use this fact to answer the questions.
Facts:
Michael Magoo, a professional electronics design engineer, prepares a new circuit design for a more efficient TiVo-style recorder for home use. Magoo subcontracts the printed circuit design to Alla Bord, a Czech engineer in Prague who speaks limited English. Bord prepares a schematic of the printed circuit design. Magoo requests that Bord make changes in the design to make the board layout even more efficient. One of the major changes affected the location of the power supply. Bord makes the requested changes, but then attempts to tell Magoo in an international telephone call that although the changes will work, the new layout might increase the risk of shock to any consumer who opens up the recording device. Magoo does not understand Bord very well and assures him that he has done a good job. Saving even a few pennies in production of the board is worth a lot of additional profit to Magoo’s client, Giant Corporation.
During Alpha testing of the product without a casing at Giant Corporation headquarters, Sam Bupkis, a visiting buyer from Circuit City, is severely shocked and injured during a demonstration of the product when he accidentally touches the circuit board in the very place that Bord warned Magoo about. Bupkis sues Giant for negligence and product liability, and sues Magoo and Bord for professional negligence and product liability.
At trial, Bupkis introduces the testimony of an expert electronics engineer who states that any competent electronics engineer should have known from the revised schematic that the layout was dangerous and that Giant’s engineers should have reviewed Magoo’s work and discovered the deficiencies in the design. Giant defends by arguing that Alpha testing is used to find flaws and that, in fact, the flaw was discovered before the product was released to the public. Giant further argues that Bupkis should not have touched the product. Bord defends by claiming he was only a hired independent contractor who performed exactly as required of him and who warned Magoo. Magoo defends himself by claiming that it was not readily apparent from the schematic that the layout was dangerous and that he was entitled to rely on the specific expertise of Bord as the layout designer, who should have put his warning in writing to be understood.
Make full use of the mentioned facts to answer the following questions:(use attached file as reference and please do not use any other references)
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1. State the professional duty of care of a professional electronics design engineer, then the specific professional standard of care Magoo and Bord must follow in designing the requested product. State the general duty of care for a corporation as to visitors on its premises and the specific standard of care relative to test areas and visitors.
2. Determine, using facts and law, whether anyone breached a standard of care.
3. Determine, using facts and law, whether any breach is the actual cause of any of Bupkiss’ injuries.
4. Determine whether any breach is the proximate cause of any of Bupkiss’ injuries.
5. Determine using facts and law whether any defendant has any viable affirmative defense
6. Clearly state your conclusion who, if anyone is liable and in what percentage of total fault (100%)
Negligence AND STRICT LIABILITY
Negligence Exercise
1 Select a jury Foreman.
Foreman will speak for the group, lead the deliberations.
2 Deliberate!
Discuss each element of negligence IN ORDER:
Duty: did Haverley owe Maku a duty of care? GDC or PDC?
Breach
Causation: actual and proximate.
Was Haverley’s breach the actual cause of Maku’s injury?
Was Maku’s injury forseeable?
3 When all issues have been discussed, Foreman calls a vote.
Simply majority rules.
If Haverley is liable, then you must discuss comparative negligence and assign a percentage.
Be prepared to explain your reasoning.
Torts Recap
What is a tort?
What are the three elements of a tort?
How many elements do you need to prove in order to successfully bring a tort action?
What does “forseeable” mean, within the context of torts?
What is liability?
State the General Duty of Care.
State the Professional Duty of Care.
Negligence
What is negligence?
What does it mean to be negligent?
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Negligence
Negligence is to act carelessness or recklessness, resulting in damages.
The failure to act in accordance with the applicable Duty of Care.
Negligence is an unintentional tort!
You didn’t mean to hurt someone, but you did anyway.
Liable for negligence if you knew or should have known that your actions were likely to cause injury.
Professional Negligence
When a professional’s actions fall below the Professional Duty of Care.
Professional is held to a higher, stricter standard than the general public when acting within their professional capacity.
Public Policy considerations
Protection of the Public
Integrity of the Profession
California Business & Professions Code: the single largest section is Engineering. Why?
