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This 17 page Bundle was uploaded by Nicholas Ardito, 2L, GGU School of Law on Thursday February 13, 2014. The Bundle belongs to a course at Golden Gate University taught by a professor in Fall. Since its upload, it has received 208 views.
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Date Created: 02/13/14
Intentional Torts 9Must prove that D intended to affect P in way that the law forbids legally protected interest 9Legal interest9 a right or privilege that the law protects Battery Intentionally causing harmful or offensive contact with the person of another 9act requirement9 must show that D committed a voluntary act Intent9 desire to cause harmful or offensive contact or D must be substantially certain that harm will occur 9 must intend the contact not necessarily the harm Water v Blackshear9 D intended the act firecracker but not the harm9 D still liable for negligence 9 Insanity is not a D to intent because one still intends the harm Offensive9 Violates a reasonable sense of dignity objective test 9 smoke case 9 even an intentional joke that is unintended to cause harm is a battery 9 mental impairment is not enough to show lack of intent unlike criminal law 9 as long is offensive or harmful contact is intended Assault Intentional apprehension of imminent harmful or offensive contact 9 an injury can be both assault and battery if the P perceives the impending contact Apprehension9 9 must be immediate 9 based on reasonable person test objectively measured Transfer of Intent Among People and between Torts 9 Hall v Mcbride9 D intended to assault a 3rd person but ended up committing a battery on another person 9 the intention follows the bullet 9 ie when one shoots into a crowd one is liable even though the person they intend to hit is hard to prove Defenses 9 Consent9 Arises when a person voluntarily relinquishes the right to be free from harmful or offensive contact or apprehension thereof Express consent9 ie a fight Implied consent9 playing a sport game 9 one doesn t use consent as a defense to transmitting a STD if D didn t inform P of the disease 9 Scope of consent 9 ie if one comes to a fight with bear fists and the other comes with a gun this is not consent SelfDefense 9 Proportionality Principle9 When protectingdefending one s self others or property and actor may use force proportionate to the injury or harm by the other 9 the law values human life more than property 9 If one come uses a deadly weapon to protect land not appropriate self defense 9 Pg 649 factors for when use of deadly weapon is appropriate self defense 9 unreasonable force 9 threat of injury must be imminent case where dad shoots man in back after he was no longer a threat 9 threat to land or property9 deadly force not usually accepted Intentional In iction of Emotional Distress 1 Extreme and outrageous conduct 2 Intending or recklessly causing 3 Severe emotional distress 9 must prove that D conduct caused emotional distress 9 Outrageousness9 objective test reasonable person Zalanis V Thorobread 9 behavior normally would not constitute outrageousness but D knew of P past emotional trauma which made it outrageous 9 intent substantially certain9 also includes reckless 9 extramarital affair9 not outrageous9 even though its morally bad 9 outrageousness of the harm can be enough evidence to show harm occurred 9 no need for expert testimony to show harm for such cases Reckless9 disregard of the substantial probability of causing harm Transferred Intent Between People for IIED Green9 newspaper company took pictures and wrote article of P dead son 9 P didn t recover bc she article was not directed at her and didn t use her name Restatement 469 Transferred Intent 9 When outrageous conduct is directed at 3rd person actor is subject to liablility if hese causes intentional or reckless emotional distress to9 1 any member of the persons family who is present whether or not it caused harm 2 anyother person that is present and emotional distress results in bodily harm False Imprisonment 9Intentionally and unlawfully restraining P within a bounded area and9 a P must be aware of confinement b And there must be no reasonable means of escape 9 bounded area 9 Shopkeepers Privilege Negligence 9 In order to establish a successful negligence claim plaintiff must prove that the defendant owed him a duty defendant breach that duty and the conduct that constituted a breach caused harm to the plaintiff and damages DUTY BREACH CAUSATION DAMAGE Lty Asks two questions 9 To whom is a duty owed 9 Cardozo foreseeable plaintiffs 9 Andrews everyone owes a duty to the world at large 9 Doctors have a duty to a patients baby even if the its not yet bom 9What was the standard of care 9 Reasonable person under the same circumstances 9 Could use Learned Hand Balancing test9 1 likelihood of harm 2 magnitude of harm 3 Burden of prevention must be minimal compared to 1 amp 2 General Duty Rule9 no duty to protect or aid another unless one assumes a duty9 ie someone who sees another drowning has no duty to save unless they assume a duty and try to save them them they cannot stop half way there Other situations that show Duty9 Special