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Torts II (USE FOR NEGLIGENCE QUESTION (DAMAGES ELEMENT (Whats recoverable)…

- - - - Owners and occupiers of land
        
        Outside premises
        
        On the premises
        
        Trespasser
        
        No duty
        
        Licensee
        
        Duty to warn when there is actual knowledge of danger or dangerous condition
        
        Invitee
        
        Duty to take reasonable steps to protect the entrant against danger that he owner had actual or constructive knowledge of
        
        Public Invitee
        
        Private Invitee
      - Failure to act
        
        Standard: No duty to warn or protect another from criminal acts of 3rd party
        
        Exceptions
        
        Special relationship
        
        Vulnerabilities of victim
        
        Initial neg
        
        Standard: No duty to act for affirmative action of others
      - Factors of duty
        
        Chilling effect duty has on D conduct
        
        Morally compelling
        
        Alternative means to protect P
        
        Burden/cost
        
        Foreseeability and extent of likely harm
        
        Administrative problems enforcing duty
  - - - Compensatory (every torts case)
    - - Added to comp. damages, governed by statute, private fund state has discretion USE GORE FACTORS
        
        Comparison of punitive damages awarded by the jury in comparable case
        
        Ratio of comp. damages to punitive damages
        
        Degree of reprehensibility of D conduct
        
        LA- exemplary damages (DUI & Child Pornography)
  - - - LA approach is different.
  - - - Whether D's conduct was a but-for-cause in P's injury or a substantial factor in doing so
- - - - Watson factors
        
        Utility of each parties conduct
        
        Whether parties capacity is superior/inferior to another
        
        Gravity of harm
        
        Emergency
        
        Behavior result of inadvertence v. awareness
  - - - Limits time during COA an arise, time arrives when one is no longer responsible for past act, primarily in area of liability
    - - Accrue: when COA comes into existence
      - Med Malpractice- 1 yr discovery LA, 3 yrs from actual incident LA
      - Toll: stop statute of lim. from running
      - Contra non valentem: clock doesn't begin if P can't act
      - Time limit 1 yr
      - Notion of equitable estoppel: Court not grant judgement/legal relief to party who acted unfairly
      - Continuing tort: ongoing relationship the tort continues
  - - - P must assume risk
      - P knew of risk
      - P voluntarily encountered the risk
    - - Express Assumption of risk
        
        In writing , generally upheld
        
        Exceptions
        
        Generally accepted (amusement park, sports) as long as don't violate public policy
      - Implied
        
        Assumes risk through conduct
- - - - Look at factors, if it doesn't fall within exceptions then you apply these factors of duty
        
        SHOULD COURTS IMPOSE DUTY?
        
        Will imposing duty impose flood gates of litigation (ADMINISTRATION)
        
        Ease of association, how easy is defendants conduct associated with the harm
        
        Economic considerations, considerations to seek def who might distribute the risk of harm
        
        Moral considerations, whether conduct was right or wrong
        
        Historical or presidentially considerations, what was the rule in the past is the direction still valid
        
        Or was there superseding intervening cause that blocks off liability
        
        Ex. D leaves gun loaded about and someone discharges it injuring 3r person,THIS IS intervening cause
        
        Ex. Someone comes along steals gun shoots someone
        
        DO I HAVE AN INDEPENDENT INTERVENING SUPERSEDING CAUSE? Or was it a result of some superseding intervening cause that cuts off defendants liability, cut off by but for cause liability not cut off if def act causes foreseeable injury to foreseeable p even if event is unforeseeable (intentional criminal act of 3rd party cuts of something) Set of events happening after original defendant was negligence that superceids negligence to cut off their liability
    - - Was the stat meant to protect from this type of harm (tell what the statute/duty is and why the risk was within the scope of the duty) SCoept of duty (intended to protect this kind of P (this P who's deriving on road and no time to stop to avoid hitting stalled truck) this type of P happening in this type of manner (what type of manner? Couldn't stop in time to see staled truck)
  - - - Put in form of inquiry "did defendant brach the duty owed?" "did defendant act unreasonably?
        
        Likelihood of harm (forsseeablitly of harm balanced between burden of prevention and social utility)
        
        Balancing test reaonsbaleness focuses on relative burden of harm v. likelihood magnitude of harm (double check wording)
- - - - Liability
      - Criteria to determine adequacy of warning
        
        Conspicuousness
        
        Explicitness
        
        Clarity of warning
        
        Means used to warn
        
        Comprehensibility
      - Duty to duty to warn of hazardous thingy
        
        Special expertise : of a user may be considered in evaluating the need for the warning or whether
        
        Ordinary v. sophisticated user
      - Post manufacturing DUTY to warn
        
        Exam look for "came to attention of mandator"
        
        Duty to warn if anticipated alteration of the product
        
        When knowledge of danger after product left man control has duty to use reasonable care to contact and warn users of product
        
        Exam: Attempting to contact but has limited exposure. NOT ADEQUATE ENOUGH. Say not enough have to use reasonsbale care to discharge their duty
      - Post manufacture duty to RECALL. Different its federal agency directive to recall product
    - - Liability: SL
      - Deviates in a material way from the design’s specifications. Doesn’t perform as intended/doesn’t meet performance standards.
      - LA statute labels Manufacture as
        
        One who labels a product as his own (facts will tell you)
        
        Sellers who exercise control or influence over design and construction of the product
        
        Manufacturer of a component part
        
        Seller of product of alien(outside of US) product(seller is alter ego of the main seller)
        **Def --- is considered a manufacture in LA liability law because (one of four things) based on facts.
    - - Unreasonably dangerous if there was a RAD capable of preventing the harm AND the likelihood/gravity of the harm outweighs the utility/feasibility of the product.
        
