Damages

Types

Others

Compensatory

  1. Compensate person harmed by financial equiv. of loss suffered
  2. Factors
    1. Past & future phys. pain
    2. Past & future med. exp
    3. Past & future loss of earning capacity
    4. Perm. disability & disfigurement
    5. Past & future pain & suffering
  3. Prob's of Valuation
    1. For future stuff, get lump sum now so need 2 red. 2 present value
    2. Some take into acct, others don't but most not reduce future pain & suffering
  4. Collateral Source Rule
    1. Rule: If P compensated by indep. collateral source like ins., pension, / wages from empl. 4 which P actually / constructively paid, not deducted from what P can collect from D
    2. Ins. policy rsns & no double recov.
  5. Atty Fees
    1. Most do contingency fee & sometimes statute provides 4 it
    2. Poor P can sue but conflict of int. btwn atty & P
  6. Avoidable Conseq's / Mitigating Rule
    1. P should take rsbl conduct after D's tortious conduct 2 mitigate
    2. Otherwise, lwr jgmt
    3. Obj. stand. of rsbl
  7. Phys. Harm 2 Prop.
    1. Conversion then get the whole thing / mkt value @ the X of conversion
    2. For damaged prop, value of dif. before damage & after, w/o cost of repair
    3. For damaged prop, can also recov. loss of use by rental value & conseq'al damages prox'ly caused by D's neg. liek loss of barg. & rsbl cost of recov. prop.

Punitive

  1. Deter, punish, & divert P's desire 2 punish
  2. Also substitute 4 atty's fee
  3. Factors of D's Behav.
    1. In addition 2 unrsbl behav. need intentional conduct manifesting wilful, wanton, malicious, / reckless disregard 4 P's rts
    2. No constructive wilfulness
  4. Factors 4 Amt
    1. Character of Act
    2. D's wealth
    3. P's harm
    4. CA req. oppression, fraud, malice of consc. disregard of rts/safety & clear & convincing evid. before punitive; D may also ask 4 prima facie liab. before wealth evid. intro'ed
  5. Money
    1. Goes 2 P
    2. Goes 2 state fund but not all gen'ly
  6. Crim. Record 2 Mitigate Tort Punish.
    1. Gen'ly not do it
  7. Mass Tort Prob's
    1. Deplete $ even in compensatory but no soln's
  8. Const'al Quest's
    1. No Const'al rt. 2 punitive damage
    2. If 2 high, violate due process
  9. Can't Ins. Against Punitive
    1. Most jxn's can't ins. b/c punitive damages should lie w/wrongdoers
    2. Gen'ly ins. still has 2 defend
    3. But P's lose by not getting $

Wrongful Death

  1. Allow damages suffered by survivors, not deceased
  2. Factors 4 Recov.
    1. Value of serv's
    2. Loss of soc. & companionship
    3. Funeral Expenses
  3. Factors 4 Damages
    1. Money that deceased would've made 2 support P
    2. P's loss
  4. Allowable P's
    1. Spouse, heirs, & rep's/exec'ors
    2. Illegit kids barred but allowed 4 mom
  5. Hard 2 Det. When Child Dies
    1. Do loss of soc., comfort, & companionship approach but prob. b/c no boundary
  6. Spouses can get companionship by sexual rel.
  7. Decedent's creditors can't reach
  8. Defenses
    1. Decedent's behav. & P's conduct matter as defense

Survival

  1. Allow damages suffered by decedent, not P's loss
  2. Factors 4 Damages
    1. Loss of earning
    2. Med. cost while alive
    3. Prop. damages
    4. Pain & suffering
    5. Damages causing death
  3. Prob. of double recov.: wrongful death's loss of support & survival's loss of earning overlap
  4. Creditors can reach
  5. Defenses
    1. Decedent's behav. matter so contrib. neg. & A/R survives
    2. P's conduct irrelev.

