February 3, 1999

Foreseeable misuse of products – when the misuse is foreseeable usually manufacturers will be found liable

Other considerations re design defects

Foreseable misuse

Crash worthiness – Camacho – p.504

Open and obvious – patent danger rul

Modification rule

Majority – no SL unless foreseeable modification

Minority – no SL even if foreseeable modification (Jones p517)

Did D supply a product with a warning defect?

1. was warning adequate?

• was form and content adequate?
• Would reasonable user expect or anticipate dange?
• Did warning reach person at risk?

• if adequate warning, would it have caused P to avoid accident
• some courts – heeding presumptions

Crash worthiness – increased safety that makes product safer if someone else causes the accident (accident not caused by product) most courts find a duty to design a product keeping in mind the foreseeability of accidents

Cases involving crashworthiness issues:

• Motorcycles share same roads as cars; inherent risk in driving on highways what there will be an accident
• Want to promote manufacturers to design safer products
• Camancho court held motorcycles to the crashworthiness doctrine – just because motorcycles are more dangerous does not mean that manufacturers can get away from making the motorcycle as safe as possible

Problems with warning labels: too small of a size,

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February 8, 1999

Make sure we know products liability for exam. Past objects used were plastic chair, metal roasting pan

Did D supply a product with a warning defect?

Was warning adequate?

• scope of danger?
• Seriousness of danger?
• Physical aspects / prominence adequate?
• Intensity of language adequate

Did warning reach person at risk?

Employer /employee = split

Learned intermediary unless contraceptive

Bulk supplier

If adequate warning had been given – would P have provided accident?

Some courts – holding presumptions

Did warning involve any intrinsic risk?

Does risk call for choice judgement? Would reasonable person want to be informed of risk?

Abnormal allergic reaction?

GR: duty if substantial number reaction

ML: duty if known risk to any #

Known or reasonably scientifically knowable risk at time of distribution – Carlin (handout)

Unavoidable unsafe drugs (state of art)

Majority and Rest. 2d p402a comment k = no duty

Subjective person standard – must reach the person, and it has to be what person would want to know

P must show that if there was an adequate warning you would have heeded it and would have avoided injury

• some courts have heeding presumptions which make it presumed that P would have followed a warning had there been a warning label
• warnings are often used to inform the consumer as to whether they want to use the product or not

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February 10, 1999

Goods v. Services

GR: no SL for professional services (Hover), p550 – No SL for Dris diagnosis and treatment

For scientifically knowable risks the majority rule is that there is no SL (carlin and Rest. P407a) (state of art defense)

After acquired informal action (re: previously unknowable risk)

Holding in Carlin: manufacturer must have actual or constructive knowledge of the risk before liability

RULE: Not strictly liable if you don’t know or should not have known about a drugs dangerous propensities.

A novice in the manufacturing field will be held to the same standard of care as an expert in the field.

Will custom relieve manufacturer of liability? No just like negligence, still strictly liable.

Sweet Here After – movie about a school bus accident and litigation that followed

Factors to determine duty to warn PRIOR purchasers?

• extent of harm
• likelihood of harm
• identifiable purchaser
• economic burden of notice (for manufacture to give notice to past purchasers)

After acquired information

GR: duty to:

1. eliminate danger, if feasible or
2. warn for future consumers
3. if danger outweighs benefits = discontinue (see factors above)

Test to see if doctor makes an erroneous diagnosis: a doctor is not strictly liable for a misdiagnosis.

Is a doctor strictly liable for mis-prescription of drugs: A doctor is not strictly liable for service. They are not in the business of selling drugs. And also the prescriptions is part of the service.

Also the courts are concerned that pharmacists would not stock as many drugs if they were held to a strict liability standard.

People / companies that are providing a service are not strictly liable. People that are selling a product are more likely to be held strictly liable.

The more apt the courts are to say you are less strictly liable if you are a professional.

• unknowing v. knowing

* majority, her torts exam and California – "pure" comparative negligence (Daly, 560)

Defenses to strict liability:

Assumption of the risk (used to bar recovery in the old days, not anymore); knowing and voluntarily continued use of the product (even though person knew product was unsafe)

Exc: employee

Contributory negligence / fault

Unkowning contributory negligence – person did not know there was a problem and had an accident… carelessness

Knowing contributory negligence – like assumption of the risk

Talk about assumption of the risk or contributory negligence and compare to strict liability

Don’t need to distinguish between knowing and unknowing contributory negligence on exam.

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February 16, 1999

Kinds of damages that are recoverable for strict products liability.

Similar to negligence – can recover special damages, general. Wrongful death is allowed.

No punative damages unless reckless or intentional conduct

Property damage to other property is handled the same way as PI so you can get all other damages. It is "parasitic" to the loss.

Recovery for pure economic loss?

In negligence – majority rule is that there is no recovery for pure economic loss

East River Case – defects in turbine engines which cause economic loss. ISSUE: whether the plaintiffs were entitled to recover pure economic loss for damaged ship and lost income.

