Torts II short outline - RS

Torts II short outline - RS - A. Abnormally Dangerous...

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A. Abnormally Dangerous Activities 1. General Rule : One who carries on abnormally dangerous or ultra-hazardous activities is strictly liable (majority rule, includes NY), for any damage that proximately results from the dangerous nature of the activity 2. Defenses/Limitations on strict liability . a. Scope of risk b. Foreseeability c. Intervening Superseding Causes d. Assumption of Risk B. Products Liability 1. Negligence a. One who negligently manufactures a product is liable for any personal injuries foreseeably and proximately caused by its negligence. b. Defenses i. Statute of Limitations ii. Comparative/Contributory Negligence iii. Assumption of Risk 2. Warranty a. Express i. When manufacturer makes express representations intended to induce sales, ii. The representation does not have to be in words— conduct, pictures, etc. are sufficient. iii. The product does not have to be defective, merely fail to perform as represented and thus cause harm iv. Warranty must be some part of the bargain v. Warranty applies to manufacturer and retailer b. Implied i. As a matter of law, goods are warranted for merchantability and fitness for a particular purpose ii. For implied warranty, seller must be a regular merchant in these goods c. Defenses to breach of warranty claims i. Disclaimers 1) If any warranty is provided, then A) Some implied warranties cannot be disclaimed 2) Some disclaimers may be unconscionable (e.g., consumer product disclaiming responsibility for personal injury) ii. “As-Is”: disclaims implied warranty of merchantability and fitness iii. Limitations on liability (e.g., consequential damages) 1) These are subject to unconscionability. For example, limitation of personal injury for consumer goods is unconscionable iv. Requirement of a timely claim v. Statute of limitations 3. Strict Product Liability : General Rule: There is strict liability for the sale of a product that is unreasonably dangerous to the end user’s person or property if: a. Elements i. The product was defective ii. The defect existed at time of manufacture iii. The defect proximately and directly caused the injury b. Assessing “Defectiveness” i. Types of tests 1) Risk-utility analysis test (mostly design defect cases) 2) Consumer expectations test (manufacturing and warnings defects cases) 3) Seller’s assumed- knowledge test (manufacturing defects cases) c. Damages i. Personal injury recoverable ii. Property damage recoverable iii. Pure economic loss without personal injury is not usually recoverable in strict liability except perhaps in warranty actions. d. Defenses i. Comparative negligence reduces, but not eliminates, recovery (NY and some states: still controversial) ii. Assumption of risk (voluntarily, knowingly, and unreasonably) iii. Unforeseeable misuse of the product. A foreseeable misuse still strict liability iv. Federal law can pre-empt common-law causes of action for products liability
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v. Defect did not proximately cause the injury—intervening
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This note was uploaded on 02/18/2008 for the course LAW 1020 taught by Professor Dilorenzo during the Spring '99 term at St. Johns Duplicate.

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Torts II short outline - RS - A. Abnormally Dangerous...

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