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Flashcards in Torts Deck (134):
1

Assault

Intentional infliction of reasonable apprehension of immediate harmful or offensive contact that causes damages.

Intent can be specific or inferred when one knows with substantial certainty the natural probable consequences of his acts.

Cause can be shown through the substantial factor doctrine.

Damages are presumed; actual damages not required. Damages can include nominal, general, special, and punitive awards.

Offensive - insulting, disrespectful, embarrassing, humiliating

Rest. 103 assault

"An actor is subject to liability to another for assault if:
(a) the actor intends to cause the other to apprehend that a harmful or offensive contact with his or her person is imminent;
(b) the actor's conduct causes the other to apprehend that a harmful or offensive contact with his or her person is imminent; and
(c) the actor does not actually consent to the apprehension [or to the conduct causing the apprehension]."
Restatement 3d § 103.

2

Battery

Intentional, unpermitted, harmful or offensive physical contact, causing damages.

Intent can be specific or inferred when one knows with substantial certainty the natural probable consequences of his acts, or has the desire or purpose to accomplish a specific result.

Cause can be shown through the substantial factor doctrine.

Damages are presumed; actual damages not required. Damages can include nominal, general, special, and punitive awards.

Rest. 101 battery

"(1) An actor is subject to liability to another for battery if:
(a) the actor intends to cause a contact with the person of the other;
(b) the actor's conduct causes such a contact;
(c) the contact (i) is offensive or (ii) causes bodily harm to the other; and
(d) the other does not actually consent to the contact [or to the conduct that causes the contact].
(2) A contact is offensive if:
(a) the contact offends a reasonable sense of personal dignity; or
(b) the actor knows that the contact seriously offends the other's sense of personal dignity, and it is not unduly burdensome for the actor to refrain from causing the contact."
Restatement 3d § 101.

3

False Imprisonment

Intentionally confining another to bounded area without privilege, using force or threat of force, without reasonable means of escape, where the person confined is aware of the confinement and has not given his or her consent, or if unaware, he or she was damaged by it.

Intent can be specific or inferred when one knows with substantial certainty the natural probable consequences of his acts.

Cause can be shown through the substantial factor doctrine.

Damages are presumed; actual damages not required. Damages can include nominal, general, special, and punitive awards, and humiliation.

Rest. 35 false imp.

"(1) An actor is subject to liability to another for false imprisonment if
(a) he acts intending to confine the other or a third person within boundaries fixed by the actor, and
(b) his act directly or indirectly results in such a confinement of the other, and
(c) the other is conscious of the confinement or is harmed by it.
(2) An act which is not done with the intention stated in Subsection (1,a) does not make the actor liable to the other for a merely transitory or otherwise harmless confinement, although the act involves an unreasonable risk of imposing it and therefore
would be negligent or reckless if the risk threatened bodily harm."
Restatement 2d § 35.

4

Intentional Infliction of Emotional Distress

Volitional act that results in intentional or reckless infliction of severe emotional distress through extreme and outrageous conduct.

In bystander cases, defendant intentionally caused physical harm to a third person and plaintiff suffered severe emotional distress; plaintiff must have been present with defendant's knowledge, and must be close relative of injured.

Intent can be specific or inferred when one knows with substantial certainty the natural probable consequences of his acts.

Cause can be shown through the substantial factor doctrine.

Actual damages ARE required; damages can include special and punitive awards.

Rest. 104 IIED

"An actor who by [1] extreme and outrageous conduct [2] intentionally or recklessly [3] causes [4] severe emotional harm to another is subject to liability for that emotional harm and, if the emotional harm causes bodily harm, also for the bodily harm."
Restatement 3d § 104 [numbers added].

5

Negligent Infliction of Emotional Distress

Physical harm must be proven.

6

Trespass to Land

1) Act of physical invasion of P’s real property, above or below it, by D or extension of D, or staying after lawful right expires, 2) with intent by D to bring about physical invasion of P’s real property, and 3) causation (set in motion by D).

Intentional invasion of another's real property without permission or consent, through putting something on someone’s property, failing to remove something, or exceeding the scope of consent.

Intent can be specific or inferred when one knows with substantial certainty the natural probable consequences of his acts.

Cause can be shown through the substantial factor doctrine.

Damage is presumed; actual damage not required. Can include special and punitive awards. If no damages, entitled to nominal.

Rest. 158 tres. land

"One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally
(a) enters land in the possession of the other, or causes a thing or a third person to do so, or
(b) remains on the land, or
(c) fails to remove from the land a thing which he is under a duty to remove."
Restatement 2d § 158.

7

Trespass to Chattel

Intentional interference with one's use or possession of tangible personal property (intermeddling or dispossession) causing damages.

Mistake not allowed.

Cause can be shown through the substantial factor doctrine.

Actual damages ARE required; can include special and punitive.

If conversion, can't be TTC.

Rest. 217, 218 tres.chattels

"A trespass to a chattel may be committed by intentionally
(a) dispossessing another of the chattel, or
(b) using or intermeddling with a chattel in the possession of another."
Restatement 2d § 217.
"One who commits a trespass to a chattel is subject to liability to the possessor of the chattel if, but only if,
(a) he dispossesses the other of the chattel, or
(b) the chattel is impaired as to its condition, quality, or value, or
(c) the possessor is deprived of the use of the chattel for a substantial time, or
(d) bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest."
Restatement 2d § 218.

8

Conversion

Intentional interference with one's personal property that is so substantial that damages would be to pay fair market value for the property at time of conversion.

Purchaser of stolen chattel may be liable.

Accidental conversion not conversion, but liable in negligence.

Intent can be specific or inferred when one knows with substantial certainty the natural probable consequences of his acts.

Cause can be shown through the substantial factor doctrine.

Damages can include fair market value of the goods at the time and place of conversion.

Rest. 222A conversion

"(1) Conversion is an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.
(2) In determining the seriousness of the interference and the justice of requiring the actor to pay the full value, the following factors are important:
(a) the extent and duration of the actor's exercise of dominion or control;
(b) the actor's intent to assert a right in fact inconsistent with the other's right of control;
(c) the actor's good faith;
(d) the extent and duration of the resulting interference with the other's right of control;
(e) the harm done to the chattel;
(f) the inconvenience and expense caused to the other."
Restatement 2d § 222A.

9

Defenses

Privilege, necessity, consent (express/implied), self-defense, defense of others, defense of property, recapture of chattels, shopkeepers' privilege, privilege of arrest, discipline, justification.

10

Children

Children are liable for their intentional torts when they are capable of forming the requisite intent. For assault, intent required is to bring about offensive or harmful contact. Knowledge of its wrongfulness is not an element of intent.

11

Special or General Damages

Special can be reasonably calculated (medical exp, lost wages); general is pain and suffering; punitive is always applicable. For TTL, nominal available, if no damages proven.

12

Transferred Intent

When one has the intent to commit a tort against someone, but inadvertently commits another tort against them, the same tort against another person, or another tort against another person, that intent is transferred to the committed tort or injured person. Applies to ABFTT.

13

Consent (Express or Implied)

Express or implied consent is apparent through conduct, custom and usage, as matter of law, or reasonable under circumstances.

A person has expressly shown a willingness to submit to another’s conduct, relieving him of liability from an otherwise tortious act.

A person implies willingness to submit to another’s conduct through participation in an act where a reasonable person would infer consent, or in an emergency situation where the person is incapable of consenting and a reasonable person would conclude the contact was necessary to prevent death or serious bodily harm.

Rest. 112 consent

"A person actually consents to an actor's otherwise tortious conduct if the person is subjectively willing for that conduct to occur. Consent need not be communicated to the actor to be effective. It can be express or can be inferred from the facts."
Restatement 3d § 112.
"An actor is not liable to another if a reasonable person in the position of the actor would believe that the other actually consents to the actor's otherwise tortious conduct."
Restatement 3d § 115.

