Torty Tort Torts II

Vicarious Liability
1. Overview a. Fault of the defendant is no longer the basis of liability (i.e., Direct liability) b. The defendant is held liable for a tort committed by another based on some relationship between the defendant and the actual tortfeasor 2. Respondeat Superior a. The doctrine of respondeat superior holds that the employer is liable for torts committed by an employee while the employee was acting within the course and scope of employment. i. Applies to both intentional and negligent torts. ii. Employers liability is derivative of the employees liability if the employee is found not to have committed a tort, the employer will not be held liable b. Fruit v. Schreiner employer held vicariously liable for Fruit (employee) getting in an accident since Fruit was attending convention as an employee and going to the bar was part of what he was supposed to do as an employee of the company. c. Two Theories of Respondeat Superior i. Control Theory 1. The control theory bases the imposition of liability on the employers right to control and direct the activities of the employee 2. Asks (1) what the employee was doing and (2) whether it was part of the employees job (did employer direct employee to do it?) a. E.g., in Fruit, employer directed employee to go out and socialize/drink with guests 3. Policy reasons for vicarious liability under control theory a. The employer has the deeper pocket b. The employee is acting within the course and scope of his employment so he is acting to the employers benefit c. Encourages the employer to hire responsible employees, provide them with good equipment, ensure safety, etc. ii. Enterprise Theory (Starship Enterprise serving the purposes of the mission/employer) 1. The enterprise theory (also called the benefit theory) bases liability on the benefit to the employers enterprise provided by the employees conduct. 1

d. e.

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2. This view looks more to the purpose of the employees activity (i.e., whether it was intended to benefit the enterprise in some way). 3. Policy Bases for vicarious liability under Enterprise Theory a. Force the enterprise to internalize the losses to others caused by its operations. (not because they did something wrong) b. This will provide an incentive to take safety precautions. c. Spread the losses via insurance and the costs of the enterprises goods and services. i. This indicates that the employer is not just a deep pocket, but a deep pocket that is in a position to be able to spread these losses around. Workers Compensation vicarious liability often gets discussed in conjunction with workers compensation cases, especially when looking at issue of course and scope of employment Wong-Leong v. Hawaiian Independent Refinery end of the month parties i. Under Enterprise Theory, the parties served the purpose to the employer of boosting morale ii. Employee who got into accident on way home from party was (1) negligent and (2) acting within course and scope of employment Course and Scope of Employment Two Key Factors i. Whether the enterprise of the employer would have benefitted by the context of the act of the employee but for the unfortunate injury; and ii. Whether the employers risks are incident to the enterprise. Employees violating rules implemented by employer i. If the employee acted with apparent authority in furtherance of employer business, the employers consent or ratification of the misconduct is irrelevant; even an innocent employer must compensate an injured party. 1. If the employer has rules and is enforcing them then we can say that he is aware of the risks of accidents and is taking precautions to avoid them. ii. If the employees actions are part of the job (he is acting within the course and scope of his employment), then the employer can be held liable. Direct Liability confusion i. An employer can still be held directly liable 1. E.g., for negligently hiring a driver with poor credentials ii. Even if an employer takes all appropriate care to ensure the best employees are working for him, he can still be held vicariously liable if the employee causes an injury while acting within the course and scope of his employment 2

Assuming you can establish vicarious liability, why would you want to take the trouble to establish direct liability? i. The employer who is vicariously liable by being passively responsible for the employees active negligence could possibly have a right of indemnity from the employee. ii. If you can establish direct liability, it might make the jury more sympathetic to the plaintiffs case than if the employee was only passively responsible. 3. Who is an Employee? a. An employee is an agent whose principal controls or has the right to control the manner and means of the agents performance of work. b. Buitrago v. Rohr Rohr advertises for other businesses on hot air balloons; Donovan owns a Blockbuster and uses Rohr to advertise for him. i. Issue: Is Rohr an employee or independent contractor? c. General Rule regarding Independent Contractors An employer can be held vicariously liable for the negligence of an employee but not an independent contractor i. The distinction between I.C.s and employees matters because employers have more control over employees than they do independent contractors ii. Distinction between Independent Contractors and employees can be measured with the 10 Factor Restatement of Agency Test: 1. Extent of control which the master is authorized to exercise over the details of the work. 2. Is the actor engaged in a distinct occupation or business? 3. Kind of occupation. 4. Whether the type of work is customarily performed under the employers supervision or by a specialist without supervision, and the extent of the skill required. 5. Who supplies the instrumentalities, tools and place of work? 6. The length of time of the persons employment. 7. Is payment made on the basis of time or by the job? 8. Is the work part of regular business of employer? 9. What is the parties belief as to type of relationship? 10. Is principal in business? iii. Use the multi factor test as a balancing test, weighing each factor d. Ermert v. Hartford Insurance the hunting club and their camp i. Defendant owns fencing company and causes accident. His company is liable for the accident because he used the camp for business purposes to provide a place to entertain customers and employees of Nu-Arrow Fence Co. (i.e., Enterprise Theory) e. Borrowed-Servant Doctrine (I dont think he talked about this in class)

i.

i. A servant directed or permitted by his master to perform services for another may become the servant of such other in performing the services. ii. He may become the others servant as to some accts and not as to others. 4. Scope of Employment: Was the employee acting within the Scope of Employment? a. An employee acts within the scope of employment when performing work assigned by the employer or engaging in a course of conduct subject to the employers control. b. The Going and Coming Rule: the commute to and from work is not (generally) within the course and scope of employment. i. Courtless v. Jolliffe - the employer pays for the employees truck who hits a girl on her bicycle. ii. Fact-finding is very important in these situations 1. If employer is making a lot of the payments on the truck (insurance, repairs, etc.) then likely that employee is within course and scope of employment and going and coming rule would not apply iii. Exceptions to the Going and Coming Rule 1. Where the employee is given a task to complete for the employer on the way to or from work. 2. Where the travel to the place of work creates a special hazard or involves special risks, or is part of the job. a. i.e., driving on a dangerous road; more dangerous than an ordinary commute 5. Frolics and Detours a. The employer is vicariously liable for torts committed during detours, but not those committed during frolics. i. The level of deviation will determine the employers liability. It usually has to be a significant deviation to be outside scope of employment. ii. E.g., a food fight while on the job or shooting paper clips, either of which ends in injury, would be within scope of employment iii. Going off site to have lunch would probably be considered a frolic. The employee could have brought his lunch with him. However, if the job involves constant commute and driving around, then stopping for lunch could be considered a detour. b. If you are on the job and stop to get a cup of coffee, for example, that kind of minor deviation is usually called a detour. On the other hand, if you stop off for a beer in the middle of work, this would be considered a frolic. i. A frolic occurs when the employee departs from the course and scope of employment to a significant degree in pursuit of the employees own interests. 4

1. The frolic is over when the employees own business is completed and the employee returns to the business of the employer. 2. Usually the employee is not back within the scope of employment until actually back on the authorized route. 3. Note: The fact that the predominant motive of the servant is to benefit himself or a third person does NOT prevent the act from being w/in the scope of employment. If the purpose of serving the ERs business motivate the EE at all, the ER may still be vicariously liable. ii. A detour is a less serious deviation from the course and scope of employment. c. Faragher v. City of Boca Raton date me or clean the toilettes for a year i. Supervisors actions of sexually harassing employee are not considered a frolic because of agency notions 1. The employer puts the supervisor in a position to do this and engage in this sort of behavior 2. The supervisor is the employers agent and therefore the employer is vicariously liable for the supervisors conduct, even though it does not benefit the employer, because the employer could have anticipated or foreseen it. ii. Defenses available to an employer for vicarious liability. 1. To assert an affirmative defense, the employer has to a. Show that he took reasonable care to prevent the sexual harassment from occurring and b. That the employee unreasonably did not take advantage of the various mechanisms in place to prevent the acts from occurring or continuing. 2. The affirmative defense is not available where tangible employment action has been taken. a. Tangible employment action when a supervisor takes action against an employee. i. E.g., firing, demotion, date me or clean the toilettes for a year ii. When this sort of tangible action is taken, the employer would clearly be liable. 3. The city in Faragher did not have an affirmative defense available because they did not have any mechanism in place, like a sexual harassment policy, to prevent the sexual harassment from taking place. Also, they did not keep check on supervisors conduct. 6. Vicarious Liability for Intentional Torts a. Sunseri v. Puccia bartender goes Mike Tyson on a bar patron. i. Notice in these vicarious liability cases there are two bases of liability 5

1. Direct liability on the part of the employee a. Here, employer was watching employee fight with the plaintiff 2. Respondeat superior, being held liable for the actions of the employee, even though no personal fault ii. Dual Purpose Doctrine: An employees intentional tort may be included within the scope of employment if it is committed with the dual purpose of venting the employees personal feelings while at the same time being intended to further the employers interest. 1. If some part of what the employee is doing is to try and advance the business (getting rid of an obnoxious patron) and it is combined with a personal motive (the bartender was offended by the patron) then the employer can be held vicarious liability a. Personal motive only = no vicarious liability b. Personal motive + purpose to serve employer = vicarious liability 2. The employees actions trying to advance employers business has to be foreseeable a. A bartender or doorman kicking out an unruly patron has the foreseeable result of the bartender inflicting injury on the patron b. Employees Intentional Torts i. The employer is vicariously liable for the intentional torts of employee if: 1. The tort is in the scope of the employment and in furtherance of the employers business; and 2. The tort was foreseeable in view of the nature of the employment. ii. Some courts impose vicarious liability if the tort occurred during the performance of the employees duties for the employer. iii. Restatement of Agency 1. Conduct of a servant is within the scope of employment if, but only if: a. It is of the kind he is employed to perform; b. It occurs substantially within the authorized time and space limits; c. It is actuated, at least in part, by a purpose to serve the master, and d. If force is intentionally used by the servant against another, the use of force is not unexpectable by the master. iv. Plummer v. Center Psychiatrists therapist takes advantage of his position to have sex with patient. 6

1. The dissent argues that it was way outside scope of employment however majority holds employer of therapist vicariously liable v. Motive vs. Activity Test 1. Activity Test focuses upon the nature of the particular activity that gave rise to the intentionally tortious conduct by the employee. 2. Motive Test focuses on the employees personal motive in committing the tortious act. 3. Back to Plummer a. If you apply the motive test, then this case is probably outside the scope of employment b. Applying the activity test, the conduct could have fallen within the scope of employment 7. Vicarious Liability for Punitive Damages a. The wrongdoer has to possess a certain degree of malice to be held liable for punitive damages i. Definition of Malice: an intent to cause harm 1. Ill will, spite, bad motives all show up in opinions ii. Also, Reckless disregard can justify award for punitive damages being aware of the very high likelihood of injury occurring and disregarding it by not doing anything to avoid it. b. See Punitive Damages problem from class notes c. Brueckner v. Norwich University incoming freshman gets hazed. Punitive damages against the school? i. In order to recover for punitive damages a plaintiff must show that the defendant acted with malice. It is not enough to show that the defendants acts were wrongful or unlawful. There must be proof of defendants bad spirit and wrong intention. ii. An omission can be malicious (but is not in Brueckner) i. To get punitive damages, the plaintiff would have had to show a reckless disregard of the rights of incoming students by the school d. Complicity: Restatement of Torts i. Punitive damages properly awarded against employer or principal if: 1. The doing and the manner of act was authorized, or a. E.g., if the school gave the cadre authorization to go beat up the freshmen. 2. Agent was unfit and it was reckless to employ or retain, or a. E.g., if the school new that the cadre were unfit to train these incoming freshmen and should not have been employed to do so. 3. Agent employed in managerial capacity and was acting within scope, or 4. Act was ratified or authorized. 7

