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**MENTION ELEMENTS FOR A PRIMA FACIE CASE;
DUTY Duty is a question of law (determined by judge) Duty arises out of logical connection/proximity/nexus between D’s act and the harm. Lack of Privity; No privity is required for foreseeable P’s. Protect against unreasonable harm.
Adult; objective std; reasonable person std, not flexible. (No height, weight, size) Low IQ, retarded, insane, beginner driver; too bad must do as a reasonable PP.
Exception; if D has superior knowledge add it to RPP test. Example: knowledge of street in your neighborhood Child subjective std; duty is of a hypo child of like age, experience, & intelligence. MI children under 7 in MI are not capable of negl.
Exception; child engaging in adult activities. Doctors/professionals; std of care is of average member of that profession practicing in a similar community (locality rule). Not objective or subjective but “empirical” ; look at other average doctors Carriers: in a better position to bear risk of loss than passengers Private: higher std of care; bus, airplane Public: reasonable std of care; chauffeur
Licensee: invites a person on property for other than business purposes. Activity; own RP Condition; must be concealed & knowledge. All known artificial & natural. Reasonable care Social guest
Invitee: Rightfully enter the premises by either express or implied invitation which is beneficial to the owner Activity; owes reasonable prudence Condition; hazard is concealed & O knew or s/h known. Inspect & make safe. Scope of invitation is limited Business vs. LICENSEE (NEW CHANGE); ex. stairway Can turn into a trespasser. Premises are open to the public. Excludes social guests. *MI* REASONABLE CARE: W.I.P.D. Warn; make safe Inspect to find hazardous conditions Precautions Discover
DEFENSES TO ‘P’s PRIMA FACIE CASE Open and obvious exception—concerns duty. Exception to exception: show Special condition that increases risk that w/ raise O’s responsibility. Comparative negligence—is used after you make a prima facie case first, then reduce liability
Duty to Fireman/ PO; no duty but are liable for gross negl/recklessness. MI, owner has no liability unless he did something after the firefighter arrived.
Trespasser; Enters without privilege; Undiscovered; No duty not foreseeable; no legal rt to be on land CMN LAW-no duty to make safe or warn of dangers unless there are hazardous artificial conditions MI--same; no duty to make natural conditions safe
Discovered; Activity; owe RP under circumstances Condition; no duty to natural occurrences (thin ice) only artificial occurrences that are highly dangerous, concealed, O has knowledge) “known manmade death traps. CMN LAW--duty to warn of known dangers MI--duty to use due care
Frequent trespasser; Child trespasser; CMN LAW--duty to anticipate presence of child and take reasonable care to protect child from harm MI-- No duty generally. But if there is an Attractive Nuisance (this highly dangerous condition should be eliminated), a duty is owed
Gov agency are protected from tort liability when conducting gov functions EXCEPTION; negl maintaince of road – think vicarious liability. Vicarious liability ER - EE; Respondeat Superior; Purpose; Prevent future harm Assure compensation to the victims Spreading losses
SCOPE OF EMPLOYMENT; TRIPS FROM HOME; generally not within the scope 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 Q--when commuting, does the EE perform a concurrent service for the ER? DUAL PURPOSE.
FROLIC & DETOUR; was it reasonably foreseeable? Was scope of employment resumed? FORBIDDEN ACTS, its within the scope of employment if done in furtherance of the employment function 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
INTENTIONAL TORTS, not within the scope of employment if EE acts from personal motives. Were the acts of the EE foreseeable? Was EE’s motivation separate from the job function? FORESEEABLE HARM Did the dispute arise in connection with job? What was the casual NEXUS?
INDEPENDENT CONTRACTORS; Not subject to close control Separate business Duties are not delegatable Borrowed servant rule; Dual liability rule
OSTENSIBLE AGENCY AGENCY BY ESTOPPEL When liable for independent K’r acts:
Careless supervision; Had control over EE; Negligent hiring; Negligent Entrustment (form of vicarious liability but no EE - EE. Express or implied consent Had knowledge GIVE KEYS TO A DRUNK. Negl bailment; Owners liability statute; makes owners liable for negl operation of his vehicle.