14

Self Defense

A person may use reasonable force necessary to protect oneself from danger or injury if he has a reasonable belief that he is being attacked or is about to be attacked and he did not initiate the situation. No duty to retreat if non-deadly force or if own home.

Rest. 63 self defense

"(1) An actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm, to defend himself against unprivileged harmful or offensive contact or other bodily harm which he reasonably believes that another is about to inflict intentionally upon him.
(2) Self-defense is privileged under the conditions stated in Subsection (1), although the actor correctly or reasonably believes that he can avoid the necessity of so defending himself,
(a) by retreating or otherwise giving up a right or privilege, or
(b) by complying with a command with which the actor is under no duty to comply or which the other is not privileged to enforce by the means threatened."
Restatement 2d § 63 [Emphasis added.]
Note that the above section deals with nondeadly force. The Restatement has a different section for use of deadly force. The primary difference is that the person must retreat instead of using deadly force, except the person is not required to retreat "within his dwelling place." Restatement § 65.

15

Defense of Others

A person may use reasonable force to protect another from danger or injury if he has a reasonable belief the person is being attacked or is about to be attacked, and has a reasonable belief that the person had the right to self-defense.

Rest. 76 defense of others

"The actor is privileged to defend a third person from a harmful or offensive contact or other invasion of his interests of personality under the same conditions and by the same means as those under and by which he is privileged to defend himself if the actor correctly or reasonably believes that
(a) the circumstances are such as to give the third person a privilege of self-defense, and
(b) his intervention is necessary for the protection of the third person."
Restatement 2d § 76.

16

Intentional Interference with Business, Prospective Advantage, and Contract

Intentional interference with known valid business expectancy or valid contractual relationship.

17

Vicarious Liability / Respondeat Superior

Holds employer liable for intentional torts of employee if done in course or scope of employment.

18

Defense of Property

A person with the reasonable belief that a tort against one’s property is being committed or about to be committed may use reasonable force to prevent it after a request to desist.
A person may use reasonable force to prevent commission of a tort against one's property after a request to desist. Mistake not allowed if entrant's privilege supersedes property right.

Rest. 77 defense of property

"An actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm, to prevent or terminate another's intrusion upon the actor's land or chattels, if
(a) the intrusion is not privileged or the other intentionally or negligently causes the actor to believe that it is not privileged, and
(b) the actor reasonably believes that the intrusion can be prevented or terminated only by the force used, and
(c) the actor has first requested the other to desist and the other has disregarded the request, or the actor reasonably believes that a request will be useless or that substantial harm will be done before it can be made."
Restatement 2d § 77.

19

Recovery of Property / Recapture of Chattels

Property owner has right to use reasonable force to regain possession of chattel taken wrongfully by another. Possession began lawfully after demand is made, peaceful means may be used to recover property. After demand is made, reasonable force may be used only when in hot pursuit of one's wrongful possession. Mistake not allowed.

20

Entry to Regain Land

After demand for return, where chattels located on land of wrongdoer, owner may reclaim chattels at reasonable time in a reasonable manner.

After notice given, where chattels on land of innocent party, owner may reclaim chattels at reasonable time in a reasonable manner. Owner responsible for any actual damages caused by entry.

If chattels on land of another through owner's fault, no privilege to enter land.

21

Shopkeeper's Privilege

Shopkeeper may have privilege to reasonably detain individuals, using reasonable force, in a reasonable manner, who are reasonably believed to be in possession of shoplifted goods.

22

Necessity

Public (no liability) or private (liable for actual damages) necessity, applies to property torts, precludes defendant from being tortfeasor.

A person has a limited privilege to prevent injury or property damage by injuring private property for himself (private) or the public if there is no less-damaging way of preventing harm, but defendant must pay for any actual damages.

The defense of private necessity may exculpate a defendant for an intentional tort when he had reasonable belief in the apparent necessary to commit the tort to avoid threatened injury, when such injury would be substantially more serious than the tort committed to avert it.

23

Discipline

Parent or teacher (in loco parentis) may use reasonable force in disciplining children.

24

Justification

May exculpate defendant for intentional tort. The defense of justification may exculpate a defendant for an intentional tort when his conduct was justified but it does not fall within the scope of any other defense.

25

Negligence

Negligence is the failure to conform one's conduct to a specific standard by breaching the duty to exercise due care as a reasonable person would under similar circumstances, where actual and proximate causation are proven to cause damages to the plaintiff.

To establish a prima facie case, ALL of the following elements must be proven:
1. The existence of a duty on the part of defendant to conform to a specific standard of conduct for the protection of plaintiff against an unreasonable risk of injury.
2. Breach of that duty by defendant;
3. The breach of duty by defendant was the actual and proximate cause of plaintiff’s injury;
4. Damage to plaintiff’s person or property (no punitive)

26

Duty / Foreseeable Plaintiff

A duty is owed only to foreseeable plaintiffs to act as a reasonable person would act under similar circumstances.

Rescuers are foreseeable plaintiffs only if the defendant caused the situation.

27

Cardozo

Under the Cardozo approach, a duty is owed to all who are in the foreseeable zone of danger as created by the negligence.

28

Andrews

Under the Andrews approach, a duty is owed to foreseeable plaintiffs who are injured and the injury can be traced back to the defendant's negligence.

29

Reasonable Person Standard of Care

One has a duty to act as a reasonably prudent person would act under similar circumstances.

30

Child Standard of Care

A child under the age of 4 is incapable of negligence. A child above the age of 4 has the duty to act as a child similar to him in age, intelligence and experience. A child engaged in adult activity is held to the same standards as an adult.

31

Professional Standard of Care

A person who is a professional or has special skills is required to possess and exercise knowledge and skill of a member of the profession or occupation.

32

Common Carriers / Innkeepers

Those who drive passengers and innkeepers have a very high duty of care to passengers and guests.

33

Bailment Duties

In a bailment relationship, the bailor transfers physical possession of an item of
personal property to the bailee without a transfer of title. The bailee acquires the
right to possess the property in accordance with the terms of the bailment. A
bailment obligates the bailee to return the item of personal property to the bailor or
otherwise dispose of it according to the bailment terms.

a) Duties Owed by Bailee
(1) Sole Benefit of Bailor Bailment
If the bailment is for the sole benefit of the bailor (e.g., the bailor asks
his neighbor (the bailee) to take in the bailor’s mail while he is on
vacation), the bailee is liable only for gross negligence.
(2) Sole Benefit of Bailee Bailment
If the bailment is for the sole benefit of the bailee (e.g., the bailor gratuitously
loans her lawnmower to the bailee), the bailee is liable even for
slight negligence.
(3) Mutual Benefit Bailments
If the bailment is for the mutual benefit of the bailor and bailee (typically
a bailment for hire such as in the computer example above), the bailee
must exercise ordinary due care.
(4) Modern Trend
Today the trend is away from such classifications and toward a rule
that considers whether the bailee exercised ordinary care under all the
circumstances. These circumstances include, e.g., value of the goods,
type of bailment, custom of a trade, etc.

b) Duties Owed by Bailor
(1) Sole Benefit of Bailee Bailments
If the bailment is for the sole benefit of the bailee (e.g., the bailor gratuitously
loans her lawnmower to the bailee), the bailor need only inform
the bailee of known dangerous defects in the chattel. There is no duty
with regard to unknown defects.
(2) Bailments for Hire
If the bailment is for hire (e.g., the bailor loans her lawnmower to the
bailee for a fee), the bailor owes a duty to inform the bailee of defects
known to him, or of which he would have known by the exercise of
reasonable diligence.

34

Negligence Per Se

Negligence per se is established through violation of a statute, if the statute clearly defines a standard of care to which the defendant did not conform, the statute was intended to prevent the type of harm that occurred, andthe plaintiff was in the class the statute meant to protect. (Except where compliance is impossible or more dangerous.)

