Chapter 9 - Negligence, Strict Liability, and Product Liability

Strict Product Liability

Manufacturer, Distributor, or Retailer may be liable to any foreseeable injured party

Risk-Utility Test

This test weights the benefits for society against the dangers that the product poses.

res ipsa loquitur

"the thing speaks for itself"

Known trespassers and Licensees

Which two types of guests share the same duty of care?

1. Intentional Misrepresentation 2. Negligent Misrepresentation

2 breaches to the professional's special duty of care are:

Licensee

A person on another's land for her own purposes but with the owner's permission

trespasser

A person on another's property without consent

Invitee

A person who has a right to enter another's property because it is a public space or a business open to the public

Assumption of the Risk

A person who voluntarily enters a situation that has an obvious danger cannot complain if they are injured

No, if they don't know about the danger then they are not liable.

Do landowners have a duty of care to licensees about dangers they are not even aware of?

Children are held liable to an adult standard of care only if they are engaging in an adult like activity

At what time do we hold children liable to an adult standard?

No

Does Strict Liability look at foreseeability?

No

Does Virginia have Social Host Liability?

whether or not the defendant was engaged in an ultra-hazardous activity

Because "strict liability" translates into "defendant is liable", parties in these tort cases often fight over what instead?

No

Does Virginia have the Dram Shop Act?

No (this is where the book mentions VT shooting)

Does a business landowner typically have the obligation to protect against the wrongdoing of a third person?

No, they have no duty of care. They are only liable for intentionally injuring them or for some other gross misconduct.

Does a landowner have liability to an adult trespasser for mere negligence? When do they have liability?

If there is some manmade thing on the land that may be reasonably expected to attract children, the landowner is probably liable for any harm unless there has been warning of some sort (informing the children if you know they trespass, or roping the area off, etc.)

Does a landowner have liability to children trespassers?

No

Does a plaintiff who can show negligence per se need to prove a breach of duty?

No

Does a product manufacturer have a duty to warn about obvious dangers?

Licensees

For landowner's duty of care, they have a high liability for _________________________.

Trespassing children

For landowner's duty of care, they have a mid-level liability for ______________________________________.

Invitees

For landowner's duty of care, they have the highest liability for ______________________.

Trespassing adults

For landowner's duty of care, they have the lowest liability for ________________________________.

Proximate cause

For the defendant to be liable for negligence, the type of harm must have been reasonably foreseeable, which is referred to as ____________________ cause.

That it did NOT cause the harm

If a court uses the doctrine of res ipsa loquitur, then the defendant must come forward with evidence establishing what?

Prove all elements of normal negligence

If the court rules in a strict liability case for ultra-hazardous activities that the activity WAS ultra-hazardous, the plaintiff is assured of winning. But, if the court rules that it was NOT ultra-hazardous, what must the plaintiff then do?

No

In a case involving ultra-hazardous activities, does the plaintiff have to prove duty of care, breach of that duty, or foreseeable harm?

Factual Cause

In a negligence case, if the defendant's breach led to the ultimate harm of the plaintiff, then it is the ____________________ cause.

compensatory damages

In negligence cases, only _________________________________________ are awarded. Punitive damages are only for intentional torts and recklessness, not for negligence.

Foreseeable

In proximate causation, for a defendant to be found liable for negligence, the type of harm must have been reasonably __________________________ and the harm must have been within the scope of the duty.

1. Statues of Limitations 2. States of Repose

In tort cases, the passage of time provides a seller with what two possible defenses?

Pure Contributory Negligent State

Is Virginia a contributory negligent state, a comparative negligent state, or a modified state?

Strict Liability

Liability is automatically attached as long as the Defendant is the factual cause of an injury (works to accomplish policy goals that acts a deterrent of dangerous or heinous acts, and the acts are typically defined/statutory)

50 percent

Many comparative negligence states do NOT permit a plaintiff to recover anything if they were more than ________% responsible for their own injury.

A social guest

Most common type of licensee

By convincing the jury that they would not have behaved as the defendant did and indeed that no reasonable person would have.

Normally, how does the plaintiff prove the "breach of duty" element of negligence?

Plaintiff to the Defendant

Res ipsa loquitur dramatically shifts the burden of proof from the ___________________ to the _____________________.

