class notes torts

8/2/2019 Class Notes Torts

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I.Vicarious Liability1. Liability based on relationship between the parties (employer has some financial stake and itsappropriate to hold them liable).2. Enterprise benefit- theory of justification for respondeat superior where the employer benefitsfrom the employees act.3. An employer cannotinsulate himself from liability by using safety rules.4. If VL, than no negligence (2 separate claims).

a. Respondeat Superior5. Under the doctrine of respondeat superior, an employer is liable for the injuries its employeescause to others in the course of their work (w/in the scope of their employment), whether or not theemployer had control over the employee.6. Exception (Going-and-coming Rule)

a) Shields an employer from liability for an employees action during his/her commute toand from work for any purely personal reasons.b) Scope of rule

(1) Foreseeability test (v. negligence)=employees conduct that is neither startling norsuprising (not so unusual or startling) that it would seem unfair to include the lossresulting from it among other costs of the employers business.(2) Exception to Going-and-Coming rule

(a) Where an employees job contributes to an accident, and such accident isforeseeable as a result of the circumstances, any resulting losses can fairly be

attributable to the employers business.(i) Bussard v. Minimed (Going and coming rule not applicable inthis case b/c the consequences of the exposure in this case canforeseeably lead to an accident, and because the employees jobcontributed to the accident, such losses can be fairly attributable toemployers business.)

7. An employer is only liable for injuries caused by an employee acting within the scope of hisemployment.

a) To be within the scope of employment, an employee must be performing actions forwhich he was employed or anything incidental to his employment.

(1) Slight Deviation Rulefrolic or detour?(a) Frolic (substantial deviation; abandonment of employers business whilein pursuit of employees own person business)(b) Detour (slight deviation from employers own business for employeesown reasons)

(i) If slight deviation than it satisfies the foreseeability test andemployer is still liable under VL b/c the conduct is not so startling orsurprising (i.e. its foreseeable) that it would seem fair to include thelosses as a cost of doing business.

(c) Factors(i) Employees intent(ii) Nature, time, and place of deviation(iii) The time consumed in the deviation(iv) The work for which the employee was hired(v) Incidental acts reasonably expected by the employer(vi) The freedom allowed to the employee in performing his jobresponsibilities

B. Independent Contractor1. One who arranges for work to be done by an independent contractor is not vicariously liable forthe contractors torts.

a) Independent contractor: one who engaged to perform a certain service for anotheraccording to his own methods and manner, free from control and direction of his employer in allmatters connected with the performance of the service except as to the result thereof


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(1) Rationale: the IC does the work on his own time, in his own way and under noones directions but his own, so that the one who selected the contractor has no control orrights of control over the matter in which it is done.

b) Test for differentiating between an independent contractor and an employee is the right tocontrol the physical details of the work.

(1) (Murrell v. Goertz--Publishing company did not pay him (always think money),he only received his money from Westbrook. And the publishing company further had noinput into the decision to hire Goertz and had no knowledge of his employment)

2. Exceptions for independent contractorsa) Non-delegable duty

(1) Third party may hold the employer directly liable because his duty of care wasnon-delegable to an independent contractor. (Whether a duty is delegable is a matter ofpublic policy).(2) Restatement

(a) One who carries on an activity that presents a grave risk of serious bodilyharm or death may not delegate his duty of care to an IC.(b) One who is under a duty by statute to provide safeguards for the safety ofothers may not delegate his duty of care to an IC.

b) Negligence in the selection of the contractor(1) If a company is negligent in selecting the contractor, the company will be heldliable for its own negligence, which has combined with that of the contract. (note-this is

ordinary concurrent negligence, not VL).c) Reasonable reliance (apparent authority)

(1) Allows an injured party who reasonably relies on the representation to hold theparty who made the misrepresentation liable.

d) Inherently/intrinsically dangerous activity(1) When the activity involves apeculiar risk of harm that calls for more thanordinary precaution.

(a) Collateral to risk: when the ICs negligence is deemed collateral to theinherent risk of the activity (i.e. not recognizable in advance as particularly likelyto occur or as calling for special precaution), the exception for inherentlydangerous activities does not apply.

(2) Examples (under these circumstances, those injured by the contractorsnegligence would be able to recover through VL from the person who hired thecontractor).

(a) IC engaged to transport giant logs, six feet in diameter over the highway,where an obvious special danger arises unless the logs are properly anchored andsecured.(b) To mark traffic lines on a busy street, where special precautions arerequired to keep traffic proceeding in another lane.(c) To fly a small private plane to a meeting in western Colorado.(d) Provide security to a manufacturing plant with armed guards.(e) To transport prisoners from Florida to Montana in a van.(f) To sell ice cream to small children from an ice cream vending truck on abusy street.

(3)e) Illegal activities

(1) One who contracts for performance of an illegal act is vicariously liable for anydamage even if the agent is an IC.

C. Joint Enterprise1. Developed to impose vicarious liability on one who is engaged in the same activity with anothercommitting a tortious act.2. Each member of the joint enterprise is held to be the agent of the other, each may therefore beheld liable for the acts of the other.3. Elements


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a) Agreement among the members of the group (express/implied)b) Common purposec) A community of pecuniary interestd) Equal right of control

4. Joint ownership withut more usually is not enough to impose vicarious liability; there must besome business purpose involved. Popejoy v. Steinle (limited the doctrine of joint enterprise to thosehaving a business or pecuniary interest to avoid the imposition of non-commercial situations which aremore often the matters of friendly or family cooperation and accommodation).

D. Bailments1. Family car doctrine

a) The family car doctrine places vicarious liability on the owner of a vehicle for negligentoperation by a person using the vehicle with the express or implied consent of the owner for

purposes of the business or pleasure of the owners family, and the head of householdsownership of the vehicle strongly favors application of the doctrine.b) Parents must either own or furnish the car to the kids. (look to purpose)c) Negligent entrustment- the act of leaving a dangerous article (i.e. a gun or car) with aperson who the lender knows, or should know, is likely to use it in an unreasonably risky manner.

(1) The DF is themselves negligent in some way. (VL=no negligence on the part ofthe Df).

E. Imputed Contributory Negligence1. a drivers negligence will not be imputed to a passenger unless the relationship between them issuch that the passenger would be V.L. as a defendant for the drivers negligence.2. A passenger will only be V.L. for the negligence of the driver when there is either a master-servant relationship or a finding of joint enterprise.3. Smalich v. Westfall (Contributory negligence will not be imputed to the owner-passenger of acar, when the owner-passenger is the plaintiff).


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II.DamagesA. Genral Categories

1. Compensatorya. Purpose: restore the Pl to pre-injury status as far as possible; compensate Pl for injuries

2. Punitivea. Quasi-crime (clear and convincing evidence)

a. Purpose: punish the Df, make an example of the Df, and deter similar tortuous conduct.b. Compensatory damage required punitive damages.c. A windfall to the plaintiff, not a right (the jury has complete discretion to refrain from awarding them

in any case.)d. Factors

i. The reprehensibility of the defendants conduct,ii. The disparity between the actual harm caused and the amount of the punitive damages

awarded, andiii. The difference between the punitives awarded and the civil penalties imposed under state law

(State Farm Mutual Auto v. Campbell).e. State legislatures have broad discretion in regulating punitive damage awards, states can eliminate

them entirely so they choose.f. A percentage of punitive damages award may lawfully go to the state.

3. Nominala. Purpose: vindicate rights, makes the judgment available as a matter of record in order to prevent

the Df from acquiring prescriptive rights, and carry a part of the costs of the action, the amount ofthe award is trivial and unimportant

B. Personal Injuries1. Special Damages (economic)

a. Medical expensesi. Past medical expenses

1) Proven at trial by submitting bills or through testimony.ii. Future medical expenses

2) Must be proven by expert testimony establishing the anticipated need andpredicted cost.

iii. Recovery for increased risk of developing a serious condition in the future may beallowed if the Pl can prove actualexposure.

iv. Sometimes Courts allow Pl to recover for medical monitoring for toxic torts.b. Lost wages (Past and future)c. Loss or impairment of future earning capacity

i. If the injury is one from which the Pl does not recover and reenter the workforce.ii. Jury must first be persuaded that the injury is permanent. Than Pl must prove by expert

testimony what the Pl would have earned during the Pls lifetime.iii. Even a very young Pl who would not be expected to engaged in employment until the

distant future may recover for the loss of future earnings.d. Reduction to present value

i. Damages awarded in lump sum to the victim.ii. The award must account for the investment value of advanced payments and the

countervailing likelihood of inflation.

iii. Compensation is not subject to the federal income tax.2. General Damages (non-economic)

a. Pain and sufferingb. Emotional distress from legal malpracticec. Mental anguishd. Loss of function or appearancee. Litigation induced stressf. Loss of enjoyment of life (hedonic damages)

3. Estimating general damagesa. Measure loss on a per-diem basis and multiply by the number of days.


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b. Courts do not require a reduction of amount to present value.c. Reduced life expectancyusually not given.d. Pl must have been conscious/aware of the loss in order to recover. (proven by expert testimony).e. If physical injury, Jury must award damages for pain and suffering.

