whipple torts ii fall '10 outline

8/3/2019 Whipple Torts II Fall '10 Outline

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Torts IIProf. WhippleSpring 2011

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Comparative Negligence

y Co N has replaced CN (all or nothing barres Ps recovery) in most states.y Co N assesses liability in direct proportion (%) to degree of fault. P can recover even if

his fault is greater than D

y There are 3 models forCo No Pure Co N P can recover % from liable D regardless of the proportion of theirown comparative responsibility.o Greater fault bar (>50% (51)) P is barred from recovery when she is more

greater than 50% comparative responsible than Do Equal fault bar (=>50%) P is barred from recovery when she is equal to or

greater than 50% more comparative responsible than the D

y D:(The degree of fault + incorporates ProxCausation ANALYZE BOTHELEMENTS)= or can use term Comparative Responsibility (but for)

y Some concerns with Co N-what if responsible parties are nor brought before court (problems of contributionand compensation may arise)

-assigning a specific % may be difficult when evaluating facts-Last ClearChance is not used bc it will only give relief to P

HYPO $100K Degree of Fault CN EFB GFB P Co N

25% 0 $75K $75K $75K

49% 0 $51K $51K $51K

50% 0 0 $50K $50K

51% 0 0 0 $49K

75% 0 0 0 $25K

Hypo: P and D are involved in a two car collision. Each claims the other was driving neg andcaused acc. Case goes to trial w/ jury finding that P was 50% responsible and sustained $100,000in damages while D was 50% resp and sustained $50K in damages.

How much will each receive if both carry high auto liab coverage? In an old rulejurisdiction, in an equal fault bar jurisdiction, in a greater fault, in a pure comparativeneg?

Equal bar = 0; pure/greater than = P $50 K, D would get $25K assuming adequateautomobile liab coverage

??? WHO is at fault with the percentages????=The P

Hypo #1 Pure Co NAuto Collision With Both Drivers at FaultA was 10% at faultB was 90% at faultA/B damages of $50K They each have $1 mil auto liability policy*A will recover $45K ($50K-10%)*B will recover $5K ($50K-90%)*IF NO AUTO LIABILITY POLICY, LIABILITIES OFFSET(*D may have to compensateP, with no compensation for himself)Hypo #2 Neither has insurance*A will recover $40K ($45K- $5K)*B will recover 0 ($5K- $45K) ($5K- $5K)Hypo #3


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A damages $5K *A will recover $4500K ($5K-10%)B damages $500K *B will recover $50K ($500K-90%)Hypo #4 Neither has insurance*A will recover $0 ($4500-50K)*B will recover $45,500 ($50k- 4500K)

******ANALYZE:DOESTHIS MAKE SENSE???????***********************

Burden of Proof: CN = D Last clear chance = P A/R = D Avoidable consequences = D

Li v. Yellow Cab Co of Ca. is a case where comparative negligence was implemented by the judiciary. 4made a

turn negligently across 3 lanes. was driving and sped through a yellow light and struck4. 4 sues, and lower

court found 4 contributorily negligent so barred recovery. On appeal, the court abolished contributory negligence

and established pure comparative negligence. The doctrine of last clear chance was abolished and assumption ofrisk was subsumed by pure comparative negligence.

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Vicarious Liability

When one is liable for the tort of anotherRespondent Superior- Employer- Employee RelationshipIndependent Contractors

ASK for VL:1) Deep Pockets?! No deep pockets=insolvent2)

RS (1): Agency Relationship3) RS (2): Reasonable Foreseeable?

4) Negligent Hiring?5) Exception: (D defenses): Outside scope? Any Frolic/ Detour?6) Independent K??7) Negligent Hiring?8) Exceptions (P arguments): Non Delegable Duty?9) Apparent Authority?10) Implied Authority?11) Statutory or Regulatory Standards????12)D can still sue Ind K!! (indemnification/ contribution)

Ira S Bushey & Sons v USis a case in which the tort was committed within the scope of an employees employment.A seaman working for coastguard returned drunk to his boat, and opened valves on one side of the dry docked ship.

The flooding caused the ship to damage the dock, and 4 sues coastguard under theory of respondeat superior. Thecourt said that the sailors conduct was not so unforeseeable as to make it unfair to charge with his tortuousactivities. His activities, though not readily explicable, at least were not due entirely to his personal life. He wasrequired to return to the ship. It was foreseeable that crew members, drunk or not, might do some damage whilecrossing the dry dock.


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Respondent Superior Doctrine

Employer is Vicariously Liable for an employees tortious act (jointly with employee)if the employees conduct was within the scope of employment and reasonably foreseeable

*Deep Pockets- go after those with money (D)No deep pockets=insolvent

In defense using Respondent Superior1) First use Agency Relationship defense.. then2) Reasonable Foreseeable Defense

Agency Relationship- If X acting in furtherance of business purposes (scope ofemployment), then agency relationship has been established (even if those means are indirectand the employer has no control over employee during commute)

Reasonable Foreseeable- If D (employer) puts the employee in that situation (circumstance)then it may be reasonable foreseeable that results may occur (ex. Giving drunk sailors open

access to ship w/o guards)

Exception: Employer not liable when the employee creates risks different from those ofemployment activities (outside scope of liability) *doctor molest patient (battery,assault)*intentional torts are usu. outside the scope of employment no RS (Beyond Agencyrequirement, not reasonable foreseeable)

y Generally, intentional torts arent included in respondeat superior. There are severalexceptions such as if you know the particular employee has a propensity for intentional

torts and you keep them on, then you are liable because you have a negligent hiring policy,

or if reasonable supervision would have stopped it

y If the use of force is included in an employees responsibilities (bouncer, debt collector),intentional torts in relation to his employment could be brought under respondeatsuperior.

Negligent Hiring (not Vicarious Liability bcbased on the employers own negligence)- Ifemployerhas not fully investigated employees background. Employer is primarily liable, notvicariously liable. *Dr. Chester the Molester

Problems with RS:Agency relationship may not existNot a clear logical reason to impose RS

Frolic and detour: While on a business trip the employee makes a detour. A frolic occurs thenthe employee takes a route (ex. pursues personal business) that is a substantial deviation fromemployment. Detour is a smaller deviation. Accidents during frolic may not triggerRespondeat Superior (employer not liable) but brief detour do.The purpose of the detour is also important strip club v church!!!!.


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Independent Contractor

One hired to provide services. You do not supervise (micromanage), just request results and theyknow such. Generally no Vicarious Liability exists for the actions of ind contractors. Therationale for this is that the employerhas no right to control the manner in which an

independent contractor performs the K (No micro manage!)

Petrovich v. Share HealthPlan ofIllinois is a case in which an independent Kr was held vicariously liable. 4 saidthat HMO was vicariously liable for her doctors negligent diagnosis for oral cancer. The court held that vicariousliability may be imposed for the actions of independent Kr if an agency relationship is established under thedoctrines of apparent or implied authority. The question to ask is did the agent retain the right to control the mannerof work? The HMO did control some of physicians actions.

Arguments (negating ind contractor relationship and holding D (employer) Vicariously Liablefor ind contractor)Non Delegable duty- Certain duties are said to be non delegable, deemed so important (ex *cantput peoples lives at risk) (Can be used to negate independent contractor defense by D)

Negligent hiring?Apparent authority- negates independent contractor relationship. Establish 1) D held itselfout without informing P (*ex D held itself out as provider of health care w/o informing P thatcare was given by ind. Contractor 2) P justifiable relied upon D to (ex provide services, ratherthan a specific physician)(*To the outside world, this independent Kr looks like they are employee. D help itself outakaheld Ind Kr out as employee)Implied authority- negates ind contractor relationship. D exerted sufficient control over X(micromanaged)

*The employer may have a cause of action against an independent Kr if the employer is held

liable by a third party.Just bc P can sue emer and emyee does not effect liability b/t emer andemyee (can still sue: in RS emyee is not off the hook)__________________________________________________________________________

II. AFFIRMATIVE DUTIES

Ask for AD:1. No General duty to rescue (esp trespassers!)2. Exceptions: Special Relationship exist?3. Exception: AD beyond non negligence?!4. GSR: Duty to Aid??- Strict GSR v Laissez Faire GSR (statutes)?5. -Interfering with Rescue?6.

AOR/ CN/ Co N by P???

A. DUTY TO RESCUE In American law, there is no general duty to rescue (in most other countries, there is a

positive duty to render aid) Owners of land owe trespasserno affirmative duty (these are only moral obligations, not

legal). Only owe a duty to refrain from any further acts of violence


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Owners of land are not bound to warn trespassers of latent or patent defects, and may donothing.

