4 elements of a good warning
· get users attention and id user
· explain what hazard is
o what product will do
o what result would be of how the product acts
· tell the users how to avoid the risk
· describe severity of risk,
· nature of risk (radioactive),
· scope what it’ll do and
· the means of avoidance
· warn and identify
non delegable duties
design defect – everyone has a claim
· proce defective using risk utility analysis
· risk utility
manu defect – could just be one bad product
chilling effect
look for sine qua non – causation problem
natural and probable consequences of an action – proximate cause
· can combine with another cause to produce injury
Torts Overview
· Four major purposes of Tort Law
o To provide a peaceful means for adjusting the rights of parties who might otherwise take the law into their own hands.
o To deter wrongful conduct
o To encourage socially responsible behavior
o To restore injured parties to their original condition, in so far as the law do this by the compensating them for their injury.
· Anonymous King’s bench case- Rule: even if a person unintentionally caused an injury, it is still proper for the injured person to recover for their injury.
· Weaver v. Ward- first court that considered accidents as grounds for non liability.
· Brown v, Kendall- where the defendant accidentally hurts the plaintiff, the burden of proof is with the plaintiff.
· Cohen v. Petty- when someone is suddenly stricken by an illness which he has no reason to anticipate, he should not be charged with negligence.
Spano v. Perini- a person should have absolute liability in cases where they intentionally set off explosives (strict liability)
Intentional Interference with Person or Property
· Intent
o A. Intent- means the intent to bring about a result which will invade the interests of another in a way that the law forbids; knew or should have known that actions would cause the effect.
o i. Garrett v Dailey-(intent of an infant) –
§ to be liable for your intentionally voluntary act, you must know with substantial certainty the consequences of creating risk and with substantial certainty that harm will occur. The court will look at the defendant’s actions to infer what might have been the defendant’s intent.
o ii. Spivey v. Battaglia-(known danger versus foreseeable risk)
§ the defendant must intend the conduct to be harmful. When the defendant has no intent, the tort is negligence; when the defendant has intent there is an intentional tort. If there is intent, the court cannot find negligence.
o iii. Ranson v. Kittner-(mistaken intent (dog)-
§ good faith and mistake do not negate intent. The defendant takes the burden because the act is a significant act which gives rise to the fact that there was intent.
o iv. McGuire v. Almy(crazy/insane lady)
§ mental illness does not negate intent in an intentional tort.
o v. Talmage v. Smith (man with a stick and “transferred intent”)-
§ a person should be held liable if they intended to hurt one person and instead hurt another.
· Battery
o C. Battery- intentional touching of another person or property close to the person in a rude, offensive, or angry manner with the intent to cause harm.
o i. Elements of a battery:
§ 1. Intentional touching- there MUST be physical contact.
§ 2. Rude, angry, or offensive- intent of the touching, nature of the act/touching itself, would a reasonable person act rudely or offensively?
§ 3. With intent to cause harm- timing of act, knowledge that act would cause harm.
§ 4. Anyone can commit the act who has knowledge that the act could be harmful or offensive.
o ii. Cole v. Turner-
§ battery is any touching done in danger.
o iii. Wallace v. Rosen-
§ intentional touching in a battery had to be rude, insolent, and angry.
o iv. Fisher v. Carrousel Motor Hotel (defendant touched the plate the plaintiff was holding)- there is a battery if a person acts in a rude or offensive manner, but doesn’t touch the plaintiff, but instead touches an object that is closely tied to a person, and the touching shows the intent to harm.
o Hypo: Romeo likes to drive his souped up Trans Am around the HS parking lot, racing the motor, accelerating rapidly, and stopping on a dime. He arrives at school one winter morning, speeds across the parking lot, and screeches to a halt in a parking space, hoping to impress girls. Unfortunately, the parking lot is icy; the rear end of the car skids out of control, jumps the curb sideways and knows Thibault to the ground. Has Romeo battered him? No because he did not have intent. Voluntarily does not mean intentional.
· Assault
o Assault- voluntary act with the intent to harm or offend. WORDS ALONE ARE NEVER ENOUGH. An act putting another person in apprehension of imminent battery, done either with intent actually to cause a batter or simply with intent to cause the apprehension.. If this results in actual physical contact, then there has been both an assault and a battery.
o i. Elements
§ 1. Act by defendant (must be voluntary movement)
§ 2. Intent to inflict harm or put the plaintiff in apprehension of harm
§ 3. Apprehension (the act must put the plaintiff in apprehension of imminent harmful or offensive touching or harm) Fear must stem from the attempted battery
ú a. Apprehension = person has to be aware of it. Threat of future harm does not satisfy the test. Conditional threat ma
he opens the car door, the boyfriend suddenly starts the car off, making it dangerous for her to exit the moving vehicle. False Imprisonment? Prosser p. 50
§ The woman had refused to go anywhere on the day in question with boyfriend but to store and back. She was back she was in front of her parents house and she had the car door open when the bf suddenly started off. A jury could well have found her testimony that her consent to go anywhere with her bf on the day in question was limited to going to the store and back; that she had previously expressly told him she would no go tou; with him that evening, so that the limited consent had expired; and that her having the door open in the stopped car in front of her parent’s home indicated her lack of consent to any further movement
· Intentional infliction of emotional distress
· Trespass to land
o “a man’s home is his castle”
o Traditionally, this invaded interest had been one of the right to exclusive possession of land.
o The intent is to do the volitional act
o Dougherty v. Stepp
§ Every unauthorized and therefore unlawful entry, into the close of another is a trespass, and every entry of this kind entitles the possessor to some sort of damages. No matter how insignificant the damages may be.
ú Even stepping on a blade of grass
o Bradley v. American Smelting
§ Airborne particles from ASARCO located 4 miles from plaintiff’s property
§ whether an invasion is a trespass or nuisance does not depend on whether the intruder is tangible or intangible
§ Difference between trespass and nuisance: law of trespass applies if the intrusion interferes with right to exclusive possession of property; law of nuisance applies if the intrusion interferes with the use and enjoyment of the property( these are not necessarily mutually exclusive)
§ Question: does their have to be some kind of harm?
ú The act alone means that there is some kind of damage
ú Exclusive possession = nominal damages
o Herrin v. Sutherland
§ A shot that passes over property of another is an intentional trespass
§ If spray from the shotgun were to hit a person, the intent of trespass transfers to the battery of the child.
The airspace, at least near the ground, is almost