1. The defendant has exclusive control of the thing that caused the harm 2. The harm normally would not have occurred without negligence 3. The plaintiff had no role in causing the harm

Res ipsa loquitur only applies when what 3 things check off?

True

T/F: A defendant engaging in an ultra-hazardous activity is almost always liable for any harm that results

True

T/F: When looking at a reasonable standard, a person's life is always worth more than property

"But-For"

The "__________________" standard is a way to measure factual cause and says that the harm would not have happened but-for defendant's conduct and so the conduct is the factual cause of the harm

"reasonable person"

The "________________________________________" rule is irrelevant in a strict liability case.

Statute of Repose

The _____________________________________________ places an absolute limit on when a lawsuit may be filed, regardless of when the defect is discovered.

Statute of Limitations

The _____________________________________________ requires that a lawsuit be brought within a specific period. (this time varies state to state, and begins when the defect is discovered or should have been discovered)

res ipsa loquitur

The facts imply that the defendant's negligence caused the accident.

1. Would a reasonable person foresee that injury could occur? 2. Would a reasonable person have recognized additional acts necessary to prevent an unreasonable risk of harm?

The reasonable person standard is an objective standard that answers what 2 questions?

1. All reasonable care was exercised 2. There was no contractual relation, meaning privity (a contractual agreement) is not required, and the plaintiff could sue anyone in the chain involved in the defective product, i.e. manufacturer, distributor, wholesaler, store, etc.

The rules for strict product liability applies, even though: (2 things)

Dram Shop Act

This Act determines when a business can or sued or held liable for serving a guest alcohol

Intentional Misrepresentation

This breach of duty for professionals like accountants/auditors states that the professional is liable to not only their client, but also those who could be foreseen to rely upon the misrepresented facts

Negligent Misrepresentation

This breach of duty for professionals states that the professional had a duty to act as a reasonable professional would under like circumstances. This duty is laid out in a contract. Liability is often limited to just the party in a contract with and not third parties.

Breach of Duty

This element of negligence states that is a legal duty of care exists, a plaintiff must show that the defendant did not meet it.

Damages

This element of negligence states that the plaintiff must persuade the court that he has suffered harm that is genuine, not speculative.

Failure to Warn

This is a claim that the manufacturer for a product is liable for failing to warn the purchaser or users about the dangers of normal use and also foreseeable misuse

Negligent Manufacture

This is a claim that the product design was adequate, but that the failure to inspect or some other careless conduct caused a dangerous product to leave the plant.

Negligent design

This is a claim that the product injured the plaintiff because the manufacturer designed it poorly. (the product must be designed free of unreasonable risks)

Negligent Hiring

This is when a company could be liable for the actions of an employee if it "knew or should have known" of an employee's potential harm (i.e. criminal past, driving license, etc.)

Consumer Expectation Test

This test finds the manufacturer liable for defective design if the product is less safe than a reasonable consumer would expect.

Retention of Dangerous Workers

Threats by an employee to a co-worker that are not addressed by the company, may make the company liable for any subsequent actions of the threatening employee

1. Duty of Due Care to the Plaintiff 2. Breached their duty of care 3. Factual Cause (Defendant's conduct caused plaintiff's injury) 4. Proximate Cause (it was foreseeable that conduct like the defendant's might cause this type of injury) 5. Damages (plaintiff was injured)

To win a negligence case, a plaintiff must prove these 5 elements:

If the product is proven to be unavoidably unsafe (meaning there is no other way to make the product and it cannot be made safer), then the company should not be held liable. (prescription drugs are the example)

Unavoidably unsafe products propose an exception to the strict liability case because why?

Comparative Negligence

Under _______________________________________________, a plaintiff may generally recover even if she is partially responsible for the damage caused.

Contributory Negligence

Under ________________________________________________, if the plaintiff is even slightly negligent or responsible for the damage, she recovers nothing.

"unintentional"

We might call negligence the "______________________" tort because it concerns harm that arises by accident.

1. The product caused the plaintiff or plaintiff's property injury 2. Injury was caused by the defective product 3. The product was defective when it left the defendant and did not change substantially before use by plaintiff

What 3 things must the plaintiff prove in a strict product liability case?

1. Contributory vs. Comparative negligence 2. assumption of risk

What are the 2 defenses to Negligence?

