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VICARIOUS LIABILITY
GENERAL
Definition:
o A theory of recovery that will allow you to have someone else pay
o Refers to any number of different situations in which the tort liability incurred by one party is
imputed to another party
Not a cause of action itself
Refers to a special relationship between the defendant and the tortfeasor
Justification:
o Sole justification for imposing vicarious liability is typically the existence of some type of “special
relationship” between the “active” and the “responsible” tortfeasors.
Policy for Vicarious Liability:
1. Provide financial responsible defendant against who the plaintiff’s damages could be appropriately
assessed and ultimately recovers
2. Companies are involved in systematic and continuous activity, where risks are more typical and
characteristic of the activity
3. The special relationship between the active tortfeasor and the responsible tortfeasor
RESPONDEAT SUPERIOR
Respondeat Superior means “let the master respond” or “look to the person higher up”
General Rule:
o Employers are held vicariously liable for the tortious acts committed by their employees if the
tortious act occurs within the scope of the employment relationship
Employers can be held liable even if they didn’t command the action and if they could not
foresee the act occurring
Does not matter how detailed or specific the orders were
o I.e., an employer CANNOT insulate themselves from liability by having a well
established policy manual
Scope of Employment:
o An employer may be held liable for the acts of his employee if the employee was acting within the
scope of employment
“Acts necessary to the comfort, convenience, health, and welfare of the employee while at
work.”
o Factors:
1. General character of the employment
2. The nature of the employee’s tortious act
3. The purpose of the employee’s act; and
4. The time and place of the injury
o Example:
Using personal car for business does NOT take someone out of the scope of employment
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o The general rule is that an employee is outside the scope of his employment while engaged in his
ordinary commute to and from his place of work
An employee who is en route or going home from work is OUTSIDE the scope of
employment
o Based on several theories:
The employment relationship is suspended from the time the employee leaves his job until
he returns
During the commute, the employee is not rendering services to his employer
o Commuting should not be confused with work-related travel
o EXCEPTIONS:
1. When an employee endangers others with a risk arising from or related to work
2. Where the employee is rendering a “special service/errand” to which the employer
consented
3. Where the employee is rendering an “incidental benefit” to the employer that is not
otherwise common to the ordinary commute
4. Where the employee is subjected to a “special hazard” not common to the ordinary
commute
o Foreseeability Test
One-way to determine whether a risk is inherent in, or created by, an enterprise is to ask
whether the actual occurrence was a generally foreseeable consequence of the activity.
In the context of the particular enterprise an employee’s conduct is not so unusual or
startling that it would seem unfair to include the loss resulting from it among other costs of
the employer’s business.
Example:
The test has been applied to employees who got into car accidents on the way home
after drinking alcohol at work
o Frolic v. Detour
Frolic:
The pursuit of the employee’s personal business as a substantial deviation from or
an abandonment of the employment
o Departure from the employee’s scope of employment that is completely
unrelated to the employment and is of a purely personal nature for which
the employer will not be vicariously liable
Outside the scope of employment
Exceptions:
o Acts that are necessary to the comfort, convenience, health and welfare of
the employee while at work
Detour:
Deviation that is sufficiently related to the employment to fall within the scope of
employment
o Minor deviation from the employee’s regular employment duties that still
sufficiently relates to the employer’s business to justify imputing vicarious
liability to the employer for injuries inflicted upon the plaintiff by the
employee
Incident to Employment:
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1. Smoking
2. Drinking
3. Using the toilet
4. Getting coffee
Punitive Damages
o The principal is liable for punitive damages only if the principal authorized or ratified, was reckless
in employing or retaining the agent, or the agent was employed in a managerial capacity and was
acting in the scope of employment.
Punitive damages are only imposed against tortfeasors who engage in certain types of
aggravated misbehavior that is either intentional or otherwise in wanton disregard for the
plaintiff’s safety.
o Majority Rule:
Against punitive damages in vicarious liability actions
o Minority Rule:
For punitive damages
Policy: where the employer has become directly involved in authorizing or
subsequently ratifying types of aggravated misconduct
o Some will allow if you are in a managerial role
INDEPENDENT CONTRACTORS
General Rule:
o One who arranges for work to be done by an independent contractor IS NOT vicariously liable for
the contractor’s torts
Those who enter into a contract to have work performed are not vicariously responsible for
the tortious acts of independent contractors
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Any person who hires an independent contractor cannot be held liable for injuries inflicted
by the tortious actions of an independent contractor
Test:
o Decisive test for determining whether a person is an employee or an independent contractor is the
right to control the physical details of the work
o Right to Control Factors:
Determines if the person is an independent contractor
1. Extent of control
2. Distinct occupation or business
3. Kind of occupation
4. Skill requirement
5. Supplier of tools, supplies, place of work
6. Length of time of employment
7. Payment by time or job
EXCEPTIONS:
1. Nondelegable duties
Certain responsibilities that courts will not permit to be delegated to an independent
contractor
Responsibilities owned by an employer are deemed so important to the community that the
employer should not be permitted to transfer these duties
The duty can be delegated to another but the responsibility remains with the owner
Operates, not as a substitute for liability based on negligence, but to assure that
when a negligently caused harm occurs, the injured party will be compensated by
the person whose activity caused the harm and who may therefore properly be held
liable for the negligence of his agent, whether his agent was an employee or an
independent contractor
2. Apparent Authority
One who expressly or impliedly represents that another party is his servant or agent may
be held vicariously liable for the latter’s negligent acts to the extent of that representation.
Allows an injured party who reasonably relies on the representation to hold the
party who made the misrepresentation liable.
5. Illegal Activities
One who contracts for performance of an illegal act is vicariously liable for any damage
even if the agent is an independent contractor
JOINT ENTERPRISE/VENTURE
Generally:
o Where the defendant has agreed in advance of the tortious activity to participate with the other
person in a specific activity which subsequently produces an injury to the plaintiff
BAILMENTS
Generally:
o Under the CL in most states, a bailment does not make a bailor vicariously liable for the acts of the
bailee in the use of the chattel
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CL rule has been altered in many states by decision or by statute, especially with respect to
automobiles
o EXCEPTIONS:
1. Family car doctrine
2. Graves Amendment
Preempts state law and provides that there is no vicarious liability for injury or
damage arising out of the use of a vehicle rented or leased by someone in the
business of renting or leasing motor vehicles
3. Omnibus Clause
Extends the coverage of the policy to any person using or responsible for the use of
insured vehicle, providing the actual use is with the permission of the named
insured
Negligent Entrustment:
o DISTINGUISH FROM VICARIOUS LIABILITY
o Cases in which the plaintiff is arguing that the employer/owner/bailor was itself negligent in some
way.
The owner/bailor may be liable in entrusting the chattel to the bailee
o Example:
Owner knew the driver was frequently intoxicated
Father funded the purchase of a car for his son whom he knew to be an irresponsible driver
Shotgun given to a young child
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Both Ways Test
o “If negligence can be imputed, contributory negligence will be also”
The negligence of another person is imputed to P whenever the negligence of the other
person would have been imputed had the P been a D
Most courts have rejected this test
o Test has been under a slow but steady attack
o Many automobile consent statutes have been construed ONLY to impose
vicarious liability and not vicarious contributory liable
Smalich v. Westfall:
o RULE:
A third party’s contributory negligence is NOT imputed to a plaintiff, UNLESS the plaintiff
would be vicariously liable for the negligent acts of the third person
o A car driven by Westfall but owned by Smalich ran into Stephanna Blank’s car. Smalich was a
passenger in her car and died as a result of the accident. Smalich’s estate brought a wrongful death
suit against Blank and Westfall.
Court held:
A third party’s contributory negligence does not bar a plaintiff’s recovery unless the
plaintiff would be vicariously liable for the negligent acts of a third person.
Thus, a driver’s negligence will not be imputed to a passenger unless the passenger
would be vicariously liable for the driver’s negligent acts. Court limits such
occasions to when the driver and passenger are engaged in a joint enterprise or
when the driver is the servant of the passenger.
Smalich and Westfall cannot be characterized as either one of these relationships.
Therefore, Westfall’s contributory negligence is NOT imputed to Smalich and
Smalich’s estate is entitled to recover from Blank.
