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General Reminders: Be selective: prioritize, go deep with a few points Be connected (facts to generalities) Argue pros and cons from the perspective of INTERESTED actors
(i) Utility analysis (ii) Culpability analysis (relative knowledge, awareness, capacity) (c) Look to connection (apply the but-for and proximate cause analysis) iii) Partial comparative fault regime: If Ps negligence is above a certain level (usually 50%), then P is barred from recovery. b) Is there something about plaintiffs choices (assumption of risk) that mitigates liability? [NOTE: DOES NOT apply in intentional tort cases] (p.17) i) Knowledge + choice = assumption of risk (1) Reasonable AR: abolished except if express, firefighter, recreation [primaryD never owed duty of care to P in the first place] (2) Unreasonable AR: absorbed into C-neg analysis c) Is there a sufficient (special) relationship to impose a duty of care on D? (see p.20) i) He caused the situation, OR ii) Special relationship (1) Public officials (2) Preparation of food (3) P an invitee/servant or injured by something under Ds control and P is helpless (4) Landowners duty to maintain property in a certain condition 3) Look to the connection between Ds conduct and Ps injury (causation) a) Actual (but for) causebut for Ds negligence, would Ps harm have occurred? (p.20) i) Total risk inquiry: establish via expert testimony that Ds negligence the probable cause of loss ii) Enhanced risk of injury: even if the P had a pre-existing condition, jury can still consider whether Ds negligent conduct (1) Increased risk of harm to P, and (2) Whether this increased risk was a substantial factor in producing the harm iii) Multiple causation: run the actual cause analysis for both acts, and if both Ds negligence was the cause, then Ds are jointly and severally liable (see p.21-2) b) Legal (proximate) causeis there a close enough connection between the negligence and the injury? (p.23) i) Foresight approach: (1) Was there negligence? (determined via foreseeability) (2) Was the harm that occurred of the sort that a reasonable person creating that risk would have expected? ii) Hindsight approach: (1) Use foresight approach to determine if there was negligence or not (2) Use hindsight to determine liability: direct or immediate, natural sequence of events, unbroken by efficient intervening cause (use intuition, policy arguments) 4) Is there some other reason why liability might not attach? (p.24) a) Intervening cause: Negligence of intervening third person (N2) may relieve person of liability for his own negligence (N1) i) Was the intervening negligence foreseeable by N1? (1) IF NOT, then it supersedes the liability of N1. (2) IF SO, then N1 is still liable. b) Purely economic loss: if a 3rd party experiences purely financial/econ loss, then too bad, even if its foreseeable, unless i) Administrative/disproportionality issues are insignificant + strong countervailing consideration (see p.25) 5) If the D is liable, how do you compensate P for the loss? (p.22) a) Personal injury i) Alternative objectives: (1) May try to place plaintiff back in position as if no wrong had occurred (2) Tax Ds negligence in sufficient amount to induce D not to be negligent ii) Recoverable damages: (1) Medical costs (2) Wage loss (what could have been earned prior to accident and what can be earned post-accident) (3) Pain and suffering b) Survival: brought to recover for damages from time of injury to time of death (not forward-looking). i) Wages and out-of-pocket expenses only
c) Wrongful Death i) Family members only ii) Recoverable damages: (1) Economic losses (2) Associative loss (companionship/consortium) spouses, death of a child, BUT NOT children losing parents (3) Emotional harm Tort Liability Beyond Fault Could this be a case of strict liability?
ii) Economic loss: harm to the product itself (i.e. hasnt caused harm to other property or to your person) no
d) What is the basis for recovery? i) Manufacturing defect [strict]: one product in particular is flawed (doesnt matter how it happened) ii) Design defect: (1) Expectation test: did the risks associated with product design offend the expectations of the ordinary consumer? [strict] (2) Balancing test: Did the risks of the design outweigh its utility/is the designs risk justified? [CAN BE APPLIED IN HINDSIGHT, i.e. there can be liability w/o foreseeability] (a) Factors: (i) Availability of substitutes (ii) Likelihood and magnitude of risk (iii) Obviousness and public expectation of danger (iv) Avoidability of danger by warnings (v) Ability to eliminate danger w/o due expense iii) Failure of duty to warn: (1) When does it apply? (a) Product is [unavoidably] dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it with the ordinary knowledge common to the community as to its characteristics. (b) Risk is NOT OBVIOUS to consumer in the absence of a warning (c) For foreseeable uses or possibly misuses (d) Should indicate the nature and extent of the risk posed by ignoring instructions/warnings (2) IF the risk is KNOWN or KNOWABLE (in light of the best available scientific evidence), (a) Strict standard: must warn. (Rest 2d, p.1027) (b) Limits: (i) No need to warn about dangers of excess (ii) May not extend to patient if there is a learned intermediary [unless the product is very patientoriented, like birth control] (3) IF the risk was UNKNOWN to the manufacturer, (a) Strict standard: if the product was defective and proximately caused the plaintiffs injuries, manufacturer is strictly liable unless they can prove that the risk was scientifically unknowable (Shanks) (b) Stricter standard: even if unknowable, still liable (Beshada) (c) If the seller made an affirmative representation (even if not fraudulent or negligent), may also be strictly liable (d) Negligence: a reasonable manufacturer should have known about the risk and warned of it. iv) Still must show CAUSATION e) Defense: Can the injury be attributed to Ps conduct/choices? i) NOT a bar to recovery: (1) C-neg: Negligent failure to discover the defect/guard against possibility of defect ii) IS a bar to recovery: (1) Assumption of risk: knew of danger and unreasonably proceeded to make use of the product (2) Unusual handling/use: avg. consumer could not reasonably expect product to be designed/manufactured to withstand the use f) What if it was a combination of both? i) i.e. accident could be avoided by caution of users OR safeguards on product balancing, look for the CCA (see p.38) Intentional Torts 1) What kind of intentional tort was this? a) Personal injury: was there a battery? (p.3) i) Intentional infliction of a harmful or offensive contact with the person of the plaintiff () (1) Intent: purposeful OR substantially certain to result (Garratt v. Dailey) (2) Result: R1 = contact itself, R2 = harmful or offensive quality of contact