Intentional Torts A. Battery a. Requirements i. Intent (voluntary) to cause a harmful or offensive act. ii. Harmful or offensive contact results.

1. Personal touching or causing another object to touch. b. Intent i. If theres substantial certainty that something will happen as a resu lt of your act, then intent can be inferred. ii. A person must act objectively reasonable, rather than subjectively. c. Transferred Intent (Applies to all intentional torts, except IIED.) i. Two kinds: 1. A tortfeasor intends a tort on one person, but commits a tort on another. 2. A tortfeasor intends one tort, but accomplishes another. d. Children i. (Old Rule): Children under 7 cant held liable b/c they cant form sufficient int ent. ii. (New Rule): Some children under 7 can form intent, however it needs to be lo oked at on case-by-case basis. iii. Generally, parents are not liable for the be havior (torts) of their children unless they can prove the parent is directly re sponsible. If the parent is aware the child has a particular dangerous habit and does nothing to change it, the parent is liable. e. Mentally Insane i. Insane people are generally held able to form necessary in tent provided the person did intend a harmful or offensive act. ii. White v. Mun iz: Dual intent (when determining if someone is liable for a battery) is a minor ity rule and is in most cases irrelevant, except insane persons. f. Broken Egg Shell Theory i. A person is liable for all damages, even if extensive injuries were not imagi ned. B. Assault g. Requirements i. D intends to put P in immediate apprehension of a harmful or offensive touching, or other trespassory tort. ii. D does put P in su ch imminent (no significant delay) apprehension. 1. Apprehension must be that of a reasonable person. An assault constitutes a touching of the mind, if not the b ody. h. Future Threats i. Words negate intent to effect immediate touching: 1. If the cops werent here, Id punch you. No assault would occur b/c you know nothing wil l happen. ii. Future threats are not considered assaults. C. Intentional Inflict ion of Emotional Distress (IIED) i. Requirements i. The conduct of D was extreme and outrageous. ii. Intended to cause severe distress or at least was reckless in risking that distress. iii. Actually cause severe distress. j. Determining Ou trageous Conduct i. Conduct is repeated or carried out over a period of time OR ii. An abuse of power on the one hand or abuse of a person known to be especiall y vulnerable. k. Presence Requirement - Transferred Intent

i. Outrageous conduct directed at A doesnt necessarily give B a cause of action. The other person must be present to witness the conduct to recover damages. ii. Where such conduct is directed at a third person, the actor is subject to liabil ity if he intentionally or recklessly causes severe emotional distress: 1. To a member of such persons immediate family who is present at the time or 2. To any o ther person who is present at the time, and such distress results in bodily harm . a. Bodily harm would be a physical manifestation of distress such as ulcers, h ives, insomnia. l. Fiduciary Duty i. There are some relationships between people that the law expects a heightened duty for one party. Pastors, doctors, etc. D. False Imprisonment m. A person intentionally confines another w/out lawful priv ilege and against his consent within a limited area for any appreciable time, ho wever short. i. False imprisonment is a trespassory tort, so P can recover damag es even if she sustains no actual harm. 1. Actual harm is required, however, to support claim where P was not aware of the confinement at the time it took place . 2. Mental harm can be enough to recover damages. n. Confinement - Implies limi ted range of movement in an area, but not necessarily a small area. i. Threats o r demands - Confinement by explicit or implicit threat or duress. ii. Assertion of authority - Submission to an officers assertion of arrest under legal authorit y is sufficient to show confinement. iii. Duress of goods - D grabs Ps wallet and refuses to return it. P wishes to leave, but wont leave without her wallet. o. L imited Privilege - Shopkeepers have a right to retain customers to conduct reaso nable investigations re: theft. i. Is store manager acting in good faith? Is the re a plausible reason? ii. Must take a reasonable amt. of time. iii. Cant make ex cessive threats or use excessive force. iv. After the search, the customer must be able to leave if they want. p. Not False Imprisonment i. Consent negates fals e imprisonment (If you agree to be locked inside a box for a magic trick). ii. I f you exclude someone from an area. E. Trespass to Land q. D enters or causes an entry onto the land of another and the entry is intentional. r. In one situatio n, intentional entry is not required. i. This occurs when one unintentionally en ters, as where a car goes out of control without fault, and the car refuses to l eave. The refusal to leave is now considered trespass. s. Entry - includes entry by objects and other persons in addition to your person. t. Intent - Includes e ither purpose to enter or substantial certainty that entry will take place. i. T he object of the intent need not be to trespass however. ii. D does not escape lia bility merely b/c he reasonably believes he is on his own land or b/c he reasona bly believes he has a right to be there. iii. Transferred intent is applicable.

F. Conversion of Chattels u. D intended to exercise dominion over Ps chattel (per sonal property) and accomplished that dominion. v. Conversion - Someone takes an others property, they are converting it to their own use by exercising substantial d ominion over it. i. What to consider to determine if conversion has occurred: 1. Extent and duration of control 2. Ds intent to assert a right to the property 3. Ds good faith 4. The harm done 5. Expense of inconvenience caused w. Intent - D m ust intend to exercise substantial dominion over the chattel, but there is no re quirement that D be conscious of wrongdoing. x. Damages - The usual remedy for c onversion is damages, measured by the value of the chattel at the time of conver sion. G. Trespass to Chattels y. An intentional interference with personal prope rty in someone elses possession. Short of being considered conversion. z. Liabili ty is imposed only if the possessor of the chattel suffers dispossession or lost use, or if the chattel or the possessor is harmed. aa. Trespass can include tan gible and intangible chattels. bb. Damages - based on actual damage, not on the market value of the chattel. Defenses to Intentional Torts Privileges A. Self-Defense a. One is privileged to use reasonable force to defend against h armful or offensive bodily contact and against confinement. b. If D reasonably, but mistakenly believes she is being attacked, she is privileged to use reasonab le force against attacker. c. Reasonable deadly force? i. Ds privilege extends on ly so far as reasonably necessary to prevent the harm, and if the harm threatene d is not itself death or serious bodily harm, D may not use force likely to caus e death or serious bodily harm. ii. Escalation Excessive force is unprivileged a nd D is liable for it. d. Retreat i. D who is attacked is not required to retrea t or otherwise avoid the need for self-defense. ii. Some states require retreat if it is safe and reasonable, and if its an alternative to using deadly force. e. Not Covered by Self-Defense i. Provocation is not sufficient to raise self-defe nse privilege. ii. Does not cover delayed retaliation or revenge. B. Defense of Third Persons a. In general, one may defend others on the same basis he may defe nd himself. b. If one mistakenly aids a 3rd party, the privilege extends as long as Ds reasonably believed the person was in danger. C. Arrest and Detention a. A ny property owner (including storekeeper) has a common law privilege to detain a gainst his will any person he believes has tortiously taken his property.