1. ultra-hazardous 2. strict product liability

What are the 2 types of strict liability?

1. Manufacturers must internalize the external costs they impose upon society (requires a manufacture to weight the costs of producing a defective product) 2. Protect consumers from unsafe products 3. Incentivizes sellers to use reputable manufacturers and processes

What are the 3 purposes of strict product liability?

1. Negligent Design 2. Negligent Manufacture 3. Failure to Warn

What are the 3 types of negligent product liability claims?

1. Strict Liability - prohibits defective products whether the defendant acted reasonably or not 2. Negligence - concerns unreasonable conduct by defendant 3. Warranty - assurance provided in sales contract

What are the 3 types of product liability (goods that have cause injury) claims?

1. Defendant Manufacturer or seller owned a duty of care to the plaintiff 2. Defendant breached that duty of care by supplying a defective product 3. The breach of duty caused plaintiff's injury 4. Plaintiff suffered injury

What are the 4 elements to negligent product liability?

1. The value of the product 2. The gravity or seriousness of the danger 3, The likelihood that such danger will occur 4. The mechanical feasibility of a safer alternative design 5. the adverse consequences of an alternative design

What are the 5 factors considered when using the risk-utility test?

For Tort Reform: They believe that jury awards are excessive and need reform that will limit damages on tort actions Against Tort Reform: They believe tort reform is dangerous to society and that the "real" goal of tort reform is to free irresponsible corporations from any potential liability, enabling them to save money while injuring innocent people

What are the two sides of Tort Reform?

1. Consumer expectation test 2. Risk-utility test

What are the two tests used to determine defective design and warning issues for manufactures in courts?

Factual and Proximate

What are the two types of causation (plaintiff must show that the defendant's breach of duty of care caused the plaintiff's harm)

A licensee is entitled to a warning of hidden dangers that the owner knows about. However, the landowner is only liable for HIDDEN danger - the landowner has no duty to warn guests of obvious dangers.

What duty of care does a landowner have to licensees?

2 years from the time the defect was discovered or should have been discovered

What is the Statue of Limitations in VA for Product Liability Cases?

2 years from accrual (at the time the injury is suffered)

What is the Statute of Limitations in VA for Personal Injury?

1 year

What is the Statute of Limitations in VA for defamation?

In negligent product liability cases, the injured buyer must demonstrate that the seller's conduct was unreasonable. In a strict product liability case, the injured person only has to prove that the defendant manufactured or sold the product AND that it was defective AND that the defect cause harm

What is the difference between the burden of proof for strict product liability vs. negligent product liability?

With social guests (Licensees), you must have actual knowledge of some specific hidden danger to be liable. For invitees, you are liable even if you had no idea that something on your property posed a hidden danger. (this is why regular inspections are so important for businesses)

What is the difference in the duty of care for landowners to give to licensees vs. invitees?

The doctrine does not apply if someone is injured in a way that is not an inherent part of the dangerous activity

What is the major exception for the assumption of risk?

Negligence per se

When a legislature sets a minimum standard of care for a particular activity, in order to protect a certain group of people, and a violation of the statue injures a member of that group, the defendant has committed ________________________________________.

If they go into an area of the business where guests aren't allowed (behind cash register, kitchen, etc.)

When is the only time that an invitee or business visitor would be liable?

superseding cause

When one of the "dominoes" in the row is entirely unforeseeable, courts will call that event a ___________________________________________, letting the defendant off the hook

future

When plaintiffs must prove the damages element for a negligence case, the most difficult suits to measure damages are ones involving _________________ harm.

Deadly

You cannot defend property with a ________________ force.

Unknown ; Known

You owe no duty of care to ________________ trespassers, but you do owe a duty of care to _______________ trespassers.

Professionals

______________________ have a special duty of care to act how a reasonable person in their profession would act.

Ultra-hazardous

______________________________ activities include using harmful chemicals, operating explosives, keeping wild animals, bring dangerous substances onto property, and few similar activities where the danger to the general public is especially great and cannot be eliminated no matter how much care is exercised

Duty of Due Care

________________________________________ says that each of us has a duty to behave as a reasonable person would under the given circumstances

Social Host Liability

is created by a statute or case law that imposes liability on social hosts as a result of their serving alcohol to adults or minors.