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Torts Study Aids



INTENTIONAL TORTS ..........................1

Battery ....................................2

IIED .......................................3

False Imprisonment .........................3

Privileges .................................4

Invalid Consent ............................4

Defense (self + others) ....................5

Necessity ..................................6

NEGLIGENCE .................................6

custom .....................................7

The Professional ...........................7

defenses ...................................8

proof of negligence ........................9

CAUSATION ..................................9

Probability cases ..........................9

Multiple D cases ...........................10

Joint and Several Liab. ....................10

Valuation cases ............................11

PROXIMATE CAUSE ............................11

Intervening Causes .........................12

Special Categories .........................13

Failure to Act .............................13

Negligent Infliction of E.D. ...............14

Loss of Consortium .........................15

Child Bearing ..............................15

Economic Loss ..............................16

Intoxicant Providers .......................16


Defenses to Negligence .....................17

Contibutory Negligence .....................17

Assumption of the Risk .....................18

Statute of Limitations .....................19

DAMAGES ....................................19

compensatory ...............................19

punitive ...................................20

VICARIOUS LIABILITY ........................21

Strict liability ...........................21

PRODUCTS LIABILITY..........................22

strict tort liability ......................23

standard negligence law exceptions .........24

special issues .............................25

defenses ...................................25



3 categories: intentional


strict liability


I. Tort Lawsuit

A. Alternatives

B. Procedure

1. Complaint

2. Motion to Dismiss

3. Motion for Directed Verdict

4. Instructions

5. Verdict

II. Using Case Authority

A. Factual Similarities/Differences

B. Determining Importance

III. Intro to Evaluation of Tort Rules

A. Strict Liability v. Negligence

B. Analytical Method

1. Utilitarian

2. Moral




ct/jury more likely to impose liability where person intentionally causes damage

availability of punitive damages more frequent

difference in statute of limitations

insurance may be unavailable in some instances

cases: Spivey

Vosberg : the wrongdoer is liable for all injuries resulting from the wrongful act which he intended to cause, whether they could or could not have been foreseen by him.



A. Intent to cause harm

i. must realize to a substantial certainty that contact is offensive


ii. contact must be harmful or offensive

iii. see Garrett v. Dailey: age is not a factor as long as defendant understood the nature of the act

B. Consequences

II. Legal Problem Solving

A. Use of Multiple Case Authority

B. Resolving conflicts in case authority

III. Intent's Meaning

A. Tort

B. Other Contexts

1. Worker's Comp. Case: B.B. v. Insurance Co. -- defendant's intent is looked at subjectively while plaintiff's harm is looked at objectively

2. Insurance

IV. Rational

A. Moral

1. Vengeance

2. Non-reciprocal risk

3. Correct wrong

B. Utilitarian

1. Compensation

2. Deterrence

3. Efficiency

4. Wealth Distribution




have to prove conduct intentional and extreme and outrageous which causes severe emotional distress

cases: Swenson, Alcorn, Logan, Harris:

1. Plaintiff's emotional distress does not have to be manifested in physical injury in order to prove severe emotional distress.

2. Defendant must consciously disregard a very high risk that conduct will cause a harm (a very high standard to prove)

3. Courts consider the time, repetition and range of insults in making a decision whether extreme and outrageous behavior exists.

4. High standard of severe emotional distress imposed because courts want to keep small cases and false claims out of court.


A. Intent D. Cause

B. Consequences E. Why different?

C. Conduct


VI. Torts Political Cultural Context

A. Tort as tool for social change

B. Significance of socio-cultural context



A. Elements

1. Intent

2. Cause -- actions must cause confinement

3. Confinement

· must be against plaintiff's will and where there is a threat of force plaintiff must have reasonable belief that force will be carried out.

· moral confinement not enough

· could be retention of plaintiff's property

· no consent by plaintiff

· a risky escape by plaintiff does not allow for recovery

4. Consciousness

B. Privilege

C. Cases: Whittaker, Coblyn v. Kennedy



*cannot be brought up until all the evidence has been introduced

*doesn't have to be explicit statement

I. Consent

*if consent given, there is no intent to cause tort

*legal standard is whether reasonable person would have understood this conduct to be consent.

