Negligence-tort Plaint.

Defendant Damages Duty Breaches Any proximately caused

UCC- Expressed Warranty, Implied Fitness, Implied Merchantability UCC gives you 3 Options- 2-318 BUYER, USER, CONSUMER- expected to come into contact (predom. Purpose test) Seller of goods only 2-715- incidential, consequential, personal injury, atty fees, punitive damages.

402b ( Consumer, Seller of products or goods Physical harmpersonal injury.

402a Any user, consumer, seller Personal injury, injury to property. (split over if defective product itself can recover defective product injured something else:)?) PRIVITY IS NOT REQUIRED

Defenses

Assumption of risk, Contrib. Neglig, Comparative Fault, STL

2-719- modify, limit, disclaim, exclusions TOO BROAD, TOO MANY What they give with the right hand, they take away with the left.

Same as CL Neg: AR, CN, CF, STL

402a Mis-manufacture Defective condition unreasonably dangerous compare

Mis-design DCUD 1 litigation attacking entire industry.

Factory Warranty DCUD

First requirements are identical. Four requirements of defect in design compare to other products designed like that. Conscious desgins provide no such test. Economic designs can be burdensome, higher burden of proof, shutting down entire industry not just one manufacturer. 1- foreseeabilitywhether the manufacturer would be judged negligent if it had known of the products dangerous condition at the time it war marketed. 2- risk utilitycarroll towing testparker says 1st 4- strict liability risk utility test3- consumer expectation test- provides a product is in defective condition unreasonably dangerous to the consumer, THE TEST TO BE USED IN DETERMING IF A PRODUCT IS UNREASONABLY DANGEROUS per 402a fell out of vogue IS NOT USED o o Cant sue under 402a,b, or tort CANNOT SUE FOR ECONOMIC LOSS UNLESS IT IS FRAUD Only time you use 402b- (if you own property, cant recover)

o o o o o

Sophisticated purchaser cant sue under 402a Anytime personal injury, assert tort. So many theories upon which you can premise a products claim, the four questions will do it. Damages is key, in the context. You can NEVER sue a retailer on a negligence claim unless they opened the product, if they noticed it was defective we can impose a liability. OPEN OR SOME OTHER REASON TO KNOW ABOUT RECALL Sometimes neg, 402b 402 mutually exclusiveretailer duty turns upon appraisal of foreseeable risk

UCC provides us with the broadest remedial scheme in regards of lawrecover more under culpability than any other 2-719 look on pg 759 note 4 UCC in regards to damages, provides broadest remedial scheme- it has 4 hated terms: o Seller of goods can modify the terms-o Can limit the terms o Disclaim the terms o Impose certain conditions subsequent on the terms UCC is the least favorite by plaintiff attys because the defense to UCC claim are too broad and too many. 759- 2-302, 2-316, 2-719- consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is PF uncosnscionable but limitation od damages where the loss is commercial is not. Pg 752 note 1 2nd paragraph: o 402b- products liability until McPherson case was viewd as a contracts based action. Only became a contract=tort action with McP, first time you could assert PLC on Tort.. Historically was a sales transaction. o Theory was anytime you were dealing with K action, privity of action was required, have to be contractually bound or tied to you. IT has been disposed with. They court disguarded it. In essence making PL a con tort. Contract based tort action. o Relationship with the UCC and PLcontract or tort based. I enter into a contract with a value of 1mil. To transport construction materials to be used in construction of new law school. To complete the K I go out and buy 8 hauling trucks, time is stated as of the essence. From the day of the first delivery, none of the 8 trucks start. Do I sue the manufacturer under Neg, UCC or 402b? o 402b locks out because of Personal Injury o UCC- consumer, seller, consequential-Only one you can sue under o Neg- duty can arise out of contract, breached bc didnt start, proximately caused damages, however it is universally recognized that purely economic damages are NEVER recoverable in torts. 808p2 89 o Tort law typically compensates for a calamitous non-fortuitous event o Cant sue under 402a,b, or tort CANNOT SUE FOR ECONOMIC LOSS UNLESS IT IS FRAUD To determine wheter K law or tort law allows recovercourt must cosndier the facts bearing in mind the purpose of tort law recover as contrasted balhhh

Strict liability is not absolute liability. Only one instant where strict is absolute- wild animals All others you can offer up defenses to the claim Mink case--- abnormally dangerous activity o P says he is liable

o Does dynamite constitute abnormally dangerous activity o Strict liability is not absolute, the doctrine of SL is applicable however it has limitationsyou are not a guarantor o Type of liability which is generated from an abnormally dangerous activity is restricted to the scope that makes the activity that makes it dangerous o They must fall within the scope with the risks that makes the activity abnormally dangerous initiall Vibration, debrimink going crazy is not recoverable Even though it is abnormally dangerous it is confined. Liability is restricted to the risk that makes the activity ultra hazardous in the beginning Golden v armory o Didnt open the gate during flood, P is suing for strict liability. What are these cases designed to teach uslimitations on strict liability o P are trying to sue for an act of godit is an absolute defenseRyland v Fletcher court clearly says: we think that the true rule of law is that the person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril and if he does not do so, prima facie answerable for all the damage which is natural consequence of its escape. It is a rebuttable consequence of liability. o Flood was an act of God, therefore it operates as a complete defense to a strict liability case. Sandy v. Bushey o Rule of strict liability with animals Domesticated animals vs wil Domesticated- subject to one bite rule, the owners must have knowledge that the animal has a dangerous propensity in order to put owner on notice o Owner had knowledge the colt was dangerous. o Knowledge goes to defense of (contrib.. negligence is NOT a defense to strict liability def. is asserting assumption of risk o Is assumption of risk a viable defense to strict liabilityYES o CONTRIBUTORY NEG NOT DEFENSEASSUMPTION OF RISK IS A DEFENSE Ct has always treated it as a defense to strict liability o Comparative faultdefense to strict liability-- (pure vs modified) Most states have adopted comparative fault/neg rules reducing a plaintiffs damages by ps % of negligence PRODUCTS LIBAILITY Only substantive tort we will consider this semester o Sub tort to refer to a cuase of action, the action itself can be based on any one theory of culpability. Defematioon, misrepresentation, strict liability, innocent misrep. Sub tort in that sense, product liability is unique in that it can be based on any one or combination of 8 theories of culpability. o Negligencepl claim o UCC- expressed warrant, implied fitness, implied merchatabilityall have own PF

o 402bo 402a- mismanufacture, misdesign, failure to warn ANY ONE OR COMBO OF THE ABOVE 8 theories Problem is finding when mutually exclusive, they cannot be combined.

Where do we draw the line of proximate cause Greenman v Yuba Power Products First case of strict liability to a products litigation. Fundamental flaw of general verdict form, always ask for special verdict Judge always has to be impartial, so what gave the court the right to draft it here?? Consumer would never know who manufacturer was, consumer never dealt with manufacturer unless he uses litigation and gets it through What justifies strict liability in the context of this casenothing Court is bound by judicial decisions. Plaintiff pled warranty and negligence yet the court went outside the pleadings and went outside the pldgsDICTUM Dictum takes on the life of its on. Two year to the date, the drafters of restatement 2nd 402astrict liability o Many unanswered questions, its new Mismanufacturep is complaining about a product that did not comform to manufactures specification Misdesignany product made with that design