Torts Finals Outline: Defenses to negligence based on plaintiff’s conduct o Contributory negligence – completely bars your recovery Assumption of risk Know that the risk is there Appreciate the level of the risk Do it anyway o Implied vs. expressed Express: voluntary, knowing, unreasonable confrontation with risk Cannot override a safety statute Implied: found in contributory negligence. Not applied in comparative negligence. Last clear chance doctrine – if D’s negligence occurred last, ignore P’s negligence o Typically, never applied by the courts o Comparative negligence – lessens your recovery based on your actions Pure comparative negligence P’s damages are reduced in proportion to the percentage of his negligence Modified comparative negligence If P is more than 50% at fault, no recovery o Strict liability – liability without fault on the part of the defendant Policy based; has nothing to do with fault Different elements for the different part (animals, products, etc.) o Abnormally dangerous activity Products Liability – the liability of a seller of a tangible item that has caused harm to someone because of a defect o Three theories: negligence, strict products liability, warranties, misrepresentation Negligence Normal elements Ex: car manufacturer carelessly fails to inspect brakes on a car Strict products liability Unreasonably dangerous condition caused the injury Restatement 402A: the basic rule is that a seller of a product is liable without fault for personal injuries caused by the product if the product if sold (1) in a defective condition (product defect) that is (2) unreasonably dangerous to the user or consumer o Design defect claims require P to show that D chose a design that posed an unreasonable danger to P
This is based on the other defect possibilities. If there was (1) a feasible alternative design and (2) the costs were reasonable, a DD claim can stand Types of claims: Structural defects Lack of safety features Risk-utility test: If the risk of harm far outweighs its utility, the defendant is liable. But if the greatness of the product’s utility far outweighs the risk, they are not liable. *think tractor*
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- Fall '16
- Tort Law, assumption of risk, comparative negligence, strict products liability