A. Strict Products Liability a. Are the Defendants Strictly Liable? i. Proving Liability without fault ii.

RESTATEMENT ONE : 1. Is the activity a. (1) an activity that necessarily involves a risk of serious harm that b. (2) cannot be eliminated with utmost care and . c. (3) is not a matter of common usage, then it is an ultrahazardous activity, and the motion should not be granted? 2. The defendant will contend that . a. (1) the harms risked here are the fairly minor harms, not the serious harms required, and that b. (2) the risks could be eliminated by an exercise of car, (Provide An example from the facts provided). Although the defendant does not have an argument on the issue of c. (3) common usage, it does/ does not need one, as the plaintiff must show that the defendants activity meets all three elements to be an ultra-hazardous activity that supports strict liability. 3. The plaintiffs contend that a. (1) the potential harms are serious (give supporting facts) b. (2) These risks are necessary features that cannot be eliminated c. (3) This activity is an unusual activity and not a common activity. i. The difficult point for plaintiffs rebuttal will be (2) the ability to eliminate the danger through an exercise of reasonable care. Plaintiffs will need to persuade the court that it is not possible to achieve the effect that the defendant wanted to achieve : (Point out the Purpose) 4. If the court regards the element of inability to eliminate the danger with even utmost care as an inquiry into whether this is a case that plaintiffs could win with a negligence claim, the court is likely to grant the defendant's motion. Therefore, they are not dependent upon strict liability for recovery and so should not be permitted to bring such a claim. iii. Restatement II Abnormally Dangerous Activity: 1. High degree of risk (P) 2. Likelihood of great harm (L) 3. Cant eliminate risk with reasonable care 4. Not a matter of common usage 5. Inappropriate to place 6. Value outweighed by dangerousness

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B. Vicarious Liability: Independent Contract v. Employee a. The defendant will move for summary judgment on the grounds that (JD) was its independent contractor for whose negligence The Club is not vicariously liable. i. Multiple Factors govern this question, (must choose what is relevant for in fact pattern) 1. Did the defendant control the details of how (JD) carried out his/her work a. The defendant will contend that it did not have the necessary control to be an employer because it allowed the (JD) to (insert specific facts) b. The plaintiff will contend that the defendant did have control over (JD) Insert facts 2. Another important factor if who supplies the instrumentalities, tools, and the place of the work? a. The defendant will point out that (JD(s)) provided (insert what the person in question provided) b. The plaintiff will respond that the defendant did supply (insert facts, i.e. building etc.) 3. Another factor that may weigh on the situation is the length of employment. a. The defendant will argue that the factor of length of employment weights in favor because (include aspects of length, etc.) b. Plaintiff will contend that a relationship of (time frame in fact pattern) is a long-term arrangement between employer and employee and is not a one-off assignment to perform one tasks in the contractor relationship. 4. The method of payment and benefits received are also relevant. 5. Whether JDs is an independent contractor is a question of fact for the jury, and summary judgment is proper only where no reasonable juror could find Frank to be an employee. 6. Did JD Have a distinct business hired by the club? 7. Was this a highly skilled position requiring special training? 8. Is the defendant in question an employee which makes the people it hires more likely to be employees. b. There is/ Is not a jury question as to whether JDs was the defendants employee, and the motion should either be granted/ denied. c. Respondent Superior: employers are held liable i. Scope of the employment ii. Employer exercising Control iii. In furtherance of work. 1. Frolic: substantial deviation from work duties 2. Slight deviation, company/boss is held liable. a. Six Factor Test: i. The employees intent ii. The nature, time, and place iii. The time consumed in the deviate iv. The work for which the employee was hired Torts Outline 2

