Slide 1Slide 2CausationProximate CauseEx: Factual Cause & Proximate CauseHarmDamagesDamagesPunitive DamagesDefensesDefensesDefenses – Contributory NegligenceDefenses – Comparative NegligenceDefensesStrict Liability - Ultrahazardous ActivitiesStrict Liability – Product LiabilityElements of Product LiabilityElements of Product Liability cont’dProduct Liability - VariousProduct Liability - WarrantyNEGLIGENCE AND STRICT LIABILITYChapter 6 Part 2 (Causation, Damage, Defenses, Strict Liability)1/14/19 Dr. Gerlinde Berger-Walliser1Factual CauseFactual Cause -- if the defendant’s breach ultimately led to the injury, he is liable.Conditio sine qua non = if the defendant had not done what he did the injury had not happenedPlaintiff’s father slips on defen-dant’s slippery stairs and sprains his anklePlaintiff’s father slips on defen-dant’s slippery stairs and sprains his ankleInjured is taken to the hospital in his son’s car to take X-raysInjured is taken to the hospital in his son’s car to take X-raysCar gets run over by a truckCar gets run over by a truckInjured dies in the hospital Injured dies in the hospitalCausationLet’s watch and discuss: https://www.youtube.com/watch?v=RBUz24-Ip1g Should Walmart be liable ? Yes/no? Why?Proximate Cause•Proximate Cause -- to be liable, this type of harm must have been foreseeable.•was the injury a natural and probable and foreseeable result of the breach of duty? Is there a sufficient legal nexus or proximity between the duty breach and the death?•The defendant does not have to know exactly what would happen -- just the type of event.Ex: Factual Cause & Proximate CauseMechanic fails to fix customer’s brakes, which causes...Car accident, car hitting bicyclistMechanic is_______Car accident, car hitting bicyclistNoise from accident startles someone who falls out a window Mechanic is _________Car accident, but cardoes not hit bicyclistBicyclist hits pothole and crashesMechanic is _________Mechanic fails to fix customer’s brakes, which causes...Mechanic fails to fix customer’s brakes, which causes...Harm•In negligence (contrary to tort) cases the plaintiff must prove a harm =•Bodily injury or•Economic loss•Is this an actionable claim ?http://www.youtube.com/watch?v=3Qkeukoo2WUDamages Compensatory damagesEconomic and other damages explained• Economic damages include•past* and future medical bills•past* and future lost wages•impairment (diminution) of earning capacity•lost profits•not attorney fees• (“past” = prior to the trial)DamagesCompensatory damages cont’d•Non-economic damages include: •physical pain and emotional suffering•loss of society•permanent disfigurement•impairment of physical abilities•loss of enjoyment of life•Calculating damages, see https://www.youtube.com/watch?v=nKSSK4ztTGY&list=PLB856CA29EDAB6330&feature=c4-overview-vlPunitive Damages•NOT in negligence cases!•unless gross negligence or reckless disregard for public safety is found. = “carelessness which is in reckless disregard for the safety or lives of others, and is so great it appears to be a conscious violation of other people's rights to safety.” (http://dictionary.law.com/Default.aspx?selected=838 )Defenses•Assumption of the risk•A person who voluntarily engages in an activity known to be risky cannot recover if he is injured.Defenses•IRAC Problem from Class 1:•Dan Davidson owns Dan’s Garden Shop. Dan manufactures lawnmowers among other products. Paul visits Dan’s shop and purchases a brand new XJ2000 Super Lawn Mower which had been manufactured by Dan. Paul brings the mower home and removes the blade guard so that it will cut the grass more efficiently. While Paul is mowing the lawn, a weakly welded together joint snaps and the blade flies out of the mower and injures Paul in the foot. Paul’s medical bills are $10,000.•Is Dan “excused” because Paul removed the blade guard?Defenses – Contributory NegligenceIn a few states, if the plaintiff is AT ALL negligent, he cannot recover damages=Contributory NegligenceDefenses – Comparative Negligence•In most states, if the plaintiff is negligent, a percentage of negligence is applied to both the defendant and the plaintiff = Comparative Negligence•The plaintiff can recover from the defendant to the percentage that the defendant is negligent.DefensesStrict Liability - Ultrahazardous Activities •Defendants are virtually always held liable for harm.•Includes using harmful chemicals, explosives and keeping wild animals.•Plaintiff does not have to prove breach of duty or foreseeable harm – reasonable person test does not apply•Plaintiff simply has to prove that defendant engaged in ultrahazardous activity, and that this activity caused the harm.•Comparative negligence does not apply -- defendant engaging in ultrahazardous activity is wholly liable.Strict Liability – Product Liability•Potential product liability lawsuits•https://www.youtube.com/watch?v=3rOtS7wsZCo&feature=player_embedded •https://www.youtube.com/watch?v=jtk114z7iWU&feature=player_embedded•https://www.youtube.com/watch?v=GnP9ozMasY0&feature=player_embedded •Product liability reverses the burden of proof•Therefore plaintiff needs to prove that the product is defective and caused harm, but NOT that there was a breach of duty•Manufacturer needs to prove that he used all possible care (reasonable care is not enough!)Elements of Product Liability•A defective product, that is unreasonably dangerous to the user or consumer (for examples see https://www.nolo.com/legal-encyclopedia/types-of-defective-product-liability-30070. html )•Manufacturing defect – something is “wrong” with the product•Does not apply if user “mishandles” the product.•Design defect – nothing is “wrong” with the product, but •the way it is designed makes it dangerous for all - or certain groups - of users.•Often involves balancing known risks versus cost of safer alternatives. No product is 100% safe.•Lack of warning•Need not warn about obvious hazards (“Warning: knife is sharp!”)•Must warn about foreseeable misuses (“Do not place plastic bag over your head”)•Must warn about hidden dangers (“Do not place metal in microwave”)Elements of Product Liability cont’d•The defendant is normally engaged in the business of handling the product.•Goods reach the user substantially unaltered.Product Liability - Various•Why