Negligence
To whom does a negligent defendant owe a duty to?
To all foreseeable plaintiffs.
That of a reasonable child of similar age, education, intelligence, and experience. Children under 6 generally lack capacity to be negligent.
Exception: Children engaged in adult activities are held to an adult standard of care in that activity.
When will superseding cause, aka intervening force NOT cut off the defendant's liability?
When it is foreseeable. i.e. (i) when it is a normal response or reaction to the Defendant's negligent act or (ii) when the Defendant's negligence increased the risk that an intervening force would harm the plaintiff (i.e. medical malpractice)
What are the elements for a prima facie case of Strict Liability and what are the two common defenses?
(1) Nature of activity imposes an absolute duty to make safe, which can't be achieved, haha (2) causation and (3) damages to P's person or property
Defenses: Assumption of risk, comparative negligence
What are the elements of a strict product liability claim?
(1) D is a commercial supplier; (2) the product is defective; (3) causation; and (4) the plaintiff used the product in a foreseeable manner (including foreseeable misuse)
Is a defendant liable to a rescuer?
If a third person attempts a rescue in a dangerous situation that the defendant caused, the defendant is liable for the rescuers' injuries even if they are unforeseeable.
What standard of care applies to professionals such as doctors, accountants, attorneys, and engineers?
Professionals must act with the knowledge and skill of a member of their profession in good standing in similar communities. Doctors are held to a national standard of care.
Can a plaintiff potentially recover all of the following damages if the defendant willfully engaged in the inherently dangerous activity or sold the inherently dangerous product:
1. special compensatory damages
2. general compensatory damages, and
3. punitive damages?
Yes
What are the elements for abnormally dangerous activities?
(1) Severe risk (2) that cannot be made safe and (3) is uncommon in the community.
The condition or activity must impose a severe risk of harm to people or property that cannot be made reasonable safe even with reasonable care. The activity must be one that is uncommon in the community.
What is a "commercial supplier?"
One who routinely deals in the product sold, including any merchant in the stream of commerce - aka the entire distribution chain. It does not include casual sellers or service providers.
What duty of care is owed to invitees and licensees ?
Both for Activities: Reasonable care
Conditions
Invitees: Duty to make reasonably safe hidden dangerous conditions that the landowner knows or has reason to know of through a reasonable inspection.
Licensees: Duty to make reasonably safe known, hidden dangerous conditions.
Kevin crossed Port Republic Road despite seeing a "don't walk" sign and walked outside the identified lane, placing himself closer to the intersection. If Angela strikes Kevin with her car:
What is the best defense and second-best defense Angela can use to defend against Kevin's negligence tort claim?
Best: Assumption of the risk doctrine
Second Best: Comparative negligence doctrine
Comparative negligence is a doctrine that permits a judge or jury to reduce compensation -- because the plaintiff is at least 1% + responsible for the harm that occurred to him/her -- by the percentage/portion that plaintiff is responsible for. E.g., the plaintiff is 20% responsible, so his compensation of $1,000 is reduced by 20% to $800.
How do you find actual causation when multiple causes bring about the plaintiff's injury and any one of them alone would have caused the injury?
"Substantial Factor Test" - i.e. the Defendant's reach is an actual cause if it was a substantial factor in bringing about the plaintiff's injury.
Are animal owners liable for damage that their animals cause when trespassing on someone else's property?
Yes, owners are strictly liable for reasonably foreseeable damage resulting from their animal's trespass on another's property.
*Does not apply to household pets*
What is a design defect vs. a manufacturing defect?
Design defect is one that creates an unreasonable risk of danger in the product due to its faulty design. The plaintiff must show a technologically and economically feasible alternative design or modification that would be safer.
Manufacturing defect is one where a product departs from its intended design causing it to be more dangerous than all of the manufacturer's other products of the same kind.
What duty of care is owed to anticipated trespassers?
Activities: Landowners must exercise reasonable care in carrying out activities on their property.
Dangerous Conditions: In some states, landowners have no duty to trespassers. In other states, landowners have a duty to make safe or warn of any known, hidden, dangers/hazards.
Bob carelessly left his campfire burning overnight. High winds caused it to quickly burn out of the control of firefighters. Therefore, the fire burned down the entire George Washington Forest and set off an explosion in a nearby chemical plant. The plant's chemicals, including ethylhexyl acrylate, were released into an adjacent river, which killed all the aquatic life, caused cancer in numerous local residents, and ruined the town's economy. Bob wandered out alive.
What negligence element will be crucial if Bob is sued for all these injuries on a negligence tort claim.
What is proximate cause, aka remoteness denial, aka denial based on remoteness.
Practical necessity requires that legal responsibility must be limited to causes so close to the result, or of such significance, that the law is justified in making the defendant pay.
But the limitation being applied by the courts for causes too remote from the result is really not one of causation; it is one of rules and policies which deny liability for what has clearly been caused.
Are nominal damages recoverable in negligence and why or why not?
They are not recoverable because they reflect a tort being committed with no real damage sustained. Because damage is an essential element of negligence, nominal damages are unavailable.
Are wild animal owners liable for injuries caused by their wild animals if the animal was provoked?
No, strict liability only extends to unprovoked injuries of wild animals even if they are kept as pets.
What are the warning requirements for a product that cannot be made safe even for its ordinary use (like a gun)?
The manufacturer must give (1) proper instruction for use and (2) adequate warnings of known dangers.
A warning is adequate if it is prominent, comprehensive, and gives information on the risk.
Ricky Bobby, a NASCAR driver, experienced an accident while participating in a race. If he sues NASCAR for the tort of negligence, then NASCAR may raise this defense to thwart Ricky's claim.
What is assumption of the risk?
I.e., Ricky assumed the risk of an accident.
When will a defendant NOT be held liable for negligence per se?
When (1) compliance with the statute is more dangerous than non-compliance or (2) compliance is impossible under the circumstances.
The burden shifts to the defendants to prove they were not the actual cause . . . if no defendant can prove another D was responsible then all defendants are jointly and severally liable!
When is a pet owner strictly liable for actions of their domestic pets (dog or cat)?
When the domestic animal has unusually dangerous propensities and the owner knows about it. If the owner didn't know (i.e. it was the first time the dog bit someone), the owner may be liable if he was negligent!
Brick Tamland took his STIHL MS362 Carb chainsaw out intending to cut down a tree. But when Brick turned on the chainsaw, its metal chain slips off, hits his face, and causes a big nonrepairable gash. Because of his hideous face, Brick can no longer serve as his local television station's weather person.
Soon after, Brick learns that other STIHL MS362 Carb owners have experienced chain slippage with similar injuries to their faces or bodies.
What tort claim would be best for Brick (and others) to make against STIHL?
What is a strict products liability tort claim?