ADV TORTS FINAL

Question 1

What are the 2 topics we covered under strict liability?

Answer 1

1) animals
2) abnormally dangerous activities

Question 2

Rylands v. Fletcher (abnormally dangerous activity case)

Answer 2

about creating unnatural conditions on land – was this natural characteristic of the land, or did the defendant do something to alter the natural character or the land to create a potential hazard if it escapes?

Question 3

Ultrahazardous Activities Factors (RST 2nd of 520)

Answer 3

in determining whether an activity is abnormally dangerous, the following factors are to be considered:
1) existence of a high degree of risk of some harm to the person, land or chattel of others
2) likelihood that the harm that results from it will be great
3) inability to eliminate the risk by the exercise of reasonable care
4) extent to which the activity is not a matter of common usage
5) inappropriateness of the activity to the place where it is carried on; and
6) extent to which its value to the community is outweighed by its dangerous attributes

Question 4

Golden v. Amory

Answer 4

you cannot apply strict liability when natural disasters occur

Question 5

Products Liability

Answer 5

strict liability in tort for manufacturing, selling, supplying, leasing or distributing an “unreasonably dangerous” product

Question 6

When would a product be seen as unreasonably dangerous?

Answer 6

because of a “defect” in the manner in which the product was manufactured, designed, or in the warnings which were or were not given about the product’s use

Question 7

MacPherson v. Buick Motor Co.

Answer 7

A manufacturer of articles that are not inherently dangerous but that may become dangerous when improperly constructed owes a duty of care to anyone beyond the purchaser who might foreseeably use the articles, when it is reasonable to expect no further tests will be performed.

Question 8

Baxter v. Ford Motor Co.

Answer 8

A manufacturer is liable to a consumer for breach of an express warranty, even if there is no privity between the manufacturer and the consumer.

Question 9

Express Warranty

Answer 9

affirmation or representation of material fact concerning the product upon which the plaintiff justifiably relied
↳ statement of general characteristic, eg “fireproof, “stainless steel” as fact, or a specific promise of safety
↳distinguished from opinion or “puffery”, e.g., “stronger and sharper than before”, “new and improved”, “best” that money can buy, etc.

Question 10

Henningsen v. Bloomfield Motors, Inc.

Answer 10

Disclaimers of implied warranties for the sale of goods and consequent limitations on liability are invalid if unfairly procured.

Question 11

GREENMAN v. YUBA POWER PRODUCTS, INC.

Answer 11

By placing a product on the market, a manufacturer becomes strictly liable for a defect in the product that causes injury to the ultimate user of the product

Question 12

Restatement (Third) of Torts §402A
§1 Liability of Commercial Seller or Distributor for Harm Caused by Defective Products

Answer 12

(a) one engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect

Question 13

Restatement (Third) of Torts §402A
§2 Categories of Product Defect

Answer 13

A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instruction or warnings.

Question 14

What is a manufacturing defect?

Answer 14

A product contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product;

• manufacturing defect is there is something wrong with this particular product not the whole product line

Question 15

What is a design defect?

Answer 15

A prouct is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe;

Question 16

What is a warning defect?

Answer 16

(c) is defective because of inadequate instructions or warnings when foreseeable risks of harm posed by the product could have been reduced or avoided by the provisions of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution and the omission of the instructions or warnings renders the product not reasonably safe

Question 17

Rix v. General Motors Corp

Answer 17

• defining what a manufacturing defect is
• imperfections that inevitably occur in a typically small percentage of products of a given design as a result of the fallibility of the manufacturing process
• product does not conform to design or specifications
• An error in the manufacture of the product, such as improper workmanship or defective materials
• Plaintiff does not need to prove what specific conduct of the manufacturer led to the defect
• Independent of whether or not design was unreasonably dangerous (not reasonably safe)

Question 18

What is a potential defense for a manufacturing defect?

Answer 18

the product has been altered

Question 19

Prentis v. Yale Mfg. Co.

