Intentional Torts 16

First, consider whether or not it makes sense to plead an intentional tort at all
Reasons in favor: (1) intentional torts are more likely to result in punitive damages; (2) some ?s' insurance policies will more likely cover for negligence, but will not
(as a matter of contract law) cover for intentional torts; (3) comparative fault is not a defense for an intentional tort; (4) pleading an intentional tort may help to prove
a negligence claim because it may persuade the jury that if the ? is being charged for an intentional tort, they were likely at least negligent.

Reason against: even if you get a liability verdict for intentional tort, it is highly unlikely that they are insured for those type of torts, because insurers usually do not
cover intentional torts (and the ?s for these sorts of acts often are insolvent)

First, did ? have " intent" ? Elements of an Intentional Tort Claim

- acts with the purpose of producing the
consequence OR acts knowing the Second, was the intent for the tortious act to occur?
consequence is substantially certain to occur requirements vary based on the tort
- subjective analysis, not compared to RPP
Battery
1. Subjective intent
"Individualized knowledge" that a particular is
2. Harmful or offensive bodily contact with ? , or immediate apprehension of such a contact
substantially certain to harm someone is
A. Defining offensive -- offends a reasonable sense of personal dignity (Wishnatsky)
sufficient to satisfy the "substantial certainty"
B. Defining offensive bodily contact -- anything grasped directly which is so intimately
test. However, "statistical knowledge" that one's
connected with one's body as to be universally regarded as part of the person
multiple acts over time have a high statistical
likelihood of harming someone from a large Assault
class of potential victims, that is not sufficient to 1. Subjective intent
satisfy the "substantial certainty" test. A. Not necessary to prove this where ? willfully acts in a way that in its ordinary course
Garratt v. Dailey would cause an injury (Picard v. Barry Pontiac-Buick)
2. Physical act of a threatening nature or an offer of corporal injury which puts an
individual in reasonable fear of imminent bodily harm
Third, was there causation?
--threats conditioned on future events, even if unjustifiable, does not constitute an
assault. HOWEVER, threats of immediate injury constitute assault.
False Imprisonment
Fourth, were there damages? Unlawful restraint of a person's freedom of movement, which can be accomplished by:
1. Actual or apparent physical barriers
2. Overpowering (or submission to) physical force
Are there defenses available to ?? 3. Threats of physical force
(1) A missing element to a claim 4. Other duress
(2) CONSENT DEFENSE (Hart v. Geysel) 5. Asserted legal authority
A. Consent by ? to tortious behavior negates
their claim (similar to implied assumption of risk For false imprisonment, there must be actual restraint. If ? thinks they are restrained, but they are
defense in negligence) not actually, ? is not liable (unless ? had no reasonable way of finding out there was no restraint)
Test: scope of consent + implied consent Lopez v. Winchell's Donut House
Subjective -- this particular ? 's actions
constituted consent. Not enough to say that the Intentional Infliction of Emotional Distress
reasonable person would have consented. ? by extreme and outrageous conduct, intentionally or recklessly causes severe emotional distress,
B. ? has the burden of proving consent since the ? may be liable (HOWEVER, note that "reckless" cases rarely succeed)
they're raising the aff defense
-- Usually the biggest defense Traditionally, needed some physical manifestation of the injury, however, modern courts no longer
require this, and instead use other factors. Although courts don't want to open up the courts to
(3) Self-defense flood with litigation if they allow purely emotional distress, given sometimes there is actually
Raymond (pg 959) "extreme and outrageous conduct," they allow those suits that satisfy that standard.
1. ? can use to privilege certain actions like
battery/assault When is something " extreme and outrageous conduct" ?
2. ?'s burden to show reasonable fear of attack 1. Causes reasonable man to get up and say it is outrageous (not very helpful)
from ? , and ? used reasonable force to defend 2. Determinations are very fact-specific
3. Objective reasonable person test--does take 3. Common law also keeps it somewhat deliberately vague as a deterrent to prevent ?s from doing
context into consideration, but emphasis is on a wild things because the ? is unsure whether their conduct satisfies this
reasonable, rather than subjective, fear of attack 4. Emotional distress having to be severe, and ? 's burden to show that, also operates in favor of
4. Only privileges use of proportionate force. limiting litigation (promoting efficiency)
Does not privilege ? to shoot to kill if what ? is
reasonably anticipating is a black eye. Who determines whether it is " extreme and dangerous conduct" ?
Mixed-judge-jury question
A. Retreat -- two ways under common law 1. Trial judge first determines whether it was sufficiently "extreme and outrageous" to get a
-- (1) If ? had a chance to remove herself from recovery, or for reasonable minds to differ
the threat, supposed to retreat. Choosing to 2. Jury then listens to case and determines whether it was "extreme and outrageous" or not,
stay and use force, the force was no longer creating or dismissing liability
privileged
-- (2) Even if there is opportunity for safe retreat, Eggshell-plaintiff rule
if ? perceives reasonable fear of attack from ? ,
? is privileged to use proportionate force. A. Would a RPP having the specific knowledge or condition of the ? also produce similar,
***Usually for criminal context rather than tort*** "severe emotional distress"? If yes, ? probably "extreme and dangerous conduct"
B. May not help ALL ? s get over the "extreme and dangerous conduct," still needs to be
(4) Defense of property weighed by reasonability
Iowa Farm House Case C. Applies even if ? was not fully aware of the eggshell issues; however, if ? is completely
1. ? trespasses/tries to steal from ?'s property unaware of the ? 's history, it would likely not be at issue because in such a situation it
2. Defense of property is allowed, but defense would be hard to prove intent
of deadly force is never justified for defense of
property. In this case, since the spring gun/traps
were angled in such a way as to deliver
grievous injury or death, no defense of property
available here.
 Negligence: Duty, Breach, and Actual Cause Attack Outline 2
Malfeasance Nonfeasance
Duty for risks created by ? due to AFFIRMATIVE actions EXCEPTIONS to "no duty to rescue" doctrine
Duty General Duty Factors
(1) foreseeability and extent of harm due to ?'s conduct; (2) likelihood of duty imposition to result in increased safety; AND
(3) burden that the new duty will impose on the ?