b. Can only be exercised to prevent theft or to recapture property. Does not ext end to detention for the purpose of punishment. c. If person detained does not u nlawfully have any of the arresters property, the arrester is liable for false im prisonment. D. Defense and Repossession of Property a. The owner of premises cant intentionally injure a trespasser by means of force that either takes life or i nflicts great bodily injury unless the intrusion threatens death or serious bodi ly harm to the occupiers or users of the premises. b. The force used must be of a kind appropriate to the defense of the property. c. A person is privileged to commit an assault to protect property, but not a battery. But if a battery actua lly occurs, transferred intent is applicable. d. Stolen property - A person may reclaim stolen property with reasonable force only if they are in immediate purs uit of the property. e. Repossession of consumer goods (i.e. car) - must be done peaceably, but cannot use force against the owner of the goods. f. Mechanical D evices i. A possessor cannot do indirectly by a mechanical device that which, we re he present, he could not use. (shot-gun traps) E. Discipline a. Parents, teac hers and school bus drivers enjoy a privilege to discipline children with reason able force as they deem necessary. b. Reasonable is measured by: i. Degree of fo rce ii. Type of punishment iii. Childs gender, age, physical and mental condition . F. Consent a. Two types: i. Actual - Real, expressed consent or willingness. E xplicit. ii. Effective - Appearances, circumstances that would lead an objective reasonable observer to believe a person has consented. b. Incapacity Consent is not effective if person lacks mental capacity to give consent. i. Condition mus t substantially impair capacity to understand and weigh the harm and risks of ha rm against the benefits of the conduct and if D must have knowledge of that inca pacity. ii. Competent adults can refuse treatment even if it leads to death. iii . No consent if individual is not properly informed as to what they are consenti ng to. c. Power Relationships i. A position of relative weakness can, in some ci rcumstances, interfere with the freedom of a persons will. The notion of consent must be modified to appreciate the power relationships btw parties. d. Minors i. Can consent to a number of touchings, but not everything. (sex w/minor is illeg al) G. Public Necessity (no compensation maj. rule) a. There is a right to destr oy property providing there is an imminent disaster AND the public officials act reasonable. i. Reasonable is defined as: 1. Actual - action was actually necess ary to prevent widespread harm. 2. Apparent - objectively reasonable, good faith judgment that the act was necessary.

b. Individual rights of property give way to the higher laws of impending necess ity. Greatest good for society. c. Necessity must be clearly shown in order for an individual not to be held liable. Traditionally, there is no compensation for public necessity. d. Taking - Public officials/municipalities have a right, und er certain circumstances, to take property for their use (public use), but they must compensate. Individuals themselves should not be forced to bear public burd ens alone...citizens of the city as a whole should all bear the cost of the bene fit conferred from the necessity. i. Minority Rule Compensation - Once a taking is found, compensation is required by operation of law. 1. However, some states ha ve held that police destruction or seizure of property is not a constitutional ta king. H. Private Necessity (Compensation) a. If D prudently and advisedly availed itself of Ps property for the purpose of preserving its own more valuable propert y, P is entitled to compensation for the injury done. b. If its theres necessity t o avoid serious harm to person or property, there is a privilege to trespass, bu t if while trespassing the party damages the innocent land holders property then the trespasser is liable for those damages. i. There is no right to repeat the trespass. Negligence 1. D owed P a legal duty. 2. D negligently breached that duty (acted unreasonabl y under the circumstances). 3. P suffered actual damage. 4. Ds negligence was an actual cause of this damage. 5. Ds negligence was a proximate cause of this damage. I. Duty A. Standard of Care - care that would be exercised by a reasonable person under similar circumstances to avoid risks of harm to others. a. Children i. (*maj rul e)-Reasonable child of same age, intelligence and experience. ii. (*min rule)- r ule of 7s (Still a case by case basis) iii. Except: When the activity child enga ges in is inherently dangerous (operation of powerful mechanized vehicles). Then , adult standard of care is used. b. Mental Disabilities i. Neither insanity nor mental deficiency relieves person from liability. ii. Standard of care - reason able person under similar circumstances. iii. Mentally disabled person, involunt arily hospitalized, doesn t owe duty of care to his professional caregiver; not liable for negligence causing caregiver harm. c. Superior Knowledge i. If person has more than min. intelligence to recognize a risk, he s required to use the s uperior qualities reasonably under the circumstances. (note: rule does not go th e other way for people with inferior knowledge) d. Sudden Medical Emergency Defe nse i. a. Operator of a motor vehicle who loses consciousness from an unforeseen cause and is unable to control the vehicle, is not negligent. e. Physical Disab ilities i. a. A physical disability is considered part of the circumstances. Ord inary care is such care

as an ordinarily prudent person with a like disability. f. Dangerous instrumenta lity: i. if foreseeable danger is high you the amount of care increases 1. (i.e. - heightened standard of care bc pouring gasoline is a dangerous activity) g. Em ergency instruction : i. still held liable for your actions even in emergency si tuations II. Breach A. Negligence Per Se (est. duty and breach) a. Occurs when D violates a statute. P must still prove that violation of the statute was the significant cause of t he harm of which he complains. (*Even if a negligence per se claim fails, you ca n still prove negligence the old-fashioned way.) b. Two questions to determine n egligence per se: i. Whether P belongs to the class of persons the statute was d esigned to protect, ii. Whether P s injury is of the type that the statute was d esigned to prevent. c. Defenses: (Not comprehensive) i. Person neither knows nor should know of the occasion for compliance. ii. He is unable after reasonable d iligence or care to comply. iii. He is confronted by an emergency not due to his own misconduct. iv. Compliance would involve a greater risk of harm to the acto r or others. v. Person is not in class statute is designed to protect and injury is not of type designed to protect from. d. Licensing Statutes i. (Maj. Rule) T ake violations of licensing statutes into consideration and weigh them to determ ine negligence per se. ii. (Min. Rule) A violation of licensing statutes will ne ver be used as grounds for negligence per se. e. Procedural Effect i. (Maj. Rule ) If you prove negligence per se, you have est. a clear breach of duty. ii. (Min . Rule) If you prove negligence per se, the procedural effect is only to create evidence of negligence. B. Carroll Towing Test a. Weigh risks and benefits to de termine liability. What harms are foreseeable? How likely are those harms to hap pen? How much damage if those harms happen? What types of steps/costs should we expect reasonable people to take in such circumstances to prevent or avoid the h arm? If the risks outweigh the costs, then person should take those precautions. b. Cost/Benefit Analysis i. P=probability injury will happen, L=injury, B=burde n of avoiding injury ii. Liability/negligence depends on if B is less than L mul tiplied by P: B<PL iii. (If burden is lower, yes negligence. If burden is higher , no negligence.) C. More than One Person is Negligent a. Comparative Fault i. P s damages are reduced in proportion to her fault. (If you cause 40% of the inju ry, you pay 40% of the damages.) b. Joint and Several Liability (*Maj. Rule) i. P can enforce her claim against either or both tortfeasors, but cannot collect m ore than her total amount of damages. 1. Contribution - Most states allow one to rtfeasor to obtain contribution from the other to make payment prop. to fault. 2 . Insolvent/ immune tortfeasors - Requires solvent tortfeasor to pay insolvent