Answer 19

• Design defect: entire product line is “defective”
• Strict liability does not mean absolute liability. Manufacturers are not insurers of their products. There has to be “something wrong” that makes the product unreasonably dangerous

Question 20

What are the 3 potential design defects tests?

Answer 20

1) risk-utility test
2) consumer expectation test
3) some combination of the 2

Question 21

What is the consumer expectation test?

Answer 21

• whether the product is unsafe when put to a use that is reasonably foreseeable considering its nature and function. No evidence of ordinary consumer expectations is required, because the members of the jury may rely on their own experiences to determine what an ordinary consumer would expect.
• jury is asked to make a single determination: whether the product is unsafe when put to a use that is reasonably foreseeable considering its nature and function

Question 22

Elements for a design defect case

Answer 22

1) A condition of the product as a result of manufacturing or design
2) That made the product unreasonably dangerous
3) And that existed at the time the product left the defendant’s control, and
4) An injury to the plaintiff
5) That was proximately caused by the condition

Question 23

The risk-utility test

Answer 23

multifactor analysis:
(1) the product’s utility to the public,
(2) the likelihood and the probability of foreseeable injury to the consumer,
(3) the manufacturer’s ability to eliminate unsafe characteristics without impairing its usefulness or making it too expensive to maintain its utility,
(4) availability and feasibility of alternate designs, and
(5) conformity with any applicable industry standards and governmental regulations.

Question 24

What happens if a plaintiff cannot prove specific defect?

Answer 24

circumstantial evidence may support inference that the product was defective if there is:
- Evidence that the product failed to perform as expected, in light of its nature and intended function, and
- That the product was not being used abnormally, and
- That there were no reasonable secondary causes of failure

Question 25

Nonspecific defect only works for what kind of defect?

Answer 25

manufacturing defect

Question 26

GILLESPIE v. EDMIER

Answer 26

Evidence of a product’s compliance, non-compliance with government (e.g., OSHA) or other safety standards (e.g., ANSI) can be relevant and admissible to determine whether the product is defective - Here consumer expectation test is available because an average consumer would be able to decide whether the means of getting in and out of this trailer was particularly dangerous - Where an unreasonably dangerous condition is caused by a modification to the product after it leaves the manufacturer's control, the manufacturer is not liable unless the modification was reasonably foreseeable.

Question 27

Friedman v. General Motors Corp.

Answer 27

- The fact that an accident has occured does NOT prove a defect - circumstantial proof of defect - Most probable cause of accident is attributable to a defect. Fact of accident and a possibility of defect as an explanation of the accident is NOT sufficient (know the difference between probability and possibility)

Question 28

General requirements for a warning

Answer 28

1) Designed so can reasonably be expected to catch the attention of consumer 2) Be comprehensible and give fair indication of specific risk 3) Intensity justified by magnitude risk (ie conspicuous, bold, contrasting colors, etc.)

Question 29

Instructions v. Warnings

Answer 29

- Instruction tells consumer how to use product - Warning alerts consumers to risk of use even if instructions are followed and if instructions are not - Can provide instructions on how to use product and yet product is unreasonably dangerous for lack of appropriate warnings associated with risk

Question 30

Anderson v. Owens-Corning Fiberglass Corp.

Answer 30

Duty to warn is not based on what a reasonable manufacturer would do. Duty to warn in product liability is based on what is known or knowable by the manufacturer, without regard to whether the failure to warn was reasonable

Question 31

Defenses to product liability

Answer 31

1) assumption of risk 2) contributory negligence

Question 32

assumption of risk

Answer 32

- This plaintiff had actual knowledge of the risk (subjective standard) - With knowledge of that risk, the plaintiff voluntarily encountered the risk

Question 33

contributory negligence

Answer 33

- The failure to exercise ordinary care. The plaintiff knew or should have known of the risk and acted unreasonably - It is an objective standard

Question 34

Maynard v. Snapchat

Answer 34

a manufacturer is under a duty to select from alternative product designs to reduce reasonably foreseeable risks of harm.

