proximate cause foreseeability Forum

[unclej]

I am having some problems with proximate cause and foreseeability. am i right that this is really subjective? something that seems foreseeable to me seems unforeseeable to the teacher, therefore I lose points?
or do I have it wrong?

[09042014]

It's forseable for A,B, and C reasons

Its unforeseeable for X,Y,Z reasons

AND THATS HOW YA GET TO MAYBE

[unclej]

It's forseable for A,B, and C reasons

Its unforeseeable for X,Y,Z reasons

AND THATS HOW YA GET TO MAYBE

Thanks. but what if its a multiple choice question. one choice says proximate cause is established, the other says no because the harm is not unforeseeable.
i guess this teacher is too incompetent to realize its too subjective.

[09042014]

It's forseable for A,B, and C reasons

Its unforeseeable for X,Y,Z reasons

AND THATS HOW YA GET TO MAYBE

Thanks. but what if its a multiple choice question. one choice says proximate cause is established, the other says no because the harm is not unforeseeable.
i guess this teacher is too incompetent to realize its too subjective.

Then ur fucked. I guess make a list of shit your prof thinks is foreeseeable and not forseable.

[brotherdarkness]

.

[NYSprague]

There is a standard. You should have learned this, but if you don't get it just follow your professor's ideas.

[heavoldgotjuice]

Your answer lies in the learned hand theory.


Here's my outline, I'm sure its in there somewhere...:



Intentional Torts –
1.) Battery – an intentional harmful or offensive touching to another person
2.) Assault – an intentional act that causes imminent apprehension of a harmful or offensive touching to another person
3.) False Imprisonment – an intentional act that unlawfully restrains another person against their will
4.) Intentional Infliction of Emotional Distress – intentional or reckless, extreme or outrageous conduct intended to cause severe emotional harm to another person
5.) Trespass to Realty – an intentional intrusion on real property that is owned by another
6.) Trespass to Chattel – an intentional interference with the possessory interests of another person’s personal property which results in harm to the chattel or deprives the owner of it’s use
7.) Conversion – an intentional exercise of dominion and control over a chattel which seriously interferes with the owner’s right of control
a. 5 Factors:
i. Extent and Duration of control over chattel
ii. Intent to assert a right inconsistent with the owner’s right of control
iii. Actor’s good faith
iv. Extent and Duration of the resulting interference with the owner’s right of control
v. Harm done to chattel; & the inconvenience and expense caused to the owner
Transferred Intent – THE INTENT TRANSFERS (So, if you intend an assault to A, but commit a battery to B, the intent transfers to B)
- Transferred Intent applies: Assault, Battery, Trespass to Realty, Chattel, and F.I
o Transferred Intent does NOT apply to Conversion or I.I.E.D

Defenses/Privileges –
Privilege – When someone has a right to commit intentional torts
Consent – Defendant will not be liable if the Plaintiff consented to the act. Person giving consent can limit the time and manner of the conduct.
- Express (Contractual): Written or oral -> Must be voluntary (can’t be drunk or a child)
- Implied (by person’s actions or societal norms): One cannot impliedly consent to a harmful touching, but can consent to an offensive touching
o There is an implied assumption of risk in sports
o Body language is not implied -> Societal norms decide if implied consent is given

Self-Defense
- An actor may meet force with equal or less force (CL & FL)
- An actor may only use deadly force to protect against perceived threat of imminent death or seriously bodily harm or forcible felony if he is unable to retreat safely (CL)
o Common Law = Duty to Retreat before using Deadly Force
- In FL – May use deadly force to protect against perceived threat of imminent death or serious bodily harm, or forcible felony (no duty to retreat)(Stand Your Ground)
- If D meant to use self-defense against P and accidentally hits C instead, D can still claim the privilege of self-defense
- If a 3rd party is accidentally injured by the privileged actor, then the 3rd party may recover from the attacking party (A defending self against B, A accidentally shoots C. C may recover from B)

