SAMPLE BARWINNERS APPROACH BOOK “Bar Bible”— NEGLIGENCE APPROACH
AND
STRICT PRODUCT’S LIABIILITY APPROACH
BAR HINT: REMEMBER TO PUT IN ALL CAPS YOUR HEADINGS, CENTER
THEM ON YOUR EXAM BOOKLET. WRITE ALL THE APPLICABLE
HEADINGS AND ANALYSIS YOU SEE BELOW IN THE SAME ORDER AND
FORMAT. (Barwinners has written it for you).
NEGLIGENCE
(Heavily Tested)
(Write On the Bar): In order for Plaintiff to recover in Negligence, she or he must plead
and prove: DUTY, BREACH OF DUTY, ACTUAL CAUSATION, PROXIMATE
CAUSATION, AND DAMAGES
A.
DUTY (Bar Writing Tip: You must always write BOTH the General Duty
AND any Special Duties that apply)
1.
General Duty
Defendant has a duty to act as a reasonable person would in like or similar
circumstances to avoid causing unreasonable risk of harm to others.
2.
Special Duty
a.
Children, Mental Disabilities, Physical Disabilities
i.
Children: A child is held to the standard of care of a
reasonable child of like age, intelligence, and
experience.
ii.
Adults With Mental Disabilities: Adults with mental
disabilities are held to the same standard of care as non-
disabled.
iii.
b.
Adults With Physical Disabilities: Adults with physical
disabilities are held to the standard of care of a reasonable
blind, deaf or disabled person in like or similar
circumstances.
Professionals
i.
Doctors
A.
Specialists: Specialists are held to a national
standard of care and must conduct themselves as a
reasonable specialist would nationally.
B.
Generalists: Generalists are held to standard of
care of a reasonable physician in same or similar
locality.
ii.
Other Professionals
Professionals must possess the minimum, common skill of
members in good standing in the profession. Professionals must
act as a reasonable expert would in like or similar
circumstances. Example: Architects, lawyers, accountants,
engineers.
c.
Violation of Criminal/Civil Statute or Express Rule of
Employer
A.
For a criminal statute, civil statute, or express rule of
employer to establish a civil standard of care, Plaintiff
must establish:
1.
2.
3.
Plaintiff was in the class of persons the statute or
rule was designed to protect;
The injury was the type the statute or rule was
designed to protect against, and
Defendant violated the statute or rule and
Plaintiff’s injury was caused by the violation.
B.
Jurisdictions vary in how they treat a violation of a criminal
statute in setting the civil standard of care. Some treat it as:
1.
2.
3.
d.
Guests and Common Carriers
i.
Common Carriers: Common carriers are held to a higher
standard of care to prevent risk of harm to others.
ii.
Automobile Guests: The standard of care depends on the
jurisdiction and whether the guest is paying or gratuitous:
A.
B.
C.
e.
Negligence Per Se: The violation of the statute
amounts to negligence per se and Defendant may
not argue her or his conduct was reasonable,
Rebuttable Presumption of Negligence: The
violation of the statute raises an inference of
negligence, but Defendant can rebut with
evidence of reasonable behavior, or
Mere evidence of negligence.
Common Law: Driver owes full duty of care in
operation of vehicle.
Paying Passenger: Driver owes full duty of care.
Gratuitous Passenger: Driver held liable only if
grossly negligent.
Owners and Occupiers of Land
(Write On Bar): Liability rests on the STATUS of the person
coming into the land.
i.
Unknown Adult Trespasser
Under the Common Law, no duty is owed by land owner/occupier
to make the premises safe. Modernly, in Roland v Christian, full
duty is owed even to unknown trespassers.
ii.
Known Adult Trespassers
Land owner/occupier owes a duty to warn of dangerous conditions
on the land.
iii.
Licensees
Licensees are people who come onto the land for their own
benefit (for example, Social guests, Charity Workers, Police).
Land owner/occupier owes the licensee a duty to warn of a known
dangerous condition on the land.
** Note: Land owner/occupier has no duty to inspect for defects
or to repair known defects.
iv.
