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Torts Outline I. What is a tort?

When one party injures another, or violates a duty to another, the injured party can find a remedy in the law to compensate for or to redress, those injuries a. Public policy: to make the victim whole again (not necessarily punish the defendant). Tort law tends to favor victims Intentional Torts: D intentionally commits the elements which define the tort Restatement of torts definition: the D desires or is substantially certain that a result will occur a. Battery i. Element 1: Actor acts ii. Element 2: Intends to cause harmful or offensive contact (does not require an intent to harm-consequently the D can be liable for greater damages than she may have intended) 1. Intenta. It doesn't need to be a specific desire, it can be a general intent to unlawfully invade anothers physical wellbeing through a harmful or offensive contact i. Nelson v. Carroll: D did not specifically intend to shoot P but still had the general intent to commit battery so he is still liable for battery b. The actor need not INTEND that his contact be harmful or offensive as long as the contact was deliberate and harmful or offensive at law. i. Wagner v. State: The mentally disabled or insane can commit battery since there does not need to be an intent to harm, just to make the contact 1. Sovereign immunity: state is immune from all charges of negligence if there is an intentional tort. If there is no intentional tort, then there is a cause of action for negligence against the state. 2. Harmfula. Cecarelli v. Maher: clearly harmful since Ds administered painful beating to P. 3. Offensivea. Paul v. Holbrook: Offensive, not harmful b. Offensiveness i. Reasonable person standard: violating prevailing social standards of acceptable touching. ii. Context is most important: who, where and what 1. Who: co-workers 2. Where: at work 3. What: inappropriate massaging iii. Element 3: Actors act causes such contact: the Ds voluntary action must be the direct or indirect legal cause of the harmful or offensive contact. 1. Contact need not be direct contact b. Assault i. Element 1: Actor acts

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ii. Element 2: Intends to cause the apprehension of an imminent harmful or offensive contact 1. Proximity and timing are important to cause an apprehension of an imminent harmful or offensive contact a. Brooker v. Silverthorne: If I were there I would i. This implies future intent ii. Threats made over the phone are generally not imminent iii. Element 3: Actors act causes reasonable apprehension of such contact 1. Assault v. threat a. Threat: you have time to take preventative measures i. Law does not look favorable to a vigilante, if you have the resources to protect yourself, you must use them b. Vetter v. Morgan: words can be assault when combined with other acts/circumstances that together put the other person in reasonable apprehension of imminent harm i. To make a prima facie case for assault, you only need to demonstrate awareness of offensive contact or harm, NOT the fear of it 2. Apprehension requires awareness c. Intentional Infliction of Emotional Distress i. Relatively new tort: does not fit into assault and battery 1. Without this tort there is nothing that protects people from something that is not imminent 2. People have remedy against future threats 3. These cases seldom work ii. Element 1: Conduct must be outrageous 1. The recitation of the facts would cause an average member of the community would arouse his resentment against the actor, and lead him to exclaim outrageous! 2. Dickens v. Puryear: the threat of D killing P if he didnt leave the state is a future threat. 3. Littlefield v. Mcguffey: compensatory and punitive damages for IIED not excessive because of death threats and because D employs the most venomous and loathsome of racial epithets 4. Wilson v. Monarch Paper Co.: demotion of P coupled with actual abusive behavior qualifies as outrageous, the intentional and systematic humiliation of P also caused him to experience serious mental health problems iii. Element 2: Conduct must cause severe emotional distress that could adversely affect physical health; and 1. So severe that no reasonable man would be expected to endure it 2. Need to examine both behavior and impacts. a. Jones v. Clinton: Jones didn't miss work, complain, or have adverse effects on marriage-thus, no average citizen would say distress is severe. 3. Recklessness: when D acts with a deliberate disregard of a high degree of probability that severe mental distress will result even when that was not the Ds intention