Relationships not conclusive9 1 carrierpassenger 2 inkeeperguest 3 employer employee 4 landlord tenant 5 inviterinvitee 6 customer corporationbusiness Rational Based on element of control9 when one entrusts himself to the control and protection of another bc they are best positioned to provide safety Emergency Doctrine9 sudden emergency is taken into account when explaining to the jury the standard of care 9 reaction must be spontaneous 9 Skill and knowledge of D is taken into account when determining reasonable standard Standard of Care for a Child9 reasonable careful child of the same age intelligence maturity training and experience under the same circumstances 9 Exception9 when child is engaging in inherently dangerous activity or aduly activity ie driving a car 9 Reckless9 intentional or unreasonable disregard of risk of high probability that harm will result to another Breach Must prove that defendant failed to act as a reasonable person or below the standard of care 9other ways to establish Breach 9 l Negligence per se violation of a statute 9 a Statute must be aimed to protect against the type of harm that resulted b Plaintiff was a member of the class of people that the statute was designed to prevent 2 Res ipsa loquitur circumstantial evidence that proves breach without detailed or direct evidence 9 4 elements must be present 9 a type of injury was associated with negligence b D had exclusive control of whatever caused the injury c P made to causal contribution to the harm d D access to information about the event was superior to that of the P 3 Custom 9 just a measure not definitive by the law Causation Must prove that D breach was actual cause and proximate cause 91 Actual cause9 butfor test can be more than one but for cause 9 substantial factor test 9 there can be more than one cause to an injury9 Multiple Sufficient Causes Alternative liability9 When two or more D negligently act together to cause one indivisble injury and it can t be established which one actually caused the harm when butfor doesn t work 4 elements9 1 2 or more D breach causing a single harm 2 either one could have caused the harm 3 all D must be present 4 D jointly and severally liable Summers v Tice 9 two D accidentally shoot at P while hunting one of them hit the P but can t prove exactly which one 9 Both D liable 9 Burden of proof falls on each D to prove that they didn t do it Concert of Action9 permits a P injured by D tortuous conduct to impose liability on someone else in addition to D 9 3 elements needed 9 a tortiuous act is done in concert with the D or pursuant to a common design b knows that the other D act constitutes a breach of duty and gives substantial assistance or encouragement to the other D to conduct a breach c his own conduct separate of tortuous act of other D constitutes a breach of duty to P Substantial Assistance9 5 Factors to consider9 a nature of Wrongful act b kind and amount of assistance c relation of D to actor d presence or absence of D in occurance of Wrongful act e D state of mind Market Share Liability9 When P injured by product that is produced identically by multiple manufacturers 9 happens a lot with generic drugs a injury caused by fungible IDENTICAL product b injury or illness results due to design hazard c inability to specify specific manufacturer d Defendants represent a substantial share of the market 9 liability on D falls on him based on market share of the product in the US Loss of Chance of Recovery or Increased Risk of Eventual Harm Loss of Chance9 when D doctor deviated from professional standard that deprived P of chance of recovery 2 Proximate Cause 9 Limits liability if resulting harm was not foreseeable 9 Foreseeablitv Test9 if the accident was a reasonably foreseeable consequence of the D conduct then D is liable If some harm is foreseeable then D responsible for any harm that is a direct result of his breach Intervening Cause9 Limits liability if the intervening cause in the harm was unforeseeable making it a Superceding cause Eggshell Plaintiff 9 can t limit liability because D could not foresee that P was unusually susceptible to injury Restatement 3rd Risk Standard Approach 9 Considers all the risks of harm created by the actors conduct and Whether the harm that actually occurred was one of them Damages 1 Joint and Several liability 9defendant may either join other defendants to suit through contribution or sue third parties through indemnification ii Contributory jurisdictions defendants split evenly right of contribution iii Comparative jurisdictions defendants split based on fault comparative contribution 2 Several liability Where joint and several abolished comparative negligence jurisdictions 9P must sue all responsible parties and each defendant is only liable for their percentage fault 9immune defendants may be including in apportioning fault Defenses 9Initiated once negligence is proven Contributory Negligence 9 If P conduct contributed to its own injury then P is barred from recovery complete defense Comparative Negligence Modern Approach 9 Partial defense 9 damage award is reduced according to P percentage of fault 9 Pure Comparative Negligence9 partial defense no matter