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- Role of Necessity: o Times where, because of unusual exigency it is considered appropriate to harm a blameless plaintiff. § Usually to protect both persons and property jointly. Necessity overrides general property rights, especially when attempting to preserve lives. § BUT necessity must be exercised w/reasonable care; necessity's existence or absence may depend on contractual arrangements and presumed risks. · Ploof v. Putnam - Ploof needed to dock at Putnam’s property due to a storm. Putnam’s servant cast off Ploof’s boat and as a result, the passengers in the boat were injured. Doctrine of necessity applies with special force to the preservation of human life. · Vincent v. Lake Erie Transportation - The steamship Reynolds was docked at a port to unload when a violent storm came up. During the storm, the boat was kept to dock and the dock suffered $500 in damages. If damages are suffered by a defendant in a plaintiff’s reasonable attempt to protect his own property, the plaintiff must pay damages. o Public necessity – necessity to prevent a disaster to the community. o Private necessity – preservation of human life.
UNINTENTIONAL TORTS
CAUSATION
P must first demonstrate that D caused the harm.
- There are two distinct issues relating to causation: o D was the “cause in fact” of the harm to P, or “But for” o D was the “legal cause” or “proximate cause” of the harm to P. § Act as well as omissions. Cause in Fact - The harm would not have happened “but for” D’s negligent act. o Use of Expert Testimony o Substantial factor: If multiple causes of accident, and each of which would have been enough by itself to cause the harm, if one of the causes was a “substantial factor” in bringing about the harm, it’s deemed a cause of the accident in fact, even though the others could have sufficed alone. (Vesely v. Seger – alcohol vender being held liable for drunken driver). Proximate Cause - P must show that the defendant “proximately” caused the injuries - PC is often much more difficult to prove than “cause in fact” and there are often conflicting views between judges and courts, the two main schools of thought are: o Direct causation – imposing liability for any harm directly resulting from the D’s negligence, no matter how unforeseeable or unlikely it would have been when D acted. § This does not include events that are caused in part by superceding causes. § Polemis – Charterees on boat dropped plank, caused fire. As long as action may cause some harm, it does not matter if the ultimate harm is not foreseeable. § Klinsman - · Policy: Proponents à negligent actor should be liable for all events resulting from negligent act. Opponents à results in limitless liability o Forseeability – Opposing view that says that the defendant should be liable only for the consequences which were reasonably foreseeable at the time he acted. § Intervening events: If the intervening act was reasonably foreseeable (natural response of dog to getting hit w/ lawnmower or negligent acts of others), it doesn’t inhibit the first event from being the proximate cause. § Superseding events: If it’s not foreseeable (intentional or criminal acts of others), it’s superseding, and prevents the first act from being the proximate cause. § Wagon Mound 1(Aust.) – Dock destroyed by fire after furnace oil leaked from D’s ship. Repudiation of Polemis. Foreseeability must be part of decision. · Gotshall – SC rejects the concept of foreseeability à “You can foresee forever”.
In this situation: - But for, proximate cause (direct causation/foreseeability), Res ispa?, “Danger invites rescue”, multiple parties in medicine?
If Emotional Distress TURN TO EMOTIONAL DISTRESS If Product Liability TURN TO PRODUCT LIABILITY If harm was defamation, TURN TO DEFAMATION
Otherwise PROCEED TO DUTY
PRODUCTS LIABILITY
Products Liability Claims Product liability has become the fastest-growing and probably the most economically significant branch of tort law today. Evolution of products liability: - The use of negligence theory in product’s liability cases was limited by the concept of privity, the requirement that in order to file a lawsuit against a manufacturer a plaintiff must show that he contracted directly with the defendant - However, in 1916, Cardozo in the MacPherson v. Buick case overthrew the privity limitation and ruled that a manufacturer is responsible for an injury caused by such an article to a person that comes in lawful contact with it (MacPherson – wooden tire collapses as P drives. Buick knew it was the last test). - In Escola v. Coca Cola (exploding coke bottle, res ispa case), Judge Traynor’s concurrence urges that strict liability and not negligence should govern the liability of a defective product’s manufacturer. o Advantages: § the manufacturer has “deep pockets” and is in the best position to prevent the hazard § try to control a manufacturer’s conduct § manufacturers have a special responsibility to their consumers § correct the inherent imbalance of information weighted towards the manufacturer § assist the many products liability situations where negligence is hard to prove § increase of communication and trust in advertising, i.e. increased connection between manufacturer and consumer § meet increased customer expectations § large companies can insure against these claims § concept of fairness (correcting the harm done and spreading the loss amongst all consumers, i.e. settle/loose case, manufacturer increases price). - Judge Traynor’s concurrence influenced the development of Restatement §402. o Restatement §402 embodies a doctrine of strict liability and says that the standard for defect is that the product is unreasonably dangerous: § A product is defective according to 402A only if it is “unreasonably dangerous” – meaning that the defect that caused the plaintiff’s injury must be something other than what a reasonable person would expect in normal use (CA rejected this in Daly). o According to §402 there are three kinds of defects: § a manufacturing defect (one unit that goes bad that doesn’t perform like the others and is not in the condition the manufacturer intended at the time it left the manufacturer’s control). § a design defect (design flaw that all units of that type have; the defect presents an undue risk of harm in normal use). § a duty to warn defect
To make a strict liability claim for defective design/manufacturing defect against the manufacturer and retailer under Rest §402A we must prove: a. D sold the product in the course of its business, b. Product was in a defective condition and unreasonably dangerous when put to anticipated use c. Product was used in a manner reasonably anticipated (similar to consumer expectation test). d. P was injured as a direct result of such defective condition as existed when the product was sold (but-for and proximate causation). § - Comparison to Restatement (3d): o Includes same three defects but… § Also includes some aspects of negligence and makes it easier for bystanders to recover. §402A only uses strict liability and thus no negligence standard for recovery. § Restatement 3d includes distribution (selling or otherwise distributing), while 402A includes only sale of goods (one who sells any product). § 402A does not emphasize foreseeability, but Restatement 3d gives it a higher status.
- Most significant battle over 402A: the role of the language “unreasonably dangerous” (Barker v. Lull - Unreasonably dangerous does not matter. In disregarding this language, the court held that a trial court may properly instruct that a product is defective in design if 1) the product fails to perform in a way that an ordinary consumer would expect when using it as intended or in a foreseeable manner or 2) the benefits of the product’s design are outweighed by the product’s risk). SEE BELOW!
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