FIRST, DEFINE THE BREACH

Requires " ordinary care" by the reasonably prudent person (RPP) under same or similar circumstances (SoSC)
"Ordinary care" decided by jury (Brown v. Kendall) BUT judge can overrule if no reasonable juror could find (Adams v. Bullock)
Can Adjust " Degree of Care" for:
(1) superior attributes; (2) common carriers (RPP and adjust
Ordinary Care Factors:
for circumstances); (3) physical disability; (4) children;
1. Foreseeability of harm of injury
(5) emergency (lack of time affects reasonability)
2. Extent and likelihood of harm posed by conduct
3. Feasibility/availability of protective measures
CANNOT Adjust for:
4. Costs of different courses of action
(1) age; (2) gender; (3) mental illness/disability (punishes
mental state not conduct and too vague/hard to put brightline)

Breach SECOND, ESTABLISH THE BREACH W/ CASE FACTS

(1) Statutes: if violation, neg per se --> if no violation, still liable if RPP under SoSC would do differently
(2) Customs: didn't follow, can go to liability --> did follow, can still show liability if RPP under SoSC would do differently
(3) BUT if ? shows ? did not exercise ordinary care --> NO LIABILITY

THIRD, ASSESS BREACH BY BALANCING FACTORS

Hand Formula
B < P x L --> NEGLIGENT
Social Utility of Conduct Shooting Straight
B > P x L --> NOT NEGLIGENT
Costs of conduct vs. the utility granted If risks outweigh burden of precautions
by the conduct AND whether other to a RPP under SoSC, it's a breach
B = burden of precautionary measures
readily available alternatives exist 99% of the time
P = probability of accident occurring
L = magnitude of loss

Single Tortfeasor/Divisible Injury Jointly & Severally Liable Tortfeasors Special Case--DES (Severally Liable)
1. Acting in concert: cooperative Market Share Approach
But for ?'s actions, would injury actions of ?s create injury; applies even Hymowitz v. Eli Lilly
more likely than not (MLTN) if ?1 neg and ?2 not neg; ? can collect Relevant facts: many ?s (e.g. 100s),
have occurred? from either or both ?s very difficult to tell who was responsible,
2. Substantial Factor: ind neg actions only one ? was responsible for injury.
Unclear b/c of each ? sufficient for injury but -Holds ?s responsible for "risk
No multiple causes Yes indivisible so impossible to tell who was creation" without actually showing they
first; each ?'s actions held to be caused the specific ?'s harm
substantial factor for injury so the ? can -Fungibility required: must be able to
Causation Eliminate alternative
collect from either or both ?s equate units of risk created to
causes if you can
3. Pre-emptive: both ?s neg actions proportional market share liability (i.e. =
sufficient to cause injury, but ?1 causes chemical & amount in DES)
complete injury first --> ?2 NOT LIABLE
Are ?'s actions one of 4. Indeterminate (Summers v. Tice): no Split in Jurisdictions:
multiple equally likely indivisible injury (one shot), both ?'s 1. Hymowitz - recovery is proportional
causes? actions sufficient but can't tell which ? to national market share, so unless ?
actually injured; procedurally shifts to joins ALL national manufacturers, she
NO ?s burden to prove they were not liable, will not get her full claim compensated.
CAUSE No Yes
CAUSE otherwise held jointly & severally liable. Offset b/c no ? is allowed to remove
More difficult to justify with more ?s liability (no exculpation) by proving
they couldnt have harmed the ?
Future Recovery - 2-Disease Rule
Present Recovery Options Minor ailment first, serious ailment later 2. ? may only sue one ?, but if ?
1. Traditional Rule -- unless 51% chance Split in Jur: succeeds (i.e. shows causation), she
that ? caused the injury, no liability collects her entire claim (inculpation)
Some: single-judgment: ONE trial at injury
2. Proportional recovery -- ? pays for the Some: ONE trial at initial OR later injury
relative % contribution to causation 3. Abel v. Eli Lilly - all ?s jointly and
Some: 1st trial for initial injury + emo distrs
(not widely adopted) severally liable for ? 's entire claim BUT
of risk of later injury + med monitoring $ +
Recovery 3. Loss-of-chance (LOC): med tort, if harm 2nd trial IFF later serious injury ? allowed to remove liability by
reduced % survival/recovery, EVEN IF proving it could not have harmed ?
Options Some: "probabilistic recovery" = ONE trial
initial chance was < 50%, ? can recover:
for initial injury + dmg based on likelihood of
$ (wrongful death/injury) x %LOC future injury 4. Sindell v. Abbott Labs. - ? may sue
Modern trend, but not maj. -- Split in Jur: multiple ?s and collect her entire claim.
Many (but not all): require injury to occur ?s are responsible proportional to their
Policy Considerations:
BEFORE there can be liability pro--potentially allows ? full recovery for market share in area where ? was
Some: require significant LOC (e.g. 60% injured by ?'s actions
heavy $ if serious later injury
might be enough, but not 20%) con--intervening causes can make it difficult
to show ? caused the harm 5. No market share approach allowed
 Affirmative Defenses--Comparative Fault
14
NEITHER CONTRIBUTORY NOR COMPARATIVE NEGLIGENCE ANALYSIS
APPLIES TO INTENTIONAL TORTS

Was the ? 's negligence Is ? in jur that allows Traditional Jur

partially responsible for Yes contributory negligence? If ? is at fault at all, extinguish ? 's entire claim
? 's injury? Split in Jur Policy arg for--didn't want the tort system to be overly intrusive. Wanted only ?
with dirty hands to make sure there wasn't scrutiny of undeserving people
Policy arg against--allows a lot of breaching activity by ? to go undeterred
No
Avoidable Modified Jur
consequences doctrine No
If ? was simply negligent, and ? was grossly negligent, can still find the ?
If ? 's unreasonable negligent for claim purposes
actions after injury
caused further harm, ? is Modern Jur
not liable for the Discarded the contributory negligence rule entirely
? can access a
additional harm
comparative negligence
claim defense (modern)
Split re refusal of medical Pure CN jur -- ? 's fault is held against ? for calculating damages, but does not
treatment for religious Split in Jur
eliminate the claim entirely
reasons Modified CN jur -- if ? is more at fault than the ?, claim is barred altogether