8. Independent Contractors a. General Rule: A principal is not vicariously liable for the negligence of an independent contractor. i. Exceptions 1. Nondelegable duties: a. Where the contract requires intrinsically dangerous work. b. Where the principal is charged by law with the duty breached. c. Where the work will create a nuisance. d. Where the work will involve peculiar risks of harm unless proper precautions are taken. e. Where the act is illegal. 2. Inherently Dangerous Activities a. Where the work is such that, unless special precautions are taken there will be a high degree of danger to others b. Exception to Exception: if dangers are well known, routine, and predictable then employer is not vicariously liable 3. Employers own liability negligent hiring a. Note this is not really Vicarious Liability because the employer is liable for their own negligent hiring of someone they know cannot do the work properly ii. Rationale: The principal is not in a position to control the manner in which the independent contractor performs the work. iii. Note: If the principal does attempt to control the work, this may result in liability because the principal in fact acted without due care in its supervision of the contractor. b. Restatement definition i. An employer is subject to liability for physical harm to third persons caused by his failure to exercise reasonable care to employ a competent and careful contractor 1. To do work which will involve a risk of physical harm unless it is skillfully and carefully done, OR 2. To perform any duty which the employer owes to third persons c. Non-Delegable duty: A common example i. Motorist takes her car to have the brakes serviced. Because of the negligence of the mechanic, the brakes fail the first time they are employed, and Motorist hits another vehicle. By statute, car owners are required to keep their vehicles in safe operating condition. ii. Through the negligence of the mechanic, Motorist fails to keep her vehicle in safe operating condition, but Motorist is still liable under statute, even if Motorist carefully chose the mechanic. 8

iii. Taking care of your vehicle is thus a non-delegable duty. d. Peculiar Risk Doctrine (pg. 570) i. E.g., when you are trenching, cave ins are not a peculiar risk, but a regular and predictable hazard of trenching ii. The mere fact that the work to be performed by an independent contractor involves some degree of special danger is generally not sufficient for the application of the peculiar risk exception. e. 10 Factor Restatement of Agency Test to help differentiate between Independent Contractors and Employees i. Extent of control. ii. Distinct occupation or business? iii. Kind of occupation. iv. Skill required. v. Who supplies the instrumentalities, tools and place of work? vi. Length of time of employment. vii. Payment: by time or by job? viii. Work part of regular business of employer? ix. Parties belief as to type of relationship? x. Is principal in business? 9. Joint Enterprise and Joint Venture a. Members of a joint enterprise or joint venture are vicariously liable for torts committed by other members of the group on third parties. b. The elements of a joint enterprise/venture are: i. An agreement among the members of the group. ii. Common purpose. iii. Community of (pecuniary?) interest in that purpose. iv. Equal right of control in the enterprise. c. Cullip v. Domann the boys go hunting and one accidently shoots another. i. Not a joint venture because the boys are not in an agreement to make money. ii. Not a joint enterprise because first three elements are not satisfied and there is no equal right of control over the guns. iii. Vicarious liability also fails because theories of joint venture/enterprise only impute liability on the members for injury to third parties not to injuries to other group members d. Joint Ventures i. A joint venture has the same elements as a joint enterprise, but is explicitly a business or profit-making association. ii. A joint venture is distinguished from a partnership by the fact that it is usually for a more limited purpose, and exists for a more limited period of time. iii. In a joint venture, the members of the group owe each other fiduciary duties with regard to the common purpose of the group. e. A Family Tree? 9

i. Partnership (formal, long-term, general business relationship). 1. Joint venture (less formal, short term, single purpose business relationship). a. Joint enterprise (informal short term social relationship). ii. The further down the family tree, the harder to establish vicarious liability. f. Esquivel v. Murray Guard Baytown La Quinta and the security company. Joint enterprise (venture - really a joint venture, but courts dont always observe the distinction)? i. Not a joint enterprise, but employer-employee relationship.

Strict Liability
1. Overview a. Strict Liability liability regardless of the precautions taken; liability without fault i. Recall B<PL 1. Defines the duty of due care ii. With strict liability, it doesnt matter what precautions you took, you are still liable if an accident occurs 1. Even though you may have met the Burden of taking precautions to avoid being negligent, you are still going to be held liable 2. Traditional Strict Liability: Animals a. Strict Liability for Animals (trespass rule) i. Possessors of animals are strictly liable for harm caused by the trespass of their animals on the property of others. ii. Exception to the trespass rule: dogs and cats. 1. Damage caused by the trespass of pets would not invoke strict liability because they tend to roam and dont cause that much damage anyways (e.g., digging up a flower bed) iii. Possessors of wild animals (those not customarily domesticated (commonly used in the service of people in the particular area) in the region) are strictly liable for all harm done by the animal as a result of the dangerous characteristic of the animal. b. Domesticated Animals i. A possessor of an ordinary domesticated animal is not strictly liable for harm (other than from trespass) caused by the animal UNLESS: 1. The possessor knew the animal had an abnormally dangerous propensity; and a. Common law rule every dog gets one free bite on the theory that until they bite someone you dont know of their dangerous propensity 2. That dangerous propensity was the cause of the harm. 10

ii. Bees are considered domestic animals because they are devoted to the service of humans c. Defenses: i. Contributory Negligence is NOT a defense to a SL claim ii. Assumption of the Risk is recognized as a defense d. Sinclair v. Okata dog bites two year old i. Evidence that defendants knew of dogs dangerous propensities: five previous biting incidents 1. Must be an abnormally dangerous propensity not common to dogs of like kind a. Defendants owned a German shepherd 2. Even if the court finds that this is not a strict liability situation, the plaintiffs could still possibly succeed on a negligence theory e. Trespassing livestock i. If you have cattle being raised in close proximity to where crops are being grown, there will be a risk that the cows are going to get into the crops and destroy them. 1. Policy: If you have a lot of destroyed crops, that would be a loss to society. However, if you got rid of cattle, that would also be a loss to society. ii. Fencing In, or Fencing Out? 1. Under the traditional rule, the owner of the cows is liable regardless of care used. (Owner must fence in). 2. There are a number of different rules to choose from a. Traditional CL: no matter what you do to keep your cattle in, you are still liable for damage b. Open Range: flip of traditional CL rule farmers put fences up to keep cattle out and to keep them from destroying crops i. On the Open Range: Farmer must protect the crop: Fence out the cattle. c. Negligence rule: farmer is negligent if he doesnt take precautions to restrain animals, while other farmer could be contributorily negligent for not taking precautions to fence in crops 3. You can use the Learned Hand Test (B<PL) to see who is in a better position to take precautions 3. Traditional Strict Liability: Abnormally Dangerous Activities a. Fletcher v. Rylands the water in the mine shaft. First case to introduce strict liability for abnormally dangerous activities. i. The person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril 11

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1. The analogy is bringing cattle on your property that get out and do damage to a neighbors crop you keep the cattle at your peril ii. Rule: you have to keep this stuff in and if you dont then it becomes your responsibility General Rule: An actor who carries on an abnormally dangerous activity is subject to strict liability for physical harm resulting from the activity. i. Classic example of Abnormally Dangerous Activities is blasting ii. Test: 1. An activity is abnormally dangerous if a. The activity creates a foreseeable and highly significant risk of physical harm even when reasonable car is exercised by all actors; and b. The activity is not one of common usage. Restatement on Abnormally Dangerous Activities factors i. High Degree of Risk ii. Likelihood that harm will be great iii. Inability to eliminate risk by using due care 1. This has become a dominant factor by itself iv. Activity is not a matter of common usage v. Activity is inappropriate in the locality vi. Social value of the activity 1. Similar to Learned Hand Test Incentives to applying Strict Liability i. Encourages actor to: 1. Relocate activity 2. Find a substitute 3. Reduce amount of level or activity ii. The ability to control the risk is the key to strict liability Limitations on Strict Liability i. Proximate Cause Limitation 1. The injury must be related to the activity that makes the activity abnormally dangerous. 2. E.g., a gasoline truck hits a child. Hitting a child is not distinctively related to what makes transporting gas inherently dangerous. ii. Sensitive Use Limitation by plaintiff 1. A defendant will not be liable for his abnormally dangerous activity if the harm would not have occurred except for the fact that the plaintiff conducts an abnormally sensitive activity a. E.g., mink farmers mink are killed as a result of blasting near a ranch. iii. Escape Rule if something escaped, even if you tried to contain it and it did not work, then you are still strictly liable 12

iv. Act of God if an act of god created the abnormally dangerous activity, then the person is not strictly liable. v. Natural Use if the defendant is making a natural use of the area he is not strictly liable f. Siegler v. Kuhlman exploding gas truck kills girl. i. Transporting gas poses foreseeable risk that gas might explode.

Products Liability
1. Products liability deals with the problem of liability of suppliers by products to users and others for losses caused by some defect in the product. a. Three theories of recovery: i. Negligence ii. Breach of Warranty iii. Strict Products Liability 2. The Citadel of Privity a. The rule of privity of contract was that the manufacturer of a product owes only a duty to the immediate buyer i. Based on Winterbottom v. Wright, it was at one time held that a manufacturer or seller of a product was not liable to a claimant injured by the product unless privity of contract existed that, unless the claimant had purchased the product directly from the defendant. (Contract approach) 1. The result was often no remedy, because the retailer was not negligent and the negligent manufacturer was not in privity. ii. Wagon builder example: A builds wagon and sells it to B, B sells it to C, C loans it to D, D is injured 1. No one is liable to D for negligent manufacture of the wagon b. Exceptions to privity of contract i. Imminently dangerous to human life 1. E.g., Thomas v. Winchester plaintiff is prescribed dandelion but accidently gets poisonous belladonna instead ii. Foreseeability (creation of a duty) that someone will use the product and could be harmed 1. the foreseeability of harm to others a. it is the foreseeability that the patient will take it way down the line, not that the doctor or physician will misuse it 2. the duty therefore owed in this situation 3. the fact that the manufacturer sold to a middleman 4. Thomas v. Winchester would also be an example it is foreseeable that the purchaser of the drugs (the store owner) will not actually use them, but sell them to a consumer iii. Failure to Use Due Care 1. E.g. owner invites person on land to use defective appliance. 13

iv. Failure to Warn 1. E.g., manufacturer knows that the product cant hold a certain weight and doesnt disclose this fact 2. Manufacturer knew product was defective 3. Negligent Manufacture of a Product Goodbye Privity of K!!! a. Rule: if the nature of a thing is such that it is foreseeable to place a person in peril when negligently made then it is a thing of danger and a duty of care is owed. i. FORESEEABILITY is now the new rule. If you can foresee harm when the item is not made carefully then it is foreseeable that harm will occur and you owe a duty of due care. ii. One who negligently manufactures a product is liable for any personal injuries proximately caused by his negligence b. Macpherson v. Buick old Buicks wooden wheels fall apart i. The court comes up with the rule that if you foresee this danger that if not made proper it could put life in danger and the manufacturer knows that the product will ultimately be sold to a customer, then the manufacturer owes a duty to the party who will actually use the product. ii. After Macpherson, it became important to determine what constituted a Breach of Duty 1. The most common types of breach are a. Negligence in manufacturing the product b. Negligent Design Defect c. Negligence in inspecting or testing the product i. By any party with a duty to do so ii. Must show had they done the inspection, they would have discovered the defect d. Negligence in the advertising or sale of the product, typically a problem of failure to warn about dangerous attributes of the product. 2. Note: Proof of breach, especially in manufacture, was often difficult. c. Escola v. Coca Cola coke bottle explodes in waitresss hand i. Escola and Public Policy arguments for strict liability 1. Accident avoidance: a. Manufacturer can best anticipate and guard against product hazards. 2. Loss spreading: a. Manufacturer can best insure against loss. i. If you have a whole lot of payments that you have to give out for injuries then you have to increase your costs more, which will make you less competitive in the market. 14

3. Ease of administration a. Strict liability avoids the proof problems of negligence. i. With strict liability you dont have to prove that the manufacturer was at fault. ii. The issue of fault is taken out of the case. iii. The plaintiff must only prove that the product was defective and the defect caused your injury 4. Privity, again a. This would in essence change the warranty of safety into a tort duty running from manufacturer to consumer. 4. Breach of Warranty liability based on a contract for the sale of goods. a. Warranty can be thought of as an express or implied representation about the quality or attributes of a product. If the product does not live up to these representations, and loss results, a breach of warranty claim may provide one avenue of recovery. i. Warranty liability is strict it doesnt matter why the product didnt live up to the warranty. It only matters that the warranty was breached the product did not live up to the representations made about its quality. b. Types of Warranty i. Express Warranty 1. An express representation about the quality of the product 2. An express warranty is created by an affirmation of fact or promise about the goods, by a description of the goods, or by use of a sample model. a. Liability in both tort and K. b. Doesnt have to be in writing or oral, can be a sample or model c. Doesnt include puffery ii. Implied warranty of merchantability 1. The product will be fit for ordinary purposes 2. Will be of fair and average quality given its description 3. Only applies when buying from a merchant 4. To be merchantable: Good must be adequately maintained and packaged a. E.g., acid that is packaged poorlyif it is not packaged correctly then it is not safe and not merchantable and the implied warranty of merchantability is breached iii. Implied warranty of fitness for a particular purpose 1. Requires the seller to inform the buyer of the products particular use 2. The seller knows that the buyer is relying on him to select the product designed for his particular needs 15

3. LOOK FOR a. Sellers knowledge of buyers intent with the product. b. The sellers actual skill and/or knowledge was it reasonable to rely on the sellers ability? 4. E.g., you go to home depot say I need some nails for roofingand they point you in that direction of the nail aisle and see a box that says Roofing Nails galvanized. Then you put them on your roof and they dissolve in a rain storm. Do you have an implied warranty?? a. Yes- Warranty of merchantability. NOT a breach of warranty for a particular purpose b/c you didnt go to the sales person and say I need nails for my roof that will stand up to the water and I am relying on you to help me get the ones I need. iv. In commercial law, these are aimed mainly at economic loss caused by disappointing performance of the product, but recovery for personal injury was also possible. 1. It is also possible for the seller to say that he may be making the warranty but all that it will cover is repair/replacement of the product; he will not be liable for any personal injuries that result c. Extension of Warranty Claims to all consumers i. Henningsen v. Bloomfield Motors steering goes out in wifes car and there is a disclaimer of the warranty 1. The result of this case is a doctrine of strict liability with restrictions of privity of contract removed and warranties automatically imposed, which the manufacturer cannot get rid of. a. A Manufacturers warranty extends to the remote purchaser further down the line. b. Once the final purchaser is covered by the warranty, the warranty also applies to at least members of the household who may be reasonably expected to use the goods. ii. Privity Rules warranty runs to the ultimate consumer and not limited to privity. d. Limitations on Warranty: i. UCC imposes a requirement that the claimant give notice of the breach to the mfg ii. Concept of warranty requires that the buyer have relied on the warranty in making the purchase. iii. In spite of limitations on the ability to do so, sellers may still be able to limit or disclaim warranties. 1. E.g., - sold as is= implied disclaimer 16

2. To disclaim warranty of merchantability MUST be in writing and conspicous iv. **watch for disclaimer of warrantiesnot dispositive MUST be clear and present in writing v. So that is why we have Strict Liability in Tort. e. Difference between Negligence and Breach of Warranty: i. The breach of warranty claim is advantageous over a claim of negligence since you dont have to prove negligent actions or inactionsit is more like a strict liability cause of action. ii. The negligent action is not the manufacturing or improper act or lack of action, it is the selling of the product that brings up the duty to the consumer for breach of warranty. 5. Strict Liability in Tort a. Section 402A of the new Restatement Special Liability of Seller of Product for Physical Harm to User or Consumer (pg. 650) i. Rule: Defendant is held strictly liable when: 1. Defendant is in the business of selling the product; a. Releases the casual seller. E.g. selling a cd to ur friend b. Encompasses everyone who sells the product- manuf. to seller 2. Defendant in fact sells the product; 3. At the time the defendant sells the product, the product is in a defective condition; a. P must show that product was defective when that particular Def. sold it. 4. The defective condition renders the product unreasonably dangerous; 5. The defect is the actual and proximate cause of harm to the plaintiff. ii. Comments to 402A: A guide for the confused. (apparently we need to know the letters) 1. Comment f: Meaning of business of selling a. any manuf. of such product and does not have to be engaged solely in that business. i. Does NOT apply to the occasional seller 2. Comment g: Meaning of defective condition. a. Product leaves the seller and is in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him i. Seller not liable when the injury occurs from abnormal handling because it has already left the manufacturer/seller 3. Comment i: Meaning of unreasonably dangerous. 17

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6.