Defense of Others –
• Common Law = Actor may use reasonable force (if a reasonable mistake is made, then not liable)
• FLORIDA = There is no reasonable mistake in FL -> Can only defend other if, in fact, can exercise self-defense (step into the shoes of the of the other)

Defense of Real Property – Deadly Force can NOT be used to defend property unless special circumstances are present such as defense of family, or self-defense, or violent felony is occurring
- If you are present during the intrusion, and you are threatened, you may use deadly force

Recovery of Property – Reasonable force may be used immediately; can never use deadly force

Public Necessity – A public official has the right to destroy/interfere with an individual’s property when he reasonably believes that the action is necessary to prevent severe harm to the public. The official will NOT be held liable for damages
- In FL, a private citizen may use Public Necessity when defending a public good

Private Necessity – When the actor reasonably believes that the action is necessary to prevent harm to one’s self or to a small number of people (not liable for trespass, but liable for actual damages caused by his/her actions) -> May pay for the damages
- However, if you threaten harm, then your privilege will be negated

Shopkeeper’s Privilege (Defense to False Imprisonment) – Shopkeeper has privilege to confine as long as it’s reasonable in manner and time, and the detention is for the purpose of recovering property or because he is waiting for the police to arrive. Shopkeeper must call the police immediately if he detains a person.

The Rules stated by Professor Richmond:
Protection of real property – must use reasonable force, not deadly force, when the property does not have human beings on it

Reasonable force may not be deadly force when the property is unoccupied
Reasonable force – pulling a gun and tell them to stay there is reasonable

If you are in your home, and you have reason to believe that there is an assailant who is going to kill you or commit grievous bodily harm to you, then you can use deadly force against the assailant – whether you choose to use it, it’s up to you

Common Law - If youre not there, you can post your land and put a sign out and the sign says “Warning Property protected by spring guns” (Does NOT apply to FL)


Negligence =
Duty (to whom, what kind) + Breach (RPP) + Causation (but for, foreseeability) = Harm



Duty to Whom?

1.) You owe a duty to anyone in the zone of danger created by your activity.
a. Any person you would at once realize would be affected by your actions.
i. Anthrax/Radiation – almost everyone in the public (zone increases)
2.) Those you know will be affected by your actions
3.) Those you are substantially certain will be affected by your actions
4.) Those you are in privity of contract with
a. Professionals = Limited Duty
i. The minimum standard of care for professionals is: competence and care customary in similar communities among the same profession
ii. Professional standard of care depends on circumstances that are acceptable and appropriate by reasonably prudent similar health care providers
b. Bailor/Bailee – You must return chattel in the same condition
5.) Those you have a special relationship with -> Higher Duty of Care
a. Husband/Wife
b. Parent/Child
c. Doctor/Patient
6.) Those who rescue others due to the Defendant’s negligence
a. Rescue Doctrine – i.) the defendant was negligent, ii.) as a result of the defendant’s negligence, the person (or property) to be rescued was in imminent peril, and iii.) the rescuer acted reasonably under the circumstances
i. Danger invites rescue, so the rescue is foreseeable
7.) Those on your property:
a. Inn-Keepers & Common Carriers = Highest Duty; Duty of Civility
b. Invitees = Businesses -> Duty of Reasonable Care
i. In Florida, Social Guests are Invitees
c. Licensees = Social Guests; Duty to warn of hidden dangers and not to set traps
d. Trespassers = Duty not to set traps; if you discover trespasser, you must warn of hidden danger
i. REMEMBER – Higher levels of care include all lower levels of care

Note – In Florida – Car = Danger Instrumentality -> Zone of Danger -> Duty of RPP








Duty, What Kind?
*** Duty of RPP/Herman -> Must ALWAYS assess B < L x P; if burden is less, you must take on the burden