SPECIAL RELATIONSHIP connection between the P & D which establishes a duty
Public duty doctrine; insulates PO from negl unless special relationship (1) assumed relationship; (2) contract; (3) reliance. Foreseeable victim (911 operator; victim rescuer relationship; voluntarily assumed duty) Good Samaritan Doctrine-must use reasonable care;
Duty to 3rd Parties; PUBLIC business; Protect P from foreseeable harms of criminals (protect invitees from harm) Criminal conduct of 3rd person is an intervening but not supervening cause Past experiences show a likelihood for visitor to encounter danger Invitation for violence Diligence would have prevented injury, GUARDS/ WARNINGS
Reasonable identifiable 3rd persons (protect EE’s from harm)
PRIVATE persons; College, students are invitees DUTY TO CONTROL CHILDREN; MI---parents liability is limited to $2,500 because its not there act Therapist should have warned 3rd party, duty to warn known, or foreseeable Negligent entrustment MI DRAM shop act, vendor liability when serving alcohol to: Minor Or visibly intoxicated person 2 yr S of L
MALPRACTICE--Licensed professional to non-client 3rd parties. Expert testimony --can erase presumptions. 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 Has opinion been subject to scientific testing? Peer review Potential error rate Technique generally accepted Reliability
FRE 704 can have an expert opinion on the ultimate issue To establish R.I.L. 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. List customs and procedures
MI—a violation of MRPC is a rebuttable presumption of malpractice MI—Med/Mal 6 yrs S of L; non-economic damages 250K CAP; 500K CAP if palegic or loss of reproductive organ.
Fraudulent concealment; is professional aware or unaware of malpractice? Was there compensation? or just a good Samaritan? Medical Malpractice; Jury is not to be informed of medical malpractice CAP on Noneconomic damages Respondeat Superior; master/servant 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.
No explanation for instrumentality, damage to a part of the body that was not operated on. Ordinarily doesn’t occur but for someone’s negligence D was in control of the instrumentality’s that caused the harm NO contributory negligence *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. DEFENSES for D D can show customs of industry to show departure of standard of care Trade rules and Standards to show compliance with safety
*Not available against multiple D’s *P’s partial fault does not bar recovery under comparative negligence Helps P’s case because its a PRESUMPTION OF NEGLIGENCE
NONFEASANCE --NO CONDUCT in the face of a duty to act.
NO legal obligation to rescue/warn. Generally no liability It’s not negligent to provoke someone to do something. Think “open and obvious” No duty UNLESS failure to assist aggravates the injury EXCEPTION: Was there a special relationship? friendship, dating, blood relationship? Special relationship creates a duty. WHEN IS THERE A DUTY TO ACT? CONTRACT DUTY BY LAW, put that person in a position of peril DUTY BY STATUS, special relationship DUTY VOLUNTARILY ASSUMED; performance must continue, attempt to aid
MISFEASANCE--CONDUCT THAT IS NEGLIGENT
Liability unless an exception.
CONTRACT & DUTY Cannot waive or disclaim your tort liability because they are imposed by law TORT: duty is to exercise reasonable care K duties arise out of provisions in K, privity, foreseeability
BREACH-Q of fact for jury. -Failure to conform conduct to required standard of care. 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 RIL; substitute for negl & breach; doesn’t get you victory only gets you to a jury-avoid SJ or DV (negl is jury Q) STATUTE Standard of Care; Negligence Per Se; This PRESUMPTION helps to establish P’s case. P is among the type of people that the statute was intended to protect P’s injuries are among the type of harm the statute was intended to protect. Exceptions; (1) if compliance w/be more dangerous than a violation; (2) compliance is impossible (heart attack while driving & go through a red light.
CAUSATION TWO PART DEFINITION OF CAUSATION Question of fact--jury makes inferences based on facts Q of fact for jury. P must prove BRD BUT FOR cause in fact: “had D not acted negligently, P’s injuries would not have resulted:
Multiple D’s; mingled causation; 2 independent forest fires. Use substantial factor test. If yes then joint & several liability but not in MI. PROXIMATE; legal causation. Damages maybe direct ”BUT FOR” but not foreseeable, fair. Injuries were foreseeable based on D’s conduct.
Knew or should have known Negligent conduct caused the injury P’s injury was the natural, probable, result of the negligent conduct 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, it’s outside the zone of danger. Med mal negl; not gross negl. Negl rescue P tries to protect himself & hurts another while reacting Subsequent disease or accident
No Supervening cause D may be liable to a good faith RESCUER that is injured. Foreseeable?
Intervening cause: takes effect after D’s negligence. Doesn’t break the zone of causation Event that produced harm after D’s negligence. Reduces damages for D by spreading the liability. The injury was still foreseeable Substantial Factor; when multiple factors, D’s; bring about injury to P, P will argue that D’s negligence was the substantial factor that enhanced the likelihood of P’s injury.
