LSB 3213 1st Edition Lecture 25Today:- Finish chapter 6 (torts)- Discuss chapter 7 (products liability)Tort Law- Standard of Judgment:Four levels of potential liability1) Intentional (purpose)2) Reckless (conscious disregard of a known risk)3) Negligence (careless, not intentional)4) Strict Liability (cause/effect; not mental state)Negligence Standard:- Defendant did not intend to cause harm- Punitive damages typically not available- For negligence torts (carelessness), must prove 4 elements1) Duty2) Breach3) Cause4) HarmDefenses to Negligence- Failure to prove one of the four elementso Example: The example of the woman driving the Ford Explorer in the middle of nowhere when her tire blew out and while she was stranded, was assaulted by a stranger. She could not prove harm as the tire did not cause the person to attack her.- Assumption of risk- Contributory negligence- Comparative negligenceAssumption of Risk:At a Seattle Mariners game, a family was sitting along the right field line where many foul balls go; by sitting there, they assume the risk of getting hit by a baseball. If during warm ups before These notes represent a detailed interpretation of the professor’s lecture. GradeBuddy is best used as a supplement to your own notes, not as a substitute.the game, the pitcher throws the ball by the first line and then hits a woman sitting along the right field line. Was this an assumption of risk?- The court sided with the assumption of risk with errant baseballsIf there is a hole in the protective net and a ball flies through the hole, or if the net is too short, the seats are too close, etc. then that is negligence as these are not known risks.Contributory Negligence:- Historical rule- If the plaintiff was even 1% negligent or contributed in any way to the harm and defendant was 99% at fault, then the plaintiff receives no damages- Today, only 5 states follow this ruleComparative Negligence:- Pure comparative fault (5 states) o The amount of recovery damages equals the percentage of the defendant’s fault- 51% comparative fault (21 states)o No recovery if the plaintiff is 51% or more at fault- 50% comparative fault (12 states) o No recovery if the plaintiff is 50% or more at faultDrunk Driver Example:A drunk driver hits and kills a family illegally crossing the road on a red light (the driver had a green light), who is responsible?- The court decided that the driver was 80% responsible and the family was 20% responsible of $1 million damageso Contributory negligence state the family gets no recovery or damages as they contributed to the harmo Pure comparative state: The family gets $800,000 as the driver was 80% responsible or ($1 million -$200,000 {20% of $1 million})o 50% or 51% comparative fault state: The family receives $800,000 as they were less than 50% or 51% responsible (still only receive damages equal to the amount that the driver was responsible)OSU Construction Example:An OSU student is riding his bike by the construction site at night and a shovel is left out. The biker hits the shovel, falls off the bike and injures himself but the student was riding the bike with a blindfold on as part of a dare. Who is responsible for the damages:- Court: Construction company 40% responsible, and the student is 60% responsible; $1 million damageso Contributory negligence state: the student gets no recovery of damages as he was partly at faulto Pure comparative negligence state:  the student gets $400,000 (40% of the $1 million in damages)o 50% or 51% comparative negligence state: The student gets no recovery as he was 60% responsible- more than 50% or 51%McDonald’s Hot Coffee Again:- The court decided that the victim was 20% at fault and McDonald’s was 80% at fault- Compensatory damageso $200,000 reduced to $160,000 (20% reduction)- $2.7m in punitive damages to punish bad behavior. Punitive damages reduced due to high 17:1 ratio (not due to comparative negligence)Strict Liability: liability without regard to fault; cause/effect; not mental state- Difference between negligence and strict liability:o Negligence: duty, breach, cause, harmo Strict liability: cause, harm Being extremely careful is no defense- Background:o Social policy Who can better/best afford to pay for the injuries. Most often, large companies can better afford to pay for these injuries and are considered part of operating expenseso McDonald’s hot coffee case: Often recognized as strict liability (problem waiting to happen), reckless (punitive damages), and negligence (reduced compensatory damages)- 3 categories of strict liability:o Abnormally dangerous, ultra-hazardous activityo Wild (and some domesticated) animalso Product liability for defective productsCategory 1: Abnormally Dangerous Activities:High risk of serious harm that cannot be protected against even with reasonable care- Dynamite blasting (construction, mining)- Storing explosives- Crop dusting or stunt flying- Debate: truck transporting gasoline? Sky diving?o Sky diving is usually handled under strict negligence, as people sign a contract forrisk, not necessarily a business activity o A truck transporting gasoline is usually not considered dangerous as it is not really a dangerous activityCategory 2: Animals:- Wild animals (lions, tigers, bears, etc.)o If the animal attacks someone it is your fault- Domestic animals (dog, cat, cows, sheep, chicken, etc.)o Only responsible IF the owner knew or should have known the domestic animal was dangerous or had propensity to harm otherso One bite rule: once the animal bites or attacks once, it is considered a wild animal, before the bite considered negligence, after the bite considered strict liabilityo Pet pit bull or rattlesnake? Really depends on the animal and situationCategory 3: Product Liability3 types: using knife example- Manufacturing defects:Departure from the intended design or manufactured incorrectlyo Example: if the blade was loose in the handle in knife of the 1,000- Design defects: All items you produce are defective because of the design, you have to prove that there could be a better design. An alternative design would have made the product safe (econ analysis)o Example: if a switch blade was made where the button to shut the blade was right where the blade came down- Inadequate warnings: Warn of non-obvious riskso Looks like a kitchen knife but it has a button that releases a dagger at the other end, not warned