Strict Liability Types
o Abnormally dangerous activities
o Animals—wild and domestic
o Strict Products Liability
Invasion of Privacy Types
o Misappropriation
o Intrusion upon seclusion
o False light
o Public disclosure of private facts
Who is owed a duty?
All foreseeable plaintiffs
Majority view (Cardozo)—plaintiffs within the zone of foreseeable harm
Minority view (Andrews)—anyone who is harmed
Affirmative duty to act
Generally, there is no affirmative duty to aid or rescue someone.
Assumption of duty—if someone starts to aid or rescue, must act with reasonable ordinary care to not increase the risk of harm
Psychotherapists’ duty to warn—if a patient makes credible threats of physical violence, under a duty to warn the intended victim
Possessors of land
Modern Rule—must exercise reasonable care under the circumstances to all land entrants, except trespassers
Traditional Approach - whether plaintiff as a trespasser, invitee, or licensee.
• Trespasser—on the land without consent or permission
o Duty: to refrain from willful, wanton, reckless, or intentional misconduct
• Invitee—invited as member of the public or a business visitor
o Duty: to inspect and discover unreasonably dangerous conditions and protect the invitee from them
• Licensee—enters with express or implied permission for a specific purpose
o Duty: to warn of concealed dangers that are known or should be obvious and use reasonable care in conducting activities
Attractive Nuisance
- An artificial condition exists in a place where the owner knows or should know that children are likely to trespass;
- The condition imposes and unreasonable risk of serious bodily injury;
- The children cannot appreciate the danger due to their youth;
- The burden of eliminating the danger is slight compared with the risk of harm; and
- The land possessor failed to exercise reasonable care to protect children
Duties of children
Duty to act as a reasonable child of the same age
If engaged in an adult activity (e.g., driving a car), duty to act as a reasonably prudent adult
Custom
Evidence of an industry or community custom is admissible as evidence of the relevant standard of care
Evidence of custom is not conclusive
Res Ipsa Loquitur
Arises when there is no direct evidence of the defendant’s negligent conduct
ALLOWS (permissible) the trier of fact to infer that there was negligent conduct when plaintiff proves:
a) The type of accident would not normally occur absent negligence;
b) The injury was caused by an agent or instrumentality within the exclusive control of the defendant; and
c) The injury was not due to the plaintiff’s own actions.
Actual Cause Types
- But-For
- Substantial Factor
- Alternative Causation (rare)
Substantial Factor Rule
- Arises when there are multiple causes of the harm and each alone would have been a factual cause of the injury
- The conduct of each defendant is a cause in fact if it was a substantial cause of the injury
Alternative Causation
- Arises when the plaintiff’s harm is caused by multiple defendants (2–5) and each defendant’s conduct was individually tortious
- The burden of proof can shift to the defendants to prove that each was not the cause in fact
Negligent Infliction of Emotional Distress (NIED)
Zone of Danger NIED:
- D negligent
- P within the zone of danger of the threatened physical impact
- P has physical manifestation of the emotional distress as result
Bystander NIED:
A bystander who is OUTSIDE the zone of danger may recover for NIED if the plaintiff:
1. closely related to a person harmed by the defendant’s negligence;
2. Was present at the scene of the injury; and
3. Personally observed the injury.
4. Must have some physical manifestation of the emotional distress as result
Contributory Negligence
If the plaintiff’s negligence contributed to his harm, it was a complete bar to recovery
Comparative Fault (modern rule)
o Pure comparative negligence (minority rule)—plaintiff’s recovery is reduced by the amount of the plaintiff’s fault, regardless of how at fault the plaintiff is
o Modified or partial comparative negligence (majority rule)—plaintiff’s recovery is reduced by the amount of the plaintiff’s fault, but the plaintiff cannot recover if he is more at fault than the defendant
Abnormally Dangerous Activity
Strict liability for personal injuries and property damage caused by the activity.
1• high risk of harm
2• not commonly found in the community,
3• has a risk that cannot be eliminated with due care
Defenses—Assumption of the Risk (full or partial defense)
Wild Animals
- Strict liability
- Domestic animals if the owner knows or has reason to know of a dangerous propensity
- Plaintiff must also show causation and damages
Strict Products Liability (General)
Defendant in the BUSINESS of selling a commercial product of that kind may be strictly liable for a defective product causing foreseeable injuries to a plaintiff or property
- manufacturer
- distributor, and
- retailer
Types:
- Failure to Warn
- Defect in Design
- Manufacturing Defect
If NOT strict, ALWAYS assess whether NEGLIGENT!!
Failure to Warn
Exists if there were foreseeable risks of harm, not obvious to an ordinary user of the product, which could have been reduced or avoided by providing reasonable instructions or warnings
can be an insufficient warning or NO warning at all
Exam Tip: Read the exam facts carefully. The defendant might provide a warning about one type of harm, but it is insufficient to warn about the type of harm that actually occurred.
Design Defect
Consumer-expectation test—plaintiff must prove that the product is dangerous beyond the expectation of an ordinary consumer
Risk-utility test—plaintiff must prove that a reasonable alternative design that is economically feasible was available to defendant, and failure to use that design rendered the product unreasonably dangerous.
Exam Tip: Look for facts in the exam question about the availability of alternative designs and the cost of these alternative designs.
Manufacturing Defect
A deviation from what the manufacturer intended the product to be that causes harm to the plaintiff
The test is whether the product conforms to the defendant’s own specifications.
one-off defect (one batch)
Product Liability Causation
Actual Causation
The product must have been defective when it left defendant’s control and the defect was the actual cause of the harm.
Proximate Causation
The defect causing the plaintiff’s injuries occurred when the product was being used in an intended or reasonably foreseeable way.
A defendant may still be liable if the plaintiff misuses the product, as long as the misuse is foreseeable.
Product Liability Damages
NO sole economic recovery!
Product Liability Defenses
Assumption of the Risk Contributory Fault (maybe...generally NOT a defense)