*plaintiff must understand what they're consenting to.


A. What makes consent invalid

1. Criminal Acts -- consent to criminal act invalid, to protect a class of persons

2. Mistake -- invalidated if consenter makes a substantial mistake as to the nature of the invasion or as to the harm to be expected and the mistake must be either known by defendant or induced by his representation.

3. Duress -- if consent occurs under duress, not valid


B. Circumstances in Health Care Where Consent is Questioned

1. Emergency -- if plaintiff is unable to give consent, courts will render substituted judgment based on clear and convincing evidence of what plaintiff would have wanted. See: In Re Ac

-- best interest approach: no intrusion for other's benefits unless there is an agreement between family and doctors and not taking advantage of someone


Consent is inferred when 1 of 4 factors exists:

1. lifesaving treatment (generally but not always-depends on #4.)

2. preventing suicide

3. maintaining ethical standard of profession

4. protect 3rd parties (mother to child)



2. Exceed Consent -- consent to 1 thing can be applied to another but not always. See: Kennedy, Bang

3. Social Interest -- is society better off? ct. upholds constitution In Re Brooks

C. Third Party



A. Person

1. Self -- retaliation not self defense. This plaintiff must reasonably have believed that force was necessary. The means of force must be reasonable

2. Others -- split of authority. Some allow if 3rd party is right only, others allow 3rd party to make a mistake.

3. Cases: Saunders, Courvoisier

B. Property

1. Land

2. Personal

*general prohibition against use of deadly force. First course of action must be notification. Defendant needs to request other to stop interfering. Means of force must be reasonable. See: Katko

C. Recurring Considerations

1. Necessity

2. Amount of Force

3. Mistake -- particular plaintiff must reasonably believe a threat of force occurred.




* usually does not arise as a defense for intent. tort of battery but for trespass and conversion. Arises if party reasonably believes trespass is necessary in order to prevent serious imminent harm to person. * privilege to harm property interest of plaintiff where necessary to do so in order to prevent great harm to 3rd persons or defendant.

Complete privilege -- defendant does not have to pay.

Incomplete privilege -- defendant had a right to act but still has to pay.


A. Public v. Private -- concern over how much people can afford to pay.

Public -- complete privilege -- when a great number of people are harmed by the act. See Cordas

Private -- incomplete privilege -- when danger only effects 1 or 2 person's property. SeeVincent

B. Reconciling Cases

1. Important Factors

2. Interest being served




I. Standard of Care

-- reasonable person standard similar to strict liability. There is an element of unfairness because your asking people to do something they may not be capable of. But courts need standard juries can understand.


A. General Standard -- liability imposed where risk of harm created by defendant is unreasonable. Failure to use ordinary care. See Brown v. Kendall. Analytical approach:

· did defendant fall below standard of care?

· was it cause in fact of plaintiff's injury?

· was it proximate cause of plaintiff's injury?

· special situations (contributory negligence, privilege, emergency, custom)

-- plaintiff has to show damage, legal duty, failure to conform to legal standard, conduct is proximate cause, and freedom from contributory negligence

1. Alternative Standards

a. best judgment -- not applied, intelligence not a factor

b. Reasonable Woman -- only in circumstances where gender is a concern

B. How Determine (B<PxL)

-- whether reasonable person would have recognized the risk and would have striven to avoid it. If costs are greater than benefits its unreasonable. Don't want to make companies spend more on safety than they get for it. See U.S. v. Carroll Towing


C. Noticed Variations -- physical characteristics taken into consideration

1. Children -- intelligence taken into account for reasonable child of like age

2. Emergency -- like Cordas: reasonable person standard in same situation

3. Physical Disability -- if sudden disability, not held liable


D. How Determine: Custom

1. General Rule -- not conclusive to prove defendant's negligence but will be taken into consideration.

2. Rationale

a. Free market critique -- info about safety issues may not easily be had by public so custom doesn't control


E. How Determine: Rule of Law

F. Special Case of the Professional

1. The Standard of Care -- custom is the control only in medical malpractice suits. Doctor who follows customary practice of even respectable minority of physicians will have met standard of care.