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February 17, 1999

Want to do both a strict liability analysis and a negligence analysis.

INTENTIONAL TORTS!

Volitional acts – children, mentally ill people, everyone. A clear act is necessary

Intent – most often D will not "desire" to cause harm, but usually you will be able to establish "substantial certainty" that a harmful or offensive contact will occur.

Transferred intent – a legal fiction that says 3 things:

1. if one desires to cause a battery to one person, but instead cause that harm to another person, then the intent is transferred to the second person;
2. transfer intent from one tort to another – if you intend to commit battery but instead commit false imprisonment, the intention for FI is inferred;
3. can transfer both one tort to another tort and one person to another person – intend to assault one person, but instead hit (battery) another person, the intention to commit the tort against the second person

Offensive contact – something that offends a reasonable person’s sense of dignity

Assault – an act which results in immediate apprehension in the person being assaulted

• words alone are not enough – "I am going to hit you" is not enough
• P has to be aware of the apprehension (whether the P perceives or comprehends that a harmful or offensive contact with their person is about to occur) at the time of assault, but P does not have to be frightened
• Has to be an IMMEDIATE threat
• D has to have actual or apparent ability to inflict the contact
• Threatened contact must be to P’s person

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February 22, 1999

• Threat to plaintiff’s person, and immediate threat of harm
• P must be aware that assault is about to occur
• Defendant must have apparent or actual ability to commit assault

False imprisonment – defendant acts that results in intending or restraining person to bounded area

• words alone can be enough
• physical force, threats of immediate physical force, actual or apparent physical barriers to escape (walls, locked doors or removing crutches if person needs them)
• bounded area must be a specific area where P is confined
• can have false imprisonment if someone is excluded from an area

Bystander recovery:

• P present
• P has a close (family) relationship
• D knows P present and close relative

severe emotional distress

• Extreme and outrageous conduct, conduct that transcends all bounds of reasonable behavior. Conduct that defends against he generally accepted standards of society. Facts that would lead the average member of the community to cry "outrageous."
• Conduct requirement because Guards against frivolous lawsuits, avoids litigation for less serious activities
• Words alone can suffice
• Common carriers has to maintain a higher standard of politeness

Racial and sexual harassment and insults – not on test, but you can take a class here on it

Debt collection – some methods can be extreme and outrageous

Misuse of authority can also be intentional infliction of emotional distress

NO transferred intent for intentional infliction of emotion distress

Mishandling of corpses – can cause severe emotional distress

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February 24, 1999

Monday, March 22 – speaker on governmental liability; 7:30 – 8:45p Rm 142

NO CLASS Monday March 7 - do Monday’s (March 7) reading for March 22 speaker

1. Intentional Infliction of Emotional Distress

1. Extreme and outrageous conduct by the defendant

1. Intent – desire, substantial certainty, reckless
2. Extreme and outrageous conduct causing damages – severe emotional distress

1. Bystander recovery; factors:

1. P present
2. P close relationship
3. D knew P present and a relative

1. Insanity of D

1. majority – no defense
2. some courts – maybe defense if specific intent

1. Self Defense
2. Defense of others

Two intentional courts we will NOT be tested on: interference with marriage relations (adultery), alienation of infection (conduct by outsiders which intentionally or directly interferes with family relations)

• most states have abolished these causes of actions

DEFENSES for Intentional Torts

1. Consent

1. Express: P actually by words, written consented to conduct of D (want to make sure that consent was not valid – look at following factors):

1. Fraud – needs to be about an essential matter, as apposed to a collateral matter (secondary reason)
2. Duress – physical force or threats against P or members of P’s family
3. Mistake – if caused by D or D knew about mistake and D did not tell P about that position, then P’s consent is not effective. Can be either mistake of law or fact (not understanding consequences of consent)
4. Expressly consent to a crime – most states say you cannot use consent as a defense when consent is to a crime

1. participants in crime should not be allowed to recover from each other because this would be like letting them profit from their own wrongdoing
2. Exception: if statute is to protect someone, and it is violated, even though they consented to it, that consent is not valid, because the statute was meant to protect that class of person

1. implied
2. conduct beyond consent
3. did D have capacity to consent

1. Insanity

1. most courts feel this is not a defense
2. some courts say this could be a defense in intentional torts that require a specific intent – but not general intent (substantial certainty)

1. Self defense

1. a D who reasonably believes he unwarranted attack
2. you can respond with same force but not more that is being used against you
3. examples:

1. okay to use deadly force if deadly force being threatened on you
2. western view – don’t have to retreat if you are threatened with deadly force
3. eastern view – have to retreat if faced with deadly force
4. mistaken identity – if P knows there is a mistake, P is supposed to correct D before force is used
5. can threaten more force than being threatened with – original aggressor cannot claim that type of self defense
6. defense of third persons - D can only use the same amount of force that the third person would be able to use in self defense

1. if mistaken, then you stand in their shoes and see if they had a privilege to use deadly force

1. defense of property NOT on exam