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Torts Review


I. INTRODUCTION
II. INTENTIONAL TORTS
III. NEGLIGENCE


IV. STRICT LIABILITY
A. Definition:
1. Absolute duty to make safe
2. Breach of that duty
3. Actual and proximate cause
4. Damages
B. Animals
1. Trespassing Animals:
a. Generally, an owner is strictly liable for reasonably
foreseeable damage done by trespass of his animals.
(1) Typically, farm animals.
(2) Exception: cats and dogs.
b. Fencing in Statutes:
(1) D is not strictly liable for trespassing livestock if D
attempts to fence in animals.
(2) However, D is strictly liable if D does not attempt
to fence them in.
c. Fencing out Statutes
(1) P properly fences in his land.
(2) D will be strictly liable if Ds animal breaks in.
d. Taking livestock to market:
(1) Then livestock strays off road and trespasses onto
Ps property.
(2) If Ds livestock strays from public road onto Ps
private property bordering the public road, D will
not be strictly liable.
(3) If Ds livestock strays from public road onto Ps
private property that is not adjacent to public road,
D will be strictly liable.
2. Personal Injuries:
a. Strict Liability for Dangerous Animals:
(1) Owner is strictly liable to licensees and invitees for
injuries caused by dangerous animals as long as


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injured person did nothing to bring about injury.
(2) Includes domestic animals with known dangerous
propensities.
b. No Strict Liability for Domestic Animals:
(1) Owner is not strictly liable for injuries caused by
nondangerous (domestic) animals.
(2) Exception: owner has knowledge of the particular
animals vicious propensities.
c. Strict Liability Not Available to Trespassers.
C. Ultrahazardous or Abnormally Dangerous Activities
1. Activity must involve risk of serious harm to persons or
property.
2. Activity must be one that cannot be performed with complete
safety no matter how much care is taken.
3. Activity is not commonly engaged-in activity in the particular
community.
4. Some courts also consider the value of the activity and its
appropriateness to the location.
D. Extent of Liability
1. Duty owed is absolute duty to make safe.
2. This duty is owed to all foreseeable plaintiffs.
3. Damages limited to those that are inherent to the ultrahazardous
activity.
E. Defenses:
1. Assumption of risk: valid defense.
2. Contributory negligence: not a valid defense.
3. Comparative negligence: valid defense (reduction of the
damages award).
V. PRODUCTS LIABILITY
A. General Rule: A commercial supplier that puts a defective product
into the stream of commerce can be held liable under several theories
of product liability.
B. Defective product:
1. Manufacturing Defect:
a. If a product emerges from manufacturing different and
more dangerous than the products made properly, it has a
manufacturing defect.
b. The product is not in the condition that the manufacturer
intended it to be.
2. Design Defect:
a. When all products are the same but have dangerous


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propensities, they may be found to have a design defect.
b. Consumer expectation test: product failed to perform as
safely as an ordinary consumer would expectD must
anticipate reasonable misuse.
c. Feasible alternative test: D could have made the product
safe without serious impact on the products price or
utility.
d. Scientifically unknowable risks: D will not be held liable
for dangers not foreseeable at the time of marketing.
e. Unavoidably unsafe products: manufacturers will not be
held liable for some dangerous products if the danger is
apparent and there is no safer way to make the product.
3. Inadequate Warning:
a. Product may be defective as a result of the
manufacturers failure to give adequate warnings as to
the risks involved in using the product.
b. The danger must not be apparent to users.
4. The defect must have existed when the product left Ds control.
This will be inferred if the product moved through normal
channels of distribution.
C. Strict Product Liability
1. Absolute duty owed by commercial supplier not to supply a
defective product that is breached by the defendant and the
breach is the actual and proximate cause of plaintiff's damages.
2. Foreseeable plaintiffs: users, consumers and bystanders; privity
is no longer required
3. Commercial supplier: manufacturer, wholesaler or retailer.
a. Only applies to defective products; services are not
included.
b. Does not apply to drug manufacturersaction must be
based on negligence.
4. Duty: absolute duty not to put a defective product into the
stream of commerce.
5. Breach of the absolute duty:
a. Occurs when D supplies a defective product.
b. No analysis of fault required.
6. Causation:
a. Actual and proximate cause.
b. Same analysis as negligence.
7. Damages: Same analysis as negligence.
8. Defenses:


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a. Assumption of risk: valid defense.
b. Contributory negligence: not a valid defense.
c. Comparative negligence: valid defense (reduction of the
damages award).
d. Disclaimers irrelevant if personal injury or prop. damage
D. Negligent Product Liability:
1. Duty owed by commercial supplier to act reasonably not to
supply a defective product, that is breached by the defendant
and the breach is the actual and proximate cause of plaintiffs
damages.
2. Foreseeable plaintiffs: users, consumers and bystanders; privity
is no longer required
3. Commercial supplier: manufacturer, wholesaler or retailer.
4. Duty:
a. Manufacturer:
(1) Must use reasonable care.
(2) Superior skill or training of D will be considered.
b. Dealer:
(1) If buying from reputable supplier, only cursory
inspection is required.
(2) If not a reputable supplier, must
(a) make a reasonable inspection; and
(b) warn P that product might be defective.
5. Breach:
a. Manufacturing defect: res ipsa loquitur usually involved.
Supplier failed in his duty to take care to manufacture a
defect-free product.
b. Design defect or lack of adequate warning: supplier knew
or should have known of defect and didnt make safe.
6. Causation:
a. Actual and proximate cause.
b. Same analysis as negligence.
7. Damages: Same analysis as negligence.
8. Defenses:
a. Assumption of risk: valid defense.
b. Contributory negligence: valid defense.
c. Comparative negligence: valid defense (reduction of the
damages award).
E. Intentional Torts Product Liability:
1. Usually based on a battery theory.
2. It is very rare.


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3. Commercial supplier supplies a defective product with the
desire or, knowledge of substantial certainty, that it will cause
plaintiff damage.
F. Implied Warranty:
1. Implied warranty of merchantability:
a. If goods are sold by a merchant who deals in those types
of goods, then
b. there is an implied warranty that the goods are generally
fit for the ordinary purposes for which the goods are to be
used.
2. Implied warranty of fitness for a particular purpose:
a. Seller know or has reason to know the particular purpose
for which the goods are required, and
b. the buyer is relying on the sellers skill or judgment to
select or furnish suitable goods, then
c. there is an implied warranty that the goods are fit for that
particular purpose.
3. Privity:
a. All buyers are proper plaintiffs.
b. Most states extend protection to buyers family,
household and guest who suffer personal injury.
c. Some states extend protection to any person who suffers
personal injury.
d. Few states extend protection to any person who suffers
any injury.
4. Disclaimers:
a. Must be specific and narrowly construed.
b. Limitations on personal injury damage are not
enforceable.
5. Causation:
a. Actual and proximate cause.
b. Same analysis as negligence.
6. Damages: Same analysis as negligence.
7. Defenses:
a. Assumption of risk: valid defense.
b. Contributory negligence: not a valid defense.
c. Comparative negligence: valid defense (reduction of the
damages award).
G. Express Warranty / Misrepresentation:
1. Must be communicated to P in writing, orally, use of sample or
model.


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2. Must be an affirmation of fact or promise to the buyer, related
to the goods, that becomes part of the basis of the bargain.
3. Privity not required.
4. Disclaimers are valid if they can be read consistently with any
express warranties made.