Imputed Contributory Negligence has been largely rejected in the following areas:
1. Driver and Passenger
A passenger in a car can be charged with contributory negligence of his own if he, for
example, grabbed the wheel, distracted the driver by untying the strings of her bikini top, or
gave directions to turn the wrong way down a one-way street
2. Husband and Wife
The contributory negligence of one spouse is no longer imputed to bar recovery by the
other on the basis of the marital relation alone
3. Parent and Child
CL had no similar rule of legal identity as between parent and child
Child always has been held to be entitled to the separate ownership of his own property, to
the enforcement of his causes of action, and to be liable as an individual for his own torts
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If the spouse of the motorcyclist brought a loss of consortium claim, motorcyclists
contributory negligence would be imputed to spouse and would either defeat the
claim or reduce the damages
Similarly, the contributory negligence of a decedent not only affects his estate’s ability to
recover in a survival action, it is imputed to the beneficiaries in a wrongful death action
and will affect their recovery as well
STRICT LIABILITY
GENERAL
Strict Liability
o D must pay damages although they did not act intentionally or with unreasonable care
o Not looking to establish intent in strict liability
Can be held liable even if there is no intent
Can be held liable even if there is no negligence
o HAS to involve either animals or an abnormally dangerous activity
o ELEMENTS:
The nature of D’s activity imposes an absolute duty to make safe;
The dangerous aspect of the activity is the actual and proximate cause of P’s injury; and
P suffered damage to person or property
ANIMALS
Generally:
o Imposed on those who keep, possess, or harbor the animal – not just the owner
o BUT FOR:
Innocent, negligent or reckless conduct of a third party OR
Action of another animal OR
Operation of a force of nature (aka act of God)
o ONLY strictly liable when the damage results from the type of risk that made the animal
dangerous in the first place
3 Basic Categories:
1. Pets and domesticated animals
2. Wild animals
3. Livestock and other farm animals
Domesticated Animals:
o Definition:
Animals who are “by custom devoted to the service of mankind at the time and in the place
in which they are kept”
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o Common law rule:
Domestic animal is entitled to one bite
Not necessarily true
o If the owner knows, or has reason to know, that the animal has vicious propensities, it is sufficient
to classify the animal with wild ones and impose strict liability
o “Species-Specific”
General rule is that you cannot just rely on the specific breed of the dog to establish it is
dangerous
Need other evidence
o Vicious = “dangerous propensity abnormal to its class”
o Burden of Proof:
P has to prove that the owner knew or SHOULD have known of the domestic animal’s
dangerous propensities
If P cannot prove that, P must prove negligence to recover
o Leash Laws
If a person is injured due to the failure of the owner to comply with a leash/muzzle
ordinance, negligence per se may apply
If the muzzling of the dog would not have prevented the injury, where the dog
knocks the person down instead of biting them, P must prove negligence based on
conduct
Wild Animals:
o Definition:
Wild animals are animals that are not “by custom devoted to the service of mankind at the
time and in the place in which they are kept”
Includes animals that belong “to a category which has not been generally
domesticated, and which is likely, unless restrained to cause physical injury”
o Landowners are NOT responsible for harm done by wild animals on their property UNLESS they
reduce the wild animal to possession or control or introduce a non-indigenous animal into an area
Owner of a wild animal is not strictly liable, generally, for harm caused by the wild animal
to a willful or negligent trespasser, even if the trespasser had no reason to know that the
animal is there, UNLESS the keeper kept the animal for the purpose of attacking and
harming intruders
o Owner or possessor of a non-domesticated animal is subject to strict liability for all harm done by
the animal
o
o § 506 – Wild animals are not by custom devoted to the service of mankind at the time and in the
place in which they are kept
Exception:
No strict liability for trespasser when there was a warning sign of wild animals
o When displayed to the public like a circus or zoo by legislative permission it
is negligence NOT strict liability
o § 508 – Possessor of wild animal is not liable for harm done after it is out of the owner’s possession
and returned to its natural state/wild. The animal must be indigenous to the area to be considered
returned to the wild.
o Whether or not the animal is actually tame or aggressive is not the issue so much as what harm
can reasonably be expected to result from a wild animal of the kind that caused P’s harm
o Some courts apply a negligence standard rather than strict liability
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Think public zoos
o Customs of the community determine the classification of the animal
In Burma, elephants are domesticated animals (no strict liability)
o Highway Exception:
No strict liability if cattle is being driven and they escape onto adjacent property
Cattle must be in transition
o Possessor of land is not liable when someone intentionally or negligently trespasses upon the
land for the harm done by the wild or domesticated animals he keeps on the land
Personal Injuries
o Persons Protected
Licensees and Invitees – Landowner Strict Liability
Strict liability for injuries inflicted by wild animals or abnormally dangerous
domestic animals kept by the landowner on his land will usually be imposed
o Public Duty Exception
Where landowner is under a public duty to keep the animals (public
zookeeper); in such cases negligence must be shown
TEST:
1. Activity must create a foreseeable risk of serious harm even when reasonable care is exercised;
and
2. Activity is not a matter of common usage in the community
Policy Reasons:
1. Makes individuals responsible
If you are going to engage in these dangerous activities, you should pay
2. The court, not the jury, decides whether an activity is subject to strict liability
In other words, this liability is analogous to negligence per se, but it is not called negligence because
a court makes a judgment that value to the community is sufficiently great that the mere
participation in the activity is not to be stigmatized as wrongdoing in the negligence sense
Non-Natural Use:
o Person will be held liable for non-natural use of his land that causes harm to another.
Uses that are not for the purpose or introduce something that was not naturally on the
property
o Factors:
1. Character of the thing or activity in question
2. Place and manner in which it is maintained
3. Relation to its surrounding
o Landowner may use his land for anything in the course of ordinary enjoyment
The person who brings onto his land anything likely to do harm if it escapes, must keep it
safe, or it is otherwise responsible for all the damage which is the natural consequence of its
escape
Rylands v. Fletcher
o The court decided that anyone who brings onto their land something that is
likely to do mischief if it escapes, is prima facie answerable (strictly liable)
for any damage that it does if it escapes
o Natural v. Non-natural
Non-natural uses are those uses that are for the purpose of
introducing something that was not naturally on the land
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o In Rylands, because the use was non-natural, the defendants acted at their
own peril and are liable for any damage that ensued
Ultra-hazardous Activities
o An activity that necessarily involves a risk of serious harm to the persons, land chattels of others
which cannot be eliminated by the exercise of the utmost care and is not a manner of common
usage
Depends on the nature and location
o Ultra-hazardous = abnormally dangerous activities
o Examples:
1. Blasting
2. Transporting toxic chemicals
3. Crop dusting
4. Testing of rockets
5. Firework displays
In some of these cases, there is no strict liability because injuries must RELATE to
the dangerous propensities of the activity
Common Usage
o Car accidents kill and injure people and damage more property than any of the other activities
listed, yet driving is not subject to strict liability because it is NOT abnormal
Transmission of electricity and natural gas are considered matters of common usage and
thus not subject to strict liability
Location
o Many differences in cases is attributed to the location of the activity
Can be inappropriate for the location
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Exceptions under the rule of Strict Liability:
o Risk of harm posed by the activity has to be the harm that is actually suffered
Foster v. Preston Mill Co.
RULE:
o Imposition of strict liability due to an ultra-hazardous activity is limited to
consequences from the activity that result from the risk that makes the
activity ultra-hazardous
Blasting operations conducted by Preston Mill Co. frightened a mother mink owned
by Foster and caused the mink to kill her kittens.
In Washington, there is strict liability in blasting cases whether the damage is
caused by trespassory or non-trespassory invasions
Court held:
o Although blasting is an ultra-hazardous activity, the risk of the activity that
makes it ultra-hazardous is NOT that the vibration or noise will cause
nearby wild animals to kill their young
It is the exceedingly nervous disposition of mink, rather than the
blasting operations, which must bear the responsibility of the loss
o What makes blasting ultra-hazardous is the risk that property or persons
may be damages or injured by coming into direct contact with flying debris
or by being directly affected by vibrations of the earth or concussions of the
air
o Act of God
Golden v. Amory
RULE:
o Strict liability will not be imposed where the harm results from an act of God
that the defendant had no reason to anticipate
D owned a hydroelectric plant and constructed and operated a dike. P’s owned real
estate along river where dike was located. Hurricane caused river to overflow,
damaging the plaintiff’s real estate. D cannot be held liable for injury caused by
floodwaters
o What if D’s reservoir overflows because the owner of another reservoir
upstream suddenly releases a large quantity of water?
Act of a third party over whom D has no control does NOT give
rise to liability even where D’s activity is subject to strict
liability
o Assumption of the Risk
Sandy v. Bushey
RULE:
o An individual is strictly liable for keeping an animal that he knows has
vicious tendencies unless the plaintiff voluntarily or unnecessarily puts
himself in the way of the animal
P used D’s pasture to grain his horse where D’s horse was. P was graining his horse
away of the other horses and D’s horse came up and kicked P, seriously injuring him.
Evidence showed that D knew his horse had vicious tendencies prior to the incident.
Court held:
o P’s contributory negligence will not bar recovery UNLESS P voluntarily or
unnecessarily puts himself in the way of the animal.
o Here, P was not near D’s horse and did not incite the horse or put himself at
risk. Since D knew of his horse’s vicious tendencies, D is strictly liable.