v. The incidental acts reasonably expected by the employer vi. The freedom allowed to the employee in performing his job responsibilities d. Joint Enterprise: i. Both are liable for enterprise issues: 1. Agreement 2. Common purpose 3. Pecuniary interest 4. Equal rights to voice control ii. Two ways to be jointly and severally liable: 1. Failure to perform a common duty, vicarious liability 2. Acting independently to cause indivisible harm e. Joint and Severally Liability: i. Each of the several tortfeasors are liable jointly with the other for the amount of the judgment against them and each is individually liable for the entire amount, the plaintiff can collect from any one of them or the entire group. 1. Concert of Action: a. Joint purpose b. Mutual Aid in carrying it out c. Agreement 2. Failure to perform a common duty 3. Acting independently to cause and indivisible harm a. Employer Remedies: i. Contribution: Seeks payment of a share from joint tortfeasors ii. Indemnity: seeks complete reimbursement from the joint tortfeasors iii. Satisfaction: Although there may be several units and recoveries, there can be but one satisfaction, thus there can be no double recovery for a single injury, a plaintiff may bring a series of separate actions against defendants liable for the same damage and take each to judgment as long as he/she only collects from one. 1. Full satisfaction: once there has been full satisfaction, that is, full payment there can be no further enforcement. 2. Partial satisfaction: must be credited to the other parties who are also liable. iv. Release: A release is surrender of a plaintiffs claim for all, part or no compensation v. Works compensation: 1. An employee is paid for injuries received within the scope of employment. a. It doesnt matter who is at fault b. No money for pain and suffering c. There are controls on lost wages d. No punitive damages Torts Outline 3

2. Exclusive Remedy Provision: if covered under workers compensation, then it is your only remedy. vi. Unholy Trinity of Defenses: 1. Assumption of the risk: knew job was dangerous 2. Contributory Negligence: employees get zero, if slightly at fault 3. Fellow Servant Rule: hurt by co-worker negligence Defenses to Strict Liability: i. Proximate Cause: 1. strict liability is limited to the kind of harm the possibility of which makes the activity abnormally dangerous. ii. Acts of God: 1. an overwhelming unpreventable event caused by forces of nature such as an earthquake, flood or tornado. iii. Contributory Negligence: 1. Not a defense unless Plaintiff knowingly and unreasonably subjected themselves to risk of harm from activity. iv. Comparative Fault 1. Can be uses as a defense if the plaintiff was only ordinarily negligent. C. Products Liability: Products vs. Service a. Service v. Good: i. If the transaction is a service, strict products liability is improper, and injured parties would have to prove that the defendant was negligent. 1. The Defendant can argue that he/she is not a member of the distributive chain but is instead the end user. a. Facts that proof service include: i. Type of Payment ii. Promotion of product iii. Who exercises control iv. Presence of special expertise: (rock climbing instructor) 2. The Plaintiff (injured party) will argue that the defendant is a commercial product distributor, who is strictly liable. a. Facts: i. Made product/ tools to use product available for a fee ii. Look for actual control of the possession of the product 3. Courts are cautious in expanding strict products liability and extend it to only those parties who are important links in the distributive chain. b. Hybrid Situation: i. Part product distribution, part service. In a hybrid situation, courts look to what aspect dominates. 1. Defendant could argue that based on the facts/description: the service dominates. 2. Courts will look at whether the product is consumed in the transaction. 3. Instruct client: f.

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a. Create bill for the service not to itemize equipment/ products involved because this would tip towards providing a service as well.

D. PRODUCTS LIABILITY QUESTIONS with a RAD

1. Who are the proper defendants? a. To be held strictly liable the defendant must be a commercial seller or distributor engaged in the business of selling or distributing the allegedly defective product. i. The members of a distributive chain, responsible for placing the product in the stream of commerce or moving it through that stream, are generally proper defendants. b. Some jurisdictions immunize the non-manufacturing seller against strict liability claims unless the manufacturer is i. Insolvent or ii. Not amenable to the service of process 2. Was the product Defective a. Was this a manufacturing Defect: i. Manufacturing defects equal a misconstruction which comes from mishaps, improper workmanship, or defective materials ii. Restatement: departs from the intended design. 1. In the manufacturing defect claim, we are saying the product line is good, but this one product from that line turned out bad. 2. Questions to ask: a. How to prove defect? i. Expert Testimony b. Tracing: how to prove when the defect entered the product i. Prove that the defect existed when it left the defendants control. c. What is the legal significance of misuse? i. A product is not in a defective condition when it is safe for normal handling and consumption. If the injury results from abnormal handling. . . the seller is not liable. 1. Giant Caveat: If the misuse is reasonably foreseeable, the manufacturer should guard against it, and then the misuse is relevant to causation or plaintiff fault, but it does not make the product non-defective, and it does not create a misuse defense. d. Food: i. Foreign natural rule: 1. no defect if ingredient is natural to the food product (Minority View) ii. Reasonable expectation 1. defective if a reasonable consumer would not expect the food product to contain that ingredient (Majority View) Torts Outline 5

