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Course: Torts Fall Nofar 2000
School: unknown
Year: 2000
Professor: unknown
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Also available: Torts for the Bar exam.
  1. DUTY

    1. Duty is a question of law (determined by judge) and is determined primarily by consideration of proximity between the D’s actions and the P’s and the foreseeability of risk of harm to the P.

      1. Duty arises out of logical connection/proximity/nexus between D’s act and the harm.

        1. Lack of Privity of contract is NO barrier to recovery is there is no contract between parties if the harm was foreseeable. No privity is required for foreseeable P’s. Protect against unreasonable harm.

      2. Reasonable care=ordinary care=due care. Care an ordinary prudent person would exercise. Objective person standard. What should be the conduct of a reasonable person in the same facts and circumstances? Standard or care is either common law or from statute.

    2. Carriers:, in a better position to bear risk of loss than passengers

      1. Private: higher std of care; bus, airplane

      2. Public: reasonable std of care; chauffeur

    3. Licensee: invites a person on property for other than business purposes.

      1. Reasonable care

      2. Social guest

    4. Invitee: Rightfully enter the premises by either express or implied invitation which is beneficial to the owner

      1. Scope of invitation is limited

      2. Business vs. public invitee; stairway

      3. Can turn into a trespasser.

      4. Premises are open to the public. Excludes social guests.


        1. Warn; make safe

        2. Inspect to find hazardous conditions

        3. Precautions

        4. Discover


        1. EXCEPTION: Open and obvious exception—concerns duty

        2. EXCEPTION: Comparative negligence—is used after you make a prima facie case first, then reduce liability

    5. Fireman; not an invitee because the owner cannot refuse services. Not a licensee because they can’t be denied admittance. They are self-invitees/self-licensee

      1. MI, owner has no liability unless he did something after the firefighter arrived.

    6. Trespasser

      1. Enters without privilege

      2. Undiscovered

        1. CMN LAW-no duty to make safe or warn of dangers unless there are hazardous artificial conditions

        2. MI--same; no duty to make natural conditions safe

      3. Discovered

        1. CMN LAW--duty to warn of known dangers

        2. MI--duty to use due care

      4. Frequent trespasser

      5. Child trespasser;

        1. CMN LAW--duty to anticipate presence of child and take reasonable care to protect child from harm

        2. MI-- No duty generally. But if there is an Attractive Nuisance (this highly dangerous condition should be eliminated), a duty is owed

    7. Vicarious liability liability based on relationship

      1. Respondeat Superior

        1. Purpose

          1. Prevent future harm

          2. Assure compensation to the victims

          3. Spreading losses


        1. TRIPS FROM HOME; generally not within the scope

          1. Going & coming rule; an EE going and coming to & from work is ordinarily outside the scope of employment and the ER is not responsible. However, where the trip involves an incidental benefit to the ER, there may be liability

            1. Q--when commuting, does the EE perform a concurrent service for the ER? DUAL PURPOSE.

        2. FROLIC & DETOUR; was it reasonably foreseeable? Was scope of employment resumed?

        3. FORBIDDEN ACTS, its within the scope of employment if done in furtherance of the employment function

          1. SMOKING (that injures); was this within the scope of employment? Must prove that the EE’s conduct was in furtherance of the interest of the ER. Even if the act is for the EE’s personal comfort, done while acting within the scope of employment