Generally violation of a licensing statute or failure to have a license does not constitute negligence per se

However, if there is a causal nexus between lack of knowledge and skill and the injury, violation of the licensing statute can be used for risk utility data but not as a statutorily mandated standard of care

35

Negligent Infliction of Emotional Distress

DEFENDANT LIABLE FOR NEGLIGENT CONDUCT CAUSING SERIOUS EMOTIONAL DISTRESS TO ANOTHER IF…
DEFT PLACES ANOTHER IN DANGER OF BODILY HARM and EMOTIONAL DISTURBANCE RESULTS or
SPECIAL RELATIONSHIP IN WHICH NEGLIGENT CONDUCT MAY CAUSE EMOTIONAL DISTRESS
erroneous report of death or mishandling of corpse
MOST COURTS REQUIRE PHYSICAL INJURY

36

Breach of Duty - Negligence

Where the defendant’s conduct falls short the level required by the applicable standard, there is a breach of duty.

37

Custom and Usage

Where the defendant’s conduct falls short of the standard according to custom and usage in the industry, the duty of standard of care is breached.

38

Learned Hand - Risk/Utility Analysis

If the burden of prevention or to reduce injury is less than the probability and magnitude harm, then there is breach and the defendant is liable.

39

Causation / Joint Causes / Substantial Factor

The breach must be the cause of harm.

Where several causes concur to bring about an injury—and any one alone would have been sufficient to cause the injury—it is sufficient if defendant’s conduct was a substantial factor’ in causing the injury.

40

Actual Causation

Actual causation is shown where the plaintiff would not have been injured had it not been for the defendant’s negligence.

41

Proximate Causation

Proximate causation is shown where the type and manner of the plaintiff’s injury was a foreseeable outcome of the defendant’s negligence, and there were no intervening and superseding causes to break the chain of causation.

INTERVENING CAUSE= normal and foreseeable consequence of the Deft’s negligence;
SUPERSEDING CAUSE= extraordinary under the circumstances, not foreseeable and independent of or far removed from the Deft’s conduct. ***Interrupts causal chain*** (suicide not superseding cause cutting off liability; criminal act is)

42

Negligence Damages

A plaintiff may recover general damages for pain and suffering, or emotional distress, and special damages that include medical expenses and other economic loss. (No punitive or nominal.)

43

Eggshell Skull

A defendant is responsible for the full extent of injuries caused by his negligence, even if unforeseeable or uncommon, and even if they are injuries that would not have been suffered by others.

44

Negligence Defenses

Contributory, comparative, assumption of risk, last clear chance (p defense against contrib).

45

Contributory Negligence

In minority jurisdictions observing contributory negligence, if a plaintiff’s negligence contributes to his injury, the plaintiff may not recover damages.

46

Comparative Negligence

PURE: In majority jurisdictions following comparative negligence, if a plaintiff’s negligence contributes to his injury, his recovery is reduced by the percentage of his contribution to the injury. PARTIAL: If a plaintiff's negligence exceeds 50% (more than defendant), barred from recovery.

47

Last Clear Chance Doctrine

Exception to contributory negligence. If the defendant had a chance to avoid the injury and chose not to take it, the plaintiff can recover damages (wipes out P's contributory negligence).

48

Assumption of Risk

If the plaintiff voluntarily assumes the risk of the activity he’s engaged in, either impliedly or expressly, he may not recover damages.

Strict Liability - Assumption of Risk
RESTATEMENT: Plaintiff’s assumption of risk bars plaintiff’s recovery entirely
Comparative negligence used in majority of states to apportion liability between P and D
Some states treat plaintiff’s assumption of risk as a complete bar to recovery-NO UNANIMITY!!!!

49

Owner / Occupier of Land

1) Is there landowner duty? 2) Classify Plaintiff:
Invitee - someone attending a public location or a place of business. Licensee - friends and family you invite. Trespasser - someone there without permission or knowledge.

3) What duty was owed?
Invitee - Inspect, correct, warn
Licensee - Correct, warn
Trespasser - Warn

1) Duty of Possessor to Those Off the Premises
a) Natural Conditions
The general rule is that a landowner owes no duty to protect one outside the
premises from natural conditions on the land.
b) Artificial Conditions
As a general rule, there is also no duty owing for artificial conditions. Two
major exceptions exist, however.
(1) Unreasonably Dangerous Conditions
A landowner is liable for damage caused by unreasonably dangerous
artificial conditions or structures abutting adjacent land.
(2) Duty to Protect Passersby
A landowner also has a duty to take due precautions to protect persons
passing by from dangerous conditions, e.g., by erecting a barricade to
keep people from falling into an excavation at the edge of the property.
c) Conduct of Persons on Property
An owner of land has a duty to exercise reasonable care with respect to his
own activities on the land and to control the conduct of others on his property
so as to avoid unreasonable risk of harm to others outside the property.
2) Duties of Possessor to Those on the Premises
In most jurisdictions, the nature of a duty owed by an owner or occupier of land to
those on the premises for dangerous conditions on the land depends on the legal
status of the plaintiff with regard to the property, i.e., trespasser, licensee, or invitee.
a) Duty Owed to a Trespasser
(1) Definition of Trespasser
A trespasser is one who comes onto the land without permission or privilege.
(2) Duty Owed Undiscovered Trespassers
A landowner owes no duty to an undiscovered trespasser. He has no
duty to inspect in order to ascertain whether persons are coming onto his
property.
(3) Duty Owed Discovered Trespassers
Once a landowner discovers the presence of a trespasser, he is under a
duty to exercise ordinary care to warn the trespasser of, or to make safe,
artificial conditions known to the landowner that involve a risk of death
or serious bodily harm and that the trespasser is unlikely to discover.
There is no duty owed for natural conditions and less dangerous artificial
conditions.
The owner or occupier also has a duty to exercise reasonable care in the
exercise of “active operations” on the property.
(a) When Is a Trespasser “Discovered”?
A trespasser is discovered, of course, when she is actually noticed
on the property by the owner or occupier. But in addition, a
trespasser is viewed as discovered if the owner or occupier is
notified by information sufficient for a reasonable person to
conclude that someone is on the property.
(4) Duty Owed Anticipated Trespassers
The majority of states now treat anticipated trespassers on generally the
same basis as discovered trespassers in terms of the duty owed them by
the landowner.
(a) When Is a Trespasser “Anticipated”?
An “anticipated trespasser” situation arises where the landowner
knows or should reasonably know of the presence of trespassers who constantly cross over a section of his land. (Although note that
if the owner has posted “no trespassing” signs, this might serve
to convert these “anticipated” trespassers into “undiscovered”
trespassers.)

50

Discovered or Anticipated, and Undiscovered Trespassors

Anticipated - hikers.
TRESPASSERS:
Undiscovered: no duty to make land safe, to warn of dangers on it, or to protect in any way;
Discovered: duty to use ordinary care to warn of, or make safe artificial conditions known to landowner that involve a risk of death or serious bodily harm that that the trespasser is unlikely to discover.
Anticipated: arises where the landowner knows or reasonably should have known of the presence of trespassers who constantly cross over a section of his land.
**duty owed is the same as discovered trespassers

51

Duties for Landowners for those OFF premises

General Duty of Landowner: to prevent an unreasonable risk of harm to persons off the land from an artificial condition on the land.
***liable for damage caused by unreasonably dangerous artificial conditions or structure abutting adjacent land. Natural sometimes if unknown danger (rotten tree)
***Duty to take due precautions to protect persons passing by from dangerous conditions.