Legal Sanction
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o Statutory sanction for D’s conduct frequently has been held to preclude the application of strict
liability, on the ground that D cannot be held strictly liable for doing properly what the law has
authorized him to do, although he will still be liable for any negligence
Custodian of a public zoo may be held not subject to strict liability for harm done to the
animals kept in it
This has been held to be true for gas/electric conduits laid in the street under legislative
authority as well as for common carriers required by law to ship wild animals or
explosives
Protection from strict liability has also been extended to a contractor doing such work as
blasting for the state
PRODUCTS LIABILITY
OVERVIEW
Products Liability:
o Umbrella term for the liability of a manufacturer, seller, or other supplier of chattels, to one who
suffers physical harm caused by the chattel
3 Theories of Recovery
1. Strict Products Liability
2. Negligence
3. Breach of Warranty
Proper Defendant:
o Anyone in the ORIGINAL CHAIN of distribution – can sue anyone in this chain
P is not limited solely to who sold the product to them
Ex: Original manufacturer, wholesalers, retailers
o These sellers generally have a right of indemnity from the manufacturer if
the latter were the one solely responsible for the existence of the defect
o Rule of strict liability limited to commercial sellers – those in the business of selling the product
Not necessary that the sale of the product be the seller’s main occupation, so long as it is
part of the seller’s regular business
o Sellers of USED products cannot be held strictly liable
EXCEPTIONS:
There was a defect that could be reasonably discovered upon inspection, OR
Defect was created by the used product seller
Majority Rule:
Imposes at most a negligence standard on sellers of used products, at least when all
they do is resell the product without change
o Owners of defective products can be held negligent but not strictly liable
Proper Plaintiff:
o The party who suffers an injury
Do not have to be a purchaser of the product – just a user of the product
Liability
o Whether the liability rests upon negligence, warranty or strict liability in tort, it applies to all types
of products
Product is not limited to those used by human beings
Animal feed, veterinary medication that may foreseeably cause harm only to
property are within the liability
Almost every PL suit involves a negligence count
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DEVELOPMENT OF THEORIES OF RECOVERY
NEGLIGENCE
o Negligence is conduct that falls below the standard of care established by law for the protection of
others against unreasonable risk of harm
o General Rule:
Imposes negligence liability upon all sellers of chattels –whether damage is to person or
property, whether the manufacturer produced the whole product or a component part,
and whether or not the injured person was the immediate purchaser
o ELEMENTS
1. Existence of a legal duty owed by D to that particular P;
2. Breach of that duty;
3. Actual and proximate cause; and
4. Damages
o Duty:
Duty to FORESEEABLE users
Duty to:
Warn of risks inherent in the use of the product
Not to place defective products in the market
TEST:
1. Knowledge of a probable danger – not merely possible
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2. Knowledge that in the usual course of events the danger will be shared by others
other than the buyer
3. Can be inferred from the nature of the transaction
4. Knowledge is not always sufficient
o Must test for the proximity or remoteness of the relation
o Breach:
A breach is conduct that fails to meet the requisite standard of care
To prove, P must show:
1. Negligent conduct by D leading to
2. The supplying of a defective product by D
Look for breach in:
1. Manufacturing of the product
2. Inspecting or testing of the product (for a party that has a duty to do that)
3. Advertising or selling
o I.e., failing to warn about dangerous attributes
Often times breach is hard to prove in negligence cases
o Causation:
Actual cause + promise cause
Actual:
o But for cause/substantial factor
Proximate Cause:
o Foreseeability test
Not enough to just have a defective product – have to have a connection between the
product and the injury
o Damages:
Actual injury/physical harm
If P suffers only economic loss (product does not work as well as expected or
requires repairs), most courts do not permit recovery under negligence
o Defenses:
Typical negligence defenses apply here:
1. Contributory negligence
2. Comparative negligence
3. Assumption of the risk
a. Express
b. Implied
o Retailers:
Retailers will generally have no duty to inspect a product, so typically it will be hard to get
them for negligence, UNLESS they knew or should have known
Recall, complaints, returns, etc.
o Repairs:
An individual who undertakes to make a repair owes a duty to use care to those who may be
foreseeably injured in case the repair is negligently made
Liability for physical injury arising out of a failure to repair turns on whether the contractor
gave an undertaking
When there is an assurance to an owner that a repair has been made even though nothing
has in fact been done, many modern courts have found misfeasance and thus a breach of
duty even to third parties
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If D commences performance and then omits to complete performance, he has
committed misfeasance just as if he had performed negligently and will likely be
liable
WARRANTY
o Overview
Breach of Warranty
Warranty is an expressed or implied representation about a quality or attribute
of a product. If the product does not live up to those representations, and a loss or
harm results, a breach of warranty claim arises
Basis of liability is strict liability
Therefore, if you have that a warranty was made then D is liable
General Rule:
One engaged in the business of selling a product, who, by advertisement, labeling or
otherwise, makes a representation about a material fact regarding a product they
sell, is subject to liability for the physical harm caused to a foreseeable user who
justifiably relies upon that representation, even if:
o There is no privity of contract between the seller and the consumer, and
o The misrepresentation was not made negligently or fraudulently
o Express Warranties
General Rule:
Manufacturer is liable under the principle that they represented something one way,
and there was no other way for the customer to know otherwise
o There was a reasonable reason to rely on what the manufacturer
represents in regards to their products
Caveat Emptor:
Buyer beware
Factors:
1. If there was an expressed statement
2. The goods were NOT fit for their ordinary purpose
3. Plaintiff justifiably relied on the representation
4. Need to have a causal connection – the warranty caused the loss
o Usually shown through reliance
Express Warranty Analysis
1. What were the representations made?
2. Were they made to the ultimate user?
3. Did the consumer understand this warranty?
4. Did the consumer rely on these warranties?
5. Were these representations false?
6. As a result of the falsity, did injury result?
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o Provides a federal tort remedy to persons who are injured as a result of a
knowing violation of a safety standard or a rule of the CPSC
o Warranty Defenses:
Disclaimer of Remedies
Must be conspicuous
Must not be unconscionable
Contractual limitations on personal injury damages resulting from a breach of warranty for
consumer goods are prima facie unconscionable
Disclaimers:
Henningsen v. Bloomfield Motors, Inc.
o RULE:
Disclaimers of implied warranties for the sale of goods and
consequent limitations on liability are invalid if unfairly procured
(not brought to buyer’s attention or are unclear)
o P bought a new car from Bloomfield motors and ten days after the purchase,
the steering wheel spun in her hands and the car crashed. The contract had a
disclaimer on the back in small writing that said D’s liability for breach of
any warranty would e limited to replacement of defective parts.
Court held:
Public policy warrants an invalidation of D’s disclaimer
because it would be unjust to force a buyer to relinquish any
claim for personal injury in the purchase of a car
Also, P were not even aware of the disclaimer
STRICT LIABILITY
o Overview
D sold the product, the product was defective and caused P harm
Defect existed when it left D’s hands
Enters the market without a substantial change
Substantial change would be a question of fact
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“A manufacturer is strictly liable in tort when an article he places on the market,
knowing it is to be used without inspection for defects, proves to have a defect that
causes injury to a human being.”
o P does not have to prove an express warranty to recover
It is implicit in a product’s presence on the market that the
manufacturer of the product represents that the products will do the
job it was built to do.
o § 402A. Special Liability of Seller of Product for Physical Harm to User or Consumer
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
402 A – EXPLAINED
Subsection 1
If there have been substantial alterations to the product, 402 A does not apply
o Breach of warranty or negligence may work but will fail under 402 A
Have to be a merchant of that business
Subsection 2
Exercising all possible care is NOT a defense
Privity is NOT relevant
o Not having a relationship with the seller or manufacturer of the product
does not matter. What matters is whether you suffered an injury as a result
of the defective product
Food Cases
No more distinction between the product itself and the container in which it is sold
1. The two are now treated as one
o If a bottled beverage explodes, it is no longer makes any difference whether
it is due to a defect in the beverage or in the bottle
PRODUCT DEFECTS
MANUFACTURING DEFECT
o General Rule:
Product departs from its intended design even though all possible care was exercised in the
preparation and marketing of the product
Occurs when a product that injures a person does so because there is a flaw that is
not in the general product line – it is a failure of quality control
o Very few cases contain only a manufacturing defect claim
o Burden of Proof
P not required to prove negligence
P can still face significant burdens
o Proving existence of defect may be difficult if the product was destroyed in
the accident
o Defect must be traced back to the sale of the product by the target
defendant, so that a defect resulting from later alteration of the product by
the retailer would not result in liability for the manufacturer
o Must prove that the product defect (not SIMPLY the product) caused the
injury
o P can expect to face charges that the injury resulted not from the product
defect but rather from contributory negligence or misuse of the product
DESIGN DEFECT
o General Rule:
The foreseeable risks of harm posed by the product could have been reduced or avoided
by the adoption of a reasonable alternative design by the seller or other distributor, or
predecessor in the commercial chain of distribution, or the omission of the alternative
design renders the product not reasonably safe
Entire product line is challenged
o § 402 A
“Defective condition unreasonably dangerous”
Defective condition:
o Condition not contemplated by the ultimate consumer, which will be
unreasonably dangerous to him
Unreasonable danger:
22
o
Dangerous to an extent beyond that which would be contemplated by the
ordinary consumer with ordinary knowledge common to the community
Became known as the consumer expectations/consumer contemplation test
23
What is a safer alternative design?
Design change must result in an increase in safety sufficient to have prevented or
significantly reduced the harm to the plaintiff
1. This is the fundamental causation requirement
New design should NOT introduce significant new dangers as the cost of
eliminating the risk that harmed P
Design must be one the manufacturer could feasibly have adopted at the time the
product was marketed
1. Feasibility:
Safety gain must be worth loss of utility so that the greater the gain
in safety, the more loss of utility can be tolerated
Many safety features reduce the utility of the product by
making it harder or more inconvenient to use
Must use technology that was available to the manufacturer given
the “state of art” at the time of manufacture
Subsequent technological advances do not retroactively
make older products “defective”
Alternative design must be economically viable in the marketplace
1. A proposed safety feature that would make the product too expensive to
market successfully would not be required
o Crashworthiness
A difference existed at one time on the issue whether an automobile was defective if it had
not been designed to minimize injury to occupants during a collision
Courts have held that if the risk of collision is foreseeable, the design must
reflect that
Most crashworthiness or enhanced injuries cases involve automobiles, but not all do
Snowmobile, motorcycle, riding lawnmower, etc.