4. Judicial control of amounts recovereda. A trial court judge (through motion for a new trial) may disturb thejurys finding on the amount

of damages only if the verdict is so excessive or so inadequate as to demonstrate that the juryacted contrary to the law-in passion or prejudice rather than according to their instructions.

i. Test for disturbing a jury award1) Maximum recovery rule: maximum amount which the jury could reasonably

find, and whether that amount shocks the conscience.2) Grossly excessive or inadequate, inordinate or outrageous.

b. If Judge finds jurys award to be inadequate, than judge can set aside the verdict andi. Grant a new trial on both liability and damages

ii. Grant a new trial only on the damages aspect (let liability verdict stand)c. Remittitur is a ruling by a judge lowering the amount of damages awarded.d. Additur is a ruling by a judge increasing the amount of damages.

5. Collateral source rulea. If an injured Pl receives compensation from a source, independent of the Df, the payment should

not be deducted from the damages he would receive from the Df.b. Gratuitous or discounted medical services are a collateral source not to be considered in assessing

the damages. (Montgomery Ward v. Anderson)c. Issue of double recovery.d. Some states have modified the common law rule to reduce amount of recovery by the amount of

the collateral source or by allowing information concerning the collateral source to be admittedinto evidence without indicating what the jury is to do with that information.

6. Loss of consortiuma. Claim by a spouse of an injured person for loss of conjugal relations, companionship, society,

household services etc.b. Claim is derivative of the injured personsc. Spousal injuries are a necessary condition for any claims of loss of consortium.

7. Plaintiffs have a responsibility to mitigate damages.a. Personal injury victims may not be allowed recover damages that they could have avoided by

reasonable conduct on their part after a legal wrong has been committed by defendant.b. Defendant must show that the plaintiffs conduct in failing to mitigate damages was unreasonable

(question for the jury).i. Whether, under the circumstances of the particular case, an ordinarily prudent person

would do so (i.e. the duty to exercise reasonable care under the circumstances).C. Physical Harm to Property


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III.Wrongful Death & Survival (2 separate c/a)a. Wrongful Death (Beneficiaries)

i. Created by the death of an individual due to the tortious conduct of another, brought by one of thebeneficiaries on behalf of all of them.

ii. Theory of liability-must have some willful, wanton or reckless conduct w/ the negligence.iii. Damage claims for the beneficiaries (b/c they lost them)

1. Loss of support ($$)2. Loss of services3. Loss of society4. Funeral expenses

iv. Beneficiary defined by statute.b. Survival Statutes (Estate)

i. Pre-death damages (decedents damages claims before the decedents death). Suit brought by theestate of the decedent-heirs under the will or intestacy statutes)

ii. Damages1. Personal property2. Loss of wages3. Pain and suffering (decedent must have been conscious)4. Medical bills

iii. Comparative fault applied in survival actions if decedent is partly liable.iv. Recovery by the estate is subject to creditors first (not the case in wrongful death statute).v. Problems of double recovery.

vi. Punitive damagesdepends on who dies regarding the ability to recover.c. Wrongful Birth (Claim by parents)

i. Denying parents the opportunity to abort for eugenic reasons (blindness, deafness..)1. Doctor negligent in not informing you that your child had a defect, and you were unable

to chose.ii. Typically actions against physicians (medical malpractice)

1. Must have been a test available.iii. Damages

1. Medical bills (reasonably related to the action)-unexpected but related to the condition.iv. Policy considerations: right to life v. condoning that right by allowing for a c/a.

d. Wrongful Life (claim by child)i. Life is incommensurable

ii. Almost universally rejected.iii. Damages

1. The childs life (difficult to measure)D. Wrongful conception

iv. No post-conception claims.v. Botched sterilization

vi. Damages1. Recovery of the cost of the operation.


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B. Immunitiesi. Bright line rules; based on the defendants status

b. Interspousal Immunity Doctrinei. Spouses are not immune from liability in personal injury cases.

ii. Common law rule of spousal immunity was based on the supposed legal unity of man and wife,and no longer comport with modern realities.

iii. Limitations1. Immunity does not extend to intentional torts or auto accidents (states usually allow these

accidents).

c. Parental Immunityi. General Rule: a step-parent is shielded by parental immunity from liability for negligent

supervision of the child only if obligated to financially support a stepchild under the familysupport statute, an obligation that generally arises when a stepparent is married to the childsprimary residential parent and lives in the same household with the child.

ii. Scope of parental responsibility=that which is within parental discretion.1. ExceptionCalifornia statute imposing scope as that of a reasonable parent std.

iii. Policy considerations: protection of the child vs. non-interference with the family unit.iv. Although stepparent immunity does not exist solely by virtue of marriage to an injured childs

biological parent, because a stepparent standing in loco parentis has a common law duty tosupport and educate a child to the same extent as a biological parent, he or she is also entitled toparental immunity for negligent supervision (Zellmer v. Zellmer).

v. Limitations1. Immunity does not extend to automobile torts.

d. Charitable immunitiesi. Common law: charitable organizations were immune from tort liability.

ii. 2 theorys for charitable immunity1. Trust fund

a. Funds given to charities for charitable purposes cannot be used to pay judgments.2. Implied waiver

a. Persons who accept the benefit of the charity implicitly agree they they will notsue the charity for torts.

iii. Charitable immunity has increasingly been abrogated.1. Nongovernmental charitable institutions are liable for their own negligence and for the

negligence of its agents and employees acting within the scope of their employment.(Abernathy v. Sisters of St. Mary).

2. You can explicitly state on your funds given to the charity that the money is not to beused to satisfy judgments.

e. Employer immunitiesf. State & Local Government

i. General organization1. Sovereign Immunity: Governmentnot liable (has been abrogated by nearly every

jurisdiction).2. Waiver: liable (i.e. FTCA, OTCA)

a. Federal Torts Claims Act (FTCA): statutory exception that shields thegovernment from civil liability for claims based upon the exercise or

performance of a discretionary function or duty on the part of a federal agency oran employee of the Government, whether or not the discretion involved beabused.

b. Ministerial vs. discretionary functioni. Government not liable for torts liability if exercising a discretionary

function.1. Discretionary function=policy making decisions.2. Ministerial acts= govt conduct which implements or executes

policy decisions. (e.g. maintenance of a government building orautomobile).


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3. Consider political, economic, and social factors to helpdetermine whether discretionary or ministerial.

3. Exception to the waiver (when claims arise out of): not liable.a. e.g. Federal Govt has retained immunity for intentional torts and also strict

liability.ii. Municipal Government

1. Cities are immune from liability for the negligent failure to provide adequate policeprotection. (Riss v. NY).

a. Exception: Municipalities are not immune from liability when they voluntarilyassume a duty to provide police protection. (Delong v. Erie County, where a cityhas assumed a duty to a particular person and exposes them, without adequateprotection, to the risks which materialize into actual losses, the City is not subjectto immunity).

i. Reliance on the 911 operator + failure to continue would have beentortious not to continue (actively worked an injury). (Delong v. ErieCounty/ Riss v. NY).

2. Governmental function v. proprietary function)a. While governmental functions could be immune, proprietary functions were not.b. Courts impose liability when the city or town engaged in activity that normally

was carried out by the private sector of the economy and reserved the immunityfor traditional governmental functions like administering elections, providing a

judicial system, exercising police powers, etc.c. For the purpose of collecting revenue.. (Look to the use for which it is

collected)d. Tax-Governmental function i.e. governmental immunitye. Revenue- Proprietary function i.e. no immunity and liable to the same extent as

any other citizen Df.g. The United Statesh. Public Officers

i. Immunity protects government employees from tort liability incurred in the course of performingtheir official functions.

ii. Absolute immunity: within the scope of office and within the scope of his/her duty. (e.g. judgesand legislators)

iii. Qualified immunity: in some, it depends upon whether the harmful action was taken in goodfaith, and in others it depends on whether the official had a reasonable basis for taking the action.

iv. Official immunity is available only with respect to acts that are discretionary as opposed toministerial in nature.


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C. Owners and occupier of landi. Is the condition natural or artificial?

