Products Liability
What is strict liability in tort, negligence, and breach of UCC warranties?
Elements for defamation.
What is a defamatory statement
Of or pertaining to Plaintiff (Identification)
Publication: Libel, Slander
Harm to Reputation
Falsity
Fault
Public nuisance: an unreasonable interference with a right common to the general public, or with public health, welfare, or morals.
Private nuisance: a use of defendant's land which is a substantial and unreasonable interference with plaintiff's use and enjoyment of plaintiff's private land.
The elements for negligence.
What is Duty, Breach, Causation, Cause in Fact, Harm/Damages
Roger and Lucas are neighbors. There is no fence separating their backyard lots. One night both of them were sitting on their respective porches drinking beers. Roger, in particular, got quite drunk. Lucas yelled something at Roger that made Roger mad. So Roger walked over and punched Lucas in the face. Lucas, who had had a few drinks himself, saw the punch coming, but he was too slow to get out of the way. Roger did no damage to Lucas’s land. Which of the following is most accurate?
(A) Lucas has a claim against Roger for assault, battery, conversion, and trespass to land.
(B) Lucas has a claim against Roger for assault, battery, and conversion, but there’s no claim for trespass to land.
(C) Lucas has a claim against Roger for battery, but not for assault, conversion, or trespass to land.
(D) Lucas has a claim against Roger for assault, battery, and trespass to land, but not conversion.
(E) Lucas has no claim against Roger.
(D) Lucas has a claim against Roger for assault, battery, and trespass to land, but not conversion.
The elements for strict liability in tort.
1. Defendant is a merchant with respect to this type of goods
2. Defendant placed accident product into stream of commerce
3. Accident product must have left this defendant in the same condition regarding defect in which it reached plaintiff.
4. Accident product must be defective in manufacture, design, or warnings/instruction
5. Defect must be a cause in fact of the harm
6. Defect must be a proximate cause of the harm
7. Harm: personal injury and/or property damage
The four types of slander per se.
What is:
1. Plaintiff has committed a serious crime, at common law one of moral turpitude
2. Plaintiff has a loathsome disease
3. Plaintiff lacks competence or integrity in business, trade, profession or "office"
4. Plaintiff has committed serious sexual misconduct
The remedy for public nuisance and who brings this cause of action.
What is the remedy for public nuisance is ordinarily abatement, and the enforcer of this cause of action is usually public authorities suing on behalf of the public.
The difference between Survival and Wrongful Death Actions in Damages.
What is: Survival Action accrues on the date of injury. Payable to the estate NOT the family.
The Wrongful Death Action accrues at the date of death. Wrongful Death is limited to pecuniary loss to family members: 1. decedent's contribution (earnings - expenses) 2. services 3. companionship, society
Darla intentionally communicated to third persons a defamatory statement that she knew to be false explicitly concerning Pam. Which of the following, if proved, would not be sufficient to permit Pam to maintain a defamation suit?
(A) As a result, Pam suffered lost wages in a provably certain amount.
(B) The statement asserted that Pam was incompetent at her job.
(C) The statement asserted that Pam was born out of wedlock.
(D) The statement was published via printed paper.
(E) The statement asserted that Pam had a sexually transmitted bacterial disease.
(C) The statement asserted that Pam was born out of wedlock.
Define manufacturing defect.
What is a product that does not conform to its own design?
- Compare to blueprints; compare to exemplars of same product.
Affirmative defenses to Defamation.
What is consent, truth, spousal privilege, publications made under equal time regulations, absolute privilege, and qualified privilege?
The remedy for private nuisance and its definitions.
What is the remedy for private nuisance is:
- A nuisance may be actionable, abatable, or both.
- Actionable means damages are recoverable in an action at law.
- Abatable means an injunction against the nuisance is available in an action of equity. The purpose is to reduce the interference with plaintiff's use.
The affirmative defenses to negligence.
What is contributory and comparative negligence, implied assumption of risk, comparative fault, statute of limitations, statute of repose, and sovereign immunity?
Josiah is employed as a truck driver for Carellingdale’s department stores. One day on the job, Josiah failed to yield as required at an intersection and hit a car carrying Nadine, causing her personal injuries. After a trial, a jury found Josiah and Carellingdale’s each liable in negligence and assessed compensatory damages at $1 million. The court entered judgment on this verdict. Which of the following is accurate?
(A)Nadine can collect from Josiah, but she cannot collect from Carellingdale’s. The reason for this is the doctrine of respondeat superior.
