Tort Law

Jody BlankeProfessor of Computer Information Systems and Law

Torts

Strict Liability Intentional Torts Negligence

Strict Liability

Liability without fault neither intent nor negligence need be

shown

Ultrahazardous activities e.g., dynamite blasting e.g., ownership of wild animals

lions and tigers and bears …

Intentional Torts

Battery Assault False Imprisonment Intentional Infliction of Emotional

Distress

Defamation

Libel and slander Truth is a defense Against media defendants, public

officials and public figures must show “actual malice” e.g., Richard Jewell - Wikipedia, CourtTV

Invasion of Privacy Appropriation of name or

likeness e.g., Michael Jordan Wine

Intrusion upon seclusion e.g., Jackie O, Holiday Inn, Mazzio’s

Pizza, Sean Penn, Bill Gates, Bob Dylan, Katz, Kyllo

False light e.g., Parade Magazine Teenage

Prostitution Publication of private

embarrassing facts e.g., “Joe Hero”

Silvia Leyva at Café Intermezzo

Trespass

Trespass to land Conversion Trespass to personal property

(trespass to chattels)

Interference with Contractual Relations

$10.5B award against Texaco for interfering with Penzoil’s contract to buy Getty (later settled for $3B)

“Ditch the dish”

Negligence

Duty Breach of Duty Causation Injury

Duty of Care

Reasonable person standard Is there a legal duty?

e.g., Lady Di, Seinfeld finale, Good Samaritan laws

Invitees, licensees, trespassers

Breach of Duty

What would the reasonable person do in similar circumstances?

Professional standard – malpractice Negligence per se Res ipsa loquitur

Causation

Actual cause (causation in fact) “but for” analysis

e.g., Rube Goldberg cartoons, Mouse Trap

Causation

Proximate cause (legal cause) foreseeabilty

e.g., Palsgraf v. Long Island Railroad e.g., Crankshaw v. Piedmont Driving Club

Injury

Plaintiff must prove injury Injury need not be personal injury

Defenses to Negligence Assumption of Risk Fellow-Servant Rule Contributory Negligence

e.g., the “rolling stop” Comparative Negligence

pure comparative negligence modified comparative negligence (50%

rule)

Product Liability

Warranty (contract) law Negligence Strict liability

Rationale

Stream of commerce theory manufacturer hopes to profit; must pay

price

Last best chance manufacturer in best position to prevent

injury

Economic theory dangerous products will price themselves

out of market

Lawn Darts

Early Cases

MacPherson v. Buick Motor Co. (1916) eliminated privity of contract

requirement consumer can sue manufacturer

Greenman v. Yuba Power Products (1963) applied strict liability in tort Manufacturer responsible for product it

places in the market

Restatement (Second) of Torts § 402A provides

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 user or 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 in which it is sold.

2. The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the

preparation and sale of his product, and (b) the user or consumer has not bought the product

from or entered into any contractual relation with the seller.

Restatement (Third) of Torts

Defines “defect” A product is defective when, at the time

of sale or distribution, contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings

Manufacturing Defect

Failure to meet design specifications e.g., Inspected by 17

Design Defect

Faulty design e.g., Ford Pinto

Inadequate Warning

Failure to warn e.g., guns and peanut butter

Defenses

Assumption of Risk Comparative Fault Misuse