Question 35

PETERSON v. LOU BACHRODT CHEVROLET CO.

Answer 35

Strict products liability cannot be imposed on a retailer who is outside the original producing and marketing chain of the product.

Question 36

ERIE INS. CO. v. AMAZON.COM

Answer 36

Services that facilitate sales without holding title cannot incur products liability as the seller.

Question 37

T.H. v. NOVARTIS PHARMACEUTICALS CORP.

Answer 37

Brand-name drug manufacturers owe a continuing duty of care to maintain adequate warning labels used on generic versions made by other manufacturers.

Question 38

HECTOR V. CEDARS-SINAI MEDICAL CTR.

Answer 38

- A hospital is not subject to strict liability for a product provided to a patient during the course of her treatment. - No strict liability if primary purpose was provision of service and sale of product was “incidental” to service

Question 39

Belli v. Orlando Daily Newspapers, Inc.

Answer 39

Determining if the statement is defamatory is a question of law

Question 39

Grant v. Reader’s Digest Ass’n

Answer 39

To maintain a claim for libel, it is not necessary that the plaintiff’s reputation be harmed in the eyes of all or even most people, but rather it is sufficient that the reputation is harmed in the eyes of some.

Question 40

Pleading defamation

Answer 40

- false statement of fact - publication to a third person - formal statement the words were spoken about the plaintiff - allegation of the defamatory meaning -- innuendo, the context to explain why words understood as defamatory - special damages, when necessary to cause of action

Question 41

What is a defense to defamation?

Answer 41

Truth is a defense, plaintiff can show that the statement is true or defendant can show that the statement is false (Kilian v. Doubleday & Co., Inc.)

Question 42

Neiman-Marcus v. Lait

Answer 42

- Where a group libeled is large, none in the group can sue even though the language used is inclusive, but where a group libeled is small, and each member is referred to, each individual member can sue. - The real test is whether the class is small enough to say that the defamation affects this particular plaintiff

Question 43

Exactly who is defamed?

Answer 43

- Plaintiff must prove the statement refers to an identifiable person - If the group referred to is “too large”, none can recover. If the group is “small” any member can recover - First Amendment requires “public officials” to be specifically identified. → governmental entities cannot be defamed; ex: “city council is all corrupt” - Only a living person can be defamed. However, defamation of the dead can affect the living - A corporation has no “reputation”, but can be defamed for aspersions of its honesty, credit, business or moral character - Casting the plaintiff as a fictional character is not a defense if a reasonable person would understand the character was in fact the plaintiff

Question 44

Bindrim v. Mitchell

Answer 44

So-called fiction can be defamatory if a reasonable person reading this would understand that the character was in fact the plaintiff acting as described then that person may be identified enough to support a defamation claim

Question 45

Terwilliger v. Wands

Answer 45

To recover damages based on a defamation claim for words which themselves are not defamatory, the plaintiff must prove he suffered special damage to his reputation from the defendant’s statement.

Question 46

Economopoulos v. A.G. Pollard Co.

Answer 46

Communication to third person. There is no requirement that this be in writing or “publicized”.

Question 47

Carafano v. Metrosplash.com, Inc.

Answer 47

A computer matchmaking site may not be held liable for defamatory content posted in a fictitious dating profile by someone posing as another person.

Question 48

Ogden v. Association of the United States Army

Answer 48

The publication of a book, periodical, or newspaper containing defamatory matter gives rise to only one cause of action for libel, which accrues at the time of the original publication.

Question 49

Does the first amendment permit false speech that harms one's reputation?

Answer 49

if you're a public figure, yes

Question 50

New York Times Co. v. Sullivan

Answer 50

a public official’s ability to recover for defamation relating to his official conduct is limited to statements made with actual malice, i.e., with knowledge that it was false or with reckless disregard of whether it was true or false

Question 51

what does actual malice mean under the New York Times standard?