(B) Nadine can collect from Carellingdale’s, but she cannot collect from Josiah. The reason for this is the doctrine of respondeat superior.
(C) Nadine can collect from Carellingdale’s, but she cannot collect from Josiah. The reason for this is the doctrine of indemnification.
(D) Nadine can collect no more than half the judgment from Josiah and no more than half from Carellingdale’s.
(E) Nadine can elect to collect the entire judgment from Josiah and none from Carellingdale’s.
(E) Nadine can elect to collect the entire judgment from Josiah and none from Carellingdale’s.
Affirmative defenses to strict liability in tort.
What is:
- Comparative Fault
- Misuse
- Statute of Limitations
- Statute of Repose
Qualified Privilege types.
- accurate reports of public proceedings
- publication [report] to public authorities
- statements made in interest of publicsher or recipient, individually or shared
Circumstances that will render a defendant liable for damages for nuisance.
What is their conduct is intentional and unreasonable, or otherwise wrongful?
- Intentional if the actor intends to conduct the activity in question, knowing that it causes harm, or in rare cases, with the purpose of causing the harm or knowing that the harm is resulting or is substantially certain to result from his conduct.
- Unreasonable if the harm is greater than the other should be required to bear without compensation AND
- the gravity of the harm outweighs the utility of the actor's conduct or
- the harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible or
- the particular use or enjoyment interfered with is well suited to the character of the locality and the actor's conduct is unsuited to the character of that locality.
Define vicarious liability and its subtypes.
What is imputing liability for fault of one person to another based on the relationship between them:
- respondeat superior: employer is vicariously liable for torts of employee committed in the course and scope of employment.
- joint venture: each member is liable for the torts of the others, committed in the course and scope of the joint enterprise. Agreement, common purpose, community of shared pecuniary interest, and shared right of control.
- independent contractor: a person is not liable for the negligence of an independent contractor committed in the course and scope of independent contractor's work for the principal.
- special relationships: Parent/Child, Spouse/Spouse, Employer/Employee, Teacher/Student (K-12), Common Carrier/Passenger, Innkeeper/Guest, Proprietor/Patron, Psychotherapist/Patient, and Physician/Patient
Darla drove through a stop sign at an intersection without stopping. Not having the right-of-way, Darla’s car collided with a taxicab in which Pauline was a passenger. Immediately after the accident, Pauline suffered a heart attack causing death of some myocardial tissue (heart muscle tissue). Doctors determined that even without the collision, Pauline would have had her heart attack at that time anyway because of existing cardiovascular disease. Which is most correct regarding an appraisal of a negligence action by Pauline against Darla?
(A) Pauline likely will prevail in a negligence action because all the elements can be proven.
(B) Pauline likely will not prevail in a negligence action because this case falls within the domain of strict liability.
(C) Pauline likely will not prevail in a negligence action because Darla did not owe Pauline a duty of care.
(D) Pauline likely will not prevail in a negligence action because Darla did not breach her duty of care.
(E) Pauline likely will not prevail in a negligence action because of a lack of actual causation for her myocardial injury.
(E) Pauline likely will not prevail in a negligence action because of a lack of actual causation for her myocardial injury.
Vayaphonic Industries manufactures the series-5 Touch-E smartphone. The Touch-E is the slimmest, most powerful smartphone yet. With its abnormally large power consumption and its diminuitive design, Vayaphonic knew that overheating could be a problem. Some engineers at Vayaphonic argued that the Touch-E should come with an automatic power-off function, a feature that is standard in other smartphones with similar power-consumption/thermodynamic parameters. The engineers thought this was especially needed since, if it overheated, potentially dangerous chemicals used in the phone’s next-generation battery could give off toxic fumes, thus causing serious injuries. Vayaphonic balked at the engineers’ suggestions because re-engineering the phone to include an automatic power-off function would have delayed the product’s launch by weeks. To cover all bases, Vayaphonic conducted a cost-benefit analysis. After consideration of the likelihood of being able to settle most lawsuits for pennies on the dollar, the bottom-line conclusion was that Vayaphonic’s profit potential was best served by manufacturing the Touch-E without the automatic power-off function. Roscoe purchased a Touch-E at the local Electro Harbor store the first day it was available and gave it to his girlfriend Thalia, a judicial clerk. Thalia excitedly left the courthouse and walked across the street to Grounds For A Peel, a local coffee house famous for its banana muffins. Sitting and sipping coffee, Thalia talked on the phone for nearly an hour straight. At that point, the phone overheated, causing the battery to partially melt and release toxic fumes. Thalia’s lungs were severely damaged. Thalia was just one of hundreds of people similarly injured that day. The next day, sales of the phones were stopped.