        Feasibility
        
        Utilitarian practicality
        
        Economic practicality
      - Liability :
    - - Common to have manufacturing and design defect in a hypo together.
  - - - Time defect exist: must exist at time it left manufactures control or it can result from reasonably anticipated alteration of the product.
        
        Reasonably anticipated alteration
        
        DEFINITION: 1. Change manufacture should reaonsably expect to ordinary person to make in similar circumstances or 2. Ordinary wear and tear (ex. Don't attempt to use 3 prong extension cord in two prong outlet and don't cut off the thing, you're warning people not to do that because that could be a reasonably anticipated alteration and a lack of reasonable care so they want to cover basis. After extended use do not do xxx with this product, take certain precautions or discard etc...)
        
        Reaonsably anticipated alterationIS NOT
        
        The removal of an otherwise adequate warning 2. failure of third person to adequately warn the user? 3. changes to product brought about by the lack of reasonable maintenance or care
      - **Product unreasonably dangerous in design if there existed a reasonably alternative design preventing the harm and likely hood and gravity of the harm outweighs the burden in adoptin an alternative design such designs might have on utility of product (REAONSABLENESS TEST)
        
        Test: was there a resonably alternative design, if industry standard thats the reasonably alternative design
        
        RAD- Capale of preventing the harm and the likely hood and gravity of the harm outweighs the burden of adopting an alternative design and any adverse effects such the design might have on the utility of the product
        
        Does it negatively impact its users
        
        Adequate warning considered in evaluating the likely hood of damage when reaonsble care has been used to evaluate the warning
        
        I went with design I went with but I warned about. Effects the balance of likelihood gravity of harm v.
        
        STATE OF ART DEFENSE- Available to design defect cases, manufacture not liable if at time product left control the manufacture did not know and could not have known of the dangerous characteristic and secondly the manufacture did not know and could not have known of alternative design or third the alternative design was not feasible (economic practicality v. usefulnessf
    - - Time defect exist: must exist at time it left manufactures control or it can result from reasonably anticipated alteration of the product
        
        Reasonably anticipated alteration
        
        Definition
        
        What its not
      - DEFINITION
        
        State of the art defense
        
        Available to design defect cases, manufacture not liable if at time product left control the manufacture did not know and could not have known of the dangerous characteristic and secondly the manufacture did not know and could not have known of alternative design or third the alternative design was not feasible (economic practicality v. usefulness)
        
        Standard: Then existing reasonably available scientific and technologically available knowledge (fact pattern tells us what they know about competing design )What does state of the art provide about science and technology ?
      - POST MANUFACTURING duty to warn, duty to use reasonable care to contact purchasers and users when a dangerous defect has been discovered or should have been discovered when it left manufacotrs control ALMOST ALWAYS HAVE FACTS SAYING MANU FACTORS FOUND OUT ABOUT FLAW
        
        Duty reasonable
        
        REMEMBER!!!! POST MANUFACTURING DUTY TO WARN THIS USUALLY COMES UP
        
        ALWAYS have post manufactory duty to warn scenario: it came to their attention this was happening to the product they chose to notify users by this xxxxx
        
        Duty to use reasonable care to contact purchasers or users when a dangerous defect has been discovered or should have been discovered after it left the manufactures control
      - Duty to warn excluded when product not dangerous to ordinary user or suer should know dangerous of product?
    - - Time defect must exist irrelevant since its a breach of a promise
      - DEFINITION: Unreasonably dangerous for lack of adequate warning if it had dangerous characteristic and manufacort failed to provide adequate care about the warning and it dangers
      - State of art defense:
        
        Duty to warn excused when 1. Product not dangerous beyond that which would be contemplated by ordinary user or the user knows or should know of the dangerous characteristic (this is to capture sophisticated users who should know )DONT HAVE TO WARN but depends on what the danger is and who the danger housed be directed to (normal or sophisticated)
        
        State of art defense: Manufacture did not know or could not know about the dangerous characteristic.
      - Def- dangers when it doesn't conform to express warranty 2. warranty induced use of product (reaonsable test would you expect reaonsable consumer or user to purchase product because of promises being made about products performance) 3. damage occurred because warranty wasn't followed (faulty warranty is proximate cause of damage)
    - - Defect has to exist at the time it left the manufactures control
      - Construction or composition defect aka MANUFACTORING DEFECT: DEF---->A product is unreasonably dangerous in construction or composition if it deviated in anyway from manufacturing specifications or performance standards for the product or identical products made by manu
        
        HYPO Fact pattern: this thing was designed to have xx this size xx this material xx one of the boats was made with 3 in length instead of design specifications of xx of what was recommended than xx ,,,, HAS TO BE AT TIME IT LEFT MANUFACTURE
        
        Think when manufacturing glitches , ONE OF THESE THINGS IS NOT LIKE THE OTHER
        
        Regardless of degree of care it deviates then its manufacturing and they liable
- - - - Employer (liable even if they forbade activity, relationship and degree of control make employer strictly liable ) [note to self ask if this makes it fall under strict liability]
      - VL holds employer responsible for neg acts of employees that occur within scope of employment (court looks at degree of control)
      - Going/coming rule: commuting to and from work not w/in scope of Employment
        
        EXCEPTION: Something at work affected E. ability to continue, person leaves work early because of harmful exposure
  - - - Dangerous animal= SL