Mama Bear Outline

Thursday, November 12, 2009

5:45 PM

1.

Intentional Torts:
Battery

Did D intend to act for the purpose of inflicting contact or

with the substantial certainty that contact would occur?

Did the act cause harmful or offensive contact?

Defenses:

There was Consent (willingness for contact to

occur)

Self-defense

Can defend when reasonably believe harm

will occur and its the only prevention

Majority says can use deadly force in

self-defense even if you can retreat

Defense of others

Can defend others as long as you reasonably

believe they are in danger and they are privileged

Defense of property

If you reasonably think force is the only way

Can use deadly force is you reasonably

believe intruder will cause death/serious harm

Necessity

Can trespass if you have to out of

sudden/temporary cause

R2K 197 - can trespass to avoid harm

but must pay for damages

R2K 263 - can damage chattels to

avoid serious harm

Parent/Teacher

Can discipline as long as reasonable in light

of circumstances, age, etc.
o
Assault

Did D intend to cause harmful/offensive contact?

Was the other person put in imminent apprehension?

o
False Imprisonment

Did D act with intent to confine?

Did act result in confinement?

Is the person conscious or harmed by it?

Shopkeeper's privilege (can retain for a reasonable

time if you have probable cause)

Person confined must use reasonable care for his

own safety
o
IIED

Was it extreme and outrageous conduct?

Did bodily harm result from it?

Applies to member of person's family who is

present
o


To any other person who is harmed by distress
Worker's Comp. Exception

Must prove by preponderance of evidence that employer

Deliberately intended to injury him

Engaged in conduct employer knew would result in

injury/death
Negligence
o
Duty - Does D owe a duty to P?

Standard of care

Reasonable man

Except:

Mental deficiencies

Children - under 5

Physical disabilities

Unreasonableness

Risk is unreasonable and act is negligent if

magnitude of risk outweighs what the law regards as
the use of the act

EX: bargee (person in charge of boat)

took an unreasonable risk in leaving the boat
unattended because interest in security of boat
outweighed interest of freedom of movement
(Carroll)

Special relationships

Invitees and licensees - must use

reasonable care to people with permission to be on
land

Invitee = public is invited to be on

land where land is held open or business dealings
like mail carriers, utility meter readers etc.

Liable if
i.
Owner discovers/knows
of condition and that its an
unreasonable risk of harm and
ii.
Should expect they will
not discover danger or will fail to
protect themselves
iii.
and fails to exercise
reasonable care to protect them against
danger

Licensee = privileged to enter land

(cops, fire fighters, and solicitors)

Liable if
i.
Owner discovers/knows
of condition and that its an
unreasonable risk of harm and should
expect they won't discover and
o

2.

ii.

Fails to exercise
reasonable care to make condition safe
or warn them and
iii.
Licensees don't know or
have reason to know of condition and
risk
Trespassers - lowest duty: to refrain from
wanton and willful conduct

Trespasser = persons who enter land

without privilege

Owner is liable if
i.
Knows of constant
trespassers and harm caused by
artificial condition if condition is
a.
One that owner
created
b.
To his knowledge,
likely to cause death or serious
harm
c.
Has reason to
believe trespassers will discover it
d.
Failed to exercise
reasonable care to warn
ii.
Maintains land of an
artificial condition of death or serious
harm and fails to warn if condition is
a.
One that owner
knows trespasser is close to
danger
b.
Owner has reason
to know trespasser won't discover
harm or risk

Doesn't apply to
natural conditions (quick sand)

Trespassing children (14 or under)Attractive Nuisance Doctrine

Liable when caused by artificial

condition if
i.
Has reason to know area
is where children are likely to trespass
ii.
Condition has reasonable
risk of death or serious harm to kids
iii.
Kid because of their age
won't discover it
iv.
Burden of eliminating
danger is slight compared to risk to kids
v.
Fails to exercise
reasonable care to eliminate or protect
kids