Evaluation of duty is a matter of law Licensed doctors not obligated to enter into contractual physician- patient relationship. No

affirmative duty if they have not caused the predicament

Exceptions: No duty to rescue unless a special relationship exist akao Familial relationso On going professional relationships (caregiver-patient)o Common Carriers- required to engage in their profession or contractual agreement

(*bus driver has to pickup all patients) certificate of completion

o *Even though situation created was through non negligence of YOU (*carsliding down icy road) once created YOU have the affirmative duty to reduce

harms to others (*usu via a warning!). (In a sense you created the danger)

o Time may be a factor (did YOU have ample time to warn others, were you aware ofdanger and knew others would not beGood Samaritan Rule

Strict- Not obligated, BUT ifvoluntarily attempt to rescue/ aid another, must attempt innon negligent fashion (RPP applicable standard of care, dont necessarily have to besuccessful)

Exception:o Most states have Good Samaritanstatutesp Typically they will insulate one from

suit forordinary neg but not gross neg or recklessness/ willful or wanton(Rationale:P maybe worse if by your help, other may be able to help in betterfashion!)

*Some states also apply strict GMR for medical practitioners

Interfering with rescueo One may not intentionally or negligently interfere w/3rd party attempting to give

rescue/aid

Hurley v Eddingfield:doctor refuses to render aidp License to practice does not equallicense/obligation to aid.

Montgomery v Natl Trucking:truck parked 50 ft downhill on icy road p if you create aperil, although non N, you do have affirmative duty to warn so as to prevent injury, eventhough you did not cause the peril intentionally.

RST (2d) 324 Duty to One who Takes Charge of Another who is HelplessOnce you start helping someone who is helpless, youre liable for harm caused by failure to

exercise reasonable care to secure the safety of the other; or discontinuing aid/protectionresulting in the other being in a worse position tan before RST (3d) 39 Duty Based on PriorConduct Creating a Risk of Physical Harm

When an actors prior conduct, even though not tortious, creates a continuing risk of physicalharm of a type characteristic of the conduct, the actor has a duty to exercise reasonable careto prevent or minimize the harm.

RST 322: Duty to aid another harmed by actors conduct.


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If the actor knows or has reason to know that by his conduct, whether tortious or innocent, hehas caused such bodily harm to another as to make him helpless and in danger if furtherharm, the actor is under a duty to exercise reasonable care.

Hypo: D sees P, a blind man about to cross the street in path of a bus. Without any way

endangering himself, D could call out to warn P. He does nothing and P is severely injured.NO liability; no duty to rescueHypo: This time P in a correctional facility; screaming, calls out in pain, suffers an attack ofappendicitis; guards ignore; suffers med expensesWould impose liability special relationshipHypo: Dhits a golf ball; D carefully determined that no one was on the fairway; as soon as

she hits the ball, P emerged from the ruff and suffers a concussion. Is D liable to P?

Yes; has to yell out fore havent done anything negligent, but your actions still put

someone in peril; you have a duty to take reasonable actions/warn them; if they get hit by

the ball, you have a duty to call for medical aid.

Hypo: D finds P, a stranger outside of a pizza place; she was taking her to the hospital, see it

was taking too long, stopped to buy cigs, Ps situation gets worse;D is liable for P b/c undertook risk; had to take it in non-neg fashionHypo: M is attempting to take an unconscious stranger P to the hospital; M asks D fordirections, who is also new to the city, and gives him wrong directions; As a result of the delay,P suffers brain damage.Is D liable to P for the brain damage?Gray area; Whipple thinks you shouldnt give information if you dont know its correct

B. DUTIES OF OWNERS AND OCCUPIERSAsk for DOO:

1) Tri-Partied Theory? TLI2) v. Ordinary Negligence?3) ANT: Attractive Nuisance Theory for Kids? MATTER OF LAW4) Special Relationship?Kline and TarasoffTRI- PARTIEDTHEORY

Traditional categories:o Trespassers: enters land w/out implicit or explicit permission, enters at own risks

No duty for reasonable care, but you cant willfully harm themException: Inadvertent trespassers (P mistakes property for public property orpublic right of way)- duty to keep property in good repairo Licensees: owner permits individual to enter land; including social guests

Duty to warn of known(or had reason to have known) latent (hidden)defects on the property, but not patent (obvious) defects; generally licenseemust take reasonable steps to learn of them

o Invitees: Joint interest (usually some type ofbusiness relationship ORopen topublic (ex. Dept. store, public pool)

Maintain property in a reasonably safe fashion ( general neg standard)


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Attractive Nuisance Theory- a differential standard forchildren. A matter of lawIfartificial condition lures children and they are injured children get the benefit of generalnegligence rules (app SOC), Its not what attracts the child, but the nuisance itself!

1) Applies ONLY to artificial conditions *not natural conditions (cliff) (placed there byD or created by D (pool)

2)

If children are likely to trespass, and Dhas reason to know3) If there is an unreasonable risk of death4) Evaluate risk utility (cost/benefit analysis B


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driving along the road. When giving the invitation, D fails to warn Peggy to stay to the left atthat point. While using the road, it collapses, causing serious injury to P. Is D liable to P?

P is a licensee invited a social guest duty towards licensees, to warn of latentdangers; situation that D knew about, should have warned P about the latent defect;since D didnt do that, D will probably be liable to P.

Hypo: Same facts as above EXCEPT D didnt know of the problem w/ his private road. Hecould have discovered the problem, however, with reasonable diligence. Is D liable to P? Most jurisdictions and RST would hold D liable if he could have discovered the latent

defect.C. SPECIAL RELATIONSHIPS

Duties Owed to a Special Relationship: KNOW THESE CASES!!!o Kline (DC 1970) Duty?This case is an example of a special relationship via Landlord/ Tenant- LL had exclusive control of hallway, had notice of prior incidences so..

* In the best position to take the necessary protective measures against physicaldefects, if no duty (apts) would go unprotected!

*Should have apply same level of security that was present when P began lease (notnecessary same methods, but same level*D is justified in passing the expense (of security) on to patrons (B>LP!)

Whipple says: Holding doesnt set a reasonable standard for ALL (nobenchmark): What about poor people who may initially have no security and retainno security, LL not liable for anything??? Leads to verdict for Jury discretion

Dissent says since P is M2M lease why not just move elsewhere, there was no guarantee ofsecurity in lease. And hasnt proved proximate cause bt protection and harm (what if anothertenant did was the perpetrator?)

*What role does P have? (Co N?) *Cost/Benefit Analysis! (B


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Tho just bc Patient tells you (they want to kill many) doesnt create duty. Only liablewhen theres reasonable foreseeable using (RPP in profession)his skill, expertise todetermine the (Patient) will follow through to protect others

Must Ask is threat specific enough! Liability limited to particular threats

D may argue this will impair Patient/Client relationship (isnt the purpose to gain Patienttrust in order to prevent such occurrences)D cant predict if Patient will be violentIsthis really foreseeable?

All Special Relationship have this standard (Priest- Patron / Lawyer-Client)

Liability limited to Special Relationship (SR with victim or wrongdoer is necessary).and very limited to ordinary individuals (special relationship must still exist akaguardian/ mentally ill.parent/bully child)

o Duty of psychotherapist to warn third parties of probable criminal acts by patients

Fairly limited threats to a named individual by a named potential offender

RST (Second) 315 General PrincipleThere is no duty so to control the conduct of a 3

rdperson as to prevent him from causing

physical harm to anotherunless(a)A special relation exists b/n the actor and the 3rd person which imposes a duty upon

the actor to control the 3rd persons conduct, or(b)A special relation exists b/n the actor and the other which gives the other a right to

protection In Weirum v. RKO, the court imposed liability on a radio station w/no pre existing special

relationship. Here, the court looked at the outrageousness of the conduct and the danger itbrought to the general public. The duty to potential victims (those in car, those listening toradio) was expanded

****Kline v. 1500 Massachusetts Avenue Apartment Corp. *****po Cts typically draw the line is when the crime occurs off premises (i.e. a commercial

establishment where patrons have to park on the street = no duty)o Enhanced duty for innkeepers in hotels the concept is that patrons dont know about

the layout of the common areas, so theres still a heightened SOC

****Tarasoff v. Regents of University of California*****po A special relationship b/n the D and the actor is enough to impose a duty. It doesnt

need to be b/n the D and the 3rd person too.

o Obviously we do not require that the therapist, in making that determination, render aperfect performance; the therapist need only exercise 'that reasonable degree ofskill, knowledge, and care ordinarily possessed and exercised by members of(that professional specialty) under similar circumstances.

