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39 Cards in this Set
- Front
- Back
When does strict liability attach for injuries caused by domestic animals
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-- if DF has knowledge of vicious propensities: strict liability
-- (Florida) for any dog-caused injury: strict liability -- (MBE) first bite: RPP UTC standard -- (MBE) second bite et seq.: strict liability |
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In Florida, dog owners have strict liability for their dogs, except where:
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-- injured person is not lawfully on premises OR
-- DF has a "Bad Dog" sign displayed on premises -- HOWEVER: neither exception applies where injured person is < 6 yo |
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Besides domestic animals, which other animal categories involve strict liability?
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-- wild animals
-- (MBE) cattle (in Florida, must show owner negligence) -- regardless of precautions taken = strict liability |
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Cattle strays onto public road -- what is the owner's liability?
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-- MBE: strict liability, regardless of precautions taken
-- Florida: PF must show negligence (owner's precautions are relevant) |
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Ultra-hazardous activity is defined by three attributes
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-- Inherently Unsafe: activity cannot be made reasonably safe under current technology
-- Severe Risk of Harm posed by activity (when something goes wrong, it will be a catastrophe) -- Not Common: activity is uncommon in the area it is conducted (the activity is out of context) -- e.g., anything involving: explosives, highly toxic chemicals, nuclear power |
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To prepare site for new hotel on Miami Beach, company Developer explodes old hotel in preparation of site. When X twists ankle in performing pre-explosion checklist, will strict liability apply ?
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-- activity -- explosives -- is one in which cannot be made reasonably safe under current technology
-- poses a severe risk of harm (when something goes wrong, it will be a catastrophe) -- uncommon in the area it is conducted (the activity is out of context) -- HOWEVER, since strict liability is limited to harms that result from the kind of danger anticipated (injury flows from the "normally dangerous propensity"), liability likely decided under ordinary negligence |
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D's toothless pet leopard escapes from triple-padlocked cage (through undetectable fissure in lock) & wanders into adjacent park. While walking through park, PF sees the leopard, and in a panic, turns to run, slips, and breaks arm.
Is the cat owner liable to the PF? |
-- DF has absolute duty to make safe; any injury results in strict liability
-- harm results from kind of danger anticipated (injury flows from the "normally dangerous propensity") -- PF did nothing to bring about the injury |
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In storing radioactive waste, company buys the best containers built to the highest standards & sparing no expense.
Will strict liability apply to injuries that results from leeching liquid? |
-- YES: safety precautions are irrelevant
-- ultra-hazardous activity -- severe risk of harm -- not common |
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DF's dynamite truck blows tire without warning.
-- In swerving to a stop, truck hits PF. -- In swerving to a stop, truck hits PF and explodes. What is the difference? |
-- if truck explodes: strict liability because harm results from the kind of danger anticipated (injury flows from the "normally dangerous propensity")
-- if truck just hits PF (does not explode): strict liability does not apply; negligence |
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How does "Nuisance" fit in the tort spectrum?
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-- not a separate tort, rather a type of harm
-- DF conduct can be intentional, negligent or subject to liability on strict liability basis -- as a practical matter, nuisances are generally intentional interferences -- e.g., interference can be deliberate: shining lights onto neighbor's property |
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When can PF recover under "Nuisance"?
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-- PF can recover -- damages or injunctive relief -- on balancing the interests
-- if DF's activities create "substantial" and "unreasonable" interference -- with PF's use and enjoyment |
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In a tort claim where the harm is nuisance, what is "substantial interference"?
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-- offensive, inconvenient, or annoying to an average person in the community
-- NOT offensive because of PF's hypersensitivity -- NOT offensive because of PF's specialized use |
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University builds law school in residential area, getting permits for every feature, including a huge clock that chimes every hour. The chime is super annoying to one neighborhood resident.
What is the nuisance analysis? |
-- nuisance recognized as harm only if offensive, inconvenient, or annoying to an average person in the community
-- NOT offensive because of PF's hypersensitivity |
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In a tort claim where the harm is nuisance, what is "unreasonable interference"?
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-- severity of inflicted injury outweighs the utility of DF's conduct
-- every person is entitled to use own land in reasonably way, considering the neighborhood, land values, and existence of alternative courses of conduct available to the DF |
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When answering cases involving consumer products, read the question closely because...
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-- injury involving consumer goods can involve tort and contract COAs
-- therefore, READ CAREFULLY because answer will depend on the COA theory -- if Q says "PF is suing DF for negligence", then can't use the product liability (strict liability) analysis |
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When can a PF sue for Strict Liability for a Product Liability?
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-- DF is commercial supplier: routinely sells goods of the type that injured PF
-- the product is defective -- the product was defective when it left the DF's hands -- PF making a foreseeable (i.e., anticipated) use of the product |
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What is the role of DF conduct in strict liability cases?
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-- safety precautions are legally irrelevant
-- its not the DF behavior, but the condition of the product |
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Who is a "commercial supplier" (aka merchant)?