Most courts follow this

(turntable)
Most states reject age

limitation
Doesnt apply if condition is
obvious and kid recognizes danger

Rowland v. Christian
(California)

All persons have a

duty to use ordinary care to
prevent others being injured as a
result of their conduct

Court said status

shouldnt matter b/c risk adverse

Test: whether he was

reasonable, status may have some
bearing but is not determinative,
consider factors:
1.
Foreseeability of
harm to P
2.
Degree of certainty
that P suffered injury
3.
The closeness of
the connection between D's
conduct and injury
4.
The moral blame
to D's conduct
5.
The policy of
preventing future harm
6.
The extent of the
burden to D and consequences
7.
The availability,
cost, and prevalence of insurance
for the risk involved (added)

Courts are split - they

adopted some but kept status of a
trespasser

In California - owners
owe lowest duty of care to recreational
users (must pay to use land)

To refrain from
want and willful conduct
No duty to rescue
EXCEPT when affirmative duty like

Preexisting relationship

Voluntary custody where protection is

expected

When voluntary undertaking

Has a duty if failure increases

risk of harm beyond

EX: P's daughter drunk at

party and host refused to get help negligence b/c voluntary undertaking
0.
Takes charge of another

If discontinues, must refrain

from putting person in worse condition
i.
Caused helplessness and danger for
future harm

EX: P is passenger and car

crashes into tree, driver (D) leaves and
didnt get help and P suffered additional
injuries so since under D caused
helplessness to P there was a duty to get
help (Tubbs)
ii.
Patient/Doctor or therapist relationship

(Tarasoft) psychologist knew

intention of patient to kill a victim but didnt
warn victim.

In California, you have a

duty to warn victim and cops if its a
reasonably identifiable victim

Some courts, like Vermont, say duty to

rescue without danger to yourself and must give
reasonable assistance (easy rescues)

Some courts, like Minnesota and Rhode

Island, say must be at the scene of emergency to
rescue and must give reasonable assistance (easy
rescues)

Most courts say duty to rescue in car

accidents and patients in emergency rooms

Some courts impose liability on rescuers if

job is botched

ALL states has enacted Good Samaritan Rule

0.
Protects rescuers against liability for
negligence unless grossly negligent
i.
In California, only medical
practioners are protected

EX: duty owed b/c car relied on voluntary

watchman and when he wasnt there they got hit by
train (Erie v. Stewart)
Breach - Did D breach that duty?
Hand Formula

If B<PxL , then negligence

B = burden of precautions

P = probability

L = injury

To measure the benefits of a precaution, you

determine the expected accident costs that the precaution
would prevent

EX: crew member climbed under train and

was injured when the train moved - low probability
someone was under train and too high of a cost of the
precaution (B>PxL) so P lost (Davis)

EX: man took precautions with antenna but

still got electrocuted when it touched wires,
precautions was too burdensome (B>PxL) so no
negligence for wire company (Washington)

EX: DJ car chase, car accident - precautions

were not burdensome and foreseeability was high so
negligent (B<PL) (Weirum v. RKO)
Violations of Criminal Statutes
Is the statute designed to protect against D's act?
Is the victim within the class the statute is designed
to protect?

Not negligence per se, but proof of

negligence (a rebuttable presumption)
i.
EX: driver didnt have lights and other
driver was on the wrong side of the road, its
negligence if the absence of lights caused the
accident and the statute creates the standard
(Martin)

There can be excuses unless it says there is

to be no excuse
i.
EX: statute didnt consider walking
along highway, when P walked on the wrong side,
violating a statute, and got hit by a car (Tedla)
ii.
EX: a person hit by a car while
chasing unleashed dog, can't use violation of a
leash law as a basis of a negligence claim
because the harm must be within the risk
Custom
Four usage of custom:
Customs provides a general expectation of how people
will behave and should be binding
Its feasible
Shows evidence of where the balance is
Notice - should know, but usually not binding
EX: there was no custom to use shatterproof
glass, so when shower glass broke and P got
injured, D was not liable (Trimarco)
EX: cargo boats lost at sea because they didnt
have radios to alert them of the weather, there
was no general custom but court said they should
have had radios so they were liable (T.J. Hooper)
Professional custom is the standard of care in most medical
malpractice claims but reasonable care trumps custom
standard sometimes
EX: custom was to give pressure test to patients over
40 but it was inexpensive and under reasonable care