1.) You owe the duty to act like a RPP/Herman
a. Exception –
i. Inn-Keepers & Common Carriers = Owe a higher duty
ii. Children = A.M.E.E (Subjective RPP); Unless child is engaging in adult activity
iii. Emergency Situation = Must act like RPP/Herman in the emergency situation (Would Herman do this in this situation?)
2.) Sudden Emergency = RPP/Herman in a similar situation
a. Would RPP/Herman do this in the same situation?
i. Guy pulls gun on you in taxi, you jump out of taxi; you are not liable for damages that occur because you value your life
3.) Physical Disability = RPP w/ same disability (if you are blind, act like blind RPP)
4.) Customs of Community/Trade/Industry = Always follow RPP; Custom is not controlling
5.) Sudden Incapacity = RPP
a. If you had no idea this would happen, then you are not liable
b. If you knew, or should have known that this would happen, then you are liable
6.) Special Knowledge = Must act like RPP that has this type of knowledge
a. Would RPP/Herman, having the superior/special knowledge, have acted the same way?
7.) Negligent Hiring = RPP -> RPP would do background checks
8.) Medical Malpractice = Reasonable competence and care customary in similar communities among the same profession
a. Malpractice must occur in medical context, not for performing non-medial tasks negligently
i. Informed Consent – In all invasive procedures, Doctor must obtain informed consent or it is considered battery
ii. Expert Testimony – Plaintiff must obtain expert witness to explain the standard of care, or P will not recover.
9.) Good Samaritan Doctrine – If you find someone in distress/injured, Doctors and Lay People owe the duty of reckless
a. If injured person says “Don’t move me” and you move them, you are negligent
10.) Captain of the Ship Doctrine – If you are head physician, you are liable for anything that goes wrong in operating room during surgery.
a. The only way any person that has touched the patient (nurses, etc.) could avoid liability is to prove they were not the source of harm AND they must snitch on who did cause the harm






11.) Attractive Nuisance – If child is allured to your property, you owe the duty of invitee (reasonable care)
a. FL – Something that allures the child to the property/thing
b. Common Law – Does not require the child to be allured
i. 5 Factors
1. Danger condition on land -> owner is, or should have been, aware of the unreasonable risk of death/serious harm
2. Owner knows, or should have known that young people visit the vicinity of the danger condition (they’re likely to trespass)
3. Condition is likely to cause injury because child’s inability to appreciate the risk
4. Expense of remedying the problem is slight compared to the magnitude of the risk (B < L x P)
5. Owner fails to exercise reasonable care to eliminate the danger
12.) Mental Disabled – Owes the duty to act like RPP/Herman!!!




Breach –
*** Conduct that falls below the required standard of care (RPP) (Analyze B < LxP)
(When you do not act like RPP/Herman, you breach)

1.) Must act like RPP/Herman; if your standard of care falls below, then you breach
a. Exceptions – Innkeepers/Common Carrier; Children; Emergency Situation
2.) Professionals – Standard of Care = Competence and Care customary in similar community among the same profession

1.) Negligence Per Se – (Use only if statute/ordinance)
a. Elements:
i. D violated Statute/Ordinance
ii. P suffers harm
iii. P is within the class of persons the Statute/Ordinance intended to protect
iv. P suffers the same type of harm the Statute/Ordinance intended to prevent – (both actual cause and proximate cause)
1. Presumptions:
a. FL = Conclusive presumption of negligence
i. “Since we’re in FL, there is a conclusive presumption of negligence” -> if P proves all elements, D is automatically negligent
b. Common Law = Rebuttable presumption of negligence -> although D violated the Statute, D can prove not negligent if he brings evidence
c. Traffic Violation = Mere evidence

Note – When writing CRAC, always write Negligence Per Se paragraph followed by Negligence paragraph (argue both sides of each)