Invitees
Invitees are people who come onto the land to confer some
benefit on the occupier (for example, Paying Customers). Land
owner/occupier owes Invitee a duty is to inspect, warn, and make
safe dangerous conditions on the land.
v.
People Outside the Land
Land owner/occupier is required to correct conditions that are
unreasonably dangerous to those outside the land.
vi.
Child Trespassers: Attractive Nuisance Theory
Land occupier is liable to children only if:
A.
B.
C.
D.
BAR HINT:
Land occupier knows or has reason to know that
children are likely to trespass;
Land occupier knows or has reason to know
condition is dangerous to children;
Risk to the child outweighs the utility of
maintaining the condition and the burden of
eliminating the danger; and
Child is too young to appreciate and understand
the risk.
An Attractive Nuisance must be a dangerous
condition on the land (for example, a giant hole being dug for a
swimming pool. However, a can of bug spray with pretty roses on
the label is NOT considered an attractive nuisance). This issue is
rarely tested and only under obvious, precise facts giving rise to it.
f.
Omission To Act
As a general rule, Defendant’s failure to act will not result in liability
being imposed on Defendant for injury caused thereby. However, liability
will be imposed if there was an affirmative duty to act and Defendant
failed to act.
BAR HINT: Whenever a fact pattern indicates that the culpable conduct
may be that of an omission to act, give the general rule of “no duty” then
examine the facts for an exception.
i.
ii.
Affirmative Duty To Act
A.
Common Law: Defendant is under no duty to go
to the aid of Plaintiff where Defendant did not cause
Plaintiff’s predicament. However, if Defendant is at
fault, Defendant must aid.
B.
Modernly: Some statutes make it a criminal
offense for drivers of automobiles to fail to aid any
person involved in an accident, even though
Defendant was not involved in any way.
C.
Good Samaritan Rule: One who, though under no
legal duty to do so, aids a person who is hurt or in
peril, must exercise due care not to worsen the
victim’s situation.
Duty to Control Third Persons
A.
Bailment Cases: If the owner of chattels permits a
third person to use his chattel, the Bailor will be
liable for failure to exercise due care to prevent
intentional or negligent acts of Bailee if committed
in his presence, or if she or he knows or has reason
to know that such Bailee is likely to commit such
acts.
B.
B.
Public Premises Cases: Those who hold premises
open to the public must use due care to protect
persons coming onto the premises from theft of
property, attack, etc., from other persons on the
premises. This includes restaurants, innkeepers,
common carriers, etc.
C.
Duty to Control Children Cases: Parents will be
liable for acts of child if parents know or should
have known of the child’s dangerous propensities
and had an opportunity to exercise control over the
child. Otherwise, parents are generally not
vicariously responsible for acts of child committed
in their presence or otherwise.
D.
Special Relationships: Defendant may be under a
duty to act where there is a special relationship,
such as school-pupil, hospital-patient, jail keeperprisoner, etc.
TO WHOM IS THE DUTY OWED (Do not confuse this issue with proximate
causation!)
Under Palsgraf, Cardozo held that a duty is owed to foreseeable Plaintiffs in Defendant’s
physical zone of danger. Andrews argued that one owes a duty to the whole world to
behave in a manner so as to not create unreasonable risk of harm.
BAR HINT: Discuss this issue only when the injured Plaintiff is arguably outside
the physical zone of danger created by Defendant.
C.
BREACH OF DUTY
Breach of duty is basically a factual discussion. Take the standard of care you have
established under duty and apply it to the facts to determine if Defendant breached his
duty to Plaintiff.
BAR HINT: Always discuss what a reasonable person would have done in the same
or similar circumstances.
1.
Res Ipsa Loquitur
Often in a question the facts are silent as to exactly how the accident occurred or
what the Defendant did. This usually requires discussion of Res Ipsa Loquitur.
To apply this doctrine, Plaintiff must establish the: (a) Accident would not have
occurred in the absence of someone’s negligence; (b) Event was caused by an
instrumentality in Defendant’s exclusive control; and (c) Plaintiff did not
contribute to her or his own injuries.
D.
ACTUAL CAUSE
1.
Where there is only ONE D:
But-for Test: (Write On Bar): Defendant is the actual cause of Plaintiff’s
injuries because but for _________ Defendant’s acts, Plaintiff would not have
been injured.
