Cardozo
You do not owe a duty unless foreseeable that the P might get hurt, they have to be in the foreseeable zone of danger
Andrews
If your risk created the conduct to anybody then you owe a duty of reasonable care to the person who actually got hurt
Landowners rule for outsiders
Some some
i. If the land is in natural conditions then there is no duty of reasonable care owed to outsiders
ii. Others say either N or A if the landowner knows or should have known that it’s dangerous to outsiders then the landowner owes a duty of reasonable care to the outsider
Landowners rule for trespassing children
a. Possessor knows or has reason to know that children are likely to trespass and
b. Know and which he realizes or should realize will involve an unreasonable risk or serious bodily harm to children and
c. Because of their youth do not discover the danger or risk and
d. Burden of mitigating the danger is small compared to danger and
e. Possessor fails to use reasonable care to eliminate danger or protect children
Has to be an artificial condition
Landowners - firefighters rule
i) If your negligence brings them to your property and they get hurt in the course of that generally you do not owe a duty for policy reasons
After they are there they are licensees because they have privilege or consent and if there is a hidden danger you know about that they might encounter you must warn them
Landowners Trespassers & exceptions
- No duty to warn
1) If you actually discover them there and it is likely they will get hurt if you do not do something (hidden condition of the land)
2) Know or should have known that there is freq trespass in a limited area
Licensees
- There for own purposes
- Duty to warn of known hidden dangers they are likely to encounter
Invitees
- There in furtherance of your business
- DRC to discover and take care of any dangers
Special Rel exception for No Conduct
1) Employer-employee
2) Innkeeper
3) Common carrier
4) School to students on campus
5) Babysitter
6) Warden to those in custody
7) Dr to patient
8) Parents to child
9) Attorney client
10) *anyone who has custody over another
11) Landlord tenant
Promise + exception for no conduct
Promise + reasonable reliance + your detriment = duty
Products liability express warranty
a) Someone in business of selling chattels is strictly liable if made express warranty to public about its safety & you breach the warranty,
b) Proof:
Reached consumer/user without substantial change, reasonably relied on the express warranty (knew about it), seller is a merchant to those goods
Fitness for a particular purpose
Strictly liable if:
- Made PP known to seller, reasonably relied on seller’s expertise, wasn’t safe for the PP and caused injury
Manufacturing defect
- Rule = departs from its intended design even with all possible care
- Person is a seller of goods, arrived to the plaintiff with no substantial change, defect caused the injury
- Does not conform to intended design or other products
Defective design
- Foreseeable risks of harm posed by the product could have been reduced or voided by a reasonable alternative design and failure to do so resulted in the product not being reasonably safe
- Person is a seller of goods, arrived to the plaintiff with no substantial change, defect caused the injury
- Burden, Probability, social utility, gravity, injury
Inadequate warning or instructions
- Rule = foreseeable risk of harm posed by the product could have been reduced or avoided with instruction or warning
- Person is a seller of goods, arrived to the plaintiff with no substantial change, defect caused the injury
- Rule Proof = D did not adequately warn of a particular risk that was known or knowable in light of the generally recognized and prevailing best scientific and medical knowledge available at the time of manufacture and distribution
Abnormally dangerous factors (strict liability)
a) Existence of a high degree of risk to persons, chattels, or land of others
b) Likelihood that the harm results from it will be great
c) Inability to reduce the risk by exercise of reasonable care
d) Extent to which activity is of common usage
e) Inappropriateness of place which activity is taking place
f) Extent to which its value is outweighed by dangerous attributes
Defenses to strict liability
- Public duty
- Assumption of risk
- Not proximate cause
- Intervening third parties caused harm
- Contributory negligence
- Acts of god
Economic loss rule + exceptions
Rule = no recovery for pure economic loss without damage
3rd party beneficary/fudicary - someone you trust with power over you
Money spent to avoid imminent threat or danger of physcial injury
- Any reasonable person would have done the same
Last clear chance (contributory negligence)
- P was helpless and unable to avoid danger
- P was inattentive to danger
- D should have discovered the P was helpless
Responeat Superior (vicarious liability)
- Scope of employment = furthering the interest of the employee
- Question for jury if frolic or detour, list of factors
i. Employees intent
ii. Nature, time and place of deviation
iii. Time consumed in the deviation
iv. Work for which the employee was hired
v. Incidental acts reasonably expected by the employee
vi. Freedom allowed the employee in performing his job responsibilities
Exceptions for independent contractors under RS
- Activity that threatens grave risks unless used carefully or maintained well
- Inherently dangerous activity
- Illegal activities
- Apparent authority where reliance is reasonable
Factors that balance for finding waiver of claims void through PP (express assumption of risk)
Grossly unequal bargaining power, service or great public interest - practical necessity for most, forced to sign an express agreement that waives liability, adhesion that has no bargaining, the kind of service that is subject to public regulation (public utilities), is it open to the public
Implied risk rule
Requires 1) actual knowledge of the particular risk 2) voluntary encountering of the risk
- Subjective
- Look to reasonably safe alternatives available I.e how burdensome other route is, importance of task..
Emotional distress exceptions
- Zone of imminent danger of serious physical harm
- Special relationships the kind likely to cause distress (I.e doctor)
- Bystander