Unborn

  1. Wrongful Death
    1. Line @ birth so if weren't born, no real decedent & can't recov.
  2. Wrongful Life
    1. Axn by child
    2. Theoretical prob. w/axn b/c if Dr. wasn't neg., not born @ all
    3. Hard 2 see prob. w/bad life v. no life & no damages theoretically b/c higher benefit
  3. Wrongful Birth
    1. Axn by parent
    2. Mom must say would've term'ed otherwise no causation
    3. Hard 2 see benefit of child v. burden of choice 2 term. is damage
    4. Bad 2 stigmatize the child by saying burden
    5. If recog, only allow extraord. cost of raising child w/o emotional damages
  4. Sterility
    1. If can't afford 2 raise kid, then allow C/A but if otherwise, no C/A

Limited Duty & Liability

Limited Duty's Concept

Types

NIED

  1. Charact's
    1. Mental disturbance & resulting injury
    2. Neg. which results in fright, shock, mental & / phys.
  2. Dir. Victim (V) Doc's
    1. Impact Theory
      1. P suffers imm. dir. phys. injury, then allow 4 emotional damages 2
      2. Impact 4 genuineness but artificial line
    2. Parasitic Damage
      1. Emotional distres after being hit, then can recov.
    3. Phys. Manifestation: Maj.
      1. Def. & obj. phys. injury prox. of D's cond. but not need dir. phys. injury
      2. Need nervous disorder w/name
      3. Recov. 4 emotional distress if rxn 2 distress normal & phys. harm is nat. conseq. of distress (event-->normal-->distress-->nat.-->phys. injury)
      4. Not thin skull, b/c that def's liab. but here see if any liab. exists
      5. Two exceptions
        1. Neg. transmission of death by telegram
        2. Neg. holding of hoax
    4. Zone of Dang.:
      1. Almost impact so rsbl fear of safety
      2. Policy of limiting liab. like prox. cause
  3. Bystander Doc's
    1. Dillon v. Legg Stand.
      1. D should rsbly foresee emotional harm 2 P
      2. P located near the scene
      3. Contemporaneous sensory so shock from dir. emotional impact on P
      4. P & V R closely rel'ed
    2. Thing v. LaChusa Stand.
      1. Rel. of same household 4 P's so siblings, parents, grandparents, & children
      2. There & aware
      3. Serious emotional distress which isn't abnormal response & more than disint'ed person
      4. Meet above stand's w/o foreseeabiltiy
  4. Def'ing Dir V
    1. Molien
      1. Dir harm 2 P
      2. Foreseeability
    2. Marlen F Case
      1. Dir. harm not foreseeable
      2. Damages from professional rel.
      3. Breach of duty assumed by D
      4. Duty imposed on D as matter of law
    3. Burgess v. Superior Ct
      1. For Dir. V, pre-existing duty from prof. rel. such as dr-patient
      2. For bystander P's, no pre-existing rel. / duty of care
  5. CA Jxn
    1. Impact & zone of dang. probably o.k.
    2. Phys. conseq's not needed
    3. Bystander & Thing v. Dir V & pre-existing rel.

Failure 2 Act

  1. Aff., should've done something but omission is neg. behav. of not doing
  2. Nonfeasance: No liab. on bystanders 2 act
  3. Exceptions 2 no duty 2 rescue
    1. Invitor / invitee of busi. 4 pub.
    2. Instrumentality where prov'ed & rendered control by D
    3. Spec. rel such as er/ee, shipmaster / passenger, inkeeper / guest, temp. custodian / charge, & carrier / passenger
    4. Dependence & cnxn's in rel's so exception 2 no duty
    5. Duty 2 aid if injure another
      1. Duty whether neg/non-neg'ly injured
      2. Liab. 4 initial damage + aggravated damage
  4. Misfeasance Liab.
    1. If rescue badly / unrsbl, then liab.
    2. Limit circ's in Rest
      1. Leaves P in worse sit.
      2. Incr. P's risk
      3. Deprive of other aid
      4. Harm suffered b/c P relied on D's undertaking
      5. May B other sit's
    3. Can't put person back in = sit's of peril once removed
    4. Policy 2 discourage bad rescue but C/L's rescue doc. where injured rescuer can recov. unless reckless
  5. Good Samaritan Laws: encourage Dr's 2 aid w/o fear of malpractice
  6. Prom. 2 Act, then Act W/Due Care
    1. Reliance on prom. 2 P's detriment
    2. AND phys. injury
  7. Duty 2 Control 3rd Person
    1. D has spec. rel w/P
    2. D has spec. rel w/person who hurt P
    3. Parent - child
      1. Parent knows / rsn 2 know
      2. Has ability 2 control the child
      3. Opp. 2 exercise / nec. 2 control
      4. Must B specif. dang. habit not gen.
  8. Dr's Duty
    1. Immunity so no liab. 4 release / confine mentally ill
    2. Failure 2 Warn: spec. rel. otherwise no duty
      1. Foreseeable V like imm. family
      2. Patient
    3. Prob's of overwarning
    4. CA leg.: communicate serious threat against rsbly id'able V's & make rsbl effort 2 communicate 2 V & police