Aggregating Claims Against Multiple ?s

Pure CN -- as long as aggregate liability of ?s > ? 's claim, proportional payout
Defenses for Med Mal Modified CN -- each ? is compared to ? 's contributory neg, and
Fritts v. McKinne if each ?'s neg < ? 's neg, the ? would receive nothing
Majority rule -- what the ? did that got
them injured has no bearing on the Insolvent ? (D)
med mal suit (cannot be used as an Joint and several liability is applied and loss is reallocated among all parties,
affirmative defense) including the ? (A), based on their respective fault
A = 40, B = 30, C = 10, D = 20
HOWEVER, contributory negligence B = $30,000 + $(3/8)*20,000
can be used to mitigate damages C = $10,000 + $(1/8)*20,000
(e.g. effect on life expectancy) Some states would follow joint and several liability but reallocate the expenses
ONLY to the ?s, not the ?
EXCEPTION--if ? 's comparative fault B = $30,000 + $(3/4)*20,000
materially alters treatment (e.g. C = $10,000 + $(1/4)*20,000
withholding or falsifying med info, Pure several liability--? simply cannot collect from D
failing to take medication, failing to
get medical attention, etc.), ? can use ? chooses one ? to foot the costs
this to escape liability entirely 1. ? is allowed to recover all damages against any one ?
2. Other jur -- only impose joint and several liability if ? is > 50% at fault, and only
for economic damages

Gross negligence or recklessness may never be disclaimed by agreement

Did the ? assume risk of Did ? assume risk for
between the parties, because it is license for ? to engage in morally egregious
injury through an Yes gross negligence or Yes
behavior simply because the ? s consented to that behavior. Especially pernicious
express agreement? recklessness?
for consumer/working transactions because of inequity in bargaining power.
No No

Assumption of risk (AR) Does the assumption of Tunkl factors for whether exculpatory agreements violate public policy
by ? for injury through risk violate public policy Hanks v. Powder Ridge Restaurant Corp
? 's conduct? concerns? 1. Business of a type generally thought suitable for public regulation
2. Party seeking exculpation performs a service of great importance to the public,
and is often a matter of practical necessity for some members of the public
3. Willing to perform this service for any member of the public who seeks it, or at
least those within certain established standards
4. Due to essential nature of the service, in the economic setting of the
Primary AR Secondary AR transaction, party invoking exculpation posses a decisive advantage of
1. ? knew about the risk Same reqs as primary AR, bargaining strength against any member of the public who seeks her services
2. ? voluntarily confronted it but gauges ? 's confrontation 5. Exercising superior bargaining power, the party confronts public with a
of risk versus that of a standardized adhesion contract of exculpation, and makes no provision where a
If met, can completely remove reasonable person--protects purchaser may pay additional fees to protect against negligence
?'s liability for injury ? against AR liability up to the 6. Result of transaction, person or property of the purchaser is placed under
point they were doing what a control of the seller, subject to the risk of carelessness by the seller or his agents
reasonable person would do
in their shoes ***An exculpatory agreement may affect public interest adversely even if
not all of the Tunkl factors are satisfied***

There is a public policy outer limit of risk that can be assumed. No Yes
Where the dangers inherent in the activity are obscure or
unobserved, or so serious as to justify belief that precautions of
some kind must have been taken to avert the harmful NO ASSUMPTION OF
ASSUMPTION OF RISK
consequences, there is likely no implied assumption of risk. RISK
Additionally, where there are a significant number of serious injuries
there may likely be no implied assumption of risk.
 Proximate Causation
10
Is the type of harm one Given the type of injury
Is there a serious
that could reasonable be is foreseeable, is the
Yes No intervening cause that
foreseen from ?'s extent of harm to ?
could limit ?'s liability?
conduct? unforeseeable?
No

No Yes Yes

Under Polemis "direct Apply "Eggshell ? Rule"

? is held liable for injuries Majority -- generally, ?'s proximate causation is negated when there
cause" test, ? is liable even
sustained that extend beyond the is a serious intervening cause. Garden variety negligence such as
if type of harm is
bounds that would reasonably be bringing an owl usually insufficient; must be a dramatic set of events
unforeseeable. However,
most modern courts use anticipated. Also applies in
"reverse eggshell" cases where the E.g. Firefighter's actions in McLaughlin v. Mine Safety Appliances
a standard similar to that in may be enough (knew insulation needed to take place, remained
? is more capable (i.e. Usher),
Wagon Mound, under silent, and discarded the instructions so that the other firefighters
holding ? liable for lost revenues
which ? is only liable for didn't have an opportunity to read the instructions)
from missed concerts, etc.
injuries the ? could
anticipate at the time of Minority -- if the serious intervening cause was reasonably
Policy--go with "eggshell" because
the tortious action. foreseeable to the original ?, then they should be held liable. In
it is too messy to try and parse
what are the appropriate damages McLaughlin, since the ? could have put instructions on the blocks
Policy--no liability because themselves to make sure the end user would have the instructions,
for a 'normal' person and an
if ? is held liable for a type then the ? should be liable for failing to take precautions.
'eggshell' person, so it is easier to
of harm that is so far
simply grant all damages. Also
beyond their ability to Policy args for--sometimes, moral actions of agent causing the
furthers deterrence goals, and if we
reasonably foresee, it intervening cause are worse than the original ?. Results in
leave the injuries unpoliced, we risk
would be akin to holding ? over-deterrence if original ? could not foresee; under-deterrence if
under-deterring tortfeasors.
strictly liable for their intervening cause does not get punished.
negligence
Policy args against--counter to compensation or loss spreading,
because the serious intervenor may be insolvent and unable to pay
(whereas the original ? might)

Is ? being sued for harm

to a third party?

Yes Secondary harm rule

No Where an original wrongdoer
injures another through negligence,
and subsequent medical treatment
Is ? an unforeseeable victim outside the further aggravates the injury, the
No PROXIMATE CAUSE
orbit of risk creation? original wrongdoer can be held
Palsgraf (many jurisdictions) accountable for both the original
AND subsequent aggravated injury
To determine whether ? is in the "orbit of
risk creation" consider:
(1) substantial factor (i.e. direct
connection) of the injury and ?'s negligent
NO PROXIMATE
actions; (2) intervening causes; Yes
(3) remoteness in time and space; and
CAUSE Danger invites rescue rule
(4) foreseeability/natural result. Tort law policy goal of wanting
rescues to occur, even if they are
Policy--primary rationale here is in relation not legally compelled. Therefore,
of wrongs -- only parties that are the original tortfeasor is liable for
foreseeably interacting with each other injuries caused to a good
create accountability (i.e. a party only owes Samaritan acting to rescue the
a duty to someone that they have injured party.
foreseeably done wrong to, not an
unforeseeable third party or the world at However, for example, a family
large). member's decision to donate a
kidney is too far removed in time
and space (not part of the same
transaction) to satisfy the rescue
rule. Risk of any injuries related to
the kidney donation are assumed
by the injured party.
 Strict Liability
1
Elements of the claim:
1. Is the activity abnormally What is an " abnormally dangerous" (AD) activity?
dangerous? 2nd RS Torts § 519 factors--majority test
2. Did the ? engage in the 1. Existence of a high degree of risk of some harm to the person, land or chattels of others
abnormally dangerous activity? 2. Likelihood that the harm that results from it will be great
3. Causation 3. Inability to eliminate the risk by the exercise of reasonable care
4. Damages 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
Whether an activity is AD is a 6. Extent to which its value to the community is outweighed by its dangerous attributes
matter of law decided by the judge

