Torts II - Products Liability - Negligence

Products liability - general rule

A manufacturer is strictly liable when he places a product in the market, knowing it will be used without inspection for defects, but which has a defect that causes injury to a human being.

Negligence - Definition

A defendant is liable for negligence when the defendant falls below the standard of care set by law to protect others from an unreasonable risk of harm.

Elements of Negligence

1. Duty

2. Breach

3. Evidence

   1. Direct

   2. Circumstantial

   3. Res ipsa (NOT AVAILABLE FOR SPL)

4. Actual cause

5. Proximate Cause

6. Damages

Duty—Definition

Duty is based on a standard of care which requires one to act reasonably under the same or similar circumstances.

Duty - Reasonably Prudent Person

The duty is what a reasonable person (a mentally competent adult) knows or should have known under the circumstances.

PP:

1. Cannot be wilfully blind—which is deliberate avoidance of knowledge of a wrongdoing, especially by failing to make a reasonable inquiry into the suspected wrongdoing despite being aware of it being highly probable

2. Cannot argue ignorance because you have a duty to find out.

Duty - Custom

This is a customary practice usually held to within a workplace or a specific profession.

1. If the custom is fairly well defined in the same calling or business, the actor may be charged with knowledge of it or negligent ignorance

   1. Proof of common practice aids in formulating a general societal expectation as to how individuals within the same business/profession will conduct themselves

2. Judge decides if there is a custom

3. Jury decides if custom applies

4. If it violates a company policy, there may still be a showing of negligence

PP:

1. Value of custom is that it reflects the judgment, experience, and conduct of many.

Duty - Reasonably Prudent Person in an Emergency

This is what a reasonably prudent person acting under exigent circumstances would or would not do.

Emergency must be:

1. Unforeseen

2. Sudden

3. unexpected

Individual must be:

1. Acting as an ordinary, reasonable person in an emergency

2. Emergency must not be of his or her own making

Individual does not have to be brave or unerring. Must act reasonably.

PP:

Someone does not have to exercise reasonable judgment in exigent circumstances, because it is expected that human beings have an inclination towards preserving their own lives.

Duty - Disability

Standard is that of a reasonable person with the same or similar disability.

Held to a standard they can conform to based off their disability, rather than a standard they are unable to reach.

With Handicap

• Must act like a reasonable person with same handicap

Mental Disability

• Mentally ill are held to the standard of a reasonably prudent person

• Mental illness not taken into account unless there is a sudden onset or attack of mental illness that affect’s one’s reasonableness without warning

  • Majority: mental illness not a defense

PP:

An individual w/ a disability is entitled to live in a world and have allowance made by others for his condition. He cannot be required to do the impossible by conforming to physical standards he cannot attain.

Duty - Reasonable Child of Like Age

Held to the standard of children of a like age, intelligence, maturity, training, and experience

Exception: Unless a child is engaged in an inherently dangerous or adult activity, then teh child is held to an adult standard of care.

Public Policy:

• Children expected to be children, but they cannot engage in adult activity and then claim they are not liable because they are children

• Hazardous to public

Duty - Professional Standard

Held to the standard of that of an ordinary member of that specific profession, rather than the standard of an average person.

Breach - Defintion

Breach occurs when the defendant fails to conform to the standard of care established by law.

6 Theories of Breach - (1) Inherent Dangerousness

If an implement is inherently dangerous, the defendant is liable for negligence.

If the item is dangerous in and of itself, the defendant has breached a duty.

6 Theories of Breach - (2) Omission

Doing something a reasonable person would do or would not do under the given circumstances. Reasonable people consider the average circumstances before acting.

If something occurs outside those circumstances, they are not liable.

6 Theories of Breach - (3) Foreseeability

Foreseeability is the ability to anticipate the consequences.