b. Was it defectively designed? i. Consumer expectation test 1. A product is defectively designed under this test if, when used in an intended or reasonably foreseeable manner it failed to perform as safely as would be expected by the ordinary consumer with ordinary knowledge common to the community as to the products characteristics. a. The plaintiff will argue that the ordinary consumer would not anticipate the product used in the way it was designed to be used would likely end in the harmful result. b. It seems more likely that the harm produced would occur in a product with a higher degree of danger (pop rocks v. dynamite) c. It goes against common understanding that the harm will be produced from this product in such a fashion that it could go on noticed i. Look for clear statements that lead to the common understanding of the community. d. The defendant can argue that the product was used an unintended fashion. Here they must prove that the use was unforeseeable. e. The defendant can prevail if a warning available on the product is found adequate by the jury because the jury can determine that the defendant met the consumer expectation created by the warning itself. i. Identify the expectation ii. Risk utility test 1. Under the risk utility approach, a product is defectively designed if its dangers could have been reduced or avoided by the adoption of a reasonable alternative design, and the omission of the alternative design renders the product unreasonably unsafe. a. The plaintiff can argue that the product was defectively designed because it used this instead of that, which would be the reasonable alternative design. i. Example: It used a fixed rod instead of a differential, which would be the reasonable alternative design. b. The following factors are relevant in determining whether Defendants product was defective because it did not use the Reasonable alternative Design. c. Factors i. Safety aspects: the likelihood and probability of serious injury from the current design and from the alternative. 1. The likelihood of injury is either low or high based upon the facts provided. 2. If injury does occur it will be either serious or not serious

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ii.

iii.

iv.

v.

3. Look at the warning and determine if it speaks of a high or low probability of serious injury. 4. The proposed alternative, insert rad here, would apparently be safe, give reasoning, which suggests that it is a less dangerous product. Availability of a substitute: Meet the same need and not be unsafe. 1. A is used to clean floors, B is available it clean floors and it is not unsafe, (this statement is used to lower the utility of the defective design) 2. Lowered utility of the product increases the likelihood that the defendant will succeed. Manufacturers ability to eliminate the unsafe character of the product without increasing cost or impairing utility 1. Current design shows high utility (an ability to clean something in 15 seconds) whereas the RAD does/does not provide the same level of utility. a. Utility proven vs. purposed utility shown as a whole... (ex. 30 sec. v. 15 x entire area) 2. Conclude based upon the facts. a. Ex. Determine even if the effect is detrimental consumers find the change insignificant. (look to see if the change has already been adopted) i. Does effectiveness separate from price? Users ability to avoid the danger through exercise of reasonable care: 1. If consumer uses reasonable care, they should avoid danger. 2. Apparently, consumers have or have not successfully avoided danger based on facts provided of previous injury. (i.e., complaints, lawsuits, etc) 3. This is a factor that weighs heavily in the defendants favor. Users awareness of danger: as discussed in the consumer expectation section, this product comes with warnings about the harms. 1. Look at the analysis included in the consumer expectation.

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a. Plaintiff would argue nature/severity while defendant may be able to argue that the warnings provided outweighed them. vi. Ease of spreading the loss 1. Who is best positioned to bear the risk of this product through purchasing insurance? 2. Generally favors Plaintiff c. Was this a warnings or instructions defect? i. Did the defendant have a duty to warn the plaintiff? ii. Did the product, in an intended or foreseeable use, cantina a latent danger that was known or knowable to the manufacturer? 1. The product can result in damage to A, B, and C. The possibility of this severe physical injury is or is not evident to a consumer who does/ or does not know the product contains. This an objective test based on the foreseeability of the injury to an intended consumer utilizing the product in a foreseeable manner. 2. Defendant did or did not know of danger. a. In this situation, was the warning required? b. Was the warning supplied? c. And was the warning Adequate? 3. Product warnings/instructions should allow the consumer too a. Choose whether they want to use the product (informed consent) b. Guide the consumer in using the product safely in light of dangers involved. i. Through foreseeable uses known or knowable to the manufacturer, but not the average reasonable consumer. (Risk reduction.) 1. Substantive Defect: Did the message itself provide adequate information to reduce risks a. Plaintiff will argue no (show evidence and reasoning) i. Look for facts that downplay the danger. b. Defendant will argue Yes(Show evidence and reasoning) 2. Procedural Defectiveness : a. Refers to the manner in which the warning is conveyed, i. Location ii. Type size iii. Color ;etc c. Did the defects Cause the injuries?

