Other torts

What is P's liability if his dog bites someone for the first time?

Negligence

What is the standard for P's liability if his dog bits someone for the second time?

Strict liability (because P keeps an animal with known dangerous propensities)

What is the standard for keeping wild animals?

Strict liability

How do safety precautions play into keeping wild animals?

They don't - ignore them - because strict liability applies

What is an abnormally dangerous activity? (2 parts)

Foreseeable risk of serious harm even when reasonable care is exercised, not in common use in community

What is the effect of contributory negligence on an intentional tort?

None - they can never recover on negligence claim against landowner/possessor

What is the effect of contributory negligence under traditional common law?

P's negligence completely barred recovery, unless last clear chance applies

What is the last clear chance doctrine?

P recovers despite contributory negligence; the person with the last clear chance to avoid an accident who fails to do so is liable for negligence

Is last clear chance used in comparative negligence jurisdictions?

No

What is assumption of risk?

If P knew of risk and voluntarily proceeded in face of the risk, P may be denied recovery in strict liability

Is a casual seller a merchant?

No.

Is a service provider a merchant of goods provided that are incidental to the service?

No

Is a lessor a merchant for purposes of strict liability?

Yes

Every firm in a product distribution change is…

A merchant subject to strict liability

Is privity required for strict liability?

No

What is liability for reasonably foreseeable damages done by a trespass of his animals?

Strict liability

Is an owner strictly liable for damages by wild animals to trespassers?

No

How to tell when a product has a design defect?

Hypothetical alternative design is safer, cost-justified, and practical

How to tell when a product has a manufacturing defect?

An unusual problem - the one in a million - exploding toaster!

When is a warning necessary?

If a product has physical risk that can't be remedied by different designs, and consumer would not be aware of them

What is the effect of a product that needs a warning but lacks it?

It's like a defective design

When will a warning not remove liability?

When the product can physically be altered to be safer at a low cost

How can P prove a manufacturing defect?

By showing that the product failed to perform as safely as an ordinary consumer would expect

Must D anticipate reasonable misuse?

Yes

Compliance with government safety standards is…

Nonconclusive evidence that product is not defective

Noncompliance with government safety standards is …

Conclusively establishes that the product is defective

What about strict liability and knives?

Manufactures will not be held liable for some dangerous products if danger is apparent and there is no safer way to make the product

Can a bystander sue a commercial supplier in the chain of distribution in strict liability?

Yes - there is no privity requirement

Does comparative negligence reduce recovery in strict liability cases?

Yes

When is employer liable for employee's intentional tort?

When job involves danger (repo man), authorized violence (bouncer), or when employee is engaged in a misguided effort to serve boss's purposes

When is hiring party liable for tort of independent contractor?

When hiring party is land possessor and P is an invitee (duty to invitee is nondelegable)

When is car owner liable for tort of driver?

When driver is using the car to do an errand for owner

Are parents liable for the torts of their kids?

No, but parents can be liable in negligence for actions that led to tort (e.g., leaving loaded gun around)

What to watch for in vicarious liability questions?

D may not be vicariously liable, but D can be liable for underlying tort

When does indemnification apply?

Vicarious liability (e.g., car owner from driver), products liability (for nonmanufacturer from manufacturers)

What recovery for loss of consortium?

Services, society, sexual intimacy

May a landowner use a vicious dog to protect only his property?

No!

When does governmental immunity not apply?

When government is engaged in an activity that is normally conducted by private industry

Does a city operating a parking lot for profit retain government immunity re activities in the parking lot?

No, because it's enacting in an activity that's normally conducted by private industry

Just because one party is negligent doesn't mean other potential Ds aren't …

liable, too (either strictly or in negligence)

Which determines matters of law, judge or jury?

Judge

Which determines whether an activity is abnormally dangerous?

Judge, because it is a mater of law

Which decides whether misuse of product is reasonably foreseeable?

Jury

Which decides whether inadequate warnings make product so defective as to be unreasonably dangerous?

Jury