Causation – Must show both Cause in-fact and Cause at law for a claim

Cause In Fact – (But for)
• The Defendants actions must be negligent
• “But for the Defendant’s negligent actions, would the Plaintiff have been injured?”
o “Would RPP/Herman have acted the same way?”
• If Yes = there is NO cause in-fact
• If No = there IS cause in-fact
• If RPP/Herman would have acted the same way that the Defendant did and the Plaintiff would have been injured anyways, then you do not have Cause in-fact

Cause at Law – Proximate Cause (Foreseeability)
- If foreseeable = liable
- If not foreseeable = not liable

1.) Ask yourself, “Is the type of harm that occurred foreseeable?”
a. To determine foreseeability:
i. “Is the type of harm that occurred the same type of harm that RPP/Herman would be concerned about under these circumstances?”
ii. “Is the harm the type that makes up “L” in B < L x P ?”
1. If no to both, then there is no cause- at-law because RPP/Herman would not have considered that this result could occur
2.) Egg-Shell Skull Theory – Degree of harm is irrelevant, only the type of harm is relevant
a. If you do not threaten harm, or if you threaten a different type of harm, then you do not pay
b. If the harm is the same type, only magnified, then you are liable
c. However, if the harm is different, then you are not liable
i. Ex. Alex hits Bob on the head with a peanut and Bob’s head caves in. Herman would be concerned with Bob having an allergic reaction, not that Bob’s head would cave in. Thus, the TYPE of harm is different.
















Other Causation Issues

Concurrent Causes – When separate acts of negligence combine to form a single injury, both negligent people will be responsible only for the percentage the jury finds each to be at fault

Two Possible Causes, but only 1 could have caused the injury: each D must prove that he/she was not the cause.
- If it can’t be proven, each will be liable for half of the damages. (Summers v. Tice)

Superseding Intervening Causes (cuts of D’s liability)
- Acts of God
- Intentional Torts or Criminal Acts (unless it could have been anticipated)
- Unforeseeable event that occurs between the D’s breach and the P’s ultimate injury
o Negligent acts do not cut off D’s liability

An intervening cause which merely aggravates an injury already caused by D’s negligence will be liable only for the aggravation of the injury. D will still be liable for the amount that he/she was responsible for the injury without aggravation caused by the intervening cause.

A superseding cause which occurred subsequent to D’s negligence, and without which P would not have been injured at all, completely cuts off D’s liability (Sole. Prox. Cause)


Res Ipsa Loquitur – “The thing speaks for itself” -> Use this as a last ditch effort (it gets it’s own CRAC) -> infer negligence
- Use when you cannot explain how an accident happened
o You need to show that:
• 1.) D had exclusive care and control of the instrumentality that caused the harm
• 2.) The type of harm does not normally occur without negligence
Surgery (Res Ipsa Loquitur):
1.) Injury occurs during surgery or recovery
2.) Under anesthesia
3.) Injury unrelated to the surgery
i. Res Ipsa Loquitur generally does not apply to groups
1. Exception – You can use res ipsa loquitur on medical shit


Rescue Doctrine:
The theory is that “danger invites rescue, so the rescue is foreseeable”
- Therefore, D will be liable to the rescuer who is injured while attempting to save the victim of D’s negligence
o So long as the rescuer is not wanton and reckless



Defenses
Contributory Negligence (Common Law) – In a contributory negligence jurisdiction, if P is negligent AT ALL, P recovers NOTHING.

Last Clear Chance doctrine – who had the last chance to avoid or prevent the injury?
- The one with the last clear chance will be liable
o Still applies in Comparative Negligence jurisdictions -> plays into the % analysis

Comparative Negligence –
(PURE -> FLORIDA) – Percent of recovery barred is equal to percent that P was at fault
- In Florida, with multiple defendants, liability is proportionate, not joint and several
o D only pays for percentage that D is responsible for

