Torts Fall 2011 I. Intro/Legal System 1. What are Torts: Civil Law connected with Injuries 1.

. Laws exist to address problem or issue 1. seeks to alter human behavior 2. Legal Theory is why a law exists 1. what is the law addressing; what are its purposes 3. Theories of tort law 1. corrective: to deter/punish what behaviors are deemed bad, and rectify injury 2. Economic: risk utility of dangerous actions to minimize cost of injuries 4. 3 basic questions: is there a law; has it been violated, what will be done 5. Cause of Action is: legally recognized harm + private right of action 1. not COA: facebook dis; speeding (no right to sue) 2. Example of Tort Suit 1. Woman goes to get cancer drugs and is given a different prescription by pharmacist working off of memory. Scrip leads to internal bleeding and large bill. Negligent (Walter v. Walmart) 3. Tort Law in Context 1. Legal Analysis 1. Given a set of facts: Analyze Rules, potential consequences, applied to facts, from objective standpoint, even in environments of uncertainty 2. Responsibilities 1. Respondeat Superior: let master answer (WM not Pharmer) 2. Multiple tortfeasors, compounding parties (misdiagnosing doctor in WM) 3. Comparative Responsibility (Woman not reading label) 4. Insurance, does have it (Malpractice for Doc/Pharmacist) 3. Role of Atty's 1. Counsel/assis people with system II. Negligence Duty 1. Overview 1. Elements of prima facie case 1. Duty- Obligation to to act under a standard of care (did pharmacist have duty of care to Walter) 2. Breach of Standard of Care- conduct that falls below a standard of care (what was the Standard, and was is breached) i . easy case in (one-sided) vs. easy case out; legal issue (both sides) 3. Causation the casual link between conduct and injury (Did the misperscribed drug proximately cause injury) 4. Injury- harm permits recovery (is the injury recognized) 5. Burden of Proof is on i . if does not prove defenses liable 6. Judge decides if duty exists 2. Duty, Reasonable Care 1. Duty Framework 1. General duty of Ordinary Care i . when engaging in activities that create risk of harm Exception: expressly limited liability e.g. unforeseeable risk injury ii . Was responsible for iii . What is the standard of care if duty? General duty of ordinary care Extraordinary Care Exceptional care 2. General No Duty i . when didn't create risk of harm ii . when failed to take action to benefit / warn e.g. failing to dial 911 exception: special relationships Affirmative Duty Family/Friend Doctor/professionals in control/care of

vitee ses duty same for all classifications: keep safe 2. Evolution of Duty 1. Duty originally restricted by privity; duty only to contracting party, other parties 'removed' from duty. i . Exceptions only for clearly imminent risks, dangers to mankind 2. General duty: Wheel breaks on car. buyer, previously restricted by privity and unable to sue manufacturer. Now manufacturers have a duty to inspect products for reasonably foreseeable dangers. Ending of privity. (MacPherson v. Buick) 3. Man gets STI from unknowing wife who had an affair. 3d party had duty of ordinary care to mitigate a reasonably foreseeable risk and didn't tell wife who would likely sleep with husband. (Mussivand v. David) 3. Qualified Duty 1. Affirmative Duties to Rescue & protect i . For special relationships e.g. Family, Friends, Doc/Patient, Caregivers, innkeepers, common carriers ii . IF special relationship, duty to: Render medical assistance/ call for help Mitigate Injury Rescue Warn of upcoming danger iii . Man rented out canoe to drunk man who overturned, cried out, and died. Lessor had only obligation to maintain canoe, not to play lifeguard. General no-duty [to rescue and protect]. (Osterland v. Hill) 2. Premises liability i . Dealing with dangerous conditions on land or buildings ii . General Duty for owner/occupiers of property to: affirmatively inspect for dangerous conditions Repair dangerous conditions warn of dangerous conditions iii . Duty depends on status of Trespasser: No Duty is on property without permission Licensee: Duty to Warn of Non-obvious Dangers is on land, but no benefit to e.g. social guests Invitee: Duty to warn of Unreasonable Dangers & Inspect for Dangers Owner receives in/direct financial benefit from e.g. customer in business iv . Restatement 314A:A business which holds its land open to visitors has a duty to protect against accidental, negligent or malicious acts of a third party on the premises, and to protect those on the land from the harm and warn of dangers v . A man was injured in a fall in aTaco Bell. Ct summed for TB after no duty to call for help asserted. Duty to protect those on property as business, only a duty to call/render first aid. (Baker v. Fenneman) vi . Man was paid customer at hotel. Climbs out window drunk and falls through ceiling in portion not open. The invitee classification is limited to portions allowed by business, thus he was a trespasser at the time of injury, no duty to warn as a business. (Leffler v. Sharp)