7.

a. Goes beyond what the ordinary consumer would expect from the product i. E.g., alcohol and tobacco are not unreasonably dangerous b. Dangerous to an extent that is not anticipated by the consumer i. Consumer contemplation test would the product be more dangerous than the ordinary consumer would expect? ii. The consumer has certain knowledge that certain products are potentially harmful/dangerous so looking at it they may already anticipate that certain risks are involved Comment j: Failure to warn. a. The product is safe when used in the correct manner but the seller fails to specify how to safely use the product safe b. E.g., prescription drugs used as prescribed can be safe but if not adequately instructed on a proper dosage they can be dangerous c. E.g., power tools are dangerous, but ordinary consumer wont know how this particular tool is dangerous so it needs directions/instruction. If sold without instructions then the product is defective Comment k: Unavoidably unsafe products (such as prescription drugs). a. Some products are incapable of being made safe. When these products are properly prepared, have proper warnings and directions, it is not defective nor unreasonably dangerous. b. E.g., rabies treatment either you took the dangerous rabies drug that could be harmful if not taken correctly or you died from rabies Comment l: User or Consumer a. It is not necessary that the ultimate consumer have acquired the product directly from the seller. b. Consumption includes all the ultimate users for which the product is intended. c. Includes the people who prepare it for consumption. d. However, a thief is NOT considered a foreseeable user of the product. Comment n: Contributory negligence as a defense. a. Contributory negligence of the plaintiff is not a defense when the negligence consists merely in a failure to 18

discover the defect in the product, or to guard against the possibility of its existence. b. This was before the comparative negligence revolution, when contributory negligence and assumption of the risk were complete bars to recovery c. Assumption of the risk is a defense plaintiff discovers defect and is aware of the danger, but uses the product anyway and is injured. b. Rule for Strict Products Liability: A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being. i. Greenman v. Yuba Power Products piece of wood flies out of machine and hits plaintiff 6. Types of Defects a. General Definition of a Defective Product: A Product is defective when at the time of sale or distribution it contains (1) a manuf. defect, (2) is defective in design, or (3) is defective b/c of inadequate instructions or warnings. b. Manufacturing Defects: a flaw in construction of the product that causes the product to depart form its intended design. i. Its not the way the manufacturer intended it to be 1. Generally, a manufacturing defect is sort of a one-off problem in that one item on the product, not the whole product is not correct 2. This is your classic strict liability case there was a defect and the defect caused injury ii. Elements of Manufacturing Defects 1. Identify the flaw in the product 2. Prove that the flaw caused the harm 3. Trace the existence of the flaw to the time of the sale of the defective product by the defendant a. You need to trace the defect back to the manufacturer because otherwise it could be placed on the mechanic (e.g., Ford case) i. Cant be a defect that came later from mechanic error or that happened after the car had been manufactured b. Must show that the product was defective when it left the manufacturer 4. Negate other sources of the flaw, such as maintenance or misuse. iii. Ford Motor Company v. Gonzalez Ford Escort has misaligned steering and rolls over, even after many trips to the dealership for 19

maintenance. Were able to prove the wheel had manuf. defect b/c the wheel could be traced to the manuf. 1. Manuf. Defect cases are very fact specific. Must educate yourself as the attorney. 2. If you can show it was defective at the time it left the manufacturer then the manufacturer is strictly liablei.e., liable even if they exercised all due care iv. Evidence: 1. Evidence is normally limited b/c it is destroyed in the accident. 2. Expert witness often used to display how the defect causes the accident. v. Component Part Manufacturer or Raw Material Supplier: 1. If the component part supplied is defective the manuf. is still Strictly Liable. a. E.g., defective light switch supplied to Ford. b. Same rule applies to supplier of raw materials, when the item is used later for manufacture. vi. Note- when it is a manufacturing defect case keep in mind that it is NOT THE WAY THE MANUFACTURER INTENDED it to be and it is different in a way that CAUSES IT TO CAUSE INJURY. c. Design defects: The products very design rendered it dangerously unsafe. i. This means that every product is defective because they all share the same design. 1. In Manuf. Defects we have a standard of comparison in that the manuf. has its own standards. A design defect came out as it was supposed but EVERY product here is defective bc of design. 2. Standard of comparison in design defect is: looking to other companies and their designs of similar products. ii. Polycentric issue: so much goes into a design that we cant have a design defect standard. Adding things makes it more expensive and may only create more problems/dangers. iii. 2 Tests for Design Defects 1. Consumer contemplation (Expectation) Test: a product is defective if it is dangerous to an extent beyond what would be expected by the ordinary consumer or a reasonably foreseeable way. a. Based on comments g and I to section 402A, which make defects depend on the product being more dangerous than the ordinary consumer would expect b. Problems createdi. Who is the ordinary consumer?

20

ii. If the danger is obvious or a warning is given, the P will lose under this theory even if the product could have been made safer at very low cost. iii. Products such as new drugs that may present a risk to a few ppl could be found defective under the test, even though the overall benefits from the drug are huge. iv. The test gives little guidance to a jury. 2. Risk Utility Test: balances the dangers and the benefits of a product design. a. Looks at the product as designed and asks whether the magnitude of the danger presented by the product is larger than the utility of the product. (followed in Texas) i. The test compares the actual dangers presented by the product, not the foreseeable dangers, with the actual benefits provided by the product, not the anticipated or foreseeable benefits. b. Factors: i. Utility of the Product ii. Likelihood of severity of harm from the product iii. Availability of substitute products iv. Manufacturers ability design-out danger 1. i.e., availability of Alternative Safer Design a. Just because you show that there is a safer design doesnt mean you win, have to prove there was a safer design and then apply the RU test. b. Hernandez v. Tokai- lighter that burned child b/c no child lock 2. *this factor is required in Texas v. Users ability to avoid harm by using product carefully vi. Users awareness of the dangers either because common knowledge or warnings vii. Manufacturers ability to spread the loss viii. Consumer preference 1. E.g., bullet proof vest that covers body compared to the lightweight bulletproof vest that only covers the front and back but not the sides. 2. Consumer may prefer the less safe lighter vest. 21

iv. Products Liability in Texas 1. Texas follows the Risk-Utility test 2. But also must prove there was a safer design 3. And Defect rendered the product unreasonably dangerous v. State of the Art Defense 1. State of the Art standard judges product design as of the time of its manufacture with the technology then available. Later technology changes that make it possible to design out danger does not make a previously acceptable design defective. a. E.g, a car without airbags from 1990 vi. Alternative Safer Design 1. The test here is whether the danger actually avoided by the proposed alternative design, using available technology, would be greater than: a. The costs of the new design, plus b. Loss of product utility from the new design, plus c. New dangers created by the new design i. A design change could prevent one kind of accident but increase the likelihood of another type of injury 2. Hernandez v. Tokai Corporation lighter case a. Risk Utility Test the product, without the safer design, is not reasonably safe i. Plaintiff must prove that a safer design of the lighter would have prevented or significantly reduced the risk of the boys injury without substantially impairing the lighters utility to potential adult users. b. A safer alternative design actually existed with a childproof mechanism i. Older people might not be able to use a lighter with the child safety device, but this need probably doesnt outweigh the risk that a child may get hold of the lighter and start a fire c. You have to apply the risk utility test in the intended use of the product but also keep in mind the use of the product by unintended users 3. Is it possible that a product is inherently defective in design, even though there is no safer alternative design? a. Minority- Cases have held that a product is always defective even though there is nothing else to substitute. Slippery pool bottom example. b. Majority- But most courts follow the restatement view. That there must be an alternative design. 22

vii. Design defective foreseeable risks could be reduced by reasonable alternative design and the omission of the alternative design renders the product not reasonably safe 1. So you have to prove that there was a (1) reasonable alternative design AND that the (2) omission of the alternative design made the product not reasonably safe 2. We would use the risk utility test to determine if (2) is satisfied viii. E.g., Legos and Duplos 1. Legos are fun for children but are also a choking hazard 2. That is why they make Duplos which are much larger and suitable for younger children 3. However, legos could easily get into the hands of the younger child 4. Design defect laws are not in place to stop Lego from making legos simply because they could get into the hands of younger children that could choke on them 5. There is a warning on the Lego package and you provide the alternative of Duplos ix. Designed for Whom? 1. In assessing the risks and benefits of a particular design, we must ask: Risks and benefits to whom? a. Intended users? b. Actual users? c. Foreseeable users? d. The injured victim? d. Warning defects: Failure to inform the user of potential dangers makes the product dangerously unsafe. i. This includes failure to instruct on how to properly use the product or failure to warn of the potential dangers of the product ii. Who has to be warned and what do they have to be warned about? 1. Manufacturer has to warn whomever they are marketing the product to. a. Need to warn consumer b/c consumer goes and asks the Dr. for the specific med b/c of ads. Cant rely on Drs only to be warned. 2. Under Comment K (Unavoidably Unsafe Products), what is the duty on the manuf. of Rx drugs? a. Duty to warn of risks that were discovered, that you knew or should have known about. 7. Unavoidably Unsafe: The problem of Prescription Drugs: Negligence or SL? Design or Warning Defect? a. Often times products are unavoidably unsafe but not defectively designed because the benefits of the product outweigh the risks b. Brown v. Superior Court another DES case 23

i. Public policy considerations 1. Stifling innovation and deterring development of new drugs a. We dont want to discourage creation of new products 2. The role of the FDA in drug testing and approval a. The FDA determines that the drug is both safe and effective so we dont need products liability to do this b. So we encourage consumer information 3. Price increases 4. Lack of availability of some drugs 5. *Overall the policies are stating that invoking SL in Rx could be bad. ii. The Second Restatement imposes liability on drug mfrs only for failure to warn of defects which it knew or shouldve known c. How does the 3rd Restatement treat the issue of design vs. warning defects of Rx drugs or medical devices? i. Allows for liability for harm caused under any of the three theories: manufacturing, design, or failure to warn. ii. A Rx drug is NOT reasonably safe due to defective design if: foreseeable risks of harm posed by the Rx are sufficiently great in relation to foreseeable therapeutic benefits. 1. Note: 3rd restatement allows a defective design claim for Rx but it would have to be a useless and pathetic drugone that would work for NO class of people a. E.g., - there was a drug in the 1960s that caused bad birth defects but now they prescribe it to Parkinsons patients b/c it helps themthis drug would NOT be defectively designed under the Restatement iii. Rx drug is not safe due to inadequate instructions or warnings if reasonable instructions or warnings regarding foreseeable risks of harm are not provided to: 1. Rx health care provider in the position to reduce the risk of harm in accordance with the instructions or warnings or; 2. The patient when the manuf. knows or has reason to know that the health-care provider will not be in a position to reduce the risks of harm in accordance with the instructions/warning. a. Note: This means that if the manuf provides enough info for consumer to have informed consent, then they are normally clear here. d. Learned Intermediaries i. For most prescription drugs, the manufacturer must give the warnings about the product to the physician (the learned intermediary). 24