        4. INTENTIONAL TORTS, not within the scope of employment if EE acts from personal motives.

          1. Were the acts of the EE foreseeable? Was EE’s motivation separate from the job function? FORESEEABLE HARM

          2. Did the dispute arise in connection with job? What was the casual NEXUS?


        1. Not subject to close control


        3. Duties are not delegatable

          1. Borrowed servant rule; Dual liability rule



      4. Careless supervision

      5. Had control over EE

      6. Negligent hiring

    8. Negligent Entrustment watching over an inexperience/incapacitated person.

      1. Express or implied consent

      2. Had knowledge

  2. Special Relationship connection between the P & D which establishes a duty

      1. Foreseeable victim (911 operator; victim rescuer relationship; voluntarily assumed duty)

      2. Reliance; 911 operator agreed to send help. No duty to all 911 users

      3. Agreement

      4. Relationship. Was it direct contact or indirect

      5. Good Samaritan Doctrine-must use reasonable care

    1. Duty to 3rd Parties

      1. PUBLIC business

        1. Protect P from foreseeable harms of criminals (protect invitees from harm)

          1. Criminal conduct of 3rd person is an intervening but not supervening cause

          2. Past experiences show a likelihood for visitor to encounter danger

          3. Invitation for violence

          4. Diligence would have prevented injury, GUARDS/ WARNINGS

        2. Reasonable identifiable 3rd persons (protect EE’s from harm)

      2. PRIVATE persons

        1. College, students are invitees

        2. DUTY TO CONTROL CHILDREN; MI---parents liability is limited to $2,500 because its not there act

        3. Therapist should have warned 3rd party, duty to warn known, or foreseeable

        4. Negligent entrustment

        5. MI DRAM shop act, vendor liability when serving alcohol to:

          1. Minor

          2. Or visibly intoxicated person

          3. 2 yr S of L

    2. MALPRACTICE--Licensed professional to non-client 3rd parties.

      1. Expert testimony --can erase presumptions.

        1. Std of care is determined through expert testimony, unless treatment was so simple that there is no need for an expert. FRE 702 Testimony by an Expert, in MI--must meet requirements

          1. Has opinion been subject to scientific testing?

          2. Peer review

          3. Potential error rate

          4. Technique generally accepted

          5. Reliability

        2. FRE 704 can have an expert opinion on the ultimate issue

        3. To establish R.I.L.

        4. TREATISES; can only be used on cross-examination to impeach an expert can’t be used as evidence because you can’t cross-examine a book.

          1. List customs and procedures

        5. MI—a violation of MRPC is a rebuttable presumption of malpractice

        6. MI—Med/Mal 6 yrs S of L; non-economic damages 250K CAP; 500K CAP if palegic or loss of reproductive organ.

      2. Fraudulent concealment; is professional aware or unaware of malpractice?

      3. Was there compensation? or just a good Samaritan?

      4. Medical Malpractice; Jury is not to be informed of medical malpractice CAP on Noneconomic damages

      5. Respondeat Superior; master/servant

      6. Obligation to give adequate information

L. Res Ipsa Loquitor allows P to get to the jury without specific proof of breach and causation by D. Shifts burden of proof on D COMPARE W/ S.L.

      1. No explanation for instrumentality, damage to a part of the body that was not operated on.

      2. Ordinarily doesn’t occur but for someone’s negligence

      3. D was in control of the instrumentality’s that caused the harm

      4. NO contributory negligence

      5. *MI* adds an additional requirement; that D had superior knowledge of the facts and event whereof the injury arose. D has more information/evidence of the true explanation than P.

        1. DEFENSES for D

          1. D can show customs of industry to show departure of standard of care

          2. Trade rules and Standards to show compliance with safety

      6. *Not available against multiple D’s

      7. *P’s partial fault does not bar recovery under comparative negligence

      8. Helps P’s case because its a PRESUMPTION OF NEGLIGENCE

  1. NONFEASANCE --NO CONDUCT in the face of a duty to act.

      1. NO legal obligation to rescue/warn. Generally no liability

      2. Its not negligent to provoke someone to do something. Think “open and obvious

      3. No duty UNLESS failure to assist aggravates the injury

      4. EXCEPTION: Was there a special relationship? friendship, dating, blood relationship? Special relationship creates a duty.


