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Cloned from: MBE Torts 2

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Products Liability
Defect present when product left D's control
Types of Defects
Inadequate warning
Proving a manufacturing defect
Show product failed to perform as safely as an ordinary consumer would expect.
Proving a design defect
Show D could have made the product safer without serious impact on product's price or utility
Proving a defect with noncompliance with government safety standards
Noncompliance establishes defect. Compliance doesn\'t establish that it\'s not defective.
Scientifically unknowable risks
No Liability
Unavoidably unsafe products
Not liable if danger apparent
Products Liability
Liability based on intent- D intended the consequences or knew they were substantially certain to occur.

- Compensatory and punitives available.
Defenses to products liability
- same as Intentional Torts
Products liability - DUTY
Duty is to any foreseeable P, not thieves.

Owed by manufacturers, wholesalers, and retailers.
Wholesalers and Retailers  meet duty with inspection
Products liability
liability based on negligence -
Breach,  products liability
D's negligent conduct led to supplying the defective product.,

Causation - Intermediary's negligent failure to discover defect does not supersede orignial manufacturer's negligence,

PL - Neg - DamagesPhysical injury or property damage req\'d, no purely economic loss
PL - Neg - Defenses
Same as general negligence, disclaimers ineffective
Liability based on SL
Duty - commercial duty to supply safe products to all f/able Ps.
Breach of duty products liability -
defect makes product unreasonably dangerous
Causation products liability
- actual or proximate Damages -

no econ loss, requires physical injury, prop damage Defenses: Ass of risk, comp neg, cont neg
Implied warranties of merchantability & fitness,
Two warranties: Merchantibility and Fitness for a particular purpose,
Goods are generally fit for their ordinary purposes,
Fitness for a particular purpose,
Seller knows/has reason to know particular purpose for goods and Buyer relies on Seller's skills and judgment in selecting,

Causation in warranties,Same as general negligence, Damages in warrantiesPersonal injury, property damage, and purely economic loss
Defenses in warranties
Assumption of risk,
contributory negligence
failure to notify of breach
Disclaimers no good for Personal Iinjury, but okay for economic losses
Express warranty
- Affirmation of fact or promise that forms part of basis of bargain. Breach show only that product did not live up to warranty Causation, damages, and defenses - implied warranties Disclaimers- only if consistent with warranty
Misrepresentation of fact
Seller liable for misrepresentation of facts re: product where statement was of material fact re: quality or uses of goods, or seller intended to induce reliance by the buyer
Misrep of fact reqs
Justifiable reliance required Causation (actual cause shown w/relince, proximate cause same as S/L) damages same as S/L
Defenses to misrep of facts
No Ass of risk Cont. negligence same as S/L. ---not available in intentional misrep.
Private nuisance
- Substantial and unr/able interference. Severity of injury outweights utility of D's conduct. - With another's use or enjoyment of his property.
Public nuisance
- Unreasonable interference with health, safety, or prop rights of the community - For private person to recover, must show unique harm.
Remedies to nuisance-
Damages, injunction, abatement by self-help
Abatement by self-help
If private N, can use self-help after D has notice and refuses to act. Only necessary force. If public N, only public authority or private party with special damages can seek.
Defenses to nuisance
Zoning authority Conduct of others Contributory negligence Coming to the nuisance
Vicarious liability - respondeat superior
- Employer Vicariously Lliable for torts by employee if occurs within scope of employment. - Not for substantial detour. - Employer also liable for negligence in hiring, supervising
Intentional torts by ees
Employer not liable unless force authorized by job, friction generated by job, or employee is furthering bz of employer.
Independent contractors,
No Vicarious Liability if agent is Independent Contractors unless engaged in inherently dangerous activity or non-delegable duty.,
Partners and Joint Venturers,
Each member Vicariously Liable for other members' torts if within scope and course of Partnership/Joint Venture affairs,
Joint and Several Liability
2+ neg acts combine to proximately cause an indivisible injury. Each actor liable for all. if divisible, only for identifiable portion.
D's acting in concernt,
Each is joint and severally liable even if the harm is divisible.,

Contribution to JS Liability- Allows D who pays more than his share of damages under joint and several liability to claim against other JTs for excess. Apportion responsibility Not for intentional torts
Methods of Contribiution
Comparative - impose in proportion to relative fault of the various Ds Equal shares of all Ds - minority.
- Shifts entire loss between/among Joint Tortfeasers in Vicarious Liability . - By contracts and in Strict Products Liability
Survival of tort actions,
Property and Personal Injury torts Cause Of Actions survive the death of parties,
Wrongful death- By statute -
Recovery for pecuniary injury resulting to the spouse and next of kin
- Decedent's creditors cannot claim against amount awarded.

- recover only what deceased could have recovered had he lived.
Tortious interference with Family relationships - husband-wife
Spouse may bring action for interference with consortium and services caused by D's conduct against other spouse.,
Tortious interference with family relationshps - Parent-Child
Parent can sue for loss of child's services as result of D's tort, Cause Of Action not available for child.
Defenses to tortious interference w/family relationships,
Any defense that would prevent recovery by injured family member also prevents recovery for interference with family relationship,
Intra-family tort immunities
Mostly abolished. Where it is allowed, only for Intentional Torts.
Governmental tort immunities
Mostly abolished, but where it survives it attaches to the government, not proprietary functions.
Federal Tort Claims Act
- US has waived immunity for tortious acts for ministerial, not diescretional, acts but, immunity still attaches for: Assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, defamation, misrepresentation and deceit, inand interference w/K rights
State and Local Gov and Torts
- Most states have waived to same extent as federal gov. - Where municipal immunity abolished, public duty rule provides a duty owed to public at larged, it is not owed to any particular citizen absent a special relationship between gov and citizen. where municipal immunity DOES exist, no immunity for proprietary functions.
Public Officials and tort
- Public officials carrying out official duties are immune from tort liability for discretionary acts done without malice or improper purpose. Liability for ministerial acts.
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