RST 315: There is no duty so to control the conduct of a 3rd person as to prevent him fromcausing physical harm to another unless (a) a special relationship exists between the actorand the 3rd person which imposes a duty upon the actor to control the 3rd persons conduct, or(b) a special relationship exists between the actor and the other which gives the other a rightto protection


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IV. ULTRAHAZARDOUS ACTIVITIES(UHA)

Ask for UHA1. Strict Liability= UHA?2. Occurrence MUST stem from UHA!3.

6 Factors??4. Defenses: CN, AOR (NOT CoN)

A. ABNORMALLY DANGEROUS ACTIVITIESA person is SL for any damage which occurs while conducting UHA

*You can engage in UHA but are SL for damages and must bear the cost, even if exercisinghighest SOC (non negligent)*

To be strictly liable under UHA:a. Strict liability only imposed if the injury stems from the UHA nature of the activityaka The injury MUST occur from UHA activity (transporting toxic material, get into car

crash..blast, wall falls NO..these are negligent cases!b. Fall within 6 factorsc. Matter of Law make evaluation of factors to determine whats UHA

Expands Ryland v Fletcher (aka liability for adding an unnatural instrumentality to anothersland.

Six Factors:1) There is a high degree of riskof harm to others --H2) Great harm will result---H3) Risk cant be eliminated by reasonable SOC---R4) Activity is not common place ---C5) Activity is not appropriate for place where carried out6) Danger outweighs benefits (activities value to community) ---D

Policy question: Res Ipsa v UHAinverse relationship

Res Ipsa: evaluates exclusive control over instrumentality, occurrence does happen but fornegligenceUHA: even if non negligent (exercising higher SOC), still liable

GO FOR THE DEEP POCKETS!!!No deep pockets=insolvent

Indiana Harbor

Ps arguments: P wants to make arguments broad in scope (D is ultimately the responsible party,He produced, marketed, and transported the UHA, As a common carrier I cant refuse service, socant be strictly liable)Ds arguments: D wants to make arguments limited in scope (The relevant activity is Pstransportation, If use Ps theory every shipper will be strictly liable! Leak caused by Pscarelessness, P had the ultimate responsibility to exercise due care, so cant be strictly liable)


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*No Strict Liability for D, made more sense to make those who handle the product liable.Most spills preventable by due care, leak was caused by carelessness! (P liable)

*Co N is not a defense for UHA. If damages are too remote D may not be liable

*Siegler: Tractor trailer full of gas, trailor disengages, P dies from explosion. Ds negligent cantbe shown bc evidence destroyed- Ct says Rylands v Fletcherstrict liability applies (even tho this activity isnt really unnaturalor unusual) Ds are strictly liable. Transport of gas involves high degree of risk and is UHA andcant be eliminated by reasonable SOC.--Like Hotel case, D can spread the loss among its customers who benefitted from this UHA

RST 519 p SL only applies to inherent propensity of activity.1. One who carries on an abnormally dangerous activity is subject to liability for harm

to the person, land or chattels of another resulting from the activity, although he has

exercised the utmost care to prevent the harm.This SL is limited to the kind of harm, the possibility of which makes the activityabnormally dangerous.

RST (3d) 20 Abnormally Dangerous Activities(a) A D who carries on an abnormally dangerous activity is subject to strict liability for

physical harm resulting from the activity(b) An activity is abnormally dangerous if:

1. The activity creates a foreseeable and highly significant risk of physical harmeven when reasonable care is exercised by all actors; and

2. The activity is not a matter of common usage. Special rules for aviation:

oHas changed over the yrs as technology consequent safety record has improved

o Apply neg to in-air collisionso Apply UHA activities strict liability to ground damageo Mostly, any ground damage caused by aircraft upon ascending/descending will be UHAo Objects falling from planes will be governed by strict liability, however mid-air

collisions are governed by neg

Spano v. Perini peven though blaster exercises the highest duty of care, it's an inherentlydangerous activityp SL on blasting. So P doesn't need to introduce expert standard ofcare, but prove only causation & damages.

In most states, fireworks are a UHA, but there can still be AOR and CN(if an idiotsmokes cigarettes near fireworks).

Hypo: P, a spectator at a game of paintball, was struck in the eye by a stray paintball pellet.She sustained significant injuries as a result.

o Can P recover from the games organizers on a theory of SL for an abnormallydangerous activity?

If a new type of sport/activity, courts may see this as an ultrahazardousactivity. Sort of doing a socio-utility analysis.

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PRIVATE NUISANCE

Ask in PN:1. Look at Ps claims (how unreasonable from Ps POV)?2. FountainbleuLatches doctrine?3.

(D defense: AOR? CN?)Coming to the Nuisance? ok, ok Purchase Injunction???Ordinary Person Standard: Hypersensitivity (person or property)? NOPE!

4. Economic Disparity Present?? Compensatory:Past/Future damages OR Equity:injunction (IF $$ not enough, then equity damages! OR just $$ damages IF doesnt

make since to give equity damages and vice versa)

5. Damages? Since no enjoyment of land: (compensatory (Past/Future damages) equitableremedy: injunction (*if no economic disparity)?

6. Equity Jurisdiction WTF???? (how imp!)7. Even if P not directly affected (no nose, cant smell) may recover for Private Nuisance

(family, friends who visit)Tho evaluate if P bought home @ lower cost considering??

A private nuisance.is a nontrespassory (trespass has a type of strict liability/ if there has beena true physical trespass to land you should not be suing under Nuisance but in trespass)substantial ( that encompasses, both the magnitude of interference, the duration and the extent)and unreasonable (in nuisance is it unreasonable from the Ps point of view, how much canhe not use his property cause of this nuisance) ****NON- corporeal**** (interfering with Psuse of his property, dust, noise, ordor,excessive/not enough light, think like a 17th centurypersonand know whats not a trespass and whats a nuisance) interference with anothers USEand enjoymentof the land

P Must have interest in land that has been affected. (A fisherman injured by oil spill cant suebc no interest in land held by him is affected)

P Must assert 2 elements:1) His use and enjoyment was interfered with in a substantial way, not just inconvenience2) Ds conduct wasnegligent, UHA, or intentional (intent to commit act or w substantialcertainty) (NO SL???????)

D interference must be unreasonable: Unreasonable if either1) The harm to P outweighs utility ofDs conduct2) Harm to P > P should bear w/o compensationRemedies:

Damages:harm already occurred= compensatory

Equity damages: Injunction

Defenses: CN or AORCN- based on Ps negligent maintenance of nuisanceAOR- P coming to nuisance)- (P purchases property with advanced knowledge thatnuisance exists UNLESS rights of innocent parties (bona fide) are at stake

.If rocks come on your land thats trespass*In nuisance law you get economic losses and protections since you cant get the enjoyment ofyour land. P can get compensatory damages but there is also the possibility ofequitydamages. The typical equitable remedy that we often have in nuisance is, say you want to stay


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there you can also ask for an injunction to stop with the leather operation. So you do have apossibility of equitableremedy and the judge may say, the leather tanning operationinterferes too much with the enjoyment of the Ps enjoyment with the landagainunreasonable is from the POV from the P

Owner of land is at liberty to use his land, esp to grow trees. Its natural for growth andpenetration of roots to occur. Not an unreasonable interference with use and enjoyment! P: His remedy is at his own hands! (can cut branches down if he wants to) Wiser to leaveindividually to protect himself.

Fountainbleau - One must not use his property in a way that will injure the rights ofanother.Generally, court will not find this case as a Private Nuisance. A landowner has no legalright to the free flow of light and air across the adjoining land of his neighbor. The right to haveones view remain unobstructed cannot be created by implication; otherwise, propertydevelopment would be hindered.NO GOLDEN NUGGET!! (case by case basis) Whipple says could argue this anyway or test

(any city ordinance violations?)Latches doctrine- P was sitting on rights ..waiting too long to bring suit (Ds building alreadyhallway built!!)

Ensign (*Dog breeding v Neighbors)- Coming to the nuisance (aka purchasing property withadvance knowledge that the nuisance exist) Not a complete defense, just a factor to evaluatewhether private nuisance is valid claim. Ct enjoined D from continuing property use (injunction)Public Policy? If private nuisance, wouldnt be able to expand cities if building owners say Iwas here first. YES, this is a Private Nuisance (damages + injunction)

*Private nuisance is supposed to be flexible and broad to adapt to times*!