1. Static condition=A static condition is one that does not change and is dangerous only ifsomeone fails to see it and walks into it. If nothing obstructs the invitee's ability to see thestatic condition, the proprietor may safely assume that the invitee will see it and willrealize any associated risks.

2. Artificial condition= landowner altered their land.ii. Are the individuals threatened by the risk of harm on/off the property?

iii. What is the status of the individual who is upon the landowners property?iv. Policy issues=over burdensome on landowners.

b. Outside the Premisesi. General rule (natural conditions): no duty to protect those who are off his/her property from the

dangerous natural conditions of his/her property.1. Exception (trees): landowner has a duty to inspect for the discovery of defects in trees.

(Landlord is liable for negligence if he knows that the tree is defective and fails to takereasonable steps to avoid unreasonable risk of harm. Also, a landowner has thereasonable duty to inspect for discovery of defects in trees.)

a. Taylor v. Olson (natural condition which poses a risk to an individual who is offthe landowners premises).

ii. General Rule (artificial conditions): where there are artificial conditions on the property, theowner must exercise reasonable care to protect those who are outside of the premises.

1. Scope of duty: reasonable precautions against those risks that are inherent in the activity.2. Salevan v. Wilmington Park; a landowner who knows or should know of dangerous

conditions on his/her property must take reasonable precautions to prevent injury toothers using roadways adjacent to his/her land.

iii. Landowner owes a duty to a traveler who accidently falls into excavations on land immediatelyadjoining the highways even to those who deviate intentionally from the highway for some casualpurpose connected with travel.

1. No liability as to dangers a considerable distance from the highway.2. When the land has a deceptive appearance of being a continuation of the public way, a

duty may be imposed on the landholder to guard a trap or excavation even though thehazard is actually a considerable distance within private property. (Notes Pg. 499).

c. On the premisesi. Trespassers

1. General Rule: Landowner owes no duty of care to a trespasser unless the landowner hasnotice (actual or constructive) of the trespasser.

a. Exception (discovered trespasser): Where a land occupier actually is aware of thepresence of a trespasser and knows that the trespasser is approaching a non-evident artificial (human made) condition, the land occupier is obligated to warnthe trespasser if there is danger of serious bodily harm or death.

b. Exception (frequent trespassers on a very limited area of the land): If the landoccupier is on notice of frequent trespassing, or has reason to know of such, anobligation to warn of hidden dangers known to the land possessor and riskingserious injury or death may be imposed

c. Exception (tolerated intruder): landowners continued toleration of the trespassesamount to permission to use the land, so that the intruder becomes a licensee.

d. Exception (imperiled trespassers); duty of care owed by landlord for dangerousconditions obvious to the landowner and trapped trespassers in peril. (Notes Pg.503).

i. Sheehan v St. Paul; artificial condition (tracks), individual is on thelandowners premises, individual is a trespasser. (Obligation of therailroad to use reasonable care arises at the time of discovery of thetrespasser).

ii. Licensees (personal)


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1. Person who enters upon the property of another w/ permission but for ones own personalpurposes.

2. Owner owes the duty to:a. Warn of hidden dangers that are unknown to the licensee, but known to the

owner.b. Warn of dangerous, latent conditions on his premises that the licensee if likely to

encounter.c. Use reasonable care towards licensees that are not only discovered, but to those

whose presence might be reasonably anticipated.

d. If they had reason to know about the unsafe condition. (Restatement)iii. Invitees (business)

1. Person who enters the premises of anothers property in furtherance of that personsbusiness or economic interest.

2. Owner owes the duty to exercise reasonable care in keeping the premises reasonably safe.a. Scope of duty: owner has to reasonably inspect the premises for dangerous

conditions, and reasonably remove the conditions so as to make the premisessafe.

3. An individual, entering a place of business open to the public, need not make a purchasein order to be considered an invitee. (Campbell v. Weathers).

iv. Change of status of an individual who is on a landowners property1. One is an invitee as long as he/she stays within the scope of the invitation as well as

within the physical area of invitation.a. Pl who went to the back of the store ceased to be an invitee and became a

licensee, because he was there with the consent of the shop owner, and was therefor the furtherance of his own purpose.

v. Persons outside the established categories1. Landowners have a duty to exercise a higher standard of care toward children. (Furthers

societies interest in protecting children from serious injury.)2. Children (trespassers)

a. Attractive Nuisance Doctrinei. When a landlord sets before young children a temptation that he has

reason to believe will lead them into danger, he must use ordinary care toprotect them from harm.

1. Must be a conditions dangerous to children outside the premises2. Child must be lured or enticed onto the premises

b. Artificial Conditions Highly Dangerous to Trespassing Children (Restat.)i. A possessor of land is subject to liability for physical harm to children

trespassing thereon caused by an artificial condition upon the land if:1. The place where the condition exists is one upon which the

possessor knows or has reason to know that children are likely totrespass, and

2. The condition is one of which the possessor knows or has reasonto know and which he realizes or should realize will involve anunreasonable risk of death or serious bodily harm to suchchildren, and

3. The children because of their youth do not discover the conditionor realize the risk involved in intermeddling with it or in comingwithin the area made dangerous by it, and

4. The utility to the possessor of maintaining the condition and theburden of eliminating the danger are slight as compared w/ therisk of children involved, and

5. The possessor fails to exercise reasonable care to eliminatedanger or otherwise to protect the children.

3. Children (licensees)


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a. Landlord has an obligation to inform a child licensee about a risk when therewould be no duty with regard to an adult. (if child is very young, a court maydeem a mere warning as insufficient protection).

4. Persons privileged to enter irrespective of landowners consenta. Public Employees

i. Sanitary purpose (sanitary & safety inspectors)--invitees1. Public employees entering for a purpose connected w/

defendants business, and are essential to it, since w/out them itcould not legally be carried on.

ii. Community purpose (firemen & policemen)licensees1. The frequency of sanitary & safety inspectors visits are far more

than those of police/firemen. Therefore, you can anticipate thesanitary/safety inspectors while not so much w/ thefiremen/police.

2. If defendant knows they are present, he must warn them ofknown dangers which they are unlikely to discover.

5. Rejection or merging of categoriesa. Where the occupier of land is aware of a concealed condition involving in the

absence of precautions an unreasonable risk of harm to those coming in contactwith it and is aware that a person on the premises is about to come in contactwith it, the trier of fact can reasonably conclude that a failure to warn or to repair

the condition constitutes negligence.b. Minority of jurisdictions have rejected the common law status approach and

replaced it w/ a general reasonable person std. (Rowland v. Christian).i. This unitary standard permits more cases to get to the jury than the

common law approach.


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IV.Strict Liability1. Liability w/out fault (D liable even though no intent or negligence on Ds part)

A. SL for Injuries Caused by Animals (diff. btw animals=control)a. Trespassing Animals

i. The owner of livestock or animals is liable for property damage caused by them if they trespasson anothers land. This liability is strict even though the owner exercises utmost care to preventthe animals from escaping, he is liable if they do escape and trespass.

b. Non-trespass liabilityi. Wild Animals=A possessor of a wild animal is subject to liability to another for harm that results

from a dangerous propensity that is characteristic of wild animals of that particular class.1. SL for wild animals reduced to possession or imputes non-native animal.2. Wild animals you bring under your control=SL.3. Many jurisdictions have been reluctant to extend SL this far, and opt instead for a

negligence standard.a. If wild animal injures a person at a place classified as a zoo or public display,

than Courts may limit the standard of SL or even to just plain negligence b/c youare serving the public good.

ii. Domestic Animals=Keeper of domestic animals are liable for injury caused by the animal onlywhere the possessor knew or should have known of the animals vicious disposition.

1. A possessor w/ actual or constructive knowledge of the animals vicious tendencies willbe SL for harm, and no measure of care in its keeping will excuse him.

2. Pl must prove dangerous propensity.B. SL for Abnormally Dangerous Activities

a. In such an action, the Pl must show that as to the activity:i. The risk of great harm should defendants safety efforts fail;

ii. The virtual impossibility of defendants elimination of the risk of harm even w/ the upmost care;and

iii. A resultant harm to Pl caused by the very hazards the risk of which led to describing thedefendants conduct as abnormally dangerous in the first instance.

b. General Rule (R. 219)=One who carries on an abnormally dangerous activity is subject to liability forharm to the person, land, or chattels of another resulting from the activity, although he has exercised theutmost care to prevent the harm.

i. In determining whether an activity is abnormally dangerous, the following factors are to beconsidered (R. 520):

1. High degree of risk of some harm to others; Existence of a high degree of risk of harm topersons or property of others;

2. Harm that results is likely to be serious; Likelihood that the harm that results from it willbe great (magnitude of that harm);

3. Risk cannot be eliminated by the exercise of reasonable care; Inability to eliminate therisk by the exercise of reasonable care (inevitability of some risk irrespective ofprecautionary measures that might be taken);

4. The activity is not common; Extent to which the activity is not a matter of common usage(ordinary nature of the activity in the community in which it is found);

a. The activity is not appropriate for the place where it is carried on; Commonusage=natural v. unnatural use.