tortfeasor s share of damages. c. Several Liability & Comparative Fault Apportio nment (Min. Rule) i. No tortfeasor is liable for more than his proportionate sha re. D. Custom a. Proof of a general custom tends to est. a standard by which ord inary care may be judged even where an ordinance prescribes certain min. safety requirements which the custom exceeds. b. Wal-Mart - Failure to follow a party s precautionary steps or procedures is not necessarily failure to exercise ordina ry care i. A party s standards might be higher than reasonable care and thus sho uldn t be the standard when evaluating conduct. c. Customary statutory violation s - D who complied with all safety requirements of a statute might still be negl igent if he failed to follow a safety custom. d. What does custom prove? i. The harm was foreseeable. ii. D knew or should have known of the risk. iii. The risk was an "unreasonable" one unless the customary precaution is taken. E. Res Ipsa Loquitor a. (*Maj. Rule) Negligence can be inferred when the accident causing h arm is a type that "ordinarily" happens b/c of the negligence of the class of ac tors of which D is the relevant member. i. The accident which produced a person s injury was one that ordinarily doesn t happen unless someone is negligent. ii. The accident must have been caused by something within the exclusive control of D. iii. The circumstances indicated that the event was not caused or contribute d to by P or third persons. b. (Min. Rule) Creates presumption of negligence, in stead of inference. i. The jury is told that, once the presumption applies, D ha s the burden of showing he is not negligent, OR ii. The judge will direct a verd ict for P unless D produces some evidence that he was not negligent. c. Control Requirement i. Application has been liberal. It may be enough that the D has the right or power of control and the opportunity to exercise it. ii. When instrume nt has not been under the control of D for a while - P might show that any fault in the case was attributable to D merely by excluding other causes. (exploding bottle cases) d. Slip and fall cases - Courts reject res ipsa to show negligence . e. Multiple actors - Res ipsa does not help P when 2 or more D s are in contro l of the instrumentality at different times.

F. Determining Fault a. Circumstantial Evidence - evidence of one fact that perm its an inference of another fact. b. Non-expert Opinion - Witnesses are required to state the facts within their knowledge and are discouraged from giving opini ons on ultimate issues. c. Expert Opinion - Experts are usually allowed to give expert opinion within their field of expertise. III. Harm and Causation A. Actual Harm a. P must suffer legally cognizable harm - actual damages. (i.e. Physical harm, economic harm or emotional harm.) B. Cause In Fact (actual cause) a. P must prove actual harm, and that the harm was in fact caused by D. b. "But -for" Rule: but for D s conduct, P would have avoided injury. i. But-for Test of causation - Judge or jury must imagine what would have happened without D s neg ligence. c. Increased Risk Showing Causation i. When D negligently creates incre ased risk of harm, and that type of harm occurs, causation is est., or at least an inference of causation is permitted. C. Injuries a. Indivisible i. Landers: W here tortious acts of two or more wrongdoers join to produce an indivisible inju ry (P can t prove who did what and in what proportion), all wrongdoers will be h eld jointly and severally liable for all damages. ii. Anderson: If other wrongdo er is unknown, then the known D is responsible for all damages. b. Single i. Sum mers: When D s act in concert and cause a single injury that can t be distinguis hed as to who caused it, burden of proof shifts to D s to prove who didn t cause the harm. ii. If D s can t show proof of who caused the injury, then D s are jo intly and severally liable for the injury. c. Substantial Factor Test i. D s neg ligence has to be a substantial factor in bringing about the event that caused t he injury. 1. i.e. if theres a raging forest fire and I negligently throw matches on the fire and the fire destroys P s house, am I liable? no, b/c my negligence wasn t a substantial factor.

Cause in Fact Exceptions to the But-For Rule Parties 2 or more wrongdoers not in concert 2 wrongdoers 1 wrongdoer/1 innocent, unknown 2 or more wrongdoers in concert 2 or more wrongdoers in concert 1 wrongdoer/1 i nnocent Type of Injury Separate Indivisible Indivisible Separate or Indivisible One single (Summers) Liability Separate Joint and Several (Landers) All wrongdoer (Anderson) Joint and Several Shift burden of proof No shift in burden One single D. Damages a. Loss of Opportunity Approaches: i. Lost Chance (Maj. Rule) 1. P ma y recover for loss of opp. injury when D s alleged negligence aggravates P s exi sting injury such that it deprives P of a substantially better outcome. P may re cover portion of damages attributable to D s negligence. a. D s duty of care is broad enough not merely to protect P against injury or loss of life, but also to protect P against loss of substantial chances. If the chance of survival was 40 % and D s negligence more likely than not eliminated that chance, the D would be liable for the loss he caused - the chance. In damages, this is presumably 40% of the damages. b. This approach always gets the total amount of liability right , but gets the amount for each P wrong. (p.231) c. If D creates a risk of future harm, some courts will award damages. ii. Relaxed 1. P must prove D s negligenc e more likely than not "increased the harm" to P or "destroyed a substantial pos sibility" of achieving a more favorable outcome. P recovers damages for pre-exis ting condition rather than simply the loss of opp. (There is no number quantifyi ng the %.) iii. Traditional (Min. Rule) 1. P must prove that as result of D s ne gligence, she was deprived of at least a 51% chance of a more favorable outcome than she received. Once P meets the burden, she may recover damages for entire p re-existing condition. IV. Proximate Cause A. Scope of Risk a. P must prove D s negligent conduct was a proximate cause of the harm suffered by P. D is only liable for harms within scope of risks he crea ted. b. D is not liable unless a reasonable person should have foreseen injuries of same type that occurred and to class of persons who would suffer them. c. Is the type of person injured foreseeable? i. Cardozo (maj.) Duty of care extends to foreseeable Ps in the zone of danger. ii. Andrews D owes a duty of care to any one suffering injuries as a result of Ds negligence as long as no unforeseeable i ntervening causes, remoteness in time and space, continuous chain of events. d. Is the type of harm foreseeable?

i. Did the type of harm that D s negligence risked happen? If so, this argues in favor of proximate cause. (If the type of harm is the harm D s negligence riske d, then it doesn t matter the manner in which the harm occurs is.) e. Manner in which the harm occurs? (DOESNT MATTER) i. Even if manner in which harm occurs is unforeseeable, if the type of harm D s negligence risks is foreseeable, D is sti ll liable. f. Extent of harm is unforeseeable? (STILL LIABLE) i. Thin Skull case s - If harm was much worse than anyone would have expected, it doesn t limit D s liability. 1. D s act must have been one that would cause some harm to a normal person, or D was at fault b/c he knew or should have known of P s susceptible c ondition. B. Rescue Doctrine a. Danger invites rescue and it s reasonably forese eable that someone will try to rescue someone in danger. b. A rescuer can recove r from D whose negligence prompts the rescue. C. Statute Violation a. D must hav e violated the statute and the injury must have been one protected by the statut e. a. Intervening Person or Force b. Where acts of third person intervene btw D s conduct and P s injury, causal connection is not automatically severed. c. D i s liable if intervening act is a foreseeable consequence of D s negligence. a. C riminal Act d. Foreseeability of risk may be more precisely shown when interveni ng cause is a criminal or intentional act. (D may have facilitated the criminal act b/c of his negligence.) e. Old Rule - Courts would never find liability for D when intervening act was caused by intentional or criminal act. f. Modern Rule - You can t anticipate criminal acts, but sometimes those acts are foreseeable harms based on D s negligence. a. Suicide Rule g. Suicides don t break proximate cause chain if (1) the self harm is reasonably foreseeable, and (2) D owes some heightened duty to P (i.e. fiduciary, caretaker relationship). a. "Termination of risk" h. D s conduct created a risk, but the risk so created was no longer ex istent. Emphasizes that P had reached a position of "apparent safety." (Analogou s to remoteness in time and space.) a. Second or Subsequent Injuries i. A tortfe asor responsible for the original accident is also liable for injuries/death occ urring during the course of medical treatment to treat injuries suffered in that accident. a. Intervening Forces of Nature j. D can escape liability if the harm done is different from the harm that was risked by D s conduct in the first pla ce. k. Unforeseeable forces of nature are often called "acts of God," which then puts the burden on D to show that the natural force was unforeseeable.