6 Theories of Breach - (4) Risk-utility Test

*need to update

6 Theories of Breach - (5) Cost/Benefit Analysis

Cost outweighs benefit - No liability

Benefit outweighs cost - Liability

6 Theories of Breach - (6) Learned Hand Theory

B<P x L

Burden < Probability of injury x magnitude of injury - Liability

B = Probability x Magnitude = No liability

B > Probability x Magnitude = No liability

If burden is slight, but magnitude of injury is great, even when the probability is small, the defendant has still breached a duty.

Evidence - Types

1. Direct

2. Circumstantial

3. Res ipsa loquitur

Res ipsa loquitur not available for SPL. In SPL, only direct and circumstantial evidence is available, but circumstantial evidence acts like res ipsa loquitur.

Evidence - Direct

Evidence that does not need inferences from which to draw a conclusion. Best evidence but rare.

Evidence - Circumstantial

Evidence that relies on a series of inferences that lead to a conclusion. Most common.

Evidence - Res ipsa loquitur

“The thing speaks for itself.” Event would not occur absent negligence.

Plaintiff must prove 3 things:

1. The incident was of a type that does not ordinarily happen absent negligence

2. It was caused by an instrumentality exclusively in the defendant’s control

3. The plaintiff was not contributorily negligent

Remember, this is not available for SPL.

What does res ipsa do?

• Gives inference of negligence when no direct or circumstantial evidence available

• Occurrence of harm is evidence of negligence

• Does not prove negligence

• Use for unusual circumstances

• Majority: warrants, but does not demand an inference of negligence

• Minority: this is a presumption of negligence

Actual Cause - Definition

1. But for

2. Substantial Factor

Actual cause is the “sine qua non”, that without which the thing cannot be.

Actual Cause - But For

Defendant’s conduct is the cause of the plaintiff’s injury if the injury would not have occurred “but for” the defedant’s conduct

1. Use for claims against a single party

2. Use for one single cause

Actual Cause - Substantial Factor

Defendant’s negligent actions were the material contributing cause of plaintiff’s injury, or the result of concurrent causes occuring separately, combining together to cause the harm.

1. Dependent - Where there 2 separate acts of negligence that combine to produce 1 single injury, neither alone would have caused the harm, both are liable and both create one but-for cause.

2. Independent - Where there are 2 acts that combine to cause harm where either alone could have caused the harm, assuming both are liable as each is a substantial factor in bringing about the harm (substantial factor).

Actual Cause - Substantial Factor - Joint Tortfeasors

Joint tortfeasors go under Substantial Factor for Actual Cause.

Joint tortfeasors are two or more individuals who either:

1. Act in concert to commit a tort;

2. Act individually, but combine to cause a single indivisible injury;

3. Share the responsibility for a tort because of vicarious liability

Joint - Each wrongdoer is liable for the entire wrong

Several - There is more than one wrongdoer

Plaintiff can collect full amount of DAS from either.

Proximate Cause - Definition

Any cause in which the natural continuous sequence, unbroken by an efficient intervening cause, produces the result complained of, and without which the result would not have occur.

Proximate Cause - Intervening Cause

An event that occurs after a negligent party’s tortious action and breaks the chain of causation between the original act and the harm to an injured person.

1. If the intervening force is foreseeable, it’s merely intervening

2. If it is unforeseeable, it’s likely a superseding force.

Proximate Cause - Superseding Cause

An intervening cuase that is extraordinary, unforeseeable, and independent. Breaks the causal link.

1. Defendant 1 is released

2. Defendant 2 is solely liable

Damages

Plaintiff must have suffered actual damages as a result of the defendant’s conduct.

Types of Damages

1. Nominal damages - Never awarded in negligence

2. Compensatory — DAS awarded to a person as compensation, indemnity, or restitution for harm P suffered.

   1. Includes pecuniary loss (financial loss)

   2. Pain and suffering and other mental distresses

3. Punitive damages—awarded where the court finds the defendant(s) to have engaged in particularly egregious conduct.

Damages - for Personal Injury

1. Medical expenses

2. Lost wages/diminished capacity

3. Incidental economic loss

4. Pain and suffering

Defenses to Negligence

1. Contributory negligence

2. Comparative negligence

3. Assumption of risk