a. 169 Mulberry Street Corp. v. Columbia University: letters alleging false food poisoning caused heart trouble and severe depression in restaurant owners iv. Element 3: And causes distress (even if that distress does not actually generate the expected physical harm) III. Privileges to Intentional Torts: when someone is privileged to act as they did, even though the conduct was prima facie tortuous a. Consent: victim gives permission i. Express consent: permission is given in words or through gestures i.e. signing a form ii. Implied consent: under the circumstances, the conduct of an individually reasonably conveys consent 1. Koffman v. Garnett: consenting to contact when playing football a. Action beyond scope of consent: boy consented to contact by people his age and size not by someone much older and larger iii. Invalidating manifestations of consent 1. Incapacity: child or mental incapacity 2. Action beyond scope of consent 3. Fraud 4. Duress 5. Illegality: most jurisdictions hold that a person cannot consent to a criminal act b. Self-Defense i. Threat must be immediate ii. Victims response must be reasonable: you can use as much force as necessary to exert self-defense 1. You must act reasonably and proportionally a. Haeussler v. De Loretto: acceptable for D to push P since he sincerely thought P would strike him b. Justified when an individual reasonably believes that force is necessary to avoid an unlawful attack, the belief need not be correct but sincere. 2. Proportionality: intent to inflict death or serious bodily injury is only justified when the individual reasonably believes she would suffer serious bodily injury or death a. Katko v. Briney: if a possessor is not present, he may not arrange his property so as to inflict deadly force on trespassers-excessive force 3. Self-defense is permissible when: a. Physical harm b. Inappropriate touching c. Confinement 4. Defense of others: a person can use reasonable force to protect a third person from immediate unlawful physical harm. Negligence a. P has suffered an injury recognized by the law i. Personal injury ii. Economic injury iii. Emotional injury

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b. D owed a duty to a class or person including P, to take care and not to cause an injury of the kind suffered by P i. Rule: the common-law duty of care is that degree of care which an ordinary reasonable and prudent person exercises or is accustomed to exercising, under the same or similar circumstances ii. The existence of a duty will depend on the foreseeability of the injury to appellee 1. Test- Foreseeability: whether a reasonably prudent person would have anticipated that an injury was likely to result from the performance or nonperformance of an act 2. Mussivand v. David: people with a venereal disease have a duty to use reasonable care to avoid inflicting others with whom the engage in sexual conduct a. For manufacturers: Privity rule: only owe duty to person you sell to b. New Rule: MacPherson v. Buick Motor Co.: a duty of reasonable care runs from a product mfr to a foreseeable user of the product, regardless of the presence or absence of privity, whenever i. The nature of the product alerts the mfr that a) if it is carelessly made, the product will, b) under conditions of normal use, c) probably pose a danger to the user, and ii. The mfr cannot expect that the product will be inspected for safety by anyone prior to use iii. Qualified/Limited duty categories 1. Affirmative duty/duty to rescue: unreasonable failure to provide assistance or protection to P a. Default legal rule: no duty to rescue i. Baker v. Fenneman and Brown Properties (Taco Bell): as a general rule, an individual doesn't have a duty to aid or protect, even if he knows that person needs assistance. 1. Balancing test: a. Relationship between parties b. Reasonable foreseeability of harm to person injured c. Public policy concerns ii. Some states institute a statutory limited duty to aid others in peril 1. CA-duty to notify law enforcement or seek aid but not rescue themselves 2. Vermont- the broadest actual duty to rescue iii. Exception: imminent peril caused by P iv. Exception: voluntarily to protect another from injury: when one volunteers to rescue, must conduct rescue with reasonable care v. Special relationships 1. Carrier-passenger, property owner-invited guest, school-student, employer-employee, hospitalpatient, prison-prisoner, established friendships 2. Duty to warn: Tarasoff v. The Regents of the University of California: duty extends to controlling the behavior of those who are foreseeably dangerous, and warning the potential victim of the