          1. CONTRACT

          2. DUTY BY LAW, put that person in a position of peril

          3. DUTY BY STATUS, special relationship

          4. DUTY VOLUNTARILY ASSUMED; performance must continue, attempt to aid


      1. Liability unless an exception.


      1. Cannot waive or disclaim your tort liability because they are imposed by law

      2. TORT: duty is to exercise reasonable care

      3. K duties arise out of provisions in K, privity, foreseeability



  1. BREACH--failure to conform conduct to required standard of care.

    1. CMN LAW Standard of care of a reasonable prudent person in the D’s position would have done the same? If not then there is a breach of duty

    2. STATUTE Standard of Care; Negligence Per Se; This PRESUMPTION helps to establish P’s case.

      1. P is among the class of people that the statute was intended to protect

      2. P’s injuries are the type that the statute was intended to protect.



  1. CAUSATION TWO PART DEFINITION OF CAUSATION Question of fact--jury makes inferences based on facts

    1. BUT FOR cause in fact: “had D not acted negligently, P’s injuries would not have resulted:

    2. PROXIMATE; legal causation. Damages maybe direct ”BUT FOR” but not foreseeable. Injuries were foreseeable based on D’s conduct.

      1. Knew or should have known

      2. Negligent conduct caused the injury

      3. P’s injury was the natural, probable, result of the negligent conduct

      4. Foreseeability of harm or P; foreseeable P: look at reasonableness. Harm must be foreseeable, otherwise duty is limited. If harm or scope of risk is too remote, its outside the zone of danger.

        1. Injury to others because of D’s conduct--

        2. Risk posed by D’s conduct

        3. Relationship of the parties

        4. Impact on the public

        5. Reliance

        6. Influence

        7. Assumed responsibility

      5. No Supervening cause

      6. D may be liable to a good faith RESCUER that is injured. Foreseeable?

    3. Intervening cause: takes effect after D’s negligence. Doesn’t break the zone of causation

      1. Event that produced harm after D’s negligence.

      2. Reduces damages for D by spreading the liability. The injury was still foreseeable

      3. Substantial Factor; When multiple factors bring about injury to P, P will argue that D’s negligence was the substantial factor that enhanced the likelihood of P’s injury.

    4. Zone of Danger

      1. Bystanders

    5. Superseding cause--Breaks the chain of causation

      1. Relieves D’s of liability

      2. Unforeseeable & Unpredictable

    6. Egg-shell P; take P as you find him


  1. DAMAGES--measurable & compensable by money damages


      1. Punitive/Exemplary in MI

      2. Compensatory

        1. economic or pecuniary; can put a definite price tag on it(medical exp.)

        2. noneconomic or nonpecuniary; cannot put a definite price tag on it


      1. Nominal

    1. One recovery for everything

    2. Caps on Medical malpractice and products liability in MI

    3. *Wrongful Death, Survival action*; action is in the name if the personal representative. Damages are awarded that are fair & equitable.

      1. Ways to measure pecuniary damages:

        1. Loss of Support, love and affection, service,

        2. Loss to the Estate, medical, funeral burial expenses

        3. Loss of Consortium, parental training, companionship, enjoyment of physical abilities

          1. This is for future damages. Compare with claims for emotional distress, which seeks damages for current or past injuries.

      2. NONPECUNIARY damages

        1. Punitive damages

        2. Mental anguish or grief to survivors

        3. Loss of consortium (loss to society, services, guidance and care)

    4. Emotional Distress Only need to be in the Zone of Danger to collect for emotional distress. No physical injury is required.


        1. Extreme AND outrageous conduct

        2. Intended (recklessness ) to cause …E D

        3. Behavior does cause E D

        4. Knowledge of a persons particular sensitivities


        1. Negligence

        2. Impact/contact

        3. Physical injury

        4. Extreme Fright

          1. Generally NO recovery for fright alone.

            1. EXCEPTION: Physical Manifestation Rule:

              1. No contact needed

              2. Must be within the zone of danger, at or near the crime scene; visually watching as opposed to hearing about it from someone else

              3. Fear, worried

              4. Need proof of distress. Krap allot

        5. Physically endangered but not struck

        6. OR P, (relative in the ZONE OF DANGER) observes the danger or injury to victim and the victim is close relative.

        7. Usually when the Statute of Limitations runs for the battery (2yrs), people sue on the emotional harm because the Statute of limitations is 3yrs.


