Torts uwu

Design Defects Claims Tests

Reasonable alternative design test- risk utility test too; negligence;

Consumer expectations test- strict liability;

Consumer-Expectation Test

Strict liability; Defective if the design makes the product more unsafe than a reasonable consumer would expect

Design Defects Claims Tests

Reasonable alternative design test- risk utility test too; negligence;

Consumer expectations test- strict liability;

Consumer-Expectation Test

Strict liability; Defective if the design makes the product more unsafe than a reasonable consumer would expect

Reasonable Alternative Design Test

whether a safer, cost effective design was available that could have reduced the risk of harm; Risk utility test- B> PL; Plaintiff must show the alternative design that would have been saferand economically feasible

Manufacturing Defects

Strict liability; When a product ‘pops off the line’ more dangerous than it was designed to be/than all the rest

Warnings

Does the situation the product has been put in need a warning? either needs a redesign, needs a warning, or danger is obvious enough that no warning is necessary;

Warning Defects

Not open or obvious enough

Sometimes warning against ‘serious' harm’ is not enough if the harm comes about in a ‘weird’ way (i.e. consumers think serious harm from using q-tip in ears is poking eardrum not skin infection)

Misuse

Manufacturer can be liable if foreseeable misuse

Manufacturer not liable if unforeseeable/alterations/disregarding warnings of serious harms or death

Private Necessity

Intentionally/knowingly cause harm to avoid a larger harm; strict liability

Pure/Complete Comparative Negligence

Damages split by percentage of responsiblity

P= 50% responsible; D= 50% responsible: 50% recovery

Modified/Incomplete Comparative Negligence

If the plaintiff is equally or more at fault, no recovery

P= 50% responsible; D= 50% responsible: no recovery

Apportionment

Division of damages between multiple defendants based on their percentage of responsibility

Apportionment for Aggravated Harms

The original defendant can be responsible for a portion of the aggravated harms, since they caused the initial harm.

Express Assumption of Risk

Signing a contract saying you won’t sue

Language must be clear and specific

Exceptions: form contracts, public policy violations, can’t waive recklessness, parents can’t sign for children in commercial activities, unenforceable with places involving ‘public interest’ (i.e. hospitals)

Primary Implied Assumption of Risk

Based on social setting, expectations, etc it’s not unreasonable to be subject to this risk; basically no breach

Secondary Implied Assumption of Risk

You are aware of negligence/dangerous conditions and proceed anyway- willingly encounter the risk; Comparative negligence

Transferred Intent

Intend to commit one intentional tort and accidentally commit another

Intend to commit an intentional tort against A but accidentally commit against B

Intent transfers- still held liable even though no intent for what actually happened

Intentional Infliction of Emotional Distress

Intentional extreme and outrageous conduct- beyond all social norms/decency

Harm must be severe (worse than ‘serious’ requirement for NIED)

Don’t have to show medical damages

(1) abusing a position of trust

(2) pressing a known weakness

(3) common carriers/public utilities- subject to liability for gross insults that reasonably offend

3 Types of Consent

Actual: Explicitly consent

Apparent: If the defendant reasonably believes the other actually consents even if they didn’t actually consent

Presumed: If under social norms the actor is justified in the conduct without consent AND the actor has no reason to believe they wouldn’t consent if requested

Breach, Generally

Judged on a reasonable person standard

‘Lack of reasonable care’

actor does something unreasonable, blameworthy, or is at fault

Reasonable person takes cost-justified precautions to prevent foreseeable harms

Negligence Per Se

Shortcut to proving breach

Violating a safety statute is unreasonable

Harm has to be the type the statute intends to prevent

Res Ipsa Loquitur

The harm is a type which only occurs when someone is negligent

Don’t know who or what the negligence was

Burden shift to defendant usually

Medical Malpractice- Standard for doctors

Judged under a reasonable doctor standard

Evaluated using expert testimony about medical customs

Sometimes locality rule; more recently a national standard

Informed Consent

Doctors must tell patients what a reasonable patient would want to know

Patient-centered standard- not what a reasonable doctor would do but what a reasonable patient would want