danger, if D bears a special relationship to the potential attacker and can identify the potential victim a. Court weighs public policy concerns: girls safety more important than therapist confidentiality b. Girls death could have been prevented c. How serious of a risk d. Cal limits reach of Tarasoff to a serious threat of physical violence against a reasonably identifiable victim i. Clergy has no duty to warn b. Good Samaritan laws: limited liability for rescuers 2. Premises liability: permitted or maintained unreasonably dangerous conditions on property a. Invitee: express or implied invitation of owner for mutual advantage i. Duty: keep premises reasonably safe and when not reasonably safe, warn where there is a hidden danger or peril that is not in plain view b. Licensee: enters property of another for convenience, pleasure, or benefit in response to license or implied permission i. Duty: to warn there is a hidden danger or peril that is not in plain view of which the possessor is actually aware or should be aware ii. About 50% of states have eliminated the invitee/licensee distinction-general duty of reasonably safe premises c. Trespasser: enters premises without license, invitation or other right i. Duty: to refrain from willfully or wantonly injuring d. Less than 10 states-General duty to all i. Rowland v. Christian: Duty of care owed to anyone might injure (regardless of foreseeability) and that is applicable in any instance in which there is risk of any kind of harm to another. Rowland Factors 1. Foreseeability of harm to P 2. Degree of certainty P suffered an injury 3. Closeness of connection between Ds conduct and Ps injury 4. Moral blame attached to Ds conduct 5. Policy of preventing future harm 6. Burden on D and consequences on community for imposing this duty 7. Availability and cost of liability insurance 3. Pure economic loss: acted without reasonable care for Ps economic prospects a. Legal default rule: no duty to take reasonable care to avoid causing economic losses to others

i. Aikens v. Debow: truck driver damaged bridge which reduced Ps revenue-no actual damage to Ps person or property=no liability b. Exceptions: i. Recoverable when parasitic upon personal injury ii. Recoverable when parasitic on property damage that constitutes interference of Ps property rights iii. Privity (direct contract relationship) iv. Special relationships where duty was clearly foreseeable: accounting firms who carelessly audit, lawyer who carelessly prepares a will, termite inspectors who carelessly inspect, real estate brokers who fail to disclose defects c. D breached that duty of care i. Breach is the absence of ordinary care which a reasonably prudent person would exercise in the circumstances presented 1. Martin v. Evans: what constitutes ordinary care varies according to the particular circumstances and conditions existing then and there 2. Adams v. Bullock: D took reasonable precautions and adhered to industry standard. No similar incidents had occurred and it was almost unimaginable that the child could swing his wire and get electrocuted so the scenario was unforeseeable ii. Reasonable person standard is an objective standard 1. Whether Ds conduct was reasonably careful (objective-conduct based, general) v. whether Ds attitude was on of trying to be reasonably careful (subjective-state of mind based, personalized) a. Vaughan v. Menlove: Menlove breached his duty of care to not injure others. b. Criteria for assessing conduct i. Comparing how Ds conduct compared to that of a reasonable person in the same circumstances (doesn't matter about the persons particular attributes-i.e. mentally disabled) 2. The T.J. Hooper: even if a D has acted with the care that, under the circumstances, is customary for persons or entities such as the D to take, that fact alone doesn't establish that the D used the level of care required by the reasonable person standard a. The lack of industry custom (to have radios) to take a simple cost effective and prudent precaution, does not excuse the breach of duty to take reasonable care by failing to take the precaution (not having radios caused barges to sink) b. Ex. using TJ Hooper: Terrasoff Case-the therapist needed to go outside custom to establish the level of care for a reasonable person i. Largey v. Rothman: patient standard (TJ Hooper) physician must disclose information a reasonable patient would want to know-informed consent 1. If anti T.J. Hooper applied then doctor would only have to disclose as much info as physicians typically give.