Zone of Danger; Bystanders
Superseding cause--Breaks the chain of causation Relieves D’s of liability Unforeseeable & Unpredictable
Egg-shell P; take P as you find him; liable for loss wage; medical bills; pain & suffuring.
DAMAGES--measurable & compensable by money damages 3 TYPES OF DAMAGES; Punitive/Exemplary in MI Compensatory Economic or pecuniary; can put a definite price tag on it(medical exp.) Noneconomic or nonpecuniary; cannot put a definite price tag on it
Nominal
One recovery for everything Caps on Medical malpractice and products liability in MI *Wrongful Death, Survival action*; action is in the name if the personal representative. Damages are awarded that are fair & equitable. Ways to measure pecuniary damages: Loss of Support, love and affection, service, Loss to the Estate, medical, funeral burial expenses Loss of Consortium, parental training, companionship, enjoyment of physical abilities This is for future damages. Compare with claims for emotional distress, which seeks damages for current or past injuries.
NONPECUNIARY damages; Punitive damages Mental anguish or grief to survivors Loss of consortium (loss to society, services, guidance and care)
Emotional Distress only needs to be in the Zone of Danger to collect for emotional distress. No physical injury is required. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS—P GETS PUNITIVE DAMAGES Extreme AND outrageous conduct Intended (recklessness) to cause …E D Behavior does cause E D Knowledge of a persons particular sensitivities
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS—NO PUNITIVE DAMAGES Negligence Impact/contact Physical injury Extreme Fright Generally NO recovery for fright alone. EXCEPTION: Physical Manifestation Rule: No contact needed Must be within the zone of danger, at or near the crime scene; visually watching as opposed to hearing about it from someone else Fear, worried Need proof of distress. Krap allot
Physically endangered but not struck OR P, (relative in the ZONE OF DANGER) observes the danger or injury to victim and the victim is close relative. Usually when the Statute of Limitations runs for the battery (2yrs), people sue on the emotional harm because the Statute of limitations is 3yrs.
FEAR OF FUTURE HARM; Must be more likely than not 50% Rather than a remote possibility—is insufficient Absence of present physical injury will not preclude recovery
MI PRENATAL HARMS—NOT RECOGNIZED IN MI Only wrongful life yes in MI. Not wrongful conception Not wrongful birth
Loss of Consortium; is based solely on relationship. It’s a kind of E D Personal Bodily injury/correctable injury Work Loss Serious Impairment/disfiguring PUNITIVE; CALLED EXEMPLARY DAMAGES IN *MI* (considered compensatory damages in MI) Money damages
DEFENSES-CHALLENGES TO A PRIMA FACIE CASE AFFIRMATIVE DEFENSES: Statute of limitations is an affirmative defense--that is it’s an absolute bar to recovery. It can be tolled: minor, insanity MI statute of limitations .5805, p124 General torts 2yrs assault/battery Prof Malpractice 2yrs from last date of treatment Wrongful death 3yrs death to a person or injury to a person or property Products liability 3yrs UCC 4yrs K-non UCC 6yrs
Extension; have 1 add’l yr beyond reaching the age of majority or being sane. .5851
STATUTE OF REPOSE exception to the limitation period. It establishes and outer limit to D’s exposure. Not proximate cause; is an AFFIRMATIVE DEFENSE Supervening illegality that was no foreseeable. Breaks the chain of causation. It was NOT the natural, legal. or reasonably foreseeable consequence.
Outside the Zone of Danger: bystander’s presence and squeamishness were not foreseeable. Therefore, no duty of care is owed to bystander Categories of persons that are owed a duty of care; close relatives. These people are foreseeable.
Immunities to tort actions. Can always sue under K actions Government; Discretionary Function Defense, immune while engaged in a governmental function FERES Doctrine, military personnel are injured while on duty doing military services WHY? Military provides compensation, so workers comp is the only remedy. Were injuries INCIDENT to service or post service?
EXCEPTIONS; No immunity for gross recklessness §1983 Civil Rights Violation. Violate any person of a right or privilege protected by the constitution §1985 CONSPIRACY TO INTERFERE WITH CIVIL RIGHTS, jury tampering 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. Governmental buildings; government is liable for bodily injury and property damages from a defective condition the government agency had actual or constructive knowledge of. 2 yr S of L to sue GOV; ULTRA VIRES; acting beyond the scope of your authority
State/municipal; 11th amendment immunizes states from citizens. Preserves state power. Immunity stops at the constitution. 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. EXCEPTION: PUBLIC DUTY DOCTRINE: An official/officer is liable if injury to public; not to an individual person. SCOPE OF PEOPLE; certain groups Special relationship Was victim reasonable identifiable? Release of sexual offender.