Answer 51

Actual malice does NOT mean hatred, ill-will, intent to defame or any evil motive. It refers to the degree or extent of knowledge of the falsity of the statement

Question 52

St. Amant v. Thompson

Answer 52

To constitute reckless disregard for the truth in a defamation claim brought by a public official, there must be evidence that the speaker entertained serious doubts as to the truth of his statement.

Question 53

Recklessness under the NYT standard

Answer 53

Recklessness under the N.Y. Times standard requires proof defendant subjectively had a “high degree of awareness of probably falsity”, or had “serious doubts about the truth” of the statement The First Amendment protects some erroneous publications about “public affairs”

Question 54

Harte-Hanks Communications, Inc. v. Connaughton

Answer 54

- “Purposeful avoidance of the truth”, or a “deliberate decision not to acquire knowledge of the facts”, as opposed to a failure to investigate or insufficient investigation, is actual malice - In a defamation claim brought by a public official, if the defendant deliberately decides not to ascertain available information on the truthfulness of its statement, that is sufficient to constitute actual malice.

Question 55

Gertz v. Robert Welch, Inc.

Answer 55

Who is a public figure? - Requires “clear evidence” of general fame or notoriety in the community and pervasive involvement in the affairs of society - Appearance by lawyer at a public hearing does not transform him into a “de facto public official” - Can inject oneself into a public controversy and become a public figure for a limited range of issues. Whether the plaintiff is public figure depends on context, i.e., the nature and extent of his involvement in controversy giving rise to the defamation - Gertz test of who is a “public figure”: Did plaintiff “thrust himself into the vortex of this public issue”, or “engage the public’s attention in an attempt to influence its outcome”?

Question 56

Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.

Answer 56

A court may permit recovery of presumed and punitive damages in a defamation case absent a showing of actual malice when the defamatory statements do not involve matters of public concern.

Question 57

Philadelphia Newspapers v. Hepps

Answer 57

When a media defendant publishes a matter of public concern, a private plaintiff may only recover damages by showing that the statement at issue is false, and the defendant is at fault.

Question 58

Involuntary public figure, Wells test:

Answer 58

- Plaintiff pursued course of conduct from which it was reasonably foreseeable that the public interest would arise - Plaintiff was a central figure during debate over the public controversy

Question 58

Limited voluntary public figure, Wells test:

Answer 58

- Plaintiff has access to effective channels communication - Plaintiff voluntarily assumed role prominence in public controversy - Plaintiff tried to influence public controversy - Controversy existed before publication - Plaintiff retained public figure status at time of publication

Question 59

Osaudairo v. Geragos

Answer 59

- If defamatory meaning is ambiguous, it is incumbent on a plaintiff to plead the innuendo, the context to explain why words understood as defamatory. - Need to plead the allegedly defamatory statements with specificity. - To be actionable per se, the statement must directly accuse the plaintiff of a specific crime, not merely lying in general. - To plead “actual malice”, requires more than a conclusory claim of actual malice. There must be allegations of facts from which knowledge of falsity or reckless disregard for truth may be inferred → you have to have some facts that justify the conclusion that defendant knew it was false or published with reckless disregard

Question 60

Innocent construction rule: (Osaundairo)

Answer 60

“requires a court to consider the statement in context and to give the words of the statement, and any implications arising from them, their natural and obvious meaning” “If, as so construed, the statement may reasonably be innocently interpreted … it cannot be actionable per se.”

Question 61

Milkovich v. Lorain Journal Co.

Answer 61

The First Amendment does not automatically protect opinions from defamation laws. The expression of an opinion often implies knowledge of facts that lead to the expression of the opinion. It would be improper and illogical to protect speech from defamation laws simply because the speaker says or implies the words “I think” in front of a statement based in fact. Consequently, in this case, Diadiun’s opinion-based column is not protected from state libel laws. A reasonable fact finder could determine that the statements contained in the article imply factual assertions that Milkovich lied under oath.