V. Defenses to Negligence A. Contributory Negligence (Old Rule) a. CN is a complete, all or nothing defens e. Even a minor failure of P to exercise ordinary care for her own safety comple tely bars recovery. B. Comparative Fault (Modern Rule) a. Pure Comparative Fault System - % of fault. i. Amt. of damages recoverable are diminished in proportio n to the amt. of negligence attributed to the person recovering. b. Modified Com parative Fault System - Negligence cannot be greater than the negligence of the person against whom the recovery is sought. i. Any damages are diminished in pro portion to the amt. of negligence attributed to the person recovering. c. Jury I nstruction i. Away from enforcing blindfold rule, where juries get no instructio n as to the effects of a 50% negligence finding. ii. If Ps negligence greater tha n 50%no recovery. d. Multiple Parties i. P can sue anyone more negligent than him self, or P s negligence must be less than everyone else combined. C. Rescue Doct rine a. (Maj. Rule) Can use comparative negligence in a rescue case. b. (Min. Ru le) Rescuer cannot be charged with contributory negligence, unless rescuer s con duct was reckless. D. Res Ipsa a. (Modern Rule) Can use res ipsa, but how is the jury to assign a percentage of fault to each when D s negligence is not known? b. (Old Rule) Courts bar application of res ipsa when P was guilty of contributo ry fault b/c it shows that D was not in exclusive control of the instrumentality . E. Exceptions to Defenses a. Last Chance or Discovered Peril i. If D discovere d or should have discovered P s peril, and could reasonably have avoided it, P s earlier negligence would neither bar nor reduce P s recovery. (Even though P wa s negligent, D had the time and ability to avoid the risk, but didn t.) ii. **In states that have adopted comparative fault systems, the doctrines have been dis carded. b. Ds Reckless or Intentional Conduct i. (Modern Rule): Use comparative f ault for all claims of injuries to persons or property for reckless behavior. ii . (Old Rule): P charged with contributory negligence was allowed a full recovery against a reckless or intentional D. Comparative negligence is not a defense ag ainst an intentional tort. c. Ps Illegal Activity i. When P s injury is a direct result of his participation in a criminal act, he cannot seek compensation for t he loss. F. Causation and Scope of Risk a. Disregarding D s Fault

i. D s non-causal fault - P s comparative fault is irrelevant if D s fault did n ot cause harm or is not a proximate cause of the harm. ii. Minimizing Damages Ru le - Traditionally required P to minimize her damages by reasonable efforts and expenses. b. Disregarding Ps fault i. P s non-causal fault - P may recover full d amages if her contributory negligence was not a cause in fact or proximate cause of her own harm. 1. P s drives not watching where she s going, D hits her from behind. P was negligent, but not the cause of her harm. G. Ds Responsibility a. S tatutes sometimes impose a duty upon D to protect P s who are vulnerable or disa bled. This might be especially important if: i. D knows of P s disability that p revents or inhibits P s care for himself; ii. P s risky conduct endangers himsel f but not others. H. Assumption of the Risk (COMPLETE DEFENSE) a. P may have exp ressed or implied to relieve D of his duty or part of that duty. P must have kno wledge of the risk and voluntarily encounter it. i. Expressed Assumption of the Risk 1. A valid contractual limitation on liability creates an absolute bar to P s recovery from the other party to the contract. 2. Consider the following when evaluating waiver: Clear, explicit, no contrary public policy, voluntarily ente red into. 3. Cannot waive willful/wanton conduct, hidden or unreasonable risks. ii. Implied Assumption of the Risk 1. Increasingly, courts get the same results by using CN or no breach of duty, reducing P s recovery of damages, not barring them completely. b. 3 Categories: i. Primary Assumption of the Risk - Whether D breached a duty. If D prevails, no recovery. ii. Secondary Assumption of the Ris k - Use CN (if both parties were negligent). Reduces P s recovery if D is also a t fault. c. Sports - Turcotte eliminates implicit assumption of risk. i. Old Rul e: If you participate in sports, you implicitly assume a risk. ii. Modern Rule: Whether D breached his duty. When you participate in a sport, you are agreeing t o lower (not eliminate) the duty of care of the other participants. However, one doesn t assume the risks of reckless acts. I. Statutes of Limitations a. (New R ule) Discovery Rule - SOL begins to run when P discovered or should have reasona bly discovered the injury. b. (Old Rule) SOL starts running from the date of the injury or the date of the malpractice. c. Latent Potential Harm - P s harm may not be fully developed when he sues, but if he waits until the harm fully develo ps, then he misses SOL. i. (Traditional Rule) P has to file within SOL, even if he s not fully harmed. P can, however, ask for future damages. Can recover if he can prove more likely than not, future damages will occur. ii. (Modern Rule) Re ject enhanced risk recovery but allow present damages and leave open the possibi lity for a second suit is substantially different damages occur. d. Exposure w/o ut symptoms i. Traditionally, P can recover for emotional damages for fear of fu ture harm and medical monitoring expenses to detect harm. ii. However, some cour ts say you can bring a suit later if you actually develop the disease.

e. Repressed Memories (min. rule) i. SOL tolled until memories are recovered. Ne ed corroborating evidence. f. Disabilities i. SOL tolled during time of disabili ty g. Minors i. SOL doesnt run until 18. J. Preemption and Compliance w/ Statutes a. Complying with laws is not a defense, but is merely evidence of reasonable c are. In some cases, if the regulation is set by fed. law, sometimes that can con clusively set the duty of care. VI. Limiting or Expanding Duty of Care A. Carrier & Host Drivers (commercial transportation) a. (Maj): Higher standard of care. b. (Min): Reasonable care under the circumstances. c. Guest statutes only liable if D is willful or wanton. (courts have almost abandoned this idea) B. Landowners a. Invitee i. Any person on the premises (1) at least in part for the benefit (business visitors) of the landowner or (2) who is on the premises h eld open to the general public. 1. Duty is reasonable care. Social guests are no t invitees (maj. rule). 2. Landowner is liable for dangerous conditions that he knows or should know (basic inspection of land) of the dangers. b. Licensee i. S omeone who is on the land with permission, but with a limited license to be ther e. 1. Duty of care to avoid intentional, wanton or willful injury when landowner has not discovered danger to the entrant. 2. After discovery of trespasser and that trespasser is going to encounter a danger, then ordinary care. c. Trespasse r i. Any person who has no legal right to be on another s land and enters the la nd without the consent of the landowner. 1. Duty of care to avoid intentional, w anton or willful injury when landowner has not discovered danger to the entrant. 2. After discovery of trespasser and that trespasser is going to encounter a da nger, then ordinary care. (Some courts say that if the landowner knows that tres passers frequent the land, then reasonable duty of care is owed - well beaten pa th over the RR tracks) d. Attractive Nuisance Doctrine i. A possessor of land is subject to liability for physical harm to children trespassing thereon caused b y an artificial condition upon land if: 1. Trespass by child is foreseeable. 2. Landowner has reason to know of danger. 3. Child, b/c of age, will not be able t o protect himself from the danger. ii. Common hazards, such as natural pools of water, are not considered attractive nuisances and the child trespasser is entit led to no protection from the landowner. e. Open and Obvious Danger Rule i. Duty to protect lawful visitors against dangerous conditions on property ordinarily does not extend to dangers that would be obvious to persons of average intellige nce. 3 approaches:

1. No duty to warn of obvious danger. 2. Assumption of the risk 3. Duty of care is not breached when harm is not foreseeable b/c you assume invitee can avoid an d protect himself. f. Reasonable Care Standard i. About of the states either inc lude social guests in the invitee category or completely or partly abolish the c ategories, with the result that all or most non-trespassing entrants upon land a re entitled to reasonable care under the circumstances. ii. For abolishing the c ategories: The status of a person is part of the circumstances, and therefore ab olish the categories. Reasonable care under the circumstances. iii. Against: Too many cases would get to the jury. C. Firefighters Rule a. Precludes a firefighte r (and certain other public employees) from recovering against a D whose neglige nce caused the firefighter s on the job injury. Firefighters should not be allow ed to recover when injured as a result of confronting known and accepted risks. b. Exceptions i. If the fire was set willfully or wantonly. ii. If the negligenc e that causes the injury is unrelated to the reason the officer was called to th e scene. c. Some states have abolished or limited the rule, stating that a reaso nable duty of care is warranted. D. Medical Profession a. Duty is set by the sta ndard of care of the relevant medical community. i. Med. Community Definitions 1 . (Min.) Modified Locality Rule: Drs. in your town and similar towns. 2. (Min.) Pure National Standard: All Drs. in country as one standard. 3. (Maj.) National Standard: Adjusts for resources in a locality. b. Standard of care is usually es tablished through expert testimony showing that the doctor was unskillful or neg ligent and that his want of skill or care caused the injury. c. Schools of Thoug ht i. P has to show that no other major group of doctors would have done the pro cedure the way it was done to establish a breach of duty. ii. Specialists are he ld to the standard of their specialty. neurology, obstetrics. d. Referrals i. Sp ecialists do not have a duty to refer to people outside of your specialty assumi ng specialists don t have the proper knowledge. ii. Other courts feel if special ist discovers disease, then they have a duty to refer. e. Good Samaritan Act i. Rule immunizes from liability a medical provider who "in good faith renders emer gency care at the scene of an emergency." 1. Only if physician doesn t have a pr eexisting medical relationship with patient. 2. Some jurisdictions say rule appl ies to any scene of an emergency. 3. Some jurisdictions exclude hospitals and ot her medical centers saying scene is considered only those locations where adequa te medical care is compromised by the existing conditions. f. Res Ipsa i. Expert testimony may be used to bridge the gap btw the jury s common knowledge and tha t of physicians. ii. Multiple Injuries - Where P receives unusual injuries while unconscious in the course of medical treatment, all those D s who had any contr ol over his body or instrumentalities which might have caused the injuries may b e called upon to meet the inference of negligence by giving an explanation of th eir conduct. (Courts are divided over this and

1/2 don t allow res ipsa in these instances.)

g. Informed Consent i. (Maj.) Duty to disclose all significant medical info. phy sician possesses or reasonably should possess that is significant to a reasonabl e person to make an intelligent decision to undergo a proposed procedure. P must also show that had the proper info been provided neither he nor a reasonable pe rson in similar circumstances would have undergone the procedure. The risk that was not warned of must materialize for a P to win an informed consent suit. ii. (Min.) Drs. should disclose only what is customary for reasonable drs. to disclo se. iii. Incompetency - If a person is competent, they cannot be treated over th eir objection. If person isn t competent, then rules of consent can be used. iv. Materiality test: (What must drs. disclose?) 1. Material risks 2. Hoped for gai ns 3. Alternative procedures v. Experience - If a dr. is inexperienced or unsucc essful with a certain procedure, some courts say the dr. must disclose that info . E. Nonfeasance a. No Duty to Act Rule i. One person owes another no duty to ta ke active steps for another s protection. D is liable for misfeasance (negligenc e in doing something active), but not for nonfeasance (doing nothing). b. Except ions i. If person knows his conduct, tortious or innocent, has caused harm to an other, he has duty to render assistance to prevent further harm. ii. Where D dis continues aid, liability is imposed if D, acting reasonably, has left victim in a worse position. iii. Where D renders aid, he has a duty to do it non-negligent ly. iv. Where P and D are in a special relationship, D has a duty of reasonable care whether or not D had anything to do with the risk of harm to P. 1. common-c arrier/passenger 2. innkeeper/guests 3. employer/employee 4. parents/children F. Duty to Protect from Third Persons a. With limited exceptions, D owes no duty t o protect P from a third person s conduct. b. Exceptions based on D s relationsh ip with P i. Business owners - have some duty to protect customers against harm. 1. Foreseeability Test (determines if there is a duty in the first place, then whether the duty is breached is decided later)When courts decide if business sho uld have reasonably foreseen the crime, courts will use different approaches: a. Similar crimes on particular property. b. Different crimes on particular proper ty and surrounding area. ii. Social hosts - have no duty to protect against crim inal acts of third parties, unless person knows the third party will commit a cr ime. iii. Employers - owe a duty to employee only if employee comes into a posit ion of imminent danger and employer knows of it. iv. School officials - duties o f reasonable supervision. 1. Scope of duty imposed is limited by what risks are reasonably foreseeable. 2. Duty falls upon employees who have supervisory respon sibility over students and have stepped into the role of parent.

