V In order for the plaintiff to recover from the defendant

based on negligence, the plaintiff must show that the

defendant possessed and breached its duty of reasonable
care towards the plaintiff and that the breach of his duty
was the cause in fact and the proximate cause of the
plaintiffǯs injury.
V 1. Duty
V 2. Breach of duty
V Causation
V Cause in fact
V Proximate Cause
V Injury
V
he first element that must be proven in a negligence
case is that the defendant owed a duty of reasonable
care to the plaintiff.
V LH+SH~CP
V An unreasonable risk is created if the likelihood of harm
and the severity of harm are greater than the cost of the
precaution.
V
he second element that must be proven in a
negligence case is that the defendant breached his
duty to exercise reasonable care to the plaintiff.
V
he defendant breaches his duty to exercise reasonable
care to the plaintiff when he does not act as a reasonably
prudent person would in similar of the same
circumstances.
V
he third element that must be proven in a negligence case is
that the defendantǯs breach of duty was the cause in fact and
proximate cause of the injury to this plaintiff.
V DzBut fordz - More likely than not, but for the breach of the duty by
the defendant, the injury would not have happened to the plaintiff.
V DzMultiply the riskdz Ȃ
he breach of his duty by the defendant
multiplied the risk of injury to the plaintiff.
V DzBut for bothdz Ȃ More likely than not, but for the breach of both
defendants of their duties toward the plaintiff, the plaintiff would
not have suffered any injury.
V Neither alone is enough
V DzBoth multiply the riskdz Ȃ
he breach of both of the defendants
together multiplied the risk of injury to the plaintiff.
V Either one alone could have caused the injury but both were substantial
factors and both added to the chance of injury
V Cardozo approach:
V Using the Cardozo foresight method, D1 is the
proximate cause of injury to the plaintiff only if it is
more likely than not that the plaintiff fell within the
zone of danger created by the risk of D1ǯs breach of duty
to exercise reasonable care, such that the plaintiff and
his injuries were foreseeable from the D1ǯs perspective at
the time of the breach.
V
he defendant will argue that there is a need to shift
the legal liability for the injury to this plaintiff from
himself to another.
V Intervening act can be:
V Negligent/Legal/Strict liability Ȃ Both the act and injury
must be unforeseeable to supersede.
V Criminal/Act of God/Intentional Ȃ Only the act needs to
be unforeseeable to supersede.
V Must do a full analysis of the act accordingly.
V Use the Cardozo method to see if the intervening act is
foreseeable.
V Must be a cognizable, legal injury.
V 1. Determine if activity is abnormally dangerous using
the 6 factor test.
V 2. Causation
V Cause in fact
V Proximate cause
V Defenses
V Conclusion
V 1. SH
V Existence of a high degree of risk of some harm to that person, land or chattels
of others
V 2. LH
V Likelihood that the harm that results from it will be great
V 3. Inability to eliminate the risk by the exercise of reasonable care
V If the injury to the plaintiff could be eliminated if you use reasonable care there
shouldn't be a strict liability claim when a negligent claim is available
V 4. Usage
V Extent to which the activity is not a matter of common usage. Depends on
locality, activity that is engaged in is something that does not occur a lot.
V 5. Location
V Inappropriateness of the activity to the place where it is carried on
V 6. Necessity
V Extent to which its value to the community is outweighed by its dangerous
attributes.
V More likely than not, but for the activity of the
defendant, would the injury/ damage have occurred?
V Need to determine what actually makes the activity
abnormally dangerous and that will make your
proximate cause analysis.
V Do the Cardozo analysis and see if the injury falls with
in the risk created by the defendantǯs actions.
V Contributory/ Comparative negligence
V Intervening Acts.
V 1.
he risk does/ does not outweigh the utility,
therefore rendering the activity abnormally dangerous.
V
he activity is/is not the cause in fact and proximate
cause, therefore the injury is within/not within the
zone of danger created by the activity of the
defendant.
V
here are/are not defenses available
V
here are/are not intervening acts
V NegligenceȄFocus on the CONDUC
of the ȥ
V Manufacture: A manufacturer/distributor/retailer failing
to exercise reasonable care in the manufacturing process
V Who can be sued [ Manufacturer/Distributor/Retailer
V Who can sue [ Any foreseeable plaintiff
V Duty: LH + SH ύ CP
V Breach: What a person of ordinary prudence who is a manufacturer
would have done?
V Causation:
V Cause-in-Fact: DzBut-fordz and Multiply the Risk
V Proximate Cause: Cardozo
V Injury
V Defenses:
V Contribution/Indemnity/Comparative/Contributory
V Negligence in Design: What would a reasonably
prudent person do who is designing this product for
this particular use?
V Duty: LH + SH > CP
V CP likely added to price of product, so will likely not
outweigh LH & SH
V Breach: Did the manufacturer, acting as RPP who is a
manufacturer, properly research and develop the design
of this product?