Ordinary Person Standard- What if P has a hypersensitivity/ peculiarity? (sunstoke vQuasimodos bell) Not liable under Private Nuisance. R2T- There is liability only to thosewhom it causes significant harm suffered by NORMAL (ordinary) person!! (*IIED for P?)

IMP-Boomer(Cement Plant with dust v Neighbors)Ct say where there is substantial economic disparity (P property value decreased byconsistent damage, damages is going nowhere! D P has no money) D is required to pay Pastor Future damagesORsubmit to an injunction (close down plant!) Tho this type of rulingdoes not deter future suits by P if damages (dust) persist

Whipple loving Note cases today-Spur(antiEnsign)- (Retirement Village v smelly Cattle Feed lot) Again, Coming to nuisancesituation.Ct says Ok, we will enjoin D bc the smell will have a substantial impact on P residents, BUT ctrenders unique Purchase Injunction . Basically, P wins injunction, D enjoined and forced tomove, but P will have to indemnify D for costs in moving!(Rationale: D had been operating for yrs with no expectation of nearby housing, then P got

*cheap land, came into the nuisance, and now claims Private Nuisance! wth?


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Crispy Nugget- A ct sitting in equity has discretion to apply what it thinks is a fair remedy!

Equity JurisdictionAsk:

1. Is (problem) equitable (MATTER OF LAW) or actionable by law2.

Ct of equity (NO JURY!)- lots of discretion on how to allocate damages, can hold partyin contempt if dont pay damages

3. Actionable by law- sheriff can obtain non exempt property to compensate other party*Money damages were the sole remedy (compensatory, punitive) for private persons*If money damages are not adequate remedy at law (property damage) alternatives include:injunctions or (K) specific performance BUT have to show money damages are nor adequate!*Defenses by D: adequate remedy already at law (aka money damages are sufficient) or LatchesDoctrine, Unclear Hands, Unconscionable remedy

Ct of Law: $ damages, Pleading, JuriesCt ofEquity: Everything else, no Juries: Used for cases that seek Precedence,

Specific Performance or Injunction (Judge discretion)_____________________________________________________________________

PUBLIC NUISANCE

Ask:1. Unreasonable interference to public?2. Can individuals (private nuisance) piggyback?3. Particularized damage? From the public4. D have complete control? look lengthy casual chain?

An unreasonable interference with a right common to the general public (healthhazards,

obstruction of public streets)

Doesnt have to relate to your real property (like Private Nuisance) BUT.ifparticularizeddamageAKA

1) If you have been prohibited from total access to your property2) If you have sustained personal injury3) = Then can piggyback on to Public Nuisance!

Can a private individual bring claim for Public Nuisance? (exceptions above and below).... Usuan attorney will bring actionsnot usually!...limited, BUT 1) If P harmed (with rest of community) inconveniently but the extent of the inconvenienceMUST be particular (*of a different kind *Particularized injury (from community suffered?)then P can bring public nuisance action for damages or injunction

Madison (Time Square v Wall Falls) Ask: *Should these businesses have covered (insurance)themselves when these circumstances occur?! Aka prior business interruption insurance!


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Camden: (Kids with Guns) Ask: Does making D liable for distributing handguns really detercriminal use through this litigation?! Ct says Too far reaching from traditional definition ofpublic nuisance. Dhas to be in complete control of its source AND too lengthy of a causalchain

_________________________________________________________________________

V. PRODUCTS LIABILITY

Ask for PL:1. Privity of K *w/ exceptions? (now limited due to R2T and MacPherson: Imminently

Dangerous?)2. SL or Neg!!??? (Escola, MacPherson, R2T)3. SL!!??? (2 Theories: LM and LS) and Corrective Justice4. Casa ( No K expectation damages, The Other Exception!!!)5.

RST 2 (Unreasonably dangerous product in defective state?) and RST 3 (MD, DD,D2W)

PL refers to the liability of a seller of a tangible item which bc of defect, causes injury to its useror sometimes bystander.

Classes of Ds = Manufacturer and Retailer

A. EXPOSITION

(Historical development) Traditional req of Privity of K(Winterbottom)

o *Policy argument = floodgates would be opened if product liability claims werentrestricted to those involved in the K

Exceptions to the GR- limits Privity of K Ruleo Purchases for benefit ofminor (Parent)?o D knowingly sells imminently dangerous producto Fraudulent Concealment by manufacturer (knowingly conceals a latent defect,

they can be held SL) Situation where the manufacturer had purposely put putty in crack and caused

damage, injured party could sue

o Foodstuffs, cosmetics, drugs Deemed to be different in nature; therefore privity not required

o Imminently dangerous consumer goods (to health and life and limb) I.e. coffee urn p cts try to avoid concept of privity; of expanding these

particular exceptions; became clearer and clearer to deem these productsimminently dangerous

o **MACPHERSON** p.Ask: Whats imminently dangerous??

Expansion of imminent danger: not only poison, explosives and deadly weapons


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but to ....**Anything of a " nature... that such is reasonably certain to place life and limbin peril when negligently made is then a thing of danger"*** (cars, coffee pot, etc)..**Rationale:Dhas knowledge the danger may be shared by people otherthan the buyer!

----**Privity of K gen rule NOT overruled but now limited aka Consumers can nowsue manufacturers by proving product was imminently dangerous! Cardozo: who determines "imminently dangerous" products"" depends on

judge. Mixed question of law & facts so judge will decide or send it to jury inborderline cases. MATTER OF LAW

***Escola**** Neg or Strict Liabilityo Strict Liability makes the seller of a product liable without fault (or if D used all

reasonable care) for injuries if sold in a defective state.o In order to est neg in products cases, cts began to stretch the doctrine of RIL in

order to prove deviation from the appropriate SOC **Escola** Talking about exclusive control: all sorts of people could have

handled the bottles; all P to recover on neg theory and using RILo Some jurists begin to argue that cts should be more intellectually honest and

adopt a SL approachin PL cases (See Traynors concurring opinion inEscola) Policy arguments for adopting SL

o Cost Reduction Theory (CRT) AKA Loss minimization P may be unprepared to meets the consequences of injury (overwhelming

misfortune). Manufacturer is in the best position to minimize the losses (bymanufacturing correctly and inspectingbefore products leave factory)

that arise out of ordinary use of the product p forces manu to implementprocess that would result in very few accidents b/c of defects

o Cost Spreading Theory (CST) AKA Loss spreading

Manu is in the best position to cost/loss spread b/c if manu is held strictlyliable, then they can incorporate that potential liabilityinto the cost ofproducts

D should input potential costs(suits, even considering D uses best reasonablecare 1/100 consumers may be injured)into their product as the cost of doingbusiness (+ $.20) *this theory spreads costs, neither party will be worse off!

o Simplification of proof at trial Eliminates the need to resort to RIL your product has injured someone, so

you should compensate regardless of breacho Corrective justice

Someone is injured and should be compensatedo The foodstuffs analogy

B. THE RESTATEMENTS

Casa

K claims are NOT to be intermingled withTort claims (flood cts)

K claim measure expectancy damages, Tort claims measure personal injury or *OTHERproperty damage (aka something other than the product itself or expectations)


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o In this case the condominium = one component, P needs to argue they boughtthe components of house so the cement did damage to OTHER parts ofproperty

RST(second) ofTortso 402A [PG. 748] imposed liability (SL) upon product seller for physical harm to

consumer Expressly negated all possible care defense Expressly negated any privity req

o Caveats and the comments to 402A are very importanto Adopted by most states by early 1970o Allows P to sue everyone up and down the chain of commerce(1)One who sells any product in a (SL IF:)defective conditionunreasonably

dangerous to the user or consumer or to his property is subject to liability forphysical harm thereby caused to the ultimate user or consumer to his property if:

a. The seller is engaged in business of selling such a productb. It is expected to reach the user w/o substantial change in the

condition in which it is sold(2)The Rule applies although

a. The seller has exercised all possible care in the preparation and sale of hisproduct and

b. The user has not bought the product from orentered into any K relation withthe seller (NO privity of K necessary!)

