Expansion of Liability - Torts Law - Solved Exam, Exams of Law of Torts

Download Expansion of Liability - Torts Law - Solved Exam and more Exams Law of Torts in PDF only on Docsity! ID: TortsII_(Zamperini) LS1_S08 WA Mi 1) Essay #1 Peter v. Delta for strict liability for his personal injuries from the blast Based on abnormally dangerous activity We will consider whether Delta will be strictly liable for the personal injuries to Peter because of the blast. Under Rad $519(1), one may be strictly liable for abnormally dangerous activities. Under R2d $520, abnormally dangerous activities are determined by considering (1) inappropriateness of the activity in the place it was carried out, (2) high degree of risk of the harm, (3) the likelinood that the resultant harm will be great, (4) ability to'el ale or reduce the risk of harm, (S)whether the harm is nat subject to common usage, and (6)balancing the value to society and the dangerousness of the harm. Regarding (1), Delta Construction Co (D) use of explosives to destroy a bridge may be an appropriate activity in the place it was carried out because the construction project was located 10 miles east from Junction City. So there was likely less people thal could be harmed by the explosives, On the other hand, the activity may be inappropriate for the place because there were many reporters and interested people that came to watch the biasting. D may have been able to use a less dangerous means to destroy the bridge. Also, D should have decided ta postpone the blasting because of the possibility of thundershoers later that day. Regarding (2), explosives have a high degree of risk of harm because they are made of volitile chemicals and D should have known that with thundershowers there was the possibility of Page 1 of 10 (Question 7 continued) ID: TortsiI_(Zamperini)_1Si S0a NA Michael A. Za.. lightening that could ignite the explosives. On the other hand, explosives are usually packaged in such a way that the only way they could be detonated is by the ignition by the human who 4 \ a A pushes the button to explode the charge” \\ fa Cine An (~ tN fo aa Ae i Regarding (3), D was aware that the explosives could cause great harm’ because they took many precautions such as diverting the traffic 1/2 mile way from the bridge, having personnal with large red flages to create a barrier for the interested people, the explicit warning that Delta's foreman gave to the people present and the necessity of using the cars as shields. On the other hand, explosives would not cause great harm because D took the necessary precautions to prevent injury to the people in the area, lightening and D could also reduce the risk of harm by not calling the media to watch the explosion and to vacate campletely the blasting zone of danger. On the other hand, the ris! may not have been able to be reduced or eliminated because people would have come dA anyways to watch the demolition and the media would have cited their right to fair reporting of the event. a“ Regarding (5), explosives are commonly used for construction and D should have been aware of the proper procedures to use because they likely used explosives regularly in their work. On the other hand, explosives are not commonly used in society and P could argue that the blasting area was only 10 miles from the main city. Regarding (6), D would argue that their road construction project was benefiting society Page 20f10 (Question 7 continued) H e [D: TortsII_(Zamperini) bS1 508 NA Michael A. 2a... should nat apply because R2d 524(1) would apply because P should have known that the area was uneven walking ground and should have been more careful to prevent himself fram falling and that P knew of the risk of debris falling i In view of the above, Peter will likely be able to completely recover for his personal injuries or at : | | the very least have reduced recovery from Delta Construction Co. | Based on Product Defect Strict Liability Xi i P would argue strict liability for a defective product. Under 402a, one who sells a product in a defective condition that is unreasonably dangerous is subject to strict liability for physical harm to the user, customer or property. P would argue that through the chain of sale, D would be liable for his personal injuries because D failed ta warn P. Failure to warn based on strict liability applies when one fails to warn of the risk of the product and he knew or should of known in view of the state of the art. D likely was aware of the state of the art regarding exposives and the risks posed by the danger because as discussed above D took many precautions to protect the people in the surrounding area of the construction area. D's employees should have noticed that P was too close to the detonation zone of danger and should have warned P to move back, However, D would argue that there was no defect inherent to the explosives and would paint to the lightening that caused the explosives to prematurely explode. Essay #2 Page 5cf 10 (Cuestion 1 continued) ID: TortsIi_(aZamperini) LS1 S08 NA Michael A. Za... Does Products liability law need to be reformed? The main goals of toris is to compensate the plaintiff, which in turns deters the unacceptable behavior against society as a whole. There are usually two basic theories when determining who should pay the damages: allocative theory and distributive theary. For allocative theory, one decides whether the plaintiff or defendant should bear the burden of the harm caused and then apply the appropriate tort theory for the proper result. For distributive theory, one looks the the deepest pockets because they are able to spread the loss over product price or liability insurance Looking at tort law concerning product liability in particular, there are many considerations. If we side with the victims, then they want ta be compensated for their loss. If we side with the manufacturers, tehn they want to be able to conduct their business with a profit and not to be hindered. For products liability law reform, we must ensure that those who need help get it and manufacturers are still able to carry on their businesses, Those that get help may get the help from other sources than the court system, such as individual medical insurance, counselling, or friends and family. { Victims usually just want to have their day in court to be compensated for the harm done to them. However, we want to limit the number of court cases to only compensate those that have | 8@rious injuries and perhaps only the cases that affect the most people. We should give credit to victims, who have been injured from a product defect. This credit would be that they took the time to investigate their product and they read the instructions and that the defect was not able to be detected by them before the incident. These victims should have a day in court for compensation. On the otherhand, victims that did not take common sense precautions should Page 6 of 11 (Question 1 continued) 0 Tortsil_(Zamperini)_LSi_soe be subject to cateat emptor because they are the ones more likely to be eligible for the Darwin award next year. These potential Darwin award winners should not be compensated for their injuries because they likley contributed negligently to their injuries. For example, consumers should stick to the general purpose for products and those that grossly deviate should not waste the courts time with their frivolous court cases. If the victim thinks that they aren't quite ar smart as the average bear, then the victim should get more medical to cover his prospective injuries and his medical costs should not be borne by companies. Companies should only have to protect the public as a whole and should nat have to protect every single person regardless of their mental and physical abilities. Kasten (1) discusses the problem with lawyers being wicked and making too much money. This view puts forth the idea that the large recoveries from product liability cases only benefit the lawyers that represent the ones who were actually injured. This seems like a week argument product liability reform because this could easily be reduced by controlling the lawyers fees, as courts do when there are class actions. "_~ Manufacturers should have some responsbility to make a safe product. Sometimes, corporations cut corners to ensure that they make a profit. Without proper punitive damages or significant compensation damages, businesses are likely to turn a blind eye because there would be no dollar value attached to making potentially defective products. The sideeffect of these defective products would be more consumers going bankrupt to pay for their hospital fees: because they were not compensated by the company. However, the manufacturers may argue that they do have an incentive to produce generally safe products because TeIGIOPNENALS at stake. Without a good reputation, a company could easily go out of business because the consumers would stop buying their product if they thought there was a high likelihood of harm. Page Tol iO