Assumption of Risk – Always discuss whether it is express or implied, and if voluntary or involuntary
- D will NOT be liable if P has assumed the risk either expressly or impliedly, so long as the assumption was voluntary, not created by necessity.
o Express – Contractual (written or oral), OR participation in a contact athletic event (sport)
o Implied (Voluntarily assuming a known risk)
• 1.) Risk of Harm is caused by D
• 2.) P is aware of the risk
• 3.) P voluntarily confronts the risk
• Since voluntary, P must have an option available
• Implied assumption of risk merges with comparative negligence -> mitigates how much you’re negligent
- In Florida, P will recover minus the percentage that P is at fault
o E.g., P goes on merry-go-round at the playground, falls off:
• If P was simply clumsy, P will recover nothing
• If P was clumsy AND there was something wrong with the merry-go-round, (e.g., the handrail was slippery), then P will recover minus the percentage of P’s fault (the court decides how much)
• D will not be liable if there was no defect to the merry-go-round
Involuntary: P can recover
- E.g., P assumes the risk of entering a burning house to save a child (necessity)
- E.g., P knows the bathroom floor is rotten, but has to go (necessity)

Voluntary – P CAN NOT recover
- E.g., P assumes the risk of entering a burning house to save his hat

Sovereign Immunity: (Defense); Applies to Nation, State, Municipality -> Whether or not the State is liable

1.) Planning Level – Bad planning will NOT incur liability; e.g., State decided not to put up a guardrail, car goes into a canal = state NOT liable
2.) Operational Level – Poor execution WILL incur liability; e.g., State puts up a guardrail, it’s faulty, car crashes through it into a canal = state IS liable
i. Just THINK: If the State owns/controls it, then mention sovereign immunity; e.g., (Public/Port/Airport/Port of Everglades)
Immunities:
1.) Workman’s Comp – Employer may be immune for the tortious acts of their employee
2.) Interspousal Immunity Doctrine – Common law prohibits married couples from suing for negligence
a. FL – No longer a defense in FL
i. You cannot sue your spouse for torts under common law either
3.) Parent-Child Immunity – A child cannot bring negligence suit against parent, only parent’s insurance
a. Parental tort immunity – abolished to the extent that there is insurance
4.) Sovereign Immunity – Applies to Nation, State, Municipality
a. Planning level functions – Bad planning will NOT incur liability
b. Operational level functions – Poor execution WILL incur liability
5.) Ferris Doctrine – Police and military personnel are immune from liability when a member of their unit is put in danger






Statute of Limitations
• Within 4 years –
o Action for negligence
o Action founded on design, planning, or construction of an improve to real property
o An action to recover public money or property held by a public officer or employee
o Statutory liability
o Action for trespass to chattel/conversion
o Trespass to Realty
o Contracts
o Action for torts
• Within 2 years –
o Medical Malpractice
o Wrongful death
o If you have a latent defect, time runs from when the defect discovered or should have been discovered (Casa Clara – kinda hidden, faulty concrete in apartment complex)












Strict Liability
Liability without fault – 1.) Abnormally Dangerous Activity, 2.) Animals, 3.) Products

1.) Abnormally Dangerous Activity Factors -> FL adopts this (strict liability)
1.) Existence of a high degree of risk of some harm to the person, land, or chattels of others
2.) Likelihood that the harm that results from it will be great
3.) Inability to eliminate the risk by the exercise of reasonable care
4.) Extent to which the activity is not a matter of common usage
5.) Inappropriateness of the activity to the place where it is carried on, and
6.) Extent to which its value to the community is outweighed by its dangerous attributes
i. Dangerous Activity:
1. Duty – To Everybody, RPP
2. Breach – Strictly Liable
3. Causation – MUST HAVE CAUSATION at fact and in law

Exception – When landowner is under a public duty to keep the animal (e.g., zoo circus – have to be negligent in order to recover)
• However, FL = still strictly liable

Strictly liable:
- Fumigation
- Dynamite
- Anthrax

Contributory (or intervening) negligence of another DOES NOT cut off liability for a strict liability activity!