1. The learned intermediary has the knowledge to read and interpret the warnings and give them to the patient. 2. This rule is somewhat outdated because it goes back to a day where a doctor decided what was good for the patient so the doctor, not the manufacturer, would be held liable. ii. It is then the duty of the physician to inform the patient of the risks and benefits of the drug under the informed consent doctrine. iii. In a few situations, where the manufacturer knows no physician will be involved, the warning must be given directly to the patient (example: mass immunization programs, also birth control and ED drugs). 8. Back to Warning Defects: Warning Issues failure to inform the user of potential dangers makes the product dangerously unsafe. a. Failure to Warn: The Reasonable Conduct Standard i. The manufacturer knew or should have known about the hazard; and 1. If it is an unknowable risk then there is no liability. ii. Failed to take precautions in marketing the product to warn users or consumers about the hazard. 1. Thus, not only must the manufacturer discover/know of the hazard, but the warning given must be adequate to inform the public about the danger. 2. This standard is closer to a negligence standard, but SL-ish bc the products liability standards applies to all sellers in the chain. b. Triggering the Duty to Warn i. If the danger is obvious or well-known to the public, there is no reason to warn. 1. i.e., knives are sharp. So if you are selling a chefs knife, you dont have to warn that the knife is sharp. 2. E.g., peanut butter would be silly to warn this product contains peanuts as opposed to chick-fil-a that must put a warning that the chicken is fried in peanut oil- consumer wouldnt expect nuts in chick-fil-a nuggets ii. Warnings are required for hidden dangers such as the possibility of allergic reactions. 1. E.g., Livingston case MSG in soup (risk warning) a. customer allergic to MSG in the soup, after he was told that there was no MSG in the soup. He suffers cardiac arrest and brain damage. Held that there was a failure to warn and SL could be applied here bc a large number of ppl are allergic to MSG. 2. If it is known that many people are allergic to the substance, then you have to warn unless it is obvious 25

iii. Warnings are required where necessary for safe and proper use of the product. iv. Warnings are necessary for reasons of personal autonomy and consent when dealing with the risks of prescription drugs and similar beneficial but risky products. c. Recognize that: You Cannot warn away liability if the design is defective. i. Ex if there is a saw that has an uncovered blade, can the manufacturer warn away liability? 1. P has to prove there was a safer design and risk utility. What is the trade off? The blade guard will eliminate careless injuries and have almost no impact on utility of the saw. Then no amount of warnings can eliminate liability. d. Presumption of Read and Heed i. Plaintiff is usually given the benefit of a presumption that a proper warning would have been read and heeded, and thus the accident would have been avoided. ii. Jackson v. Coast Paint and Lacquer paint fumes cause explosion 1. Example of instructional warning and adequacy of warning plaintiff thought fumes shouldnt be inhaled, not that they were flammable. The label just said use adequate ventilation. iii. The presumption is rebuttable, for example by showing that the plaintiff ignored other warnings that were provided. e. Adequacy of Warning i. The warning must be: 1. Available to the actual user a. One way to make sure the warning gets to the actual user is by putting the warning on the product itself. i. E.g., a ladder with labels slapped all over it ii. But some products, you cant slap labels all over them b. Sometimes the best you can do is provide a booklet i. E.g., an electric drill 2. Understandable to the actual user a. EX- Jackson paint case displayed warning wasnt clear gave warning but no warning about the danger of igniting if not enough oxygen b. EX- might have reason to know typical user speaks Spanish so have to put the warning in English or Spanish 3. Sufficiently prominent to attract users notice 4. Sufficiently urgent given the gravity of the risk ii. As courts require more and more in the way of warnings, a danger is created that the warnings will drown each other out. 26

1. Catch 22 for the seller bc u are liable for not enough warning and then also liable when you have too many warnings as well. 9. Other Defendants in Products Liability actions: Who are the defendants that can be sued in SL and PL? a. Rule of Thumb: Liability applies to anyone in the chain of distribution b. Sellers of Used Goods i. Keeping in mind the just-stated rule of thumb, here is another rule of thumb: The used goods seller is not in a normal chain of distribution. 1. Sellers of used goods- cannot sue them. In SL the seller must have been in the business of selling the goods. 2. Policy - The used goods seller is not in a normal chain of distribution. a. It is not easy for them to work with manufacturer to fix defect; no ready chain of communication btw the seller of used goods and the manufacturer b. Also, they have not materially altered the product. c. Also consider consumers expectations: Its a different market so expectations are probably lower. ii. Allenberg v. Bentley Hedges Travel Service transportation company buys a used bus that is allegedly defective and gets in wreck. seller is not liable iii. Unless the seller has done something to certify the quality/safety of the used product then we dont impose strict liability 1. E.g., Lexus Certified Used Cars described as having warranty, quality inspection, etc. iv. In the case of used products you get the situation of the pure re-seller who does nothing to the product and the re-seller who refurbishes or fixes up the product 1. The second re-seller would be subject to strict liability v. Seller of used product is liable: 1. When negligent. a. would include when seller knew there was a defect or potential danger and failed to correct or warn. 2. For a manufacturing defect if marketing would lead consumer to expect product was as safe as new. a. Ex. The Lexis website makes you think this car is comparable to a new car by offering 3 yr 100,000 warranty. 3. Where seller remanufactures the product. a. Where the seller alter the product significantly, they become like manufactures and so S/L will apply to them for defect. 4. Product violates a safety statute or regulation applicable to the used product. 27

a. Ex- statute that requires seat belts c. Retailers and Wholesalers i. Under 402A, all sellers in the direct chain of marketing from the manufacturer to the consumer can be liable for injuries caused by defective products. ii. This is true even if the intermediate sellers had no responsibility for the defect, as where the goods are simply put on the shelf and sold without inspection or alteration. 1. E.g., grocery store puts can of spinach on the shelf that happens to have stone in it that breaks buyers tooth a. Buyer can sue grocery store because they are a local remedy for the buyer and it encourages seller to buy from a reliable seller d. Retailers and Wholesalers v. Manufacturers i. Assuming that the defect originated at the manufacturer, the intermediate sellers would have an indemnity claim against the manufacturer if they are held liable and pay damages. 1. E.g., Hurtz Rental Car would be deemed equivalent to a retailer. 2. Product liability applies to lessors b/c they distribute the product. a. Lessor must have been in the business of leasing i. i.e. - Must be a commercial lessor ii. On the other hand, retailers and wholesalers might be directly responsible for creating a defect, as by improper preparation or inspection of the product. e. Distinguishing between a sale of goods and provision of a service i. Classic case: person goes to dentist for treatment and receives a shot of Novocain and defective needle breaks off in persons gum 1. Is dentist liable for selling patient a defective needle? a. We dont want to have strict liability for professional services because the proper regime for dealing with injuries from medical injuries is the professional standard of care based on negligence 2. Royer v. Catholic Medical Center patient gets defective knee joint a. This was a service ii. Distinguish between whether it is: 1. Essentially a service, provided by a profession, in which a defective product is provided. a. A transaction for professional services is not subject to SL even though the professional may incidentally make use of products in rendering the service. i. Professions that fall into this category tend to be the learned profs- cpa, law, medicine, engineer 28

10. Economic Loss a. Pure economic loss solely money loss resulting from the failure of the product to perform that is unconnected to personal injury or physical damages to property i. Damage to the product itself is pure economic loss. ii. Damage to other property makes a claim for Strict Product Liability. b. Seely v. White Motor Co. strict products liability does not apply to pure economic loss. i. Truck overturns and has to be repaired. ii. Company sues for damages resulting from lost profits. iii. Remedy lies in warranty claim, not strict liability. c. Rule: cannot recover in SPL or negligence for pure economic loss; can only attempt to recover pure economic loss under a breach of warranty claim. i. Policy - Economic Damages are more adequately covered by the laws of contract and warranty rather than tort 29

b. This is the case in Royer i. Plaintiff went to hospital for services and provision of knee joint is simply a part of these services. 2. Essentially a sale of a product, in which product is installed. a. A transaction that is essentially the sale of a product with some service component (e.g. installation of the product) will be subject to SL if the product was defective. i. Ex- go to mechanic for services and they put in an alternator that was defective. It blows up. Court would probably find the mechanic liable but not the health care provider due to Public Policy. Dont want medical costs to go up. b. E.g., you buy a home theater system from Best Buy and they install it. The home theater system blows up. i. Strict liability would apply because you mainly bought a product. 3. Essentially a sale of a product, together with nonprofessional services. a. Service providers are not strictly liable for the defective product. b. E.g., Auto-mechanic installs defective part, hair stylist uses defective product on your hair i. These are analogous to the hospital in Royer except that these service providers arent held to a professional standard of care

d. When a product is sold in a defective condition that is unreasonably dangerous to the user or consumer or to his property, strict liability in tort is applicable to physical injury to plaintiffs property, as well as to personal injury. When there is no personal injury, strict liability cannot be imposed for solely economic loss. i. However, where the product is defective and damages other property, then strict liability can apply. ii. Strict liability only does not apply where the product performs less than satisfactory. 11. Plaintiffs Conduct & Possible Defenses a. Courts consider the following factors to determine if there should be a defense: i. Goal of compensation, loss spreading, ability to pressure manuf. to improve safety, ability to take steps to assure greater safety, ability of innocent seller to obtain indemnity from manuf. b. Traditional Strict Liability vs. Restatement view i. Traditional strict liability rule: 1. Contributory negligence is not a defense 2. Assumption of the risk is a complete bar to recovery ii. Vs. Restatement 402A comment n: 1. Contributory negligence that consists merely in a failure to discover the defect or to guard against the possibility of its existence is not a defense. 2. Assumption of the risk is still a defense. c. We have to determine if comparative negligence can be applied in strict liability, even though contributory negligence cannot. We also have to determine if assumption of the risk is still a defense. i. Daly v. GMC Daly killed when driving home drunk after failing to wear seat belt or lock doors. 1. Plaintiffs alleged contributory negligence no seatbelt, didnt lock door, driving drunk. 2. Contributory negligence is no longer a complete bar to recovery and assumption of the risk can factor into damages scheme. ii. Keen v. Ashot Ashkelon sand shoe case; see also GMC v. Sanchez Sanchez is killed when his car pins him against a fence while hes feeding the cows. 1. Sand shoe that holds up cargo chassis was defective and whole truck tips over onto plaintiff 2. Manufacturer argued that plaintiff was contributory negligent because it was a safety rule that while these cargo chassis were being unhitched you dont stand next to it 3. Texas Supreme Court says that plaintiffs conduct was merely a failure to discover and guard against the defect 30

d. Unforeseeable Product Misuse i. Rule from 402A comment h: a product is not defective if it is safe for normal use. ii. Therefore, Unforeseeable Misuse of a product leading to injury does not result in strict liability because the product is not defective. iii. Alternatively, if the product was defective, the defect was not the cause of the harm, the misuse was. e. Foreseeable Product Misuse i. Foreseeable misuse imposes on the manufacturer a duty to protect the user. 1. The manufacturer may have a duty to design the product to avoid harm from the misuse. Example: Automobile crashworthiness. 2. The manufacturer may have a duty to warn against the misuse. Example: Overdose warnings on medications. a. We dont sell you one pill at a time to guard against potential overdose. Instead we give warnings that you are expected to pay attention to. ii. Rule: Manufacturers have a duty to 1. Design the product to avoid harm from foreseeable misuse 2. Warn against foreseeable misuse f. Summing up i. The plaintiffs conduct may be relevant to any of the following issues, and good analysis will keep them distinct: 1. Duty/Breach: Was the product defective (or was the accident the result of misuse)? 2. Proximate Cause: Was the conduct of the plaintiff (the misuse) so unforeseeable as to excuse the defendant from liability? 3. Affirmative defenses: Should the lack of care of the plaintiff reduce or bar recovery?