Premises Liability duty to inspect for dangerous conditions repair dangerous conditions Warn visitors of dangerous conditions Duty depends on class of

vii .Houseguests as licensees are entitled to rights as invitees in some jurisdictions. Affirmative duty to keep premises safe for all classes. (Rowland v. Christian) III. Negligence Breach 1. Breach Framework 1. Standard of care 1. What was the Standard of care i . ordinary care: The default ordinary care of a reasonable person in circumstances to prevent foreseeable injuries associated with risk (baseline risk) no duty to exceed this standard ii . extraordinary care Heightened standard for persons of professional or commercial expertise (e.g. doctors, lawyers, common carriers) Professional: objective 'ordinary expert'; professional custom dispositive Commercial: account for industry custom, not dispositve iii . Exceptional Standard Adults with disabilities physical disabilities are subjective; reasonable person with disability mental disabilities are objective Children: 2 Standards Tender years: <7/7-14/14-18 no breach/rebuttable not capable/rebuttable capable Subjective standard reasonable child standard 2. Did Breach this standard? i . Objective Interpretation Reasonable person ordinary care under circumstances Extraordinary Care experts by professional custom commercial actors in light of trade ii . Subjective Interpretation Physically Disabled Children iii . Economic View B<PxL (burden < Probability of Accident x Cost of Loss) iv . Res Ipsa No other likely explanation 2. A boy mowing the lawn was held to be not negligent. Reasonable person would look ahead where he was mowing. The object flying out was not reasonable foreseeable given the standard precautions. (Campbell) 3. Boy playing with 7 foot wire was not foreseeably injured when his wire struck an electric cable, some 7 feet below pedestrian bridge. (Adams) 4. Jury instruction for bus to follow reasonable person standard rejected. Common carriers are held to an extraordinary standard: the highest degree of care. (Jones) 2. Meaning of Negligence 1. Risk 1. Negligence is about controlling risks 2. reasonable precautions must be taken to mitigate foreseeable accidents 3. establish a baseline risk by evaluating circumstances 2. Standard negligence is about what a reasonable person would do in circumstances given a risk. The CNAs responsible for transferring the patient were not 'learned professionals' thus must be held to reasonable person standards, not professional standards. (Meyers v. Heritage Enters.) 3. Truck driver's professional standard of care was followed and thus there was no breach as the professional standard mitigated risk. Thus driver not liable, jury could disregard testimony it did not believe. (Martin v. Evans) 3. Reasonable Person