Theories of strict liability

1. Moral notion -- makes sense to impose liability on ? even if they were acting carefully, because in
engaging in activity, they are engaged in non-reciprocal harm. ? is putting out way more harm to the
community than the surrounding actors agreed to take on. Put liability on party that took on the harm.
2. Economic:
A. Accountability/liability should be with the cheapest cost avoider, because it incentivizes taking
precautionary measures to reduce torts
B. Imposing strict liability now means that there is a deterrence message sent to ?
C. Activity level switching -- may cause ? to think about whether they should engage in the activity at
all or at least where or how they are doing it
D. May encourage ?s who have to pay for accident after accident, since they cannot escape liability,
to do long-term research about the activity to reduce risk, which would not otherwise take place
E. Blameless victims -- strict liability helps them to get compensation
F. Loss spreading -- ? is usually in a better position to take on the costs and distribute them by raising
costs, etc.
 3
Statutory Negligence Claims

Is there a statutory violation? No Is there a common law duty?

Yes Yes No
ORDINARY
NEGLIGENCE
Follow ANALYSIS
Is there an express
statutory
private right of action Yes
prescription
in the statute?
for relief
Is there an implied private right of
action in the statute that establishes duty?
No Yes Uhr v. East Greenbrush
1. ? is one of the people for whose
particular benefit the statute was enacted
Is there a potential negligence per se claim 2. Recognition of private right of action
establishing duty and breach? promotes legislative purpose
Burden of proof is on the ? 3. Creation of such a right is consistent
1. Actor violates a statute designed to protet No with legislative scheme (e.g. if statute
against the type of accident actor caused AND defines enforcement mechanism, finding a
2. accident victim is within the class of persons private right of action might be
the statute is designed to protect inconsistent w/ statute)

Yes No

Is the negligence per se claim excused? NO CAUSE

Martin v. Herzog OF ACTION
Tedla v. Ellman AVAILABLE
1. Impossibility of compliance
2. Compliance --> graver safety concerns
3. Exercises reasonable care in attempting to
comply with the statute
4. Has neither actual nor constructive
knowledge of factual circumstances
Yes
rendering the statute applicable
5. Violation is due to confusing way statutory
requirements are presented
6.Violation is reasonable in light of actor's
childhood, physical disability or incapacity

Policy arg: not allowing for excuses makes Good Samaritan Laws
negligence per se a strict liability offense, Per "commenced rescue" there is a duty,
which is excessively punitive however, GS laws usually make it lighter.
Split in Jur
Some cover any civilian who tries to help;
some specific to bystander physician
No
Even if no statute, can avoid liability by
showing exercise of ordinary care and
NEGLIGENCE PER SE didn't worsen the ? 's situation
Split in Jur
Majority--vio = prima facie neg.
Burden shifts to ? to excuse
Minority--vio = only evidence of neg
to be considered alongside other
evidence to determine ?'s liability
 5
Nonfeasance -- Exceptions to " No Duty"

Social Hosts
Nonfeasance: party hasn't created Intoxication of minors--usually statutory
the risk and has "no duty to 1. Does the statute protect minors or 3rd parties?
rescue" BUT some exceptions 2. Can ONLY bring suit if protected party
Pre-employment physicals
Typically less successful against individuals,
Majority--doctor has no duty to better against commercial vendors w/ profit
report signs of trouble to motive b/c repeated incidence --> greater
examinee directly accountability. HOWEVER, have found liability in
Special relationship b/w ? and ??
marriages, etc. where highly foreseeable.
Affirmative duty to act where: Minority--doctor has duty to
1. ? realizes or should realize action on their part report signs of trouble to NORTH CAROLINA--no alcohol to minors, w/
is necessary for ?'s aid or protection AND examinee directly rather than to minors protected class (not 3rd parties). Therefore
2. Special relationship exists the employer 3rd parties can't argue neg per se/private right of
- Common carriers (i.e. captain of boat or plane
action but can bring common law neg suit. Under
used in commercial transactions)
common law, social hosts in NC have a duty to
- Innkeepers
3rd parties if the host knew or should have
- Possessors of land holding open to the public
known that alcohol would be provided at a
- ? has custody of ? under circumstances where
party where guests would soon thereafter
? is deprived of normal opportunities of
drive an automobile.
self-protection. Factors:
1. Particularly vulnerable
Could reasonably extend to alt intoxicating subst
2. Lacks ability to protect herself
3. ? has considerable power over ? 's welfare
4. ? receives $ gain from custody of ?
5. ? expects protection from ?

Negligent Entrustment (NE)

1. Party owns the instrumentality of harm (IOH)
Social undertaking? 2. Party entrusted IOH to baddie knowing risk due
Farwell v. Keaton to baddie's youth, incompetence, etc.
Duty to render assistance if
creation of peril for companions on Split in jurisdictions
social venture where: DUTY Traditional--only owner of IOH is liable by NE
1. Expectation of quid pro quo Modern--broader liability for NE including parties
("got your back if you got mine") that helped to put IOH in baddie's hands
2. Situation is rife with danger 1. Maj: funding of IOH not sufficient to show
degree of control warranting liability
Controversial standard and not 2. Min: $ for IOH enough (Vince v. Wilson)
widely implemented