52

Attractive Nuissance

Duty to exercise ordinary care to avoid
a reasonably foreseeable risk of harm to children caused by artificial conditions on their property. Elements include:
1)dangerous condition present on the land of which the owner is or should be aware;
2) owner knows or should know that children frequent the vicinity of the dangerous condition;
3) condition is likely to cause injury (because of child’s inability to appreciate the risk);
4) expense of remedying the situation is slight compared with the magnitude of the risk.

b) Duty Owed to a Licensee
(1) Definition of Licensee
A licensee is one who enters on the land with the landowner’s permission,
express or implied, for her own purpose or business rather than for
the landowner’s benefit.
(2) Duty Owed
The owner or occupier owes a licensee a duty to warn of or make safe
a dangerous condition known to the owner or occupier that creates
an unreasonable risk of harm to the licensee and that the licensee is
unlikely to discover.
(a) No Duty to Inspect
The owner or occupier has no duty to a licensee to inspect for
defects nor to repair known defects.
(b) Duty of Care for Active Operations
The owner or occupier also has a duty to exercise reasonable
care in the conduct of “active operations” for the protection of the
licensee whom he knows to be on the property.
(3) Social Guests Are Licensees
The social guest is a licensee. Performance of minor services for the host
does not make the guest an invitee.
c) Duty Owed to an Invitee
(1) Definition of Invitee
An invitee is a person who enters onto the premises in response to an
express or implied invitation of the landowner. Basically, there are two
classes of invitees:
(a) Those who enter as members of the public for a purpose for which
the land is held open to the public, e.g., museums, churches,
airports; and (b) Those who enter for a purpose connected with the business or
other interests of the landowner or occupier, e.g., store customers
and persons accompanying them, employees, persons making deliveries,
etc.

53

Res Ipsa Loquitur

No direct evidence
Event doesn’t normally occur without negligence by somebody
D is most likely person whose negligence caused event
P is not negligent

54

Dram Shop Act

Provides a criminal penalty and civil cause of action against commercial sellers of alcohol for injuries caused by a customer’s intoxication if they served a customer who they should have realized was already intoxicated.

55

Intervening and Superseding Causes

INTERVENING FORCE- one which actively operates in producing harm after the actor’s negligent act or omission has been committed.

SUPERSEDING FORCE- an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about.

SUPERSEDING CAUSES
Unforeseeable intervening cause that breaks chain of liability
INTERVENING CAUSE = force after D’s conduct, contributing to P’s injury
D LIABLE FOR HARM FROM FORESEEABLE INTERVENING CAUSE, negligent rescue, medical malpractice, subsequent disease, efforts to protect property, subsequent accident
D NOT LIABLE FOR UNFORESEEABLE INTERVENING CAUSE – criminal or intentionally tortious conduct

These are independent forces, rather than natural responses or reactions to the situation created by the D’s negligence.
*May be foreseeable & D will be liable where D’s negligence increased the risk that these forces would cause harm to P.
Examples:
Foreseeable negligent, criminal or intentional acts of third persons or ‘Acts of God’


Criminal Act CAN be superseding cause and cut off liability if defendant can prove:
1. That the intentional/criminal conduct of [third party] happened after the conduct of Deft and
2. That Deft did not know and could not have reasonably foreseen that another person would be likely to take advantage of the situation created by Deft’s conduct to commit this type of act.

Third Party Act CAN be superseding cause if:
1. That TP’s conduct occurred after the conduct of Deft;
2. That a reasonable person would consider TP’s conduct as a highly unusual or an extraordinary response to the situation;
3. That Deft. did not know and had no reason to expect that TP would act in a negligent/wrongful manner;
4. That the kind of harm resulting from TP’s conduct was different from the kind of harm that could have been reasonably expected from Deft’s conduct.

56

Dependent and Independent Intervening Forces

Dependent intervening force - normal response or reaction to situation created by defendant's act (i.e. negligently cause someone to break leg, loses balance and breaks other leg). Includes subsequent medical malpractice, negligent rescuer, disease, accident, and reactions.

Independent intervening force - not natural responses, but independent actions. Def's negligence may have increased the risk for these forces but has not caused it (i.e. negligently blocking sidewalk forcing someone to walk on roadway and getting struck by car). Still liable. Includes negligent acts of third persons, criminal acts or intentional torts of third persons, acts of God.

Def. liable for foreseeable results caused by foreseeable and unforeseeable intervening forces, but not for unforeseeable results caused by either foreseeable or unforeseeable intervening forces. These are superseding forces that break the chain of causation.

57

Vicarious Liability

Employer can be vicariously liable for tortious conduct of employee during the scope of employment.

58

Joint and Several Liability

Where two or more tortious acts combine to proximately cause an invisible injury to the plaintiff, each tortfeasor will be jointly and severally liable for that injury. Joint and several liability of such parties means that each is liable to the plaintiff for the entire damage incurred, so the plaintiff may recover the entire judgment amount from any defendant, limited to the total recovery amount.

If more than one defendant and damages equal certain amount, either party liable for 100%, depending on who court orders to pay, and they will go after other defendant for contribution.

59

Indemnification

Entire amount of damages sought from actual tortfeasor in situations of business where employee was liable but employer was sued, so goes after employee for recovery.

60

Volitional vs Intentional

Volitional is voluntary because of a reason; Intent is knowing with substantial certainty that a specific result will occur

61

Strict Liability

Negligence need not be proven to assign liability.

Strict liability eliminates standard of care, but still requires causation and damages. You owe everyone a duty; absolute standard of care. Dangerous aspect of activity is actual and proximate cause. You do need causation and damages.

If common, and benefits outweigh the risks, then not strict liability (driving).

One who carries on abnormally dangerous activity (explosives, etc.) liable for harm even if exercised utmost care to prevent the harm. Acts of God do not preclude strict liability – still liable if natural force causes dangerous act to malfunction? Act of God can create situation, or occur after situation to worsen it. If natural force cuts power and lion’s gate opens and it causes damage, you are liable. If damage already occurred, but lightning hit ambulance, not liable.

62

Professional Standard of Care

A person who is a professional or has special skills is required to possess and exercise the knowledge and skill of a member of the profession or occupation in good standing in similar circumstances.
This is an objective standard

Includes physicians, lawyers, accountants, airplane pilots and mechanics, engineers, etc.

63

Alternative Causes

Where two or more persons have been negligent, but uncertainty exists as to which one caused plaintiff’s injury.

Plaintiff must prove that she suffered harm caused by one of the defendants, then the burden of proof shifts to the defendants and each must show that their negligence was not the cause of the injury

64

Strict Liability

The nature of the defendant's activity imposes an absolute duty to make safe, the dangerous aspect of the activity is the actual and proximate cause of the injury, and the plaintiff suffered damages to his person or property.

Imposes liability without proof of fault.

(a) existence of a high degree of risk of some harm to the person, land or chattels of others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable care;
(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is carried out;
(f) extent to which its value to the community is outweighed by its dangerous attributes.
Whether an activity is abnormally dangerous
is a MATTER OF LAW

Duty-limited to the “normally dangerous propensity”, the kind of danger to be anticipated

65

Ultrahazardous or Abnormally Dangerous Activities

Abnormally dangerous activity – creates foreseeable and highly significant risk of harm even if reasonable care exercised by all actors, and activity is not of common usage.

One who partakes in an abnormally dangerous activity is liable for harm to a person, land or chattels resulting from the activity, even if he exercised utmost care.
1) The activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors. (If not expected result from such activity, SL may not apply.)
2) The activity is not one of common usage.

(a) existence of a high degree of risk of some harm to the person, land or chattels of others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable care;
(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is carried out;
(f) extent to which its value to the community is outweighed by its dangerous attributes.

Whether an activity is abnormally dangerous is a MATTER OF LAW: Blasting, Manufacturing Explosives, Crop Dusting, Fumigating, Nuclear Power Plants

DUTY=an absolute duty to make safe

MAJORITY: duty owed only to foreseeable plaintiffs
MINORITY: duty owed to anyone who is harmed

Duty-limited to the “normally dangerous propensity”, the kind of danger to be anticipated

66

Strict Liability Defenses

1. Comparative Negligence- same rules apply as in negligence cases

2. ‘Knowing’ Contributory Negligence- is a defense if plaintiff knew of the danger and plaintiff’s unreasonable conduct was the cause of the harm.
---similar to assumption of the risk

67

Liability for Animals

Wild animals - strict liability; domestic animals - knowledge required.