Crashworthiness claim against manufacturer requires proof that the defect ENHANCED
plaintiff’s injuries
Jury may allocate fault between P for causing crash and manufacturer for enhanced
injury if P’s conduct was a proximate cause of the harm for which he is seeking
damages
24
That the product was so unsafe and had so little utility that it should not be
marketed at all
o Food
Courts are split on whether to impose strict liability on vendors of food when the suit is
based on an injury-producing substance in food
“Foreign-Natural Test”
Strict liability is only applicable if the injury-causing substance is a
piece of glass, wire, or other substance “foreign” to the food
If the substance is natural, like bone fragments in meat, pits in
cherries, or shells in nuts, strict liability is NOT available and P must
prove negligence in the preparation of the food in order to recover
“Reasonable Expectations”
o Regardless whether the injury-producing substance is natural or foreign,
strict liability will lie if the consumer of the product would not reasonably
have expected to find the substance in the food
o Allergic Reaction
An allergic reaction to a drug/product may occur because of an individual’s unusual
susceptibility to an ingredient
Since the product is reasonably fit for the ordinary user, might be said there is no
defect and no recovery
Majority:
25
Handled this as failure to warn issue and imposed a duty on the manufacturer to
warn of possible adverse reactions only if it knew or should have known of the risk
WARNINGS DEFECT
o Defect due to failure to warn
o Elements:
1. Manufacturer KNEW or SHOULD HAVE KNOWN about the hazard, and
(Fault based standard)
2. Failed to take precautions in making the product to warn
o Plaintiff must ONLY prove that the defendant did not adequately warn of a particular risk that was
known or knowable in light of generally recognized and prevailing best scientific and medical
knowledge available at the time of manufacture or distribution
o Manufacturer is NOT liable for failing to warn about dangers that could not have been discovered
or about uses of products that were not foreseeable
o Rule does not require that the manufacturer warn against unforeseeable and unreasonable uses of
the product, but it does require they alert the consumer to the more common dangers associated
with misuse
26
o Peanut butter does not need to have any further warning about peanut
allergies beyond the name of the product since peanuts are clearly expected
by the consumer and those with peanut allergies are aware of the danger
Some national fast food chains have a warning on their menu that
their food is fried in peanut oil since the ordinary consumer might
not suspect that an order of French fries could contain peanut
residue
o Adequacy of Warning
Determination of whether the warning was adequate is usually left to the jury who in turn
rely on expert testimony
o Sophisticated Users
Extent of expertise of the known user should be taken into account
Example:
o Plastic pipe manufacturer did not have duty to warn gas company or its
employees because it was common knowledge among workers that failure
to take certain precautions would greatly increase danger from static
electricity build up
Law is not settled on situations where products are marketed directly to the general
public rather than physicians
Ex: drug that treats baldness, allergies, etc.
Restatement Third § 6
o Leaving to developing law whether warnings must be given directly to
patients in circumstances where governmental regulation mandates direct
information or where manufacturer is advertising to public
Manufacturer would NOT be liable if a drug proved to have a dangerous side effect that
testing did not and could not have discovered in advance of the product’s marketing
27
Assists P in proving causation after P has proved an adequate warning
D’s evidence may be so strong that court finds, as a matter of law, that an adequate
warning would not have been heeded
PROOF
Claims of Defective Products
o To maintain a claim for a defective product, P must prove:
1. The product that injured P was, in fact, manufactured by D
2. The product was defective and P was injured as a result
3. The defect was present in the product at the time of sale, not introduced by a distributor or
installer or repairer
o These elements can be proven by circumstantial evidence and P need NOT prove that all other
possibilities did not cause the injury
Res ipsa loquitor has no application to a strict liability case since negligence is not in question but the
inferences are the core of the doctrine are applicable to strict liability
o In other words:
The fact that the product failed in a way that caused injury may, in a proper case, give rise to
a permissible inference that it was defective and that the defect existed when it left the
hands of D
o As with Res Ipsa Loquitor cases in negligence cases, P must provide sufficient evidence to exclude
other causes of accident not attributable to product malfunction
Generally, under those circumstances, P is not required to prove a specific defect
Referred to as the “general defect theory” or the “malfunction theory”
28
Example:
Federal Rule of Evidence 407 – evidence of subsequent remedial measures not
admissible to prove negligence, defect or need for warning but may be admitted to
prove ownership, control or feasibility of precautionary
DEFENSES
PLAINTIFF’S CONDUCT
o Traditional Strict Liability Rules
Contributory negligence is NOT a defense
o Comparative Negligence
Most jurisdictions have extended comparative negligence to strict liability products actions
(reduces P’s recovery only to the extent that his own lack of reasonable care contributed
to his injury)
A few have either refused to recognize comparative fault in products liability OR
have limited it to situations where P assumed the risk
o Assumption of Risk
When P voluntarily confronts a known hazard, the Second Restatement and some courts
would bar the claim
Other courts would subject P to the same fault apportionment as in comparative negligence
and limit recovery
o Product Misuse
General Rule:
Manufacturer is NOT liable for injuries resulting from abnormal or unintended use
of his product that was reasonably foreseeable
29
1. Decide if Congress intended to invade area where state’s have jurisdiction
2. Decide if it is expressed or implied
3. Look at plain meaning of the statute (express)
o Express Preemption:
In statutory schemes where Congress has made its intent to preempt state law clear, the
courts have no choice
State law is preempted by federal law and the manufacturer need comply only
with the federal statute and the regulations issued under it
o Implied Preemption:
Where congress has NOT made its intent clear, the courts must determine whether
preemption is warranted and which claims are to be preempted
Requires case by case analysis because the statutes themselves vary and because
some claims under a given statute may be preempted while others are not under
what are sometimes called “frustration of purpose preemption” and
“impossibility preemption”
Can also occur when a tort claim would create a situation where it would be impossible for
D to comply BOTH with what the plaintiff in the tort claim is arguing should have been done
and with what the federal law requires
30
o Occasional Sellers
A seller who does not hold himself out as having any knowledge or skill in the commercial
sense will NOT be subject to strict liability
Restatement Third § 1
Applies only to those engaged in the business of selling or otherwise distributing the
type of product that injured the plaintiff
o Owners
Owner of a product may be subject to liability for negligence, but NOT for strict liability
since the owner receives products from the stream of commerce; the owner does not place
the product in the stream of commerce merely by offering it to a guest
SERVICES
o Typically not subject to strict liability
Do not involve a group of consumers needing protection from a remote and unknown
manufacturer
o Predominant Factor Test
When the transaction has characteristics of both a sale and a service
Courts will not apply strict liability if the transaction is predominately a service with only
an incidental transfer of goods
Example:
o No SL because repair of truck steering mechanism was predominately a
service transaction
o Even if strict liability does NOT apply, one who renders a service to another is under a duty to
exercise reasonable care in doing so and is liable for any negligence to anyone who may
foreseeably be expected to be injured
o Some services may be considered “abnormally dangerous”
31
o Blood, Blood Products and Human Tissue
Most jurisdictions exempt the providers of blood and blood products and usually human
tissue from SL
Usually done by statute
Protection extends not only to the physician or other healthcare provider, but also
to a commercial supplier
Suppliers only liable if P can prove negligence
o Other Circumstances:
Animals
A living animal sold commercially in a diseased condition is a product
Charts and Maps
Mass production and marketing of aeronautical charts requires D to bear the costs
of accidents caused by defects in them
Books and Games
Restatement Third § 19
o Although a tangible medium such as a book, itself clearly a product, delivers
the information, P’s grievance in such cases is with the information not with
the tangible medium
Computer Software
9th circuit suggested in dicta that it though California would apply SL to computer
software that “fails to yield the result for which it was designed”
Electricity
Pennsylvania:
o Electricity is a service while passing through transmission lines but becomes
a product after it passes through the meter to the user’s abode
Judge decides whether the situation sits within the statutory definition or is one to which SL
should apply
o Damage to Property
Section 402 A covers damage to property as well as persons and most courts have agreed
with this extension of strict liability beyond personal injury
When the product itself is destroyed by a defect in it most courts treat this as an economic
loss not recoverable in tort
When defective product is used in the process of manufacturing another product and that
other product is ruined as a result, treated as damage to property and recovery allowed
under strict liability
32
Pure economic loss:
A loss resulting from the failure of the product to perform, unaccompanied by
personal injury or damage to other property
o Can only be recovered in action for breach of express/implied warranty
Reasoning:
Issues of personal injury and safety require the fixed and unavoidable standards of
tort law, while issues of product performance may be left to the private ordering of
the parties
Only covers damage to the product itself – damage to other property is covered by the tort
rule
EXCEPTION:
A few courts have recognized an exception to the rule that excludes recovery for
pure economic loss when the alleged defect creates an “unreasonable risk” of injury
to persons, even though no one was actually injured.
NUISANCE
OVERVIEW
Nuisance Definition:
o Word refers to a kind of interest invaded, a type of damage or harm
It is NOT a type of conduct on the part of D or a condition created by D
o Nuisance is a field of liability rather than a particular tort
2 Fields of Liability
1. Public Nuisance
2. Private Nuisance
Rare for elements of both public and private nuisance to be found in a single claim
Basis of Liability
o Intent
Occurs when D knows that his conduct interferes with P’s use and enjoyment of her
property, or is so substantially certain to result from his conduct
A person who intentionally creates or maintains a private nuisance is liable for the resulting
injury to others regardless of the degree of care or skill exercised by him to avoid such
injury
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o Negligence
When D has not intentionally interfered with the protected property interest, but has failed
to exercise reasonable care to avoid interference
o Strict Liability
May be imposed when D’s activity is abnormally dangerous or ultra hazardous or poses an
extreme danger to P’s enjoyment and use of his property
Basis of liability matters because damages and available defenses may be affected by the basis of the
claim
o Sometimes liability can be grounded on all three theories
Elements of Nuisance:
1. Unreasonableness
The harm caused by the conduct is serious and the financial burden of compensating for
this and similar harm to others would not make the continuation of the conduct not feasible
2. Substantial Harm
Means more than a trifle, significant injury must occur
Substantial is if it changes the condition of the land, there is measureable economic loss, or
it causes only personal injury
If it only results in annoyance or discomfort, that must be severe in order to amount
to substantial interference
Concept of substantial harm is difficult and requires a balancing test
Compare the extent of harm to different factors
Greater the magnitude of harm, more likely the court will find the conduct to be a nuisance
3. Recurrence
Courts will look to the continuing nature of the activity
Not a conclusive factor – must be considered with others like magnitude of the harm
Balancing Test
o Gravity of the harm against the utility of D’s conduct
Factors:
1. Amount of harm caused by the activity
2. Capacity of each party to bear the harm and shift the loss
3. Nature of the clashing land use
4. Nature of the locality
5. Which activity has priority in time
PUBLIC NUISANCE
o § 821B definition:
An unreasonable interference with a right common to the general public.