c. Anti T.J. Hooper rule (law for medical and legal professionals-not objective): if D acts in a manner consistent with ways in which other qualified members of her profession act, then, as a matter of law, no breach i. Public policy rationale: trying to limit med. Mal, we need doctors to keep practicing. Doctors are best poised to understand d. Exceptions i. Lower: Courts do adjust standard for physical disabilities (blindness) ii. Lower: Children are usually held to a standard calibrated to capacities of an average child of the same age and experience 1. But if the child is engaged in adult activity, the child is held to the ordinary adult standard iii. Lower: Tender years doctrine: in many jurisdictions, children under a certain age are not held to any duty of due care 1. Appelhans v. McFall: a child under the age of 7 is incapable of recognizing and appreciating risk and is deemed incapable of negligence a. To prove negligent parental supervision (must be strict liability): i. Parents were aware of specific instances of prior conduct sufficient to put them on notice ii. Parents had the opportunity to control the child iv. Raise: May be adjusted to reflect special competence of certain professionals (i.e. doctors) when they are acting within the domain of their professional competence iii. How do we decide what is reasonable 1. Learned Hand formula: proper care requires that precautions be taken if cost (B) of doing so is less then the probability of the accident (P) times the gravity of resulting loss (L) a. U.S. v. Carroll Towing: i. Probability that barge would break away (P=probability) ii. Gravity of injuries that would result if it did (L=loss) iii. Burden of taking precautions adequate to prevent barge from breaking away (B=burden) b. Reasonable care requires that precautions be taken if B<PL i. The burden was less than the magnitude of probability of damage (to barge and others) multiplied by the magnitude of such damage if it did happen so duty of care was breached 2. Holmes foreseeable danger approach a. Reasonable is when you create any foreseeable danger, you are liable for the injuries that result, no matter how easy or difficult precautions are to take 3. Community standard approach

a. Reasonable is what the communitys prevailing norms and social expectations are about consideration for others safety iv. Res Ipsa Loquitur the thing speaks for itself: 1. What happened to P must be the kind of event that normally doesn't occur unless someone else is careless a. Wheelbarrows dont fall out of windows-Byrne v. Boadle b. Sponges don't get left in abdomens-Kambat v. St. Francis Hospital 2. D must have had exclusive control of instrumentality of harm a. Only one person in warehouse with the wheelbarrow- Byrne b. Only one surgeon- Kambat 3. P must have played no role in own harm (passive victim) a. Walking down the street- Byrne b. Lying on the surgery table- Kambat 4. Result: relieves P of having to produce evidence of what the D actually did d. Ds breach was the actual cause of Ps injury i. The but for test: a breach of duty is an actual cause of a victims injury only if the injury would not have occurred but for the Ds conduct 1. P bears burden of proving by a preponderance of evidence that Ds conduct was an actual cause of Ps injury a. In order to establish that a Ds breach of duty was an actual cause of an injury, a P must prove to a jury that it is more likely than not that, but for the Ds conduct, the P would not have suffered the injury b. Skinner v. Square D Co. : evidence did not form a reliable basis from which reasonable minds could infer that more probably than not, but for the defect in the Square D switch, Mr. Skinner would not have been electrocuted i. Probability rather than possibility ii. Excludes other reasonable hypothesis with some certainty c. Aldridge v. Goodyear Tire and Rubber Co.: it is not possible to determine from the facts whether any goodyear-supplied chemical in fact caused Ps illness (failed both substantial factor and but for test) i. Apply the Daubert test: standard for admission of expert testimony 1. Federal rules of evidence (supersedes Frye test) a. Has a theory or technique based in scientific knowledge been tested? b. Has a theory or technique been subject to peer review and publication? c. Needs to consider potential rate of error d. general acceptance the degree to which the theory or technique has been accepted within the relevant scientific community 2. Breach and toxic torts a. Failure to design a product that is reasonably safe for intended use b. Failure to inspect the product c. Failure to warn