Wild - owner strictly liable for injuries caused by wild animals kept as pets.
Domestic - owner not strictly liable for injuries unless owner has knoweldge of the animal's dangerous propensities.
Livestock - strict liability

Owner also liable for damage done by trespass of animals, if reasonably foreseeable.

Licensees / invitees - strict liability for injury by animals; unknown trespassers - no liability; known trespassers - must prove negligence (failure to warn).

Only protected against type of harm that was sought to protect (i.e. trip over tiger’s tail instead of being bitten not protected).

68

Compensatory Damages for PI

I. Negligence-requires ACTUAL HARM-physical injury (can include physical manifestation of emotional harm) and property damage
A) SPECIAL DAMAGES:
Past, Present and Future Economic Loss-medical and medically-related expenses, lost earnings, cost of services plaintiff can no longer do (i.e. housekeeping, gardening, etc.)
B) GENERAL DAMAGES:
Past, Present and Future Non-Economic Loss- physical pain and mental suffering

69

Non-recoverable Damages for PI

Damages that are not considered compensatory=to make the plaintiff whole or put the P in the same position P would have been in had the negligence not occurred:

1. Interest from date of injury

2. Attorney’s fees

3. Punitive Damages

70

Issue to Consider when measuring Economic and Non-economic Loss

Economic
1. Choosing between wage loss & loss of earning capacity
2. When plaintiff was not a wage earner at the time of injury
3. Estimating lost earnings for young plaintiffs
4. Present value consideration-amount that if invested today, would earn
amount of jury award
5. Future inflation consideration

Non-Economic
1. Quantifying past and future pain and suffering
2. Unconscious-unresponsive plaintiff
3. Hedonic damages-loss of enjoyment of life

71

Duty to Mitigate Damages

Plaintiff has a duty to mitigate-P cannot recover for any harm which, in the exercise of reasonable care, P could have avoided.

Property damages cases= duty to preserve and safeguard the property
Personal injury cases= duty to seek appropriate treatment and prevent aggravation of the injury

72

Collateral Source Rule

Damages are not reduced or mitigated by reason of benefits received by a P from third party sources, i.e. health insurance.
Plaintiff is entitled to recover for all out-of-pocket expenses, even when the P has been reimbursed by a third party.
Exception: when payment for any aspect of harm is made by the defendant or someone acting on the D’s behalf.

Abbrogation:
Exceptions to collateral source rule exist in many states, meaning that the defense can introduce evidence of payment:

Some state statutes do not apply rule to medical malpractice actions.
Some states do not apply rule in any personal injury actions.
**Generally, life insurance payments are excluded.

73

Damages for Harm to Property

Plaintiff is restored, as nearly as possible, to the position P occupied before the harm.
**Cannot recover for emotional distress due to loss/damages to property without physical injury.
**Measure of recovery:
-if destroyed» fair market value of property at the time that the harm occurred;
if damaged» cost of repair-difference in value before and after the harm.

74

Punitive Damages

Purpose: to penalize or punish the defendant, and deter similar wrongdoers, where the defendant’s conduct is particularly outrageous.
Constitutional Issues:
* Grossly excessive-violates Due Process clause;
*Ratio of compensatory damages to punitive damages

Conduct Justifying
Strict liability: intentional or reckless conduct.
Negligence:
*conscious disregard for the consequences
* ‘wanton and willful’ disregard for safety
* ‘gross negligence’=recklessness, either extremely likely to cause harm, extremely easy to avoid, or both.

Jury Considerations for Determining Punitive Damages
*Defendant’s intent or lack thereof;
*Degree of Defendant’s culpability;
*Amount necessary to deter both the defendant and others similarly situated from engaging in such conduct in the future;
*Duration of the conduct;
*Defendant’s net worth;
*Defendant’s ability to pay.

75

Loss of Consortium

Action brought by injured person’s spouse, child or parent based on injuries to plaintiff deriving from injuries to plaintiff’s loved one.
Spousal consortium=recovery for loss of sexual relations, society, companionship, affection and financial support.
Parental consortium= recovery for loss of society, affection, and companionship.
Filial consortium=recovery for loss of child’s society, affection, and companionship.

Majority of states DO NOT allow ‘loss of enjoyment of life’ as separate item of recovery of general damages from ‘pain and suffering’.

76

Wrongful Death

Common Law: tort actions abated at death of the tortfeasor or the victim
Statutes: have changed rule on abatement of tort actions in the majority of states.
**Victim’s cause of action [torts to property and personal injury] survives to permit recovery of all damages from the time of injury to the time of death.
**Torts that invade an intangible personal interest [defamation, invasion of privacy] do not survive.

Survival Statutes: representative Ps stand in the shoes of the decedent and recover any amounts that the decedent could have recovered.

Wrongful Death Statutes: family members of the decedent recover for the harms that they, themselves, have suffered as a result of the decedent’s death.
**EXCLUDES DECEDENT’S PAIN and SUFFERING

Spouse: Loss of consortium, society, companionship, comfort, sex

Parent: Loss of society, comfort, guidance, etc.

Child: varies widely, but generally loss of society, comfort, etc.; for adult children may be limited to loss of financial support if used by parent for the ‘necessities of life’.

77

Indivisible Harm

The negligent conduct of either Defendant would not, without the other, have caused the accident in which the Plaintiff suffered harm.

Where separate acts of negligence combine to produce a single injury, each tortfeasor is responsible for the entire result, even though his act alone might not have caused it.

78

Divisible Harm

Where it is possible to identify the portion of injuries caused by each defendant.

Where defendants’ acts are independent and plaintiff’s harm is divisible, each defendant is only liable for the identifiable portion.
Where two or more tortfeasors act in concert and plaintiff’s harm is divisible , each defendant will be jointly and severally liable for the entire injury

79

Joint and Several Liability

TRADITIONAL RULE = Each
defendant is liable for the ENTIRE INDIVISIBLE HARM whether the defendants are :
A) concurrent tortfeasors-where independent acts caused the injury; OR
B) joint tortfeasors-where defendants acted in concert
MODERN TREND= To cut back or completely eliminate joint & several liability and replace it with comparative fault

80

Factors for Concerted Action

*An agreement to cooperate in a course of conduct that is implied or understood to exist from the conduct itself.

*Each defendant gives substantial assistance or encouragement
*The assistance or participation by the defendant must be a substantial factor in causing the harm

81

Uniform Comparative Fault

Provides:
1. Release, covenant not to sue or similar agreement between claimant and liable person discharges that person from all liability for contribution;
2. Does not discharge any other person liable on the same claim;
3. Claimant’s future recovery is reduced by amount of released person’s equitable share of the harm;

82

Satisfaction of Judgment

When a plaintiff receives full payment of a settlement or court judgment from one tortfeasor.

Plaintiff can no longer recover further from any other joint tortfeasor.

Until there is a satisfaction, Plaintiff can proceed on the judgment against any other jointly liable party.

With joint & several liability, plaintiff can take a judgment against all the tortfeasors and collect damages from any of the tortfeasors.

Contribution- when a tortfeasor paying more than its pro rata share seeks partial reimbursement from other liable defendants.
Indemnity- when a tortfeasor paying a judgment or settlement is entitled to full reimbursement from a joint tortfeasor.

83

Contribution

A device by which responsibility is apportioned among those at fault.

*DOES NOT APPLY TO INTENTIONAL TORTS

MAJORITY- Comparative contribution- contribution is imposed in proportion to the relative fault of the various tortfeasors
MINORITY- Equal shares- all tortfeasors pay equal shares regardless of their respective degrees of fault

84

Indemnity

Shifts the entire loss between or among tortfeasors.

Indemnity is available:
1. when expressly stated in a contract;
2. where the only liability was vicarious;
3. under strict product liability—each supplier has a right of indemnification against all previous suppliers in the distribution chain;
4. Active/passive negligence—some jurisdictions allow a joint tortfeasor who is passively negligent to recover indemnification from a joint tortfeasor who is actively negligent [i.e. retailer from manufacturer of defective product].