3. Schools can also be held liable if the attack happens outside of the normal s chool day. v. Landlords - sometimes owe a duty to their tenants. Courts are spli t. 1. If a landlord knowingly brings in dangerous third persons, he owes other t enants a duty to protect them. c. D s Relationship with dangerous persons i. Lan dlord - duty to third persons to do all he legally can to get rid of a dangerous condition on leased premises he reasonably knows of, even if it means getting r id of the tenant. ii. Employers - Negligent hiring or supervision 1. Employer ha s a duty to prevent an employee that it knows or should know has a dangerous pro pensity, from committing such acts. iii. Parents - duty to control children 1. P arents are liable only for failing to control some specific dangerous habit of a child of which the parent knows or should know in the exercise of reasonable ca re. iv. Doctor-Patient 1. A therapist owes a legal duty to his patient, and also to his patient s would be victim to disclose information to prevent danger. 2. Doctor s don t have to inform patient of who they might inform of the info (tell the police) b/c it would be medically contraindicative. 3. A physician has a du ty to provide adequate info to a patient so as to not spread a disease to a thir d person. d. Negligent Entrustment i. If you own a potentially dangerous instrum ent and you give it to someone you know at the time is not capable of not using it safely, you can be liable for the harms that person causes with that instrume nt. ii. Bar Owners 1. One who sells alcohol for on the premises consumption has a duty to exercise reasonable care not to sell to a noticeably intoxicated perso n. 2. Even if the vendor breached his duty, P must still show that the illegal s ale of alcohol led to the impairment of the driver which was the proximate cause of the injury. 3. Some courts still follow CL and won t hold alcohol providers liable for harms caused to third parties even if they serve to minors or obvious ly drunk people b/c there s no proximate cause. G. Negligent Infliction of Emoti onal Distress (NIED) a. Fright or Shock from Risks of Physical Harm i. Impact Re quirement (traditional rule) 1. Cannot recover for emotional distress alone. P m ust demonstrate some physical impact/injury in order to recover for NIED. ii. No Impact (new rule) 1. Does not require a physical injury at the time of the even t that causes the emotional distress. However, P must show a physical manifestat ion of the shock or fright resulting after the events in question. (either impac t or later manifestation) iii. Some states have abolished the physical injury/ma nifestation requirement altogether. b. Mental Distress Resulting from Injury to Another

i. Zone of Danger Test 1. A P within the zone of danger of physical impact will be able to recover for emotional injury caused by fear of imminent physical inju ry to himself. 2. Exceptions (No impact, but within zone of danger - those who m ight foreseeably suffer emotional harm b/c of the injury) a. Dillon factors to c onsider (more flexible) i. Whether P was located near the scene of the accident. ii. Whether the shock resulted from a direct emotional impact upon P from the s ensory and contemporaneous observance of the accident. iii. Close relationship b tw P and victim (immediate family). b. Thing requirements to recover (stricter t han Dill) i. P is closely related to victim. ii. Present at the scene of the inj ury producing event at the time it occurs and is aware its causing injury to vict im. iii. As a result suffers serious emotional distress. c. Bird zone of danger tightened i. Must be there at the time of the negligence to recover. Doesn t mat ter if you witness the suffering right after the event. ii. P must also have fea red for own safety. c. Loss of Consortium i. Claim for loss of support services, love, companionship, society, etc. (spousal) Based on the recognition of a lega lly protected interest in personal relationships. ii. Does not apply to adult or emancipated children. H. Prenatal Harms a. Third Party Negligence i. Old Rule: No recovery for injury caused to unborn fetus. ii. New Rule: iii. Factors for li ability 1. At what point during the pregnancy did the injury occur? a. Some cour ts allow recovery for injuries that occur anytime during the pregnancy. b. Some courts allow recovery for injuries that occur after the fetus is viable. 2. Whet her the child is born alive. a. Born alive, but injured, courts will find liabil ity. b. (Min. Rule) If the child is born dead, courts will not find liability. c . (Maj. Rule) If the child is born dead, there can be liability, assuming the fe tus was viable at the time of the injury. b. Negligence by Mother i. Mother owes no duty to unborn fetus. c. Wrongful Conception i. Doctor negligently performs sterilization procedure and child results. P sues for child rearing costs. Most courts recognize this type of claim. ii. Damages 1. Full Recovery Rule - recover all the costs of raising the child. 2. Benefit Rule - recover costs of raising the child offset by the benefits incurred by having the child. 3. No Recovery Ru le - parents get no recovery for the costs of raising the child, however, they c an recover for expenses resulting from the pregnancy. d. Wrongful Birth i. Claim by the mother stating she would have terminated the pregnancy if the doctor wou ldn t have been negligent in failing to diagnose genetic defects of fetus.

ii. Most courts recognize this type of claim. e. Wrongful Life i. Courts do not accept this type of claim. Child cannot recover for being born. I. Death a. Surv ival Action i. Continuation of any tort claim decedent had before he or she died . ii. Suit doesn t have to be filed by decedent before he dies. May be brought b y decedent s estate after they die. iii. Damages go to the estate, not necessari ly heirs, etc. (D s tort isnt necessarily related to the act that caused the deat h.) 1. Award punitive damages - general rule: must est. pain and suffering. Smit h, however, says no est. of pain and suffering is required b/c we are punishing D for his tortious behavior. Courts are split re: pain and suffering. 2. Additio nal damages may also be recovered: medical expenses, funeral, wages lost before death. b. Wrongful Death Action i. Claim that someone s tort killed the decedent . ii. Survivors, heirs, spouses (typically not stepchildren and courts are split on non-custodial parents) bring action for damages they incur as a result of th e decedent s death. iii. D can use traditional defenses in a wrongful death suit - comparative negligence, assumed risk, etc. iv. Damages - Attempts to make the survivors whole. 1. Award pecuniary ($$) damages that result from the death. Me dical, funeral, loss of future support, loss of consortium. 2. Typically no puni tive or emotional distress damages. 3. Two Methods of Calculation: (some courts use both) a. Loss to survivors method (maj. rule) - Loss of support to dependent s, housing, food. b. Loss to the estate method (min. rule) - Survivors get money determined by decedent s probable lifetime earnings and deduct what courts thin k decedent would have spent on himself. VII. Strict Liability A. Respondeat Superior and Scope of Employment a. Employers can be liable for th e torts of their employees if the tort was committed within the scope of employm ent. i. The employer is receiving the benefit of the employee s actions, therefo re it s foreseeable that the employees may cause damages and it would be fair th at the employer internalize those costs. b. What is w/in Scope of Employment? i. Furthering the master s interest. ii. Act is triggered by the employment relati onship. iii. If the act is a well-known hazard in the particular enterprise, and employee commits that act. If job puts employee in a position to commit the act , employer is liable. (Min. Rule) c. Going and Coming Rule i. An employee going to and from work is ordinarily considered outside the scope of employment. ii. Exc eptions: 1. Special hazards - if going to work requires going through really dan gerous conditions, then that travel time is under the scope of employment. 2. Du al purpose - employee is commuting, but at the same time is serving a purpose