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1. The reasonable person is judged by objective standards regardless of: 1. mental disability, Knowledge of the World, Skills 2. Man, to wit, burned down tenants property, to wit, a house, after being warned that his haystack was improperly stacked and may combust. Lack of intelligence or foresight cannot excuse falling below the reasonable person standard. (Vaughn v. Menlove) 2. Exceptions 1. children i . Children judged by tender years doctrine or subjective standard ii . Boy who struck and elderly lady inexplicably was not negligent, under tender years doctrine, child was too young to be negligent (<7 no breach) (Applehans v. McFall) 2. physically disabled i . Physically disabled judged by subjective test of reasonable similarly disabled person 3. superior skills/knowledge i . Skilled are judged by reasonable skilled person Industry/Prof. Custom- The exception to Reasonable Person 1. Applies to learned experts or commercial experts. If profession does not have a high level of skill, there can be no professional custom (Meyers). 2. Objective standard 1. Commercial experts based on 'ordinary expert'. Did act in accordance with professional custom? Not dispositive, but helpful. i . Tug Co. did not have radio and lost cargo in storm. Industry practice to have radio, not mandatory. Practice cheap (econ analysis/hand formula) and commercial practice suggests objective negligence. (The TJ Hooper) 2. Professionals must follow professional standards, and comparison of action to standard is dispositive. Following standards is a complete defense to breach. i . Preoxygination was not standard procedure, although known to ameliorate risks. Not malpractice, expert showed standard was followed, thus no breach. (Johnson) Reasonableness and Balancing 1. Economics Perspective 1. Utilitarian Theory: the greatest good to greatest number. Accidents merely transfer wealth from injured to remedy, producing no net economic gain to society 2. Economic Theory & Hand Formula i . Loss to society can be mitigated by focusing expenditures on affordable prevention over costlier rectification Burden < Probability of Accident x Cost of Loss Burden = Cost of Precaution + Cost of Lost benefit of Activity There is no breach of duty if cost of prevention is greater than PxL ii . Bargee absent from barge. While necessary at times, this was claimed negligent for his absence during accident. Business custom to be on board during business, and cost of him being on board vs. other business < PxL. (US v. Carroll Towing) Evidentiary Burdens 1. Burden of Production 1. / should submit evidence to prove legal issue 2. no evidence means burdened party has no case 2. Burden of Persuasion 1. Party with burden of Persuasion must submit enough evidence to exceed the opposing party (51%) Res Ipsa, the thing speaks for itself : Alternatively Proving Breach 1. Elements 1. Accident must be kind that doesnt occur without negligence 2. Instrumentality of harm must have been exclusively in s control 3. must not have contributed to own harm

2. The man injured by falling barrel of flour when in front of flour shop,was implied negligence, it was only possible cause of injury, see above elements. (Byrne v. Boadle) 3. Woman had a medical pad in abdomen. Only possible way to have the pad was negligent, thus without alternative possible cause, negligence (malpractice) (Kambat v. St. Francis H.) IV. Negligence Causation 1. Causation Framework 1. Cause in Fact 1. The But-For test 2. Actual Cause but for... 3. Sufficient Cause potential cause, among others 4. Multiple Necessary But for both actions... 5. Multiple Sufficient Exception to but-for, injury could have occurred w/o s action 2. Proximate Cause 1. was the injury foreseeable i . if yes, possible proximate cause ii . if no, no proximate cause 2. was the injury within the scope of the risk of the given action i . if yes, proximate cause ii . if no, no proximate cause 3. jury instruction: liability for injuries reasonably foreseen and anticipated; resulting from a natural and unbroken sequence from action; but not remote or improbable. 3. Negligence Per se: Proximate cause by 1. violated 2. Statute was a safety 3. Safety designed to: i . protect this kind of ii . from this kind of injury iii . and apply to this 4. safety was 'but-for' cause of injury 4. Wrongful death 2. Causation Overview: Given Duty and Breach, did the action actually cause the injury 1. Actual Cause 1. But-For the action of the would have been injured? 2. Proximate Cause 1. Direct cause of the injury 3. Proving Causation 1. Apply the but-for test If yes; no actual cause if no, actual cause 1. Man was using home made metal washing machine, to shut off had to remove metal clips. Switch did not appear to be off, but procedure risky. No proof that the phantom zone was the actual cause of injury and not just mistake. (Skinner v. Square D) 2. Multiple Necessary/Sufficient Causes 1. Multiple Necessary Causes 1. Multiple act work together to cause harm i . each act would independently not have caused injury e.g. to watch tv: plug in and turn on 2. If multiple causes of an injury, each is but-for actual cause 3. Two cars collide in an intersection and together slide and destroy . But-for the actions of the two drivers together, no injury would have occurred. (McDonald v. Robinson) 2. Multiple Sufficient Causes 1. Multiple acts separately could have caused harm i . each act independently would have caused injury e.g. to watch tv: push 'on' on remote or push 'on' on tv 2. If multiple sufficient causes; either is but-for actual cause thus no provable causality 3. Substantial Factor Test: was action substantial factor in causing injury. Proxy Cause i . Cancerous toxins were supplied possibly by goodyear and perhaps by others. No means