85

Settlement

A legally enforceable agreement in which a claimant agrees not to seek recovery outside the agreement for specified injuries or claims from some or all the persons who might be liable for those injuries or claims.

Restatement 3d §24a (2000)

86

Release

A surrender of plaintiff’s cause of action against the party to whom the release was given.

MAJORITY- release of one tortfeasor does not discharge the other tortfeasors unless expressly provided in the release agreement.

87

Vicarious Liability

Liability that is derivatively imposed;

One person commits a tortious act against another person and a third person, who has played no part, is liable because of a special relationship with the tortfeasor.

Employers-generally are vicariously liable for tortious acts of employees acting within the course and scope of employment on a respondeat superior basis;

Employers-generally are not vicariously liable for acts of independent contractors where employer does not supervise or control the manner in which the work is to be done;
---exceptions- i.c. engaged in inherently dangerous activity or where the duty is non-delegable because of public policy

EXAMPLES
1. Respondeat superior- employer/employee
2. Partners and joint venturers-for the tortious conduct of another member committed in the course and scope of the affairs of the partnership or joint venture.
3. Family car doctrine- car owner is vicariously liable for tortious conduct of immediate family or household members driving with the owner’s express or implied permission.
4. Permissive user-some states- vicarious liability for damages caused by any person driving a car with the owner’s consent.

Exceptions

1. Bailor—generally not vicariously liable for tortious conduct of his bailee.
2. Parent for child- generally not vicariously liable for the tortious acts of minor children
***Exception- where child is acting as agent for parent
***Exception-for minor child’s intentional torts, usually up to specified dollar amount by statute

88

Nuisance

Not a separate tort—is a type of harm=invasion of private or public property rights by tortious conduct

Generally nuisance is an intentional interference with plaintiff’s use of her land

Liability-can be based on intentional conduct, negligence or strict liability

Factors: Gravity of Harm from Nuisance
*Extent and character of harm involved
*The social value that the law attaches to the type of use and enjoyment invaded
*The suitability of the particular use or enjoyment invaded to the character of the locality
*The burden on the person harmed of avoiding the harm.

89

Private Nuisance

An 1) unreasonable and 2) substantial interference with another private individual’s 3) use or enjoyment of his property.
Substantial interference: offensive, inconvenient, or annoying to the average person.
Unreasonable interference: severity of the interference outweighs the utility of the defendant's conduct. Every person is entitled to the use of his property in a reasonable way.
Intangible invasion of another’s land.

Plaintiff must show that:
1. P has an interest in the land—possession or the right of immediate possession.
2. D behaved in a negligent, abnormally dangerous, or intentional manner.

Substantial Interference:
Offensive, inconvenient, or annoying to an average person in the community.

Unreasonable interference:
Severity of the inflicted injury must outweigh the utility of defendant’s conduct.

Nuisance – anything injurious to health, including illegal sale of controlled substances, indecent or offensive to senses, or obstruction to free use of property, so as to interfere with comfortable enjoyment of life or property.

Nuisance per se – legislative body, with appropriate jurisdiction in exercise of police power, expressly declares particular object or substance, activity, or circumstance to be nuisance. No proof required beyond the existence.

90

Public Nuisance

Public nuisance – affects at the same time an entire community or neighborhood, or any considerable number of persons, although extent of annoyance or damage inflicted may be unequal to each individual.

Interference to a right common to the general public; intangible invasion of another’s land. Restatement 2d §821B

*Unreasonable interference with public health, public safety, or property rights of a community.
*Includes things dispersed into the air or water, blocking access to/use of a road or land, an unlicensed business, etc.

91

Direct v. Indirect Trespass

(Direct) trespass:
Interference with landowner’s exclusive possession of land by a physical invasion
Damages-nominal damages & an almost automatic right to enjoin further trespassory invasions;
Indirect trespass/ nuisance:
Interference with another’s use or enjoyment of land
Damages-actual & substantial damages; the right to enjoin difficult & rarely granted.

92

Nuisance Remedies

1. Monetary Damages
2. Injunctive Relief
a) where legal remedy is unavailable or inadequate [i.e., a continuing harm]
b) courts consider the relative hardships that will result to the parties from the grant or denial of the injunction
3. Abatement by Self-Help—comes on defendant’s property and abates nuisance only after notice to D and D’s refusal to act, using reasonable force, or may be liable for additional harm. For public nuisance, if uniquely harmed, similar privilege.

93

Nuisance Defenses

1. Legislative Authority- compliance with zoning ordinance or license is relevant
2. Conduct of others-proportionate liability
3. Contributory Negligence- ordinarily not a defense
4. “Coming to the Nuisance”-in the absence of a prescriptive right, may not condemn surrounding premises to endure the nuisance

94

Coming to the Nuisance

Restatement 2d §840D- the fact that the P came to the nuisance [purchased the property with the advanced notice that the nuisance exists] is “a factor to be considered” in determining whether the plaintiff prevails.

Courts are more likely to uphold defense if D’s activity is suitable for the area where it occurs and P’s own use is out of step with that area.

95

Standing - Private v. Public Nuisance

Private nuisance= one who has interest in the land.

Public nuisance= P must show that he has suffered harm “different in kind” from that suffered by the general public.
---standing requirement is relaxed where P is seeking to enjoin a public nuisance, rather than to recover $$$.

96

Products Liability

Cases are brought on 6 theories:
1. Intent
2. Negligence;
3. Strict Liability;
4. Representation Theories-
a)Express Warranty;
b) Misrepresentation;
5. Implied Warranties of Merchantability &
Fitness for Particular Purpose.

97

Products Liab - Strict Liability

Prima Facie Case- all elements must
be proven:
1. Absolute duty owed by commercial supplier;
2. Production or sale of defective product
3. Actual and proximate cause
4. Damages- personal injury and property damage [not purely economic]

Defendant must be a “Commercial
Supplier”—anyone in the stream of commerce

Includes manufacturer of product or component part of product, retailer, assembler, wholesaler, supplier, and in most courts- mass producers of new homes, commercial lessors and sellers of reconditioned or rebuilt products.
Excludes ‘casual’ sellers.

98

Strict Liability - Products Liability - Writing Approach

Duty Owed By Commercial Supplier
TO SUPPLY SAFE PRODUCTS
Breach Of Duty
PRODUCT DEFECTIVE MAKING IT UNREASONABLY DANGEROUS
Actual Cause
DEFECT EXISTED WHEN PRODUCT LEFT D’S HANDS
Proximate Cause
SIMILAR TO NEGLIGENCE ANALYSIS
Damages
PHYSICAL INJURY/PROPERTY DAMAGE
Causation – Similar To Negligence
ACTUAL CAUSE
PROXIMATE CAUSE
NEGLIGENT FAILURE TO DISCOVER DEFECT DOES NOT CUT OFF LIABILITY
Damages
PERSONAL INJURY AND PROPERTY DAMAGE ARE RECOVERABLE
LIMITATION: MOST STATES DENY RECOVERY FOR STRICTLY ECONOMIC LOSSES

99

Defects

To establish liability, Plaintiff must show that a product was defective when it left defendant’s control.
Two separate categories of defects:
1. Manufacturing defect-departs from its intended design;
2. Defective design-foreseeable risks of harm could have been reduced or avoided by a RAD[reasonable alternative design];
3. inadequate or omitted instructions or warnings that renders the product unsafe

There must be a defect when the product left defendant’s control reaching consumer without substantial change, causing harm
MANUFACTURING DEFECT
DESIGN DEFECT
CONSUMER EXPECTATION TEST
RISK/UTILITY TEST – Reasonable alternative design
CAN LOOK AT STATE OF THE ART
INADEQUATE WARNING
D has a duty to warn of risks involved in use of the product
Danger must not be apparent to users
Danger must be “knowable” to D

Common Defect Problems
1. Misuse:
Courts require suppliers to anticipate reasonably foreseeeable uses even if they are misuses of a product.
2. Scientifically Unknowable Risks:
Courts generally refuse to find products unreasonably dangerous where it was impossible to anticipate the dangers , make the product safer or provide warnings at the time the product was marketed.