Commenced Rescue Doctrine Tarasoff Liability

Did ? voluntarily act in a way Duty for ? to protect 3rd party ? from actions by neg tortfeasor
designed to reduce risk to others? Requirements
1. Discuss why rule even applies first--find special relationship (e.g.
Split in Jur therapist/patient) b/w ?/tortfeasor, ?/? , tortfeasor/?
Majority--? has duty if she increass 2. Apply Tarasoff Factors:
risk of harm or if others rely on the - Foreseeability of danger to ?
?'s commencing rescue - victim must be reasonably identifiable (Thompson v.
Minority--? has no duty as long as County of Alabama -- gen threat to community not enough)
she doesn't leave ? worse off than - BUT duty without reasonably identifiable victim can be
when ? found ? found where (Hardee v. Bio-Med Appl. of SC, Inc).:
1. Duty of protection easily discharged without much
burden to the ? AND
2. Highly foreseeable risk to others
- Closeness of connection between ?'s conduct and injury suffered
Induced Reliance - Policy of preventing future harm
No duty as long as ? did not - Extent of burden to ? and community of imposing duty (e.g. does
actually create risk of harm (e.g. imposition of duty unduly burden patient-therapist confidentiality?)
drug manufacturer that has - Availability, cost, and prevalence of insurance for risk involved
disruption is not liable even if
patients rely on the drug) NORTH CAROLINA -- would not recognize therapist's duty to warn
given medical confidentiality However, might recognize more limited
duty to protect (though not full-fledged duty to disclose)
 Duty--Emotional Harms 4

Did ? suffer physical injury Physical suffering is not a

due to emotional distress? ? may be liable probable or natural
Yes Trad.
- ulcers, cardiac issues, Split in Jur consequence of fright,
NO LIABILITY
nausea/anxiety assuming a person of
ordinary physical and
mental vigor
No Modern
No

Falzone v. Busch
? may be liable 2A. Did ? fear immediate
No Two-element test
" zone of danger" test personal injury?
1. Substantial bodily 2B. Was the fear
Yes - requires apprehension of Yes
injury or sickness in ? reasonable?
the injury by ? before it is
manifesting from ? 's
going to happen
emotional distress?

Fear of " immediate risk No

Yes
of physical harm" to ? ?
(presumptively reasonable
fear, no need to prove) Was it reasonably foreseeable that ?'s actions would cause
emotional harm to ? ?
Narrow application--examples:
Yes
- Sending ? leg of deceased instead of personal artifacts Yes LIABILITY
(Gammon v. Osteopathic Hospital of Maine)
- Open cask funeral with mutilated corpose
? was in "zone of danger" - Negligently sent telegram falsely stating death of loved one
so ? is liable
Yes
Policy arg: No
Broadens the liability
compared to modern rule Split in Jur
because ? doesn't have to 1. Some allow ? to arrive
show reasonable fear if she No potential for personal injury, but is there bystander liability? at the scene shortly after
is in the "zone of danger." Four-Factor Test from Portee v. Jaffee the accident
Liability is still kept 1. Death or serious physical injury of another caused by ?'s negligence 2. Some require RPP
somewhat narrow because 2. Marital or intimate familial relationship between ? and injured person standard for emotional
there is a smaller spatial 3. Observation of death or injury at the scene of the accident distress from seeing the
window for liability in the 4. Resulting severe emotional distress in ? injury rather than subjective
"zone of danger" (since ? person standard
must be physically present 3. NY applies "zone of
AND in the path of danger) danger" to bystanders (i.e.
No
compared to reasonable they must have been in the
fear of immediate personal probable path of injury to
injury. collect emotional harms)
Was there long-term disruption of a relationship between close family
members due to ?'s negligence?
"Zonf of danger" requires
that there have been an
actual risk of harm. E.g.
HIV needles--"zone of
danger" means needles Yes No
were actually infected

? may be liable
Split in Jur NO LIABILITY
1. Usually requires spouse-spouse relationship
2. Usually requires life-altering disability or death
3. Some Jur--allow parent/child relationship
4. Some Jur--only allow child's loss of parent, but not vice versa
 6
Premises Liability

Explicit or implied
Did the injury occur Did injury occur on
Yes No permission to be on
on the premises? business premises?
the land?

No Yes
No
No Yes

Economic gain or
Was ? a child AND
Did ? create or maintain Was injury due to invitation to public?
was injury due to an
dangerous artificial criminal act by a AC on the land?
condition (AC)? 3rd party? No Yes
Yes No
NO
Yes Yes LICENSEE INVITEE DUTY

§ 364 - possible liability for physical Split in Jur

harm caused by dangerous AC on the Attractive Nuisance Doctrine
Posecai v. Wal-Mart PS is liable for physical harm to trespassing
land, where risk is highly foreseeable 1. Totality of circumstances (majority)
and unreasonable given ONE of: children caused by AC on the land where:
a. Nature, condition, and location of land
b. Facts bearing on foreseeability 1. PS knows or should know children are likely
1. possessor (PS) created the condition c. Level of crime in surrounding area
2. 3rd party created WITH PS consent to trespass where the condition exists AND
d. Time of day/lighting 2. PS knows or has reason to know and
while PS owned the land ***Lack of prior incidents doesn't preclude
3. 3rd party created WITHOUT PS realizes or shouldr realize AC involves
liability if highly foreseeable*** unreasonable risk of death or srs bodily harm
consent, but PS didn't reake reasonable 2. Specific harm - business owner (BO) only
care after finding out 3. Children, because of their youth, do not
has duty when she has actual knowledge of a discover AC or realize its risk
specific, imminent harm 4. Utility to PS of AC and burden of removing
3. Prior similar incidents - BO has duty for AC is small vs risk of harm to children
highly foreseeable dangers est by prior similar 5. PS fails to exercise reasonable care to
incidents on premises (i.e. constructive notice) eliminate danger or otherwise protect children
4. Balancing test (CA & TN) - foreseeability +
extent of harm vs. burden of imposing duty to ***AC doesn't have to "entice" chidlren, just
protect against criminal acts of 3rd persons reasonably foreseeable risk of harm from AC***

Common--swimming pools, trampolines,

drainage pipes

Frameworks for evaluating extent of duty

in premises liability cases
Majority Rule
Landowner has special duties by class Modern (not majority) Rule Restatement § 52 Approach
Collapse distinction b/w invitee and licensee Treats all classes the same, including
Invitee = duty for ordinary reasonable care Heins v. Webster County non-flagrant trespassers
where PS knows or has reason to suspect
danger the invitee would not reasonably expect Duty of ordinary reasonable care for all Flagrant trespassers = not necessarily
people lawfully on PS's land (not trespassers) repetitive trespass, but specific type (e.g.
Licensee = more limited duty, only for dangers committing trespassers committing criminal
More active jury vs trad licensee, b/c opens offenses like burglary) and are treated
of which the landowner is actually aware
issues of whether PS should have known, in differently
Trespasser = very limited duty not to willfully addition whether they actually knew of risks
or wantonly harm the trespasser Not yet widely adopted, more of an
Factors for evaluating reasonable care: advocated position
1. Foreseeability of harm
2. Purpose for entrant entering the premises
3. Time, manner, and circumstances of entry
NORTH CAROLINA RULE 4. Actual or expected use of premises
Ruled consistent with modern trend of 5. Reasonableness of inspection/repair/warning
collapsing invitee/licensee distinction in Nelson 6. Opportunity and ease of repair or correction
v. Freeland (1998). or giving of warning
7. Burden on land occupirer and/or community
Status does still matter because much lower in providing adequate protection
duty for trespassers in NC
 Respondeat Superior 7

Employer OR
Employer independent Ind. Contractor
contractor?