VI. DEFAMATION
A. Definition: A defamatory statement by the D, of or concerning the P,
with publication to a third party, which results in damages to P.
B. Defamatory statement by the D
1. Any statement that has a tendency to harm the reputation of the
P (bring about mistrust or contempt, ridicule, shun or cause P to
be avoided). The words themselves dont necessarily hurt,
rather the affect brought about by those words.
2. Defamatory on its face: The plain language of the statement
is defamatory.
3. Defamatory only with extrinsic facts: need additional facts
outside the statement to show that the statement is defamatory.
a. Inducement: extrinsic or additional facts.
b. Innuendo: the P pleads, proves and establishes the
defamatory meaning. P shows how the extrinsic facts
make the statement defamatory.
4. Statements of fact may always be defamatory.
5. Statements of opinion.
a. Will only be defamatory if the opinion is based on
specific facts.
b. Pure opinion, however, is not actionable.
c. Generally, the broader the language, the more likely it
will be interpreted as opinion.
6. Hyperbole: colorful or figurative speech or extreme
exaggerations are not defamatory statements.
7. Who can be defamed?
a. Any living individual may be defamed. A dead person
cannot be defamed.
b. Corporations or businesses can be defamed in a limited
sense. However, this usually falls under trade
disparagement.
C. Of or concerning P: P must establish that a reasonable person would
understand that the defamatory statement referred to the P.
1. Colloquium: extrinsic facts introduced by P to show that the
statement could be reasonably interpreted by at least one other


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person as referring to P. Colloquium is used to show that the
defamatory statement refers to the P.
2. Group Defamation: depends on size of group.
a. All members of a small group: each member may
establish that the defamatory statement was made of and
concerning him.
b. All members of a large group: no members of large
group may establish and that defamatory statement was
of or concerning him.
c. Some members of a small group: P can recover if a
reasonable person could determine that defamatory
statement was of or concerning P. (Neiman Marcus case)
D. Publication to a third party: there must be a communication to a 3
rd

person who understood it.
1. Publication: communication, this is a term of art.
a. Communication can be made intentionally or negligently.
b. Requisite intent is the intent to publish, not the intent to
defame.
2. Third party: Only needs to be published to one other individual
who understands that it is a defamatory statement.
3. Repetition: each repetition is a separate publication and P may
recover damages for each repetition of the defamatory
statement
4. Single publication rule: each edition or issue of the publication
of book or magazine is considered one publication. An
additional printing will be another publication.
5. Primary publisher: every individual that takes part in making
the publication is a primary publisher (newspaper or TV is as
responsible for defamatory message as author or original
speaker.
6. Republisher: one who repeats defamatory statement is liable
even if they state that they do not believe statement.
7. Secondary publisher: one who is responsible only for
disseminating matter that might be defamatory is liable only if
they knew or should have known of the defamatory content
(e.g. newspaper vendors).
E. Damages to the P.
1. General or presumed damages: presumed by law and need not
be proven by P. Intended to compensate P for general injury to
reputation.
2. Special damages: P must prove pecuniary loss as a result of


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defamations effect on reputation.
3. Libel: A defamatory statement that is recorded in writing or
some other permanent form.
a. Majority: General damages are presumed and need not be
proven. Special damages need not be established, but the
P may choose to prove pecuniary loss if he wishes.
b. Minority:
(1) Libel per se: (libel on its face) a statement that is
libelous and defamatory on its face. General
damages are presumed and need not be proven
(2) Libel per quod: (not defamatory on face) a
statement wherein extrinsic facts are needed to
prove that is defamatory statement. Special
damages must be proven first. Once special
damages are proven, the courts will presume
general damages.
4. Slander: Slander is a spoken defamation (oral). It is less
permanent and in less physical form.
a. Repetitions: some oral communication may be
considered libel.
(1) An oral repetition of an original libel will be libel.
(2) If TV or radio broadcast is in script, any oral
repetition will be libel.
(3) If defamation is ad-libbed, modernly is treated as
libel.
b. Courts distinguish between libel and slander by
(1) How permanent? (the more permanent the more
likely libel)
(2) How broad area of dissemination? (the broader the
more likely libel)
(3) How premeditated? (the more premeditated the
more likely libel)
c. Damages for Slander: since damage is less permanent
than libel, injury to reputation (general damages) is not
presumed. P must first plead and prove special damages
and then the court will presume general damages.
d. Slander per se: an exception to the above is if slander
falls within one of four categories of slander per se.
Because of the nature of the statement, for slander per se
general damages are presumed and no need to plead and
prove special pecuniary damages (but P can bring proof


