BUSA2106 Lecture 19Outline of Last Lecture I. Intentional torts against the personII. Negligence Outline of Current Lecture III. Strict LiabilityIV. Product LiabilityCurrent Lecture Intentional Torts against Property• Trespass to land• Trespass to personal property• Conversion• Disparagement of propertyTrespass to Land• Intentional interference with a property right without the consent of the owner• Defenses?– Warranted– LicenseTrespass to Personal Property• Intentional interference with owner’s enjoyment or use of personal property that– Deprives the owner of use of the property or– Results in actual damageConversion• Unlawful taking (or retention) of personal property that deprives the owner of use• Civil equivalent of thef• Defense:– Necessity – Not “good intentions”Disparagement of Property• Defamation about a product or property• Slander of quality:– Questions the quality of a product• Slander of title:– Questions the legal ownership of property• Is this disparagement?– Picketer outside of grocery store with sign that says, “Tyson chicken will make you sick.”Intentional -> Negligent Torts• Negligence – Unintentional or accidental conduct– Negligence is a huge category; unlike intentional torts, which are more narrowly definedNegligence• Elements:–Defendant owed plaintiff a duty of care–Defendant breached that duty– Plaintiff suffered an injury–Defendant’s breach caused the injury• Causation in fact• Proximate causeDuty of Care• The care that a reasonable and prudent person would use in the same or similar circumstances.– Objective standard: how people should act• Duty of “utmost care” for:• Professionals, e.g. doctors and lawyers• Common carriers• InnkeepersTwo Types of Causation• Causation in fact– Defendant’s negligent act is the actual cause of the plaintiff’s injuries• “But for” cause– BUT this could be limitless… • Proximate cause– Connection between act and injury is strong enough that it is fair to impose tort liability– ForeseeabilityCausation in Fact• Roadside ditch• House explodes(Illustrated by DirecTV!) How to judge proximate cause?o Was the harm foreseeable from the act?Palsgraf v Long Island RR (1928)• Helen Palsgraf waiting for a train. At other end of platform, man carrying small newspaper-wrapped package runs to catch a train. RR guard on the train pulls him in; guard on the platform pushes him in. Man drops package, which contained fireworks; explodes. Scales fall down and injure Helen. Is the RR liable for negligence (through the actions of the guards)?Negligence Defenses• Assumption of risk– Knowledge of the risk– Voluntary assumption of the risk• Break in the chain of causation• Contributory and comparative negligence– Comparative negligence exists in most states: % comparisonStrict Liability• Liability without fault–Plaintiff does not have to prove intent or negligence; only prove causation• Imposed in these circumstances:–“Abnormally dangerous” activities• Blasting• Crop dusting• Fumigating with poisonous gas– Harm inflicted by wild animals–Certain types of product liabilityRationale?• What is the rationale for imposing strict liability?– Who CAN and SHOULD bear the responsibility?– Who is benefitting from the activity?Product Liability• Negligence• Misrepresentation• Strict product liabilityStrict Product Liabilityo Strict liability is imposed when . . . • Product is in defective condition when the defendant sells it• Defendant is normally in the business of selling that product• Product is unreasonably dangerous• Plaintiff suffers physical harm to self or property• Defective condition is proximate cause of injury• Product was not substantially changed since time of purchaseStrict Liability• Types of product defect:–Defective manufacture–Defective design• Includes–Packaging–WarningsDefective Manufacture• Types of defective manufacture claim:– Failure to properly assemble a product– Failure to properly test a product– Failure to adequately check product qualityDefective Manufacture?• Kevin purchased an 8-foot stepladder.• While Kevin was standing on the ladder, it collapsed, causing him severe injuries.• Pre-cut holes in the rear rail and backing plate weren’t aligned, preventing proper assembly and causing the rear legs to fail.• What sort of argument would you make as Kevin’s attorney?• What if Kevin had drilled his own holes in the rear rail and backing plate?Defective Design• Types of defective design:– Product design– Packaging design– Warning design (failure to warn)• Does the product design (rather than its manufacture) create an unreasonable risk?– Is there a more reasonable alternative design available? Does the failure to use the alternative design render the product not reasonably safe?Defective Design?• Jean-Luc lef his rotary lawn mower running while he went around it to remove a cardboard box on thegrass. – He slipped on the wet grass and his hand entered the unguarded hole of the rotary motor, severely mangling his hand.• Is the manufacturer liable under a strict liability theory of defective design? Why or why not?Defective Packaging?• Extra-Strength Tylenol, manufactured by Johnson & Johnson, was tainted with lethal doses of potassium cyanide.• Resulted in multiple deaths.• Tampered with afer it lef the manufacturer’s control.• Is the manufacturer liable under a strict liability theory of defective packaging? Why or why not?• Tylenol was sold– In a box with the end flaps glued shut– With a “shrink seal” around the neck and cap of the container– With a foil seal glued to the mouth of the containerDefective Warning• Manufacturers and sellers can be strictly liable for inadequate warnings if– A foreseeable risk of harm might be reduced or prevented by reasonable instructions or warnings • Factors– What is the content of the warning? How comprehensive is it?– How intense is the “expression of warning?”– What are the characteristics of expected user groups?Defective Warning?• Aqua Net hair spray and propellant are extremely flammable.• Aerosol cans of Aqua Net carry a warning in small print on the back:– “Do Not Puncture” and– “Do Not Use Near Fire or Flame.”• Warnings on Aqua Net cans sold in Canada were stronger, more visible