No duty exceptions/reasonings

Policy- floodgates of litigation

deterring perverse incentives

No duty to control the conduct of others unless ‘special relationship’

No duty to rescue unless ‘special relationship’; if you start rescuing, you assume responsiblity- duty to finish rescue/act reasonably/not make it worse

Premises Liability

Classifications

Trespassers- generally no duty with some exceptions

Licensees (guests/invited onto the land)- duty to warn about/address dangerous conditions

Invitees (business purposes/open to public)- reasonable care

Newish trend: reasonable care for all; duty to conduct reasonable investigations into possible safety problems on the land

Causation, generally

plaintiff has to prove causation in fact by preponderance of the evidence

Must be more likely than not; >50% chance

But-for test: but for the defendant’s negligence, what would have happened?

If (a) a negligent act deemed wrongful because increases chances of accident and (b) accident happens, that’s enough to support finding that negligent behavior caused the harm (Zuchowicz)

Sometimes burden shift to defendants

Lost Chance

Doctor’s negligence causes plaintiff to lose chance of a cure, the doctor can be liable for the value of that lost chance

Exceptions to the background rule of causation

Mutliple Sufficient Causes- no cause is the ‘but-for’ cause, but both are treated as the cause (Landers- salt water company’s pipe burst, oil company’s pipe burst; stuff got in the plaintiff’s pond and killed his fish; don’t know which is actually responsible)

Market Share Liability- hold a large number of defendants responsible for a share of the plaintiff’s harms; throw away specific causation in the individual case (Sindell- plaintiff injured because of a drug given to mother during pregnancy; don’t know who manufactured the drug, all can be held liable) sometimes burden shift to defendants to show they didn’t cause that specific harm

Joint and Several Liability- remedy for multiple sufficient causes and market share liability; can sue all defendants or just one and burden is on the defendants to reallocate their share of costs

Scope of Liability

about foreseeability/type of harm and fairness, or proportion, or sensibility

is this kind of accident what makes the defendant’s conduct negligent?

If accidents like this were the only type at issue, would the conduct still be negligent?

Eggshell Plaintiff

Defendant is responsible for all resulting harms to the plaintiff- even those caused by preexisting conditions, etc

D has to already be unreasonable/have breached their duty

Danger Invites Rescue

If a defendant negligently hurts someone in a way that causes them to need rescue, the defendant is liable for injuries to those who try to rescue them

Damages types, generally

Pecuniary: money related damages- using money to replace money

Compensatory: pain and suffering, loss of enjoyment of life, etc; usually for deterrence, not as much compensating to fix harm

Punitive: when a defendant acts particularly badly or in conscious disregard for others’ safety; to deter or punish defendants

Collateral source rule

other sources of compensation do not influence damage awards

ex: insurance payouts, help from family members, employer offers to pay lost wages, etc.

Pure emotional harms

generally no duty or recovery, few exceptions

mutilated corpses

near misses/zone of danger

miscommunicating death

NIED- witnessing close relative be severely injured; must have serious harms, close relationship, and witness the event

Pure Economic Harm

Generally no recovery except:

Public nuisance- must show you’re a part of a small group experiencing a different type of harm than the general public

Negligent professionals- those who provide information in the course of business can be held liable by a limited group who they disseminated bad information to directly

Respondeat superior

employers are held liable for their employees’ negligent acts when performing duties within the scope of employment

alleged employers must control the deatils and manner of how the alleged employee works, not just care about the output

Scope: falls within scope if acting in furtherance of employer’s business and within scope of employee’s authority; reasonably chracteristic behavior of an empoyee

scope is sticky- takes a major deviation to get out of scope, small detours are included within scope; high bar to get out, also high bar to get back in once out

Ultrahazardous activities

strict liability for abnormally dangerous, unexpected, ultrahazardous, or out of place activities; usually involve a high degree of risk of serious harm

Wild animals, dynamite, etc.