2. Proof

3. Informed Consent -- doctor has duty to fully inform patient of any risk

a. elements

(1) Failure to Inform

(2) Material Risk -- courts split between professional (custom) standard and patient standard

(3) Causation

i. failure to inform caused injury

ii. had patient known risk, would have refused surgery. Court adopts "this patient" standard as opposed to reasonable standard in determining this. See Scott v. Bradford

(4) Injury

b. Defenses

1. Therapeutic Privilege

a. best interest of patient not to be informed due to their fragile mental state

b. or where its medically counter-effective for physical well-being of patient (find another problem during surgery)

c. where family consent is impossible

2. Common Knowledge (to material risk)

3. Emergency

4. Waiver

4. The Medical Malpractice Scene

a. reform

b. evaluation

(1) info needed

(2) evaluative criteria



G. Proof of Negligence

1. Expert Testimony -- Plaintiff's burden to introduce another medical expert. Very difficult burden. Defendant finds own.

See Daubert

2. Circumstantial Evidence (res ipsa loquitur) -- "the thing speaks for itself" Plaintiff has to prove that defendant had exclusive control over the event which caused the injury and that the injury would not normally happen if reasonable care had been used. Defense is to disprove one of the above factors.

See Escola v. Coca Cola, Boyer v. Iowa H.S.



A. Basic Test -- "but-for"

B. Why causation requirement? -- to provide an accurate deterrant message. Liable only when negligence increases accident rate -- pay for injuries behavior has increased chances of occurring (proportion argument)

1. Moral/non-instrumental

2. Utilitarian/instrumental


C. Proof of Causation

1. Strict Scrutiny -- evidence does need to be scientific knowledge capable of being tested, subjected to peer review, and published. A minority theory not published could be admitted if advanced by scientists with credentials. Daubert (fed cases)

2. Traditional -- only generally accepted scientific theories allowed. If minority opinion, not allowed. See Frye


D. Probability Cases -- evidence is statistics. See Falcon, Scafidi

1. Injured Plaintiff -- Plaintiff must prove more likely than not that defendant's negligence caused injury

2. Increased Risk to Plaintiff -- unless plaintiff can show that it is more probable than not that he will be injured in the future, P cannot recover anything now and must wait till he actually incurs the harm.


E. Multiple D cases

1. Theories

a. Alternative Liability -- Summers v. Tice. all Ds negligent and before the court. If P can't pinpoint which D but knows its 1 of them, burden of proof shifts to D's. D's have to prove they did or did not do act and provide evidence.

b. Concert of Action -- common plan/tacit understanding that all D's operated in same way and are therefore all liable.

c. Enterprise Liability -- (same) joint control of risk, each D is liable. Failure to delegate safety standards to industry trade associations.

d. Market Share -- Sindell, Smith v. Ely Lilly. D's pay according to their share of the market where P is unable to identify which one caused injury and where they are negligent. P has to prove:

1. P's injury occurred from the product

2. all D's were negligent

3. all D's made product

once these factors are proven, then it differs between states among 5 competing theories.


2. Considerations

a. Joint and Several Liability -- D's acted independantly but they caused indivisble harm. Each liable together for whole amount. One who has $ pays. Applicable to concert of action, enterprise, and alternative liability, not market share.

b. Burden of Persuasion -- shifts to D

c. Broad/Narrow policy


F. Valuation cases (Cause in Fact) -- regardless of D's negligence the P wouldn't have survived. D is then liable for the value of P's life, what D took away from P. Life in a maimed condition worth less than a normal life. See Dylan v. Twin State

Exception: Bartelone v. Jeckovich: egg-shell skull. Take P as you find him. D pays for deprivation caused regardless of whether you would expect injury to occur.