Example – You drive a car with dynamite in the trunk. You rear end a car in front of you because the car slams it’s breaks; it’s not your fault you rear ended them. Other driver sues you and claims you were strictly liable for having the dynamite.
- But for your carrying dynamite, would you have hit the car in front of you?
o Yes, you would have hit the car either way
• Strict liability ALWAYS presumes you have cause in fact and cause at law
• MUST HAVE CAUSATION!














2.) Strict Liability – ANIMALS

Common Law –
1.) Domestic Animals – Animals commonly kept as pets.
a. If you know your dog/cat is vicious, you are strictly liable.
i. Exotic pets – something NOT commonly kept as a pet, but is in fact a pet. NOT considered domestic animal at common law.
2.) Domesticated Animal – Animals that work for us (horses, cows, llamas)
a. Rule – So long as your domesticated animal is on YOUR property, then you are NOT liable for its injuring another as long as you know it’s not vicious.
i. If they leave your property and cause damage, then the owner is strictly liable for damages
ii. If you are on someone else’s property and they cause harm, then the owner is strictly liable
3.) Wild Animals – Monkeys, Tigers, Bears, Ferrets, Parrots, Macau’s -> any animal labeled exotic -> liability without fault -> Wild Animals = always Strict Liability
a. Strict liability, if the animal hurts someone you are liable
i. You’re liable until possession of that animal shifts to another person
b. Common Law Zoo Keeper Exception – Liable ONLY IF negligent, not strict liability for wild animals they keep
i. However, FL = Zoo’s = STRICTLY LIABLE
c. If there is a statute governing the maintenance and ownership of the animal, then the animal is exotic
i. FL relaxes strict liability for BEE’s
d. Exception – Veterinarian – Vet treats dog, dog bites vet, owner not liable to vet because the vet assumes the risk
e. Example – If you monkey escapes and runs away to Tampa and bites somebody, then you are strictly liable -> you are liable until possession of that animal shifts to another person
i. Example – Son gives iguana to mom, mom is liable for the iguana

FL Statute treats domestic and domesticated animals the same!
FL Policy = If you keep wild animals in heavily populated areas, you are strictly liable for them

Dogs –
- Dogs can be helpful animals (dogs are meant to pull wagons sometimes)
- Dog hurts somebody, strict liability -> defenses could still apply (if you provoke dog, then not liable)
- FL does not follow the common law “One bite rule”
o Hypo: Dog sitting. Jeff sees the dog, afraid, falls back injures himself. Liable?
• There must be affirmative or aggressive act by the dog.
• 3 steps forward = affirmative
• Dog growling = aggressive






Products Liability – 3 Causes of Action
1.) Strict Products Liability
2.) Breach of Warranty
3.) Negligence

Strict Products Liability
- All you need is unreasonably dangerous condition that caused the injury
o Unreasonably Dangerous Test
- Duty: Anyone in the foreseeable zone of danger, even by standers
- Can sue everybody
Elements:
1.) Must show manufacturer’s connection to the product in question
2.) Defect of the product
3.) The product is unreasonably dangerous (B < L x P)
4.) But-for defect, Plaintiff would not have been injured
5.) (Proximate cause) Same type of Injury threatened by defect of product
6.) Physical harm to person or property other than the product itself
7.) Manufacturer’s knowledge that product is used without prior inspection (ex. Out of the box)
i. Manufacturer owes a duty to anyone in foreseeable zone of danger
ii. Victim can sue anybody up the line

Unreasonably Dangerous Test – If you have all these things, then the Manufacturer will be liable
1.) Plaintiff must be a seller of that kind
2.) Defective conditions = implied warrantee of merchantability
3.) Unreasonably dangerous = manufacturer (risk benefit analysis), doesn’t matter if manufacturer knew or should have known if it was dangerous to be liable. You can still market item if B < L x P
4.) Must cause physical harm to PERSON or PROPERTY other than product itself

Defense – “State of the Art”: Defendant must prove that we need this product and there is no way to make it safer