Privity of K's

  1. Nonfeasance & Break Prom's
    1. Remedy in K
  2. Misfeasance & Do Prom's Badly
    1. Recov. in torts o.k.
  3. No Privity Reqt 4 sellers of chattels & prod. liab. by MacPherson
  4. Privity reqt when oblgn only in agmt
    1. D not liab. 4 not aff'ly doing harm & then not becoming instrument 4 the good
  5. Narrow 3rd Party Benefic.
    1. Exception 4 benefic. of will
  6. No Recov. 4 Econ Loss W/O Phys. Damage: bright line rule
    1. Justified b/c benefit of predictability higher than case by case

Owners & Occupiers of Land

  1. Spec. Duty Rule in Favor of Owners & Occupiers
  2. Liab. of Poss'r of Land 4 those on land
    1. Trespasser
      1. Enters & remains on land in poss'n of another w/o permission
      2. Duty lowest & no duty of rsbl care b/c wrongfully on premise
      3. Freq. trespasser exception: tolerated when know / should know b/c constantly intrude on limited premise so some rsbl care
        1. Active operation: rsbl duty
        2. Dang. cond's: duty 2 warn rsbly if won't discov.
      4. Discov'ed Trespasser
        1. Active operation: warn / rsbly duty 4 operation
        2. Cond's on land: rsbl care 2 warn of known dang's if prox. & if trespasser won't know
    2. Licensee
      1. On land w/consent 4 own purpose not 4 owners & incl's solicitors, fam., soc. guest
      2. Whoever's not in trespasser & invitee, in here
      3. Higher duty than trespasser
        1. Active operation: duty of rsbl care
        2. Cond's on Land: No duty of rsbl care but trap exception where entitled 2 B warned of concealed dang. cond's which poss'r has actual knowledge & licensee unware / unlikely 2 discov.
        3. No constructive knowledge, maj., but Rest. imply
    3. Invitee
      1. Invited 2 remain 4 part. purpose gen'ly 4 busi. dealing like customers, ee
      2. Pub. invitees R invited 2 enter & remain as member of pub. 4 purpose of the land held open 2 pub.
      3. Highest duty of rsbl care but not guarantee safety
      4. Active operation & cond's of premise: hold poss'r liab. if not rsbl & incl's oblgn 2 warn
    4. CA Jxn
      1. Rsbl Care Regardless of Categories
      2. Factors
        1. Closeness
        2. Moral blame on D's cond.
        3. Goal 2 prevent future harm
        4. Ins. prevalent
        5. Foreseeabiltiy 2 harm rel'ed in cert. category & cert. of injury factors may / not B relev.
      3. Status still relev. but not dispositive factor
    5. Jxn's: some reject invitee v. licensee but most keep licensee v. trespasser
  3. Lessors Gen'ly Not Liab. 4 Ten's / 3rd Persons
    1. T poss's & occupies but lessor owns
    2. Lessor would B liab. in hotel, renting house, etc. when high resp. 2 take care of U
    3. Exception that if in common area & lawfully on premise, then rsbl care 2 lessor
    4. Min. Stand. that rsbl care 2 lessor when lawfully on premise & 1) notice of defect, 2) obvious, 3) control

Defenses

Types

Contrib. Neg.