should have given patient under 40 the pressure test P won without expert testimony that D was negligent
(Helling)
Res Ipsa Loquitor - "the thing speaks for itself"
In California: Is it due to a voluntary act of P?
Formula:
Was D in conclusive control over the object?
Does it ordinarily not happen when there's no
negligence?
It allows a permissible inference of negligence proven by a
preponderance of evidence
EX: barrel of flower falls on a person (Byrne)
Expert testimony can be used
Specific evidence of non-negligence or negligence
Some courts: P can't explain how it happened and at
the same time use RIL to speculate
EX: P used expert testimony to prove specific acts
of negligence but it didnt fully explain the
occurrence so RIL still applicable
Most courts: allow P to explain specific acts and use
RIL in the alternative (can coexist)
EX: A and B are possible causes of negligence, if
A is rejected, B can be used under RIL
Exclusive control modified: RIL can be applied even if it
wasn't at the time if P proves the instrumentality didnt
change after it left D's possession
(One can trace back to D if shown that P exercised
reasonable care )
EX: Bottle of coke broke in P's hand and P used
reasonable care so D was in control and RIL is applied
Does not apply if there is evidence of negligence!!! Its a
last minute resort where P has NO evidence!!
Causation
Actual cause
Did D cause P's harm?
Must prove general and specific causation
Can be proven by circumstantial evidence of past
occurrences (Hoyt - chimney case)
Scientific evidence must be "generally acceptable"
(Majority courts - Frye)
Federal courts - can consider other things too
(Daubert)
Courts require that it is more probable than not
on basis of scientific evidence (DeLucas)
Alternative liability (when one of several D but can't tell
which one)
D has the burden of proof (choose between
themselves who did it) (Summers)
Doctor in charge is liable (Ybarra case with P's
shoulder injured with multiple medical persons)

Joint and several liability (when both D caused

indivisible harm)
If they acted in consort (joint tortfeasors in a single
suit)
Uniform Contribution Among Tortfeasors Act
2 or more jointly or severally liable in tort for
same injury has a right to contribution among
them
Pro rata approach
Apportionment of Liability
Relative degree of fault
Cross claim
When a joint tortfeasor settles with P in good
faith, remaining D has no claim
Prop 51
If pain and suffering, parties collect degree at
fault
If economic harm, you can recover 100%
EX: drunk driver hits a person but has no
money, then city pays % of fault for
obstruction of stop sign
Market-Share liability
When there's too many manufacturers, only the
ones with "substantial share" are liable
EX: mother taking DES resulting in cancer,
can't prove which drug company, courts
reject vicarious liability because more
victims and all D can't be joined in one legal
action
Or burden of proof is on time and geographic
distribution
EX: better access to relevant records
Concurrent and Successive Causation
When two or more causal agents would independently
have caused P's harm
EX: kid on bridge loses balance and hangs on to
wires but gets electrocuted, still would of fallen
(Dillon)
Whatever happens after the first injury does not affect
the first injury
EX: a man has injury in leg from car accident and
then gets shot in leg and it must be amputated,
the first injury is still as if the second injury never
happened
Most courts "take it as they find it" at trial
When two causes, each adding negligence to the
injury, either would have caused it independently,
each is fully liable

