1. Chapter 7 Negligence and Strict Liability
Negligence occurs when someone fails to live up to their required duty of care and
someone gets hurt.
To win a negligence case the plaintiff must prove
1.Duty- Defendant owed a duty of care to the plaintiff
2. Breach- Defendant breached duty
3. Causation- Breach caused injury
4. Damages- Plaintiff sustained legally recognizable injuries
Duty of Care- Basically saying people are free to do what they want as long as their
actions do not infringe on the interests of others.
When McDonalds served coffee at 10 to 30 degrees hotter than their competitors
they breached duty of care and had to pay a huge legal fee when an 80 year old
women was burned after spilling.
6 duties
-Reasonable Person Standard
-Duty of Landowners
-Duty to Warn Business Invitees of Risks
-Duty of Professionals
-No Duty to Rescue
-Obvious Risks Provide an Exception
Causation- The persons act must have caused harm for it to constitute the tort of
negligence.
Causation in fact- Did the injury occur because of the defendants act, or
would it have occurred anyways?
Proximate Cause- Was the act the legal cause of injury?
Palsgraf v. Long Island Railroad Co.
Man dropped un-marked box containing fireworks, the fireworks exploded
causing scales to fall on Palsgraf injuring him. Court ruled against Palsgraf because
there was no way of knowing what was in the box, ruling that the railroad company
was not being negligent.
Defenses to Negligence
1.Assumption of Risk
2.Superseding Cause
3.Contributory and Comparative Negligence

2. Assumption of Risk
Defenses
-Knowledge of the risk
-Voluntary assumption of risk
Things such as skiing, snowboarding or other activities where risk is
known/assumed void negligence
-Can be express or implied
Superseding Cause
-Derrick hits Julie with his bike breaking her hip. While waiting for the
ambulance a small aircraft crashes sending debris that cause severe burns. Derrick
will be liable for the hip injury but not the burns because they were unforeseeable.
Contributory and Comparative Negligence
-Says everyone has to reasonably look after themselves and exercise
reasonable care. Comparative is when the court compares the plaintiffs and
defendants negligence to figure out liability. Pure comparative allows any % of
damages recovered; modified means if the person is more than 50% responsible
they can not recover damages.
Special Negligence Doctrines and Statues
Res Ispa Loquitar- Presumption that the defendant was negligent, and has to prove
that they were not.
Negligence Per Se- When you commit a crime that causes another to be injured.
Inattentive driving leading to an accident, person who was hit can sue if they get
hurt.
Strict Liability
Liability without fault, a person engaging in certain activities can be held
responsible for any harm to others.
Chapter 22
Express Warranties
Arise when:
1.Affirmation of fact, told by the seller to the buyer
2.Goods conform to the description
3.Goods conform to sample/model

3. Puffery does not constitute express warranties, or other statements of opinion
unless opinion is given from an expert.
Implied Warranties
Derived from inference, implied.
Implied Warranty of Merchantability- If you are in the business of selling a certain
item than you have the implied warranty.
Merchantable Goods- “reasonably fit for the ordinary purposes for which such goods
are used” The goods must be adequately packaged, and conform to any affirmations
of fact made on the label. Merchants are not insurers against all accidents arising in
connection with the goods.
Still liable even if you do not know or could not know that the product is defective.
Webster vs. Blue Ship Tea Room- Webster had a piece of fish bone stuck in her
throat from chowder. She sued the restaurant but lost under implied warranty, it is
not unnatural for there to be fish bones in clam chowder.
Implied warranty of fitness- A buyer or lessee will use the goods and knows the
buyer or lessee is relying on the skill and judgment of the seller to select suitable
goods.
Particular vs Ordinary Purpose- By giving you the wrong color of paint you
are not breaking implied warranty of merchantability but the implied warranties of
fitness.
Warranty Disclaimers and Limitations on Liability
Express Warranties- A seller can disclaim all oral express warranties by including in
the contract a written disclaimer in a language that is CLEAR and CONSPICOUS and
called to the buyers attention. Buyer must be aware of disclaimer at the time that
the contract is formed.
Implied Warranties- Warranties of merchantability and fitness are disclaimed by
phrases such as “as is” or “with all fault”. The phrase must be of COMMON
UNDERSTANDING for BOTH parties. This does not mean you can lie about facts.
Implied Merchantability- To disclaim the seller must say the word merchantability.
Writing must be conspicuous, meaning that they must be in caps or a larger font.
(A-42 Appendix C)

4. Implied Fitness- Does not have to mention the word fitness. Just has to clear and
conspicuous.
Product Liability
Those who make, sell, or lease goods can be held for physical harm or property
damage caused by those goods to consumer, users, or bystander.
Based on Negligence-Due care must be exercised.
Based on Misrepresentation- When a consumer is injured due to the sellers
misrepresentation, basis of liability may be tort of fraud. Something like
intentionally concealing a product defect.
Strict Product Liability
Public policy 1. Consumers should be protected against unsafe products
2. Manufacturers should not escape liability because they are not in
direct contract with ultimate buyer.
3.Manufacturers are in better position to bear costs associated with
injuries.
Greenman v Yuba Power products was 1st case to put strict product liability upon
manufacturer.
Requirements for Strict Product Liability
1.Defective condition when sold
2.Normally be in the business of selling that product
3. Unreasonably Dangerous
4. Must incur physical harm
5. Defect must be what caused the injury
6. Goods must not have been substantially changed

5. Agency
Agencies are always consensual
Through agreement, ratification, estoppel, or operation of law
Agreement- Express consent
Ratification- If principal approves a contract from a non agent by word or action
Estoppel- When there’s no agency but a third party acts as one (assistant using
credit card)
Operation of Law-Based on legal duty
Agents Duties to Principals
1.Loyalty
2.Obedience
3.Accounting
4.Performance
5.Notificatio
Principal Owes Agent
1.Compensation
2.Reimbursement
Agent vs Third Party
Contract- What kind of principal?
If disclosed the agent is not liable
If partially disclosed then the agent may be liable
Tort
Agent is always liable, but third party may only proceed to judgment against
or principal
Principal v. Third Party
Liability of principal to third parties depends on whether an agent has the authority
to enter into a legally binding contract.
Types of Authority-
Express- Authority declared in clear, direct and definite terms.
Implied- By custom, from the position in which the principal has placed the agent, or
because such authority is necessary if the agent is to carry out expressly authorized
duties and responsibilities.
Apparent- When the principal by word or action causes a third party reasonably to
believe that the agent has authority to act. (Azur vs. Chase Bank)
Ratification- When a principal accepts responsibility for an agents unauthorized
action.