IV. Proximate Cause -- P must survive directed verdict to make this cause of action.

A. Vs. Cause

B. Bizarre results

1. bizarre P -- no recovery if P was not reasonable foreseeable. Broad view Kinsmen. Narrow view Wagner.

2. weird consequences -- Restatement - no proximate cause if consequences were highly extraordinary. Major exception: egg-shell skull. WMI -- liable only for foreseeable consequences.

3. weird type of harm

4. weird manner of harm -- way it happened doesn't matter as long as consequences are reasonably foreseeable.


1. Direct results test -- See Dellwo, Polemis -- liability imposed for any harm that may be said to have directly resulted from D's negligence no matter how unforeseeable or unlikely it may have been at the time.

2. Reasonable Foreseeability Test -- See WMI & WMII -- liability limited to results that are of the same general sort that made D's conduct negligent in the first place (generally foreseeable as to kind of injury and person injured) a natural and expected result

a. foreseeable plaintiff -- See Wagner, Palsgraf -- if P not in zone of danger then D not liable

b. modifications -- See Kinsman D held liable for unforeseeable consequences in 3 cases:

1. when consequences are direct

2. and the damage is of the same general sort that was risked

3. damage came from same forces that required extra care by D in first place.

3. Unforeseeable manner

4. Rationale

a. impt. factors

b. relation to goals


C. Intervening Causes -- takes place after D's negligence and contributes to negligence in producing P's injury. Some are superceding -- sufficient to prevent D's negligence from being held as proximate cause of injury. Cancels D's liability.

1. Touchstone - Foreseeability



forsee. consequences unforsee. consequences

foreseeable intervening liableliable



unforesee. interven.






2. Criminal Act -- 3 factors determine

a. foreseeability

b. whether D's negligence creates a greater possibility that criminal act will occur.

c. truly bizarre hospital negligence -- so bizarre courts identify it as superceding cause

3. Policy


V. Special Categories -- is there something special that happened so we won't hold D liable?

A. owners and occupiers

1. old rules

2. new rules

B. Failure to act

1. general rule -- no general duty to rescue

a. why/why not?

i. philosophical

ii. instrumental

2. liability situations -- Farwell, Erie v. Stewart give following instances of duty to care

a. special relationship -- limiting principles

1. people with expertise

2. need specific threat made against specific individual/foreseeable group of P's.

b. D responsibility for predicament

i. cause accident

ii. promise and reliance -- Nixon: courts require that P relied on promise to P's detriment and the D knew that the carrying out of the promise was important to P.

c. undertakings to help

1. is act D engaged in an undertaking to help?

2. did D's act put P in worse position?


3. obligations to protect -- when harm to P comes from 3rd party

·Parent/Child -- when injured P seeks damages from parents whose children cause damage. Courts allow recovery for 3 reasons:

1. parent has to know parent's ability to control child

2. parent knows need to exercise control and has opportunity to do so.

3. dangerous behavior must be directed at specific group of people.


a. when arises -- when the harm is foreseeable

b. what must D do? -- act reasonably to protect foreseeable victim. Tarasoff


C. Negligent Infliction of Emotional Distress

1. harm directly to plaintiff

a. physical impact/subsequent physical injury rule:

less than minority--there must be physical impact on plaintiff to recover damages

i. why

ii. normal reaction rule:

Majority rule--physical injuries must arise out of emotional distress to recover

iii. just serious e.d. rule:

minority rule--P must suffer severe emotional distress, no physical injury required

· first 2 tests capable of objective analysis, cuts down on false claims. Foreseeability holds D liable exactly in proportion to his fault. Does not recognize egg-shell skull.

b. what = direct


2. Bystander Plaintiff cases

a. zone of danger -- P is within danger--either experiences injury or have fear of injury

b. Dillon rule -- holds D liable only for injuries which were reasonably foreseeable. Majority rule.

c. Thing rule -- recovery if:

1.P is closely related to injured victim

2.P's present at scene at time it occurs and aware its causing injury to victim

3.as a result suffers emotional distress beyond that of a disinterested witness

3. Evaluation: what should be the rule?

a. justice

b. redress social grievance

4. Loss of consortium

a. adult relationships rule: no recovery for non-married couples Feliciano

b. parent - child: no clear standard, no double recovery allowed. Minority allow recovery, cts moving in that direction

c. rationales


D. Child Bearing:

Possible damages: emotional, economic-pain of pregnancy, expenses of child raising (latter almost always recoverable)

1. Suits by parents --See Turpin , Fassoulas

a. wrongful death--is allowed in most jurisdictions. Allow damage recovery for viable fetus, not for preconception

b. wrongful birth

i. unwanted child but healthy--

1. total offset (majority) healthy child offsets an costs. Benefits of child care offset by cost of child rearing

2. partial offset (minority)

3. no offset -- parents can recover full cost of raising children till majority age

ii. disabled child --splits in ct over age limit--full life? damages are for emotional distress


2. Suits by children

a. prenatal injuries --universal recovery if fetus born alive

b. preconception injuries--negligence to an ancestor caused child's injury from person from 3rd generation. some cts allow recovery. See Lurch, Eli Lilly, Grover

c. wrongful life--no major cts allow recovery for it, but extraordinary expenses awarded. Hasn't been considered in last decade. Injury not recognized by law--means child would not have been born. Damages too speculative. Some states have statutes disallowing claims for wrongful life to discourage a rise in abortions.



E. Economic Loss

1. general rule--no recovery for econ loss except if: (Eire)

the physical injury is foreseeable

P is in zone of danger

D has a duty to P

a. exceptions

b. broader modification

2. rationale


F. Intoxicant Providers--dram shop act is a statute imposing liability on liquor vendors

1. social host liability--majority do not impose liability. exception is Kelly v. Gwinell p.239 S


G. Negligent Entrustment --Vince v. Wilson(liability) Petersonp.180 S grandmother unreasonable in allowing 16yr old to use car since he did not have license


VI. Joint and Several Liability --see handout

A. Nature -- applies to intent. torts and negligence. when 1 D has no $, insurance, other D's have to pay. All liable together and each one is liable for whole amount.

B. Rationale


C. Subparts

1. satisfaction--only 1 recovery for satisfaction of claim

2. release--like settlement--P can't recover outside of any agreed amount--can only recover what he settles for

3. contribution

4. indemnity


D. Applications

1. Multiple P's

2. Settlement


Defenses to Negligence

A. Nature

B. Contributory Negligence--P was negligent--completely bars P's recovery. Butterfield v. Forrester

1. Rationale


C. Comparative Negligence/Fault--ct determines who is more negligent and that party pays more:

1.pure comparitive negligence: subtract P's negligence from total recovery. Each D pays P for share of fault only.

2.not greater than (so long as P's fault is not > D)

3. not as great as (so long as P's negligence not as great as D) modified comparitive negligence.


· most cts combine negligence of D's to determine whether P's negligence is not as great as D's. If P is 50% liable, no joint and several liability:

Ex: G (50%) v. M (30%) + SEF (20%)


1. types

2. applications

3. evaluation


D. Assumption of the risk

1. Express--did P expressly assume risk? P has to be aware of agreement and to those terms. 3 standards:

a. was P aware of risk?

b. did P understand magnitude of risk?

c. did P voluntarily encounter risk?


1. no bargaining power--no free choice

2. violation of public policy

3. matter of public necessity

4. existence of a form contract


2. Implied -have to define risk:

1. knowledge of risk

2. knowledge of existence and magnitude of risk

3. voluntary encountering of risk

subj. v. obj.: (subj) 50% courts before absolving of liability have to have consent of P. Make D more activist job of getting info

(obj) people should be free to engage in activity. D's do not owe duty of care. Don't want suits in situations where most people know risk -- common knowledge. Part of comparitive negligence. 50% courts.

a. elements

b. rationale -- Delgado article

c. continued existence


3. Primary -- if P unreasonably assumes risk, cts treat it as comparitive fault. D does not have duty with respect to a certain class of people, no liability. In order to deny assump. of risk P must show that he was not anticipating negligence in general. Person under emergency not voluntarily encountering risk. Knight v. Jewett, Hacker