EX: fire by human united with fire from sparks by

railroad, railroad is responsible for full amount
(Kingston)
Except when one fire unites with a fire from a
natural cause
Minority jurisdictions say exception doesnt
matter (Anderson)
If a discriminatory motive is a factor in an employment
decision, it doesn't matter if the outcome would have
been the same using other motives (a concurrent
legitimate motive is no longer a defense)
Vicarious Liability
When all will be responsible even if they didn't do
anything
Respondeat Superior - where masters are liable
for their servant's negligence
Is it within the scope of the job?
EX: Boss pays for 3 employees to hunt
ducks and one employee kills the other,
boss isnt liable because it wasnt within
the scope of the job (Richards)
Exception: Independent contractor (masters are
not liable)
EX: salesperson was an independent
contractor because went wherever he
wanted and only visited the office a few
times a year (Throop)
Exception to the exception:
Master was negligent in hiring, selecting and
supervising
Work is specifically or inherently dangerous
Duty of master is nondelegable (permanent)
EX: hospitals owe nondelegable duty to
provide emergency room care and can't
avoid liability even if they hired
independent contractors (physicians)
A 3rd party reasonably believed you were an
agent of the employer - "ostensible" agent
Actual status doesnt matter
Joint Enterprise - when two or more are in business
together sharing equal right to control each other's
conduct
Proximate cause
D is liable for all foreseeable consequences
Eggshell rule - you take P as you find him
The "But For" test
But for D's negligence, would harm result?
EX: In Lyons, no causation b/c accident
would have happened anyway regardless of
whether D was speeding

EX: in Ford, no causation b/c didnt satisfy

but for negligence P would have died when
he fell off boat but there was a duty because
he was an employee
EX: in Cahoon, D negligently failed to
diagnose cancer and P died (loss-of-chancedoctrine)
Foreseeability test
Was the harm foreseeable?
Palsgraf - woman on platform where package
exploded several feet away and scales hit
woman
Cardozo: woman was not a foreseeable
P, no duty owed to her, falls out of the
orbit of duty, its relative
Andrew: everyone is foreseeable, its not
relative, its wrong to everyone
Thin skull rule
You're responsible even if you didnt
anticipate P would get injured that
easily
Danger invites rescue
Solomon - rescuer shot by cop not in
uniform b/c he thought the criminal the
cop was arresting needed help, rescuer
was a foreseeable P
Exception: firefighter rule (no
recovery for injuries in the course
of their duties)
Professional risk takers (double
recovery w/o exception)
Reasonable mistake rule:
limitations - can't recover if it was
reckless rescue (contributory
negligence)
Was the nature and circumstances foreseeable?
"If waters still disturbed, then still part of the
same accident"
EX: Marshall - car accident and P goes
to warn traffic but gets hit, P can
recover from car that hit him b/c the
accident affected driver's speed - can
be bizarre manner
Intervening 3rd parties - not liable if
unforeseeable
EX: Herrera - left keys inside car
and criminal stole car and hit
someone - foreseeable so liable from contributory to comparative
fault

EX: Stahlecker - defective tires led

to woman being raped and
murdered when car broke down not foreseeable so car company
not liable
Other approaches
Restatement 431 (Often in CA) Legal Cause
Substantial factor (force is continuous
and active)
No rule relieving liability
New restatement - abandons legal cause
Limited to physical harm
Direct cause: (hindsight)
EX: Kinsman - grain boat negligently
broke and got stuck in bridge of river
and caused a flood and a dam - was a
direct cause so liable, but limit is when
its fortuity and too tenuous
EX: Polemis - D dropped a plank in can
of benzene and it caused a spark that
burned up ship - doesnt matter if its
unforeseeable as long as its a direct
cause.
If highly extraordinary or supervening
forces, then it doesnt count
Wagon Mound I and II - didnt agree
with Polemis, said that P was only liable
for foreseeable consequences
Mental and Emotional Upset - when foreseeability
doesn't matter
Impact rule and zone of danger
Must have physical impact - wagon with
horses that scared P who suffered
miscarriage was not enough to recover
EX: Waube - mom was watching kid get
hit by car from window - outside zone of
danger
Bystander liability
Dillon - mom saw kid hit by car
negligently driven - mom fit test and
can recover
Thing - overruled Dillon (concerned with
fraud, uncertainty, too many tort
claims, insurance) - mom's son was
injured in car accident, mom was
nearby - enacted statute:
Must be closely related
Must be present and aware
Must be serious beyond normally
expected

