3.5 hours

3 hours to do 2 questions - 90 points each

Very comprehensive - know defamation and products liability very well - these two will definitely be on there.

Intentional torts - do not need to intend the particular injuries that occurred - must intend harmful or offensive contact, or is substantial certain that a harmful or offensive contact will occur (battery).

Don't do IIED unless there is a fact which tells there is severe emotional distress or something that would mean that. She will either say there is or is not.

Only analyze things that are there. Don't analyze things that the facts don't give. She will say if there is a latent manufacturing defect. Don't say "if…"

Look for transferred intent - doesn't apply to IIED.

Not be tested on: defense of third parties, defense of property, racial or sexual harassment, intentional interference with marital relationships, warranty

Problems with products liability analysis:

• when you get to negligence, show negligent conduct of EACH of the defendants. Usually a retailer did not act negligent, so then he would not be held liable under negligence whereas he would be held liable under strict liability.
• Manufacturing, design, warning defects:

Manufacturer

• Cronon - defective product defect
• 402a

Defect design

• consumer expectation test - how a reasonable consumer would expect product to perform
• risk/utility test - five factors that we need to know to determine if there is excessive preventable danger

Strict Product liability

• assumption of the risk: a defense
• if you have unknowing contributory negligence - not a defense to strict products liability, but since contributory negligence is a defense to negligence, may have a defense when you get to negligence analysis.
• Assumption of risk is a defense to strict products liability, and both contributory negligence are defenses to negligence

Don't talk about common law defenses unless they exist.

DO go through the entire constitutional defenses analysis:

• whether the person is conceivable a public official (if facts say person is a public employee)
• whether the status is all purpose or limited purpose public figure - use facts
• whatever you conclude about whether person is or is not public figure - might be easiest to say they are - apply actual malice test
• then make another assumption that they are a private person and go through that analysis
• use the cases that are in the outlines she gave us - will help us with extra points.

Transferred intent - if person intended to hit one person, but then hit a different person - a legal fiction - say the legal fiction of transferred intent would apply - must have intended tort on original person

• Person to person
• Tort to tort

1. Duty

1. duty or standard of care
2. does D owe the duty

1. is D a commercial supplier
2. D a furnisher of a product or service

1. does D owe a duty to this P

1. Breach of duty

1. product with a manufacturing defect (402A & Cronin tests)
2. product with a design defect (402A, Barker, Excessive Preventable Danger)
3. product with a warning defect (adequate, reach person, intrinsic risk, after)

1. Actual Cause

1. defect exist when left D's control
2. if warning defect, would have warning prevented the damage
3. was defect but for cause or substantial factor in causing P's harm

1. Proximate Cause (extent, type, manner, time, space & fairness)

1. dealer or other intermediary's failure to discover
2. recall cases
3. learned intermediary cases
4. employment cases

1. Damages

1. personal injury
2. property damage
3. pure economic loss

1. Defenses

1. pure comparative negligence
2. Assumption of the risk
3. Contributory negligence

1. Duty

1. Standard of care
2. Does D owe the duty
3. Does D owe the duty to this P

1. Breach of duty

1. D's negligent conduct led to supplying product with a manufacturing defect
2. D's negligent conduct led to supplying product with a design defect
3. D's negligent conduct led to supplying product with a warning defect
4. Balancing

1. Actual Cause - see strict liability
2. Proximate Cause - see strict liability
3. Damages - see strict liability
4. Defenses - see strict liability