5. The danger outweighs the activitys value to the community; Extent to which its value tothe community is outweighed y its dangerous attributes. (The activitys value to thecommunity in comparison to the risk of harm created by its presence).

ii. Liability will not lie unless Pl makes the additional showing that the risk involved cannot beeliminated through Dfs exercise of reasonable care.

iii. The activity must have been in the control of the defendant at the time of plaintiff's injury.iv. Limitations

1. Scope of Risk: Type of harm contemplated--limits the applicability of the strict liabilityremedy to injuries involving the kind of harm, the possibility of which makes theactivity abnormally dangerous.


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a. Limiting proviso: this SL is limited to the kind of harm, the possibility of whichmakes the activity abnormally dangerous. (Was the risk of causing harm of thekind here experienced the kind of risk that has been considered to make theactivity ultra hazardous?if no, than SL does not apply).

2. Abnormally sensitive activity by Plaintiff: Foster v. Preston Mill Co. (blasting causesMink to eat her kittens, but no liability.)

c. Defensesi. Contributory negligence no defense by D. (usually will not bar P from her strict liability

recovery.)

ii. Assumption of the risk1. Pl knowingly and voluntarily assumed the risk (Knowledge of the risk and voluntarily

encountered risk)C. SL for Workers Compensation

a. General Rule: Workers compensation statutes compensate the employee foron-the-job injuries withoutregard either to the employers fault of the employees.

i. Employer is liable for on-the-job injuries even though these occur completely without fault on thepart of the employer.

ii. Scope ofcoverage1. Even if employee is contributory negligent, the statutory benefits are not reduced at all.2. Statute covers all injuries arising out of and in the course of employment. Thus, activities

which are purely personal (i.e. injuries suffered while employee is driving to or from

work) are typically not covered by statute.3. Exclusive remedy: the workers comp statute is the employees sole remedy against the

employer. The employee gives up his right to sue in tort, ad does not recover anything forpain and suffering.


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V.Product LiabilityA. Development of Theories of Recovery

1. Negligencei. A manufacturer of any product capable of serious harm if negligently made owes a duty of care in the

design, inspection, and fabrication of the product; a duty owed not only to the immediate purchaserbut to all persons who might foreseeably come into contact with the product.(MacPherson v. Buick).

1. Duty of inspection to allforeseeable plaintiffs. The fact that Pl was a remote purchaser, oreven a bystander, does not prevent them from a negligence recovery against a negligentmanufacturer.

2. Warrantyi. Express Warranties

1. The breach of an express warranty is actionable in tort, even absent privity of contract, if apurchaser of ordinary experience and reasonable prudence could not have discovered thedefect.

2. Express warranties may arise via: (1) a statement of fact or promise about the goods; (2) adescription of the goods (e.g. shatterproof glass); and (3) the use of a sample ofmodel (e.g.Shopsmith)

3. Innocent Misrepresentation Rule=One, who engaged in the business of selling chattels, whoby advertising, labels, or otherwise, makes to the public a misrepresentation of a material fact

concerning the character or quality of the chattel sold by him is subject to liability forphysical harm to a consumer of the chattel caused by justifiable reliance upon themisrepresentation, even though (a) it is not made fraudulently or negligently, and (b) theconsumer has not bought the chattel from or entered into any contract relation with the seller.

a. Rationale=Df has the control.b. Scope of liability: expressions must be sufficiently specific to subject them to SL

claims.ii. Implied Warranties

1. Implied warranty of merchantability (seller must be a merchant)a. Warranty imposed on all sales transactions that the thing sold is reasonably fit for the

general purpose for which it was manufactured and sold.i. Requirements:

1. The seller is the merchant of such goods, and2. The buyer uses the goods for the ordinary purposes for which such

goods are soldii. Scope of warranty: extends to all foreseeable users of the product, not merely

those in privity of contract with the seller.iii. Warranty of merchantability cannot be disclaimed for both contract and tort

purposes.b. Policy

i. Sellers are generally better suited than buyers to determine whether a productwill perform properly.

ii. Holding the seller liable for a product that is not fit for its ordinary purposeshifts the costs of nonperformance from the buyer to the seller. This

motivates the seller to ensure the product's proper performance beforeplacing it on the market.

iii. The seller is better able to absorb the costs of a product's nonperformance,usually by spreading the risk to consumers in the form of increased prices.

2. Implied warranty of fitness for a particular purpose (no merchant requirement)a. Where the seller at the time of contracting has reason to know any particular purpose

for which the goods are required and that the buyer is relying on the sellers skill orjudgment to select or furnish suitable goods, there is an implied warranty that thegoods shall be fit for such purpose.

i. Requirements


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1. Buyer must rely on the sellers skill or judgment to select or furnishsuitable goods.

2. Seller must have reason to know of the buyers purpose and that thebuyer is relying on the sellers skill or judgment. (must becommunicated to the Df).

b. Policyi. Protects the buyer

ii. Contracts of Adhesion--Unequal bargaining power between seller and buyer3. Strict Product Liability in Tort

i. A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is tobe used without inspection for defects, proves to have a defect that causes injury to a human being.(Greenman v. Yuba).

1. S.L. imposed to relieve injured consumers from problems of proof inherent in pursuingnegligence and warranty remedies.

2. S.L. seeks to shift the burden of loss on manufactures rather than on injured persons who arepowerless to protect themselves.

ii. Restatement (Second) of Torts 402A(1) One who sells any product in a defective condition unreasonably dangerous to the user or

consumer or to his property is subject to liability for physical harm thereby caused to the ultimate useror consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition inwhich it is sold. (i.e. if altered by retailer, manufacturer not liable)

(2) The rule stated in Subsection (1) applies although(a) the seller has exercised all possible care in the preparation & sale of his product, &(b) the user or consumer has not bought the product from or entered into any contractual relationship

with the seller.1. Requirements for strict liability doctrine under the Restatement (second):

a. D must be a sellerb. D must have been in the business of selling products of this typec. The product must have been sold in a defective conditiond. The product must have ben expected to, and did, reach the consumer without

substantial change in its condition; and

e. The product must have been the cause in fact, and the proximate cause of the damageto Pl.

iii. Applies to non-manufacturers who sell i.e. retailers and it doesnt matter that D used all possible carein designing and manufacturing the product.

B. Product Defects1. Restatement (3rd)

i. 1.Liability of commercial seller or distributor for harm caused by defective products: One engagedin the business of selling or otherwise distributing products who sells or distributes a defectiveproduct is subject to liability for harm caused by the defect.

ii. 2. Categories of Defect:A product is defective when, at the time of sale or distribution, it contains amanufacturing defect, a design defect, or is defective because of inadequate warning labels orinstructions.

1. Manufacturing defects---A product contains a manufacturing defects when the productdeparts form its intended design even though all possible care was exercised in thepreparation and marketing of the product. (Rest. 3d)

a. Standard of proof--Pl has to prove that the product deviated from the sellers designor form the sellers other products of the same design, not what specific conduct ofthe manufacturer led to that defect.

2. Design defects---A product is defective in design when the foreseeable risks of harm posedby the product could have been reduced or avoided by the adoption of a reasonablealternative design and the alternative design renders the product not reasonably safe.

a. Negligence based ; risk-utility standard


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b. A verdict for the Plaintiff in a design defect case is the equivalent of thedetermination that an entire product line is defective.

3. Warnings defects/ failure to warn---A product is defective because of inadequate warnings orinstructions when the foreseeable risk of harm posed by the product could have been reducedor avoided by the provision of reasonable instructions or warnings by the seller or otherdistributor, and the omission of the instructions or warnings renders the product notreasonably safe.

a. P must prove only that the D did not adequately warn of a particular risk that wasknown or knowable in light of the generally recognized and best prevailing scientific

and medical knowledge available at the time of manufacture and distribution.b. Scope of warning=adequate to inform a consumer on whether and how to use the

product such as to call for a true choice of judgment.c. Risk of harm, foreseeability, severity, obviousness of danger.