  1. P's unrsbl cond. is prox. cause of P's harm
    1. All / nothing 4 jud. econ. & simplicity
    2. P's burden
  2. Erosion
    1. Burden on D 2 show
    2. Broad prox & case in fact 4 P
    3. De facto comp. neg. by jury sys
  3. Last Clear Chance Doc.
    1. If D had last opp. 2 avoid, then P can recov. so still all / nothin
    2. D's burden

Comp. Neg.

  1. Makes contrib. neg. obsolete by adoption of comp. neg. through leg. / jud.
  2. Jury det's proportion of fault btwn P & D & apportion damages
  3. Three types
    1. Pure: P gets whatever % assigned 2 D
    2. Modified 49%: P recov's as pure if P < D
    3. Modified 50%: P recov's as pure if P's neg. not exceed D
  4. Joint & Sev. Liab.
    1. Maj. still maintains jt & sev. liab. w/comp. neg.
    2. Min. discard
    3. Uniform Act Soln: split insolvent D's share btwn P & D

A/R

  1. Express
    1. Bar recov. if spcif. agmt in words by K'al release & not against pub. policy
    2. Not affected by intro. of comp. neg.
    3. Pub. policy exception
      1. Barg. not free & open
      2. Agmt / release involves pub. utility / pub. reg.
      3. Wilful, wanton, etc. then against pub. policy
      4. Great imp. 2 pub.
    4. A/R is consent 2 risk but defense of consent is consent 2 act
  2. Implied
    1. Three Pronged Test
      1. Risk of harm caused by D
      2. P had actual knowledge of part. risk & appreciate magnitude of risk (subj. stand.)
      3. P vol'ly choose 2 enter / remain w/in the area of risk manifesting acceptance of risk
    2. Careless v. Venture
      1. Careless, then not A/R b/c ignore risk
      2. Venture, then A/R b/c assumed risk
    3. Rescuer
      1. Not vol. A/R if D's tortious cond. left P no rsbl alt. course of cond.
      2. To avoid averting harm 2 himself / others
      3. Or exercise / protect rt. / privilege which D has no rt 2 deprive
    4. Total Bar so need 2 disting. from comp. neg.
    5. Primary (Blackburn)
      1. Total Bar
      2. D owes no duty / breached no duty so no neg. 2 P
    6. Secondary (Blackburn)
      1. Pure rsbl
        1. No bar
      2. Qualified unrsbl
        1. Comp. neg.
    7. CA
      1. Primary: Nat. of activity & party's rel. 2 activity so P's S/M not matter
        1. Active sports, breach of duty of care 2 other participants only if intentionally injures / reckless behav.
      2. Secondary: Relative Resp of parties (plurality)
        1. Merge unrsbl & rsbl into comp. resp. instead of div'ing by pure v. qualified
      3. Secondary: NO 2ndary implied A/R (Mosk)
        1. Div'ing line is duty v. no duty & just do comp. neg.
      4. Secondary: Knowing & Intelligent (plurality)
        1. Total bar if knowing & intelligent dec. instead of rsbl
        2. If P neg, then not know so comp. neg.

Seatbelt Defense

  1. Exception 2 Gen. Rule of No Mitigation 4 Anticipation of risk
    1. Pre-accident oblgn 2 mitigate is an exception in seatbelt
    2. Min. jxn
  2. Recov
    1. Any damage not rel'ing 2 seatbelt
  3. Mixed w/Comp. Neg. in Jxn's

Immunity

  1. Status
    1. D immune even though all elements of torts
  2. Types
    1. Intra family
    2. Charity
    3. Govt'al
  3. Intra family
    1. Husb & wife, parent & child, then no liab.
  4. Charitable
    1. Better 4 indiv. 2 suffer than pub. / state B deprived of charity
    2. Some bar against recipients of charity & some abolished only 4 hospitals
  5. Govt'al
    1. Fear res's diverted by litig's
    2. Best entity 2 spread loss & deep pocket
    3. Fed most protected & local least
    4. Fed waived 2 B sued by statute
    5. State varies but some disting. btwn proprietary & govt fns
  6. Repeal
    1. Most categories, repealed

Vicarious Liab. & Strict Liab.