        1. Must be more likely than not 50%

        2. Rather than a remote possibility—is insufficient

        3. Absence of present physical injury will not preclude recovery


        1. Only wrongful life

        2. Not wrongful conception

        3. Not wrongful birth



    1. Loss of Consortium; is based solely on relationship. It’s a kind of E D

    2. Personal Bodily injury/correctable injury

    3. Work Loss

    4. Serious Impairment/disfiguring

    5. PUNITIVE; CALLED EXEMPLARY DAMAGES IN *MI* (considered compensatory damages in MI)

      1. Money damages




      1. Statute of limitations is an affirmative defense--that is its an absolute bar to recovery. It can be tolled: minor, insanity

        1. MI statute of limitations .5805, p124

          1. general torts 2yrs assault/battery

          2. Prof Malpractice 2yrs from last date of treatment

          3. Wrongful death 3yrs death to a person or injury to a person or property

          4. Products liability 3yrs

          5. UCC 4yrs

          6. K-non UCC 6yrs

        2. Extension; have 1 add’l yr beyond reaching the age of majority or being sane. .5851

      2. STATUTE OF REPOSE exception to the limitation period. It establishes and outer limit to D’s exposure.

      3. Not proximate cause; is an AFFIRMATIVE DEFENSE

        1. Supervening illegality that was no foreseeable. Breaks the chain of causation.

          1. It was NOT the natural, legal. or reasonably foreseeable consequence.

      4. Outside the Zone of Danger: bystander’s presence and squeamishness were not foreseeable. Therefore, no duty of care is owed to bystander

        1. Category of persons that are owed a duty of care; close relatives. These people are foreseeable.

      5. Immunities to tort actions. Can always sue under K actions

        1. Government; Discretionary Function Defense, immune while engaged in a governmental function

          1. FERES Doctrine, military personnel are injured while on duty doing military services

            1. WHY?

              1. Military provides compensation, so workers comp is the only remedy.

              2. Were injuries INCIDENT to service or post service?

          2. EXCEPTIONS

            1. No immunity for gross recklessness

            2. §1983 Civil Rights Violation. Violate any person of a right or privilege protected by the constitution

            3. §1985 CONSPIRACY TO INTERFERE WITH CIVIL RIGHTS, jury tampering

            4. DRAM SHOP ACT. MCLA 691.1405; GOVERNMENT OWNED VEHICLES Government agencies are liable for bodily injury and property damages resulting from the negligent operation by any officer, agent or EE of a MOTOR VEHICLE which the government is an owner. This is STRICT LIABILITY.

            5. Governmental buildings; government is liable for bodily injury and property damages from a defective condition the government agency had actual or constructive knowledge of.

            6. 2 yr S of L to sue GOV

            7. ULTRA VIRES; acting beyond the scope of your authority

        2. State/municipal

          1. 11th amendment immunizes states from citizens. Preserves state power. Immunity stops at the constitution.

          2. ACTION AUTHORIZED BY LAW: police office can use reasonable force to make a lawful arrest. Fireman can break into a house to extinguish a fire. Soldiers can take a life in time of war.

          3. EXCEPTION:

            1. PUBLIC DUTY DOCTRINE: An official/officer is liable if injury to public; not to an individual person. SCOPE OF PEOPLE; certain groups

              1. Special relationship

              2. Was victim reasonable identifiable? Release of sexual offender.

            2. ULTRA VIRES; acting beyond the scope of your authority

            3. MI—liability for defective highways

            4. MI—duty to repair public buildings

        3. Spousal

          1. WHY?

            1. Shared resources

            2. Discourages fraud

            3. One economic unit—share proceeds

        4. Parent /child; even foster-parent, step-parent, adopted-parents

          1. Child must be a minor

          2. Non-custodial parent is not immune (school)

            1. exceptions

              1. Necessities of life

              2. Child abuse is punishable

              3. Negligent supervision

              4. Negligent treatment of sickness or injury

      6. Child under 7; ABSOLUTE DEFENSE

      7. Impairment due to alcohol or drugs; if impairment/intoxication renders P more than 50% at fault, P gets nothing. neither economic nor noneconomic damages. ABSOLUTE DEFENSE. P gets nothing. (“reactions diminished from the norm”).2955




      1. Assumption of risk (MAY CONSTITUTE COMPARATIVE NEGLIGENCE): assume equality of bargaining position. If not then void

        1. WAIVER is an express assumption of risk

        2. *MI* doesn’t recognize implied (by conduct) assumption of risk except in cases of employment that is not covered by worker’s compensation.