2.
Where there are TWO OR MORE Defendants:
Substantial Factor Test: Applies where several defendants concur to bring
about an injury and any one alone might have been sufficient to bring about the
injury. (Write On Bar): Each Defendant was a substantial factor in causing
Plaintiff’s injuries. Either Defendants’ act alone would have been sufficient to
cause the result; thus, both are a substantial factor in bringing about Plaintiff’s
harm.
E.
PROXIMATE CAUSE
ISSUE)
(Only Do Full Analysis shown below if MAJOR
(Write On Bar): Proximate cause is a policy consideration that in certain instances will
limit Defendant’s liability.
1.
Direct v. Indirect Causation
Ask yourself: Did anything intervene between Defendant’s negligent act and
Plaintiff’s injury such that Defendant will be relieved of liability?
a.
Direct Causation
** Note: Where causation is direct, proximate cause is ALWAYS A
MINOR ISSUE.
Causation is direct where nothing has intervened between Defendant’s act
and Plaintiff’s injury. Thus, Plaintiff’s injury is foreseeable and
Defendant will be held responsible.
(Write On Bar): Here, causation is direct because there were no
intervening acts between Plaintiff’s injury and Defendant’s act. Further,
it is foreseeable when Defendant did ___________, someone would be
injured.
b.
Indirect Causation
Indirect Causation may exist when something has come between
Defendant’s negligent act and Plaintiff’s injuries.
i.
Dependent v. Independent Intervening Act
A.
Dependent Intervening Act
Dependent forces are those which occur as a result of
Defendant’s original negligent act (for example, Medical
malpractice, injuries occurring en route to the hospital, and
rescuers).
1.
Foreseeable v. Unforeseeable
If there is no break in the chain of causation,
Plaintiff’s injury is foreseeable. Dependent
intervening forces are usually foreseeable. If
foreseeable, Defendant is the proximate cause of
Plaintiff’s injuries.
B.
Independent Intervening Act
Independent forces not arising from Defendant’s act, for
example, acts of God, animals, and intentional criminal
acts, may relieve Defendant of liability if unforeseeable.
These forces are called independent intervening acts or
superseding acts.
1.
Foreseeable v. Unforeseeable
If there is no break in the chain of causation,
Plaintiff’s injury is foreseeable. If foreseeable,
Defendant is the proximate cause of Plaintiff’s
injury.
F.
DAMAGES
(Write On Bar): Plaintiff is entitled to recover all compensatory damages, including
general damages, such as pain and suffering, and special damages, which must be
specifically pleaded and proved. Punitive damages are NOT recoverable for negligence
UNLESS facts specifically show Defendant’s conduct was wanton, willful, or reckless.
(Don’t imply facts).
G.
DEFENSES
BAR HINT: You must always raise these defenses, even if briefly in a sentence or two.
1.
Contributory Negligence
Plaintiff has a duty to act as a reasonable person would in like or similar
circumstances to prevent an unreasonable risk of harm to herself or himself.
Complete bar on recovery.
a.
2.
Contributory Negligence Per Se
If Plaintiff violates a statute or an express rule of employer, Plaintiff is
contributorily negligent per se if: (a) Plaintiff was in the class of persons
the statute or rule was designed to protect and (b) the injury was the
type the statute or rule was designed to protect against.
Comparative Negligence
Plaintiff’s negligence is assigned a percentage of fault and Plaintiff’s damage
award is reduced by that percentage.
3.
Assumption of Risk
Defendant is not liable if Plaintiff knew of the exact risk and voluntarily
assumed it.
4.
Exception: Rescue Attempts
Where Plaintiff voluntarily attempts to rescue one in peril, the court will not
find the rescuer contributorily negligent, comparatively negligent, nor to
have assumed the risk. Public policy encourages rescue attempts, particularly
where Plaintiff is forced to make an emergency decision concerning saving the
life of a fellow human being. Technically, Plaintiff did not “assume the risk” in
such a situation, but only reacted to the emergency before her or him because
“danger invites rescue.”
IV.