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-- retailer: a person who supplies products
-- assembler -- wholesaler -- seller of used / reconditioned products -- every merchant in the distribution chain !! |
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Who is not a "commercial supplier" ?
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a service provider (where supply of goods is incidental to the service)
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For which product defects does strict liability come into play?
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-- manufacturing defect
-- design defect |
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in strict liability analysis, what is a "manufacturing defect"?
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-- a production anomaly where the defective product differs from all others produced
-- in a way that makes it more dangerous than consumer would expect -- i.e., "one-in-a-million": the lawn mower where blade detaches & cuts you; Coke bottle with finger |
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in strict liability analysis, what is a "design defect"?
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where the product has an alternative design that:
-- is safer than the one marketed -- is cost-effective (only a few $ more) -- is practical (does not impair its utility; can still use as intended) |
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Besides the product itself, what else is "design" and can therefore be defective?
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-- warnings
-- instructions -- e.g., where product marketed to Hispanics, English-only warning may be a design defect |
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How does PF show that the product was defective when it left the DFs hands?
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-- for design defect: free pass; the defect exists always
-- for manufacturing defect: presumption that product was defective when it left DF's hands if it traveled to PF through normal channels of distribution |
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PF gets huge electrical shock when using toaster & sues toaster manufacturer.
How does PF show that the product was defective when it left the DFs hands? |
-- e.g., shipping company could have dropped toaster, retailer could have left item on loading dock where humidity caused short circuit
-- normally, PF would have to prove that product was defective when it left DF's hands -- however, in manufacturing defect cases, PF invokes presumption (BOP shifts to DF) where the product traveled to PF through normal channels of distribution |
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What is foreseeable use of consumer product?
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-- standard is ANY use that can be anticipated
-- test is NOT whether use was INTENDED -- e.g., using chair to reach book on tall shelf |
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X buys hair dryer from me on ebay (or garage sale). Hair dryer catches fire.
Can PF recover using Strict Liability? |
-- no, I'm a casual seller (don't routinely sell goods of this type)
-- a casual seller is never a merchant, therefore a casual seller can never incur strict liability |
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At restaurant, the hostess takes you to your seat. On sitting down, the chair collapses.
Is the restaurant liable based on strict liability? |
-- NO, the restaurant provides service; the chairs are incidental to the service being provided
-- the restaurant may be liable for negligence: you are invitee, the chair is a hazardous condition; if the chair was a reasonably discoverable trap, then liable for negligence |
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A theater sells rotten candy. If you chip your tooth, is the theater liable for product liability based on strict liability?
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-- theater is a commercial seller: even though not in the primary business of selling candy, it is a retail supplier of candy
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An airplane crashes, injuring PF. Is the airline liable on a strict liability basis?
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-- NO, airline providing a service; PF can use strict liability only for defective airplane part
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Lease a car from Hertz. The car has defective brakes.
Is Hertz liable on a strict liability basis? |
-- YES, commercial lessors are included in the category of "commercial suppliers" to which strict liability attaches for goods they supply
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Purchase Dell computer from Comp USA. At home, the new computer gives you a terrible electric shock & substantial medical problems.
Who is liable under strict liability theory? |
-- every merchant in the distribution chain -- CompUsa & Dell -- is strictly liable
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Cribs made with widely-spaced slats. Baby X catches head between slats & suffocates.
Is the product defective? |
-- YES, design defect
-- there is an alternative design (narrower slats): safer, cost-effective, practical (does not impair its utility) |
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A shoe manufacturer has a large boiler on its property for heating its manufacturing plant. The boiler explodes & injures the workers in a nearby sock plant.
For the DF shoe manufacturer, what is the product liability analysis? |
-- merchant of shoes, not boilers
-- therefore first requirement (DF is commercial supplier of product that injured PF) is not met |
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In product liability cases, what type of damages may PF recover?
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-- same as recoverable in negligence cases: personal injury and property damage
-- most states (e.g., Florida) deny recovery under strict liability when the sole claim is economic -- i.e., if product only damages itself, then the correct COA is breach of contract |
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For all strict liability cases, name an affirmative defense based on PF behavior?
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-- DF can use affirmative defense that PF also at fault
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In strict liability, what happens where PF partly at fault?
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-- utilize comparative negligence rules
-- e.g., in in product liability case, PF action that contributed to injury will reduce his award |
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PF injures himself using product. PF fails to read the warning on page 30 of 62-page instruction manual.
What is the strict liability analysis? What is the DFs likely affirmative defense? |
-- design defect because warning is not sufficiently prominent
-- comparative negligence: small reduction to PF's award equal to the % fault attributable to PF for failing to read the entire instruction manual |
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When will lack of warning make a product "defective"?
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-- if risk cannot be eliminated in a cost-neutral and practical way
-- and danger not apparent (e.g., knives) -- then product defective without clear, prominent, understandable warning |