2. Tests used to prove defecti. Risk-utility analysis

1. Comparison of the utility of the product w/ the risk of injury that it poses to the publice.g.Evaluate the relative need of the product.

a. Products that are so dangerous and of such little utility=manufacturer liable for harmthat results, even if no alternative exists.

b. When the risk of harm outweighs the utility of a particular design, then in choosingthe particular design and cost tradeoffs, the manufacturer exposed the consumer to

greater risk of danger than he should have.c. A manufacturer may have a duty to make products pursuant to a safer design even if

the custom of the industry is not to use that alternative.2. Factors

a. The usefulness and desirability of the productits utility to the user and to the publicas a whole.

b. The safety aspects of the productthe likelihood that it will cause injury, and theprobable seriousness of the injury.

c. The availability of a substitute product that could meet the same need and not be asunsafereasonable alternative (Ps burden)

d. The manufacturers ability to eliminate the unsafe character of the product withoutimpairing its usefulness or making it too expensive to maintain its utility.

e. The users ability to avoid danger by the exercise of care in the use of the product.f. The users anticipated awareness of the dangers inherent in the product and their

avoidability, because of general public knowledge of the obvious condition of theproduct, or the existence of suitable warnings or instructions.

g. The feasibility on the part of the manufacturer, of spreading the loss by setting theprice of the product or carrying liability insurance.

h. Additional factorsi. State-of-the-art defense (D burden)

1. The existing level of technological expertise and scientificknowledge relevant to a particular industry at the time a product isdesigned.

2. Standard of care=what is known (actual or constructive knowledge)in the scientific community.

3. Negligence standard of care=foreseeability, reasonable care.ii. Open and obvious danger

1. Obviousness of the danger is not a complete bar to recovery, but maybe considered.

a. Obvious danger + product of high utility/need=ii. Comparison of the risk and utility of the product at the time of trial

iii. Consumer expectations test (what a reasonable consumer would expect)1. The failure of a product to preform safely may be viewed as a violation of the reasonable

expectations of a consumer.


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iv. Risk-utility and consumer expectations testC. ProofD. Defenses

1. Plaintiffs Conduct2. Preemption and Other Governmental Actions/

i. Has the FDA established specific federal requirements that apply to the a particular device?ii. Is their a particular state requirement w/ respect to the medical device?

iii. Does the state claim create requirements that are different from, or in addition to, the specific federalrequirements?

Strict Products Liability(Emanuel Crunch time supplement)

Definition to use: A seller of a product is liable without fault for personal injuries (or other physical harm) causedby the product if the product is sold in a defective condition.

Requirements:o D must be a sellero D must have been in the business of selling products of this typeo The product must have been sold in a defective conditiono The product must have been expected to, and did, reach the consumer without substantial change in its

conditiono The product must have been the cause in fact, and the proximate cause of the damage to P.

Things to remembero Care irrelevant: it doesnt matter that the manufacturer used all possible care in designing and

manufacturing the products.o Applies to non-manufacturers who sell, most notably retailers.

Was the product in fact defective?o Manufacturing defect= A product contains a manufacturing defects when the product departs form its

intended design even though all possible care was exercised in the preparation and marketing of theproduct. (Rest. 3d)

o Design defect= A product is defective in design when the foreseeable risks of harm posed by the productcould have been reduced or avoided by the adoption of a reasonable alternative design and the alternativedesign renders the product not reasonably safe. (Rest. 3d)

Ds failure to include a cost effective technology-available safety feature will often be a designdefect. (Ps burden-reasonable alternative.)

State of the art defense (Ds burden) Pre-emption defense Unavoidably unsafe defense (if products overall benefits outweigh its overall dangers) Prescription drugs-even if the drug has rare side effects, or causes allergic reactions in a few

people, as long as D gives adequate warnings and the drug produces a net benefit to some groupof patients, than at least according to the 3rd Restatement the drug is not defective, and theparticular P who is injured cannot recover.

o Warnings defects/ failure to warn=A product is defective because of inadequate warnings or instructionswhen the foreseeable risk of harm posed by the product could have been reduced or avoided by theprovision of reasonable instructions or warnings by the seller or other distributor, and the omission of theinstructions or warnings renders the product not reasonably safe. (Rest. 3d)

Duty to warn of non-obvious dangers: even if the product is designed in a non-defective way,D still has a duty to warn of any non-obvious dangers.

Inappropriate uses-D must warn that certain uses are not appropriate. Labeling problems

o Prescription drugcases (Courts today say that virtually any risk-however small-must be warned of.)


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Lost warning booklet: If the warning booklet (or box containing the warning) is part ofthe package when the product leaves the manufacturer, but is lost in shipping or by theretailer, the manufacturer is protected by the when it left the defendants hand rule,

except for situations where the danger is so great that a reasonable exercise of the duty-to-warn required putting the label right on the product itself instead of on packaging.

State of the art defense (if danger wasnt knowable at the time of manufacture, there isno duty to warn of it).

Obvious dangers: No duty to warn of dangers that would be obvious to an ordinary person. Causation

o Misuse by purchaser: If purchaser misuses a product in a way that is virtually unforeseeable, than itconstitutes a superseding cause. (Foreseeable misuse is not superseding).

Conscious disregard of warning: if the manufacturer warns against a particular misuse, and P(or whoever is using the product)consciously disregardsthe warning, it usually constitutes asuperseding cause. (But Ps negligent failure to notice the warning is not superseding.)

Failure to warn cases: if D can show that P wouldnt have reada warning even if one had beengiven (or would have ignoredthe warning if it had been given and P had seen it), than the failureto warn wasnt the proximate or but for cause of the accident, and D wont be liable.

Defenseso Contributory/comparative negligence: Courts vary on whether they are defenses to strict product

liability. The modern/ Rest. 3d view is that these defenses apply the same way as they would in anegligence cause of action.

o Assumption of the risk: defense is P acted unreasonably in encountering the danger. Reasonable to ignore warning: if P is reasonable in ignoring the warning, and the warning

unfairly limits the product compared with what a reasonable consumer would expect, P isprobably not bound by assumption of the risk.

o Compliance with safety regulations: compliance with governmental safety regulations usually not adefense.

Preemption: impossibility/ frustration of legislative purpose

Essay Exam AnalysisRestatement (Second) of Torts 402A

One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property issubject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

--the seller is engaged in the business of selling such a product, and--it is expected to and does reach the user or consumer without substantial change in the condition in which it issold. (i.e. if altered by retailer, manufacturer not liable)

The rule stated in Subsection (1) applies although--the seller has exercised all possible care in the preparation & sale of his product, &--the user or consumer has not bought the product from or entered into any contractual relationship with the seller

1. Manufacturing Defect (SL)-non-conforming widgeta. A product contains a manufacturing defects when the product departs form its intended design even though all

possible care was exercised in the preparation and marketing of the product. (Rest. 3d)b. Standard of proof--Pl has to prove that the product deviated from the sellers design or form the sellers other

products of the same design, not what specific conduct of the manufacturer led to that defect.c. Defenseproduct substantially altered after it was sold.

2. Design Defectsa. Design defects-: A product is defective in design when the foreseeable risks of harm posed by the product

could have been reduced or avoided by the adoption of a reasonable alternative design and the alternativedesign renders the product not reasonably safe.

b. Ps burden=reasonable alternative design


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c. Ds burden= state of the art defensei. Issue-whether a defendant can avoid liability by showing compliance with the state of the art at the

time the product was made.ii. Requirement that the best scientific and medical technology that is practically and economically

feasible at the time the product was made or marketed be utilized by the manufacturer.iii. Std=what is known (actual or constructive knowledge) in light of knowledge and technology that

were available at the time of manufacturer (not at the time of trial).d. Open and Obvious Danger

i. Maj- not an absolute bar to recovery but instead one consideration to include as a factor in the R-Ubalancing test.

ii. Min- absolute defense to a design defect casee. Products that are so unreasonably dangerous and of such low utility= manufacturer liable even if there is no

reasonable alternative design.f. Unavoidably Unsafe Products (prescription drugs & medical devices)

i. R. 2d: The seller of such products, against with the qualification that they are properly prepared andmarketed, and proper warning is given, is not to be held strictly liable for unfortunate consequencesattending their uses, merely because he has undertaken to supply the public with an apparently usefuland desirable product, attended with a known but apparently reasonable risk.

ii. R. 3d: Seller and distributor of prescription drugs and medical devices will be liable for harm causedby defective design if the foreseeable risks of harm posed by the drug or medical device is sufficientlygreat in relation to its therapeutic benefits that reasonable health-care providers, knowing of such

foreseeable risks and therapeutic benefits, would not prescribe the drug or medical device for anyclass of patients.

g. Applicability to Foodi. Foreign-Natural Test=vendors of food will be held liable if the injury-causing substance is a piece of

glass, wire, or other substances foreign to the food. If the substance is natural, like bond fragmentsin meet, pits in cherries or shells in nuts, strict liability is not available and P must prove undernegligence theory.

ii. Consumer Expectations Test- strict liability will lie against vendors of food if the consumer of theproduct would not reasonably have expected to find the substance in the product.

h. Allergic Reactionsi. If allergic reaction to a drug or product occurs because of an individuals unusual susceptibility to an

ingredient=manufacturer not liable since the product is reasonably fit for the ordinary user.

ii. Most jurisdictions hold this as a failure to warn issue and impose a duty on the manufacturer to warnof possible adverse reactions only if it knew or should have known of the risk.