        3. Not a defense to an intentional tort

        4. WAIVER is an expression of assumption of risk.

        5. MI rolled assumptions of risk into comparative negligence

        6. EXAMPLES: 50 yr. old plays hockey, drag race

          1. Two requirements; either express or implied

            1. P knew of the risk in Q

            2. Voluntarily consented to bear that risk.

      2. Consent is like assumption of risk/comparative negligence

      3. Comparative Negligence-(46 states)-burden of proof is on the D

        1. Not a bar to recovery, but a reduction of damages to be received by P.


          1. *MI* has only Several liability

            1. EXCEPTION--Medical Malpractice cases

              1. if the P is determined to be without fault, each defendant is jointly and severally liable

              2. P’s , 50% at fault; D’s are severally liable with reallocation

          2. Joint liability (D’s use indemnity) (where harm is indivisible, each D is liable for entire harm) still exits in MI if P was INTOXICATION; was intoxication a substantial cause of the disaster?

        3. *MI* PURE if P is 90% negligent; P collects 10% of total damages

        4. *MI* MODIFIED 50% Rule; if P & D are 50/50 at fault (P was intox) then P gets nothing

        5. *MI* MODIFIED 51% Rule; if P & D are 50/50 P recovers 50% of his damages. If P is more than 50% at fault then P gets nothing. NON-ECONOMIC damages are barred . However, P can still recover economic damages

      4. Contributory Negligence--burden of proof is on the D

        1. Only in 4 states

        2. LAST CLEAR CHANCE-D had an opportunity to avoid harm. The existence of the opportunity wipes out the contributory negligence claim. *MI* has adopted “Pure Comparative negligence”

      5. Drunk Driving

        1. OUIL Operating Under the Influence of Liquor; if blood alcohol level is .1% or more its a violation of a statute. NEGLIGENCE PER SE



    1. No intentional conduct; compare with nuisance

    2. Strict liability: not restricted to property to property situations

    3. Imposed on sellers of products only if product is defective

    4. No privity (K based) required if foreseeable user (tort based)

    5. Not necessary to establish implied/express warranty; mfgr is strictly liable

    6. NO strict liability in MI


      1. Six Factors to consider:

        1. Is there a high degree of risk to others?

        2. Is the harm that is likely to be serious?

        3. The risk cannot be eliminated by exercise of reasonable care

        4. The activity is not common

        5. The activity is not appropriate for the place where it is carried on

        6. The danger outweighs the activities value to the community.

          1. Example:

            1. Nuclear reactor

            2. Explosives

            3. Airplane accidents

    8. DAMAGES; no s/l in MI


      1. bone in chicken

      2. bursting coke bottle

      3. broke tooth on candy



    1. Think possession of property

      1. Intentional (state of mind) harm to property

      2. Substantial harm; lose of market value, convience, disturbance

      3. Unreasonable; harm to property

      4. Interference with land




    1. Three Theories:

      1. Negligence

      2. Strict Liability

      3. Warranty

    2. Product Defects

      1. Mfg. defect; particular unit for error in assembly, construction, packaging; not shared with other units of the same make

      2. Design Defect; defect is in the specifications of the product rather than assembly, ect.

      3. Failure to warn; the product have some inherent, nonobvious danger; even if properly assembled and safely designed, it still represents a risk of injury.


      1. Duty

        1. Duty owed to anyone within the foreseeable zone of danger from the defective product.

          1. No PRIVITY is required. Mfgr is liable for any personal injury proximately caused by his negligence. Foreseeable P (Bystander)

          2. MI AMD p411; states that there is no duty to warn of risks which are either obvious or common knowledge as judged by an objective standard.