Then, which type of defect? (Negligence, Warranties, and Strict Liability – try for all)
1.) Manufacturer defect – where the defect was in the design of the product
a. Plaintiff alleges the product was defective because it did not meet the manufacturer’s own specifications for the product
b. The Plaintiff recovers by showing that the product does not meet the manufacturer’s own specifications for the product, and as a result the product was dangerously defective
i. Manufacturer Defect Ipsa Loquitur – P’s Burden of Proof
1. A defect was present in the product
2. The defect caused the injuries complained of
3. The defect existed at the time the retailer/supplier parted possession with the product
ii. How to decide if product was defective while in manufacturer’s control:
1. Age of the product
2. Length and severity of it’s use
3. It’s state of repair
4. It’s expected useful life
5. Whether it had been used abnormally
2.) Design defect – where the defect was in the design of the product
a. 2 tests:
i. Customer Expectation Test
1. The product fails to perform as safely as an ordinary consumer would expect when used as intended or in a manner reasonably foreseeable for the manufacturer
ii. Risk-Utility Test
1. The risk of danger in the design outweighs the benefits (B<LxP)
3.) Defective Warning – You fail to warn, or the warning was not good enough to adequately warn of danger
a. When a safer design is possible, warning is not adequate alternative.
i. Manufacturer has a duty to warn of a risk that was known or knowable.
ii. Manufacturer is not liable for failure to warn of something it didn’t know, or couldn’t know about.
iii. Manufacturer should have the best knowledge available at the time of the manufacturing the product (lower standard than professionals, medical, and attorneys)
iv. Warning must be in clear language & fair warning of the danger & understandable language
v. No duty to warn of obvious dangers
b. Test:
i. Manufacturer has duty to warn for what he has knowledge of:
1. Should have knowledge of (Test):
a. The danger in light of the general recognized and prevailing scientific and medical knowledge available at the time of manufacturing or distributing the product
2. Warnings alert you to something that might not be otherwise expected
3. If there is something you have no reason to expect, then there’s no way you would know to warn about it
4. Warning – Requires P to prove D did not warn of a risk that was known or knowable
5. What do you have to warn of?
a. Warn of hazards
b. Warn of what happens
c. Warn of proper way to use the product
d. Warn what happens if you screw up (Draino Can had instructions if you get it on you)
6. Warnings must be:
a. In clear language
b. Fair warning of danger
c. Must be in understandable language
i. FL says there is STRICT LIABILITY to warn
1. You are not liable for failure to warn about something you had no idea about
2. No duty to warn in cases where the danger is obvious (WARNING: Sharp knife)












Warranties –
1.) Express Warning – Requires some degree of reliance (detrimental reliance – induced you to enter into the K) (FL says you must have reliance); can be made by advertising
a. No privity of K required
b. There is a breach of warrantee if it does what it says it will do, but does not do it safely
c. Fraudulent (you know it’s a lie); Negligent (should have known); or Innocent
2.) Merchantability –
a. In order to be merchantable goods, the goods must be fit for their ordinary purpose
i. Does the product do what it is supposed to do?
ii. Does the product do it safely?
b. Implies a minimum standard of quality, including safety
c. Can only be made by a merchant with respect to goods of that kind
d. New Test – Reasonable Expectation of the Consumer Test:
i. What is the Consumer Expectation?
ii. Is the product fit for Ordinary Purpose?
3.) Fitness for Particular Purpose – Where the SELLER knows the BUYER is looking to put the product to a particular use there is a warranty for particular purpose (Ex. Seller helps Buyer pick out a specific model for Buyer)
a. “I need this product to do this”
b. Buyer relies on the skill and judgment of the Seller to help select good
c. Did the Seller have good reason to know the specific purpose of what the Buyer is using the goods for?