100

Manufacturing Defects

*Products that are different and more dangerous than other products of the intended design.

Products that are unreasonably dangerous

Products that are dangerous beyond the expectation of the ordinary consumer because of a departure from its intended design.

1202: Strict Liability-”Manufacturing Defect” Explained:

A product contains a manufacturing defect if the product differs from the manufacturer’s design or specifications or from other typical units of the same product line.

101

Design Defect

To prove that a product has a design defect, plaintiff must show that a reasonable alternative design, less dangerous modification or alternative, was economically feasible.

Factors courts consider- “feasible alternative”
Usefulness and desirability of the product;
Availability of safer alternative products;
The identified dangers of the product;
The likelihood & probable seriousness of injury;
Obviousness of the danger;
Consumer expectation of danger;
Avoidability of injury by care in use of the product;
Feasibility of eliminating the danger without seriously impairing the products function or making it unduly expensive

102

Warning Defect

An absence of or inadequacy of a warning on the product, the presence of which would reduce or eliminate the harm or injury that occurred.

103

Consumer Expectation Test

A product is defective if it fails to conform to expectations of a reasonable consumer using the product.

104

Misuse of Product

A plaintiff’s recovery is barred if injury resulted from an unforeseeable misuse of the product.

Misuse can defeat p’s prima facie case if it shows product was not defective
E.G., USE OF A PRODUCT IN UNFORESEEABLE WAYS
MISUSE CAN BE A DEFENSE THAT REDUCES OR BARS RECOVERY
MAJORITY TREATS AS A FORM OF COMPARATIVE FAULT REDUCING RECOVERY
MINORITY TREAT MISUSE AS A COMPLETE DEFENSE

105

Liability Based on Warranty

*If product fails to live up to a
Warranty [implied or express], the warranty is breached and defendant is liable

*Plaintiff does not have to show fault by D;
*Most courts extend warranties to buyer’s family, household, and guests.
***Plaintiff must show causation and damages (can include purely economic loss)

Damages: PI, property, monetary

Defenses: Failure to give notice

106

Express Warranty

The seller represents expressly that the product has certain qualities.

Breach: Defendant sells goods with express representation that made them unreasonably dangerous, where actual and proximate cause resulted in injury to the plaintiff.

STATEMENTS OF FACT OR PROMISES RE GOODS WHICH ARE PART OF THE BASIS FOR THE BARGAIN
Privity is not required
BREACH = product does not meet warranty (fault not required)
CAUSATION
DAMAGES
DEFENSES
DISCLAIMERS – effective if consistent with warranty

107

Implied Warranty of Merchantability

Because a seller has offered goods for sale, implies that the goods are fit for the ordinary purpose for which such goods are used.

Breach: Defendant sells goods that are not fit for the ordinary purpose for which the goods are used, goods are unreasonably dangerous for that use, and actual and proximate cause resulted in injury to the plaintiff.

MERCHANTABILITY – goods are generally fit for purpose for which they are used when sold by a merchant
BREACH – product does not meet warranties
CAUSATION – actual and proximate cause
DAMAGES – PI, property damages, $$ loss
DEFENSES – failure to give notice [most courts]
DISCLAIMERS – rejected for injury [unconscionable], allowed for economic loss, if specific and clear

108

Implied Warranty of Fitness for Particular Purpose

When the seller knows that the buyer wants goods for a particular (not customary) purpose and the buyer relies on the seller’s judgment.

Breach: Defendant sells goods knowing plaintiff's specific intended use, where plaintiff relied on defendant's skill or judgment in selecting the good, and actual and proximate cause resulted in injury to the plaintiff.

FITNESS FOR PURPOSE – D knows P intends to use for a special purpose and that P is relying on D’s skill and judgment
BREACH – product does not meet warranties
CAUSATION – actual and proximate cause
DAMAGES – PI, property damages, $$ loss
DEFENSES – failure to give notice [most courts]
DISCLAIMERS – rejected for injury [unconscionable], allowed for economic loss, if specific and clear

109

Misrepresentation

1. Usually Strict Liability but can be based on Intent or Negligence
2. Misrepresentation must be of a material fact
3. Defendant must have intended to induce reliance of the buyer
4. Misrepresentation must be a substantial factor in inducing the purchase
5. Must show Causation and Damages

MISREPRESENTATION
NOT MERE PUFFERY
ASSUMPTION OF RISK IS NOT A DEFENSE
CONTRIBUTORY NEGLIGENCE IS A DEFENSE UNLESS MISREPRESENTATION IS INTENTIONAL
DISCLAIMERS ARE VALID

110

Defenses - Strict Liability - Products Liability

PLAINTIFF’S NEGLIGENCE
STATES VARY WITH MOST TREATING PLAINTIFF’S NEGLIGENCE AS A PARTIAL DEFENSE, REDUCING RECOVERY [COMPARATIVE FAULT]
SOME STATES BAR PLAINTIFF’S RECOVERY IF PLAINTIFF IS > 50% AT FAULT
A FEW STATES TREAT PLAINTIFF’S NEGLIGENCE AS A BAR TO RECOVERY

ASSUMPTION OF RISK
RESTATEMENT: Plaintiff’s assumption of risk bars plaintiff’s recovery entirely
Comparative negligence used in majority of states to apportion liability between P and D
Some states treat plaintiff’s assumption of risk as a complete bar to recovery-NO UNANIMITY!!!!

MISUSE OF PRODUCT
Misuse can defeat p’s prima facie case if it shows product was not defective
E.G., USE OF A PRODUCT IN UNFORESEEABLE WAYS
MISUSE CAN BE A DEFENSE THAT REDUCES OR BARS RECOVERY
MAJORITY TREATS AS A FORM OF COMPARATIVE FAULT REDUCING RECOVERY
MINORITY TREAT MISUSE AS A COMPLETE DEFENSE

OPEN AND OBVIOUS DANGER
If the danger is obvious, there is no need to warn
If danger is obvious, plaintiff loses the design defect claim
If danger is obvious, plaintiff loses the failure to warn claim

STATE OF THE ART DEFENSE
SOME STATES SAY THAT MANUFACTURERS ARE NOT LIABLE FOR PRODUCT LIABILITY FOR FAILURE TO WARN UNLESS KNEW OR SHOULD HAVE KNOWN OF NEED FOR A WARNING

DISCLAIMERS OF LIABILITY
Disclaimers of liability are irrelevant in negligence or strict liability cases if personal injury or property damage has occurred

111

Product Liability - Negligence

Duty Of Care Owed To Any Foreseeable Plaintiff
PRIVITY NOT REQUIRED
Breach Of Duty Of Care
DID D ACT AS A REASONABLE PERSON?
MAY USE RES IPSA LOQUITUR
Causation –Actual And Proximate
Intermediary’s negligence not superseding generally
Damages –Physical Injury/PropertyDamage
Defenses – SAME AS IN GENERAL NEGLIGENCE

112

Defamation

Tort that protects an individual’s interest in his reputation, that has been damaged by an oral or written false statement.
“Damage to reputation”=lowers P in the estimation of the community or deters third persons from associating and dealing with P
The defamatory statement(s) must be published (communicated to a person other than the P)
The fault of the defendant must have caused “special harm”.

1. Defendant made a defamatory statement;
2. The defamatory statement was “of and concerning” the plaintiff
3. The defendant published the defamatory statement to a third party, and
4. the statement caused damage to the reputation of the plaintiff.

*P must establish that the reasonable reader, listener, or viewer would understand that the defamatory statement referred to the P.

Colloquium= extrinsic facts that must be pled and proven by the P to show that the reasonable reader, listener or view would have perceived the defamatory statement as referring to the P.

Basic Common Law Defamation: Burden of Proof - Defendants have to prove truth (truth absolute defense for defamation).

113

Defamation - Language

*If statement, standing alone, is defamatory, it is defamatory “on its face”.