Caveat:No opinion as to whether the rules may not apply(1)To harm to person other than users(2)To the seller of a product expected to be processed or substantially changed bf

reached consumer

(3)To seller of a component part of a product to be assembled.Comments:

1) Business of selling does not include occasional seller (wife)2) Defective condition only where the product is at the time it leaves the sellers hand (not

abnormal or mishandling by P)3) Unreasonably dangerous only beyond whats contemplated by ordinary user (no sugar

and diabetic) *bad whisky w dangerous amount of fusel oil4) Warning Label only necessary when a substantial number of pop are allergic or danger is

latent (not when product is unsafe in excessive amounts or dangerous over span of time!*beer and fried chicken)

5) CN not a defense for D, but AOR is! RST(third) of the law of PL ****(753)*** COPY DOWN RSC 3!!!!!

o Reflects 3 tripartite division of PL law- Distinguish ALL 3, use ALL in HYPO Manufacturing defect = SL!

***The product is defective when at the time ofsale it contains a manufacturing defect


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A product contains a manufacturing defect when the product (1)SL deviates from itsintended ordinary design even though all possible care was exercised in the preparationand marketing of the product or.

y These cases rep situations in which there is a (2)defect in anindividualitem even when most of the same product items reach

the mkt place w/out such defect

y Defective Product off assembly line (1/1000) used by consumer (P)Theyre injured. Theres a deviation from how we want product to bedesigned

y In PL look for manufacturers so much as *look at product itselfand ask *Is the product unreasonably dangerous to consumer?!)

y ****INCLUDES (liable for) Product includes all in packaging(reasonable contemplated by D) or foreign objects (fly in soup)

y SL no demonstration of reasonable care in manufacturing andinspection process will negate liability

y P must still est cause in fact and proximatecausation

y Expert testimony!y Pure economic losses (expectation damaged) not included only

harms to person or property (Casa Clara)

y Sales of products vs. provision of serviceso Services are not products: general neg concepts

must still be applied to defective series (installation

of products IS still a service)

o Hybrid transactions are often difficult to characterize p recentcases tend to insulate the seller/service provider

Design defects = Inbetween SL/neg!! Every Product off assembly line has the same defect. Product designed in a

way that includes potential defect to injure others. THO not all may injureevery person.Why someone injured, Why potential? BCanother event makesproduct apotential injury

..foreseeable risks could have been reduced by alternative design Defective Warning = Inbetween SL/neg

When foreseeable risks of harm posed by the product could have been reduced or

avoided by reasonable instruction Hypo manufacturing defect; manufacturer will not be able to introduce that type of

evidence; for manufacturers defects, it is taken as SL; will not be able to be introducedo If you knew that the real problem was that it was misassembled, you can sue on

negligence theory

SOL vs. S. of Reposeo SOL(K) vs. SOR(tort) tort cases

Torts- start when injuries occuror when P should reasonably know


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when injuries occurredProblem: (sponge case in surgery) the effects of the product may be longerthan SOL Warranty (K) start when product bought (time of breach) (*TEND TO

BE LONGER*)

Why might you still apply K theory? *IfClient comes in too late to bring suit, P may notbe fully compensated if beyond SOL SOL (tort) vs SO Repose

o How are they calculated? In essence D doesnt have to calculate claims-Aviation Case

o How are S of repose diff? Protects class of manufacturers. Outside limit on claims (many

jurisdictions on med mal doctor leaving sponge in you 10 yrs ago); eventaking into account reasonable DY

o In what areas do we often find S of repose? Medical devices, Hi-tech machines,General Krs

Successor Corporation in interest liability

o When a co buys another out, generally new co not liable for old companiesproducts.

o BUT when you purchase company arent your purchasing their liability! D maybe the only company P can sue

o EXCEPTIONS??? KNOW THESE 4 See Sec 12 of R3T Express or implicitly assumption of liability Consolidation ormerger of 2 companies Continuation under (new) name and owner Fraudulent attempt to avoid liability

C. DESIGN DEFECTS

Ask forDDInbetween SL/Neg!!

1. P Need not point to a particular design defect! USECircumstantialEvidence? (Product did not perform as intended, P exclude other causes!)

2. Sale or Service?3. Manu liable for intended purpose + reasonably foreseeable (Volkswagon: Second

Collision)4. SL vs Neg standard5. Intended Purpose vs (OR+) (NG) Reasonable Foreseeable Test? (ANALYZE!!!)6. D: Intended Purpose! Passive Passthrough Doctrine? Used Products? Polycentric Design

Exception? Open and Obvious (like knives: products cant be made entirely safe!)7. IMP: 2 Part test? (RCE, RAD) Which to Use?

Every Product (1000/1000) off assembly line has the same defect. Product designed in a waythat includes potential defect to injure others. THO not all may injure every person.

Why someone injured, Why potential? BCanother event makesproduct apotential injury

Speller- (Fridge company defected electric fire v D say gas fire)


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If part of the direct evidence (fridge) has been destroyed (proof impossible)P can use

circumstantial evidence! PNeed not point to a particular design defect!Burden on P to prove more likely than not

1) Product did not perform as intended2) P must exclude all other causes not attributable to D

Cafazzo (Implanted Medical Device)No liability for D (surgeons) bc P did not purchase the implant from D. D just implantedAsk? (debate) Service ORSale

1) Is transaction primarily service? = if yes, Negligence, not SL (You dont take theseitems home!)

2) Is transaction primarily a sale? = SL for manufacturing defect (In this case P received anitemized bill (with markup) Isnt that a sale???

Passive PassthroughDoctine-Ex Pharmacist sells drug thats a prescription but ends up being defective. NO liable on

pharmacist or drug store bc it wasdelivered to them.Ex. Librarian purchases Do It Yourself book that ends up having defective instructionsRationale D not a retailer of good, cant treat these individuals as retailers (dont extendliability that far!).BUT liability to LL-T or car leases (Hertz)

What about Used Products (Troy McGlure)Gen Rule: Cant sue vendor (can manufacturer) for SL (but negligence) bc not a direct chain ofcommerce with used dealerException: If D markets used product as certified or selling a reconditioned product(car) .then YES vendor can be liable under SL (and negligence)

Volkswagon (P hit my drunk driver and product defect v Big Bad CarCompany*The fact that the design defect does not cause the initial collision makes no difference whenthe injury to P results from both (the negligence of car driver in this case) and the design defect.Both actors are liable (only in PL automobile cases??)Ct uses negligent standard: The intended purpose isnt just to create an automobile fortransportation, BUT also to provide reasonable measure of safety (ie seatbelts, air bags)***Manufacturer liable forintended purpose (transportation) + (reasonable foreseeable)possibility of collision*** (second Collision)

Should D be liable for ALL injuries? Ct should take into account injuries in safe car v

injuries in design defect car and Allocate Responsibility (divide injuries)*D: can argue P would have been injured even w/o design defect (subtract from damages)Test: Its reasonable foreseeable an automobile may be involved in a collision (hence safetyprecautions: seatbelts, etc)

***Polycentric design Exception*** *Car Manufacturers): (good for P, well really D to argue)If P I injured in side collision, P: if steel reinforcement, then I would have been protected!!!


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Other P injured in side collision, P: if NOT steel reinforcement, then car would have absorbedimpact aka I would have been protected!!*Catch 22- D IN BIND! *damn if you do, damned if you dont- D engineer must take intoaccount to decide designPolycentric Design (D can argue if too many precautions for gun, what if P gets robbed?)

AOR??

Barker (P falls off bulldozer in uneven land, idiot!)Test: 2 Part: P HAS BURDEN

1) Reasonable ConsumerExpectation Test: (RCE) Its unreasonable dangerous beyondthat would be contemplated by ordinary consumer?Matter of Fact: Really should only use Test when its an ordinary consumer product

(coffee pot vs bulldozer)Open and Obvious?2) Reasonable Alternative Design Test:(R3T test)(RAD) D could have incorporated into

design (seat belts, etc)P: hire expert witnesses or find same product, similar price with safer component (ofcourse its should be not be (D) outrageously expensive or thats a defense for D

3) (After causation proven?) Burden shift to D to disprove.D: non-design defect related There was no alternative, safer design (or the alternative isway expensive or more chance for defects in alternative) or #1 Test (RCE) isnt valid

*In some jurisdictions Burden on P to prove either test= D liableIn others use just #1/ #2

Halliday (Kid watches Scarface, kills himself with Daddys gun)Need to be asking myself:

1) So when is manufacturer ever liable?2) So when is consumer ever liable?3) Evaluate 2 Test!!

Ct says bc gun makers usu only liable if theirproduct malfunctions, and in this case it didntand the gun worked as intended= D not liable*Ct evaluates from date of manufactured (Reasonably safe product @ time of themanufacture?)Modifications to product= If reason for Ps injury= D not liable..butwhat if P modifiesIntended Purpose? Vs Unreasonably dangerous!Polycentric Design (D can argue if too many precautions for gun, what if P gets robbed?)AOR??