Negligence –
a. Who can you sue?
i. Manufacturer; not usually the distributor unless the distributor was negligent.
ii. Must prove some type of negligent conduct and if distributor only sells then it is unlikely distributor is negligent
iii. If distributor knew there was a defect and sold anyway, then liable
iv. Who ever is liable has to know of defect or should have known(fault)
b. Duty to anyone in the foreseeable zone of risk (including bystanders)
c. It matters if the manufacturer knew or should have known of defect.
i. Do not need privity of K (you can sue all the way up)
ii. Liable to purchaser and all foreseeable users and all other foreseeably exposed to the risk it creates
1. Anyone in the vicinity of it’s probable use.
2. Guard against dangers where one would not expect them to be.
a. Ex. Rocking chair cut off guy’s finger – a warning would not be enough.
b. Ex. Aspirin = warning is enough
3. Duty owed – Duty follows the product -> anyone in the radius of harm caused by the product
4. Reason to know person isn’t going to inspect the product – manufacturer has the duty to inspect
iii. Strict Liability – Doesn’t matter if manufacturer knew of defect
d. Case – Grunrow v. Valor
i. The gun should have had safety devices sold with it because children could not be protected from using the gun
ii. Valor is the distributor, not the manufacturer
iii. It is negligent to sell a gun without a safety?


Vicarious Liability – (When you are responsible for the acts of others)

1.) Respondeat Superior – Let the superior be responsible, makes business liable for risks the business creates
a. A person is an agent of another when:
i. Each of them consents to a particular relationship
ii. One person (agent) will act on behalf of the other (principal)
iii. Agent consents to acting subject to the control of the principal
iv. This is not a contract, although it can be contractual
v. There is consent, but this is not an agreement
b. If the act of the agent causes PHYSICAL HARM to a 3rd person or a 3rd person’s property:
i. Principle will only be liable if the control being exercised was control of the physical activity of the agent:
1. Must have had:
a. The right to control the agent, and
b. The right to control the physical activity of the agent
i. Does not require payment, can be gratuitous
c. Where the employee was acting in a way that would subject himself to punitive damages AND the employer is negligent, then the employer will pay
i. Actions of employer DO NOT have to rise to the level where they would be directly responsible for punitive damages

2.) Scope of Business
a. How do you know it’s within the scope of business?
i. Within the time and space authorized by the employer
ii. Must have the purpose to serve the employer
iii. Must be the same type of work, must be within the job description
b. Suppose your job’s nature is that there is a risk that you will injure a 3rd party, if you intentionally cause harm to a 3rd party, the employer is liable

Exception - Independent Contractors (Can not sue the business)
c. General Rule – The employer of an independent contractor is not liable for the contractor’s negligence because the employer has no control over the manner in which the work is done
i. Exceptions: (Can sue the business)
1. Negligence in selecting, instructing, or supervising the contractor
2. Non-delegable duties arising out of some relation toward the public or the particular plaintiff; and
3. Work which is an inherently dangerous activity (blasting)
a. Ex. Negligent hiring = you will be liable

[BVest]

It's forseable for A,B, and C reasons

Its unforeseeable for X,Y,Z reasons

AND THATS HOW YA GET TO MAYBE

Thanks. but what if its a multiple choice question. one choice says proximate cause is established, the other says no because the harm is not unforeseeable.
i guess this teacher is too incompetent to realize its too subjective.

If the harm is not unforeseeable (in other words, if the harm is foreseeable), then proximate cause is established.

[09042014]

My torts prof doesn't believe in prox cause.

[Nebby]

How you know X is foreseeable: The Jury says so.
How you know Y is the proximate cause of Z: The Jury says so.

[Mal Reynolds]

Foreseeability is bullshit.

Is it foreseeable an explosion would result from someone cleaning machinery using gasoline and an open flame?

Yes

Is it foreseeable that a rat would soak itself in gasoline, run through the ventilation and then run straight into the open flame causing and explosion?

No

Proximate cause can always be manipulated depending on how you frame the facts.