Nuisance
1. Private Nuisance: Private Nuisance is some thing or activity that interferes substantially and unreasonably interferes with a Possessors use and enjoyment of land. a. Typical nuisance case involves the problem of conflicting land uses i. Usually the interference is accomplished by a non-trespassory invasion, such as smells, light, smoke, dust, noise, or other forms of pollution. 1. Recall trespass is physical invasion that interferes with exclusive possession b. Elements for Private Nuisance Plaintiff must show: i. Liability producing conduct (intentional, negligent or abnormally dangerous), resulting in: 31

1. Interference with the use and enjoyment of Plaintiffs land that is 2. Substantial and 3. Unreasonable. c. Interference with Use and Enjoyment i. Interference means: 1. Physical damage to land. 2. Interference with comfort or health of the occupant of the land, as by smoke, dust, noise, light, or odors. 3. Interference with mental tranquility, as by keeping something noxious or unpleasant on adjoining land. ii. Funeral homes have frequently been found to be a nuisance in a residential neighborhood. 1. While they are socially valuable, they interfere with mental tranquility in a residential neighborhood d. Substantial Interference i. Generally, Substantial means more than a trifle. 1. Some significant injury must occur. Small interferences probably cancel one another out. (Live and let live.) 2. E.g., one party a year isnt a nuisance. ii. When the nuisance activity changes the condition of land, its substantial character is established. iii. Any measureable economic loss resulting is substantial. iv. A nuisance that causes personal injury is substantial. v. If the nuisance results only in discomfort or annoyance, the interference must be severe. 1. If the interference significantly affects the market value of the land, it is severe. vi. The standard applied is that of the average person in the locality whether such a person would regard the invasion as seriously annoying. 1. No Sensitive land users exception 2. E.g., Problem 4 (pg. 609) church bells are particularly annoying to the plaintiff. a. Still not a nuisance because if the noise is such that an ordinary member of the community wouldnt find it annoying, then your particular annoyance doesnt turn it into a nuisance. 3. Often in a business district, you have to accept the ordinary noise that comes along with such an area. e. Unreasonableness of Interference: Striking the Balance i. The court has to strike some sort of balance ii. Factors courts consider: 1. The amount of harm caused by the activity. 32

a. Including the amount of the nuisance itself. b. E.g., if music is playing all day into the late evening. 2. The capacity of each party to bear the harm and shift the loss. 3. The nature of the clashing land uses. a. However, the plaintiff is not precluded from recovering damages merely because the utility of the activity outweighs the harm, if it is thought better to make defendant internalize these costs. 4. The nature of the locality. 5. Which activity has priority in time. f. E.g., Clinic & Hospital v. McConnell loud record store next to a hospital in a health spa town. i. Nuisance was the loud music coming from defendants music store ii. On one hand you would expect a music store to be a reasonable business in a downtown area 1. But the music store was operating unreasonably in the area because it was playing loud music right next to a hospital and it was surrounded by these health spa-like businesses 2. Defendants business was not suited for the locality and was thus a nuisance g. Coming to the Nuisance i. E.g., if the record store was there first and then the hospital moved in ii. We would take into consideration who was there first and if they had always been operating in that fashion iii. We would consider the nature of the locality 1. So if you build your dream home in a rural area and then realize there are hog farms all around that cause smells, then you have to take into account the nature of the locality iv. E.g., Spur v. Del Webb Sun City, AZ senior citizen land and the cattle feedlots. The feedlots were there before Del Webb came in and built Sun City 1. The court grants a conditional injunction a. They enjoin the operation of the feedlot on the condition that Del Webb pay the costs of Spur to close down the feedlot since Del Webb brought the people there h. Available Remedies for Private Nuisance i. Temporary damages are awarded for the harm to plaintiffs use and enjoyment up to the time of judgment. 1. If the nuisance is continuing, P will have to sue again and again. ii. Permanent damages allow compensation for future harm on the theory that the nuisance will continue. 1. Cant sue over and over iii. An injunction requires the defendant to end the nuisance. 33

1. To get an injunction, the plaintiff must show: a. A Nuisance exists b. Conduct is Intentional AND Continuing c. Requirements for Equitable Relief: i. Damages are not an adequate remedy, and ii. Irreparable injury will occur if no injunction is granted. 2. What happens if defendant violates injunction? a. They can be held in contempt of court and there are a variety of actions a court can take. b. Possibility of criminal contempt. i. Criminal liability. c. Possibility of civil contempt. i. Daily fines i. What does nuisance do that trespass, strict liability, negligence, etc. do not do? i. It gets at problems where you have a physical invasion not falling under these categories. ii. We also dont have the same elements of strict liability. 1. E.g., abnormally dangerous activity 2. Nuisance takes a lot of factors into account to decide if the interference is both substantial and unreasonable iii. Difference between Nuisance, Negligence and Trespass 1. Negligence requires a breached duty. 2. Trespass requires contact with land, or very low fly-over. 3. Nuisance requires substantial and unreasonable interference with enjoyment and use of property. 2. Public Nuisance a. Generally i. Public Nuisance is a catch-all low-grade criminal offense, involving interference with a common public right. 1. Idea is enforcing public rights, through criminal law, without necessarily bringing a prosecution. 2. Interfering with the rights of the community at large, which includes anything from obstruction of a highway to a public gaming-house/indecent exposure. 3. Not b/c it interferes with w/somebodys use/enjoyment of the land but b/c its a threat to public health 4. Usually requires a criminal statute, involving some sort of public right a. In contrast to private nuisance unreasonable interference with ones use and enjoyment of land.

34

ii. More recently, commentators have suggested that a serious interference with public health, safety or comfort is a public nuisance even if not a codified criminal offense. 1. Ex- breeding of pests that carry a disease b. Examples of Public Nuisance i. Public rights protected include: 1. Public heath (pollution of water supply, malarial swamp). 2. Public safety (vicious dog). 3. Public morals (crack house, gambling, etc.) 4. Public peace 5. Public comfort/convenience (blocking a public street, smoke, dust, vibrations). c. Something can be both a public and a private nuisance i. E.g., State v. H. Samuels Company salvage yard a. Private nuisance salvage yard could interfere with neighbors use and enjoyment of land b. Public nuisance - we have an action brought by district attorney based on repeated violations of a criminal statute (noise ordinance) d. Available Remedies: i. Public Remedies: Enofrcement 1. The district attorney can prosecute those creating a public nuisance for committing a criminal offense. 2. The district attorney can also try to stop the nuisance by brining suit to enjoin or abate maintenance of the nuisance. ii. Private Remedies: 1. Private remedies are available when a person suffered particular harm: harm different in kind from that suffered by the general public from interference with the public right (e.g., construction blocking the use of the road everyone suffers). Typical examples of particular harm include: a. Personal injury i. E.g., pollution is tainting drinking water and you get sick because of it and you can trace it to pollution in water. b. Damage to or loss of value of land. 2. *The key is that private parties will have standing to sue when they have suffered particular harm different from that suffered by the public at large. 3. If the public nuisance also interferes with the use and enjoyment of land, the possessor of the land can also bring an action under a private nuisance theory. 35

iii. The Injunction an equitable remedy (as opposed to a legal remedy like damages) 1. Plaintiff must first demonstrate that a nuisance exists 2. Plaintiff must then satisfy the requirements for equitable relief: a. Damages are not an adequate remedy, and b. Irreparable injury will occur if no injunction is granted. 3. In practice, this will require that the defendants conduct be both intentional and continuing. 4. Balancing the Equities a. In granting injunctions, courts will consider whether the Defendants CONDUCT was unreasonable (not just that the interference with use and enjoyment was unreasonable). Factors showing that the conduct is unreasonable include: i. Whether the harm caused by the activity outweighs the benefits that the activity produces; and ii. Whether it is possible to reduce the harm without significant loss of utility. 5. There is also a conditional injuction a. Recall Spur v. Del Webb - Sun City, Arizona and the cattle feedlots. Del Webb got the idea for the Sun City development as one of the first active adult communities for retirees that didnt want to endure northern winters. i. The court grants a conditional injunction - They enjoin the operation of the feedlot on the condition that Del Webb pay the costs of Spur to close down the feedlot since Del Webb brought the people there e. The Tragedy of the Commons i. E.g., Commercial fishermen sue oil co. for public nuisance, because the number of fish caught after the oil spill has diminished. The question is to what extent is the oil co. responsible for the economic damages? 1. Recall Union Oil v. Oppen oil spill hurts fishermen (similar to BP) 2. What rule does the court adopt here? a. The fishing industry (but not individuals) have a right of action against the oil company because they are making the most direct use of the waters and are the most immediately affected. b. The court is being driven by policy implications. c. You can think of many people that would be affected (restaurants, local marinas, hotels, etc.) but the court 36

awards damages only to the fishing businesses because they are directly injured. ii. The Commons issue is that nobody owns the ocean or the fish in it. So what happens when there is an oil spill that kills all the fish? iii. There is a close causal connection between economic harm to individuals and oil spillreason the Ps have standing. iv. But how far does it reach? Local Seafood restaurants? 1. No, only directly injured P may sue.

Defamation
1. Historical Background a. The Defamation cause of action remedies wrongful injury to a person's reputation. b. Defamation, for historical reasons, consists of the two torts known as libel and slander. Both torts provide a remedy for damage to reputation caused by defamatory statements. i. Slander originated as a form of false witness handled by the ecclesiastical courts. It was associated with spoken defamation. ii. Libel originated as sedition against the government, usually by pamphlet. It was associated with printed defamation. iii. Simply put: 1. Slander = Speak/Oral 2. Libel = Letter/written c. At C/L defamation was a strict liability tort. i. P could recover without proving any fault or falsity of the statement. Falsity was presumed. In most instances damages were presumed also. ii. Plaintiff did not have to prove that the defendant was aware that the statement was not true, or even that the defendant was negligent with regard to its truth or falsity. iii. Plaintiff also had no burden to show that the defendant should have been aware that the statement referred to the plaintiff. iv. Finally, if the defamation was libel or slander per se, plaintiff did not have to prove actual monetary loss. Injury to reputation and resulting damages were presumed. d. Important distinctions between the two forms of defamation remain, such as the requirement that some forms of slander are only actionable if the plaintiff proves that they caused pecuniary harm. i. Today it becomes a little more difficult to differentiate with the advent of communication technology and social media. ii. For ordinary slander, the plaintiff has to show that the defamation has caused pecuniary harm (caused plaintiff to lose money) 2. Two Levels of Analysis for Defamation Questions: a. Common law rules - Do you have the basic state law cause of action 37

i. What is defamatory? ii. Do you have the traditional elements of the cause of action? iii. Are there any absolute and qualified privileges? b. Then consider constitutional limits (i.e., first amendment rights) based on factors such as: i. Status of plaintiff as a public or private figure ii. Status of defendant as part of the media iii. Topic of defamation as a matter of public or private interest iv. *be sure on an exam to pay attention to exactly what youre being asked because you may have to only provide CL rules or constitutional limits, or you may need both 3. Elements of Defamation: a. Defamatory statement of and concerning the P. i. defamatory statement = one that tends to harm the ps reputation in the community ii. Must refer to P, satisfied when identified by name, or if P is identifiable as the subject of the statement. b. Publication of the statement to a 3rd party, who understands the defam. meaning i. Must be published to someone OTHER than the subject of the defamatory statement. ii. As part of this requirement, the P must show that the statement was understood by those third persons to whom it was published. c. Depending on the situation the P may have to prove the defam. statement caused pecuniary harm. (when its ordinary slander) i. Under CL, Defendant did not have to know that the statement was false and if he knew it was false it may even justify punitive damages. ii. Also notice that plaintiff does not have to prove any actual injury unless suing for slander. d. Note: At CL, truth was an affirmative defense, and not part of the plaintiffs prima facie case. i. This is not an action that lets you sue someone for exposing the secrets of your past that are true. ii. The idea is that if it damages your reputation, then you deserved it because its true. 4. What is Defamatory? a. A defamatory communication is one that would tend to harm a persons reputation in the community. b. A defamatory communication: i. Exposes the plaintiff to hatred, contempt, and ridicule; ii. Impairs the plaintiffs reputation for morality and integrity; or iii. Causes the plaintiff to be avoided by others. 1. E.g., people dont frequent your restaurant anymore because of the remark 38

c. Basically something fairly disgraceful and causes significant harm to the way others treat and react to you. They think youre a bad person now. 5. Who decides if something is defamatory? a. The role of the judge is to determine whether the communication could bear a defamatory meaning. b. The role of the jury is to determine whether the defamatory meaning was the one in fact conveyed. 6. Must the statement be false? a. E.g., ships log entry by the 1st Mate of a ship: i. The Captain was sober today. 1. Say this is true. Would it be defamatory? 2. This could imply that the captain was a drunk ii. What if Captain is always sober and never drank? 1. (The Captain was a teetotaler (person who never drinks).) b. The common law rule was that truth was a defense that could be proved by defendant. 7. Defamatory in whose opinion? a. It is not necessary that all or a majority of the population regard the matter as defamatory. It is sufficient if the statement would damage the plaintiffs reputation in the eyes of a large and respectable minority (e.g., statements that a kosher butcher shop is selling non-kosher bacon): i. Call someone a communist? 1. Might not be defamatory today but probably in 1954. 2. Problem 1 (pg. 706) dentist running for public office is called a communist. Dentist loses election and loses business. a. This would be defamatory because it hurts reputation and business. ii. Bastard? 1. Today this is a term of abuse when calling people names 2. 100 years ago, if someone called you a bastard, you would be socially ruined iii. Socialist? iv. Conservative? v. E.g., Lega Siciliana Social Club v. St. Germaine Sicilian social club with mafia ties 1. Defendant send letter to board of aldermen accusing plaintiffs of being in the mafia. a. Defendants defamation consists of statements accusing plaintiffs of moral turpitude b. Defamation must be of and concerning the plaintiff plaintiff must be identifiable i. The defamatory statement must in fact refer to the plaintiff. ii. This requirement is satisfied when the plaintiff is identified by name, of course. 39

iii. The statement is also actionable if the plaintiff is identifiable as the subject of the statement, even if the plaintiffs name is not actually used. 8. Other rules to remember: a. A look alone is not enough for defamation. i. Ex Money is missing and employer gives employee bad look. b. What if defamatory statement is uttered in a language that many of the people dont understand? i. If you can in fact show that the statement was overheard and understood then you can establish publication c. When the statement is so outrageous that no one can take it seriously there is no cause. 9. Group Libel a. Generally i. The general rule is that disparaging words about a large group or class of persons does not give rise to a libel action by any individual member of the group. 1. The reason is that the statement would not be read to apply to all members of the group. ii. If the group is small enough, however, so that the statement could reasonably be thought to apply to all members of the group, an individual can bring an action. 1. Groups that are under 10 would usually amount to a small enough group to be able to bring an action 2. 392 people = probably too large a group for an action 3. 15-20 people = probably small enough group and ok to bring action iii. All of this is an additional requirement to showing that the plaintiff was identifiable b. E.g., Neiman-Marcus v. Lait U.S.A. Confidential calls salesmen, saleswomen, and models faggots and prostitutes. i. These Confidential books told people where to go in each city for after hours night life (e.g., where to get prostitutes) ii. No one is individually named; the reference is to the group. iii. Are the individual members of the groups defamed (reputation defamed) such that they would have a defamation action against the authors (i.e., group libel)? 1. The plaintiff salesmen have a cause of action for libel since defendant wrote that most are fairies. a. There are 15 salesmen of a total of 25 suing. Since the group is small, they can sue. 2. The book spoke of the saleswomen generally. The group of salesmen is 382 members and no specific individual is named. Therefore no saleswoman has a cause of action. 40

