party can recover damages

•False Imprisonment (continued) Merchant Protection Statutes

-may stop, detain, and investigate suspected shoplifters if: •There are reasonable grounds for suspicion, •Suspects are detained for only reasonable time, and •Investigations are conducted in reasonable manner.

5 Most Common Types of Defects

1)Defect in Manufacture 2)Defect in Design 3)Defect to Warn 4)Defect in Packaging 5)Failure to provide adequate instructions

•Good Samaritan Laws

Protects medical professionals who stop and render emergency first aid •Relieves them from liability for ordinary negligence •No relief for gross negligence or intentional or reckless conduct

•Reasonable person standard.

How would an objective, careful & conscientious person have acted in same situation?

Product Liability - Caveat emptor

Products liability litigation forces the manufacturers, sellers and lessors of defective products to accept responsibility for the injuries caused by their goods.

-Tort damages

are monetary damages that compensate the injured party.

Punitive damages

available for certain torts.

Defendants with a particular expertise or competence are measured against a __________

reasonable professional standard.

Intentional Torts Against Persons

1. Assault and Battery 2. False Imprisonment 3. I•Doctrine of Transferred Intent 4.•False Imprisonment 5. •Defamation of character 6.•Intentional Misrepresentation (Fraud or Deceit) 7. •Intentional Infliction of Emotional Distress 8. •Malicious Prosecution

Categories of Torts

1. Intentional Torts 2. Negligence/ Unintentional 3. Strict Liability

Unintentional Torts

1. Negligence 2. Duty of Care/ Breach of Duty 3. •Injury to Plaintiff

fault based theories

1. Negligence 2. •Misrepresentation

Defenses to Product Liability

1. •Generally Known Dangers 2. •Misuse of the Product 3. •Assumption of Risk 4. •Correction of a Product Defect 5. •Supervening Event

Strict Liability

1. •Liability Without Fault

•Injured party brings ___________ to seek compensation for a wrong done to the party or the party's property.

civil lawsuit

Intent is _________

immaterial

Strict Liability •Liability without fault.

•A participant in a covered activity will be held liable for any injuries caused by the activity, whether or not he or she was negligent. •For abnormally dangerous activities -E.g., crop dusting, storage of explosives, wild animals as pets.

Superseding or Intervening Event

•An event for which defendant is not responsible -E.g., victim of car accident waiting for ambulance killed by bolt of lightning

Strict Liability Plaintiffs

•Any injured party. -Privity of contract not required. -Recovery possible even if the injured party had no contractual relations with the defendant. •E.g., injured bystander

Crashworthiness Doctrine

•Automobile manufacturers have duty to design automobiles taking into account the possibility of harm from a person's body striking something inside the automobile in case of a car accident.

Strict Liability Damages

•Damages for personal injuries available in all jurisdictions. •Punitive damages generally allowed if defendant either: -Intentionally injured plaintiff, or -Acted with reckless disregard.

Failure to Warn

•Defect that occurs when a manufacturer does not place a warning on the packaging of products that could cause injury if the danger is unknown. •Proper and conspicuous warning insulates all in chain of distribution.

Defect in Design

•Defect that occurs when a product is improperly designed. •Examples: -Toys designed with removable parts that could be swallowed by children. -Machines and appliances designed without proper safeguards. -Trucks designed without a backup warning device. •In evaluating the adequacy of a product's design, courts apply a risk-utility analysis -Gravity of the danger posed by the design -Likelihood that injury will occur -Availability and cost of producing a safer design -Social utility of the product compared to risk of injury.

Defect in Manufacture

•Defect that occurs when manufacturer fails to: -Properly assemble a product -Properly test a product, or -Adequately check the quality of a product. •E.g., screw in ladder not inserted as usual, or mouse found in soft drink bottle.

Elements of Intentional Misrepresentation

•Defendant made a false representation of material fact. •Defendant knew representation was false and intended to deceive. Also includes reckless disregard for the truth. •Plaintiff justifiably relied on misrepresentation. Plaintiff actually injured.

Tort

•French for "wrong." •Tort law provides recourse for variety of injuries and provides remedies for them.

Statute of Repose

•Limits manufacturer's and seller's liability to a certain number of years from date when the product was sold. •NJ - 10 year statute of repose

Defect in Packaging

•Manufacturers owe a duty to design and provide safe packages for their products. −E.g., make package sufficiently tamperproof. •Failure to meet this duty subjects all in chain of distribution of the product to strict liability.

Liebeck vs McDonald's Restaurants

•New Mexico District Court (1994)

Statute of Limitations

•Plaintiff must bring action within a certain number of years from the time that he or she was injured by the defective product. •Limitation period set by each state. •Defendant relieved of liability if action not brought within limitation period.

Assumption of Risk

•Plaintiff who voluntarily participates in risky activity assumes the normal risks of that activity. -E.g., race car driver assumes risk of being killed in crash.

Contributory Negligence

•Rule in a few states. •Plaintiff who is partly at fault for his or her own injuries cannot recover.

Comparative Negligence

•Rule in most states. •Damages apportioned according to fault. -Pure comparative negligence, or -Partial comparative negligence (50% rule)

Strict Liability Defendants

•Sellers and lessors engaged in business of selling or leasing products. -All parties in the chain of distribution -All manufacturers, distributors, wholesalers, retailers, lessors, and subcomponent manufacturers -NOT for non-merchants •E.g., selling to neighbor at garage sale -Does not apply to services (hybrid - dominant element of transaction governs)

Failure to provide adequate instructions

•Sellers must provide adequate instructions for safe assembly and use of products sold.

Elements of Negligence

•The defendant owed a duty of care to the plaintiff. •The defendant breached the duty of care. •The plaintiff suffered injury. •The defendant's negligent act caused the plaintiff's injury.

defective product

•To recover for strict liability, the injured party must first show that the product that caused the injury was somehow defective. •Plaintiff can allege multiple product defects in one lawsuit.

•Defamation of character

•Untrue statement of fact, not opinion •Publication of statement •If written, constitutes Libel. •If spoken, constitutes Slander. •Truth is an absolute defense. •Public figure requires actual malice.