Usually NO vicarious liability EXCEPT where

Claim for personal contractor is for highly dangerous activtiies.
injury that was due
No
to fellow worker's This is because control exerted by employer
negligence? over conditions/methods of working in an
employer-employee context give rise to
Yes vicarious liability. This extent of control is
almost never present with ind. contractors.

Fellow Servant Doctrine Vicarious liability can be used to make Non-living ? s

Employer is not vicariously liable employer a co-?, NOT to substitute for the Survival statute allows claims to
for injuries caused to a worker employee. ? can collect from BOTH, but be brought on behalf of
by a fellow worker's negligence typically the employer becomes focus of deceased by executor of estate
rather than employer's failure to litigation because of "deeper pockets"
exercise ordinary care Wrongful death statute allows
Christensen v. Swanson heirs of victim to bring suit for
Policy: est. in 1800s to allow Requirements: their own damages from the
incipient industries to expand 1. Employee's conduct must be of the general death of a loved one
without worrying about kind the employee is hired to perform (i.e.
extensive settlement of personal within scope of employment) Both can be brought
injury suits 2. Employee's conduct must occur substantially simultaneously
within the hours and ordinary spatial
Unclear how widely boundaries of the employment
implemented 3. Employee's conduct must be motivated, at
least in part, by serving the employer's interest

Policy Considerations for having Vicarious

Liability for Employers
1. Employers (ERs) can better regulate
employees' (EEs') conduct
2. ERs can vet EEs to hire responsible EEs
3. Incentivizes ERs to fire EEs to curate a
workforce less likely to commit torts
4. Deterrence burden gets shifted up to ER as
well, which is more effective than just EE
5. Fairness--since ERs make more when torts
don't happen, they should be held liable b/c the
costs are offset by savings in absence of torts
6. Loss spreading--employer can spread cost
by raising prices, whereas individual would "go
under" trying to shoulder the burden
 Medical Negligence: Informed Consent 8
Physician must disclose the following:
(1) proposed treatment, (2) benefits of the proposed treatment
(3) material risks of proposed treatment, (4) alternatives to the physician's recommendation
Policy args:
1. Don't want paternalistic decision-making from physicians
2. Verbalizing options and explaining up-front promotes better medical decision-making
Duty
Reasonable Patient Jurisdiction Reasonable Physician Jurisdiction
1. Whether a reasonable patient would have considered the risk 1. Whether a physician would customarily disclose the risk
disclosed material (regardless of physician custom) (regardless of whether patient would consider it material)
2. Requires disclosure of "medically viable" alts (higher std) 2. Requires disclosure of "medically reasonable" alts (lower std)
3. Don't need expert testimony if materiality to patient is dispositive 3. Requires expert testimony to establish custom
4. More likely for patient to win in this jurisdiction 4. More likely for physician to win in this jurisdiction

Breach Breach = not providing the required information

Patient must demonstrate that: (1) failure to disclose led them to choose differently than they would have if they had received IC, and (2)
Actual reasonable person in the patient's situation would also have chosen differently. Requires both subjective and objective components
Causation Be careful to distinguish whether the injury is a present harm or future harm. Most jurisdictions will only allow for adjudication of present
harms, excepting the 2-Disease Rule (see broad neg outline). Remember loss-of-chance is a PRESENT harm and satisfies actual cause.

Proximate
Usually not an issue, but watch for type of harm/extent of harm problems
Causation

Only responsible for harms distinct from that of the initial injury, or of the likely outcome of the initial injury treated under the treatment
Damages
regime ? would have elected. Can still be sued for pain of the bad procedure, if applicable.

NORTH CAROLINA INFORMED CONSENT STANDARD

No informed consent issue in NC if:
1. Reasonable physician in similar locality would have acted similarly AND
2. Physician discloses most usual and frequent risks a patient would want to hear (i.e. reasonable patient "light" std) OR
3. RPP in similar circumstances would have undergone the same treatment even if they had been properly informed, as in 1 and 2

Either 1&2 TOGETHER or 3 by ITSELF is sufficient to defend against IC suits

Informed Consent Exceptions

1. Emergency--where patient is unconscious/lacks decisional capacity AND a reasonable person in patient's position would want care, no
informed consent issues arise from delivering care
2. Therapeutic--where physician believes providing information would be significantly detrimental and hamper patient's recovery, the
physician can choose not to provide the information (unlikely today)
3. Willful ignorance--where patient demands not to receive information about the risks or alternatives, the physician may be OK but
ONLY if she procures signed docs showing this was the patient's wish
 Medical Negligence: Malpractice 9
? is compared to " physicians of the same field, experience, and training." No excuse is made if the ? is an inferior doctor compared to
average b/c physicians are generally responsible for having superior skills, so the normal practice of first determining whether the person
has requisite skills is not required--physicians are presumed to be competent per their training.