ULTRA VIRES; acting beyond the scope of your authority MI—liability for defective highways MI—duty to repair public buildings
Spousal immunity; WHY? Shared resources Discourages fraud One economic unit—share proceeds
Parent /child; even foster-parent, step-parent, adopted-parents Child must be a minor Non-custodial parent is not immune (school) Exceptions Necessities of life Child abuse is punishable Negligent supervision Negligent treatment of sickness or injury
Child under 7; ABSOLUTE DEFENSE; 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
LIMITATIONS ON RECOVERY; Assumption of risk (MAY CONSTITUTE COMPARATIVE NEGLIGENCE): assume equality of bargaining position. If not then void Express; WAIVER is an express assumption of risk Implied; minority view; look at P behavior (voluntary & w/ knowledge) *MI* doesn’t recognize implied (by conduct) assumption of risk except in cases of employment that is not covered by worker’s compensation. Not a defense to an intentional tort WAIVER is an expression of assumption of risk. MI rolled assumptions of risk into comparative negligence EXAMPLES: 50 yr. old plays hockey, drag race Two requirements; either express or implied P knew of the risk in Q Voluntarily consented to bear that risk.
Consent is like assumption of risk/comparative negligence Comparative Negligence-(46 states)-burden of proof is on the D MI; not wearing a seat belt is an automatic reduction of 5% MI; pure comparative for economic loss (med & lost wages) MI; Partial comparative negl for noneconomic & pain & suffering (tort caps) Not a bar to recovery, but a reduction of damages to be received by P. JOINT AND SEVERAL LIABILITY; *MI* has only Several liability EXCEPTION--Medical Malpractice cases if the P is determined to be without fault, each defendant is jointly and severally liable P’s , 50% at fault; D’s are severally liable with reallocation
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; were intoxication a substantial cause of the disaster?
*MI* PURE if P is 90% negligent; P collects 10% of total damages *MI* MODIFIED 50% Rule; if P & D are 50/50 at fault (P was intox) then P gets nothing *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
Contributory Negligence--burden of proof is on the D Only in 4 states 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”
Drunk Driving; OUIL Operating Under the Influence of Liquor; if blood alcohol level is .1% or more its a violation of a statute. NEGLIGENCE PER SE
STRICT LIABILITY No intentional conduct; compare with nuisance Strict liability: not restricted to property to property situations Imposed on sellers of products only if product is defective No privity (K based) required if foreseeable user (tort based) Not necessary to establish implied/express warranty; mfgr is strictly liable NO strict liability in MI ABNORMALLY DANGEROUS ACTIVITY Six Factors to consider: Is there a high degree of risk to others? Is the harm that is likely to be serious?
The risk cannot be eliminated by exercise of reasonable care The activity is not common The activity is not appropriate for the place where it is carried on The danger outweighs the activities value to the community. Example: Nuclear reactor Explosives Airplane accidents
DAMAGES; no s/l in MI;
NUISANCE Think possession of property Intentional (state of mind) harm to property Substantial harm; lose of market value, convienience, disturbance Unreasonable; harm to property Interference with land
PRODUCT LIABILITY Product Defects; Mfg. defect; particular unit for error in assembly, construction, packaging; not shared with other units of the same make Design Defect; defect is in the specifications of the product rather than assembly, ect. Failure to warn; the product have some inherent, nonobvious danger; even if properly assembled and safely designed, it still represents a risk of injury.
Three Theories: Negligence Strict Liability Warranty
NEGLIGENCE; Duty; Duty owed to anyone within the foreseeable zone of danger from the defective product. No PRIVITY is required. Mfgr is liable for any personal injury proximately caused by his negligence. Foreseeable P (Bystander) 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.
Standard of Care; is reasonable care. What is the nature of the defect? Mfg, design, failure to warn
What care should have been used? Mfg defect take reasonable steps to test & inspect 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.
Design defect Only the Mfgr can be held liable on a negligence claim. P must prove that a reasonable mfgr would not have made the product for sale to public. 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 Strict liability; deals with the defect in the product Negligence focuses on the manufacturers conduct. Use a reasonable person std.