of the employer. If that employee wasn t doing the service, then the employer wo uld have to get someone else to do it. (more common) d. Frolic and Detours - If detour is minor, then employee is w/in scope of employment. Look at the amt. of time and distance. Farther and longer is considered a frolic. e. Personal Comfor t Doctrine - personal comforts (getting coffee, going to the bathroom, smoking) are considered w/in scope of employment. f. Prohibited Acts Even if employer exp ressly forbid an act, an employer may be held accountable if employee commits th e act while within the scope of his employment. B. Common Law Development of SL a. D can be liable even if no one is at fault. Damages also needn t be proven. b . Brown v. Kendall - If act was unintentional and done in doing a lawful act, D is not liable unless: i. D wasn t using reasonable care. 1. Burden of proof is o n P. 2. C. Modern Strict Liability a. Livestock i. (Maj. rule) An owner is liabl e if his livestock that trespass on neighbor s property (either intentional or i f they escape) even if he took reasonable care. Don t need to show fault. ii. (M in. Rule) Fencing in laws - D can avoid strict liability under CL if he puts a f ence around his animals and they escape. He can still be liable just not under s trict liability. iii. (Min. Rule) Fencing out laws - If P lives near livestock, P must put up a fence on his property and if livestock get in, he has a strict l iability claim against D. b. Wild Animals i. Wild does not necessarily mean dang erous, merely not domesticated. ii. Rule - owner is strictly liable for the fore seeable types of harms that animal could cause. iii. D cannot avoid liability by treating the wild animal as if it were domesticated or by taking reasonable pre cautions. c. Dangerous Animals i. Strict liability is imposed upon domesticated animals if the owner knows or should know the animal is dangerous in some way. i i. One Bite Rule - If dog bites a person, but has never bitten anyone before, ow ner is not strictly liable b/c he didn t have reason to know his dog would bite (unless the dog is inherently dangerous). However, if the dog bites again, owner will be held strictly liable. d. Ultrahazardous Materials Strict Liability i. ( Rylands v. Fletcher) 1. D makes unusual use of his land that then harms someone elses land. D has a right to use his land in a natural way, but if he alters his land in an unnatural way, D is strictly liable for the harms caused. 2. D stores potentially dangerous materials on his land and they escape or cause harm (does n t matter if he takes precautions or uses reasonable care). ii. 1st Restatement : Ultrahazardous Activities 1. Especially dangerous 2. Couldnt be made safe even by the exercise of utmost care. iii. 2d Restatement: Abnormally Dangerous 1. Whe ther activity creates a high degree of risk of harm. 2. The likelihood that the harm will great

3. 4. 5. 6. The inability to eliminate the risk by using reasonable care. Whether the activi ty is uncommon. The inappropriateness of the activity to the place where it s ca rried out. The extent to which the value of the activity is outweighed by its da ngerous attributes. iv. 3d Restatement: Liability without proof of negligence when these things occu r: 1. Activity creates a reasonably foreseeable risk of physical harm. 2. Risk i s significant 3. Risk remains even when reasonable care is exercised 4. Activity is not a matter of common usage. 5. (cmt. As long as P is exercising reasonable care, liability will be imposed. Can t bring strict liability claim if P s negl igence is a cause of the harm. - min. view) v. Social Policies 1. Create disince ntives for people to engage in dangerous activities. 2. Create incentives to be as careful as possible. 3. Theses types of activities are usually done by commer cial enterprises and they should bear the costs of the dangerous activity. 4. Co mmon usage cuts against strict liability b/c when the activity is common, the co sts are already spread throughout the community. e. S/L Subjects Today i. Impoun dments - noxious substances that escape D s land. ii. Lateral Support - neighbor ing landowners owe a duty to neighbors for lateral support. iii. Blasting and ex plosives iv. Fire - no strict liability v. Poisons - crop dusting vi. Land damag es from airplanes f. Legal Cause i. P still has to show actual cause and proxima te cause. ii. (Maj.) Cannot break the proximate cause chain w/ intervening force s. iii. (Min.) Intentional bad acts of a party can break the proximate cause cha in. g. Defenses i. (Traditional/Maj.) - Assumption of the risk is a defense, com parative negligence is not. ii. (Very Min.) 3d Restatement calls for a change su ch that both assumption of the risk and comparative negligence can be used.

VIII. Products Liability A. 2d Restatement a. Ds are liable for harms caused by defective/unreasonably dan gerous products. i. But just b/c a product caused a harm, it doesn t mean D is l iable. The product has to be defective in some way. b. Test i. Consumers reason able expectations determine whether a product is defective. P must still prove a ctual and proximate cause. c. Who can be Ps? i. Users/consumers (includes anyone who has been hurt by the product-third parties). d. Who can be Ds? i. Manufacture rs, wholesalers, retailers (typically in the business of selling such products) 1. Some states say a retailer is not liable for defective products its sells if product arrives and is sold in a sealed container. 2. cmt.g: strict liability ap plies if the product is defective at the time it leaves D s hands. e. Economic l osses do not fall under SL i. Damage for inadequate value of product itself, cos t of repairing or replacing defective product, loss of profits b/c of defective product. B. 3d Restatement a. Makes product liability law more like negligence l aw and less like strict liablity law. C. Evolution of Liability Theories a. Misr epresentation i. If P is injured by D s product after a misrepresentation of a s afer, non-defective product, D may be held liable. b. Warranty i. No privity req uirement in implied warranty cases. It ran to the purchaser and not just the ret ailer. c. Justification: i. Consumers expect to get reasonably safe products. ii . Practicality - if a product was defective, D was probably negligent somewhere. iii. Justice and fairness - Businesses impose certain costs as part of its ente rprise and it s inevitable they will produce defective products, therefore they should be responsible for their harms. iv. Efficiency - Companies are in the bes t position to spread the costs of defective products. v. Deterrence - Creates in centive to minimize the production of defective products. D. Types of Defects a. Manufacturing i. A physical departure from a product s intended design. It can occur even if there is nothing wrong with the product s actual design. ii. Injur ed party must prove: 1. Product was in a defective condition, unreasonably dange rous for its intended use; 2. Such defect existed when product left D s control; and 3. Defect was the proximate cause of the injury sustained. iii. Consumer Ex pectation Test 1. To determine whether the product was defective and unreasonabl y dangerous, ask whether the product is dangerous beyond the contemplation of th e consumer. iv. 3d Restatement Test 1. A product contains a manufacturing defect when it departs from its intended design even though all possible care was exer cised in the preparation and

marketing of the product. v. Res Ipsa 1. An inference of a defect may arise even when P fails to prove what specific aspect of the product was defective. 2. A p roduct defect existing at the time of sale or distribution caused P s harm when the event: a. Was of a kind that ordinarily occurs as a result of a product defe ct; and b. Was not solely the result of causes other than product defect. vi. Fo od Products 1. (Min.) Foreign-natural test - no SL if the substance found in the food was a natural object. 2. (Maj.) Consumer expectation test - A harm-causing ingredient is a defect if a reasonable consumer would not expect the food to co ntain that ingredient. b. Design i. If a product is misdesigned, every one of th e products represents a potential lawsuit against the manufacturer (recalls). ii . A product is design defective if: 1. It is more dangerous than an ordinary con sumer would expect when used in an intended or reasonably foreseeable manner (co nsumer expectation test); or 2. If the benefits of the challenged design do not outweigh the risks inherent in such design. (risk-utility test) - doesn t apply if the risks arise out of the way the product was designed to function. a. Reaso nable Alternative Design i. Safer alternative design that would have prevented o r significantly reduced the chance of injury w/out substantially impairing produ ct s utility. ii. The safer alternative was both technologically and economicall y feasible. iii. P must show that safety benefits from its proposed design are f oreseeably better than the resulting costs. iii. Burden of Proof 1. (Min.) Burde n of proof is on D to show product wasn t defective. 2. (Maj.) Burden of proof i s on P to show product was defective. iv. Tobacco won on design defect, but lost on negligence. v. Firearms 1. For a design to be defective, a product must be u nreasonably dangerous for its intended use. Just b/c a product, by its very natu re is dangerous, doesn t mean it was designed defectively. vi. Drugs 1. 2d Resta tement a. Some products are incapable of being made safe in their intended and o rdinary use. (i.e. medical drugs and side effects) If product falls in this cate gory, then P can only use the risk utility test. b. Limits: Have to show usefuln ess outweighs the harms it causes and can t be made any safer (rabies vaccine) 2 . 3d Restatement a. Uses the risk-utility test for everything. vii. Unknowable R isks 1. Product is dangerous but manufacturer had no way of knowing at the time it was made. Maj. no liability.