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to get pecuniary losses if he chooses).
(1) Conduct in business: if defamatory statement
adversely reflects Ps abilities in business trade or
profession, damage to reputation is presumed.
(2) Loathsome disease: historically limited to venereal
disease and leprosy.
(3) Crime involving moral turpitude: crimes of
baseness and vile.
(4) Unchastity of a women: statement imputing
woman of unchaste behavior.
F. First Amendment ConcernsConstitutional Protections
1. When the defamation involves a public official or figure, or a
matter of public concern, plaintiff must prove, in addition to the
common law elements, fault on the part of defendant and falsity
of the statement.
a. Fault on Defendant's Part
(1) The type of fault that a plaintiff must prove
depends on the status of the plaintiff and/or the
matter involved.
(2) Public Official
(a) A person is a public official if they appear to
the public to have substantial responsibility
for or control over the conduct of
governmental affairs.
(b) The defamation must relate to the public
officials official conduct.
(c) Actual malice must be proved.
(3) Public Figure
(a) A person becomes a public figure by
achieving pervasive fame or notoriety or by
voluntarily injecting himself or being drawn
into a particular public controversy.
(b) The defamation must relate to the public
figures fame or controversy.
(c) Actual malice must be proved.
(4) Actual Malice
(a) Actual malice is
i) knowledge that statement was false,
or
ii) reckless disregard as to whether it was
false:


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a) High degree of awareness of its
probable falsity or,
b) Entertained serious doubts as to
its truth.
(b) This are subjective tests.
(c) Defendant's spite or ill will is not enough to
constitute malice.
(5) Private Persons (are more vulnerable and freedom
of press is less of an issue):
(a) If not a matter of public concern,
constitutional restrictions don't apply.
(b) If a matter of public concern:
i) Need to prove malice or negligence
ii) Negligence regarding the statement is
proved if it is shown that:
a) A reasonable prudent person
would not have published the
statement.
b) A reasonable prudent person
would have investigated before
publishing the statement.
b. Falsity
(1) At common law, a defamatory statement is
presumed to be false.
(2) In cases where plaintiff is constitutionally required
to prove some type of fault, plaintiff also has the
burden of proving falsity as part of the primary
case.
c. Damages:
(1) Public official or public figure:
(a) If actual malice is proved, then
(b) damages are presumed.
(2) Private figure and the matter is of public concern:
(a) Actual damages must be proved.
(b) Punitive damages are allowed if actual
malice is proved
G. Defenses to Defamation
1. Consent is a complete defense.
2. Truth, where plaintiff does not need to prove falsity, defendant
may prove truth as a complete defense.
3. Absolute Privilege


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a. Defendant may be protected by an absolute privilege for
the following:
(1) remarks made during judicial proceedings,
(2) by legislators in debate,
(3) by federal executive officials,
(4) in compelled broadcasts,
(5) and between spouses.
b. Can never be lost.
4. Qualified PrivilegeCan Be Lost Through Abuse
a. Sometimes the speaker may have a qualified privilege for
the following:
(1) reports of official proceedings;
(2) statements in the interest of publisher;
(3) statements in the interest of recipient;
(4) statements in the common interest of publisher and
recipient.
b. Can be lost if
(1) statement is not within scope of privilege or
(2) it is shown that the speaker acted with malice.
5. Defendant bears the burden of proving that a privilege exists.
6. Mitigating Factors
a. Lack of malice, retraction, anger of speaker provoked by
plaintiff may be considered by jury on damages issue;
b. they are not defenses to liability.