34
Circumstances that may sustain a holding that an interference with a public right is
unreasonable include the following:
a. Whether the conduct involves a substantial interference with the public health,
public safety, public peace, public comfort or public convenience, or
b. Whether the conduct is proscribed by a statute, ordinance or administrative
regulation, or
c. Whether the conduct is of a continuing nature or has produced a permanent or
long-lasting effect and, to the actor’s knowledge, has a substantial detrimental
effect upon the public’s right
o Requirements:
1. Must be a public right
Common to all members of the general public
Does NOT need to effect the entire community, so long as the nuisance will interfere
with those who come in contact with it in the exercise of a public right or it
otherwise affects the interest of the community at large
o Examples:
Public Health – pollution or swamp, keeping a diseased animal
Public Safety – vicious dog, crack house, storage of explosives
Public Comfort – blocking a public road way or bad odor
o Expanding Realm of Public Nuisance – actions have been brought in these areas
Street Gang Violence
Court found that citizens had suffered particular damage through activities that
constituted a public nuisance
Handgun Liability
Congress passed the Protection of Lawful Commerce in Arms Act: required the
dismissal of any pending or future claims based upon a general tort theory of
liability
Methamphetamine Production
Court rejected the county’s public nuisance claim against pharmaceutical
manufacturers premised on the use of their products in methamphetamine
production
PRIVATE NUISANCE
o Definition:
Unreasonable interference/non-trespassory invasion of another’s interest in the private
use and enjoyment of land
35
A tort to an owner/possessor of land
Interference might be with:
1. Physical condition of the premises – as by blasting or vibration that damages a
house
2. Health of the occupant – as by unsanitary conditions on adjoining property
3. With his comfort or convenience – as by smoke, odors, noise or heat
4. With his peace of mind – as in the case of a nearby funeral home
5. Threat of future injury may be treated as a present menace and interference with
enjoyment – as in the case of stored explosives or a vicious dog
Typically involves the problem of conflicting land uses
o Elements:
1. P has an interest in the land that has been substantially and unreasonably interfered with
2. D behaved in an intentional, negligent or abnormally dangerous manner
o Proper Plaintiff
Possessor (adjoining or neighboring)
Owners
Estates
o Examples:
Noise – unusual or sustained
Light – shining excessive light or absence of light
Dust
Smoke
Smells
DEFENSES
Contributory Negligence
o Intentional private nuisance – contributory negligence NOT a defense
o Negligence – most courts say contributory negligence eliminates or reduces recovery
36
o Strict Liability – contributory negligence of P failing to discover the danger is NOT a defense BUT if
P discovers the danger and deliberately proceeds to encounter it, his contributory negligence or
assumption of risk may affect his recovery
NUISANCE REMEDIES
Damages
o Usually remedy preferred by most courts
o Formula for determining loss:
Fair market value of the land before injury – fair market value immediately after nuisance
o Types of Damages:
37
Temporary
Permanent
Where a nuisance is of such a permanent and unabatable character that a single
recovery can be had, including the whole damage past and future resulting
therefrom, there can be but one recovery
Punitive
P must prove that D’s conduct was intentional, gross, willful or wanton
Injunction
o Generally appropriate where a nuisance would otherwise persist after trial
Money damages not appropriate
o Conditional Injunction:
Conditions an injunction on payment of damages; stops until you can impose a mechanism
to reduce or eliminate the problem
Courts can grant an injunction until the nuisance stops or until money damages are
paid to P
o Balancing of the equities – determines if injunction is the best remedy
Compares the value of the business against the needs of P
Factors:
1. Character or extent of the harm suffered by or threatened to P
2. Good faith or intentional misconduct of D or his efforts avoid injury to D
3. Financial investments of the parties and the relative economic harm each will suffer
from grant/denial of injunction
4. Interest of the general public in the continuance of D’s enterprise
Riparian Rights
3 legal theories:
1. Natural flow theory – right to have water flow as it was wont to flow in
nature, qualified only by the right of each riparian owner to make a limited
use of it
2. Reasonable use theory – right to be free from unreasonable uses that cause
harm to the proprietor’s own reasonable use
Adopted in majority of American states – largely majority rule
3. Prior-appropriation rule – beneficial use of water is the basis of the right
to it and that priority of use is the basis of the division of it between
appropriators when there is not enough for all
Adopted largely in western states
Ground Water Rights
3 theories:
1. English rule of absolute ownership
2. American rule of reasonable use, a rule of correlative rights, and
3. The rule that an “underground stream” is treated like a surface stream
Surface Waters
General agreement that landowner can use as much of them as he needs
38
DEFAMATION
o Action of defamation will lie ONLY if the statement is both defamatory and false
o Issue of defamation is embedded in time, place, and culture
o Elements of Defamation
1. A false and defamatory statement concerning another;
2. An unprivileged publication to a third party;
3. Fault amounting at least to negligence on the part of the publisher; and
4. Either actionability of the statement irrespective of special harm OR the existence of special harm
caused by the publication
o Proper Plaintiff:
Living
NO defamation for the dead since there is no living person whose reputation is
affected
o BUT defamation of the dead may defame the living – could affect a relative
Company – if it affects the business
Can maintain an action for defamation that makes others question its honest, credit,
efficiency, or other business or moral character
39
Non-Profit – if it affects the gift
Defamation can affect its character or operations and may deprive it of gifts or other
sources of revenue
o Pleading Defamation
o If defamation is not plain on its face, P must plead the context that makes the words or conduct
defamatory
o P must plead:
1. Defamatory words
The words/statement
2. The Publication
Term of art – the communication of the words to a third person, someone other than P
3. Inducement
Have to bring in extrinsic facts to show that the words or conduct were reasonably
understood to convey a meaning defaming P
4. Colloquium
40
Formal allegation that the words were spoken of and concerning P
5. Innuendo
An allegation of the particularly defamatory meaning conveyed by the words
6. Special damages
Plead them when they are necessary to the cause of action; will not always have to
prove special damages
o Colloquium and Innuendo must be reasonable in the light of the words spoken and the facts
pleaded in the inducement
If the words, together with the facts, do not fairly support the defamatory meaning pleaded,
no cause of action is made
o Colloquium
o Reference to P need not be to him by name if it is reasonably understood as referring to him
If words are NOT reasonably understood to refer to P there is NO defamatory imputation
identifying P
o When P is not expressly identified, issue is whether a reader with knowledge of the surrounding
circumstances could have reasonably understood that the words referred to P
Fewer the number of persons who are possessed with knowledge of the surrounding
circumstances that identify P, the less damages that may be awarded
o Standard against which the material is read or understood changes with the medium
o Burden of Proof
o P has to allege in his complaint the statement is false
o D has burden to raise affirmative defense
Truth is an affirmative defense
o § 568
o Libel consists of the publication of defamatory matter by written or printed words, by its
embodiment in physical form or by any other form of communication that has the potentially
harmful qualities characteristic of written or printed words
o Slander consists of the publication of defamatory matter by spoken words, transitory gestures or by
any form of communication other than those stated in Subsection (1)
o The area of dissemination, the deliberate and premeditated character of its publication and the
persistence of the defamation are factors to be considered in determining whether a publication is a
libel rather than a slander
o LIBEL
o Definition:
Originally concerned written or printed words
§ 568
Libel consists of the publication of defamatory matter by written or printed words,
by its embodiment in physical form or by any other form of communication that
has the potentially harmful qualities characteristic of written word
41
o Damages:
Damages are PRESUMED
Do NOT have to prove special damages
o SCOTUS has held that a criminal libel statute is unconstitutional IF it imposes a penalty for
making a true statement about a public official
However, a criminal libel prosecution of public (and private) persons IS sustainable if
“calculated falsehood” is proved
o SLANDER
o Definition:
Originally oral
§ 568
Slander consists of the publication of defamatory matter by spoken words,
transitory gestures or by any form of communication other than those covered by
libel
o Damages:
MUST prove special damages
Must show nexus between the statement and harm to P’s relationship
Courts require proof of loss of something of material value as the result of the
damage to P’s reputation from the slander
o If no pecuniary loss is shown, it is NOT enough that P suffered acute mental
distress or serious physical illness
Loss of friends, becoming ill and rumors spreading are not enough
42
If the spoken words are likely to affect P in his business, trade,
profession or office, the probability of some “temporal” damage is
sufficiently obvious
Limited to defamation of a kind incompatible with the
proper conduct of the business itself
Person must be employed in the profession at the time the
statement is made
4. Serious sexual misconduct
Principal application of this was a charge imputing un-chastity to a
woman
American courts found the imputation was equivalent to a charge of
the crime of adultery or fornication, which involved moral turpitude
Assumption has always been that the imputation of un-chastity is
not so damaging to a man and is not slander per se unless it is under
another exception
Statements falsely describing a person as lesbian, gay or bisexual are
not defamatory per se
o LIBEL V. SLANDER
o Factors:
1. The area of dissemination
2. The deliberate and premeditated character of its publication
3. The persistence of the defamation
o Radio v. TV Broadcast
Most states have statutes that any broadcast defamation is treated as slander whether
there is a script or not
Common law is libel
PUBLICATION
Publication is a term of art in defamation cases