PRODUCTS LIABILITY (Only Use this Approach and Use it Exactly)
(Heavily Tested)
BAR HINT: Begin your analysis with this statement: There are five possible theories of
recovery Plaintiff can assert in products liability. They are Strict Liability, Negligence,
Implied Warranty, Express Warranty and Misrepresentation. Only those applicable will
be discussed. (Discuss only those theories applicable to the fact pattern.)
STRICT PRODUCTS LIABILITY (ISSUE)
This theory does not focus on fault. Liability attaches when persons involved
have exercised all possible care. Under Strict Liability, the focus is on the
product and not on the conduct of the defendant. (Discussion of theory is optional
on Exam.)
A.
PROPER PLAINTIFF
Plaintiff can be anyone within the foreseeable use of the product, a foreseeable
user.
** Note: Briefly state why Plaintiff is a foreseeable user who made foreseeable
use of the product in two sentences. (Write on Bar): Here, Johnny is a member of
the household and is therefore a foreseeable user of the product. Johnny
foreseeably used the product when he (discuss the act of foreseeable use here).
Therefore, Johnny is a proper plaintiff.
B.
PROPER DEFENDANT
All commercial suppliers or persons engaged in the commercial distribution of
products are liable, including: Manufacturers, Product Designers, Wholesalers,
Retailers, Lessors. Strict liability does not apply to suppliers of services.
** Note: Briefly state why Defendant is a proper defendant in one sentence.
(Write on Bar): Here Acme is the manufacturer of the product and is therefore a
proper Defendant.
C.
IS THE PRODUCT DEFECTIVE? (MAJOR ISSUE)
** Note: You must discuss all of the following three defects by head noting and
analyzing each to get full points.
1.
Plaintiff must show that the breach of Defendant’s duty
resulted in a defective product. There are three types of
defects. They are:
a.
Defect of Manufacture (error in the production line).
b.
Defect in Design (inadequate testing and safety checks).
BAR HINT: To determine a defect in design, you must discuss
both of the following tests:
i.
Consumer Expectation Approach (RS 402 (a))
The product is defective when the product is unreasonably
dangerous in its normal intended use. The product is
unreasonably dangerous in its normal intended use if (1)
Dangerous beyond the expectation of the ordinary
consumer and (2) Manufacturer has been able to foresee
the dangers of the product.
ii.
Feasible Alternative Test: Cost-Benefit Analysis
The court will balance what it would cost to market the
product as it is against what it would have cost to market
the product free of danger. If a safer product would require
unreasonably high costs, the product is not defective. If a
safer product could be produced at a reasonable cost, the
product is defective because there was a “reasonable
alternative” and Defendant failed to choose it.
c.
Defect in Warning (lack of adequate warning or failure to
warn).
Test:
The central question is how would a reasonable
manufacturer or designer with the same skill, knowledge and
experience act in like or similar circumstances.
2.
Compliance With Safety Regulations or Safety Standards
Actual compliance with set safety regulation or safety standards will not
ultimately determine if a product is not defective; it is still possible once
a product complies with set safety regulations or safety standards that it
may fail one of the defective design tests and will be considered a
defective product.
D.
ACTUAL CAUSE
The defect, which injured Plaintiff, was in existence at the time it left the
Defendant’s control. You may need to show that distributors and suppliers did
not mistreat or alter the product and Defendant’s acts must have been at least a
substantial factor in bringing about Plaintiff’s injuries.
E.
PROXIMATE CAUSE
General Proximate Causation analysis: Be sure to look at the wrongfulness of
intermediate handler’s conduct to determine whether such conduct will be
superseding. (Criminal or intentional tortious conduct will relieve Defendant of
liability.) However, rare to find a break in the chain of causation.
F.
DEFENSES
1.
2.
3.
4.
G.
Misuse of Product: Product may be safe if used as intended and
may involve serious dangers if used in other ways. Note:
Suppliers must anticipate reasonably foreseeable uses.
Scientifically Unknown Risks: Problems with the product can’t
be known until product is marketed.
Allergies: If allergic group is significant, manufacturer must warn
if they know there is a danger of allergic reaction. Note: Unique
allergic reactions not recoverable for Plaintiff.
Assumption of the Risk: Plaintiff knew exact risk and voluntarily
assumed it.