V Cause in Fact
V Proximate Cause
V D402A
V (1) One who sells any product in a defective condition
unreasonably dangerous to the user or consumer, or his
property is subject to liability for physical harm caused to the
ultimate user or consumer, or his property, if:
V (a)
he seller is engaged in the business of selling such a product
V (b) It is expected to and does reach the consumer without
substantial change in condition from when it was sold
V (2)
he rule stated in Subsection (1) applies, although:
V
he seller has exercised all possible care in the preparation and sale
of his product, and
V
he user or consumer did not buy the product from or entered into
any contractual relation with the seller
V Manufacturing Defect
V Who can be sued [ DzOne who sellsdz
V Manufacturer/Component Manufacturer/Distributor
V DzDefective Conditiondz
V Product that fails to meet specifications
V DzUnreasonably Dangerousdz
V Consumer Expectations
est: Impute knowledge of defective condition, would a
reasonable consumer who is exposed to this product expect that this product
would be in the condition it is in?
V If the reasonable expectation of the consumer does not match what happen, the
product is unreasonably dangerous
V Who can sue
V Anyone injured from the defective condition-Consumer or 3rd Party
V DzPhysical Harm Causeddz
V DzBut-Fordz this manufacturing defectǥ
V Proximate [ Cardozo
V Discuss 1(a) and 1(b)
V Discuss 2(a) and 2(b)
V DzOne who sellsdz [ Manufacturer/Distributor/Retailer
V DzDefective Conditiondz [ Risk/Utility
est @
ime Sold (Majority)
V 1) Usefulness and Desirability of Product
V 2) Safety AspectsȄLH & SH that could result from use
V 3) Availability of a reasonable and feasible alternative design to
eliminate risk
V Requires Dzstate-of-the-artdz application through research and
development
V A RFAD would have probably reduced or avoided injury
V Clearest evidence of a RFAD is similar product with different design
V Defendantǯs own subsequent change in design
V Look at a substitute product that serves same purpose
V 4) Ability to eliminate risk without impairing the usability or making
product too expensive
V Impairing fun is not impairing usefulness
V 5) Userǯs ability to avoid the risk by using reasonable care
V Misuse [ Product likely not defective, user at fault
V 6) Open and Obvious Danger
V Userǯs anticipated awareness of the dangers inherent in the
product and their avoidability, because of general public
knowledge of the obvious condition of the product, or the
existence of suitable warnings or instructions
V 7) Feasibility of manufacturer of spreading the loss by
setting the price of the product or carrying liability
insurance
V 8) Reasonable expectation of the consumer
V Did this thing do what a reasonable consumer would expect?
V DzUnreasonably Dangerousdz
V Impute knowledge of design defect on manufacturer AND
then ask whether a reasonably prudent manufacturer with
knowledge of this design defect would have still sold the
product?
V DzPhysical Harm Causeddz
V DzBut-fordz defective designǥ
V Proximate CauseȄCardozo
V Who can sue
V
he ultimate user or consumerǥ
V
he user/consumer/bystander [ Anyone injured by DD
V Answer 1(a) and 1(b)
V Show the effect of 2(a) and 2(b)
V NegligenceȄFailure to Warn (Conduct)
V Duty: LH + SH > CP
V CP always going to be small, only cost to place a warning
V Breach: Depending on what the manufacturer knew or
should have known, would a reasonable manufacturer
warn about the defect or danger
V Defendant argument: Claim defect is nominal and a RPP
would not place a warning for such
V Plaintiff Argument: You werenǯt the one injured and the CP
is to only place a warning
V Causation
V Cause-in-fact AND Proximate Cause under Cardozo
V Apply D402A
V DzOne who sellsdz = Who can be sued
V DzDefective Conditiondz [ Clear/Conspicuous/Complete
V DzUnreasonably Dangerousdz
V If the manufacturer knew or should have known and they did not
warn about risk
V IF RISK IS KNOWN = MUS
WARN
V Conclusive concept of State-of-the-art: Manufacturers are
considered experts and should know everything about the particular
product
V DzCauseddz [ Defect or danger not warned about caused injury
V Cause-in-fact
V Proximate Cause
V DzUltimate user or consumerdz = Who may sue (Bystander also)
V Explain 1(a) and 1(b)
V Show effect of 2(a) and 2(b)
V Contributory/Comparative Negligence
V Apply in strict and negligent products cases
V Focuses on the conduct of the person
V Assumption of the Risk
V Misuse: Assumes that a product has a defect and deals
with how the product is supposed to be used, doing
something with the product it was not designed to do
V Must be unforeseeable misuse to supersede manufacturing
defect
V Includes:
V Negligent maintenance, failure to follow instructions, failure to
discover a defect or failing to guard against a known defect that was
not expected by manufacturer
V Effect: Bars recovery or mitigates damages