o Communication of the defamatory words to someone OTHER than the person defamed
It is not enough that the words are spoken to P himself, even in the presence of others, if no
one else overhears them
Instances of Publication
No publication if the defamatory content is sent by D to P in a sealed letter that is
unexpectedly opened and read by a third person
o BUT there is liability if D knows, or should know, that P’s spouse or
secretary is in the habit of reading P’s mail, or in the circumstances would
likely read it, and the words are read by the person
43
There is publication when a telegraph company transmits a message or a third
party orally repeats a message
Postal service does NOT make a publication when it delivers a letter
No publication by a telephone company when its system it used for communication
purposes
o Same rule for an internet service provider
Republication
o Common Law Rule (MINORITY)
Every sale or delivery of a copy of the publication created a new cause of action
o Primary Publishers
Liable
If you do not know, there is a duty to research beforehand
Newspaper and Book publishing companies are primary publishers
Subject to strict liability even though it innocently took the defamatory material
from someone else without reason to be put on guard
Qualified Privilege
o Under CL, employers enjoyed a qualified privilege when discussing matters related to
employment with individuals having a corresponding interest or duty
Privilege can go away if employer acted recklessly or with malice
BASIS OF LIABILITY
45
o There must be sufficient evidence that D entertained serious doubts as to
the truth of his publication; publishing with such doubts shows a reckless
disregard for the truth
Can look at D’s knowledge and actions or omission in respect of that knowledge
Purposeful avoidance by the media may constitute actual malice while failure to
investigate is only negligence
Negligence and profit motive are insufficient
o Fair Reporting
Reporters Privilege (or “record libel”)
Did NOT exempt D from liability unless his report was verbatim or a fair and
accurate summary
o There is now a constitutional requirement of fault in failing to make the
report fair accurate, but it remains a privilege
Actual malice standard applies for reports on official actions providing a fair and
accurate rendition
Public Meetings
o A privilege to report often attaches to info of public concern uttered at
public meetings
o Meetings need not be official but should be open to a wide segment of the
public
Private Meetings
o Not included in the privilege
46
2. Their assumption of risk
o Public Official:
Easier to identify than public figures
People who have, or appear to the public to have, substantial responsibility for or
control over the conduct of governmental affairs
Any person that has such apparent importance that the public has an independent
interest in the qualifications and performance of that person who holds that
position beyond the general public interest in qualifications and performances of all
governmental employees
o First Amendment provides significant protections for speech on matters of public concern
True speech on these types of matters should generally be protected AT ALL TIMES
Only reason to disregard the protections is if the speech is FALSE
o Gertz
All plaintiffs, public or private, in cases of publish interest speech, may claim punitive and
presumed damages where actual malice is proved
o PRIVATE PLAINTIFF’S
o Private Figure:
Absent clear evidence of general fame or notoriety in the community, and absent pervasive
involvement in the affairs of society, an individual should NOT be deemed a public
personality for all aspects of his life
47
Person does not become a public figure merely because he has become involved in
controversy
When private individuals are defamed, state has a greater interest in providing
compensation for damaged reputations
o Damages:
Private plaintiff who establishes liability under a less demanding standard than NYT may
recover ONLY damages that compensate him for actual injury
Restricted to damages based on actual injury – injury MUST be proved
o Actual injury may be injury to reputation, personal humiliation, mental
aguish and suffering, or emotional distress
No presumed or punitive damages when liability is not based on a showing of knowledge
of a falsity or reckless disregard for the truth
Only awarded when actual malice is established
o OPINION
o Generally, pure opinion is NOT actionable
EXCEPTION
Statement implies undisclosed, unascertainable, objective facts that are false and
defamatory – look at the context
First Amendment does not automatically protect opinions from defamation laws
o Factors:
1. Specific language used;
2. Whether the state is verifiable;
3. General context of the statement; and
4. Broader context in which the statement appeared
48
o Restaurant Reviews
Have prompted litigation
Even if review statements could be reasonably regarded as asserting fact, the restaurant is a
public figure and P must show actual malice
o FALSITY
o Common Law Rule on Falsity:
D must bear the burden of proving truth
o Media Defendant:
When a media defendant publishes a matter of public concern, a private plaintiff may
ONLY recover damages by showing that the statement at issue is false and D is at fault
The only reason to disregard First Amendment protections of speech on matters of
public concern is if the speech if false
o P bears burden of showing falsity
Adds little to their burden – all private plaintiffs must first show D is
at fault
PRIVILEGES
o Absolute Privilege – Cannot be lost
o Judicial Privilege
Judge has absolute immunity for defamatory words published in course of judicial
proceedings
If trial is broadcast, judge, attorney and station are covered
Witnesses, even though they testify voluntarily and not under subpoena
Hearing of a sanity commission
When proceedings of administrative agencies are found to be judicial in character
LIMITATION:
Once privilege is found to exist, ONLY limitation is that what is said MUST be found
to have some reasonable bearing upon or relation to the subject of inquiry
o Privilege does NOT extend to what is said outside of court
o Legislative Proceedings
Privilege applied to members of Congress and of state legislatures in the performance of
their legislative functions
Extends to hearings of the legislative body and to witnesses testifying at the hearings
Local legislative bodies – like city councils
Majority view is that they have an absolute privilege
o Whether a privilege exists is a question of law – whether it is lost is question of fact UNLESS
reasonable minds cannot differ (does not go to the jury then)
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Allowed publisher to offer criticism on matters of public concern
Criticism must be comment or opinion, NOT a misstatement of fact
Must be fair- based upon true facts and express what an honest-minded person
might conclude
Opinion does NOT have to be reasonable
Privilege can be abused and lost IF criticism did not represent the actual opinion of
the critic, or if it were made solely for the purpose of causing harm to the person
criticized
Defense of fair comment applies where a private person is defamed by
broadcasters
REMEDIES
Damages
o Damages confined to compensation for ACTUAL INJURY unless P establishes actual malice
Actual Injury may include impairment of reputation and standing in the community,
personal humiliation and mental anguish and suffering as long as there is PROOF
o Presumed Damages:
Common law position of presumed damages restored for publications NOT of public
concern
o Mitigation of Damages
Provocation by P is generally regarded as admissible for mitigating punitives
Minority rule says it can be considered in mitigation of compensatory damages
Where the defamatory statement would not be believed, the resultant damages are reduced
o Bad Reputation
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Evidence of a bad reputation may reduce the damages P can recover
Evidence must relate to the content of the defamation claimed
Rumors are admissible if shown to be sufficiently widespread to affect P’s
reputation
o Punitive Damages
Freely awarded at CL if malice was shown
Punitives allowed in private figure/private speech context
Declaratory Relief
o Purpose is to obtain a judicial determination that the statement about P is false, and thus to
vindicate his reputation – to make him whole, as far as the law can
Self-Help
o First remedy of any defamation victim is self-help
Using available opportunities to contradict the lie or correct the error and minimize its
adverse impact on reputation
Defamed party may make a response to the defamatory statement about him if he can find a
suitable medium for response
o Right of Response Statutes
Several states have passed statutes requiring a public communications medium to give a
right of response to a person who claims that he has been defamed by it
o Retraction Statutes – in about 30 states
Retraction, to be effective, must be unequivocal and not partial or hesitant and hypothetical
Evasive and incomplete retraction MAY be grounds for punitive damages
Injunctive Relief
o Prior restraint of a publication runs afoul of the First Amendment
PRIVACY
What is Privacy?
o Protects your personal affairs – it is an “umbrella” tort with 4 branches
General Rule:
o One who invades the right of privacy of another is subject to liability for the resulting harm to the
interest of the other
4 Branches of Privacy
1. Unreasonable intrusion upon the seclusion of another
2. Appropriation of the other’s name or likeness
3. Unreasonable publicity given to the other’s private life
4. Publicity that unreasonably places the other in a false light before the public
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If there was no opportunity to earn money for the spectacle, performer’s incentive
to deliver the performance and audience’s opportunity to view it would diminish
Constitution does NOT privilege media to broadcast copyrighted materials or private
exhibitions, such as sporting events, without compensation
o Concerns about the balance between free speech under the First Amendment on the privacy right
Example:
Vanna White case – dissent said right to publicity had become too expansive and
inconsistent with free speech notions where actionability rests simply on the
invocation of the “celebrity’s image in the public’s mind.”
INTRUSION
o Involves the invasion of a person’s private space or affairs
One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of
another or his private affairs or concerns, is subject to liability to the other for invasion of
his privacy, if the intrusion would be highly offensive to a reasonable person
Example:
o When D intrudes into P’s home (e.g., by peering through P’s windows) or
eavesdrops on P’s conversations through microphones or wiretapping
Nature and identity of the intrusion is very important
What can be intruded upon?
Place, conversation, private matters, penetration of a physical zone (video and
listening devices)
You are allowed to re-tell and repeat things but recording things is an intrusion!