Standard of care = custom

(1) established by expert witnesses, (2) most jur are flexible if multiple, reasonable "customary" approaches exist
Split in Jurisdictions
Sheeley v. Memorial Hospital
Duty National Approach
Same or Similar Locality
Trending, but not yet majority
Same Locality Rule Most common (NC uses)
Least common
Standardization of medical education
Bring in expert witnesses from areas that
means physicians should be held to a
Physician of same type of practice in the might be far away but similar enough to the
national standard of care. Test for
same location of practice area where the cause of action occurred
methods (don't penalize for lack of $ for
(prevents "conspiracy of silence")
sophisticated equipment).
Limits on custom as standard of care
Majority--custom defines standard of care no matter what
Minority--custom defines std of care unless risks seem so unreasonable that there must be judicial balancing to preserve public interest
even if it goes against medical custom (e.g. glaucoma test in Helling v. Carey)

Breach Breach = established by expert. Presumably the initial act causing injury.
REMEMBER--RIL can be used to ease burden of showing breach for obvious things (e.g. operated on wrong limb)

Actual
Would the the injury have occurred but-for the initial malpractice?
Causation

Proximate
Generally not an issue, but check if type of harm/extent of harm issues
Causation

Only responsible for damages beyond the initial injury--if ? would have experienced a physical condition anyways, the doctor is not liable
Damages
for that injury. Doctor is also not liable for future chance of injury, but consider loss of chance/two-disease rule issues, if applicable.
 Damages
11
For typical physical injuries (broken bones, etc.), goal is to put the injured ? in the same position that they would have been if the accident had not
occurred (make ? whole). Single-judgment rule, so you only get one shot to litigate the claim. There will be some speculation on the damages because they
will be made, in many cases, in advance of the medical treatment.

Economic losses Pain and suffering (non-economic losses)

1. Medical expenses Punitive damages
Losses that are thought to be real, but are Sends symbolic message to ? that their
Traditional (collateral source rule) -- did not more intangible than economic losses
count against the ? the fact that they may behavior was so egregious that they are
have insurance that can cover some of these being punished monetarily on top of
Pain = physical pain experienced in the injury compensatory damages (economic + pain
costs. Also, contractually often agreed that Suffering = related anguish of having to go
the insurance company will not pay first, must & suffering losses)
through the accident and having to deal with
go after the tortfeasor before going to the ISP. the aftermath
2. Lost wages 1. Rarely awarded, not just given by default
3. Rehab a house to accommodate disability for run-of-the-mill cases
Suffering can overlap with some of the 2. Usually requires more than gross
4. Some jur -- discount this by the prevailing emotional harm damages. Where there is
interest rate. Compensating the ? for lost negligence
underlying physical harm, easy to get 3. Some jur -- require $ go not only to the ?
wages now can provide a present amount of parasitic pain and suffering damages
money the ? can invest that they would not but also towards the general compensation
have access to if they had been working over NORTH CAROLINA -- monetary limit on how
x years, so subtract the amount projected to much non-economic loss a ? can recover
be earned in interest (i.e. in medical malpractice), about $500k for
5. Structured settlement -- large payouts on pain and suffering on top of economic loss.
an installment basis Even in NC and similar states, no one is
saying these are not real or
compensatory.
 Res Ipsa Loquitor (RIL)
12

Preliminary note:
RIL is a burden-shifting
arg NOT a claim

Was the instrumentality of

harm causing the injury
No RIL DOESN'T APPLY
under the exclusive
control of the ??

Yes

Would the accident have

occurred in the ordinary
Yes Special Case: Med Surgery Team
course of events without
Ybarra v. Spangard
?'s negligence?
Patient must be unconscious or extraordinarily
helpless--expands liability where multiple ?s
No negligence is involved. Requires:
1. Accident would not have occurred in ordinary
course of events without neg of at least 1 ?
Does ? have severe 2. Right of control shared among all ?s
information
No
problems/disadvantages (i.e. Does NOT require that neg be traced to one ?.
unconscious med patient)? Policy arg: because of incentive to create
"conspiracy of silence" between med team b/c
Yes even if others are not neg, they may fear
pointing out the liable party b/c of
"whistleblower" backlash on their career

Some Jur: also ask was ?

Yes
contributorily negligent?

No

Shifts both burden of proof AND

RIL APPLIES Strong burden of persuasion to ?
Split in Jur RIL ? can get up, claim RIL, and will
win the case if ? does not respond

Weak RIL

Shifts ONLY burden of proof to ?

? can get up, claim RIL, and that is Burden of proof = ? must put some evidence
sufficient to defeat summary on record to show ? acted unreasonably.
judgment. However, ? must Otherwise, ? can get up, say nothing, and win.
provide additional evidence to
overcome burden of persuasion Burden of persuasion = jury weighs evidence
to see which is more compelling. If they find
equal, ? loses because they had burdent to
prove ?'s neg was more likely than not true
 13
Governmental Immunities

Federal Tort Claims Act

1. US is liable "in the same manner and to the same
FIRST distinguish the unit and
extent" as private actor but NO punitive damages or
level of government (state v
pre-judgment interest (§ 2674)
federal, which agency, city or Federal ONLY
2. No jury for claims vs US (avoid risk of bias) (§ 2402)
municipality) and apply the
3. If negligent action by gov't EE, only remedy is vs US
appropriate law.
(NO civil suit vs EE).

ALL

Does the common law " public

Does claim arise out of
duty" doctrine apply ? Feres Doctrine -- § 2680 J
Yes combatant activities during
Feres v. United States
time of war?
Bars suits broadly for "all injuries
Yes that arise out of or in the course
of military service"
No
Policy arg: voluntary basis, so
" Public Duty" Doctrine (PDD)
soldiers know they have health
Where a duty is owed to everyone, it is inconsistent to
and disability plans and that's it Discretionary Functions
hold for an individual duty to a citizen
§ 2680 A
NORTH CAROLINA Immunity to claim:
Riss v. City of New York
4th Circuit, 1998 -- isuit for 1. based on an act or omission
PDD only applies where public good does not have a
noculations causing birth defects of an EE of the gov't, exercising
private counterpart (e.g. police BUT NOT mass transit,
in soldiers' children was barred due care, in the execution of a
highways, or public hospitals)
by the Feres doctrine statute or reg, whether or not
such statute or reg is valid OR
Policy arg--(1) presence of other private actors creates a
2. acting or failing to act in
workable standard of negligence, (2) fair competition b/c
discretion to fulfill a duty,
otherwise public services would always be cheaper than
whether or not the discretion
private b/c only private exposed to liability, (3) resource
involved is abused
allocation issue for public goods, and (4) ordinary legal
channels for resolving resource allocation issues (voting)

Test

Is there a special Was there a "specific Does an exemption to

relationship between prescription" from the "discretionary functions"
the gov't and the ? ? statute/reg for EE to follow? immunity apply?