Direct victims
Mom can recover from physician/patient
relationship
EX: Burgess - P's baby injured b/c lots of
sedatives from C-section (not
bystander, but direct victim)
Injury to personal relationship
Spouses can recover for harm to relationship
for negligent injuries (must be married)
Parent/child relationships does not allow
recovery
Some courts allow recovery for parent/child
relationships - Ohio, Florida, and Texas
Prenatal harm
Parents
Must be viable at time of injury to
recover for wrongful death (Werling)
CA says must be born
Can recover for children born with
disabilities but not for healthy kids
Most courts allow recovery for wrongful
death births - economic loss and
medical expenses
Most courts allow out of ordinary
expenses with a birth defect are
recoverable
Some reject distinction between defect
and healthy kids
Children
Some courts allow kids to recover after
being born alive to negligence during
pregnancy
Limited to extraordinary medical
expenses (Turpin)
Some courts refuse kids to have a
cause of action (CA)
Benefit doctrine - value of benefit is
considered in mitigating damages
Damages
Consequential economic loss
No recovery for pure economic loss even when foreseeable
except in special circumstances (Barber Lines)
Commercial fishermen is an exception b/c favorites of
admiralty (frequent users of the ocean)
J'Aire Corp. - allowed recovery, there was duty of care owed
by contractor b/c restaurant was beneficiary and especially
foreseeable
People Express Airlines - it was particular foreseeable
because of its location - proximate cause - case-by-case

Reasons why allowing recovery for economic loss is :

Floodgates, cost, unpredictability, cumulative damages,
deterrence, etc.
Cost of administering system
Most courts reject Barber Lines - but dont have consensus
on appropriate rule on liability
Contributory negligence
Butterfields (1809)- if P is at fault, however slight, he can't
recover for D's negligence
Almost every jurisdiction has replaced contributory
negligence as a complete bar to recovery
Last clear chance doctrine
Davies - D could have avoided P's donkey negligently
on side road so D was liable and P can recover
P can recover when he is helpless/inattentive if
P cant avoid and D is aware
Negligent in failing to use reasonable care to
avoid it
Knows P can't discover danger in time to avoid it
Defense: Assumption of the risk
Defense to established breach of duty when one
undertakes a risk or known danger
Meistrich - D was negligent even though P assumed the risk
on ice rink - court rejected defense of assumption of risk
Restatement section 486
By contract or express agreement assumes risk cant
recover unless K is invalid
If fully understands the risk and still voluntary chooses
to do it manifesting willingness to accept risk, can't
recover
Unless you have no reasonable alternative to avoid
the harm
Primary assumption of risk
When D owes no duty to protect P from risk b/c P
expressly assumed the risk
No duty, no liability, nothing to compare
Secondary assumption of risk
When D owes a duty of care to P but P knowingly
encounters risk of injury caused by D's negligence
Comparative negligence
Recovery may be reduced but not eliminated by P's own
fault
California follows a pure comparative negligence rule
P can recover regardless of degree of fault but
recovery is reduced by P's % of fault
Most states have a modified comparative rule
sets a limit that when P's negligence equals or
exceeds D's negligence, recovery is barred
In California - PROP 51
If good faith settlement, your out of the case

