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Duty Issue
Did ___ owe ___ a duty of reasonable care?
NO DUTY by governmental entity UNLESS
Special relationship
Direct contact
Justifiable reliance
Assumption
Knowledge
Negligence Per Se
The P needs to be within the class that the statute is trying to protect, and the type of harm must be among the harms that the statute is trying to prevent.
Scope of Liability Issue
Can P present sufficient evidence for a triable issue that D’s [negligent conduct] was within the scope of liability?
Defect—Manufacturing Rule
Consumer expectation: a product will be found unreasonably dangerous if it is dangerous beyond the expectation of an ordinary customer when used in an intended manner
General Duty Rule
An actor owes a duty of reasonable care under the circumstances to those persons who are foreseeably exposed to the risk of the actor’s conduct.
Emotional distress: P CANNOT RECOVER UNLES
Subject to direct physical harm
Bystander liability
Immediate family member
Zone of danger
Professional Standard of Care
The standard of care is what a reasonable professional would do under the same or similar circumstances in the same or similar geographic location.
Scope of Liability Rule
The type of harm must be among the reasonably foreseeable risks of harm of D’s negligent conduct.
Risk Utility test
a product is defective if and only if the magnitude of the danger outweighs the utility of the product; balancing out the risk and benefits to conclude weather the product is unreasonably dangerous [Use when ordinary knowledge would not suffice as standard]
a) grave harm
b) likelihood of harm
c) feasibility of alternative
d) cost of alternative
e) disadvantages
Premise Liability Rule
The owner or occupier has a general duty of reasonable care to persons on its property with respect to unsafe conditions. That duty is triggered if the owner or occupier caused, knew, or should have known about the unsafe conditions.
Breach - Standard of Care Rule
The standard of care is what a reasonable person would do under the same or similar circumstances
Causation Issue
Can ___ present sufficient evidence to establish a triable issue that the _____ (neg conduct) caused his injury?
Assumption of Risk
Assumption of Risk may be raised as a defense if the plaintiff knew, appreciated, and voluntarily assumed the risk. (Under NY law: only can be used for recreational sports)
Warning Defect: But For Rule
To establish causation in a warning defect case, the plaintiff must prove (1) the product caused the injury (2) prove that a warning would have altered the user’s behavior such as to avoid the accident
NO DUTY to Assist or Rescue UNLESS
Special relationships
Voluntary Assumption of Duty
Innocent Prior Conduct
Reliance on a Gratuitous Promise
Intentional Prevention of Aid by Others
Statute
Breach - Child Standard of Care
The child's standard of care is what a reasonable child of the same or similar age, skills, and maturity would do under the same or similar circumstances. Children are evaluated by the child's standard of care unless they are engaging in a dangerous activity that requires adult skills.
Causation Rule
But for: The plaintiff has the burden of establishing a triable issue that the conduct was the but-for cause of his injury.
Product Liability - Theory of the Case
Seller put into commerce a product that was defective in that ____ which caused the plaintiff’s injury.
Defect—warning Rule
The adequacy of a warning must include (a) the explicitness of the warning (b) weather the warning language is comprehensible to typical users (c) clarity of the warning (d) conspicuousness (e) the means used to convey
Rule for Duty 3rd party on Premise
D has a duty of reasonable care to protect people on its premises from dangerous acts by third persons. The scope of that duty depends on past experience and the likelihood of dangerous acts by third persons.
Res Ipsa Loquitor
A plaintiff may rely on res ipsa loquitor to establish negligence if (1) the accident is of a kind that ordinarily does not occur in the absence of someone’s negligence, and (2) the agency or instrumentality that caused the injury is in the exclusive control of the defendant; and (3) where the injury was not due to the voluntary action or contribution on the part of the plaintiff.
Strict Liability - Abnormally Dangerous Activity
Where abnormally dangerous activity, one carrying on an abnormally dangerous activity is subject to SL for resulting harm, although it is caused by unexpectable innocent, negligent, or reckless conduct of a third person… immaterial that harm occurs through reckless conduct of 3rd person.) Animals, wild, domestic, abnormally dangerous activity
Product Liability - proper parties (duty)
The defendant, _____, is a seller and the ______ was essentially unchanged from the time it left the defendant. Sellers have a duty of reasonable care and a duty not to sell products unreasonably dangerous.
Consumer Expectation Rule
The consumer expectation test asks whether the product is more dangerous than the ordinary consumer would expect