Inducement & Innuendo:
*If statement is not defamatory on its face, extrinsic facts can be added to establish its defamatory meaning.
---P must plead and prove additional facts as inducement and establish the defamatory meaning by innuendo.

Opinion:
A statement of opinion is actionable only if it appears to be based on specific facts AND an express allegation of these facts would be defamatory.

Example: “I don’t think Karen can be trusted with a key to the cash register.”

114

Defamation - Who May Be Defamed?

1. Individuals
2. Groups
a) small group members can show statement refers to each member;
b) large group members cannot show statement refers to each member;
c) some member of small group-P can recover if shows reasonable person would believe statement refers to P.
3. Corporations and partnerships.

115

Defamation - Publication

Defamatory statements communicated to a third party who understood them.
Liability stems from the intent to publish, not the intent to defame.

*No liability for publication which a D did not intend and could not reasonably anticipate.
*No liability if D had no reason to suppose that anyone other than P would overhear (or sealed letter sent to the P which is unexpectedly opened and read by another)

Primary: each person taking part in making the publication is a ‘primary publisher’ and responsible for the defamation to the same extent as the author or speaker.
Republisher: a person who repeats the defamatory statement will be liable on the same basis as the primary publisher.
Secondary: persons responsible only for disseminating materials that might contain a defamatory statement.

Secondary disseminators of defamatory information cannot be liable unless they know or have reason to know of the defamatory content of the material that they are distributing.

**On-line intermediaries- nearly absolute immunity (Communications Decency Act of 1996, §230)—includes web sites, search engines, content hosts, internet service providers.

116

Libel

LIBEL= defamatory statement recorded in writing or some other permanent form
(includes radio, television)
Libel per se-defamatory on its face
Libel per quod- the defamatory meaning, or innuendo, is not apparent on its face
Libel Damages= general damages are presumed
(Minority)-LPQ- special damages
(pecuniary loss) must be proven
Damages presumed. Permanence of publication is libel (including radio broadcast, because recorded).

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Slander

SLANDER=spoken defamation

Slander damages= injury to reputation not presumed except ‘Slander per se’ statements accusing P of:
1. A major crime of moral turpitude - D charges that P has committed a serious morally reprehensible crime, or has been incarcerated for such.
2. Suffering from loathsome disease (venereal disease or leprosy) - Statements imputing that P suffers from a loathsome communicable disease.
3. Conduct adversely affecting business or profession - Imputing to plaintiff conduct or knowledge of business.
4. Serious sexual misconduct - statements imputing unchastity.

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Common Law Defamation

1. A defamatory statement is presumed to be false
Contra: Constitutional defamation- P must prove falsity

2. Strict liability can apply
Contra: Constitutional defamation- P must prove fault if public figure or matters of public concern

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Public Figure

1. a person who has achieved pervasive fame or notoriety ; OR
2. a person who has voluntarily assumed a central role in a particular public controversy and becomes a public figure for that limited range of issues.

Public Figure
Someone who the majority of the public recognizes. Plaintiffs who are public figures must prove actual malice.

Burden of Proof: Plaintiff - must prove a statement is false.

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Public Figure - Malice

Public Official seeking to recover for defamatory statements relating to their official conduct must prove, by “clear and convincing” evidence, that the statement was made with malice.

Actual Malice
The defamatory statement was published with knowledge of falsity or reckless disregard for the truth.

Individual acted with:
1. Knowledge that the statement was false
OR
2. Reckless disregard as to its truth or falsity [subjective-Deft entertained serious doubts as to truthfulness of the publication]

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Matter of Public Concern

Courts look at the context, form and content of the publication.

Whether P is a public or private figure and the defamatory statement is on a matter of public concern, P must prove the falsity of the defamatory statement;

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Private Person

Where P is a private person and the
defamatory statement is on a matter of private concern: common law rules of defamation apply and P must show at least negligence. ___________________________________
Where P is a private person and the defamatory statement is on a matter of public concern:
1. P must prove falsity
2. States-prohibited from imposing strict liability-P must prove at least negligence
3. Recovery of presumed or punitive damages is restricted

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Defamation - Damages

UNDER COMMON LAW
[PRIVATE P V. PRIVATE D ON PRIVATE MATTER] :
*Actual injury- to compensate for injury to reputation, personal humiliation, mental anguish and suffering.
*Special damages –pecuniary loss attributed to the result of the defamatory statement on P’s reputation.
CMR –Fault & Damages Rules in Constitutional Defamation Actions

FIRST AMENDMENT CASES INVOLVING PUBLIC FIGURES OR MATTERS OF PUBLIC CONCERN:
In Negligence: limited to “actual injury” sustained by P (no presumed damages) which can include out of pocket loss;

Where ‘Malice’ is found: presumed or punitive damages allowed

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Defamation - Mitigating Factors

1. No actual malice-
D must show the source of the information and basis of belief in truth
2. Retraction-
Must be made immediately after publication or in response to a request to do so
3. Anger-
Can be a mitigating factor if provoked by P

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Defamation - Defenses

1. CONSENT- complete defense
2. TRUTH- complete defense only where it involves a matter of private concern and P is not required to prove falsity
3. ABSOLUTE PRIVILEGE- complete defense
A)Legislative proceedings
B)Judicial proceedings
C)Executive proceedings-function of office
d) “Compelled” broadcast or publication
e) Communication between spouses
4. QUALIFIED PRIVILEGE-
Statements cannot be made with malice and must be relevant to protected interest
a) Report of public proceedings-excuses accurate reports of false statements
b) Public interest-
--publication to one acting in the public interest
--“fair comment & criticism” –critique of matter of general public interest
c) Interest of publisher- defense of D’s actions
d) Interest of recipient
e) Common interest of publisher & recipient

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Invasion of Privacy

One who publicizes a matter that is private to another is subject to liability for invasion of privacy if the matter would be highly offensive to a reasonable person and is not of legitimate concern to the public.

“The right to be left alone”
The right to protection against unreasonable interference with an individual’s solitude
and of ‘personality'.

**Encompasses 4 torts:
1. Misappropriation of P’s name or picture for commercial advantage
2. Intrusion upon P’s affairs or solitude
3. Public disclosure/undue publicity of private facts
4. Publication placing P in a false light

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Public Disclosure

Elements:
1. Publication, publicity or public disclosure by D of private information about P;
2. Disclosure of the kind of matter that would be highly offensive to a reasonable person.
**Facts may be true or false
**If matter of public interest, publication is privileged if made without malice
**Absolute privilege for matters of public record

D is a frustrated creditor of P. D places a notice in the window of his store stating that P owes him money and has not paid him.

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Intrusion

1. Act of intrusion by D on P’s affairs or seclusion;
2. The intrusion would be highly offensive to a reasonable person;
3. The matter intruded upon is within P’s ‘private’ domain.

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False Light

1. Publication [PUBLICITY] of facts about P by D placing P in a false light
2. The ‘false light’ would be highly offensive to a reasonable person
3. Malice by D where the published matter is in the public interest.

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Appropriation

Unauthorized use by D of P’s likeness or name for D’s commercial advantage

*Usually concerns use of P’s name or picture in connection with promotion or advertisement of a product or service
*Name or picture must be appropriated by the defendant for his own financial benefit
*Can include reference to celebrity for advertiser’s financial benefit

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Invasion of Privacy - Damages

Emotional distress and mental anguish

Special damages do not need to be pled or proven

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Invasion of Privacy - Defenses

1. Consent:
May have to be in writing
Cannot be exceeded

2. False Light & Public Disclosure of Private Facts:
Absolute and qualified privileges applicable to defamation

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Intent

Person acts with purpose of producing a consequence (specific), or knows with substantial certainty consequence will result (general). Intent to injure not necessary.

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Wrongful Pregnancy / Life / Birth

Wrongful pregnancy exists if negligence by medical provider. However, no such thing as wrongful life or wrongful birth by the child, even if handicapped.