CH 10 Tort Law - Part 2

What are the two main types of negligence laws used by states?

• Contributory Negligence

• Comparative Negligence

What is contributory negligence?

If the plaintiff contributed in any way (even 1%) to their own harm, they cannot recover damages.
(Prof: “Any contribution, even 1%, complete bar — no recovery.”)

What is comparative negligence?

The jury compares the relative fault of both parties and apportions damages based on percentage of responsibility.
Example: If the plaintiff is 25% at fault and the defendant 75%, the plaintiff recovers 75% of damages.
(Prof: “We compare the fault — that’s why it’s called comparative.”)

What is the modified comparative negligence rule?

• 50% Rule: No recovery if plaintiff is 50% or more at fault.

• 51% Rule: No recovery if 51% or more at fault, but can recover at 50% or less.

What is pure comparative negligence?

Plaintiff can recover even if 99% responsible, but recovery is reduced by their share of fault.
(Example: 99% fault = 1% recovery.)

What is the assumption of the risk defense?

Plaintiff voluntarily engages in an activity knowing the risk of harm.
Examples: Skiing, smoking, skydiving, snowboarding.
(Prof: “Jumping out of a perfectly good airplane—if your parachute doesn’t open, you assumed that risk.”)

What is product liability?

Legal responsibility of manufacturers and sellers for injuries caused by defective or dangerous products.

What are the four main theories of product liability?

• Fraud in marketing the product

• Breach of warranty (express or implied)

• Negligence in:

  • Assembly

  • Construction

  • Design

  • Instructions

  • Labeling

  • Packaging

• Strict Liability under Restatement (Second) of Torts §402A
  (Prof: “Be able to name all six areas of negligence in a product’s lifecycle.”)

What does §402A (Restatement) say about strict product liability?

A seller is liable for a product that:

1. Contains a defect or is unreasonably dangerous to use,

2. Was defective when it left the seller’s possession,

3. Caused harm to the plaintiff, and

4. The harm was foreseeable.
   (Prof highlighted foreseeability and defectiveness as key test points.)

What case illustrates strict product liability

• Coffee served at ~190°F caused third-degree burns.

• McDonald’s knew of prior injuries and continued the practice.

• Jury awarded compensatory and punitive damages to deter behavior.
  (Prof: “Read the McDonald’s case — it’s in your module and will likely appear on the test.”)

What types of damages can be recovered in product liability cases?

• Compensatory damages: to reimburse medical costs, property damage, and lost wages.

• Punitive damages: to punish reckless or harmful corporate conduct.

How do fraud and negligence differ in product cases?

• Fraud: Intentional deception in marketing.

• Negligence: Failure to exercise reasonable care during product design, assembly, or labeling.

What is an implied warranty?

A warranty that arises automatically by law — product must be safe and perform as expected for its intended use.

What is the doctrine of Respondeat Superior?

“Let the master answer.”
An employer is vicariously liable for torts committed by employees acting within the course and scope of employment.
(Prof: “Circle course & scope — it’ll be on the test.”)

Does Respondeat Superior apply to independent contractors?

No. It applies only to employees, not independent contractors.

What is the difference between Course & Scope and Frolic & Detour?

• Course & Scope: Employee acts as part of their job duties → Employer liable.

• Frolic & Detour: Employee deviates for personal reasons (e.g., running errands) → Employer not liable.
  (Prof: “Know both terms — I didn’t make them up, but they’re on the test.”)

Give an example of Frolic & Detour.

Employee uses company van to help a friend move furniture and causes an accident — employer not responsible because the act was outside job duties.

Why is Respondeat Superior important for businesses?

Employers must train and supervise carefully because employee negligence within job duties becomes their legal liability.