Professor Malkovich Week 11 Notes: Apr 4 – 8
By Eunji Cho
April 5, 2016
Rest of elements for negligence
• Causation (physical causation)
o Whatever action (breach of duty) that the defendant did caused the consequences
o Intervening cause
▪ Something else happened that prevented the
defendant to keep the duty -> moving
responsibility to the other cause
• Proximate cause (legal cause)
o Only held responsible for reasonably foreseeable
o If the plaintiff acted in a way in which a reasonable person wouldn’t, then the defendant’s actions don’t
have proximate cause.
Defense for Negligence
• Assumption of risk
o If the plaintiff assumed the obvious risk, the plaintiff recovers nothing.
o Joe knew the risks for touching the power lines – he is out of luck.
• Contributory negligence
o When the plaintiff contributed to the harm they suffered through their own negligence.
• Comparative negligence
o Applies in Massachusetts
o Balance between conduct of plaintiff and defendant, gives jury the mechanism to make the adequate
o The defendant must be at least 51% negligent
▪ The defendant has to be more negligent than the
▪ Jury decides the percentage If you want to learn more check out What are human methods?
▪ If the plaintiff and defendant are equally
negligence, the outcome is $0 (no damages).
▪ If there are $100,000 in damages, and the
plaintiff is 40% negligent, the defendant only
pays $60,000. (defendant 60% negligent)
• Extremely dangerous or hazardous activity
o The defendant’s actions were extremely dangerous or hazardous
o The defendant’s actions caused the damages
• With strict liability, if the defendant does anything extremely hazardous, you will be responsible for anything caused due to your actions. We also discuss several other topics like What are disadvantages of being landlocked?
• Extremely hazardous activity doesn’t always have to involve causations or damages as long as you don’t cause any bad consequences
“Act of God”
• Found under few insurance elements to exclude their liability • Doesn’t protect defendants from strict liability Don't forget about the age old question of How does obedience to authority influence our behavior?
Product Liability Cases
• Possible defendants if a product is defective
o Primary material supplier We also discuss several other topics like What causes rigor mortis?
• Possible plaintiffs (altered by possible defendants)
o Single plaintiff
o Multiple names plaintiff
o Class of plaintiffs
▪ Survey to find more people who were affected by
the defected product
▪ Class Action Lawsuit If you want to learn more check out What is ventilation in a respiratory system?
???? Similarly situated with respect to liability Don't forget about the age old question of How do you find the electric force between a proton and an electron?
???? Efficient for court to bring everyone with
similar situations together
???? Plaintiff’s lawyer explains why court should
agree with class action lawsuit
• Products Liability Theories
1. Negligence (should check products to make sure there are no side effects)
▪ Duty of care
▪ Breach of duty
▪ Proximate cause
2. Breach of implied warranty of fitness for normal purposes
▪ Theory strongly favoring consumers
▪ Companies would be responsible for potential
damages under this theory, although their
‘disclaimer’ says otherwise
▪ Under this theory, companies are implied to
warrant the quality of the product
▪ Defense: Misuse of product
▪ The plaintiff doesn’t have to be someone who
bought the product, as long as they used the
3. Strict liability
▪ Unreasonably dangerous product (instead of
extremely hazardous activity)
???? ‘State of the art’ defense
• If products are inherently dangerous,
the company that manufactures the
product has to make them the safest
• Lawn mowers evolved to significantly
reduce the possibility of damages
through using the product
• If the product is safe (state of the
art), but the customer got hurt
anyway, then the law is in favor of the
company since they made the product
April 7, 2016
Products Liability Theories (continued)
• Material fact about a product which would reasonably induce somebody to rely upon such representation
• Reasonable reliance by the buyer on the representation • Damages
5. Breach of warranty of fitness for a particular purpose • Reliance on expertise of seller in choosing the product o Getting advice at Wal-Mart and a specialty store is different – when you go to the specialty store and rely on their expertise, then you would have a claim against the specialty store if the product failed.
• Key is the consumer’s reliance
Privity: Relying on relationship between the consumer and the provider