3. Failure to Warn (inadequate warnings)a. Obvious Danger

i. Maj- no duty to warn of obvious dangers or of risks that are generally known.ii. R. 3d- no duty b/c warning will not reduce risk and may diminish significance of warnings about non-

obvious defects.b. Post-Sale Duty to Warn

i. Post-sale duty to warn determined by balancing factors, including obviousness of danger, itsseriousness, the burden on the manufacturer to locate those who should be warned, and the likelihoodof harm.

c. Learned Intermediary Rulei. In cases involving pharmaceuticals, most courts hold that warnings and instructions should be

provided to the physician, who is a learned intermediary between the drug company and the patientand the best person to understand the patients needs and assess the risk and benefits of a particularcourse of treatment. The physician will than decide which warnings to pass on to the patient in lightof the patients particular condition and needs and using the physicians professional judgment.

ii. Rule does not apply in situations where the manufacturer is aware that there will be no medicalproviders to provide learned advice or where the patient is expected to take an active role in theselection of the product.

iii. R. 3d- Warnings must be given directly to patient in situation where health-care providers role isdiminished by circumstances.


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iv. Rule does not apply when product is marketed directly to consumers because direct marketing beliesthe premises upon which the doctrine is based.

4. Defensesa. Foreseeable Product Misuse by Plaintiff

i. When plaintiff uses a product in a manner (1) unintended and (2) unforeseeable/abnormal of the useby the manufacturer, the manufacturer is not liable.


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I) Privacy Tortsa) Right of Appropriation or Publicity

i) The right of publicity protects the commercial interest of celebrities in their identities. P's identity may beexploited even if his name or picture is not used.

b) Invasion of Privacy by Intrusion(1) Right to protect one self from having ones private affairs known to others and to keep secret or intimate

facts about oneself from the prying eyes or ears of others. (i.e.-Wiretaps, electronic surveillance, gainingaccess under false pretenses are all intrusions.)

(2) Elements(a) Intrusion into a private place, conversation or matter(b) In a manner highly offensive to a reasonable person

(3) P must have an objectively reasonable expectation of seclusion or solitude in the place, conversation ordata source.

(4) There is no invasion of privacy where the information sought is open to the public view or has beenvoluntarily revealed to others.

ii) Newsworthy Privilege(1) News gathering is an intergral part of news dissemination, but hidden mechanical contrivances are not

"indispensable tools" of news gathering as D claims. The First Amendment is not a license to intrude byelectronic means into the precincts of a person's home or office. The First Amendment does not become alicense simply because a crime is suspected


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VI.DefamationA. Common Law

1. (1) A false and defamatory statement of and concerning the plaintiff that was published.2. The falsity of the statement and damages are presumed. (Truth is an affirmative defense.)3. D has burden of proving that the statement was substantially true.)

B. Defamatory Statement1. A statement having the tendency to harm the reputation of P by injuring a persons generalcharacter or causing personal disgrace. (Reputation that diminishes your role or succession in society).2. Restatement: A communication is defamatory if it tends to harm the reputation of another as tolower him in the estimation of the community or to deter third person from associating or dealing withhim.3. Significant minority rule: not limited to whether right minded people would believe thestatement to be defamatory, it is sufficient if a substantial and respectable minority of people wouldcomprehend the negative opinion of P, even though other people would not have a negative opinion.4. Ambiguous Statements: A court determines as a matter of law whether any interpretation of thecommunication could be construed as defamatory, while it is up for the jury to decide whether thestatement in the case before it is actually defamatory.

a) Is the statement capable of a different (defamatory) meaning? (judge)b) (if yes) Is it defamatory? (jury)

5. Statements not facially defamatory: P must plead extra evidence to make the statementdefamatory (inducement) or to explain the particular defamatory impact/meaning conveyed by the

statement (innuendo) if it is not obvious.6. Falsity of statement (presumed)

a) Substantial truth bars recovery (if its true, the Constitution forbids recovery)b) Statements of opinion cant be defamatory (but an implicit assertion of related facts canbe defamatory as to those facts).

C. Of and Concerning the Plaintiff1. P must show that the defamatory communication was understood as referring to her.

a) Irrelevant that the D did not intend for the statement to refer to the P.2. If P not expressly named, P must plead colloquium to connect herself to the defamatorystatement.

a) Fictional characters: D will still be liable even though D intended to create a fictionalcharacter if the recipients of the communication reasonably believe that the character is really the

P.b) The test is whether a reasonable person, reading or hearing the communication, wouldunderstand that the fictional character therein pictured was, in actual fact, the plaintiff acting asdescribed.c) If only the P recognized (understood) themselves as the character=no publication= nocommunication=no cause of action.

3. Group Defamationa) Intensity of suspicionandnumerosity

(1) One who publishes defamatory matter concerning a group or class of persons issubject to liability to an individual member of it if, but only if (1) The group or class is sosmall that the matter can reasonably be understood to refer to the member, or(2) thecircumstances of publication reasonably give rise to the conclusion that there is particular

reference to the member. (Restatement).b) The law does not recognize a c/a if the class is too large (cannot spoil the reputation of anindividual if your talking about all members of a group).c) If the group is small and the defamatory sting may attach to each group member, eachmember of the group may bring a defamation action.

4. Living Plaintiffs: P must be living (alive) in order to bring a suit for defamation. (no actionabledefamation of the dead).5. Corporate Plaintiffs: can bring a c/a where the communication tends to case aspersions on theirbusiness character, such as trustworthiness, or deters third parties from dealing with them. (defamatorylanguage must lead to economic damages).


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D. Publication1. A "publication" of defamatory matter is its communication to a person other than the plaintiff,who understands its defamatory meaning and its application to the plaintiff. To be a publication, thecommunication also must be made intentionally or negligently. For a communication to a 3rd party to be apublication, it must have been done intentionally or by a negligent act.

a) A publication is intentional if made for the purpose of communicating the defamatorymatter to a person other than plaintiff, or with knowledge that the defamatory matter issubstantially certain to be so communicated.b) A publication is negligent if a reasonable person would recognize that an act creates anunreasonable risk that the defamatory matter will be communicated to a person other thanplaintiff.c) There is no publication when the words are spoken by defendant directly to plaintiff, withno reason to suppose that any one can overhear, but they are in fact overheard by a concealedlistener.d) When the words are spoken in so loud a voice that defendant can expect that someonemay overhear, the defendant has published the defamatory imputation.e) Depending on jurisdictions; inconsistencies in conclusions

(1) Yes publications when a telegraph company transmits a message or a third partyorally repeats a message.(2) No publication when:

(a) Postal service does not make a publication when it delivers a letter.(b) No publication by the telephone company when its system is used forcommunication purposes.(c) No publication of an Internet Service Provider (ISP) for emails sentthrough its servers.(d) ISP immunity

(i) Whether an internet service provider (ISP) will be held liabledepends on whether the entity was a provider (user) or a publisher(speaker)

(a) Provider (immune)=information came from/was createdand developed by someone else.(b) Publisher (liable)=actually supplied the data/ created orsufficiently developed the information.

2. Single Publication Rulea) Under the single publication rule, written material containing defamatory matter givesrise to only one cause of action for libel. This cause accrues at the time of the original publicationand the statute of limitation runs from that date. Is it no longer the law that every sale or deliveryof libelous matter was a new publication, allowing a new cause of action to accrue.

(1) Each edition of a newspaper, magazine or book is held to be one separatepublication. (each broadcast and every rebroadcast over radio or TV, and each exhibitionof a motion picture).(2) The number of copies of the offending publication that are published will be afactor in determining the amount of recoverable damages. However, the originalpublication of the defamatory material causes the statute of limitations to run.

3. Republication Rule: one who repeats a defamatory statement made by another is held to havepublished it, and is liable as if he were the first person to make the statement. This is true even if theyindicate the source, and indicate that he himself does not believe the statement.4.

Common Law Private Individual

(Gertz)

Public Official/Figure

(NY Times v. Sullivan)

Publication Media defendant

Of and concerning the

Plaintiff

Plaintiff Private plaintiff Public official or publicfigure


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False and defamatory

Statement

Presumed unless thedefendant proves truth.(D has burden of provingtruth)

To succeed plaintiff mustprove false defamatorystatement was publishedwith some fault

Plaintiff must prove actualmalice (knowledge orreckless disregard)concerning the falsity of thestatement.Std=clear and convincingevidence.