        2. Standard of Care; is reasonable care.

          1. What is the nature of the defect?

            1. Mfg, design, failure to warn

          2. What care should have been used?

            1. Mfg defect

              1. take reasonable steps to test & inspect

              2. Neither the wholesaler or the retailer are under a duty to test or inspect unless either learned of the possibility of a defect while handling the product.


            1. Design defect

              1. Only the Mfgr can be held liable on a negligence claim.

              2. P must prove that a reasonable mfgr would not have made the product for sale to public.

              3. P must prove that a reasonable and practical alternative was known, available and in actual use at the time of the original mfgr or sale in order to prevail. The alternative must be economically and practically feasible in order to prevail. MI AMD p411

              4. Strict liability; deals with the defect in the product

              5. Negligence focuses on the manufacturers conduct. Use a reasonable person std.

            2. Failure to warn

              1. Product is not negligently made, handled, sold or assembled.

              2. Reasonable care requires a warning of the dangers

              3. Inadequate warnings or no warnings

              4. Usually negligence on the part of the mfgr, not the wholesaler or retailer.


        1. Direct evidence, failure to comply with safety stds. (can be a attack or a defense)

          1. Circumstantial evidence R.I.L.

      2. CAUSATION

        1. Same as in negligence cases

      3. DAMAGES

        1. Noneconomice damages in product liability. 280K CAP ; 500K for wrongful death or permanent loss of a vital bodily function MI.2946. jury is never advised of the CAP in MI

          1. NO CAP on damages if the trier of fact determines by a preponderance of evidence that the D was grossly negligent.

        2. Economic damages; must be “readily ascertained”, otherwise if they cannot be readily ascertained then the jury must calculate economic losses based on “state average median family income”

          1. personal injury

          2. property damages

        3. Pure” economic damages (contract) are not available. P doesn’t get the purchase cost of the item. That requires PRIVITY.

      4. DEFENSES

        1. B>P*L; did the mfgr act with reasonable care to eliminate injury that is reasonable foreseeable? p277 in supp; was an alternative available?

        2. Meeting the minimum requirement with a regulation is not a complete defense. Unless statute provides for PREEMPTION (statute states that mfgr has no liability if he complies with the statute) Compliance doesn’t preclude the possibility of liability for a design defect.

          1. express preemption; no state laws shall go against fed statute

          2. implied preemption; statute says one thing and state law says opposite

          3. field preemption; no place for state to regulate.

        3. Must compare designs that are similar; not dissimilar

        4. Meeting FDA requirement is an absolute defense, it raises an UNREBUTTABLE presumption of safety. MI .29465

        5. Modification and Misuse; decided by judge not jury

        6. Statute of limitations 3 yrs upon discovery MI .5805

        7. Comparative negligence; Assumption of risk

        8. Subsequent remedial measures are inadmissible

        9. P must establish each element of negligence. That is a failure to exercise reasonable care in the design, mfgr, packaging, labeling, and distribution.

        10. Noncompliance with any type of governmental or industry standards NEVER raises a presumption of defect (lack of care). COMPLIANCE with the governmental standard, raises a presumption of safety

        11. Foreseeable misuse and alteration are COMPLETE DEFENSES. The question of forseeability of a particular alteration or misuse is a question of law for resolution by the judge, not the jury. MI product liability amendments.

        12. Assumption of Risk; Complete defense if it warned a sophisticated user of the danger.


        1. product was not reasonably safe at time it left mfgr’s control

        2. AND a practical and technically foreseeable alternative production practice (current) was available that would have prevented harm without significantly impairing the usefulness of the product or creating equal or greater risk of harm

        3. proximate cause

        4. injury/damages


      1. EXPRESS; seller expressly represents that the goods have certain qualities.

        1. Misrepresentation concerning the nature or quality of the product makes mfgr Strictly liable for the physical harm caused by justifiable reliance on the representation. “absolutely shatterproof”

      2. IMPLIED; implied from the fact that the seller has the goods for sale.

        1. Warranty of merchantability

          1. This warranty is implied as a matter of law; UCC. Warranty is implied when mfgr markets the product and puts it into the stream of commerce, and promotes its purchase to the public. An implied warranty that it is reasonably suitable for use as such accompanies it into the hands of the ultimate consumer.