to isolate which of the product suppliers may have supplied critical chemicals for cancer cocktail, thus multiple potential causes. GY could not be shown a 'substantial factor' in causing the injuries. (Aldridge v. Goodyear Tire) GY was not employer, thus not workers comp no proof necessary standard II. Negligence - Proximate Cause 1. Proximate Cause: A judgement inquiry based on policy and values of the jury one must distinguish between fair and unfair policy of liability 2. Directness, foreseeability, scope of risk 1. Directness test: was there a direct link between action and injury, attenuation? (polemis) 2. Foreseeability: what is the likely injury that results from action, must be foreseeable i . e.g. releasing swine flu because of failure to use parking brake is not foreseeable find attenuation between s conduct and s injury ii . established by wagonmound. Fire was foreseeable after fuel spill 3. Scope of the Risk i . was the injury outside the realm of common injuries associated with a given risk no proxy cause for fortuitous, coincidental or highly unusual events no proxy cause if number/expanse of too great 4. woman tripped over pipe after pump caught fire. The tripping over pipe was not foreseeable result of fire on pump thus no proximate cause. (Union Pump v. Allbritton) 3. Intervening Wrongdoing/Superseding Cause 1. When a 3d party actor attenuates the link between and i . was the conduct of 3/3d pty careless enough to relieve liability of 1 2. Powder cans left with bits of power, boy collects, and eventually kills friend with gunpowder. The negligent act of another caused injury, as the boy collected the powder, and parents know and did nothing. (Pollard v. Oklahoma City Ry. Co.) 3. Nitro negligently disposed on property. Boy hides for safety, found injury. The negligent disposal was not sufficiently attenuated, as the risks were so great. (Clark v. E.I. Dupoont) i . unlike the gunpowder, this was not aggregated, it was as it was left, thus foreseeable 2. Palsgraf v. Long Island RR 1. Proximate Cause only for foreseeable risks to those to whom a duty owed 2. Man is getting on a train with an inconspicuous box of fireworks. Train co helps him get on train, dislodge box, it explodes, knocking over a scale, injuring palsgraf. The fireworks were not an expected result of helping someone on train, no possible knowledge of consequences. 3. Dissent argues the proximity between time and place should prevail III. Statutory Supplements 1. Negligence Per Se: breach of duty by violation of statutory standard of care, no proving Reasonable person. 1. Elements 1. violated (jury) 2. Statute was a safety [may also be admin reg. if followed. ~Bayne] (judge) 3. Safety designed to (judge): i . protect this kind of ii . from this kind of injury iii . and apply to this 4. safety was 'but-for' cause of injury (jury) 2. Man is struck in intersection by woman failing to wear required corrective lenses. Because the woman did not follow , breach of standard. Evidence allowed. Dalal v. City of NY 3. Breach when man falls off of loading dock not constructed to spec. Per se even though an admin reg, (it was followed), and designed to protect this . (Bayne v. Todd Shipyards) 4. Man illegally parked, struck by another vehicle. No per se because parking reg was not designed to protect pedestrians from multi-vehicle collisions. (Victor v. Hedges) 5. Per Se does not apply to licensure 6. Per Se dismissal does not preclude standard 'reasonable person' standard/breach

2. Wrongful Death 1. Background 1. Historically the cause of action for negligence died with 2. Lord Campbell & American Statutes 1. Survival Action i . Decedents lawsuit for own pre-death damages as if had survived ii . is representative of decedents estate iii . Example Damages: Pre-death pain and suffering/loss of income/apprehension of death/medical expenses 2. Wrongful Death action i . family member sues for own losses as a result of decedents death ii . is family of decedent iii . Example damages: loss of income to family, loss of consortium some states allow emotional loss 3. Boy is being chased on a motorcycle and is run down. Family could not recover for emotional damages based on death (no non-pecuniary damages). Estate could recover for pre-death trauma as if survived, would have been brought. (Nelson v. Dolan) IV. Defenses to Negligence: Affirmative Defenses 1. Contributory v. Comparative Negligence 1. Contributory Negligence: Any showing of negligence on the part of is a complete bar to recovery/liability of 1. mostly obsolete 2. Comparative Negligence 1. Reduce award by relative neg. on % basis i . Pure Comparative Negligence % reduction if fault < 100% ii . Modified Comparative Neg barred if fault over 50% 2. Ship runs aground on a shoal, having not used equipment, but in the dark as coast guard did not replace light. Liability apportioned 75/25, damages followed. Abrogation of contributory negligence. (US v. Reliable Transfer) 3. Woman inserted hand into snow blower. While instructions imperfect, she was at fault, thus division of liability on % basis. (Hunt v. Ohio Dept. of Rehab.) i . jurisdiction split on whether juries can be told of bar under 50% liability (MCA) 2. Assumption of Risk 1. Principles 1. knew of particular risk i . what risk did assent to ii . did subjectively assume risk 2. voluntarily assumed that risk i . was s assent voluntary or compulsory ii . could bargain iii . was injury result of risk assented to 2. Express 1. has acknowledged and accepted risk causing injury in contract i . compete bar to recovery/ absolute 2. Elements i . Contract obviously and unambiguously expressed possibility of a particular risk ii . knew and understood that risk iii . voluntarily assumed risk by signing iv . Risk assumed occurred and caused s injury 3. Exculpatory Clauses i . upheld unless Risks not presented in clear, obvious and unambiguous language clause against public policy, e.g.: performing public service unequal bargaining power for no bargaining due to adhesion