VL

  1. Types
    1. Respondeat Superior
    2. Indep. K'or
    3. Joint enterprise
    4. Bailments
    5. Vicarious contrib. neg.
  2. Def.
    1. B liab. 4 A's tortious behav. even though B not acted tortiously & A entitled 2 indemnity
    2. No neg. C/A
  3. Respondeat Superior
    1. Er & ee, master&servant rel. where er liab. 4 ee's torts w/in scope of busi.
    2. Deep pocket & rsbl nexus by scope of busi.
    3. Er Control Rationale
      1. Nec. control by er req'ed
      2. Ee's trip from appt'ment is w/in control but not commute
    4. Enterprise Rationale
      1. Inevitable loss 2 3rd person as part of busi. so ask if er would've benefitted if not 4 ee's torts
    5. Commute not incl'ed in either rationales
    6. Ee's intentional torts
      1. Er liab. when tort rsbly connected w/busi. & w/in scope
  4. Indep. K'or
    1. No VL even if w/in scope of busi.
    2. Er has no control on how but only of result
    3. Non delegable duties
      1. If indep K'or in sit. where grave risk of serious bodily harm / death
      2. Er liab. & VL
      3. Someone must B neg.
  5. Joint Enterprise
    1. Partnership & informal arr. where law consid's each as agent & servant so each liab. 4 other
      1. Agmt 2 activity
      2. Common purpose / goal
      3. Common pecuniary int.
      4. Equal voice & dir'ing the enterprise / = rt. of control
  6. Bailments
    1. Gen. rule that bailor not VL 4 bailee's use of chattels
    2. But 4 auto, vehicle owners VL through statutes b/c of auto ins.
    3. Operate w/consent & permission, express / implied, then VL
    4. If bailor neg. in entrusting the chattel then no VL but neg. entrustment
  7. Vicarious Contrib. Neg.
    1. Imputed Contrib. Neg. Harshly Against P: owner of car present then presumed control (not used anymore)
    2. Imputed Contrib. Neg. Both Ways: contrib. neg. not imputed unless VL
    3. No Imputed Neg. / Both Ways: (concurr. opinion)
    4. Corporation ER exception that contrib. neg. of ee 2 corp. P b/c otherwise, corp. can never B contrib. neg.
    5. Comp. neg. makes both ways rule less harsh

SL

  1. Def.
    1. Liab. as long as cause harm w/o anybody neg.
    2. Only applied in cert. sit's
    3. Judge dec's
  2. Policy
    1. Innocent P but D gets benefit so transfer cost 2 D
    2. Min. loss & spread risk
    3. Activity pays own way
    4. Limitation of liab. & narrower limit 4 SL
    5. Expand only 2 where safety most imp. & harm likely 2 occur even though there's benefit
  3. Dif. Stand's
    1. Blackburn's Own Purpose
      1. Keep stuff in land @ your own peril & liab.
    2. Cairn's Nat. v. Non-nat.
      1. Non-nat. use intro'ed then conseq. @ own peril
      2. Normal & nat. use of land is character of activity, place, & rel. 2 the surrounding
    3. 1st Rest: Ultra Hazardous Activity
      1. Activity nec'ly involves serious harm which can't B elim'ed by utmost care
      2. Not common usage
      3. Ultra hazardous only 4 charact's that make it ultra hazardous
    4. 2nd Rest: Abnormally Dang. Activity
      1. High degree of risk of harm
      2. Likelihood of harm great
      3. Inability 2 elim. risk by rsbl care
      4. Not common usage
      5. Inapprop. of the activity 2 the place
      6. Value 2 community outweighed by dang. attributes
    5. 2nd Dif. from 1st
      1. Added approp. location & extent of value 2 community
      2. Rsbl care, not utmost
      3. Extent of risk dir'ly stated
    6. Common Usage
      1. If carred out by the mass
    7. Econ Analysis
      1. Focus on incentive where SL would prov. higher incentive 4 liab. cost & precaution
      2. Only min. cost not who should bear cost
      3. Allocative effect
  4. Blasting SL but Not Storing
  5. Causation
    1. Foreseeable harm by unforeseeable intervening cause then no SL
    2. Whatever supersedes neg, supersedes SL
  6. One Bite Rule
    1. If bad disposition of domestic animal known, then SL otherwise entitled 2 1 bite
  7. Defenses 2 SL
    1. P's behav. purposely, wantonly, knowingly, & vol'ly put yourself in sit.
    2. Contrib. neg. not a defense
    3. Some have assigned faults 2 P through comp. neg.