Which best describes from whom Thalia can recover under a theory of products liability?
(A) Vayaphonic
(B) Either Vayaphonic or Electro Harbor, or both
(C) Either Vayaphonic or Electro Harbor, but not both
(D) Any one (and only one) of Vayaphonic, Electro Harbor, or Grounds For A Peel
(E) Either Vayaphonic, Electro Harbor, or Grounds For A Peel, or all of them, or any combination of them
(B) Either Vayaphonic or Electro Harbor, or both
Describe the Actual [or Constitutional] Malice Standard for Fault.
What is the defendant made defamatory statement
(a) knowing it was false, or
(b) with reckless disregard of falsity
- a deliberate decision not to acquire knowledge of facts that might confirm the probable falsity of the defamatory statement
- purposeful avoidance of the truth
- defendant entertained serious doubts about its truthfulness
Circumstances that render a defendant liable for an injunction.
What is a defendant may be subject to injunction abating the nuisance if the nuisance is otherwise expected to occur or recur in the future, depending on the results of a comparative appraisal for the following in light of the facts of the case:
(a) the nature of the interest to be protected,
(b) the relative adequacy to the plaintiff of injunction as compared to damages, and after Boomer and Del Webb, other remedies,
(e) the relative hardship likely to result to defendant if an injunction is granted and to plaintiff if it is denied,
(f) the interests of third persons similarly situated and of the public, and
(g) the practicability of framing and enforcing the order or judgment.
Define the comparative negligence standard in Franklin.
What is carelessness with respect to one's safety. Plaintiff recovers percentage equal to that of defendant's negligence, unless plaintiff's negligence EXCEEDS the defendant's negligence. If Plaintiff is 50% at fault then Plaintiff gets 50%.
Wyatt never signed up for the Hexetron Tool-of-the-Month Club. But that didn’t stop Hexetron from signing Wyatt up. The company sent Wyatt a set of hex wrenches via the U.S. Mail, along with a bill for $25 and a letter welcoming him as a member. Wyatt called up Hexetron and explained that he never ordered the tools or enrolled in the club. He also explained that under 39 U.S.C. § 3009(b), he had the right to keep the merchandise without paying for it. (He’s correct on that law, by the way.) The Hexetron representative on the phone agreed, and told Wyatt to go ahead and keep the hex wrenches. She assured Wyatt that the Hexetron database would be revised to reflect that Wyatt owed nothing and that he was not an enrolled member of the Hexetron Tool-of-the-Month Club. Several months later, Wyatt was using one of the hex wrenches to tighten a bolt on his lawn mower when the wrench snapped into jagged pieces, one of which badly gashed Wyatt’s hand, requiring stitches and physical therapy. Then, a month or so after that, Wyatt received a bill from Hexetron Debt Collection Services for $25 in past due amounts for tools, $563 in interest charges and late fees, plus a $300 earlytermination fee for canceling membership in the Tool-of-the-Month Club before one year. The next day, Wyatt sent Hexetron a letter patiently explaining the error. The following week, he heard a loud knock on the door. He opened the door to find Hannah, a debt collector for Hexetron, dressed in a bright yellow radiation suit. Hannah raised a handheld electronic bullhorn to her mouth and announced with very loud amplified sound, “Wyatt is a deadbeat who doesn’t pay his bills!” Wyatt slammed the door on Hannah. The door struck the rim of the bullhorn and propelled it back into Hannah’s face where it knocked out several of her teeth. Wyatt then collapsed on the floor suffering a mild heart attack brought on by the stress of Hannah’s actions. The heart attack was picked up by a portable EKG machine that Wyatt was wearing at the time.
If Wyatt sues for defamation, will his claim succeed?
(A) Yes, because the conduct of Hannah and Hexetron was extreme and outrageous.
(B) Yes, if Hannah’s remarks were overheard by at least one neighbor.
(C) No, unless Wyatt can prove special damages stemming from the reputational harm.
(D) No, because Wyatt would come to the court with unclean hands.
(E) No, because Hexetron has qualified immunity, and the scope of the privilege was not exceeded.
(C) No, unless Wyatt can prove special damages stemming from the reputational harm.