Linegar (bulletproof vest, Police killed on side of body)Evaluate 2 Test!NO CN defense in these cases


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Neither defective or unreasonably dangerous

***There was no latent defect and (*D) defect (not really) was Open and Obvious!!!= Dnot liable****

The Second CrashScenario

Logically the D should only have to indemnify the plaintiffs injuries that were aggravatedby the defective design. P has burden of Proof(D: you would have receiveddamages either way

P gets injured, cant introduce evidence of defective manufacture?D liable?

No manu defect, Should there be a guard? P Should Use 2 Test RCE, RAD

Duty to Warn?How does P argue?

Ps land mover gets jammed. Tries to fix, fingers severed

Design Defect?Guard? Breaking System> RCE, RAD, then Burden on D

Duty to Warn? Would RPP know?D should introduce expert witnesses

Damages in DD caseso Logically, the Ds should only have to indemnify the Ps injuries that were

aggravated by the defective design (2nd crash scenario)o In many instances, it will be difficult to distinguish damages due specifically to the

design defect. The RST (3rd) shifts the burden in such ambiguous situations to the Dto prove the initial (non-design defect related) damages (see 16(c))

Toddler problemo Reasonable consumer expectations wouldnt expect chair to collapse and sever

fingers; can bring suit against manufacturer, retailer, and against neighbor on theoryof negligence using the stuff we learned from 1st semester. Defensive evidence reasonable alternative design aesthetically or monetarily different, still probably

want to get an expert witness to prove design defect based on reasonable alternativedesign.

Harder in a reasonable consumer expectation state to bring in information;going to be more difficult to get out of it; you can bring in defensive evidencein re: to reasonable alternative design; engineers considered other designs butthe other designs were seen as unduly expensive, might have been dangerousin another way, not aesthetically pleasing

Open and Obvious Dangerso Many product designs dont provide complete consumer protection. If these design

compromises are open and obvious and dont offend reasonable consumerexpectations, they will not give rise o a PL cause of action (seeLinegarv. Armour)

o Other open and obvious situations might include knives, hunting rifles, and similaritems which have social utility but cannot be made entirely safe Problem re: lawnmower blade see Torts II outline

o Can be an argument for assumption of risko Could have been warnings on lawnmower re: not getting close to bladeo Automatic brake mechanism to stop blade reasonable alternative design if you can

find other lawnmowers that are not unduly expensive and can stop the blade from


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turning and doesnt cost much more, you can win as a plaintiff by using reasonablealternative design

o Manufacturer would have to assert that this is unduly expensive, non-aesthetic,change the function of the lawnmower; automatic brake can cause other sorts ofdanger to the consumer they would have to bring that sort of argument

A. DUTY TO WARN FR,RAsk in D2W

1. Avoid Reasonable Foreseeable Harm through warnings?2. D: Only warn of dangers reasonable under circumstances! (D: detailed warnings bad! No

duty to give reason of warnings3. 2 Test fromDD ? (RCE, RAD)4. D: State of Act exception , Learned Intermediary Doctrine, tho exceptions

(contraceptives/ elective long term medicine)

P: When foreseeable risks of harm posed by the product could have been reduced or avoidedby reasonable?? warning

Defective Warnings or Instructions Even if a product is designed and manufactured w/out defect, it still may cause injury

through improper use or pose dangers to certain individuals Manufacturers have a duty to provide effective instruction on how to use the produce

safely and give warnings of potential dangers (D:)A warning need only be reasonable undercircumstances (need not warn of every

mishap! AND Remember Detailed Warnings May Actual Undermine theireffectiveneness

P: Reasonable Foreseeable Misuse?? Standards: Most cts us a standard of avoiding reasonable foreseeable harms through

reasonable warnings or instructions. See RST 2(c) D:State of the Art (breast implant case): at the time of manufacture standard Courts

wont require manufacturers to warn of dangers which they had no knowledge if

they have conducted reasonable testing programs. Not reasonable foreseeable!Reasonable testing prior to marketing is required

P: Exception: INBreastImplantCase Ps decedent (husband) can sue for Loss ofconsortium (no sex anymore!)

Reasonable Alternatives? (saline implants) Burden on P to prove Need to have a middle approach to instructions p dont wait to put too many

to where people wont read them or too little What warnings, if any, should be included on a jar of PB?

o Allergies? Whipple not worried about ito May need warnings for younger childrenp i.e. baby oil case

GR: duty to warn any person that may come into contact w/ pharmaceutical.o Learned Intermediary Doctrine :if warning given to learned intermediary

(physician), manufacturer has no duty to directly warn the patient. Rely on doctor to


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convey information. BC doctor can tailor the type of warning to a particular patientand explain!

y Exception:Contraceptives OR elective long-term medicine:because of the drive-by nature of pills (get the pill, get out, come backnext year> less chances to be informed), doctor knows patient. D

under duty to warn ultimate consumer

E. PLAINTIFFS CONDUCT, FEDERAL PREEMPTION

Ask :1. Ps conduct: Many cts adopt Comparative Responsibility or Pure AOR (D defenses)2. Fed Preemption? (blocking state tort claims) Expressed or Implied?

Effect of Ps conducto The law is in flux. Cts are struggling w/how to adapt Cont neg and comp neg

concepts to a system that is not actually based on classical neg principleso D: Many if not most cts are adopting a system ofComparative Responsibility

standard (Influx of SL and Con N:D:The degree of fault + incorporatesProxCausation ANALYZE!! (how P causation to injury?)) (See RST third 8)*earlier

o Cts still adopt Pure AOR defense (P appreciates risk and continued to take on risk)o These are serious issues whether such an approach should be adoptedo P: will lessen a manus incentive to produce safe productso

P: All D has to do is assert P did SOMETHING! Effect of Federal Preemptiono Fed preemption generally affects DD and D2W cases onlyo A finding offed preemption (blocking state tort claims) will mean that states may not

impose more stringent standards that those est by federal statutes, regs, and directiveso Ex. A statute requiring manus to equip some BUT not all cars with airbagso Preemption can be:

Express: (Statute say there is preemption AKA no savings clause for P) Implied

y conflict of preemption? (D:airbags; gradual phase!)(bt state tortclaims and fed statute)

yField preemption (thwart fed scheme) * So comprehensive, Congressimplies total preemption (no state tort claims)

Many conflict and field preemption cases will be difficult to reconcileP injured at 2% level toxic. Fed law says D only liable at 4% toxic. Analyze!

3 circumstanceso When the state law is inconsistent w/federal statuteo When the federal statute is sufficiently comprehensive to occupy the field


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o When the enforcement of the state law frustrates the federal schemeVI. NO-FAULTSYSTEMS: WORKERS COMP

Ask:

1.

P burden?: 1. Injury during course of employment? 2. While fulfilling employmentduties?2. Injury a substantial deviation? (P:no recovery)3. D: Going and Coming Rule (No WC if P just traveling to and from work OR P: 2nd

Jobsite (home) Defense?4. New Zealand (limited tort claims, socialist!) Policy Argument?

No fault systems

Workers compensation Matter of Fact (cant sue employer in reg legislature)o Est. comp to workers for on the job injuries and occupational diseaseso *If on the job + defect product = Workers Comp + sue manu for PL (-) recovery in

WC caseo P must prove 1. Injury occurred in course of employment 2. While fulfilling the

duties of employment

o No P recover if injury is a substantialdeviation from the employment dutieso DS defenses such as CN and AORdont apply but sometimes gross neg or

intentional wrongdoing will be a defenseo Damages for P: AWW (average week wage) + percentage %o WC is a societal trade off(rapid monetary award but NO loss wages or pain and

suffering (compensatory damages). Injured parties receive guaranteedcompensation w/o proof of fault in exchange for generally lower monetary awardsthan under a neg suit

Third party vs. first party insurance compensation plans

o Many no fault plans such as WC are still 3rd party insurance; i.e. the claimant collectsagainst the insurance co

New Zealand Accident Compensation Plano Most comprehensive of compensation plane. Covers all accidents as well as medical

malpractice under gov plan. Abolishes CL tort actions. Socialist sysyem! 3d party v. 1st party: Claims against your own insurance compensation plans; many no fault plans such as

worker's comp are still 3dP insurance based (i.e. claimant-P collects against insurance purchased by employer (get L and insurance

pays policy limts). Auto no-fault plans are generally 1st party insurance based aka P collects from OWNinsurance (like WC, for smaller claims).