Prod. Liab., Proof, & Damages

Prod. Liab.

  1. Theories 4 Liab.
    1. Neg.
    2. Warranty
    3. SL
  2. Neg.
    1. Before, no liab. w/o privity but now ord. neg. princ. w/o privity of whether acted rsbly
    2. Still prob's of proof of unrsbl behav.
    3. Gen'ly wholesaler & retailers R not neg.
  3. Warranty
    1. Breach of Express Warranty
      1. No privity
      2. Reliance on D's warranty b/c consumer can't discov. defect
      3. Reliance on use of prod. / purchase of prod. (causation)
      4. D's S/M irrelev. b/c only need reliance
    2. Implied Warranty of Merchantability
      1. No privity
      2. Rely on implied waranty / fitness of gen. purpose
      3. Imposed by operation of law, not parties' express agmt
      4. Extends 2 purchasers, purchasers' family, & users
      5. USA's 3 versions
        1. Req's family / house of guest
        2. Nat. person exptected 2 use
        3. Only 1 talking about prop.
      6. Law of Sales
        1. No express disclaimer allowed & seller can't limit / excl.4 PI & cert. prop. damage
        2. Notice reqt by buyer 2 seller can B long, no notice, / inapplicable
  4. SL
    1. Def.
      1. Mfgr. SL when article he places in mkt proves 2 have defect causing injury 2 human
      2. Cost of injury born by mfgr as part of busi.
      3. Jury dec's
      4. Not a real SL b/c not spread risk but look 4 defect
    2. Elements
      1. Busi. of Selling
      2. Defect: mismfgr, misdesign, failure 2 warn
      3. Causation in fact
      4. Prox cause
      5. Damages
    3. Better than implied warranty b/c more dir. & honest through law of torts
    4. Rest 402)a: Basic Approach (mismfgr)
      1. Sells any prod. in defective cond. unrsbly dang. 2 users so liab.
        1. If busi. of selling
        2. Expected 2 reach user/consumer w/o subst'l change in condition
    5. Draft of Rest
      1. Defective prod. @ X of sale so no unrsbly dang. / subst'l change
      2. Three categories of mfgr, design, & failure 2 warn 4 defect
    6. Mismfgr
      1. If dif. from other identical prod's & not what mfgr intended
      2. Cost of prod'ing bad absorbed & sellers can always indemnify
      3. Need unrsbly dang. & defect
      4. Stand's
        1. Imputed Knowledge Test: If rsbl person wouldn't put into stream of commerce if knew then unrsbly dang'ly defective
        2. Consumer Expectation Test: More dang. than ord. consumer expects
        3. CA: Prod. differs from identical prod. from same mfgr
      5. Gen'ly same result
      6. Prove
        1. Defect @ X of accident
        2. Defect @ X of sale
    7. Misdesign
      1. Defect in basic concept & came out the way mfgr intended but bad
      2. Harder 2 det. defect
      3. SL & neg. really close 4 mfgrs in misdesign case
      4. Stand's
        1. Cost Benefit W/Imputed Knowledge Test: Cost benefit analysis w/imputed knowledge of the harm that prod. can cause
        2. Consumer Expectation Test: More dang. than ord. consumer expects when use prod. in rsbly foreseeable manner
        3. CA: If benefit outweighed by risk inherent in that design (neg.) OR prod. fails as consumer expects when used in manner rsbly foreseeable by D (warranty)
        4. CA also shifts burden of proof 2 D when cost benefit w/imputed knowledge
        5. Prentis: No SL & go 2 neg.
        6. Rest 3rd Draft: Foreseeable risk of harm could've been lwred by adoption of rsbl alt. design by seller / predeccesor (no cost benefit analysis)
      5. Gen'ly, can't win in misdesign w/o better alt. by state of the art but sometime may lose even w/best design if risk outweighs utility
        1. Custom not = 2 state of the art
      6. Exceptions
        1. Rest 402)a, comment K: If prod. unavoidably unsafe b/c hurt somebody & impossible 2 make it safer, exception (drug & blood)
          1. Mfgr not SL so long as properly prepared & warnings of dang. propensities of known / rsbly scientifically knowable @ the X of distrib.
          2. Policy b/c drugs R good, 4 research, & quick availability
        2. Comment I: Inherent Charct. Rule Exception
          1. If prod. inherently unsafe & known 2 B unsafe by ord. consumer
          2. Gen'ly prod. 4 consumption
    8. Failure 2 Warn
      1. Warn of known / knowable risk & no imputed knowledge
      2. Kind of warning & suff. which has no maj. but some say best possible warning
      3. Dif. from misdesign b/c no imputed knowledge, may B good prod., & no limit