10. Libel by Fiction a. Remember that the alleged defamation must Of and concerning the plaintiff Rule: If the plaintiff is reasonably understood as the person depicted in a purported work of fiction, plaintiff has a cause of action for a defamatory portrayal in the work of fiction. i. E.g., There was a case out of California where a novel was written about a psychotherapist who practiced nude group encounter therapy and in which all sorts of naughty stuff went on. 1. It turns out there was an actual therapist in Topeka, Kansas who actually practiced this kind of therapy except nothing naughty went on. 2. The real Psychotherapist sued for defamation claiming that he was identifiable because anyone who actually knew about the therapy would recognize him and his reputation was damaged because none of the bad stuff actually went on during the therapy sessions. 3. Court said the therapist had a cause of action because he was identifiable because he was the only one who did this and he was defamed because the book departed from the truth in a defamatory way 4. The defendant claimed that this was a trap a. Everything that was similar helped out plaintiff by making it more like his situation b. Everything that was dissimilar could be called defamatory 11. The Distinction between Libel and Slander a. Libel descended form the criminal action of sedition, and was limited to defamation published by means of the printed word, or some other more or less permanent physical form, including photographs, videotape, and sound recordings. i. If spoken defamation is part of a script and written down in advance, then it should be treated as libel b. Slander was reserved for defamation published by means of the spoken word or transitory gestures such as sign language. i. If spontaneous and spoken, it should be treated as slander. 1. E.g., a live broadcast. c. Why the Distinction Matters i. In the case of libel, the plaintiff was not required to prove actual damages; damage was presumed. ii. In the case of slander, the plaintiff was required to prove special pecuniary damages unless the slanderous statement fell into one of the four categories of slander per se.

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12. Slander per se: Four Types if slander falls into one of these four types of slander per se then it is actionable per se (i.e., plaintiff does not have to prove any special damages or pecuniary harm) a. A statement likely to injure the plaintiff in his or her trade, business or profession. b. A statement accusing the plaintiff of having a loathsome disease. i. The classic one leprosy ii. Also included STDs c. A statement accusing the plaintiff of a crime that either carries a serious punishment or involves moral turpitude. d. A statement accusing the plaintiff of serious sexual misconduct. i. Used to be accusations that a woman was unchaste 13. Slander and Pecuniary Harm a. If the slander is not slander per se (does not fit into any of these categories) the plaintiff must prove special damages. b. For purposes of slander, courts require proof of loss of something of material value as the result of the damage to the plaintiffs reputation from the slander. c. Emotional distress by itself is not the type of injury that will make a slander actionable. d. The harm does NOT have to be business related. i. One case was that a P had a weekly free dinner invitation. After the slander, he lost the invitation. He lost out on a free dinner=pecuniary loss. Since it was actionable statement, there was pecuniary loss, he can now get damages to reputation, emotional distress and other pecuniary losses. 14. Forms of Libel a. Libel per quod a defamatory statement that is not libelous on its face but becomes libelous when read in conjunction with knowledge of certain facts i. Minority view: Have to show special pecuniary loss unless the statement falls into one of the 4 slander per se categories. ii. MAJORITY & Traditional view- ALL LIBEL is actionable per se- no need to show special dmgs 1. Policy- b/c of the permanent nature of a written doc. iii. Types of Libel that is not apparent on the face: 1. Inducement- extrinsic facts used to show statement is defamatory 2. Innuendo- extrinsic facts explain the defamatory impact 3. Ex- saying Professor X spends several evenings a week doing pro-bono work at 5050 Main St. Extrinsic evidence shows 5050 Main is a brothel. With this inducement, Professor X would plead that the defamatory innuendo is that he frequents a brothel. 42

b. Libel per se on the face of the writing. defamatory meaning must be apparent on the face of the document. i. Effect- dont have to prove damages. 15. Defenses raised a. Truth defats the action and is a complete defense to defamation i. To be actionable, a defamatory statement must be false. ii. Originally, the common law made truth a matter of affirmative defense for the defendant to plead and prove. iii. (This aspect of the cause of action has been changed in some situations by the intervention of federal law). b. Common Law Privileges i. Absolute Privileges (cannot be lost by misconduct of speaker) 1. Rule: Have to establish that you made the statement in connection with one of the following privileges. 2. For participants in judicial proceedings judges, layers, parties, jurors, witnesses for statements related to the proceeding. a. E.g., a witness making all sorts of false statements cannot be held liable for defamation (but could be held liable for perjury) b. Also, statements made after a hearing in a press conference, for example, would not be protected 3. Legislators, and witnesses at legislative hearings. a. Recall Proxmire case in Conlaw where senator was not privileged to hand out Golden Fleece award 4. Statements between husband and wife. 5. Statements required by law. ii. Conditional or Qualified Privileges (can be lost by a showing of malice). 1. Protection of publishers interest. 2. Protection of interest of third parties 3. Protection of family interests. iii. Fair reporting privilege for publication of record of official proceedings. 1. Newspapers have a right to report that such statements were made. 16. Who CANNOT sue for Defamation? a. Dead Person b. Corporations cant sue for defamation c. Some people have a reputation that is so bad based on the truth, that there is nothing anyone could say that would make it worse. i. Ex- prisoner on death row being called a snitch ii. BE CAREFUL here though; could make the argument that person has rebuilt their reputation 43

17. CHART
Libel Per Se: (dont have to prove special dmags) o It is defamatory on the face of the writing- libel per se on the face of the writing so no special dmgs necessary Libel Per Quod: if you read the doc and it doesnt appear defam but then you look at outside evidence and see it does o Colloquium- the defam statement o Inducement- extrinsic facts outside doc. o Innuendo-the defam. meaning doc. carried o Minority view- have to prove special dmgs if defamatory meaning doesnt fit into one of the 4 slander per se categories o Majority view- ALL LIBEL ACTIONABLE W/OUT SPEC. DMGS Slander Per Se (dont have to prove special dmgs) o Injure in business o Loathsome disease o Crime of moral turpitude o Sexual misconduct Slander: o Everything else- have to prove special pecuniary damages

18. Publication a. Rule for Publication: i. The defamatory statement must be communicated by the defendant to at least one person other than the plaintiff 1. Does not require widespread publication. ii. As part of this requirement, the plaintiff must show that the defamatory meaning of the statement was understood by those third persons to whom it was published. iii. For liability, the defendant must either have intended the publication or been at least negligent with regard to its communication to a third party. 1. There is no liability if the publication occurred by mistake, and without fault on the defendants part. 2. What if defendant sends envelope to plaintiff labeled confidential and for the plaintiffs eyes only? a. May be protected if defendant took reasonable care. b. However, if defendant was negligent or knew that someone else was likely to open the envelope, then may not be protected. 3. A conversation overheard by someone eavesdropping on the conversation would probably not be negligent or intentional unless the statements could obviously be heard. 4. If defendant has taken reasonable precautions to make sure no one hears or reads information, then it is not an actual publication. b. Publication by the Plaintiff 44

i. If the plaintiff repeats a defamatory statement made by the defendant to the plaintiff alone, the defendants is usually not responsible for this publication. 1. E.g., plaintiff goes around talking about defendant, saying, do you know what that guy said about me? ii. Exception: Compelled Republication may occur if the defendant should expect that the plaintiff will have to repeat the defamation, as when the discharged employee must explain why he or she was fired. 1. E.g., plaintiff to next employer, I was fired from my last job because I was accused of stealing. c. Failure to Remove as Publication i. In some cases courts have found a duty on the defendant to remove a defamatory statement posted on the defendants premises. ii. This usually requires some notice on the part of the defendant and sufficient control to be able to remove the statement. 1. Used to be concerned with things written on bar bathroom walls or billboards, for example. iii. Internet bulletin boards and social networking sites are a new twist on this old problem. 1. E.g., facebook may not have an initial responsibility to take down the post but if get notice from a complaining , then a duty may kick in. d. Publication and the Libel/Slander Distinction i. The extent to which the matter is published does not determine the issue of whether or not the defamation is libel or slander. 1. A defamatory statement contained in a written note passed to one person who reads and destroys it is still libel. 2. A defamatory statement shouted in a crowded auditorium is still slander. ii. The extent of publication may bear on the issue of the damage that the plaintiff has suffered. 1. Where the tort occurred is also important e.g., a man in Iowa that receives the Houston Chronicle each day. Could the man in Iowa sue for defamation in Iowa since the publication gets received there? 2. Also, someone who reads an article saved online 20 years later? e. Single Publication Rule any single issue of a newspaper or magazine constitutes a single publication. i. Ramifications 1. You are supposed to sue for all the harm caused by a defamation wherever it may have been published in a single action. 45

2. However, you can still bring the action any place that the defamatory statement was in fact published. a. So that little guy in Iowa could sue. ii. Makes defamation actions more manageable and avoids the burden of a person having to defendant multiple defamation suits in different places for the same event. 19. Defamation and the First Amendment a. The Common Law Standard: Strict Liability i. Plaintiff must show that the defendant published (at least negligently) a defamatory statement about the plaintiff. ii. The statement was presumed to be false. (D had burden to show it was actually true) iii. Plaintiff did not have to prove that the defendant was aware that the statement was not true, or even that the defendant was negligent with regard to its truth or falsity. In this sense, liability was strict: If the statement was false and defamatory, defendant was liable. iv. Plaintiff also had no burden to show that the defendant should have been aware that the statement referred to the plaintiff. Here again, liability was strict. v. Finally, if the defamation was libel or slander per se, plaintiff did not have to prove actual monetary loss. Injury to reputation and resulting damages were presumed. b. The Federal Law Intervened and the first amendment required the states to change their defamation laws. i. Many of the common law standards of liability have been changed by the intervention of federal law. ii. Federal law intervened to protect first amendment interests. iii. The process began with New York Times v. Sullivan. (The advertisement alleged certain activities by the police force and plaintiff was the commissioner of the police. 1. Supreme Court comes up with the rule that a public official is prohibited from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malice. a. In order to recover for defamation, a public official must prove the statement was made with actual malice. i. Reckless disregard for whether or not that statement was false b. Actual malice means that the defendant knew the statement was false or made it with reckless disregard of whether or not it was false. c. Actual malice must be shown by clear and convincing evidence. 46

i. Not a preponderance of the evidence, but more than that. ii. Basically you have to have very strong evidence of the actual malice. d. Reckless disregard i. Recklessness requires more than a lack of due care ii. Recklessness requires that the publisher entertained serious doubts about the truth of the statement e. The test -- in fact entertained serious doubts about the truth -- is a subjective one. i. Proof of this element requires that the plaintiff be allowed to inquire into the editorial process that produced the statement. ii. This permits invasive discovery into the editorial process. f. *Defamation actions can be dangerous for plaintiffs because if you dont win then the public perception is that the defamatory statements are true! c. Public Figures and Matters of Public Interest i. The NYT standard was soon extended to public figures as well as public officials. 1. If someone was generally in the public eye and inviting public and political scrutiny then theyll probably satisfy the standard. ii. The next step extended the standard to any matter of public interest, even if the victim of the defamation was a private individual. This extension was soon repudiated and a new rule developed in the Gertz case. 20. Defamation: The Emerging Constitutional Limitations a. The New York Times standard was soon extended to public figures as well as public officials. b. What is a Public Figure? (Two kinds) i. General Purpose public figures: 1. Of such pervasive fame or notoriety that the person is a public figure in all contexts. a. Basically, appear before the public frequently and everyone knows them. ii. Limited Purpose public figures: 1. A public figure with respect to a particular public controversy. 2. The limited purpose public figure can voluntarily become involved or can be drawn in to the public controversy. a. Satisfies NYT standard iii. Examples 47