Damages Presumed Not presumed P must prove Not presumed. (If P canprove motive or ill will, thanallowed to recover punitive)

A. Pleading Defamation (Elements):a. The defamatory wordsb. The publication (communication of the words to a third person)c. Extrinsic facts, because of which the words were reasonably understood to convey a meaning defaming

the plaintiff (inducement).d. A formal allegation that the words were spoken of and concerning the plaintiff (colloquium) i.e. in

reference to the plaintiff.i. Group defamation-Numerosity/ intensity of suspicion (Neiman-Marcus v. Lait).

ii. If the P is not expressly identified, the issue is whether a reader with knowledge of thesurrounding circumstances could have reasonably understood that the words referred to the P.

iii. The fewer the number of persons who are possessed with knowledge of the surroundingcircumstances that identify the P, the less the damages that may be awarded (damages will beproportional).

iv. Reference to the plaintiff need not be by name if it is reasonably understood as referring to him.(Brindrim v. Mitchell)

v. A fictional publication may be libelous if a reasonable person, reading the book, wouldunderstand that the fictional character, was, in fact, a real person acting as described.

vi. Publication for purposes of defamation is sufficient when the publication is to only one personother than the person defamed. (if only P recognize themselves as the characterno publication

no communicationno c/a).

e. An allegation of the particular defamatory meaning conveyed by the words (innuendo).f. Special damages, when necessary to the cause of action.

B. Both the colloquium and the innuendo must be reasonable in the light of the words spoken and the facts pleadedin the inducement.

C. Nature of a defamatory communicationa. The court must initially determine whether the statement, on its face, is unambiguously defamatory or not

defamatory.i. If capable of 2 meanings, one defamatory and one not defamatory, than it goes to the jury.

ii. If statement bears but one interpretation, than judge decides (does not go to jury)b. Is the statement, on its face, capable of carrying a defamatory (different) meaning?c. Is the statement itself defamatory? (Jury decides, unless unambiguous than question for the judge)

i. If a statement is open to two meanings, one defamatory and one not, it is for the jury to determinewhether the defamatory send was the one conveyed. (Belli v. Orlando Daily Newspaper).

a. Common Law Definitionsi. Defamation=a communication that tends to damages the plaintiffs reputation, that is, diminish

the respect, good will, confidence or esteem in which he is held, or to excite adverse orunpleasant feelings about him.

ii. Libel=A civil action for libel will lie when there has been a false and unprivileged publication byletter or otherwise which exposes a person to distrust, hatred, contempt, ridicule, or obloquy orwhich has a tendency to injure such person in his office, occupation, business, or employment.

iii. Libel per se=If the publication is false and not privileged, and is such that its natural andproximate consequences necessarily cause injury to a person in his personal, social, official, orbusiness relations or life, wrong and injury are presumed and implied, and such publication isactionable per se. (Presumption of falsity)


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b. An action of defamation will lie only if the statement is both defamatory and false.c. No privilege must exist as a defense to the false statementd. The statement must either expose a person to some sort of disgrace (socially), or it must tend to injure a

person in his occupation (business).e. Reputation not limited to what right-minded people would think. It is sufficient that some people

would think it is defamatory. (Grant v. Readers Digest).f. Defense (truth)

i. Truth or substantial truth is an absolute defense. (Killian v. Doubleday & Co.)ii. At common law, the D had the burden of proving this defense. Thus, the common law raised a

presumption of the falsity of all statements that were defamatory.g. Group Defamation (element D)

i. If a publication defames a large group, no member of the group has standing to sue (cannot spoilthe reputation of an individual if you talking about all members of a group).

ii. If a publication defames each member of a small class, than any member of the class can sue.1. Rationale-if each member were allowed to sue, it is doubtful that any particular member

would be injured significantly enough to necessitate a remedy in the courts.iii. Numerosity/ intensity of suspicion=one who publishes defamatory matter concerning a group or

class or persons is subject to liability to an individual member of it, if, but only if, (a) the group ofclass is so small that the matter can reasonably be understood to refer to the member, or (b) thecircumstances of publication reasonably give rise to the conclusion that there is particularreference to the member.

iv. Although size alone is not determinative, it is an important factor in determining whether theintensity of suspicion cast upon the P is sufficient to give him a right to maintain a personalaction.

h. Who can be defamed?i. Any living person (P must be alive).

ii. No actionable defamation of the dead, since there is no living person whose reputation is affectediii. Corporations can maintain a c/a for defamation that casts an aspersion upon its honesty, credit,

efficiency, or other business or moral character (must lead to economic damages).iv. Charitable or benevolent corporation not operated for profit.v. Partnerships, or an unincorporated association, such as a labor union.

i. Damagesi. Slander

1. General Rule is that the P must prove special damages (i.e. pecuniary loss) unless thewords spoken come within one of the four classes ofslander per se.

2. Pecuniary Loss=whenever a person is prevented by the slander from receiving that whichwould otherwise be conferred upon him, though gratuitously, it is sufficient. (i.e. loss of amarriage, loss of hospitable gratuitous entertainment, preventing a servant or bailiff fromgetting a place, the loss of customers by a tradesman. )

ii. Slander per se (exceptions)1. Imputations of major crime2. Loathsome disease3. Business, trade, profession, or office4. Serious sexual misconduct

iii. Libel1. General Rule is that the P does not need to prove special damages for any libel action.

iv. Re-publication Rule1. Original publisher is liable for damages due to a republication that might reasonably have

been anticipated (foreseeable) by subsequent people.2. Party repeating the defamation is himself liable for its publication, even though he states

the source.


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DefamationTo determine whether a defamatory statement involves an issue of public or private concern, we must balance the

states interest in compensating private individuals for injury to their reputation against the First Amendment

interest in protecting this type of expression. Public concern=a state could not allow recovery of presumed or punitive damages absent a showing of actual

malice.o States interest-limitedo 1st Amendment-interest of the press and broadcast media in immunity from liability significant.o Rationale

Immunity of media defendants requires special protection to ensure that debate on public issueswill be uninhibited, robust, and wide-open.

When the alleged liable falls outside these especially important categories, the Constitutionpermits states significant leeway to compensate for actual damage to reputation.

Private concerno State interest-strong and legitimateo 1st Amendment-not substantialo Rationale

Private persons (1) have not voluntarily exposed themselves to increased risk of injury fromdefamatory statements, and (2) they generally lack effective opportunities for rebutting suchstatements.

Gertz v. Welch-1st Amendment prohibited awards of presumed and punitive damages for false and defamatory statementsunless the plaintiff shows actual malice. (knowledge of falsity or reckless disregard for the truth).

Public Figures(1) Limited (vortex figures) that have thrust themselves into a public controversy(2) Universal (unlimited)Public Officials: Persons who have or appear to the public to have, substantial responsibility for or control over theconduct of governmental affairs.


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DefamationCommon Law (F. PADS)

1. Defamatory Statementby the defendant, tending to harm plaintiffs reputation in a respectable segment of thecommunity;

2. Of or concerningthe plaintiffa reasonable reader, listener, or viewer would understand that the defamatorystatement referred to the plaintiff;

3. Publicationnegligently or intentionally communicated to at least one 3rd party capable of understanding thestatement;

4. * Damage to reputation (presumed)5. *Falsity(presumed, defendant had the burden to prove the statement was true)

Defamatory Statement

Innuendo and Inducement-If not defamatory on its face, P must plead to prove such additional facts asinducement and establishes the defamatory meaning by innuendo.

Of or concerning the plaintiff

Colloquium-If there is no clear reference to the P contained on the face of the statement, P required to introduceadditional evidence of facts that would lead a reasonable reader, listener, or viewer to perceive the defamatorystatement as referring to the P.

Group Defamationo All members of small groupeach member can establish by proving they are a member of the group.o All members of big groupno member can establish a c/a.o Some members of small groupa member can recover if they establish a reasonable person would view

the statement as referring to the P.Publication

Intentionally or negligently communicating the defamatory statemento Negligent publication=where the D does not intend to communicate the statement to a third party, but it

was foreseeable that a communication would occur.o Intentional publication=only need to show an intent to publish, not an intent to defame (irrelevant whether

D knew or had reason to know that P even existed or that the publication was defamatory).

To at least one 3rd party (not the one defamed) Who is capable of understanding the statement and its defamatory context.