Question 62

Trump v. CNN

Answer 62

The “intention to portray [a] public figure in [a] negative light, even when motivated by ill will or evil intent, is not sufficient to show actual malice unless the publisher intended to inflict harm through knowing or reckless falsehood.”

Question 63

Sindorf v. Jacron Sales Co., Inc.

Answer 63

Immunity forfeited if the statement is outside scope of privilege, and does not include publication to someone not reasonably believed to be necessary or useful to further that interest

Question 64

conditional privilege

Answer 64

there will be no liability if the defendant correctly or reasonably believes that there is information that another sharing the common interest is entitled to know

Question 65

What are the four types of privacy torts?

Answer 65

1) appropriation name or likeness 2) intrusion on seclusion 3) publication private facts 4) false light

Question 66

Joe Dickerson & Associates, LLC v. Dittmar

Answer 66

The publication of an individual’s name and likeness in a truthful article regarding the individual’s felony conviction is privileged speech under the First Amendment as newsworthy

Question 67

Sanders v. American Broadcasting Companies, Inc., et al.

Answer 67

Intrusion on seclusion 1) Protects plaintiff with objectively reasonable expectation of privacy in place, conversation or matter from 2) Invasions that are “highly offensive to a reasonable person”, considering defendant’s conduct, surrounding circumstance

Question 68

Hall v. Post

Answer 68

Publication of private facts: 1) Publication of private facts of kind that would be highly offensive to a reasonable person; and 2) Is not of legitimate concern to the public

Question 69

Cantrell v. Forest City Publishing Co.

Answer 69

False Light: - Focus is on whether the statement leads the public to believe something false about the plaintiff - But there is no liability for publishing matters that are “substantially true” that do not depict the plaintiff in a false light *does it lead the public to believe something false about the plaintiff? and are the statements substantially true?

Question 70

SWINTON v. WHITINSVILLE SAVINGS BANK

Answer 70

Can be failure to disclose, if under a duty to do so. Duty arises: - Fiduciary or other confidential relationship (attorney-client; trustee-beneficiary; principal-agent; partner-partner; joint ventures; corporate officer-corporation; parent-child; physician-patient; guardian-ward; husband-wife; surety and guardianship) - Defendant knows of a material fact which cannot be discovered by a buyer upon reasonable inspection or diligence - Material: if a reasonable person would find it important in deciding to enter into a transaction

Question 71

GRIFFITH v. BYERS CONSTR. CO. OF KANSAS, INC.

Answer 71

Where a vendor has knowledge of a defect in property which is not within the fair and reasonable reach of the vendee and which he could not discover by the exercise of reasonable diligence, the silence and failure of the vendor to disclose the defect in the property constitutes actionable fraudulent concealment.

Question 72

How to prove scienter:

Answer 72

- Defendant’s claimed honest belief in truth must be evaluated in light of circumstances; i.e., would a reasonable person in Defendant’s position, with Defendant’s knowledge or means of knowledge have such belief - If defendant’s belief is unreasonable under the circumstances, it can support an inference defendant did not, in fact, believe the statement to be true

Question 73

Does misrepresentation require proof that the defendant intended to harm the plaintiff?

Answer 73

NO. One thing that misrepresentation does not require is proof that the defendant intended to harm the plaintiff, all that you need to show is that there is an intent to deceive

Question 74

WINTER v. G.P. PUTNAM’S SONS

Answer 74

A publisher does not have a duty to investigate the accuracy of the contents of books it publishes.

Question 75

CREDIT ALLIANCE CORP. v. ARTHUR ANDERSEN & CO.

Answer 75

Need something close to privity before a third party was entitled to rely on a representation

Question 76

negligent misrepresentation

Answer 76

there was a duty owed

Question 77

MCELRATH v. ELECTRIC INVESTMENT CO.

Answer 77

The general rule is if the representation is something that's going to happen in the future, generally it is not a statement of fact unless the maker has no intention of performing the future act or if the person making the statement has control of the occurrence or nonoccurrence of the event or you know in the future its not going to occur