1. Oprah general purpose 2. Martha Stewart general purpose 3. The pimp and prostitute who went into ACORN and secretly videotaped their actions (Hannah Giles and James OKeefe) a. It was a stunt, but had actual public policy effects (congress ended up defunding ACORN) b. They voluntarily got involved in an issue of public concern. c. They would qualify as Limited Purpose public figures 4. Sue Diegaard, organizer for Save Texas Schools, protesting cuts to state aid to public schools. a. Shown on Fox 26. She is the face of the protest and has voluntarily involved herself in this issue of public concern. b. She would be a Limited Purpose public figure. c. Gertz v. Robert Welch, Inc. attorney is defamed in communist magazine. He was neither public figure or public official. i. The court frames the issue: Is there a Constitutional privilege 1. A newspaper or broadcaster 2. Publishes defamatory falsehoods 3. About a person who is neither a public official nor a public figure (i.e., a private figure or private individual) ii. Of unclear significance at this point is the fact that the matter was one of public interest. iii. Strike the Balance: To resolve the issue, we balance the interest that the states have in protecting the reputations of private citizens, with freedom of press and first amendment interests 1. The interests in the Balance: a. The First Amendment protection of freedom of the press, which is weak when the problem is false statements of fact. b. State interest in protecting personal reputation from defamatory falsehood. 2. In NYT, which dealt with defamation of public figures and officials, the balance was weighted strongly toward protection of speech. 3. The public official or public figures is entitled to less protection from defamation: a. They have greater opportunities for self help, because they have greater access to the media for correcting falsehoods. b. They have assumed the risk, in a sense, by seeking public office or public notoriety and the scrutiny that goes with them. 48

4. Striking a Different Balance a. The private individual has less opportunity for self-help correction, and is more deserving of protection from defamation. b. Therefore the state has a stronger interest in providing a legal remedy for injury to the reputation of a private individual. c. Therefore the Rosenbloom standard (based on whether the matter is of public interest) is wrong. (Why?) i. It doesnt give enough weight and respect to the state interest in protecting the reputations of private individuals who probably dont have anyway to vindicate themselves. iv. Finally: The Gertz Standard 1. No liability without fault. Other than that the states may define the proper standard. (So what is the minimum level of fault?) a. Plaintiff doesnt have to prove actual malice but it is also not traditional strict liability. b. Negligence as standard of fault. 2. No presumed or punitive damages unless the plaintiff proves knowledge of falsity or reckless disregard for the truth. (In other words, the NYT standard actual malice.) a. Private individual plaintiff has to prove actual malice for punitive damages. 3. Plaintiff may only recover for actual injury which means what? a. Damages they can prove b. Not limited to out of pocket loss c. Prove impairment of reputation and standing in the community. d. Personal humiliation, mental anguish and suffering are actual damages. d. Actual Injury i. Dont confuse with the requirement for ordinary slander that you actually prove pecuniary harm (this is not limited to pecuniary harm) ii. Not limited to out of pocket loss. iii. Impairment of reputation and standing in the community iv. Personal humiliation v. Mental anguish and suffering 21. The Constitutional Chart

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Fault Presumed Damages Punitive Damages Falsity

Public Official, Public Figures Malice Yes Yes Plaintiff Burden

Private Individual, Public Issue At least negligence No, if Plaintiff only proves Negligence No, if Plaintiff only proves Negligence Plaintiffs burden if media defendant Non-Media?

Private Individual, Private Issue Not clear (Is strict liability OK?) Yes (D&B case) Yes Not clear for either media or non-media defendants.

22. Recap The Story so Far (following Gertz) Standard of Fault Public Figure or Public Official Private Figure Constitutional Malice At least negligence Presumed or Punitive Damages Yes No, if liability based only on negligence

23. Private Interest vs. Public Interest a. Speech that is of purely private concern is entitled to less protection from the First Amendment. b. Accordingly, the balance is weighted more heavily toward the states interest in protection of the individuals reputation. c. The state may therefore provide remedies not available when the matter is one of public interest. d. Philadelphia Newspapers v. Hepps (p. 744) i. In Philadelphia Newspapers, the defamation in question involved a private individual, but its subject was a matter of public interest. ii. In this factual situation, the court held that the plaintiff bore the burden of proof on the issue of the falsity of the defamatory statement. e. Keep in mind, with the public vs. private figure distinction, that the Supreme Court is reluctant to turn a private figure into a public figure when the private figure has been involuntarily drawn into the public eye because of a media frenzy (e.g., expensive divorce) 24. The Deliberate Misquotation 50

a. The deliberate misquotation is in some sense false and known to be by the author. b. On the other hand, if this met the actual malice standard, it would impose too great a burden on the author who is trying to make the verbatim quote readable. i. A lot of times spoken words makes the speaker sound like an idiot on paper. ii. Lots of uhs and hmms c. In order to be malicious the quotation must materially change the meaning of the quoted statement. 25. Opinions as Defamation: a. CL: allowed action for defam. From the expression of an opinion if it falsely implied that facts existed to support the opinion. b. Milkovich displays that there is not a separate standard for opinions. Indicates that opinion is protected by the other constitutional limitation on liability for defam. unless... i. DEFAMATORY WHEN IT IS FALSE OPINION ON A FACTUAL BASIS c. Protection for Opinion: i. The burden of proving falsity is on the P when the issue is one of public interest ii. Hyperbolic statements that no one could believe are factual are not actionable. iii. The fault requirements of NY Times and Gertz provide protection. d. Provisions for appellate review will assure that defam. law does not intrude on free speech. i. Saying in my opinion doesnt mean its not subject to defam. e. SLAPP i. Case where at public meeting man says Real estate position amounts to blackmailthis is allowed to encourage free speech. ii. Strategic Loss Suit against Public Participation: SLAPP lawsuits were being used by public officials/developers to stop them from speaking out. Calif. Has anti-slapp suit legislation to prevent these suits. 26. Libel Tourism a. Place of the publication is where the tort occurs. {Berezovsky v. MichaelsForbes could be sued in Great Britain bc it published the defam. Statement there.} b. NY Libel Tourism Terrorism Act- barred enforcement of foreign judgments unless it satisfied freedom of speech and press aka actual malice. It also created jsd over Ps who had received the foreign libel judgments. Cautionsome fear the personal jsd provision violates due process.

Privacy Torts
1. The Basics: Four Causes of Action One protected interest (The right to privacy) 51

a. The tort of invasion of privacy is a fairly recent invention based on the notion that a person has a protected interest in freedom from unwanted public intrusion into his or her private affairs. i. Came about with the advent of Yellow Journalism and celebrity gossip 1. This sort of thing was demeaning to most people 2. Most people did not want their name in the paper ii. Appropriation came about from people taking someones picture and placing it in an advertisement without permission 1. E.g., taking a picture of a registered nurse and using it in an ad for liquor iii. William Prosser also wrote an article entitled Privacy that gave a lot of the attention to the torts. He decided that we had the 4 different torts with not much in common except for the idea that they protected the right to be let alone. b. Today, a persons interest in privacy is protected by four distinct causes of action. (Skip down for more details) i. Intrusion 1. involves invasion of a persons private space or affairs. a. Ex- can be invoked against spying, eavesdropping, snooping, breaking and entering, and similar invasions of persons home or office. ii. Appropriation 1. Appropriation involves the use of Ps name, likeness, or identity of the users benefit. 2. Based on the idea that a persons identity may have a distinct value that should be protected from exploitation w/o permission. 3. Use of someones identity without permission for commercial purposes will qualify iii. Public Disclosure 1. Assume that the matters are true, thus it is distinct from defamation or false light. 2. The complaint is that the matters are private, and that the disclosure of them is so highly offensive that the P should have a cause of action to recover damages for the mental anguish suffered as a result of the public disclosure. a. Ex. Green v. Chicago Tribunepublication of words in hospital by mother to dead son. Held to be a public disclosure of private facts. iv. False Light 1. The tort of false light protects a persons privacy interest in not being portrayed to the public in an objectionable false position, that is, as something the person is not. 2. Probably the most controversial of invasion of privacy torts 52

c. You need to be able to distinguish each of these based on their distinctive elements 2. Intrusion a. Elements i. There must be some sort of invasion into a private area of the plaintiffs life. 1. Includes a persons legitimate expectation of a certain bubble of private space while in public. ii. Intrusion can be accomplished 1. Physically, as by entering a persons house or office 2. Electronically, as by wiretapping 3. Mechanically, as by using a telescope to observe the plaintiff at home. iii. The intrusion must be highly offensive to a reasonable person. 1. The intrusion must be significant in scope, not trivial. 2. The intrusion must invade an area that the reasonable person would feel is truly private. Thus observation of a person in public is normally not an invasion of privacy, no matter how much the individual being observed wishes to be let alone. b. Examples i. PETA v. Berosini the abusive Orangutan trainer caught on tape. 1. The court determined that the intrusion was not into a private area and that it was not highly offensive. a. It wasnt a private area since he was backstage where many other people could see what he was doing. b. It wasnt highly offensive because he said he wasnt ashamed about what he was doing and he didnt care if others saw. i. He wanted the area enclosed so he could focus the animals and the taping did not disrupt the animals. ii. One of the nuances of intrusion is the capacity of computer programs to do thorough searches of people online 1. Prof thinks that even a sophisticated data mining problem would likely not be governed by tort law because it is all available information that is only able to be found by a very efficient program a. This is likely better for the legislature to solve. b. Especially with technology today, there are very few things that people could not spy on if they wanted to. c. Unless the technology involves peeping into someones home. c. Intrusion: Distinctions i. It is different from defamation because no publication is necessary 53

1. It is not necessary that the fruits of the intrusion, such as information obtained by wiretap, be published to any third person. The tort is complete as soon as the offensive intrusion itself takes place. ii. Different from trespass because it doesnt require a physical invasion 1. could be from a distance with binoculars. Often overlaps with other torts. iii. Similarly, those who simply receive the fruits of the intrusion (that is, persons to whom the information is published) are not liable for the intrusion itself, unless one can make out a case of concerted actin or vicarious liability. d. Damages for Intrusion i. Mental anguish damages-embarrassment/humiliation ii. You can get damages for the intrusion itself, dont need publication. iii. The intrusion itself causes an injury and once that happens, we will provide a remedy. iv. The usual remedy is compensatory damages. v. Can have punitive damages. vi. But need to have a solid compensatory damage that punitive damages can work off of. 3. Appropriation a. Elements i. The defendant appropriates (makes use of) ii. The plaintiffs likeness or identity iii. For the defendants own use or benefit. 1. Note: The use of the plaintiffs identity is often for commercial purposes, but need not be. What is required for the common law tort is the appropriation of the plaintiffs identity to advance some purpose of the defendant. b. Damages for Appropriation: i. Property rights- you get the value of your image. 1. Note: If not a celebrity though going to be hard to prove. They could have used anybody. So unless you are celebrity this is going to be the same result for every appropriation suit. ii. NOMINAL damages- b/c you really have no damages which is usually $1 so not worth suing over iii. Emotional Distress iv. Restitution- also called Unjust Enrichment- recover the benefit taken by another party unjustly 1. EX- Ainsworth case the guy they used in the commercial without his permission; the money they saved from not having to hire someone to be in the commercial and lay tile, the cost of the set, etc. 4. Public Disclosure of Private Facts 54

a. Generally i. In this case, we assume that the matters published are true. Thus, this tort is distinct from defamation and false light. 1. Not a remedy for spreading falsehoods about someone. 2. The problem is that the facts, though probably true, were private. ii. The complaint is that the matters are private, and that the disclosure of them is so highly offensive that plaintiff should have a cause of action to recover damages for the mental anguish suffered as a result of the public disclosure. 1. Mental anguish includes embarrassment, humiliation, etc. 2. This means that there will be First Amendment problems since the disclosure is true. 3. Providing a remedy for truthful publication is more threatening to the First Amendment than defamation. b. Elements i. The defendant must publicize; 1. Matter must be given publicity. Where as defamation required only publication to one other person. Publicity is a term of art and requires wide-spread dissemination to the public. ii. Some private information about the plaintiff. iii. The disclosure of the private information must be highly offensive to a reasonable person. iv. The information disclosed must not be a matter of legitimate public concern. c. Publicity i. The tort requires that the matter be given PUBLICITY. ii. Make sure that you dont confuse this with publication 1. With publication, all you need to do is disclose the information to 1 person and that gives you a claim for defamation. iii. The concept of publicity suggests fairly widespread dissemination. 1. Probably some form of mass communication or something that spreads it widely, at least in the local community. d. Analyzing the elements: Green v. Chicago Tribune journalists take pictures and report on mother next to dying son. i. Chicago Tribune reports private statements made to son along with pictures. ii. Publicity? 1. Publicity element is easily satisfied because of the publication in the Chicago Tribune. iii. Private facts? 1. Hospital room is not a public place a. even hospital personnel that are there are held to strict guidelines of doctor-patient confidentiality 55