d. Failure to do adequate safety research and testing e. Failure to provide a proper and safe working environment for working with the product f. Res Ipsa Loquitor (only when D was in sole control of the product through all stages of mfr and production g. Fraud/conspiracy to defraud h. Toxic waste ii. Substantial factor test: an actors carelessness must be a substantial factor in bringing about an injury in order to be deemed a legal cause of that injury. Carelessness will be deemed a substantial factor if it constitutes 1) a non-trivial necessary condition for the occurrence of the Ps injury; or a. McDonald v. Robinson: accident was caused by the combined and concurrent negligence of the two cars i. Test for occurrence: could it have happened without their cooperation ii. Each is a but for cause 2) multiple sufficient causes: one of two or more forces that is each sufficient to bring about harm to another b. In many jurisdictions it is used to supplement the but for test- if there are 2 or more but for causes of the injury c. Ex. A sets fire to right side of house, B sets fire to left side, the house would burn down either way (neither is a but for cause) so substantial factor is an alternative proof of causation for redundant causes. d. Summers v. Tice: i. When 2 or more actors are possible sole causes of harm, burden of proof switched from P to Ds to show that they werent the one whose shot caused the injury ii. Only one is a but for cause of Ps injury iii. In California, run through both the but for and substantial factor test and see if you get a different answer e. Ds breach was the proximate cause for Ps injury i. Includes both actual cause and foreseeability ii. Could the D, at the time they acted, reasonably foresee the risk that injured the P 1. Union Pump Co. v. Allbritton: Ds conduct surrounding Ps injuries are too remotely connected iii. Limits liability to the scope of the risk the actor should have foreseen when she engaged in her careless activity 1. What risks/injuries should D have foreseen when she acted? 2. Compare those risks/injuries to what actually occurred iv. Superseding cause: Ds carelessness causes injury to P only because of an intervening wrongful conduct by a third party prior to the time P is injured 1. Pollard v. Oklahoma Ry, Co.: the boys superseding intervening deliberate actions cut off all of the railways liability 2. Clark v. E.J. DuPont Powder Co.: if you have 2 acts of negligence that somehow combine to create an injury to a P, just because the 2nd one was the last in line doesn't mean the first is off the hook

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a. To be off the hook, the 2nd act has to have some intervening wrongful conduct that creates a new danger-i.e. Pollard v. Palsgraf: Cardozo- Torts requires that a party that harmed another (to whom it had a duty) through its carelessness, must compensate the party it harmed 1. duty and breach must be aligned Defenses i. Contributory negligence (4 states+D.C.): if the P is at fault (if she is Negligent), she gets nothing 1. Comparative fault: how courts examine respective degrees of carelessness a. Spier v. Baker: P wasnt wearing a seatbelt and was ejected from the car. Expert testified that P would likely not have suffered any physical injuries if she had worn her seatbelt. NY ct of appeals reasoned that Ps failure to use a seatbelt could not constitute contributory negligence because there was no evidence that Ps omission was a but for cause of the accident b. Pure comparative negligence (CA & 12 other states): Ps can recover a percentage of damages even if they deemed are greater than 50% at fault i. i.e. if youre 99% at fault you can recover 1% c. Modified comparative negligence: Ps recover nothing if they are deemed greater than i. 50% at fault (12 states) 1. P recovers if less than 49% at fault ii. 51% at fault (21 states) 1. P recovers if less than 50% at fault 2. Hunt v. Ohio Dept. of Rehab and Correction: Ps liability is 40% when reaching to unclog snowblower when thinking she turned it off so D breached his duty ii. Assumption of Risk: a competent P who adequately appreciates the riskiness of a given activity, and who voluntarily chooses to encounter those risks (complete bar to recovery) 1. Express assumption of risk: you waive in advance (usually in writing) a right to sue for negligence 2. Implied assumption of risk: you forego a right to sue when you decide to encounter risk that generates your injuries a. D must show that through conduct, P knowingly chose to encounter a risk 3. Factors that render exculpatory provisions invalid a. Tunkl v. University of California: i. Business suitable for public regulation ii. Business performing service of great importance to public (often a necessity to public) iii. Business willing to perform service for any member of public iv. Business at great bargaining advantage due to essential nature of service v. No provisions for fees for protection against negligence vi. Public placed under control of business 4. Will uphold agreement if