Publication of the information is not necessary for intrusion by seclusion
o ELEMENTS
Intrusion must be intentional and into a private place, conversation, or matter; and
Highly offensive to a reasonable person
o Highly Offensive Factors
Degree of the intrusion
The context
Conduct and circumstances surrounding the intrusion
Intruder’s motives and objectives
The setting in which he intrudes
The expectations of those whose privacy is invaded
o Reasonable Expectation of Privacy
People can have reasonable expectations of privacy in places they do not own
Intrusion may be available where person cannot sue for trespass
o Example: public restroom
Not all cases of trespass give rise to intrusion
Expectation of privacy does not have to be complete, can be limited
Examples:
o Doe v. Doe – there was limited, but reasonably, visual privacy in the
workplace
o De May v. Roberts – presence of unnecessary male observer at home delivery
of P’s child was an intrusion even though delivery was also observed by P’s
husband and the attending doctor and a woman assistant
Public nature of the place bears on whether there was a reasonable expectation of privacy
Where the interest protected is HIGHLY personal, for example of a sexual or intimate kind,
psychological tranquility is at stake and the expectation of privacy is at its highest
BUT knowingly exposing oneself in public has no privacy right
o Situations Where You Don’t Normally Have Expectation of Privacy
Ordinarily no liability for taking P’s photo in a public place
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Farmer’s market in LA, courtroom, etc.
APPROPRIATION
o The unauthorized use of one’s photograph in connection with an advertisement or other
commercial enterprise gives rise to a cause of action which would entitle the plaintiff, without
proving special damages, to a judgment of nominal damages, and to injunctive relief if and when the
wrong is persisted in by the offending parties
o ELEMENTS
1. Defendant appropriates (makes use of) Plaintiff’s name or likeness
2. Use was for Defendant’s own purposes or benefit, commercially or otherwise
3. Plaintiff suffered damages
P does not have to show their name/likeness has value to recover
4. Defendant cause the damages incurred
EXCEPTION:
o Tort will not apply when D’s use of P’s name/likeness is backed by a First
Amendment privilege
o Newsworthiness Privilege
Privilege that can defeat a prima facie case, barring recovery
Permits the use of P’s name or likeness when that use is made in the context of, and
reasonably relates to, a publication concerning a matter that is newsworthy or of
legitimate public concern
o Argument is that the article relates to a legitimate matter of public
concern, making it constitutionally protected speech
Public or Private Matter?
o If purpose is primarily non-commercial = PRIVILEGED
Privilege will apply
o If purpose is primarily commercial = NOT privileged
Privilege will NOT apply
Content matters because it will determine whether or not 1st amendment
protection applies for D
o Reporting crimes and convictions are typically matters of public concern
o Article that has commercial undertones may still be protected if it concerns
a legitimate matter of public concerns
Commercial Speech: speech that proposes a commercial
transaction
It is the content of the speech, not the motivation of the
speaker, that determines whether particular speech is
commercial
o Right of Publicity
Protects the commercial value of a plaintiff’s personal image
Requires the advantage be specifically commercial
Governments interest is in providing P with a cause of action to protect his ability to
maintain public interest in his performance
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FALSE LIGHT
o One who gives publicity to a matter concerning another that places the other before the public in a
false light is subject to liability to the other for invasion of his privacy if:
The false light in which the other was placed would be highly offensive to a reasonable
person, and
There is publicity that must be highly offensive and false
o ELEMENTS
Defendant must publicize some matter that places plaintiff in a false light
The false light must be highly offensive to a reasonable person
Defendant must have had knowledge of or acted in reckless disregard as to the falsity of
the publicized matter and the false light in which the other would be placed
o False light suit can NOT be maintained unless there is evidence D made a misrepresentation of fact
that created a false impression on the public’s part regarding P
If D simply satirizes P or makes obviously false claims in jest, tort will not lie
o D’s use of P’s own words CAN give rise to a false light claim
o Tort focuses not on the truth of falsity of a statement, but on whether a statement leads the public
to believe something false about the plaintiff
o Government’s interest is in providing P with a cause of action to recover for damages to reputation
o Actual Malice
Public figures must prove ACTUAL Malice; private figures need only NEGLIGENCE
Actual Malice: knowledge that the statement was false OR reckless disregard of
truthfulness of the statement
Matters of public concern require ACTUAL MALICE
Time Inc. says this – Gertz (defamation) did not require this, but Gertz is not
presumptive here
o Texas does NOT recognize false light invasion of privacy
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MISUSE OF LEGAL PROCEDURE
Misuse of Legal Procedure
o Tort created primarily for the purpose of protecting individuals against harms inflicted upon them
as the result of certain types of abuses of the legal system
Injuries:
Typically range from emotional distress and embarrassment to actual economic
losses
Found on both the criminal and civil side
o Relates to some other case that was going on – the other case that was being prosecuted is either
criminal or civil in nature
Malicious Prosecution
o Focuses on D’s motive in wrongfully initiating some type of legal action against P that was
inappropriate from the very beginning
Remedy for people who were wrongfully subjected to criminal or civil prosecution
o ELEMENTS
1. A criminal prosecution initiated by D;
2. A lack of “probable cause” for the criminal prosecution;
3. Common law malice by D;
4. A termination of the prosecution in favor of the accused; and
5. Special damages
Mistake of Fact:
Prosecutor must have reasonable grounds for NOT believing that the accused is
guilty of the criminal charge
o If prosecutor does NOT honestly believe that the accused was guilty, no
probable cause
Reasonable mistake will NOT destroy probable cause
o D’s subjective knowledge is question of fact for jury
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If a reasonable person would investigate further to make more certain of the facts
before instituting criminal proceedings and the prosecutor fails to do so, he may be
found to have acted without probable cause
Mistake of Law:
Layman who institutes criminal proceeding on facts that do not constitute a crime
mat be held to have acted without probable cause if he failed to consult an
attorney before initiating the charges
o May be circumstances where such conduct is reasonable
Some courts hold that even a reasonable mistake of law will not support probable
cause
o Damages
P must have suffered from damage from the prosecution – it is assumed that some damage,
such as harm to reputation, will necessarily follow
Same is true of humiliation and other mental suffering
May be recovery of special damages that P can prove
Ex: arrest or imprisonment, discomfort or injury to health, and expenses incurred in
defending the criminal damages
Punitive Damages CAN be awarded at the discretion of the jury
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Malice is an ingredient in the determination of punitive damages
o ELEMENTS
1. Prior proceedings terminated in favor of the present plaintiff,
2. Absence of probable cause for those proceedings
3. “Malice”
Malice = a purpose other than that of securing the proper adjudication of the claim
in which the proceedings are based
o Damages:
NOT presumed, must be proven
Jurisdiction are split on what the rule should be for damages
English Rule
o MUST prove special injury
American Rule
o Does NOT require a showing of a special injury
Special Injury: harm to P’s fame, person or liberty, or property
Proof of special injury prevents tons of unnecessary litigation
Harm normally resulting from arrest or imprisonment
Harm to reputation, expense that he has reasonably incurred in defending himself
against the proceedings, any specific pecuniary loss that has resulted from the
proceedings, any emotional distress that is caused by the proceedings
Abuse of Process
o Involves various types of legal process which, although properly initiated against P, nevertheless
should NOT have been brought at all because of D’s improper motive in doing so
o ELEMENTS:
P must plead and prove:
1. An ulterior purpose; and
2. An act in the use of process which is improper in the regular prosecution of the
proceeding
o Ulterior Purpose
Refers to D’s true (i.e., subjective) motivation for causing the process to be issued, and that
purpose must be for something other than that for which the process was designed to be
used
Can be proven directly – where D made a demand for some collateral advantage over P
Can be implied from D’s use and disposition of the process once an unfair advantage over P
has been obtained
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Action for medical malpractice to coerce a settlement by tying a physician up in litigation
with its attendant time away from practice may establish malice but does not constitute
abuse of process
Not delimited by the requirements of malicious prosecution
Abuse of process action may proceed without termination of action in favor D, an
essential element of malicious prosecution
MISREPRESENTATION
INTRODUCTION
Three Forms of Misrepresentation:
1. Negligent Misrepresentation
2. Fraud/Deceit (Intentional)
3. Innocent Misrepresentation
INTENTIONAL MISREPRESENTATION
ELEMENTS:
1. Misrepresentation made by D of material, past or present fact;
2. Scienter;
3. An intent to induce P’s reliance on the misrepresentation;
4. Causation (actual reliance on the misrepresentation);
5. Justifiable Reliance by P on the misrepresentation; and
6. Damages
Misrepresentation
o D must make a misrepresentation to P
D’s actions may constitute a misrepresentation
Intentionally concealing something will be treated as if D affirmatively misstated that fact
o Requires representation
If D says nothing and remains silent, there is no claim
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o Usually there is a requirement that false representation be of material past or present fact.
Misrepresentation of opinion MAY be actionable in certain cases
Material:
o A matter is material if it is one to which a reasonable man would attach
importance in determining his choice of action in the transaction in question
Something you would want to know before making the transaction
False representations are ONLY actionable if they are based on existing facts
A statement that a third party has the intention to do something can constitute an
assertion of fact if the individual making the statement intended the recipient to
understand the statement as an assertion of fact
Misrepresentation as to an individual’s state of mind is a misrepresentation of fact
and is actionable
o Non-Disclosure
D who does NOT have a duty to disclose known facts to P will not be liable for fraud based
on his mere concealment of those facts from P
D who conceals a material fact will ONLY be liable for fraud if he also utters a falsity,
half-truth, or misrepresentation of a material fact
o Fraudulent Misrepresentation
Individual may NOT be held liable for fraudulent misrepresentation if he reasonably
believes his representation is accurate
Misrepresentation made on insufficient, although reasonably believable grounds
does NOT amount to fraud
A belief might be sufficiently unreasonable that the court will determine that the belief is
not in good faith and thus not realistically held by D
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1. When D actively conceals a defect or other disadvantage in something that
he is offering for sale to another
D is subject to liability if he paints over and so conceals a defect in a
chattel or a building that he is trying to sell to P and thus induces P to
buy it in ignorance of its defective character
2. When D reads a K to P and omits a portion of it
Or if D stacks aluminum sheets he is selling as to conceal defective
sheets in the middle of the pile
Causation
o P must prove that the misrepresentation played a substantial part in inducing him to act as he did.