how much P was at fault 9 Modified Comparative Negligence 1 50 rule9 P negligence is complete defense if P was more at Fault than D 2 49 rule9 P negligence is a complete defense if P negligence was equal to or more than D fault 9 P must be causeinfact Unit Rule9 P negligence is compared to the added up negligence of all D Majority view 9 minority vieW9 each D compared individually 9 Reckless Last Clear Chance Doctrine 9 Allows a negligent P to recover if injured in circumstances Where D had the last chance to avoid injury Assumption of Risk 9 Express Assumption of Risk9 agreement by P to accept certain risks created by D activities 9 usually a written release9 in exchange for services or product Enforceability of Release asks 2 questions9 a does public policy permit such a release b Does it have merit Public duty Those with Public duty to others typically cannot ride themselves of duty to use reasonable care Factors for when Exculpatory Agreements violate public policy 1 business endeavor suitable for public regulation 2 Party seeking agreement is engaging in service of great importance to public 3 Party holds itself as providing service to all members of public who seek it 4 Bargaining power of party seeking agreement 5 No options to negotiate terms of agreement standardized forms no alternatives 6 Party seeking agreement places P is placed under control an care of sellerprovider of service Typical situations common carrier innkeeper landlord tenant employer employee disparity in bargaining power Implied Assumption of Risk 1Primary Implied Assumption of Risk when D had not duty to P due to the nature of the activity they were engaging in not a true affirmative defense says the D had no duty and didn t breach it 2 Secondary Applied Assumption of Risk when P had subjective actual knowledge of risk and appreciated the nature of risk and voluntarily accepted the risk similar to contributory negligence Multiple Defendants Joint and Several Liability When multiple D are liable for one injury then P can collect entire Damage amount from one D can sue another D for Contribution 99999999999999 Several Liability When each D is assigned apportion of damages for one injury based on their share of responsibility when apportioning fault immune or absent D fault can be used in calculation Vicarious Liability When an actor is liable for someone else s conduct that is tortuous Respondeat Superior When an employer is liable for negligent acts of an employee committed within the scope of employment policy rationale9 employers have insurance that they can pay for through price increases9 employees do not so it is fairer that employers bear the burden 9 no right to contribution between employer to employee 9 indemnification 9 Going and Coming Rule9 regular commuting to and from work is not within the scope of employment unless on Special Errand 9 Complete departure from special errand is not within scope of employment 9 Frolic or detour9 Frolic9 complete abandonment of employment role Detour9 temporary detour of employment role Employers are not vicariously liable for acts of Independent Contractors Factors to Determine if Employee is an Independent Contractor 9 whether employee sets own hours 9 whether employee negotiates the cost of service 9 whether employee has control over how job is to be done 9 employers right to terminate employee 9 looks at control of employer over independent contractor 9 degree of supervision 9 specialization of independent contactor 9 duration of employment 9 method of payment 9 relation of work done to employers regular business operations EXEPTION9 Nondelegable Duties Employer is liable for Independent contractors conduct for inherently dangerous activity Vicarious Liability for Vehicle owners 9 makes vehicle owner liable for the tortuous conduct of all users of their vehicle Factors for imposing liability on vehicle owners9 1 Operator was using the vehicle with the owners permission express or implied 2 Death or injury to person or property 3 Harm is result of operators negligence 4 Negligence rose from use of vehicle PROFESSIONALS 9 establishing standard of care for professionals Medical Professionals 9 can apply their own custom industry standard of care because of Special Relationship with patients because they are motivated to help their clients 9 assures that standards will be set to protect the public at large 9 doctors main goal is not profitability but rather the care and protection of their patients Strict Locality Rule Modified Locality Rule9 Doctors must go by the same standard care and skill as doctors in similar localities under the same circumstances Common knowledge exception 9 when expert testimony is not needed to establish the standard of care and breach thereof because it is not outside the knowledge of jurors Informed Consent 9 doctors must obtain informed consent from patients before performing procedures on them 9 must provide information about the procedure and risks involved 9 disagreements over how much information is required 9 Prudent Patient Standard9 doctor must enclose the information that a prudent patient would want to know before making a decision 9 Professional Standard9 doctor