 no substitute services undue risk to public 4. Skydiving co. has exculpatory clause for negligence. Clause allowed as not against pub policy (not a common carrier, no disproportionate bargaining power/monopoly). Flight was incidental to diving, an inherently risky act. (Jones v. Dressel) 5. Ski company had exculpatory clause for injuries. Against public policy to have exculpatory clause for poor design affecting thousands of skiers. (Dalury v. S.K.I. Ltd.) 3. Implied 1. Acknowledgement of acceptance implied by s behavior i . majority rule: % reduction based on assumed risk ii . minority: compete bar 2. Elements i . knew risk ii . voluntarily assumed that risk 3. Implied assumption of risk is no longer a complete bar to recovery 4. Majority Rule: implied assumption of risk is calculated as comparative advantage 5. minority rule:unreasonable risk-taking = complete bar; reasonable risk = % reduction 6. Woman gets on skating rink after being advised of risk, and suggesting awareness of danger. Actions after knowledge imply acceptance of risk. (Smollett v. Skayting) V. Damages/Apportionment 1. Elements/Availability of Damages 1. What Types of Injuries are Compensable 1. Economic i . Lost money ii . past and future out of pocket expenses iii . past and future lost wages iv . lost/damaged property repair/replacement 2. Physical i . Loss of body part/ damage to body Eggshell Skull Rule: Take your as you find him responsible for unforeseeable extent of foreseeable physical injury even if normally minor Does not apply to eggshell psyche 3. Pain and Suffering i . Lost of future enjoyment of life ii . Pain and suffering from injury 4. Pure Emotional i . Future anxiety, suffering, depression 5. Man is burned by molten metal, gets cancer. Burn was foreseeable, cancer was less so, but possible due to disposition; take as found. Damages. (Smith v. Leech Brain) 6. Woman was crushed in hotel collapse. Awarded medical bills, lost wages, mental damages, pain and suffering. (Kenton v. Hyatt) i . some jurisdictions limit emo damages (e.g. 250k) 2. Punitive Damages 1. Generally unavailable 2. available when: i . acted with wanton/conscious indifference such that malice is inferred ii . some jurisdictions: in cases of recklessness negligence gross negligence Recklessness Wanton intentional 3. serve to offset extraordinarily high risk of injury; if compensatory damages wont deter 4. Trucker plows through underpass killing 2 women. No malice for driving w/o proper brakes/minor overload; thus only gross negligence, no punitive damages (Nat'l Byproducts v. Searcy House moving) 5. Hotel has bedbugs, knows about it, ignores warnings, will not pay to get it cleaned, although cheap. Punitive damages as conduct was willful, and remedy too low to justify only compensatory damages. (Matthias v. Accor Lodging)