Proof of Prod. Liab.

  1. SL: Mismfgr
    1. Defect when accident
    2. Defect when left D's hand
    3. Can B all circumstantial evid. so long as more likely thatn not defective @ both pt's in X
      1. Expert testimony
      2. Wouldn't occur normally
      3. Negate existence of probable causes not attributable 2 the maker
      4. Infer from phys. cond.

Damages

  1. SL
    1. Pers. Injury 2 User / Consumer or 2 Prop. Other than Defective Prod.: recov'able
    2. Econ loss: not recov'able but go 2 UCC & sales law
    3. Harm 2 defective prod.: dep's in line drawing but no recov.
    4. Defective material used in process, prod. ruined, then recov.
    5. Line Drawing Soln's
      1. Hybrid: prod. & some other prop. then recov.
      2. Calamatous accidental loss: recov. but not 4 deterioration

Defenses 2 Prod. Liab.

SL Defenses in Prod. Liab.

  1. Types
    1. P's contrib. neg, A/R, / comp. neg.
    2. Prod. misuse
    3. Preemption
    4. Used Prod. seller
    5. Lessor & home sellors
    6. Service provider

P's Neg.

  1. Contrib. Neg.
    1. Most forms of contrib. neg. not a defense
  2. A/R
    1. Compl. defense
  3. Comp. Neg. (Maj.)
    1. Lwr P's recov. if P's unrsbl behav. contrib. 2 injury / prox. cause of harm by comp. neg. but no bar
    2. Not det. if P was A/R but only assume unrsbl behav. & not deal w/rsbl non-neg. A/R

Prod. Misuse

  1. Prod. Not Defective
    1. No liab. & bar P's recov.
    2. Defect & defense of misuse rel'ed b/c benefit may outweigh burden
  2. Prod. Defective
    1. Not prox. cause of harm: Defense & no recov. 4 P
    2. Foreseeable misuse: No defense & recov. 4 P
    3. Unforeseeable misuse, abnormal unintended use of prod.: Defense & recov. P

Preemption

  1. Fed. Law Supreme If Conflict w/State Law
    1. Specif.
    2. Fed. can lay out when preemption may occur
    3. Fed. cay occupy the field & state can't intrude
  2. Used In Reg'ed Industry Like Tobacco
  3. Preemption In
    1. State law conflicting w/fed
    2. Priv. axn where P sues 4 failure 2 warn / misdesign

Use Prod. Seller

  1. No SL
    1. Can apply SL 4 orig. chain distrib. but not 4 used prod. seller b/c can't distrib. liab. 2 mfgr

Lessor & Home Sellors

  1. No SL 4 Lessor but Becker v. IRM Corp allowed which is min.
  2. Seller of Homes liab. but not as much as mfgr / sellers
    1. SL 4 failure 2 disclose known cond's

Service Provider

  1. No SL b/c Not In Busi. of Selling
    1. Blood supplier not in busi. of selling b/c of policy 4 available blood
  2. Hybrid of Serv. & Prod. Seller
    1. If essence is serv, no SL
    2. Gen'ly, say serv. b/c prod. only incidental & neg. still exists

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