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i. Design defect: But for the use of current design instead of the RAD would plaintiff have been injured? 1. Present Facts: would plaintiff have been better off with RAD 2. How much Safer is the RAD? a. Def. Liable for difference in harm that would occur from using the RAD versus current design. ii. Proximate Cause: Was plaintiffs injury foreseeable from the use of current design? iii. Actual Cause: 1. Plaintiff is presumed to have heeded adequate warning iv. Proximate Cause: It is or is not foreseeable that if a user does not understand the type of harm that a product will cause indeed the harm occurs. 1. Ex. it is foreseeable that if a user does not understand the painless destruction that contact with this product will cause that indeed 3. Defenses a. Federal Preemption: i. Supremacy Clause: federal law is supreme law of the land ii. Plaintiff may not be able to bring a tort cause of action to trial if federal law has preempted the area the claim is based in. 1. Conflicts with the federal produce safety statute or regulation that specifies design, marketing, or manufacturing standards. b. Preemption i. Express Preemption: 1. Intent to preempt expressed explicitly in statute 2. Still, no always clear what is and what is not preempted them what? a. Look to congressional intent b. Look at the statute, legislative history ii. Implied Pre-emption: 1. Conflict between state and federal law makes compliance with both impossible a. State law vs. Federal law 2. State law would frustrate purpose and objective of federal, interferes with achievement of federal objective 3. Appears congress intends to occupy the entire field, thus precluding and state or local regulation. iii. Workmans Compensation: 1. If you are injured in the workplace while working in the scope of employment, workmans compensation is your exclusive remedy: it is no fault compensation. iv. Plaintiffs Conduct:

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1. Restatement Third: A plaintiffs recovery of damages for harm caused by a product defect may be reduced if the plaintiff combines the product defect to cause the harm and the plaintiffs conduct fails to conform to generally applicable rules establishing appropriate standards of care. a. Comparative Fault i. Plaintiff fails to exercise reasonable care for his/her own safety. ii. Plaintiff must act reasonably to mitigate any injury she has suffered. b. Assumption of risk i. The plaintiffs assume the risk of harm which bars recovery in a strict liability action, 1. Key: there must be subjective knowledge and appreciation of the risk and the voluntary choice to encounter it and accept the consequence. c. Contributory Negligence: i. The ordinary contributory negligence of the plaintiff is not a defense in a strict liability action. c. Misuse i. Using a product in the way it is supposed to be used, but doing so when the conditions are not favorable to its use. ( Using a lawnmower in the Winter) ii. Using the product an in unintended and unforeseeable manner. iii. Jury question: if a jury could see a misuse it must be heard. d. Statute of Limitations: i. Establishes a deadline for filing a claim ii. File after that deadline, and D will move to have the case dismissed and it will be. 1. Discovery Rule: a. All elements of tort present plus Plaintiff discovers or reasonable person should have discovered that she/he was injured plus that Defendant or Defendants product/ instrumentality caused injury OR enough chance D connected to require further investigation to reveal connection. 2. Accrual Rule 3. Statute of Repose a. Deadline tied to something other than injury or discovery E. Damages: a. Collateral Source Rule: i. Courts must exclude evidence of payments received by an injured party from sources collateral to the wrongdoer, such as private insurance or government benefits. 1. Gratuitous or discounted medical services are collateral sources b. Mitigation of Damages:

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i. If injury didnt have to be permanent, and p didnt do what a reasonable person would have done to avoid permanency, plaintiff cant collect for permanency. 1. Factors a. Risk b. Probability c. Money or effort d. Pain (some courts) c. What can the plaintiff be compensated for? i. Past physical and mental pain (pain and suffering) ii. Future physical and mental pain iii. Past medical expenses iv. Future medical expenses v. Future medical expenses vi. Lost wages vii. Lost earning capacity viii. Permanent disability and disfigurement d. Punitive Damages i. Purpose: To punish and deter ii. Burden of proof: Clear and convincing evidence iii. Three Guideposts-Adequacy of Notice/Arbitrariness 1. Degree of reprehensibility 2. Disparity between harm and punitive damages award (ratio) Sanctions for comparable conduct iv. Should the punitive Damages be Awarded: 1. How great was the danger that the Defendant exposed public too? 2. Cost or feasibility of reducing that danger 3. Manufacturers awareness of the danger, awareness of magnitude of danger 4. Nature and duration of, and reasons for, manufacturers failure ot act appropriately to discover or reduce the danger 5. Extent to which manufacturer purposefully created the danger 6. Extent to which defendants are subject to federal safety regulation 7. Probability that compensatory damages might be awarded against Ds in other cases 8. Amount of time that has passed since the actions occurred. e. Satisfaction and Release: i. Satisfaction: Plaintiff is fully paid for his injuries ii. Release: An agreement between plaintiff and defendant stating that defendant is no longer liable 1. Common law: A release of one releases all joint tortfeasors. a. Covenant not to sue is one way around the common law rule. However not all courts will permit this use.

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F. Defamation a. Issue: Was there a defamatory statement? i. Could a jury find a defamatory meaning? b. Was the statement of and concerning the plaintiff? c. Was the statement published? i. Libel: written ii. Slander: oral iii. Slander per ce: illegal activity d. Plaintiffs status: i. All purpose public figure: 1. Puts self in public eye 2. Many channels of communication to public ii. Public official: 1. Member of government, police, law etc. iii. Limited purpose public figure: 1. Only in the eye of public for one purpose 2. Limited audience for communication iv. Private Person 1. Does plaintiff put sell in the public eye e. What factors must be proven for a plaintiff who is not a private person? i. Falsity ii. Actual malice: 1. Knowledge that claim is false or a reckless disregard? iii. Conditional Privilege: 1. Does the public have a reason to know. iv. Compensatory Damages 1. Include actual damages and presumed damages. v. Punitive Damages 1. Must so common law malice: equals ill will, spite and revenge f. What factors must be proven for a plaintiff who is a private person on a public matter? i. Falsity ii. Negligence 1. Actual damages iii. Actual Malice 1. Presumed damages / punitive iv. Conditional Privilege v. Compensatory Damages vi. Punitive damages with common law malice g. What factors must be prove for a plaintiff who is a private person on a private matter? i. Burden of proof may still be placed on defendant ii. Strictly liable for actual damage iii. Actual malice is not required for presumes/punitive damages iv. Conditional privilege v. Compensatory Damages vi. Punitive Damages with common law malice.

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G. Damages a. Compensatory: i. General : non pecuniary 1. Actual: supported with proof 2. Presumed: support w/o proof ii. Special (Always actual) b. Nominal Damages: i. All plaintiffs wants is named cleared, not really hurt .. no one believes it. c. Punitive Damages; i. Must meet constitutional requirements ii. Common law malice H. Privacy a. An unreasonable intrusion into the seclusion of another i. Appropriation: 1. Unauthorized use of Plaintiffs name, likeness etc. 2. Elements a. Use name likeness or identity b. Use for defendants purposes c. Damages d. Defendant caused the damage ii. Public disclosure of private facts iii. False Light iv. Intrusion into seclusion. I. Misrepresentation: a. One who makes a fraudulent misrepresentation of fact, opinion, intention, or law for the purpose of inducing another to act or refrain from action is liable to the other on deceit for the harm caused by his reasonable reliance on the misrepresentation. i. Elements 1. A misrepresentation 2. Scienter: a. Knowledge of falsity or reckless disregard about it being false 3. Intent to induce reliance (Not necessary element if it is negligent misrepresentation) 4. Pecuniary Loss 5. Actual Reliance a. Causal Nexus 6. Justifiable reliance a. Opinion b. Vague c. Conjecture d. Exaggerated

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