Establishing Negligence
Ordinary Negligence
Negligence Per Se
Res Ipsa Loquitor
Ordinary Negligence
Example: Engineer is hired to build a bridge on sandy, shifting soil. State law requires at least one soil compaction test for such a project.
Engineer meets the legally minimum standard and conducts one soil compaction test.
Later, bridge collapses due to liquifaction resulting in two deaths. Was Engineer professionally negligent?
What is Engineer’s defense?
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Professional Negligence
Meeting minimally acceptable standards may not be enough!
A Reasonable, Prudent Engineer of similar education and experience should have known that one compaction test was insufficient.
Plaintiff will establish this at trial with expert testimony.
Compliance with law is always required, but may not be sufficient to overcome a claim of negligence.
Professional Negligence
What’s the take away here?
As professionals you must use all of your education, experience, and professional judgment to make the best decisions.
Circumstances and facts change. You must use your professional judgment to make sure that you are always meeting the Professional Duty of Care.
What is acceptable in one circumstance may not be acceptable in another.
Examples? What about speed limits?
Negligence Per Se
Negligence Per Se
Violation of a law can establish negligence.
Example: one soil compaction test may or may not have been sufficient (it’s an arguable point). But what if Engineer had not conducted any compaction tests?
Negligence would be conclusively established.
Must establish: law in place, violation, connection between violation and damages.
Res Ipsa Loquitor
Res Ipse Loquitor: Latin, “The thing speaks for itself”.
An injury occurs which would not normally occur absent negligence
D was in possession or control of the instrument.
Negligence is established even though Plaintiff cannot prove exactly what occurred.
*Don’t get carried away with RIL. You’ll start to see it everywhere.
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Res Ipsa Loquitor
Pedestrian is walking down the street minding his own business.
Suddenly, a piano which is being hoisted to the third story window of an apartment building, breaks free from it’s ropes and kills Pedestrian.
Pedestrian’s family sues for negligence.
Piano movers defend by arguing that they took all reasonable precautions, secured the ropes, and therefore were not negligent.
They further argue that Pedestrian’s family cannot specifically establish where a breach occurred.
Who wins?
Defenses to Negligence
Contributory Negligence: negates ANY recovery. A minority of states use this method.
Comparative Negligence: If both parties were negligent, the court may apportion liability and reduce recovery. California is a CN state.
Assumption of the Risk: skydivers. Known and voluntary.
Superceding Cause: when an unforeseeable event occurs which causes P’s injury.
Defenses to Negligence
Plaintiff is driving along a road with a posted 25 MPH speed limit.
Conditions are rainy, Plaintiff is not wearing a seatbelt, and he is travelling at 35 MPH.
Defendant, who is travelling on an adjacent road, goes through a red light and crashes into Plaintiff causing serious injuries.
Plaintiff sues Defendant, who claims that Plaintiff was also negligent for not wearing a seatbelt.
What outcome?
Defenses to Negligence
Driver is speeding down a road. Driver is travelling at 50 MPH while the posted speed limit is 35 MPH.
While rounding a curve, Driver spots Bicyclist and slams on his brakes.
Bicyclist is hit, and suffers a broken arm and minor lacerations.
Driver helps Bicyclist to the side of the road and calls 911.
While waiting for the ambulance, a locomotive jumps the tracks, lands on Bicyclist, and kills him.
Bicyclist’s family sues Driver for his death
What outcome?
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Defenses to Negligence
Driver hits Bicyclist, who is seriously injured. Bicyclist is taken to Hospital, where Doctor negligently treats him, committing medical malpractice.
Bicyclist sues Driver not only for injuries sustained in the accident, but for further injuries suffered as a result of Doctor’s malpractice.
Driver defends by claiming that Doctor’s malpractice is a superceding cause, and he’s not responsible.
Is Driver responsible for injuries sustained as a result of the accident AND the malpractice?
Forseeable?
Negligence Example
Engineer is hired to build a multi-level parking structure.
The structure is to be built primarily of concrete, and the job site is under Engineer’s direct supervision.
Engineer is careful to comply with all laws and professional standards.
When the project is about 50% complete, the structure unexpectedly collapses killing several workers. Their families sue Engineer.