should enclose to the patient what a reasonable medical professional would do in the same circumstances Informed Consent 9 To recover damages on an informed consent theory P must show that9 1 D provided less information than the jxn requires 2 Causal link between lack of information and the P consent ie the P would have declined to consent to the surgery if they were informed of the risk 3 Patient suffered injury 9 P burden of proof in informed consent claims 9 Multiple D doctors 9Burden of proof shifts to Ds to prove who actually made the mistake or caused injury Legal Malpractice 9 Standard of Care for Lawyers9 degree of care skill and knowledge of a reasonable lawyer in the state D practices in Legal Malpractice Claim9 must show9 1 P employed attomey 2 Failure to act according to standard of care 3 Causal connection between D negligence and P injurydamage 9 Common knowledge rule applies as well 9 Con ict of interest is not a cause of action just a measure of standard of care Trail within a Trial9 used to asses legal malpractice to show what P would have been awarded if lawyer was not negligent and did his job correctly Collectability Commercial Industries 9 cannot set own custom standard of reasonable care because they are motivated by profit as oppose to medical professionals OWNERS AND OCCUPIERS OF LAND 9 Owners of land can be liable for injuries of others caused on owners land 9 Trespasser licensee or invitee Trespassers9 duty to refrain from reckless intentional and wanton conduct towards the trespasser 9 trespassers entering intentionally to commit crime9 duty not to intentionally injure 9 when landowner is aware that trespass is common or tolerated then land owner is required to use reasonable care to protect trespassers from injuries caused by landowners activities or by artificial conditions on the land 9 less of a duty for natural conditions 9 anticipation of trespassers is a factor considered when determining land owners duty to trespassers Licensee9 social guest 9 landowner has duty not to injure by intentional wanton or grossly negligent conduct 9 must wam or make reasonably safe dangerous conditions of which owner is aware of and licensee is not In order for Licensee to establish liability must prove9 1 condition of the premise created unreasonable risk of harm 2 owner knew of condition and failed to use ordinary care to protect licensee 3 licensee did not know of condition 4 owners failure to warn or protect was proximate cause of injury 9 No duty to wam of known or obvious dangers Invitee9 business relation mutual benefit to both parties 9 Landowner has duty to protect from hazards of which the owner is actually aware and risks which the owner would discover by exercise of reasonable care inspection Invitee can Recover if9 1 landowner knew or should have known of condition on the premise 2 condition posed an unreasonable risk of harm 3 landowner failed to use reasonable care to reduce or eliminate risk 4 landowner s failure to use reasonable care proximately caused P injury Attractive Nuisance Doctrine 9Special obligation owed to children who are trespassers Owner of land subject to liability for physical harm caused to children trespassing that is caused by an Arti cial Condition if 9 1 landowner knew or had reason to know that children are likely to trespass anticipation that children will trespass 2 condition is one which landowner knows or should know will involve an unreasonable risk or death or bodily injury 3 children do not realize or appreciate the risk of danger when trespassing 4 utility of protecting against the condition is less burdensome than the risk of danger involved 5 if landowner fails to exercise reasonable care to eliminate the danger or protect the child 9 Domestic animals are NOT an attractive nuisance Tenants and their guests 1 owner owes no duty to guests because control of property is with tenant 2 exceptions i undisclosed dangers known to lessor and unknown to lessee ii dangerous to persons outside property iii leased for admission to the public iv parts of land still under owner control v lessor contracts to repair vi negligence by lessor in repairs completed 3 many states apply this to tenants as well 4 current shift towards reasonable care to discover and remedy unreasonable risks based on circumstances G Modern Approach 1 reasonable care to all persons on property legally 2 no intentional or reckless harm to trespassers i some jurisdictions extend reasonable care to trespassers Modern trend Negligent Infliction of Emotional Distress 9 Initially the law allowed one that suffers emotional harm from another s negligent conduct only if the person suffered physical injury as well impact rule 9 Modern Approach9 courts now allow one to recover for emotional harm if they were in the zone of danger created by the D Zone of Danger Rule 9 P that suffers emotional harm from D negligent conduct can recover if 1 they were in the area of immediate physical danger created by the negligence that caused the emotional harm 9harm must be foreseeable to the D Bystander Liability 9 when one suffers emotional distress from witnessing another s injury Elements9 1 percipient witness must be near