2. Vicarious Liability 1. Direct Liability 1. For own actions i . eg walmart failing to check background of pharmacists 2. Indirect/ Vicarious Liability 1. for someone else's careless act 2. usually for i . s responsible for other ii . benefits from other s negligence iii . even if 3 is not careless 3. Respondeat Superior i . Holding employers liable for acts of employees e.g. pharmacist enabling suit against WM ii . Elements Activity was in scope of employment characteristic of job direct liability if employer failed to do something, e.g. background check does not apply to contractors old rule: for the benefit of employer tort was not intentional 3. Sailor goes off base and crashes into another sailor after getting smashed after shift. Done with superiors and with beer from base. Employer sanctioned and generally encouraged drinking by supply, thus drinking 'in scope of employment' (Tabor v. Maine) 3. Joint Liability and Contribution 1. 3 issues for multiple s 1. Apportionment of Fault 2. Apportionment of Damages 3. Which for collection, what amount 2. Collection 1. Fault may be apportioned among liable s 2. Proportionate Liability i . can collect from up to damages assessed by % e.g. 10% liability 1, 100k Damage = 10K damages 1 3. Joint and Several Liability i . can collect 100% from any regardless of % fault e.g. (above) 100k damages 1 or 2 ii . occurs for indivisible injuries of if s collude on single tort 3. Liabilities 1. Divisible Injury i . multiple s caused distinguishable and traceable injuries s responsible for specific injury they cause may collect only from for injury cause (no J & S) 2. Indivisible Injury i . multiple cause same injury Jurisdiction split for collection proportionate liability Joint and Several liability can collect 100% from any single 4. Two doctors fail to id risks to large baby and treat appropriately after birth. Multiple necessary causes, and impossible to separate injury based on relative contribution. Overall fault 80/20 ea. Separate liability doesn't imply divisible injury. Joint and several liability, thus 100% collection from either. (Rago v. Rogatnick) 1. some jurisdictions will not allow divisible liability for J&S VI. Negligent Infliction of Emotional Distress 1. From no injury to the zone of danger 1. Physical Injuries test 1. Claims with actual physical injury were heard i . emotional harm as derivative of physical injury physically injured

 suffered emotional harm in the process of being injured (fear) and as a result of long term physical injury (suffering) ii . Pure emo no physical injury sues for emo harm resulting from negligence 2. Family house damaged by blasting. No recovery for fear of life and family as no physical injury.Wyman v. Leavitt i . people can easily fake, expensive recovery, tort goal of compensation breaks down 2. Impact Test 1. recovery as long as there is a physical impact between and situation causing harm 3. Zone of Danger Test (majority) 1. Recovery if in 'zone of danger' caused by 's negligence, no injury req'd 4. Man was stuck on a negligently maintained RR track. He escaped unharmed, but damages for shock and resulting anguish for near-death experience resulted from direct impact of negligence. (Robb v. Penn. RR) VII.Strict Liability 1. Overview 1. Liability without fault 2. Strict Liability is imposed without regard to negligence or intent to cause harm 1. unlike negligence SL covers injuries if exercises due care 3. Internalization of costs 1. cost to society is internalized by forcing s to take liability for all injuries i . e.g. pit bulls; SL makes pit bulls more expensive for owners due to danger presented to society 2. Ultra-Hazardous Activities (explosives, wild-animals) 1. Strict liability for behavior 1. which is inherently risky 2. and unable to mitigate risks i . Man buds reservoir on property and encounters unknown mineshaft which connect to the neighboring property and floods the mines next door. Relief granted as the activity was risky by altering the natural environment and he must be willing to accept damages coming from 'unnatural use'. (Rylands v. Fletcher) 2. Defined- RS520 1. existence of a high degree of risk of some harm to person/property (+) 2. Likelihood harm will be great (+) 3. inability to eliminate risk by exercising reasonable care (+) 4. extent to which activity is not common (+) 5. inappropriateness of activity in circumstances (-) 6. extent of value of activity to society (-) 3. Application of 6 factors. Fireworks co injures man with stray shot. Product liability claim does not matter as strict liability for dangerous activities, especially explosives such as fireworks. (Klein v. Pyrodyne) 3. Products Liability 1. Intro: Separate body of tort law for injuries from defective commercial products 1. precursors i . previously relied on 2 theories negligence negligently manufactured, inspected, or handled product e.g. macpherson v. buick (above) Breach of warranty express- from company implied- merchantability ii . Woman is stocking coke cooler, and bottle explodes. Under res ipsa, the claim succeeds, the only way explosion in mid-air is defect, negligence. (Escola v. Coca Cola) Concurrence (Traynor) advocates SL 2. Emergence of Strict Liability Doctrine i . Man was using power multi-tool with lathe. Screws came loose, causing him to lose some