P must prove actual reliance
Justifiable Reliance
o P’s reliance must be justified
Reliance of P on representation of fact is almost always justified
P does not have a duty to investigate a statement by D to determine if it is true or
false
o But P may not overlook the obvious
o If P does his own investigation and relies upon his own investigation rather
than the statements of D, no claim for misrepresentation
P cannot rely on an obvious falsehood
o If the statement is so obviously wrong that people should see the falsehood,
P cannot rely – obviousness of the falsehood would make reliance similar to
assumption of risk
o Court must determine whether the falsity of the statement relied upon was
detectable by ordinary observation. Court takes into account:
Intelligence and experience of P and the relationship between the
parties involved
Materiality:
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P must show that the fact that he relied on was material to the underlying
transaction
EXCEPTIONS:
D has Superior Knowledge
o If the D making a false representation of opinion has a superior knowledge
of the subject, reliance by P without such knowledge might be justified
Statements of Law
o Treated as statements of opinion if they are merely predictions as to the
legal consequences of facts.
o May NOT be justifiably relied upon unless statement is made by a lawyer
(superior knowledge rule operates).
Statement of law that includes express or implied misrepresentation
of fact is actionable
o Example:
D falsely states that the house she is offering for sale conforms to the
city pluming and electrical requirements. Liability exists.
o General Rule:
Fraud cannot be predicated upon misrepresentations of law or
misrepresentations as to matters of law. Misrepresentations
concerning the legal effect of an instrument have been held to NOT
be actionable.
Reasoning:
Every man is presumed to know the law and no man, at least
without special training, can be expected to know the law
o § 545: Misrepresentations of Law
If a representation as to a matter of law in a business transaction is a
representation of fact the recipient is justified in relying upon it to
the same extent as though it were a representation of any other fact
If the representation as to a matter of law in a business transaction is
a representation of opinion as to the legal consequences of facts
known to the maker and the recipient or assumed by both to exist,
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the recipient is justified in relying upon it to the same extent as
thought it were a representation of any other opinion
o If a representation concerns the legal effect of facts not disclosed or not
otherwise known to the recipient, it may justifiably be interpreted as
implying that there are facts which substantiate the statement
o If a representation as to a matter of law in a business transaction is a
representation of fact, the recipient is justified in relying upon it to the same
extent as though it were a representation of any other fact
Damages
o P may ONLY recover if he has suffered actual pecuniary loss as a result of the reliance on the false
statement
If misrepresentation was made by D directly to P, most courts give the benefit of the
bargain measure of damages
Defenses
o Contributory Negligence does NOT bar recovery when the misrepresentation is intentional
NEGLIGENT MISREPRESENTATION
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ELEMENTS:
1. Misrepresentation made by D in a business or professional capacity;
2. Breach of duty toward particular P;
3. Causation;
4. Justifiable reliance by P upon the misrepresentation; and
5. Damages
§ 311
1. One who negligently gives false information to another is subject to liability for physical harm
caused by action by the other in reasonable reliance upon such information, where such harm
results:
a. To the other, or
b. To such third persons as the actor should expect to be put in peril by the action taken
2. Such negligence may consist of failure to exercise reasonable care
a. In ascertaining the information, or
b. In the manner in which it is communication
Business Relationships
o Recovery allowed where D’s statements are made in the course of his business or profession and D
had a pecuniary interest in the transaction
Action generally confined to misrepresentations made in commercial setting
o Restatement § 531:
A person who makes a misrepresentation is liable to the person or class of persons the
maker intends, or “has reason to expect” will act in reliance upon the misrepresentation
Foreseeability alone is NOT sufficient
o Tortfeasor must have information that would at least lead a reasonable
person to conclude that there is an “especial” likelihood that it would
influence persons in P’s position
o Book Publisher
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Publisher does NOT have a duty to investigate the accuracy of the contents of the books it
publishes
First Amendment protects the ideas and expressions contains in books
No duty found in following cases:
P’s decedent died of malnutrition following diet set forth in D’s book, P sued D for
failure to warn of surf conditions in a travel book, etc.
o Endorsements
Company that endorses a product may be liable to a purchaser who, relying on the
endorsement, buys the product and is injured because it is defective and not as represented
in the endorsement.
If D represented to the public that it had “superior knowledge and special
information” about the shoes in giving it’s seal of approval, D assumed a duty to fully
and properly test and inspect the shoes
Other Elements:
o Causation, justifiable reliance, and damages are analyzed the same as under Intentional
Misrepresentation
INNOCENT MISREPRESENTATION
§ 552C. Misrepresentation in Sale, Rental or Exchange Transaction
1. One who, in a sale, rental or exchange transaction with another, makes a representation of a
material fact for the purpose of inducing the other to act or to refrain from acting in reliance upon
it, is subject to liability to the other for pecuniary loss caused to him by his justifiable reliance upon
the misrepresentation, even though it is not made fraudulently or negligently.
2. Damages recoverable under the rule stated in this Section are limited to the difference between the
value of what the other has parted with and the value of what he has received in the transaction
Caveat:
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No opinion as to whether there may be other types of business transactions in
which strict liability may be imposed for innocent misrepresentation
Minority View:
o An innocent representation may be actionable if the declarant has the means of knowing, ought to
know or has the duty of knowing the truth
Majority View (stated above in § 552):
o Bring it under K law and rescind the K
Give expectation losses
o When a party seeks rescission of a transaction on the ground of misrepresentation of a material fact
by the other party relief will be granted even though the misrepresentation was innocent
DAMAGES
Flexibility Theory
o Under flexibility theory, in fraud and deceit cases, P may recover either the benefit of his bargain or
his out of pocket expenses depending on the circumstances of the case
o Difference between the actual value of what P received and the value it would have been if it had
been as represented
Value Represented (promised) – Value Received
Subtract the actual value of the property from the amount paid by P
o Fraud By the Seller:
The better the promise, the higher the damages
BUSINESS RELATIONS
INJURIOUS FALSEHOOD
o Broad general principle of liability for any false and malicious statement resulting in pecuniary loss
to another
o ELEMENTS:
1. A false statement of a kind calculated to damage a pecuniary interest of the plaintiff
2. Publication to a third person
3. Malice in the publication
4. Resulting special damage to the P, in the form of pecuniary loss
o Special Damages:
General rule is that P must prove special damages but the modern trend is moving towards
reasonableness as a standard. Requires P to be specific only when it is reasonable to expect
him to do so.
Ratcliffe v. Evans
o RULE:
In a claim for injurious falsehood, the plaintiff need not prove special
damages
o General damages are sufficient to maintain the claim.
o Would be unreasonable for P to come forward with the prospective
customers to prove special damages
Puntive and emotional distress damages are rarely available
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If the statement imputes to P reprehensible personal characteristics or misconduct,
it is defamation
Facts
If the statement is backed, or impliedly backed by fact, the statement may be
actionable.
Implies that the party making the statement is fortified with the substantive facts to
make it; implies that they have the evidence to support its claim
o Ex: saying one’s product is, in general, better than another’s and asserting
that the other’s is only 40% as effective as one’s own
Second statement is an assertion of fact
Competition for business does not justify intentional false statements of fact
concerning the competitor’s business or product when the statements are not
confined to comparing the product or conduct of the competitor with that of P
o Conditional Privilege
D has a qualified privilege to protect his own interests by the assertion of a bona fide claim
to any kind of property
Example:
o Includes an assertion that P is infringing D’s patent, copyright, or trademark
rights by the sale of his product
If an individual has an economic interest to protect, such as the ownership of land, he is
conditionally privileged to prevent performance of the contract of another threatening that
interest by asserting an honest claim in good faith
o ELEMENTS:
1. D knew contract existed
2. Intentionally and improperly interfered with performance of K (except marriage0
3. Between another and third person
4. By inducing or otherwise causing third person not to perform K
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5. Pecuniary loss resulting to the other from the failure of third person to perform
o Malicious Interference
Intentional interference without justification
P has the burden to show all of the factors the making D’s interference improper
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TEST:
o Whether there is a high degree of probability that the interest is going to be
conveyed or transferred
o Not protected:
1. Contracts that are illegal or against the public interest
2. Contracts to marry
o Damages
Pecuniary loss
Benefits of the contract or the prospective relation;
Consequential losses
For which the interference is a legal cause
Emotional distress or actual harm to reputation
If they are reasonably to be expected to result from the interference
Injunctive relief
In appropriate circumstances, may be granted against future violation
o But, courts are reluctant to grant injunction if it would enforce SP for a K of
personal services
Punitive Damages
Since the tort is an intentional one, punitive damages are recovered
o Punitives are awarded for outrageous conduct because of D’s evil motive or
his reckless indifference to the rights of others
Awarded on the basis that D’s act is intentional and without justification
FAMILY RELATIONS
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Courts have generally declined to allow claims for pure loss of companionship when
a child seeks a recovery from D who injured his parent
o Minority of states recognize this claim
Claims by parents solely for loss of companionship of their injured child have
received similar treatment
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