accident to an accident that kills or severely injures 2 a family member 3 must suffer serious emotional harm 9Emotional harm must be severe and in most states not CA there must be physical manifestations 9most states require blood or marriage relationship closely related 9foreseeability STRICT LIABILITY liability without any fault 9Traditional Strict Liability STRICT LIABILITY FOR ANIMALS scienter action Strict liability for harm caused by wild animals 9Wild animal9 animal that is not by custom devoted to the service of mankind at them time and place at which it is kept 9 liability for harm that is related to animal s nature 9 Reciprocal Risk Theory9 D wild animal owner has a risk to others that do not pose the same risk back Strict liability for domestic animals known to be vicious 9 Scienter action9 prior circumstances put owner on notice 9constructive knowledge of vicious propensities of a domestic animal 9 harm related to nature of the animal Negligence for nonvicious domestic animals except 9Strict liability for harm caused by trespassing domestic animals Strict Liability for Abnormally dangerous activities 9Defendants are strictly liable for harm caused by abnormally dangerous activity 9Restatement factors of activity that is abnormally dangerous 9 1 activity involves a high degree of risk of harm to persons land or chattel 2 level of harm that may result is great 3 risk cannot be eliminated by the exercise of reasonable care 4 if the activity is a matter of common usage 5 if the activity is inappropriate to the place where it is carried on 6 the value of the activity to the community Strict products liability 9Manufacturers or anybody within the chain of distribution are strictly liable for harm caused by defective products when9 1 Defect exists when product leaves manufacturer product is intended for use without further inspection 2 P is any foreseeable end user 3 Harm must be caused by intended or foreseeable use 9 product has to be used in the way it is intended or any foreseeable use 9FOCUS ANALYSIS ON THE PRODUCT AND WHETHER IT IS DEFECTIVE then 9Mention causation but generally wont be a big issue unless chain of events that cause the harm 9When done talking about strict product liability then talk about negligence subtle shift from talking about product to the conductdon t mix the 2 they are separate causes of action Types of defects 9Manufacturing defect a Product deviates from intended design or b not identical to products from the same production line c Can prove existence of manufacturing defect with indeterminate product defect test 9 circumstantial evidence of defect like res ipsa Design defect 9Consumer expectation test 1Product is more dangerous than would be expected by ordinary end user 9No strict liability for open and obvious dangers 9Risk utility Balances utility of product against its risks Factors9 a usefulness and desirability of the product9 utility to the user and public as a whole b likelihood and seriousness of injury c user s ability to avoid danger through reasonable care d ability of manufacturer to spread cost of loss through pricing or insurance e user s awareness of danger inherent in the product f availability of altemative design that would meet same need and not be unsafe 9Commercial feasibility of alternative design 9 9 must be able to sell 9 must be affordable to consumers 9Critical issue is whether there was a commercially feasible alternative that would make the product safer Which test applies varies according to jxnlook at diff approaches on p 697 note 4 Warning defect9 1 Manufacturer has duty to wam of known or knowable dangers associated with product 2 Warnings must be adequate to inform end user of dangers 3 No duty to wam of obvious dangers Defenses to strict liability 9Comparative negligence in strict product liability 1 When plaintiff knows that product is defective and unreasonably and voluntarily proceeds to use it 2 When plaintiff misuses the product and misuse is a proximate cause of the injuries 3 When plaintiff ignores open and obvious dangers 3 Unforeseeable misuse 9A risk is not foreseeable by a manufacturer where a product is used in a manner which couldn t reasonably be anticipated by manu and that use is cause of plaintiff s injury 4 Assumption of risk 5 State of the art product 9Sometimes used 6 Foreseeable unintended users is not a defense 7 risk utility test Special rules for drugs 9In some jxns9P proves defect using consumer expectation test 9Manufacturer defends with riskutility test Drugs must 1 be properly manufactured 2 have benefits that justify the risks 3 at the time it was made could not be safer Learned intermediary exception 9For prescription drugs manufacturers are entitled to rely on doctor to give adequate warning of side effects Exceptions9 1 Mass immunizations 2 FDA requires direct warnings to consumer warnings must be adequate based on common law of state 9Bare compliance wFDA guidelines may not be enough to prevent liability Crashworthiness doctrine 9Product liability claims arising from car accidents 9P must prove design defect was substantial factor in causing enhanced injury 9Burden shifts to manu to show injury was not result of design