E. Statute of Limitations--typically must be begun within 3yrs after cause of action shall accrue. When does it?

1. time of last exposure

2. diagnosable injury

3. when injury is discovered or reasonably should have been

4. when both injury and cause of injury is discovered or reasonably should have been discovered (most cts choose this + dissent in Anthony)

5. when injury and cause and that D's wrongful conduct is discovered or reasonably should have been (majority in Anthony)


· many states have adopted "Statute of Repose" no cause of action more than 8-10 yrs after P is injured regardless of when discovered. Usually only in products liability. Has been attacked as unconstitutional--after manufacturor sends out product, clock starts ticking.


1. basic rule

2. interpretive choices

F. Immunities

1. Family -- abolished in most states

2. Governmental -- state/local & fed.



A. Compensatory

1. expenses

a. collateral source--damages cannot be reduced by collateral payment from another source. NY gets rid of rule. Coyne v. Campbell: does not apply collateral source rule.

2. avoidable consequences-- a tort P may not recover any damages which he reasonably could have avoided. Split of authority whether these cases can go to a jury. No Egg-shell skull only pay for those injuries they in fact caused -- not extra injury for unusually constituted person.

3. lost earnings:

1. determine P's earning capacity

2. determine extent of disability--total/partial

3. expected duration of disability


a. calculations

b. adjustment -- can order remittur on appeal. Might remitt to lower $ amount or have new trial. If P won't accept less in damages then new trial. Standard is not clear--grossly excessive/shocks conscious, unusual but not rare

i. taxes--damages not subject to taxation but after tax income reduction (salary determined after taxes taken out -- not taxing all damages)

ii. present value

iii. inflation

4. Non-economic -- it depends, cts split. Per Diem argument is "a day in the life". Golden rule -- can't ask juries to put themselves in P's position

a. components -- ways D can knock down award:

1.use discounted value

2. periodic payments instead of lump sum

3. get legislature to put caps on damages

b. abolish/limit?


B. Punitive -- usually awarded when P suffers serious catastrophic injury. P collects 50% on average. 25% of P's get nothing because D doesn't pay. Many cases on appeal.

1. should they exist?

2. what conduct is enough?

3. insurable?

1.what standard should be applied? higher standard is clear and convincing evidence. routinely available in intent. torts. D must have actual malice to be awarded damages/ reckless disregard for human life.

2. can D require liability insurer to pay? cts split, depends on insurance contract. NY - liability for punitive damages is against public policy because having insurer pay removes desired effect of deterrence.

3. vicarious liability? can 3rd party be made to pay? yes (a) if D acting under official authority. (b) If 3rd party not outside proximate cause of D's act. (c) If D's act not intervening criminal act. (d) if D acted intentionally, 3rd party usually not liable. 3rd party can sue for idemnification


VICARIOUS LIABILITY -- when you hold 1 D liable for something someone else did. Form of strict liability.


A. Issues

B. Employee v. Independant Contractor (gen rule not liable)

C. Scope of employment (tests)

1. control: control of conduct of I.C.

2. enterprise: engaged in furtherance of D's business?

3. characteristic: was activity characteristic of those engaged in by employees?

D. Independent Contracts No liability - Exceptions

1. employee not liable if in charge of hiring/supervising

2. actor involved in non-delegable activity determined by statute

3. actor's work is inherently dangerous

E. Rationale

deep pocket theory, deterrence, risk spreading


STRICT LIABILITY A.D.A. : if D engages in certain activity, then the D is liable for injuries that are caused and prox. caused by engaging in that activity


A. Animals

1.Domestic: no liability gen., unless owner knew animals dangerous tendencies. First Bite Rule.