DAMAGES
Under Strict Liability, there is no recovery for economic loss. There is recovery
for pain and suffering.
ISSUE: NEGLIGENCE - Products Liability (Different From Ordinary
Negligence)
Remember, “ordinary negligence” focuses on the defendant, while products
liability focuses on the defective product. Still, you must address, Duty, To
Whom the Duty is Owed, Breach, Causation, and Damages.
A.
DUTY
1.
Manufacturers, Designers
a.
Standard of care for the manufacturer or designer is that
they must act as a reasonable manufacturer or designer
would act in the same or similar circumstances in
designing and manufacturing the product.
b.
Manufacturer and Designer may also have a duty to
inspect, discover and correct defects, which a reasonable
inspection would reveal. This also includes a duty to warn
if the product is unavoidably unsafe.
2.
Retailers, Wholesalers
a.
Majority Rule: Retailer has no duty to inspect unless she
or he knows or has reason to know that the product is
likely to be dangerous.
b.
Minority Rule: Retailer has a duty to inspect and
discover defects that a reasonable inspection would
show.
B.
TO WHOM IS THE DUTY OWED (Apply Cardozo and Andrews
analysis above)
C.
BREACH OF DUTY
Use the facts and discuss what a reasonable manufacturer/designer would have
done in like or similar circumstances.
1.
Res Ipsa Loquitur
Often in a question the facts are silent as to exactly how the breach
occurred or what the Defendant did. This usually requires discussion of
Res Ipsa Loquitur.
To apply this doctrine, Plaintiff must establish the: (a) Accident would
not have occurred in the absence of someone’s negligence; (b)
Instrumentality was defectively made while in Defendant’s exclusive
control; and (c) Plaintiff did not contribute to her or his own injuries.
D.
ACTUAL CAUSATION (Use the “But-for” Test and the Substantial
Factor tests above)
E.
PROXIMATE CAUSATION (Same discussion as Ordinary Negligence
above)
F.
DAMAGES
Plaintiff can recover for pain and suffering, but recovery for economic loss is
insufficient. Further, damages resulting from product’s failure to perform as well
as expected are not recoverable.
G.
DEFENSES
1.
2.
3.
4.
Contributory Negligence (Same discussion as for Ordinary
Negligence: Defenses Above)
Comparative Negligence (Same discussion as for Ordinary
Negligence: Defenses Above)
Assumption of Risk (Same discussion as for Ordinary
Negligence: Defenses Above)
Misuse of Product: Determine whether Plaintiff properly used
the product for its intended purpose. If not, this is an extremely
valuable defense. Not a defense if misuse foreseeable.
ISSUE: EXPRESS WARRANTY (UCC 2-316)
Express Warranty requires an affirmation of fact made by the Seller to the
Buyer relating to the goods that are the basis of the bargain.
A.
AFFIRMATION OF FACT must be a misrepresentation of material
fact concerning the character or quality of the product
B.
REPRESENTATION MADE TO PUBLIC by label or advertising
C.
JUSTIFIABLE RELIANCE on representation must influence the
transaction.
ISSUE: IMPLIED WARRANTY
A.
Implied Warranties come in two general types, including:
1.
Implied Warranty of Merchantability
Implied to every sale of goods is a warranty that the goods are of a quality
equal to that generally acceptable among those who deal in similar
goods; and
2.
Implied Warranty of Fitness for a Particular Purpose
Goods are fit for the ordinary purpose for which they are foreseeably
used.
B.
PRIVITY
Under UCC 2-318(a) and in a majority of states, privity is required between the
Seller and injured party. Privity exists between the Seller and Buyer and is
extended to the Buyer’s family, household members, and guests injured by
the product.
C.
DEFENSES
1.
2.
3.
4.
ISSUE:
above)
Contributory Negligence (If after discovery of defect, P acts
unreasonably)
Comparative Negligence (If after discovery of defect, P acts
unreasonably)
Assumption of the Risk
Timely Notification of the Breach (Under UCC 2-607, Buyer
must notify the Seller within a reasonable time after she or he
discovers or should have discovered the defect or Buyer’s claim
will be barred.)
MISREPRESENTATION (See Intentional Misrepresentation