defect 9 P is compensated only for the enhanced injury that resulted from product design Breach of Warranty stricter than product liability 9Express warranty 9Consider any statements made by manufacturer 9 Implied warranty l Implied warranty of merchantability 9Product must be fit for its intended use basically same as consumer expectation test 2 Implied warranty of fitness for a particular purpose 9Seller is aware that P is relying on seller s expertise to select the product for a particular use 9T his cause of action would require some interaction between buyer and seller NEGLIGENCE FOCUSES ON CONDUCT STRICT LIABILITY FOCUSES MORE ON THE PRODUCT TRESPASS amp NUISANCE Trespass to land intentional tort 90ccurs by placing objects on the property causing a third party to go onto the property or by remaining on property after the expiration of a right of entry lntention to enter upon the particular piece of land in question irrespective of whether the actor knows or should know that he isn t entitled to enter lntent must be free will volitional act 9Scope of liability damages to anything ppl land property by an intentional trespasser need not be foreseeable to be compensable 9Must have caused the damage actual causesubstantial factor 9Some states 9Must show actual damage 9Restatement Znd A trespass on land subjects the trespasser to liability for physical harm to the possessor of the land at the time of the trespass or to the land or to his thingscaused by any act done activity carried on or condition created by trespasser irrespective of whether his conduct is such that would subject him to liability if he wasn t a trespasser Trespass to chattel lntentionally dispossessing another of the chattel or using or intermeddling with a chattel in the possession of another 9Partial interference with a possessory interest 9There must be damage with trespass to chattel 9Being deprived of your own possession is considered an injurydamageyou are deprived of right to possess 9For deprivation to be used time must be so substantial that it is possible to estimate the loss caused 9Temporary but significant dispossession Restatement 2nd 9Dispossession may be committed by intentionally 1 Taking a chattel from possession of another without other s consent 2 Obtaining possession of a chattel from another by fraud or duress 3Barring possessor s access to a chattel 4 Destroying a chattel while it is in another s possession or 5 Taking the chattel into the custody of the law 9Remedy9Nominal damages Conversion lntentional exercise of dominion or control over a chattel 9Complete interference with a possessory interest Stealing destroying 9Factors9 1 Extent and duration of actor s exercise of dominion or control 2 Actor s intent to assert a right in fact inconsistent with other s right of control 3 Actor s good faith 4 Extent and duration of resulting interference with other s right of control 5 Harm done to chattel 6 Inconvenience and expense caused to the other 9Remedy 9 Market value of chattel plus interest Defense to trespass 9Private necessity 1 When responding to a sudden emergency not of the defendant s creation that threatens their safety or property defendant is privileged to enter the land 2 To protect yourselfothersproperty from sudden emergency 3 There can be no reasonable alternative 9Still have to pay for any damage that was caused by your trespass Partial defense 9OWner of land has to be careful not to cause damage to the defendant on their land as necessity imposes reasonable duty of care 9Public necessity 1 One is privileged to entertake possession ofdamage land in the possession of another if it is or if the actor reasonably believes it to be necessary for the purpose of averting an imminent public disaster 9Do not have to pay for damages caused by trespass 9Amount of people that make up public is gray areadon t know Nuisance doesn t have to be intentional 9An unreasonable interference with a land possessor s use and enjoyment 9Nuisance can simultaneously be public and private Public Protects interests common to the public Any unreasonable interference with a right common to the general public Must affect a considerable number of people Often brought by govemmental agencies not individuals this is unusual Private Protects a possessor s interest in use and enjoyment of his own landreal property Nontrespassory intentional and unreasonable or negligent or reckless substantial invasion of another s interest in private use and enjoyment of land Elements 1 There was an invasion of plaintiff s use and enjoyment of his property 2 Defendant s conduct was proximate cause of the invasion 3 Invasion was either intentional and unreasonable or unintentional and the defendant s conduct was negligent or reckless 4 Unreasonableness depends on balancing of interests involved under circumstances Analytical Man O Strict products liability Manu defect Design defect Failure to warn o Breach of warranty Express Implied Merchantability Fitness for particular purpose o Negligence Don t just go through DBCD talk about each element really focus on the relevant issues most of analysis on breach o Defenses
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