2. Wild: liability


B. Abnormally Dangerous Activities

1. How determine: §520 not common usage, no necessity to public, presents unusually high risk

a. non-natural use

b. restatement factors

i. why impt?

ii. why common usage

iii. value to community

2. Difference from negligence? : dressed up negligence -- no incentive for safety. Reasons why strict liab. deters:

a. affects initial decisions about whether to engage in activity or not. Co. knows it will be liable in advance. Costs outweigh benefits

b. but only works for those injuries which make risk abnormally dangerous in first place.

3. Rationale

4. Defenses



I. Causes of action

A. Intentional: used to get punitive damages (int. false statement that P relied on)

B. Negligence: can be combined with Warranty c/a.


C. Warranty

1. Implied

a. fitness for particular purpose -- product recommended by knowledgeable seller, will meet needs of buyer at time of purchase.

b. merchantability -- ct rejects privity argument

2. Express -- promise that product will perform in certain way. Cts split:

some: must prove reliance on warranty for recovery

others: P doesn't have to prove reliance. P has bought express warranty and should get benefit of bargain.

3. Problems

a. privity -- (the handshake-- a neg. manufac. is liable to a remote purchaser--no privity required) persons not in privity w/ D may recover for breach of express warranty. Doesn't have to show awareness of express warranty.

b. disclaimer -- a seller may disclaim both E & I warranties

merchantability: disclaimer must be conspicious.

Fed law: no disclaimer of any imp. warranty on a written warrranty given to a consumer.



Winterbottom: no liability outside privity of contract b/c it would extend liability to everybody.

MacPherson: privity is outside the law. If you foresee that people are going to be hurt, then you are liable for that group of people.

Henningsen: D liable for those P's foreseeably within privity though it may not be directly. Disclaimers violate public policy b/c unequal bargaining power.


D. Strict Tort Liability

1. History

2. What kind of claim

a. manufacturering -- this product is diff. from other similiar products

b. design -- all products are the same, liability can wipe out a co., explains why P has burden of persuasion

c. marketing -- failure in instructions/warnings. They must be reasonably clear and conspicous. No recovery for open and obvious danger

3. Why strict liability?

4. Standards/Tests

a. manufacturering defects

b. design/marketing defects

·market. 3 criteria from Sheckells:

1. knows chattel likely to be dangerous

2. has no reason to believe chattel will realize its dangerous condition

3. fails to exercise reasonable care to inform them and its dangerous.


i. consumer expectations -- reasonably foreseeable. Don't need expert testimony w/ respect to consumers who have experience w/ a condition. Cts split: Broad (Heaton) / Narrow (Campbell)

ii. risk/utility -- did benefits of design outweigh risks inherent in design? most cts use this test. Make P prove that product should have been made a diff. way, show it, and in making change it won't cost them very much. Similiar to negligence (B<P*L) again.


Standard Negligence Law Exceptions:

1.manuf. defects -- do have strict liability

2. when retailers liable -- strict liability. Can get idemnification from people higher up in chain.

3. where burden of persuasion lies in distinct minority

4. unconscious design defects: not aware danger inherent, at what point will ct impute knowledge of manuf. of danger? If liable when knowing of danger now, not then still have strict liability.

5. change available defenses:

negligence --- assumption of the risk

--- comparative fault


strict liability --- diff ones



5. Special Issues

a. unavoidably safe -- no way to make product safe w/out changing it (prescription drugs -- only neg. applies, no strict liability)

b. patent danger

c. state of the art -- D must have knowledge or constructive knowledge of an alternative product. Cts accept this defense generally when there is a failure to warn. See Anderson, Beshada, Feldman

d. regulatory compliance -- compliance with govt safety regs not a defense. Few cts allow it if there is a statute present. More popular option: ct will not allow punitive damages awarded where D has complied with statute.


II. Defenses

A. P fault -- most cts will apply comparative fault to products liability

B. Assumption of Risk -- 50% cts apply it as separate defense. Others combine it with comparative fault

C. Misuse -- form of comparative fault, foreseeable misuse not complete defense especially if it fails to guard for intended use.

D. Obvious (patent) danger -- obviousness is not usually an automatic bar to a design-defect claim, merely 1 factor the cts consider.

E. Preemption