Yes
Yes No

" Special relationship" exception to PDD

Discretionary function Discretionary function
Requirements (Cuffy v. City of NY) -- ALL MUST BE MET
exemption not applicable, exemption might be
1. Assumption by the municipality, through promises or action,
of an affirmative duty to act on behalf of the injured party AND HOWEVER, did EE applicable--was
exercise reasonable care? discretionary act " fraught
2. Knowledge on behalf of the municipality's agents that
inaction could result in harm AND with" economic social or
3. Some form of direct contact between the municipality's Yes No political implications?
agents and the injured party AND Cope v. Scott
4. Party's justifiable reliance on municipality's undertaking

Sorichetti v. City of NY Allows Yes No

Immune
Protective order against father, assurance from officer, and suit
history of father's violent behavior distinguished from Riss,
where the ? was only told polic would come "in the morning"
Allows
Immune
De Long v. County of Erie suit
911 operator's assurance that "help was being sent right
away" was held to be an assumption of duty

Merced v. City of NY
911 call where caller wasn't the victim didn't create duty
because it was not a direct contact between injured party and
police, and therefore there also cannot be justifiable reliance.
 Products Liability 15
Restatement Approaches to Products Liability
§ 402(a) -- one who sells a product with a defect is liable, and this liability applies even if the seller has exercised all possible care.
Consumer can bring suit against any party upstream even if they do not have privity with those parties.

Was ? in the " business of selling or distributing

3rd RS Approach NO PRODUCTS LIABILITY
products" ?
One engaged in the
refers to parties that repetitively engage in the creation No
business of selling or
and selling of product, because that is where the
distributing products is Elements of Products Liability Claim
business can negotiate, indemnify, etc. Occasionally
liable to harm for defects Yes
selling cookies, as long as it is not a regular activity or (1) Did ?, a "seller" supply the product?
in manufacturing, design, (2) Was the product "defective"?
done for livelihood, does not satisfy "business of selling"
or warning (3) Causation & (4) Damages
and would not be susceptible to products liability.

Defect in Manufacturing What type of products

100% liability for harms related to manufacturing process issues liability claim applies?

Defect in Warning Defect in Design

Hood v. Ryobi--warnings should be "clear and simple," placed in an accessible Is this a "consumer expectations" or "risk utility" jurisdiction?
location the ordinary consumer would foreseeably see, and does not require Risk utility is the 3rd RS approach--USE THIS ONE FOR EXAM
encyclopedic warnings covering all potentialities (an inundation that may
actually prove counter-productive) Consumer Expectations
Product's design produces a risk in its use due to its operation in a way that
could not be expected by the reasonable user
Analysis of Warning Adequacy 1. Product failed to perform as safely as an ordinary consumer would expect
1. Adequately indicates the scope of danger 2. Defect existed when the product left the manufacturer's possession
2. Reasonably communicates the extent or seriousness of the harm that could 3. Defect was a 'legal cause' of plaintiff's 'enhanced injury' AND
result from misuse of the product 4. Product was used in a reasonably foreseeable manner
3. Physical aspects of the warning must be adequate to alert a reasonably
prudent person to the danger Risk Utility--Majority
Risk Utility Test
4. Simple directive warning may be inadequate when it fails to indicate the Higher threshold compared to CE, must show that the product's design was
consequences that might result from failure to follow it one where jury would find the foreseeable risks of danger inherent in the
-- For example, cutting injury might be evident from a saw since design outweigh the benefits of the design.
it cuts, so you wouldn't need a warning for that. However, if A. Not quite like strict liability because there is comparative evaluation
there is hearing damage that can occur from use of the saw, B. Reminiscent of the Learned Hand formula
a simple directive might be required. Could also go to the scope of the danger.
5. Means to convey the warning must be adequate HOWEVER, consumer expectations are still important in determining what the
foreseeable risks are in designing the product, so still include that as a factor in
risk utility test as well. One way to consider risk is to think about how the
Heeding presumption -- tool for ? to lower threshold of analysis
ordinary consumer thinks about and interfaces with the product, which affects
Instructs the jury to assume the ? would have read the instructions had the ?
their calculation of risk. Risk utility often requires expert testimony
put out adequate instructions, including not only being "clear and simple,"
alerting people to arcane risks that they would not ordinarily find, and were
If there is a reasonable alternative design (RAD) that is cheaper or safer but
placed in a way that is easy to find
was not used, that cuts in favor of imposing liability on the business
To overcome presumption, must show ? would still not have read instructions, Reasonable Alternative Design (RAD) Analysis
which is a fairly high burden. This gives the ? a significant advantage. Policy ? doesn't need to prove their design was the most safe, only that the benefits
rationale -- want the ? to be protected, so you don't want to let up pressure on outweighed the risks for the design chosen (Soule v. General Motors)
the manufacturer to provide adequate warning to reduce overall torts.
First, must be within the same product type (i.e. van to van, not sedan to van)
Duty for Misuse and relate to the same product feature (i.e. headlight)
Manufacturer has duty to warn against foreseeable misuses of the product
Second, examine these factors from Soule: (1) impact on production costs;
Duty for Newly Discovered Dangers (2) product longevity; (3) maintenance; (4) repair and aesthetics; (5) range of
1. Common law requires at least a warning for a new danger consumer choice among products (more factors on pg 598-599)
2. Higher burden would be to issue a recall (invoked by regulatory agency)
3. Generally only requires reasonable efforts to the customer base/retailers Third, RAD is a theoretical design chosen, so it doesn't necessarily have to
through an online post or other form of notice follow what competitors are doing. We want these theoretical designs to count
because: (1) we are looking at the design, not the way that we get there
(no-one doing it doesn't change the fact that a better design exists); (2) want to
Products Liability Defenses--General have companies constantly re-evaluating their design (though burden has to
1. Missing causation--manufacturer can argue there was no cause because be something ? can show is both pragmatically feasible and can be done)
they could not have foreseen that ? would use their product in an atypical way
" Irreducibly Unsafe" Exception
After all elements are met, ? can argue:
If there is no RAD, usually there is no defect in design unless the product
1. Comparative fault feature is irreducibly unsafe and of little to no utility.
2. Assumption of risk

" Open and Obvious Danger" Partial Defense

Disclaimers for Products Liability Most courts say that this is not a complete defense to a design defect claim,
Majority: will not enforce contractual disclaimer terms to defeat ? 's ability to because if the consumers know about this, then the foreseeability is pretty
bring a products liability claim because we want there to be ongoing strong high. While it is relevant, it is not conclusive. Sometimes the "open and
deterrence for products manufacturers, and if they are able to move liability obviousness" of the product's design flaw can be used as an assumption of
towards its consumers, they could easily dodge by disclaiming risk defense against the ? .