          2. Merchantable; the goods must be fit for the ordinary purposes for which the goods are used.

          3. Fitness for a particular purpose

      3. Warranty defenses

        1. waiver

        2. Privity is not a defense

    1. STRICT LIABILITY---compare with FAULT

      1. A commercial supplier that introduces into the stream of commerce a product “in a defective condition unreasonable dangerous” is liable for personal injury and property damages caused by the product’s dangerous defect.

      2. DUTY

        1. No reasonableness requirement; only in negligence

        2. To all foreseeable P’s not to sell or introduce into the stream of commerce “a product that is in a defective condition unreasonable dangerous”. If there is a breach of that duty then the D will be strictly liable for any injury that results.

          1. defect in product

          2. defect in design

            1. Consumer expectation test

              1. defective condition unreasonably dangerous when it is “dangerous beyond that which would be contemplated by the ordinary consumer who purchases it.”

              2. Rstmts “inherent characteristics” doctrine

                1. DEFENSE

                  1. the OBVIOUSNESS of the product danger.

            2. Risk-Utility test

              1. Some courts consider a product defective if its risks of personal injury or property damages outweighs its utility to society.

              2. Look at: availability of alternative designs; cost of the alternative design; Balancing test for what a reasonable person would do

                1. If no reasonable expectation by the P then use: Learned Hand Formula: B>P*L Carrol Towing.

                  1. Likelihood of harm

                  2. gravity of harm that occurred

                  3. cost of preventing harm by a different design

            3. State of the Art

              1. Defense (limitation on strict liability); D can show that the product conformed to the safest design that was technologically feasible at the time of distribution.

            4. Unavoidably Unsafe

              1. 2nd defense to strict liability.

              2. Usually pharmaceuticals; which may be incapable of being made safe for their intended and ordinary use.

              3. Product is neither defective nor unreasonable dangerous, provided adequate direction and warnings are given.

                1. It is sufficient if an adequate warning is communicated to the prescribing physician, often refereed to as a “learned intermediary”.

              4. Considered reasonably dangerous


        1. P must prove that the defect was present in the product when it left D’s control. A long lapse of time between distribution and injury may present practical problems of proof, but are not a legal bar.

        2. If the product is destroyed in the accident; P must use circumstantial evidence, inference resembles R.I.L. except that the inference concerns the existence of the defect, not D’s negligence

      4. CAUSATION

        1. Must prove both cause in fact and proximate cause as in a negligence case

      5. DAMAGES

        1. personal injury

        2. property damages

        3. economic losses is not recoverable

      6. DEFENSES

        1. Comparative (fault) negligence principles are applied to reduce P’s claim

          1. Assumption of Risk is a COMPLETE DEFENSE

        2. Alteration; was it an unforeseeable alteration; burden of proof is on D, INTERVENING causation

        3. Misuse; unforeseeable misuse; AFFIRMATIVE DEFENSE

        4. SERVICES; strict product liability doesn’t extend to services

          1. Mix of product and services; “essence of the transaction test”; is usually regarded as services


        1. Loss-shifting and loss spreading; commercial supplier are in a better position than consumers to bear the costs

        2. Deterrence; give mfgr’s an incentive to produce safer products by creating a threat of liability for failure to conform to the law requirements.

        3. Difficulties in proving negligence;

        4. R §402A


      1. D mfgr’d or sold a specific product whose defective condition

      2. proximately caused

      3. injury/damages to P


      1. improper product design; all products are dangerous

      2. improper mfgr, mistake in the mfgr

      3. failure to warn of danger or to provide instructions for use

      4. failure to inspect at pt of mfgr or point of sale









  1. ISSUE

    1. Should SJ or motion to dismiss or DV be granted?

    2. This is a Wrongful Death & Survival action (loss of consortium)


  1. RULE

    1. Element of negligence

      1. In order to make a prima facie case for negligence the P must establish each element of negligence by a preponderance of the evidence

      2. D; B; C; D;

    2. Element of the intentional tort



    1. P’s argument

    2. D’s argument

      1. All the defenses


















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