a. Dalury v. S-K-I Ltd. i. Free and fairly made ii. Between parties in equal bargaining position iii. No social interest with which it interferes iv. must be made considering the totality of the circumstances of any given case against the backdrop of current societal expectations 1. S-K-I is best poised to control the risks and ski areas V. Damages a. A P is entitled to reasonable, fair compensation from the D, in light of the losses P has suffered b. May be: i. Medical expenses 1. Expert witnesses ii. Lost wages iii. Lost earning capacity 1. Current salary 2. Skills, education, experience 3. Calculation or retirement age if permanent disability, wrongful death iv. Pain and suffering 1. CA limits to $250,000 v. May be reduced by failure to mitigate 1. i.e. failure to wear a seat belt, helmet c. Collateral source rule: normally P can collect full amount even if also receiving insurance payments (and these other payments are not disclosed to jury) i. CA: limits this by allowing D to tell jury about collateral source payments ii. Other states (NY): requires limiting compensation by amount provided by collateral source d. Wrongful death (CA) damages: i. Direct economic benefits you would have received 1. Not total of expected income because all would not have gone to family 2. Lesser of life expectancy of deceased and that of family member beneficiary ii. Loss of consortium 1. Companionship and affection-not available to children iii. Not for pain and suffering damages iv. Can be reduced for decedents own contributory negligence e. Eggshell skull rule: fair and reasonable compensation includes compensation for injuries (nearly always medical complications) stemming from some hidden vulnerability in the P of which the D was not and could not have been aware i. Smith v. Leech Brain & Co.: personal injury suffered by P need not have been within the scope of injuries that have been foreseeable to D f. Negotiation: i. Distributive negotiation: win-lose 1. Fixed pie scenario-so much of something to be divided a. Zero-sum gain (1$ more for me means 1$ less for you) b. There must be a bargaining range: determined by the difference between Ps bottom line and Ds top line

VI.

ii. Integrative: win-win 1. Develop options a. Are there non-monetary interests of the party b. Are there trade-offs that can be made c. Relationships-someone you may see often Products Liability (no need to show negligence, just strict liability) a. D is subject to liability to P if i. P has suffered an injury 1. Physical harm or tangible property damage caused by product defect 2. Cannot recover for a defect that causes damage to the product itself (economic loss rule) 3. Generally doesn't recognize claims for intangible economic loss 4. Loss of future revenue 5. Pure emotional distress ii. A sold a product 1. A product is generally: foods, beverages, toys etc. 2. A component part may be liable if it substantially participates in the integration of the component into the design and the integration causes the product defect 3. NOT products a. Services b. Real property (unless mass produced or prefabricated) c. Live animals (dog that carried a disease when sold is a product) d. Intangibles (electricity and x-rays) e. Textual materials are generally not (encyclopedias, maps) f. Used products iii. A is a commercial seller of such products (Vandermark extends Greenman to sellers) 1. Manufacturers, retailers, distributors a. Whether they knew of the defect is irrelevant (liability without fault) b. Indemnification clauses-allows one to sue another to recover litigation and liability costs stemming from products supplied 2. Must be in business of selling the product 3. Actual sale or transfer or legal title not necessary a. Leasing a car is ok; placed product in the stream of commerce b. If the Ps contact with the product is sufficiently close to the domain of the market place (i.e. test driving a car) c. Enough to take steps to place product in market iv. At the time it was sold by A, the product was in a defective condition; and 1. Court allows the P to use circumstantial evidence a. The incident that harmed P i. Was of a kind that ordinarily occurs as a result of product defect; and ii. Was not, in the particular case, solely the result of causes other than product defect existing at the time of sale or distribution 2. Manufacturing defect a. A flaw in a product that is there by accident; the maker did not install deliberately and consciously