appendage. Strict liability (screws should have been up to standard for expected use of product. (Greenman v. Yuba Power) 3. Restatement of Torts i . RS402A (not in cali) (1) one who sells product in defective condition unreasonably dangerous to (foreseeable) user/consumer or to his property is subject to liability for physical harm caused if seller is engaged in business of selling such a product it is expected to do and does reach consumer without substantial change is con diti on (2) sub 1 applies although seller has exercised all possible care in preparation and sale of product user has not bought product from or d with seller ii . Man is injured by bread rack that dislodged due to faulty latch. Burden of proof for unreasonably dangerous under 402A rejected in ca. Simple defect only. (Cronin v. JBE Olson) 2. Basics of a Products liability Claim 1. Prima Facie PL claim (not universally adopted) i . is consumer, user or foreseeable victim ii . who has suffered injury iii . from a product iv . that was defective v . from a commercial seller/manfr. vi . The defect existed at time product sold vii .defect was actual/proximate cause of injury to 2. What is Injury 3. What is a Product i . any tangible item you can buy from a commercial seller e.g. cars, computers, pharmies, food, asbestos, land, electricity not services 4. Who/What is a Seller i . anyone who manufactures, sells, or is in the supply chain supporting a product 5. Key to Products Liability: Defect i . recovery for defective products ii . What is a Defect Manufacturing defect Design Defect Inadequate Warning defect iii . Man purchases a gun, and shoots himself in the foot. Gun had a manufacturing defect as a ridge that was not on the design model impeded the safety. Not design defect, as unloading not related to injury. Not failure to warm because manf'r supplied retailer with info. (Gower v. Savage Arms) 3. Manufacturing Defect 1. Product was incorrectly manufactured and doesn't reach the manufactures own standards, may be compared to other products. must be only/one of few products, otherwise design i . e.g. cupcake with glass ii . see gower 4. Design Defect 1. Common Defects i . Product fails under normal operating conditions inadequate materials extreme usage characteristics

 dangerous arrangements of parts cannot withstand normal wear and tear ii . product could have been redesigned controversial mower shut-off in snapper 2. Tests for design defect i . consumer expectations minority: defective if dangerous beyond contemplated level by consumer ii . Risk/utility majority: design defect if reasonable alternative would eliminate risk Risk outweighs benefit 1. Applying Risk/Utility test i . does ct use R/U test ii . was s use abnormal was usage foreseeable if not no liability iii . Factors usefulness of product likelihood of serious injury availability of safer/substitute product ability to eliminate unsafe aspect w/o impairing usefulness/affordability user's ability to avoid danger by being careful user's general awareness of danger iv . Applying risk utility test. The machine could have had an interlock preventing operation without guard thus cheap to almost entirely mitigate harm. (Capeda v. Cumberland Eng'g) 2. Standards of defectiveness for Prescription Drugs 1. 2 approaches i . Blanket immunity if adequate testing, direction, warning, manufacture (FDA cert) no design defect ii . Affirmative defense under RS402, Comment K shows design defect under jurisdictional standard (expectation/risk-utility) can show as affirmative defense that drug should be immune risk of side effects vs seriousness of disease 2. Accutane drug approved, but risks outweigh benefits, rejecting comment k. (Freeman v. Hoffman-La Roche) 3. Failure to Warn/Instruct 1. Factors: defective for failure to warn if: i . If the seller/manfr fails to provide, ii . adequate info iii . to safely use product to iv . those who should be alerted to risks of using product in foreseeable manner 2. Which Risks Require Warning i . Only those risks that render product unsafe for ordinary use obvious risks need not be included risks must be presented in a reasonable and prominent manner ii . Failure to warn mirrors negligence. Was the non-inclusion of a warning unreasonable under the circumstances. (Anderson v. Owens-Corning) 3. Rules i . majority: Manufacturer must know/ SHK of products dangers at time it was produced ii . minority: Manufacturers responsible for warnings regardless of what they know or SHK at time 4. Proving Causation i . must show that failure to warn was 'but-for' cause of injury ii . Different presumptions minority: has presumption to prove that would have been injured regardless majority: must prove lack of warning actually cause injury learned intermediary doctrine: Manf'r of 'scips only obligated to warn doc not patient.