c. Warning/Information i. SL is imposed when D fails to provide an adequate warn ing for reasonably foreseeable harm and the failure to do so causes injury. ii. Just putting a warning on a defective product, however, doesn t make the manufac turer immune from liability. iii. 2 types of warnings: 1. Alert users to risks t hat are not obvious. 2. Inform users of safer alternatives. iv. Under what circu mstances must warnings be given? 1. Point of Sale and On Product Warnings a. Whe n the product s foreseeable risks of harm could have been reduced or avoided by a reasonable warning and the omission of such a warning renders the product "not reasonably safe." 2. Post-Sale Warnings a. When a latent defect making the prod uct hazardous to life becomes known to the manufacturer shortly after the produc t has been put on the market. b. Duty to Recall/Repair? (split) i. There must ha ve been a defect that was actionable at the time of manufacture. 1. A safety dev ice that is developed after the product is sold, doesn t mean manufacturer is li able b/c the product doesn t have the safety device and someone is injured as a result. ii. Even if product is not defective at the time of sale, if it subseque ntly comes out that the product is dangerous and the cost of recall/repair is lo w, manufacturer has a duty to keep abreast of the field. c. 3d Restatement i. A seller or distributor is obligated to give a post-sale warning when a reasonable person would do so. A reasonable person would give such a warning if: 1. He kne w/should know that product poses substantial risk of harm; 2. Those to whom a wa rning might be given can be identified and assumed to be unaware of the risk; 3. A warning can be effectively communicated; 4. The risk of harm outweighs the bu rden of giving such a warning. 3. Obvious Danger Rule a. No duty exits to warn o f dangers that are obvious or should be obvious. b. Obvious danger is tested via the reasonable consumer expectation.

4. Heeding Presumption a. Courts usually presume that P would have read and heed ed the warning, leaving it to D to show otherwise if it can, the "heeding presum ption." v. What is an adequate warning? 1. Warnings must be reasonably clear, no ticeable and with sufficient force to be effective. 2. If it s foreseeable that someone will scan and not read the manual, it s enough to get to the jury. a. If P admits that he didn t read the manual at all, then there s no causation. 3. I t may not be enough that the warning says do not do something. The consequences of doing something (if death or serious injury) must also be included. (indicate the degree of danger) 4. Foreign Consumers a. No court has required a warning i n another language even when the product is advertised in that language. b. Howe ver, some courts have required pictures and symbols where illiterate users are f oreseeable. 5. Civil Conspiracy a. P can t determine who made defective product, so D s can be joined together under a civil conspiracy claim that says the D s were acting together to actively conceal a danger. b. Recall Summers v. Tice whe re the court shifted the burden to D to figure out which wrongdoer caused the in jury. vi. Who must give the warning? 1. Manufacturers 2. Retailers have to pass on the warning. vii. To whom must the warning be given? 1. To the ultimate consu mer of the product. 2. Exception: a. Learned Intermediaries and Sophisticated Us ers i. Generally just to the drs. who prescribe the drugs, who then has the duty to warn the patient. ii. If Dr. fails to warn patient about the dangers of the drug, the patient may have an action against the dr. but not a failure to warn s uit against the manufacturer. 1. Exception: 3d Restatement - Warnings about pres cription drugs and medical devices must be given directly to consumers only when the manufacturer knows or had reason to know that the learned intermediary will not be able to reduce risks of harm in accordance with instructions or warnings . (i.e. mass inoculation) E. Defenses a. Comparative Negligence i. (Traditional Rule) CN of P is not a defense to a strict liability. ii. Products liability rul e 1. 2d Restatement - D cannot use CN as a defense. Only assumption of the risk or misuse. 2. 3d Restatement allows CN and assumption of the risk (making it mor e like

negligence). a. However, jurisdictions will not allow CN if the alleged negligen ce is failing to discover the defect. b. No distinction btw CN and assumption of the risk under R3 for product s liability and therefore assumption of the risk isn t necessarily a complete defense. i. Maj. of courts still say that assumptio n of the risk is a complete defense. b. Assumption of the Risk i. Complete defen se if P voluntarily and knowingly assumed the risk occasioned by the defect. c. Misuse i. P used product in a way that was not reasonably foreseeable. ii. Not a n affirmative defense, but rather has to do with P s prima facie case. P must es t. that product was unreasonably dangerous in a reasonably foreseeable use (by a range of consumers - not intended users). Maj. rule iii. 3 Approaches: 1. Some cases can be viewed as no defect cases. 2. Misuse means defective product wasn t a proximate cause. 3. Misuse can sometimes be combined with the idea of compara tive fault. iv. At what point is misuse foreseeable? 1. If there was a defective design, then misuse is foreseeable. Manufacturers must design products for the reality of foreseeably use...careless people, etc.

d. Proximate Cause i. Superseding Cause D must first prove that the negligence o r misuse was not reasonably foreseeable. ii. Substantial modifications of a prod uct from original condition by third party are not the responsibility of the man ufacturer, unless modification is reasonably foreseeable. iii. (Min. Rule) Misus e looks at intended users, not foreseeable users. iv. Thin Skull Rule 1. Even if the extent of harm that the defect caused is greater than the extent of harm th at would have happened to an ordinary person, manufacturer is still liable for a ll harms. v. Some things aren t reasonably foreseeable. 1. i.e. Claim by P that tires were defective. Decedent got flat tire, was stranded and murdered. Court f ound that there was no proximate cause. However, one could argue that criminal a cts by people are sometimes foreseeable. e. Warnings & Disclaimers i. If D gives clear and simple warnings, and P ignores those warnings, it will be easier for D to argue misuse b/c it wouldn t be reasonably foreseeable that P would ignore the warning. ii. Disclaimers say "Product is dangerous, manufacturer will not be liable for harms caused." or basically tells person not to do something, but do esn t say why. 1. Manufacturer cannot avoid liability by disclaimers on a new go od. 2. However, disclaimers can be effective for sale of used goods. i.e. used c ar is sold "as is" f. Compliance w/ statute i. If a manufacturer shows it compli ed with stat. mins., that can be evidence (but not proof) that product was not d efective. ii. Preemption of liability 1. Congress can preempt state law if it so chooses. If manufacturer then complies with fed. and not state laws, he would n ot be liable. g. Services (intangibles) i. Restatement 2 & 3 - Product s Liabili ty applies only to products, not services. 1. R 3 definition of products: Only t angible, commercially distributed, personal property things can count as product s that can be defective. Or items sufficiently analogous to warrant application of the same rules. (i.e. electricity, although not tangible, is viewed as a prod uct.) ii. Note: blood is not a product. Supplier of blood is not strictly liable .