Damages

Special Damages=pecuniary losses caused by harm to plaintiffs reputation.o Loss of a jobo Loss of a gifto Loss of a businesso Any firm pecuniary expectation

General Damages (presumed)=reflect harm of a non-pecuniary nature.o Humiliationo Mental anguisho Harm to reputation with no financial repercussions.

Common Law privilege--Fair comment privilege of criticism of public officers and their official conduct.


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CommonLaw

(NY Times v.Sullivan)

Public P vs.Media D

(Gertz)

Private Pvs. MediaD

(Dun &

Backstreet v.

Greenmoss)

(Philladelphia

Newspapers v.

Hepps)

Private P vs.Public D

1. DefamatoryStatementthat was

Published

Public concernMedia D

PublicconcernMedia D

Privateconcern

Public concern

2. Of andConcerning

the P

Plaintiff Publicofficial/figure

PrivateFigure

Private Private

3. False Presumedunless Dprovestruth

P must provefalsity(changes C.L.)

P mustprovefalsity

P must provefalsity

4. Fault Strictliability

Actual malice Some fault Looks likeState C.L.persists even ifSL

5. Damages Presumedif liable orslander perse

Presumed Some faultproven=damages notpresumed.Actualmaliceproven=presumed,general,andpunitivedamages.

Presumed(punitivedamages)

Constitutional Constraints

Falsityo Public officials & public figuresactual malic requiredo Private Persons need not prove malice, except if the statement involves a matter of public concern.

Public Officials/ Figures must prove fault by Actual Malice. P cannot recover in a defamation suit relating to hisofficial conduct in the absence of clear and convincing proof that the statement was made with actual malice.

Actual Malice=knowledge that the statement was false, or reckless disregard as to its truth or falsity.o Reckless conduct--Subjective standard, not measure by the reasonably prudent person or by whether a

reasonable person would have investigated before publishing. There must be a showing that the D in fact(subjectively) entertained serious doubts as to the truthfulness of his publication.

o Spite, hatred, ill will or intent to injure the P is not enough.Public Officials= the test to determine if public official is whether the position in government has such apparentimportance that the public has an independent interest in the qualifications and performance of the person who holds it,beyond the general public interest in the qualifications and performance of all governmental employees.Public Figures (justified b/c public figures generally have access to the media to counteract false communications andbecause they have assumed the risk of reputational harm by involving themselves in issues of importance.)1. All purpose (unlimited) public figures=where the person has achieved such pervasive fame or notoriety that he

becomes a public figure for all purposes and contexts.2. Limited Public Figures= a person who injects themselves into a controversy (thrusts themselves into it)


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Nature of a Defamatory Communication

Defamation=communication that tends to damage the plaintiffs reputation, that is, to diminish the respect, goodwill, confidence or esteem in which he is held, or to excite adverse or unpleasant feelings about him.).

Defamatory Statement If a statement is open to two meanings, one defamatory and one not, it is for the jury to determine whether the

defamationary sense was the one conveyed. The court must initially determine whether the words are capable ofmore than one interpretation.

o If not, than Judge determines whether the statement was defamatory.o If the common reader of the publication could interpret the statement in more than one way, and if at least

one of the interpretation is defamatory, than the jury must determine whether the statement was in factdefamatory.

Grant v. Readers Digest Assn-a statement may be defamatory if it injures a persons reputation in the minds ofsome people, even if these people are not right thinking. (some people goes to how much damage you get).

Neiman-Marcus v. Lait- where the group or class defamed is large, none can sue even though the language isinclusive. Where the group or class defamed is small, and each and every member of the group or class is referredto, then any individual member can sue.

Intensity of suspicion cast upon the plaintiff & numerical approach to group libel.o Group Defamation: one who publishes defamatory matter concerning a group or class of persons is

subject to liability to an individual member of it if, but only if, (a) the group or class is so small that thematter can reasonably be understood to refer to the member, or (b) the circumstances of publicationreasonably give rise to the conclusion that there is particular reference to the member.

Bindrim v. Mitchell-a fictional publication may be libelous if a reasonable person, reading the book, wouldunderstand that the fictional character, was, in fact, a real person acting as described.

o When P not expressly named in publication: reference to the plaintiff. Need not be by name if it isreasonably understood as referring to him. But it words are not reasonably understood to refer to theplaintiff, there is no defamatory imputation identifying the plaintiff.

Libel and Slander

Libel=the publication of defamatory material by written or printed words, or by its embodiment in physical form,or by any other form of communication which has the potentially harmful qualities characteristic of written orprinted words.

Slander= the publication of defamatory matter by spoken words, transitory gestures, or by any form ofcommunication other than those considered as libelous.

Radio and TV broadcasts are treated as libel rather than slander (regardless of whether the statements are ad-libbed or read from a script) because of the potential to reach as large an audience as a written publication, and theability of a defamed person to be harmed even more by a broadcast than by a written publication.

Damages (C.L.)-Damages for libel and slander per se were presumed. Plaintiff was required to prove specialdamages if slander. (Special damages=actual damage to reputation and resulting pecuniary loss).

Republication Rule: original publisher is liable for damages due to repetition that might reasonably have beenanticipated. The party repeating the defamation is himself liable for its publication even though he states thesource and even though he states that he does not believe the imputation.


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PRIVACY TORTS

*For exam:--Know the elements for each of the 4 types of privacy torts--than you can discuss the constitutional overlay as a defense i.e. Newsworthy Privilege (refer to the first caseDickersonv. Dittmaras an example for how to do this analysis.)

1. Right of Appropriation or PublicityElements:

a) Defendant used the plaintiffs name or likenessb) Use of the plaintiffs name or likeness was for the defendants own purposes or benefit, commercially or

otherwisec) *Defendant sought to take advantage of the plaintiffs reputation, prestige, social, or commercial standing, or

any other value attached to the plaintiffs name, likeness, or identity.* (COMMERCIAL EXPLOITATION- ifin Restat. Juris.)

d) Plaintiff suffered damagese) Defendant caused the damages incurred

First Amendment Privilege

Permits the use of a Ps name or likeness when that use is made in the context of, and reasonably relates to, apublication concerning a matter that is newsworthy or of legitimate public concern.

Where the appropriation is used for primarily commercial reasons, however, rather than for communicatingnews, the privilege does not attach.

If something is a matter of public concern, than it is deemed noncommercial. Commercial Speech=communication (such as advertising and marketing) that involves only the commercial

interests of the speaker and the audience, and is therefore afforded lesser 1st amendment protection thansocial, political, or religious speech.

Newsworthy Privilege

Privilege extends to Dfs use of Ps name for the purpose of communicating news (vs. for the purpose ofmarketing a product or service)

Court must determine whether the character of the publication is primarily commercial (privilege does notapply) or noncommercial (privilege applies). Under this test, an article that has commercial undertones maystill be protected if it concerns a legitimate matter of public concern.

It is the content of the speech, not the motive of the speaker, which determines whether particular speech iscommercial (privilege does not apply).

A magazine or newspaper article is protected despite the fact that a publisher may publish a particular articlein order to make a profit.

Dfs speech is protected even if he intends it to result in profit to him, so long as the contents of the speechqualify for protection.

The fact that a Dfs reason for publishing an article is his own commercial benefit does not render the speechcommercial.

Notes after case (Dickerson v. Dittmar)

Most of the cases have involved advertising, or pictures accompanying an article sold; but other forms ofcommercial appropriation have resulted in liability.

o Use of name in title of corporationo Impersonation to obtain secret informationo Motion picture based on incident in life of plaintiff, in which an actor represented himo Plastic surgeons use of before and after photographs to promote businesso Publicizing plaintiffs name and identities to advertise pornographic videos on the internet.

Privacy tort of Misappropriation (4 elements)= deals with personal privacy violated by the misappropriationof plaintiffs likeness, name, etc. (Damages sought=emotional distress, mental anguish, non-pecuniary)

Right of Publicity (5 elements- commercial exploitation)=Restatement jurisdiction. If this element werealways required, than only celebrities would ever have a c/a. (Damages sought=commercial , pecuniarydamages).


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2. Invasion of Privacy by IntrusionElements

a) Intrusion into a private place, conversation, or matter (expectation of privacy)b) In a manner highly offensive to an objectively reasonable person (manner of intrusion)

First Amendment Privilege

In order to negate the offensive element of the intrusion tort, Df must show that the claimed intrusion, even ifit infringed on a reasonable expectation of privacy, was justified by the legitimate motive of gathering thenews.

Sanders v. ABC Inc. (hat in camera case)Issue=Are conversations overheard by other employees at work subject to a limited expectation of privacy?Held=In an office or other workplace to which the general public does not have unfettered access, employees mayenjoy a limited, but legitimate, expectation that their conversations and other interactio

class notes torts

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