VII. CL DEFAMATIONMatterofLaw

Ask:1. Applies to Private P v Private D (NOT mass media)2.Communication, gestures, signals? Trucker defamation?3. Prima Facie PDCCR: Publication? (Negligent Publication?) Defamatory

Communication? (*Defamatory Meaning PerSe/ Hermeneutic Devices) Of orconcerning the P ? Causation? (*Injury to rep, no friends, etc, financial) Real Damages?


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4. Malice Matter of Fact? P NO prove falsity5.D: Pure opinion v Statement of Fact (opinions protected, MUST be factual)? Truth,

Absolute Privilege Matter of Law (IF Judicial officer, Ls Qualified Privilege ORakaIntra-corporate Privilege (for businesses) MUST BE WITHIN SCOPE OFEMPLOYMENT (AKA NO GOSSIPING!!!)

6.P: Single Publication Rule? Multiple Publication Rule?7. P: MeteorScences- IF statement capable of innocent and defamatory interpretation,innocent prevails, P counterargument: Noone could reasonably think movie NOT aboutme

8. P MUST show defamationperse(so harmful to P rep damages are presumed) orperquod(require P show extrinsic evidence and state damages to show defamatory

AKA actual diminution in reputation , financial, but can include social relationships ordoctor bills))

Elements ofCL Def

o Publication necessary!- AKA communicating to a 3P who is not privileged!!!BUT MUST be meaningful to 3P (Bulgarian? que??!!!)Negligent Publication: make statement and leave on test where one will reasonablyread (housekeeper) or put im mail, you know secretary may read (PUT: To be readby..) but IF diary and robber gets, no defamation

o Defamatory communication. (innuendo!) Defamatory MeaningPerSe

1. Allegations suggesting P is guiltyofafelony or misdemeanor involving moralturpitude(theft)

2. Allegations of a character trait or matter of conduct making Punfitforhis/herprofession

3. Allegations that P holds opinions or engages in conductthat iscountertofundamentalsocial/moraltenantsofthecommunity(sexual misconduct?)

4. Allegations ofphysicalormentaltraits that would induce others nottoassociatew/P(AIDS)

(Ask would 19thC person fall into this category) Hermeneutic Devices

A. Literal meaningB. Total Literary Context *negates defamation ***Look At Before and After

convo to ascertain**

Rest of the article explains what the original statement meant and its nolonger defamatory in nature

TO measure damages:C. General Social Context- EveryoneD. Subgroup or Subculture of recipient group context Just Roman Catholics!!

Def statement could be considered Def by the recipient group Examples:


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o Patrick is a child molester p 1A What if he walked into a bar with a very young gf? B NOT defamation, D not

trying to defame just statemento I saw Priest eating having steak during lent. 2C (To NON RC P may be viewed as

hypocrite) / D

o I saw eating veal at commanders palace- PETA director! 2C/D..just a PETA supporter?!...4Do Newspaper headline: RC priest Adams marries Reynolds daughter

Literal Meaning could be def in nature, but under Total Literary Context, itsclear that he was just marrying a couple. Negates Defamation

Cases go both ways p some say its still def if the headline was trying to betitillating

If the headline and text are separate, cts are more likely to say that people aremore likely to take the headline literally and its def in nature

Also, (D) subgroup IMP..if P is Episcopalian priest= defamation doesntreally matter!

GROUP DEFAMATION- ___Jews suck at life! Small Group (


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Literary, artistic, culinary reviews (fair comment) To wife OR Interested Party??? Moral or Social Duty..uhh Not Really!

P: CL Malice Matter of Fact???(P:D making communication with spite and illwill!!!)negates Qualified Privilege

2

nd

type of defamationIF D intentionally or fails to remove defamatory remarks (given reasonable time) liablefor continuing publication even if D didnt put up in first place(Tavern liable for Call 4146273013 for a good time!!!!)

SOL???Single Publication Rule- Although publication reaches thousands one publication =one COARationale- limit flooding of court, allows P to bring all claims in one suit(P: BUT sites can be altered at any time, (internet) reaches new audience each hit retriggeringSOL, location of article important!

MuzikowskiD making negative Portrayal of PGR: MeteorScences IF statement (or meaning of statement) capable of innocent and defamatory

interpretation, innocent prevailsGR: P MUST show defamationperse(so harmful to P rep damages are presumed) orperquod(require P show extrinsic evidence and state damages to show defamatory)P: No innocent interpretation. Noone could reasonably think movie NOT about me 1C, 2C, )D: Movie capable of innocent (about someone else) and defamatory interpretationGR:D: Just a statement of opinion, not applying P did anything illegal, already publiclypublicized and actually endorsing P behavior = NO Defamation!

Status of P p Public Figure, private figure, public official ***SOLs for defamation are short (1 yr. in many states)

B. LIBEL ANDSLANDER, SPECIAL DAMAGESAsk:

1. Libel OR Slander1. Libel: Permanent, noperseGR: Its not what the writer intends (to injure) but

how statement is understood (Vosberg approach)2. RST (2nd) labels broadcasting defamatory matter on radio or TV as libel3. Slander: PerSe, PerQuod? SpecialDamages?

Libel: Generally refers to written comms and other comms in tangible form Ds statement embedded in some permanent form (i.e. book or picture)

1. B/c ofpermanence, libel was a more dangerous form of misconduct and thereforeactionable w/operse proof of damages

2. Others should reasonably think to be regarding P (defamation)3. Its not what the writer intends (to injure) but how statement is understood

Slander: False spoken words and also gestures commonly understood as a sub for spokenwords the concept is that it doesnt have a lot of permanency


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4. Generally actionable only with proof ofspecial damages (i.e. lost businessarrangement)

5. Exceptions: Slander per se [pecuniary damages need not be shown]

y Serious criminal misconduct, moral turpitudey Traits or conduct not consonant w/ Ps business or professiony Serious sexual misconduct (used to be imputation of unchasitity)y Loathsome disease

If the conduct fits in one of these categories, damages are presumed and youdont have to prove them

If the slanderous conduct does not fit into 1 of the 4, special damages(Slander perquod- prove direct pecuniary damages) must be proven (actualdiminution in reputation , financial, but can include social relationships ordoctor bills)

If conduct falls into 1 of these categories, there can be general damages for:1) Injury to reputation2) Loss of business3) Wounded feelings and bodily suffering resulting therefrom

Hypo: D tells R that P, a clerk-typist does not pay her bills. Does P have a slander actionagainst D in the absence of special (pecuniary) damages? Probably not, no. unless taxes RST(2nd) labels broadcasting defamatory matter on radio or TV as libel

Hypo: D tells R that P, a retail store owner, does not pay her bills. Probably yes in this

casegoing against merchant Hypo: D tells R that P has just return from Hong Kong and is experiencing symptoms of

SARS. Yesfalls in category of slander per se

Hardball case: Little league coach sues for movie based loosely on his life b/c it showshim in a bad light. p Whipple would have done a statistical analogy: 85% represents me andno one else, 15% is the new bad stuff>> enough of a factual issue to go to jury.

OLD CASES of def: strict liability even if you didnt mean to hurt anyone. If harm dome,then you are liable.

NEW CASES: Not really SL:publication element has to be either intentional or Neg innature.If thief steals a safe that had defamatory note, there is no liability.

D. GENERAL DAMAGES, OTHER REMEDIES, TRUTH Def and Damages

1. Slander perquad req proof of direct pecuniary damages2. Slander per se and all libel [in most jurisdiction] may be based on gen reputationaldamages w/o specific direct pecuniary harm. General damages include:

Diminution in reputation in community or sub-community Diminution in self-esteem

Other Remediesa. InjunctionspVery rare to get pre-publication injunctions b/c of 1st Amendment

reasons


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b. D: RetractionpMostly statutory; Allows media that made mistake to retractmistake; doesnt typically completely exculpate defamation but instead mitigatesdamages and generally speaking theres no punitive damages

c. Reply Statutes pAllowed someone who thought they were being defamed to haveguaranteed space in the newspaper/TV to give their side

Theyve been held unconstitutional P: Injurious Falsehood (NOT Defamation Per Se)

Slander of title (D: P doesnt really own property!) Product disparagement (P cant sell apples bc D broadcast they kill kids!)

OLD RULE (CL defamation); Truth was a defense for D. NOW Prima Facie: P have to prove falsity. P has that burden D: Qualified Privilege: There was a fair and accurate summary, dont have to reproduce

exact facts P:CL malice! (ill will spite)

Injurious Falsehood IIo False communicationo About Ps conduct, business, propertyo Causingo Pecuniary damage.