You want settlements on non-economic harm b/c noneconomic harm is not deducted
Economic harm will be jointly and several
Relatively responsibility rule
A participant in an active sport breaches a legal duty
of care only when he intentionally injures another or
engages in conduct so reckless to be totally outside
the range of the ordinary activity of the sport
EX: Knight v. Jewett - P was injured in touch
football but P assumed the risk by participating
so no liability
In California, golf and skiing falls is an active
sport
Immunities:
Government
Discretionary function exception:
Is action governed by mandatory law or is it
discretionary?
If discretionary, is it susceptible to policy
analysis?
Design is protected but implementation of course of
action is not
Charitable
Most states abolish this immunity
Intrafamily
Most states have abrogated it partially
Except Georgia - where no marital harmony, no
immunity
Few states removed it completely
Parental immunity in negligence actions not
intentional torts
Strict liability
Maintaining Custody of Animals
Property damage
Strict liability when animal intrudes upon land of another
and possessor is liable regardless of care to prevent it
(livestock but not cats and dogs)
Other harm caused by animals
Wild animal = belongs to category that has not been
generally domesticated and are likely, unless restrained, to
cause personal injury
Domestic animal = general rule is that owners are strictly
liable only if owner knows of the vicious tendencies of
the animal
Must establish
Animal is wild or has vicious tendencies and
ownership
Exception
Public zookeepers = liable only for negligence in
keeping wild animals

But if private zoo for profit, then strict liability

Common Law says:
23 - abnormally dangerous animals
An owner of an animal that owner knows has
dangerous tendencies abnormal for the animal's
category is subject to strict liability for physical harm
caused by the animal if harm comes from that
dangerous tendency
Most states have statutes that change the CL rule and
impose liability irrespective of owner's prior knowledge of
dog's viciousness
California - one free bite rule
Abnormally Dangerous Activities
Restatement 519 - abnormally dangerous activity - strict
liability
One who carries an abnormally dangerous activity is
subject to liability for harm even if he exercised
utmost care to prevent it
Such strict liability is limited to the kind of harm
that risk makes activity abnormally dangerous
Restatement 520 - what is an abnormal activity?
Factors to be considered:
Whether it involves a high degree of risk of
some harm
Whether gravity of harm is great
Whether risk cannot be eliminated by exercise
of reasonable care
Whether activity is not common
Whether activity is inappropriate to place it
carried on
Value of the activity to the community
Restatement 3rd= an activity is abnormally dangerous
when it creates a foreseeable and highly significant risk
of physical harm even when reasonable care is exercised
and the activity is not common usage
Can be abnormally dangerous under particular
circumstances even if the activity isn't under
ordinary circumstances
Products Liability
Did product CAUSE injury?
Was product distributed by D?
But for defect, would it not have occurred?
Was injury within range of foreseeable risks?
Manufacturing defects
Negligence
Winterbottom - defective mail coach where P was injured
b/c D failed to repair (negligent) but no liability b/c no
privity of contract - privity barred recovery
Thomas v. Winchester - abandoned lack of privity rule

Woman bought a bottle from a druggist whos

manufacturer negligently labeled as medicine and was
poisoned, Manufacturer = liable b/c falsely labeled
poison is imminently dangerous
Lack of privity is ok: if imminently dangerous to the
lives of others, then lack of privity doesnt matter
MacPherson v. Buick Motor Co. - manufactures have
duty to inspect when its dangerous
Warranty
Implied, express, fitness for a particular purpose
EX: sales of goods like food and drinks under UCC where breakfast roll had a pebble in it, makes
restaurant liable b/c the roll wasnt merchantable
Henningsen v. Bloomfield Motors, Inc. - extended
warranty to ultimate purchaser and their family
Strict liability dressed up as warranty/contract
Strict liability
Restatement 402A - Strict Products Liability Rule
One who sells any product in a defective condition
unreasonably dangerous to the user or consumer
or to his property is subject to liability for physical
harm caused to the ultimate user if
The seller is engaged in the business and
It is expected to reach the user/consumer without
substantial change in the condition it is sold in
(its in defective condition at the time the product
leaves seller's hands)
EX: sugar, alcohol, butter is not
unreasonably dangerous but poisoned butter
is
The rule applies even if
The seller has exercised all possible care in
preparation and
The user/consumer has not bought the product
from or entered into any contractual relation with
the seller
Greenman v. Yuba Power Products - a manufacturer is
strictly liable in tort when an article he places on the
market, knowing that it is used without inspection for
defects, proves to have a defect that causes personal injury
Restatement 3rd 1 imposes duties on ALL
commercial sellers who are in the business of sale
As a general rule, each seller has a right of indemnity
against those sellers higher up the chain
Retailers and wholesalers are getting off the hook if
manufacturers is identified and financially able to pay
EX: owners of grocery store is strictly liable for a
can strictly sealed manufactured with a defect
Restatement 3rd Circumstantial Evidence Supporting
Inference of Product Defect