Engineer defends by stating that he was in full compliance with all regulations, and that family cannot identify the cause of the collapse.
What result?
Strict Liability
In certain circumstances, a person may be strictly liable for any resulting injuries regardless of precautions taken.
This is essentially “automatic liability”.
You are liable regardless of precautions taken!
A harsh doctrine.
Only applicable in certain circumstances.
Strict Liability
Animals
Inherently Dangerous Activities: activities which present a serious risk of harm even if you exercise care and take reasonable precautions, and the activity is not common to the community.
Blasting, firearms, fireworks, etc.
Strict Products Liability: manufacturers are strictly liable for defective products.
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Strict Liability
Example Engineer decides that in order to build a
road she must blast a granite hillside.
Blasting site is located in a residential area near a school.
Engineer warns all residents, prohibits access to the site, and chooses a Saturday morning for the blasting so that children will not be present.
Immediately proceeding the explosion, Engineer checks the school grounds to make sure that no children are present, and the explosion commences.
At that exact moment, two children sneak into the schoolyard, and are killed by flying debris.
Liability?
Strict Liability
Engineer is hired to construct an access road at a granite quarry.
The site is located in the desert, with few people nearby.
The quarry frequently blasts in order to extract granite, as do other neighboring quarries.
Engineer decides that blasting is required to build the road, undertakes all necessary precautions, and commences work.
A small child who lives in the area wanders onto the property and is killed by the blast.
Strict Liability? Negligence?
A word about reality vs. the classroom…
Strict Products Liability
Design Defect can create strict liability
Could apply to civil engineers, definitely applicable to mechanical engineers.
Defective Design: a defective condition, designed by engineer, beyond consumer expectations, an economically feasible alternative existed, and injury did in fact occur.
Anyone in the “chain of commerce” can be sued.
Strict Liability
What is the result of establishing strict liability?
As long as the Plaintiff can establish that the D had a strict duty to make safe, and D failed to make safe, liability is CONCLUSIVELY established.
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Negligence Exercise
1) Select a jury foreman
2) Discuss each element of negligence (duty, breach, causation) in order
3) Vote for a verdict (liable, not liable)
4) If you find comparative fault, apportion liability
Be prepared to explain your verdict and findings to the class
Other Types of Liability
Joint and Several Liability: More than one tortfeasor is responsible. All may be liable, even if P cannot prove exactly which one caused the injury, as long as all were engaged in tortious behavior.
Respondeat Superior: Employers may be liable for the torts of their employees, as long as the conduct occurred during the scope of employment (especially negligence).
Exception for independent contractors.
Exception for crimes/intentional torts, unless the employer knew or should have known that the employee was likely to commit the crime/intentional tort.
Types of Liability
Two friends are duck hunting along a rural marsh.
As a flock of ducks take wing, they both fire their shotguns simultaneously at the ducks.
A hiker coming around a bend in the road, and unseen by the hunters, is hit by bird shot and suffers injuries.
Hiker sues both hunters for negligence.
Hunters defend by stating that Hiker cannot establish which Hunter actually shot him.
Who wins?
Types of Liability
Engineer hires Employee to oversee Human Resources management at her engineering firm.
Following an interview with a prospective applicant, Employee negligently bumps into Applicant, causing her to fall down the stairs and sustain injuries .
Can applicant sue Engineer for Employee’s negligence?
What if Employee assaulted and robbed Applicant during the interview? Is Engineer responsible?
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Damages
Damages are the legal measure of P’s injury and compensation.
Damages accrue to the injured party (P).
Tortfeasor (D) is liable for damages.
Damages are available for both Intentional and Unintentional Torts.
Damages must be causal (“but for” causation), forseeable (proximate cause), and certain (not too speculative).
Types of Damages
Compensatory Damages: seek to compensate P for the loss
Two Types: Actual and Special.
Actual damages occur as a direct result of the tortious act. Personal injuries, property damage. Always recoverable.
Special Damages: these are consequential damages that flow from the injury such as lost income. Must be forseeable at the time of injury. Hadley v. Baxendale
Punitive Damages: to punish intentional torts.
Nominal Damages: no actual injury.