NON-CONSTITUTIONAL PRIVILEGES Common Qualified/Conditional Privilege

oCredit checks

o Consento Employee recommendationsp Although qualified privilege exists, most employers

will not give recommendations

o Self-defensive statements**Qualified privilege may be negated if theres CL malice (ill-will/spite in itspublication)

Watt v Longsdon pEmployee is sleeping w/ maid and having orgies (letter one);Employer: follow-up on this, bribe if need be (letter 2); Employer told wife (letter 3).

o Gonzaga case: Intra corporate communicationQualified privilege; Privilege can benegated by common law malice: ill will/spite or by going beyond the scope

oWhipple: in the advent of A

IDS and unde

rTa

rasoff wouldnt you have a duty to wa

rn

o What you have to evaluate is whether publication was motivated by ill will/spite or,on the other hand, genuine business or moral interests

Scope of Absolute Privilege (very limited)o Judges in the course of official businesso Lawyers for conduct preliminary to and in the course of judicial proceedingso Parties to judicial proceedingso Conflict is in determining scope of judicial proceeding


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Cts have not allowed an exception for sham litigation Has been upheld for administrative proceedings treated as quasi-judicial For bodies that look more like political flora, its usually a conditional

privilege (i.e. president of a Ts association

o Administrative Tribunals p Likely privileged if it resembles a courtroom (rules ofprocedure, witnesses sworn in, etc.)

Kennedy v Cannon: Black man on trial for raping white lady; Black attorney: D admits to sexbut she consented; Attorney: absolute privilege to defend my client.

o Whipple: AP are limited > If part of judicial process in courtroom. Here, defense ofclient could be a qualified privilege (divergence of court opinion)

Brown v WilliamspFair Summary of an official Report (Qualified privilege)o Dont have to give the whole story, but cant outrageously slant the summary (i.e.

give the wrong impression)o Applies to reports of legislative, judicial, and administrative proceedings, as well as

quasi-public bodies Criticism critic reviews: fair comment as a qualified privilege. Opinions are fair game.

However if it says material misstate of fact, then no privilege. Must introduce evidence that itwas not spiteful, malicious, good faith does mitigate damages.

F. CONSTITUTIONAL PRIVILEGES PUBLIC OFFICIALS AND FIGURES 1st Amendments: Newspapers!! Public officials and general public officials: New YorkStandards- CTs want free flow of

speech1. In addition to CL elements P MUSTnow also prove both (1) falsity and (2) actual

malice IFFFF D is a mass media

2. Actual malice is defined as publishing a known falsehood or reckless disregard forthe truth

3.

Quantum of proofalso increased to (3) clear and convincing evidence (not justpreponderance of evidence)

P: Prima Facie forCon Priv

New York Times standard Actual Malice (known falsehood or reckless disregard for the truth by D) Burden of Proof: clear and convincing..so heightened standard Remember Libel: Its not what the writer intends (to injure) but how statement is understood THO P MUST ALSO PROVE FALSITY!! 1. Status of P

A.

Public Official (Previous/Current/Potential elected officials, NOT public employees)B. Public Figure (GAGA, UGA coach, Army general)1. General

50% or more of population knows who the figure is2. Limited (Ciolino!) More CL standard

Less then 50%, say 10, know of the individualC. Private Figure (Local Lawyer- NOT10% or anything!)More CL standard


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y Have to prove Negligence (more vulnerable than other 2, less rebuttalpower) + Falsity AND Fault Philadephia

y BUT for Punitive Damages (hurt feelings)have to prove New Yorkstandards (falsity +actual malice+ clear and convincing!)

2. Nature ofCommsA. Matter ofGeneral public interest (P involved in public duties?)B. Specialized Interest (i.e. cat breeder)C. Essentially private in nature

3. Nexus b/n P and particular communicationA. Direct nexus P status + occupation and D communication (Colloquim) OR else just

negligence. ONLY NECESSARY IF PUBLIC OFFICIAL/ GEN PUBLIC FIGURE!

B.No direct nexus 4. Status of D

A. Mass media large (is D a mass media outlet?)B. Mass media small/mediumC. Mass media specializedD.

Private Individual

G. CONSTITUTIONAL PRIVILEGES PRIVATE PARTIES**In Essence, newspaper are given a pat on the back (free flow of speech) and there

IS a heightened PF standard for P to have to prove**

Has Defamation been totally constitutionalized? NO not if Private P v Private D

Private figures and Topics ofGen Public Concern1.

In

Gerts, the ct est a min degree of fault for cases involving private figures and topicsof general public concern ofordinary neg

2. States are free to adopt a higher degree of fault standard, BUT may not impose SL fordef involving matters of general public concern

Gertzv. RobertWelch inc.pAttorney sues paper for communist accusation1. For private figures in a public setting, NY Times standard does not apply, only a

negligent standard2. Req on the neg standard is that some damages are pecuniary linked. To get punitive,

it must be est. by reckless or intentional Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.

o If something is of private concern only and theres a private P, then maybe apply CLdefamation to statements b/c theres no media/constitutional issue

o D issued a credit report on P to several of its customers that stated that P had filed forvoluntary bankruptcy.

Philly newspaperv. Heppso Private individual and matter of public concern (here against a large media D)p req.

constitutionally that truth become part of the PF case for defamationpP required toprove falsity (+ fault)

o We are requiring P prove fault underGertz, so lets add fault too


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Def vs injurious falsehoodo Although first cousins, def and IF are separate tortso Product disparagement or trade libel is a sub-category of injurious falsehoodo While def deals w/the reputation of the individual or corp., IF involves disparaging

remarks concerning the Ps business, personal, or real propertyo

Contrary to CL def, falsehood is an element of prima facie case of IJ

VIII. INVASION OF PRIVACY IPF

Invasion of Privacy1. Most consider this just a gen category that really reps 4 separate but closely related

torts Intrusion upon seclusion Public disclosure of embarrassing private facts False Light Commercial appropriation of name or likeness

2.

Problem w/ invasion of privacy as a tort today: in modern society, peopleintentionally put themselves into the stream of media; when tort developed, peopletried to stay out of media.

A. INTRUSION UPON SECLUSION

Intrusion upon seclusionp concept is that your .. Inclusion- zone of privacy has been invaded, highly offensive to RPP? and therefore, it doesnt include a 3d party as a necessary outlet

(oftentimes, it does). Normally, $ damages will do the remedy but unlike def, theres the possibility of injunctive relief

1. Elements1. Intentional2. (Unreasonable) Intrusion3. Upon the seclusion or private affairs ofP Publicity (>20)4. Highly offensive5. To a reasonable person

o Doesnt need a 3d partyD: They already know about private life

Ct: harassing (phone calls) tailing car= OK wireless eavesdropping= NOT OK

In most cases Ct insulate mass mediaD access email? = OK (under D control)

B. PUBLIC DISCLOSURE OF PRIVATE FACTS

Public disclosure of embarrassing fact (accepted by most jurisdictions!)1. True Facts2. Must be Private Facts/ Concern3. Publicity (>20) Publication NOT enough (just 3P)4. More newsworthy = more balance ?5. Must be private facts! NO concern to public!p this element is generally the

problematic element b/c changes w/ societal changes.


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6. P: Schaudenfrauden= P gets pleasure out of the misfortune of another= YESSituations: Person has bad past and tries to move on but someone publically discloses the badpast courts much more sympathetic to this situation than the opposite.

7. Would be highly offensive to RPP p D knows that P wants to remain private orhypersensitivity? = NO hypersensitivity standard (has to affect sig #)

8.Past offensive facts?= NO unless relevant to somethingcurrent9. Sexual activities? NO ct less sympathetic ct says CANT COMPARTMENTALIZE

CURRENT LIFESTYLE (esp ifwith current electronic trends)10.P: book published, should use different names, CT: NAW just use CL defamationo D:Defenses: implied consent, info already public record, info is of public

concern

C. FALSE LIGHT, ETC pWTF? WHIPPLES AN ASSHOLE

False light (Play written in false light about P) That places the other before the public in falselight Least accepted of IP Torts

1. Publicity (>20)2. Offensive to RPP3. P prove Actual Malice4. P should use if:5. Colloquim (OF or concerning) is weak, Innuendo (Defamatory Meaning) is weak!

Commercial appropriation of name or likeness1. Generally using picture, image, or name of person for commercial purpose and

playing off of that in order to gain money.2. Most highly developed and recognized of the privacy torts3. Theory behind the tort is more akin to IP law than traditional torts

whipple torts ii fall '10 outline

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