i. Doesnt need to be mass produced ii. Defect can be charged to the mfr so long as it emerges while the product is in the mfrs control or possession iii. The defect is the basis for liability even though all possible care was exercised in the preparation and marketing of the product 1. Harm-causing ingredient in a commercially prepared food is the same as a manufacturing defect b. Escola v. Coca Cola: Used Res Ipsa Loquitor-relieves P of having to product evidence of what the D actually did. Bottles are not designed to explode and so the bottle that exploded contained a flaw in design that it was not supposed to contain c. Grower v. Savage Arms, Inc: for a mfr defect the fact finder only needs to compare the product that caused the injury with other products that were mfr according to specifications i. Unloading defect: lacks causation because P was not unloading the gun ii. Detent defect: expert report is unclear and fails the Daubert test because there are no design defect determinations iii. Manufacturing defect: all the guns they produced had the safety trigger defect 3. Design defect a. Flaw in the plan or specifications for the product b. Criteria that a jury uses to determine design defect includes(most important question in products liability): Significance of the risks of physical injury posed by the particular design How ordinary consumers would expect the product to function Whether there is a feasible, safer, and affordable alternative design i. Risks could be avoided or eliminated by an alternative design ii. Greenman v. Yuba: duty is implied, dont have to show fault. A mfr is strictly liable when an article he places on the market, knowing it is to be used without inspection for defects, proves to have a defect to a human being 1. Abandonment of the necessity of privity 2. Public policy reasoning: insure that the costs of injuries resulting from defective products are borne by the mfrs that put such products on the market rather than by the injure persons who are powerless to protect themselves iii. Cepeda v. Cumberland Engg Co.: sellers must still design products that are safe for foreseeable misuse 1. Risk-utility test: a product is defectively designed if the risks of its design outweigh its utility (majority of jx use)

Balancing test (by jury): should the product have been designed differently given the relative risks and benefits of its present design a. Useful/desirability of the product b. Safety aspect of the product-probably seriousness of injury c. The availability of a substitute product d. The manufacturers ability to eliminate the unsafe character of the product without impairing its usefulness e. The users ability to avoid danger f. The users anticipated awareness of the dangers inherent in the product and their availability i. General public knowledge ii. Suitable warning g. The feasibility of spreading the loss by setting the price of the product or carrying liability insurance 2. Consumer expectations test: a product is defective in design if aspects of its design render it more dangerous than an ordinary consumer would expect it to be (minority of jx use) 4. Failure to warn or instruct a. Defect is in the omission of the language of a warning or instruction that should have been included but was not i. i.e. mislabeled products, wrong dosage on medications, not warning that a microwave oven can cause explosion or fire if you use it to heat metal objects b. Anderson v. Owens-Corning Fiberglas Corp.: knowledge or knowability is a component of strict liability for failure to warn. Adequacy of warning is context specific i. Placement and prominence of warning on 1. Product 2. Packaging ii. Nature of the risk iii. Extent to which the risk and its consequences are defined and communicated by warning iv. Precautions that can be taken in light of the warning v. Whether warning is given in conjunction with other information that might cause confusion or downplaying of danger vi. What seller knows or should know about likely reactions to warning c. Adequate warning does not relieve you for liability of a dangerous design d. Motus v. Pfizer: learned intermediary rule (CA) i. In failure to warn cases against pharmaceutical companies, no liability for drug companys failure to provide direct warning to consumer

ii. Instead, exclusive duty to warn is the prescribing health care giver e. Heeding presumption: the court presumes that P would have followed an adequate warning if one had been given (not in CA) v. The defect functioned as an actual and proximate cause of Ps injury (Elmore extends Greenman to bystanders not merely purchasers or users) vi. Expansion of liability for Products 1. No need to show Negligence 2. No need for privity 3. Expand the range of Ps to bystanders 4. Expand range of seller who may be Ds 5. No need to show that product defect made it unreasonably dangerous to the user 6. Luque: even if the defect is obvious to the user, that doesn't matter 7. Cronin v. J.B.E. Olson Corp.: (in CA and minority of JXs)don't have to instruct the jury that it must establish that the defect in the product made it unreasonably dangerous to the user a. All you need to do (in addition to the other elements of the prima facie) is prove that product contains a defect b. A majority of JXs still require P to show that a product is a) defective and b) is unreasonably dangerous 8. Products liability isnt fault based