Failure to warn Product is not negligently made, handled, sold or assembled. Reasonable care requires a warning of the dangers Inadequate warnings or no warnings Usually negligence on the part of the mfgr, not the wholesaler or retailer.
PROOF OF BREACH; Direct evidence, failure to comply with safety stds. (can be a attack or a defense) Circumstantial evidence R.I.L.
CAUSATION; Same as in negligence cases
DAMAGES; Non-economic 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; NO CAP on damages if the trier of fact determines by a preponderance of evidence that the D was grossly negligent.
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” Personal injury Property damages
“Pure” economic damages (contract) are not available. P doesn’t get the purchase cost of the item. That requires PRIVITY.
DEFENSES; B>P*L; did the mfgr act with reasonable care to eliminate injury that is reasonable foreseeable? P277 in supp; was an alternative available? 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. Express preemption; no state laws shall go against fed statute Implied preemption; statute says one thing and state law says opposite Field preemption; no place for state to regulate.
Must compare designs that are similar; not dissimilar Meeting FDA requirement is an absolute defense, it raises an UNREBUTTABLE presumption of safety. MI .29465 Statute of limitations 3 yrs upon discovery MI .5805 Subsequent remedial measures are inadmissible P must establish each element of negligence. That is a failure to exercise reasonable care in the design, mfgr, packaging, labeling, and distribution. 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 Unforeseeable 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. Assumption of Risk; Complete defense if it warned a sophisticated user of the danger.
MICH PRODUCT LIABILITY; PRIMA FACIE CASE; Product was not reasonably safe at time it left mfgr’s control 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 Proximate cause Injury/damages
D. WARRANTY (law-UCC)
EXPRESS; seller expressly represents that the goods have certain qualities. 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”
IMPLIED; implied from the fact that the seller has the goods for sale. Warranty of merchantability; 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. Merchantable; the goods must be fit for the ordinary purposes for which the goods are used. Fitness for a particular purpose
Warranty defenses; Waiver Privity is not a defense
STRICT LIABILITY---compare with FAULT 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. DUTY; No reasonableness requirement; only in negligence 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. Defect in product Defect in design Consumer expectation test; Defective condition unreasonably dangerous when it is “dangerous beyond that, which would be contemplated by the ordinary consumer who purchases it.” Rstmts “inherent characteristics” doctrine DEFENSE The OBVIOUSNESS of the product danger.
Risk-Utility test; Some courts consider a product defective if It’s risks of personal injury or property damages outweighs its utility to society. Look at: availability of alternative designs; cost of the alternative design; Balancing test for what a reasonable person would do If no reasonable expectation by the P then use: Learned Hand Formula: B>P*L Carrol Towing. Likelihood of harm Gravity of harm that occurred Cost of preventing harm by a different design
State of the Art; 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.
Unavoidably Unsafe; 2nd defense to strict liability. Usually pharmaceuticals; which may be incapable of being made safe for their intended and ordinary use. Product is neither defective nor unreasonable dangerous, provided adequate direction and warnings are given. It is sufficient if an adequate warning is communicated to the prescribing physician, often refereed to as a “learned intermediary”.
Considered reasonably dangerous
PROOF OF DEFECT; 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. 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
CAUSATION; Must prove both cause in fact and proximate cause as in a negligence case
DAMAGES; Personal injury Property damages Economic losses is not recoverable
DEFENSES; Comparative (fault) negligence principles are applied to reduce P’s claim Assumption of Risk is a COMPLETE DEFENSE
Alteration; was it an unforeseeable alteration; burden of proof is on D, INTERVENING causation Misuse; unforeseeable misuse; AFFIRMATIVE DEFENSE SERVICES; strict product liability doesn’t extend to services Mix of product and services; “essence of the transaction test”; is usually regarded as services;
RATIONALES FOR STRICT LIABILITY; Loss-shifting and loss spreading; commercial supplier are in a better position than consumers to bear the costs Deterrence; give mfgr’s an incentive to produce safer products by creating a threat of liability for failure to conform to the law requirements. Difficulties in proving negligence; R §402A
PRIMA FACIE CASE FOR STRICT LIABILITY; D mfgr’d or sold a specific product whose defective condition Proximately caused Injury/damages to P
THEORIES; Improper product design; all products are dangerous Improper mfgr, mistake in the mfgr Failure to warn of danger or to provide instructions for use Failure to inspect at pt of mfgr or point of sale
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