It may be inferred that harm was caused by product

defect at the time of sale without proof of a specific
defect when the incident:
Was of the kind that ordinarily occurs b/c of a
product defect and
Was not solely the result of other causes
Economic harms:
Majority of courts deny recovery b/c of economic loss
in tort and allow P to recover in contract law instead
Pennsylvania Glass Stand - allows recovery if its
dangerous
Some courts allow recovery in strict tort liability for
economic harm
Majority courts follow East River - P was denied tort
recovery when defect injured only product itself
Majority courts follow Saratoga Fishing - other
property added to the product allows recovery for
physical damage to product
Boat sank due to a fire from system supplied by D
P could recover for physical damage to the
equipment added by the initial purchaser
EX: stereo added to the car, can recover for
the stereo b/c of a car defect
When product injuries other product
Jimenez v. Superior Court
Windows leaked where it caused physical damage
to house
Majority said house = other property so can
recover for damage to the house under strict
liability
2nd opinion - Test: whether it was so integrated
into the whole that it lost its identity
It was a separate enough identity to be
categorized as other property
KB Home v. Superior Court rejected dangerous rule
Nox rods caused heaters to overheat and crack
and can gas you and burn down house
Heater was the product but builder said heater
with Nox rod was a separate product
Since Nox rod caused damage to the heater
(using Jimenez - can recover for damage b/c
it caused damage to other product)
We think same product or separate product
is whether it is sufficiently discrete that if
one failed and damaged other parts of the
product, then its "other product"
Restatement 19 - What is a product?
A tangible personal property distributed for
commercial use or consumption.

Services, even when provided commercially,

are not products.
Restatement 8 - Commercial seller's liability for
defective used products
When defect results from seller's failure to
exercise reasonable care
Or when its a manufacturing defect or marketing
causes reasonable person to believe product
present no greater risk than if it were new
Used product = was commercially sold and used
for some period of time
Restatement 20 - One who sells or otherwise
distributes
= one who sells a product or transfers ownership
leading to use, including manufacturers,
wholesalers, and retailers
= one who distributes a product other than sale
leading to use, including lessors, bailors, and
promoters
= one who sells combo of product and services
and either is taken as a whole or product itself
satisfies (a) or (b)
EX: renting a bike = strictly liable
EX: shopping cart = strictly liable
EX: commercial laundry mat = strictly liable
EX: 24 hour fitness = negligence b/c service
Actual Causation (cause-in-fact)
Same place at the same time standard
Weakley - at a min, P must show that he and D's
products was in the same place at the same time and
that exposure to asbestos boiler was a substantial
factor to injury
Test: must prove with specificity the frequency and
regularity of exposure and proximity with D's product
Sometimes difficult to determine who caused when product
is unidentified by trademark and in no way unique to D
EX: DES cases, product defective b/c of design and
marketing, not manufacturing.
EX: Sindell v. Abbott - D held liable in proportion to its
share of the DES market
Design defects
Marketing defects
Warranty
Warranty of fitness/merchantability might give more damages
b/c the good might have promised more than a risk/utility or
minimum consumer expectation analysis
EX: a tool breaks, warranty, even though it was adequate
for use it wasnt adequate for particular purpose

EX: shatter proof window, rock hit it and it shattered express warranty so get more than if you proceeded under
strict liability
Barker v. Lull Engineering p.517
Barker1- consumer expectation
Barker2 - risk/utility
Hindsight (difference between negligence (look at conduct) and
strict liability (look at product)
Injured by design, shifts burden of proof to D

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