2. plaintiff doesnt have a claim for public disclosure concerning her son because she cant pursue a claim for her son because the cause of action died with him 3. the private facts were the statements made by the plaintiff a. plaintiff expressly said that she did not wish to make a statement b. since the Tribune published her statements without consent, then that satisfied the element of private facts iv. Highly offensive? 1. This will depend on the social context of what sorts of things are and are not acceptable to give disclosure to the public about. 2. The way they got the information by prying into the statements the mom made to her son is closer to intrusion a. The dissent says this is intrusion, not public disclosure. 3. Here the analysis gets a little obscure v. Legitimate public concern? 1. The Tribune could have reported about gang violence and homicides without disclosing plaintiffs words. a. But the dissent says this is part of the newspapers discretion in deciding how to present these issues to the public e. Constitutional Limitations: The Publics Right to Know vi. This tort in some ways is more offensive to rights of freedom of press and speech than the tort of defamation, since it involves no falsehood. vii. If the facts disclosed involve a matter of legitimate concern to the public, the constitution protects the right to disclose them. viii. One issue that comes up here is victims of sexual assault 1. General rule: If the information regarding the identity of the victim is in a public record that is publicly available, there cannot be an action against a media outlet that releases that information 2. When information is publicly available, you cannot hold a media source liable for publishing that information. ix. Those who are public figures and public officials have a narrower scope of privacy under this tort. x. The public has a legitimate interest in even some private facts about public figures and public officials, at least to the extent that the facts have some relation to the persons office or place in the public eye. 1. True public figures will have a hard time pursuing an action for public disclosure of private facts. 2. The idea is that they forfeit the privilege of having their information remain private by becoming public figures. 56

a. E.g., Charlie Sheens rehab details might normally be private information for an ordinary person but not someone like Charlie Sheen whos thrust himself into the public eye. 3. Imagine if the National Inquirer decided they were going to reveal every detail of Chris Rothfelders public life a. They revealed everything about your transcripts, tax records, etc. b. They want an ordinary member of the public to experience what its like to be a celebrity c. This would be deemed highly offensive because we havent made a public spectacle of our lives. 5. False Light a. Elements i. The defendant must publicize some matter that places the plaintiff in a false light. 1. Makes him appear as something or someone that he is not. ii. The false light must be highly offensive to a reasonable person. iii. The defendant must have knowledge of the falsity of the position in which plaintiff is placed, or must act in reckless disregard of the falsity. 1. This element is closely related to the NY Times v. Sullivan standard of malice and in defamation it is only necessary for a public figure, here we see it being used for everyone generally in the false light tort. 2. This sort of defeats the argument that false light lacks the procedural safeguards built into defamation iv. *The Plaintiff need not prove special damages if elements are established. b. The Controversy: Defamation vs. False Light i. The distinction: 1. In defamation, you hurt a persons reputation. 2. In false light, you just state something false about a person. Doesnt have to be hurtful, so long as it places the plaintiff in a highly offensive light. ii. Why not sue for defamation? 1. Sometimes it is not harmful to your rep or it would be nearly impossible to further tarnish your rep. a. EX- In defamation you are arguing damage to reputation, and if you are a convicted murder, its hard to hurt your reputation anymore. (Cain v. Hearst Corp.prison inmate suing Houston Chronicle) iii. NOTE Texas does NOT recognize False Light 1. Policy 57

a. It largely duplicates other rights of recovery, particularly defamation; b. It lacks many of the procedural limitations that accompany actions for defamation, thus unacceptably increasing the tension that already exists between free speech constitutional guarantees and tort law.

Tort Actions to Protect Civil Rights

1. CL and Constitutional Torts: basically were just getting a taste and barely touching the surface. 2. The Common Law: Restatement 865 Not very successful a. One who by a consciously wrongful act intentionally deprives another of the right to vote in a public election or to hold public office or seriously interferes with either of these rights is subject to liability to the other b. The interference can be accomplished by wrongful force, duress or fraud. i. This tort didnt hold much weight because there were a lot of other legal ways to stop people from voting. c. Common law didnt afford much protection for civil rights 3. Statutory Protection more success a. Federal statutes have largely supplanted the common law actions for such deprivations of civil rights as: i. Interference with the use of public accommodations ii. Interference with the right to vote 1. E.g., Voting Rights Act 2. These statutes are detailed and technical. There has been a lot of litigation to test them. iii. Conduct by government officials that deprive an individual of a constitutionally protected right. 1. Section 1983 2. Came about during Reconstruction in 1860-70s a. It didnt work very well at the time to provide a remedy because the courts hadnt really developed an expansive area of federal power under the 14th Amendment b. These were much more successful at protecting civil rights 4. 42 USC 1983 (pg. 787) a. Every person i. Includes individuals (so long as they act under state law); city and local govt entities; ii. Does NOT include the STATE itself (cant sue the governor of the state of Tex but could sue the governor in his individual capacity) b. Acting under color of state law i. Does NOT have to be action actually sanctioned or permitted by state law. 58

ii. It includes action that violates state law, so long as the action was made possible by the authority of the state gave to the individ. govt official. Ex.- An unconstitutional search by a police officer. c. Who deprives another d. Of rights, privileges and immunities secured by i. The U.S. constitution or ii. Federal law e. Is liable to the party injured f. *Just about every word in the statute has been litigated i. we now had this vast universe of federally protected rights, enforceable against both the states and federal government g. E.g., police bust in your front door one night and drag you to the police station and interrogate you for hours and then release you, just saying whoops (Bauman busts computer) Monroe v. Pape 5. Section 1983 in Detail a. Every Person i. The term person includes: 1. individuals (so long as they act under color of state law); 2. City, county and other local government entities (so long as the deprivation of rights is caused by a custom or policy of the governmental entity.) a. Includes counties, school boards, etc. ii. The term does not include the state itself. (cant sue Texas) b. Under color of State Law i. Action under color of state law does not have to be action actually sanctioned or permitted by state law. ii. It includes action that violates state law, so long as the action was made possible by the authority the state gave to the individual government official. iii. Example: An unconstitutional search by a police officer. c. Rights Protected i. Section 1983 itself creates a remedy for deprivation of constitutional rights. ii. Section 1983 does not itself create any substantive constitutional rights. iii. Therefore, the courts must look to the constitution to determine the rights that may be vindicated by this remedy. d. State of Mind Requirements i. Section 1983 does not itself have a state of mind requirement. ii. However, a particular state of mind may be necessary in order to constitute a violation of a persons constitutional rights. iii. Example: In order for a state official to violate someones procedural due process rights, the official must be at least reckless. 59

1. Also, In order to violate prisoners rights, officials conduct has to rise to level of deliberate indifference e. *Remember: Federal officials cant be sued under 1983 bc they are acting under federal law, not state law. See Biven. 6. An analysis of Section 1983 Monroe v. Pape - police bust in the door, deprive family of their rights, drag husband to police station, and then release him a. Was the conduct done under the color of state law? i. If the conduct was so completely unauthorized then you could really argue that it wasnt done under color of state law ii. Case said that under color of law meant actions taken under the authority, or apparent authority, granted to the government official by the state. the officials position gave him the ability to commit the violation iii. This was the crucial move that opened up a lot of possibilities for litigation iv. Here, when the police kicked the door in, they were acting with the apparent authority of being police officers, so they claimed 7. Defining the Right to Procedural Due Process a. The first issue is whether the plaintiff has any right to a hearing at all in the particular situation. b. If a right to a hearing does exist, a second question is whether a hearing that takes place after the injury is sufficient. 8. Due Process Clause of 14th Amendment a. Protects people against deprivations of life, liberty and property without due process of law b. Life, liberty and property encompasses a lot of territory i. It would violate your liberty interest to lock you up for no reason and would be without due process of law ii. But locking you up for committing a crime, while infringing on your liberty interest, would be done in accordance with due process of law c. Narrowing access to the courts for constitutional torts i. Pg. 793, Parrat v. Taylor 1. Inmate sued prison officials for losing his mail order hobby kit 2. The prisoner said that prison officials were running the mail room and acting under color of law and they deprived him of his property without due process of law because they didnt give him a hearing beforehand a. This would have inundated the courts by making every tort committed by an official into a federal case 3. The court says that if there is a post-deprivation remedy, such as a tort claims action against the city, then this is all the process you are due a. Sometimes it is impossible to have a pre-deprivation hearing for situations involving instances of negligence 60

4. There are cases where you have to have a pre-deprivation hearing a. i.e., where city is going to condemn your house to build a highway ii. What if the state didnt have an adequate post-deprivation remedy? 1. Pg. 794, Daniels v. Williams 2. There was a negligent tort an official carelessly left something in a prison stairwell that a prisoner tripped over 3. There was no post-deprivation remedy available for the tort 4. Here the court says in order to have a procedural due process violation, you have to have at least intentional or reckless conduct a. Merely negligent conduct is not a violation of your procedural due process rights at all th Amendment impose any obligation on the state to protect d. Does the 14 individuals? i. Pg. 794, DeShaney case ii. Father beat child so badly it caused permanent brain damages iii. The boy sued social services for not taking him away from his abusive father iv. The court said that the actions of social services did not constitute a violation of the boys 14th Amendment rights because the Amendment did not impose on the state a duty to protect 1. It was a shield against the state doing something to you but not a shield for the state to protect you against private parties v. There have been a lot of efforts to find ways around this 1. E.g., reporting requirements for reporting child abuse vi. About the only time you get a real federal action for failure to protect is when the state services actually have custody of the person 1. E.g., a prisoner 2. The state has acted to the point where theyve taken away most of the means by which the individual can protect himself and now the state has some obligation to provide some protection 9. Civil Rights violations committed by a federal official Bivens Actions a. When the rights violation is accomplished by a federal official, section 1983 may not apply. i. Because they are not acting under color of state law, they acting under color of federal law ii. Bivens was important because it dealt with a situation where there wasnt an existing statutory cause of action b. In the Bivens case, the Supreme Court created a similar action against federal officials by implying a cause of action for violation of the Fourth Amendment directly from the Constitution. 61

c. Special factors may counsel hesitation. One such factor is the availability of a statutory remedy. 10. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics drug agents break in and harass Bivens family. a. The court recognized that there was an independent cause of action arising directly from the 4th Amendment without the need for any statutory authorization and you could bring the action directly in federal court i. The cause of action looked very similar to the state official violation under 1983 ii. The only difference was that it was not a statutory action under 1983 and was a constitutional action applied directly from 4th Amendment b. Rule: When a particular right had already applied some sort of statutory remedy, you had to make use of the statutory remedy and not the constitutional remedy. i. Pg. 797, Schweiker v. Chilicky 1. Social Security case 2. Individuals denied social security business brought Bivens actions against Social Security Administration and its officers 3. Court said that the plaintiffs had to pursue statutory claim rather than constitutional claim for denial of due process 11. Municipal Liability a. Municipalities are persons within the meaning of section 1983, and therefore may be sued under that section. b. Municipalities are only liable, however, if the deprivation of federal rights was caused by an official policy or custom. i. Therefore, it is not straight respondeat superior liability. ii. An official violating a persons rights is not enough to hold the municipality responsible. c. Official policy is made by the policymaker designated by state law. i. Look to state law to see who is given the authority to make policy with regards to the particular incident in order to determine who the policymaker is. d. Municipalities do not enjoy qualified immunity, even if the individual officials do. e. In response to the limited circumstances where plaintiffs could sue municipalities, one method plaintiffs tried to use was suing municipalities for failure to train individuals. i. E.g., a police officers shoots a harmless, unarmed individual. ii. But the Supreme Court said you have to show that not training something was actually in the policy 12. Monell v. Department of Social Services pregnant ladies forced to take leaves of absence early. a. Overturned portion of Monroe v. Pape stating that you could not sue government itself and had to sue particular officials. 62

b. Here the policy about preggos having to take their leave early violated their rights. i. Unfortunately, most municipal liability claims dont present themselves this conveniently. c. Pg. 799, Pembaur v. City of Cincinnati i. Police thought that a witness was held up in a doctors office and the doctor would not let them in. ii. The county counsel told the police to break down the door and serve the writ. 1. This was found to be an unconstitutional search in violation of the 4th Amendment. iii. The plaintiff sued the city of Cincinnati and the court held that the city was liable because the decision to break down the door was made by the official policymaker with respect to this issue. 13. Immunities a. Executive branch officials enjoy qualified immunity from suit. (not just liability but actually being sued) i. Similar to immunities available in defamation suit ii. Immunity available if the official is acting in good faith but they lose it for malicious acts. b. Qualified immunity can be lost if the official violated a clearly established constitutional right. This is an objective test. (See Anderson below) i. Did the official violate a clearly established constitutional right? c. Judges and prosecutors, while acting as such, enjoy absolute immunity, which is an immunity that cannot be lost by improper behavior motives. i. They cannot be sued even if they are knowingly acting wrongfully. 1. Otherwise, its just too much of a threat to their independence. ii. Applies only to the judicial functions 1. The conduct of judges in administering court personnel is not part of the judicial function. 2. However, the conduct of the trial itself is the prosecutorial or judicial function. iii. If prosecutor starts conducting evidence gathering and acting like a policeman then he will not have absolute immunity but could be entitled to qualified immunity 1. E.g., Duke lacrosse case 14. Anderson v. Creighton police thought bank robber was held up in familys home. a. Distinguish: i. Officer had probable cause plus exigent circumstances to perform search. 1. No constitutional violation and claim fails because such a search would be lawful and not violate 4th Amendment. 2. PC + Exigent Circumstances = lawful 63

ii. Officer could have believed he had probable cause plus exigent circumstances, given objective facts known to officer at the time. 1. Even If wrong, officer has qualified immunity from suit for damages, claim fails. 2. Not a subjective test. Given the facts known to the officer, could the officer have believed that the search was proper? a. Given the facts, the officer would not have known that it was an illegal search. b. Note: How much discovery does Plaintiff get? i. This could make things difficult for plaintiff. ii. In this sort of action, the official will first make a motion to dismiss or MSJ on the grounds of qualified immunity. 1. The problem is that the plaintiff needs sufficient facts to fight off such a motion. iii. Because a plaintiff can anticipate this motion, plaintiffs counsel have to 1. Be really well prepared on the factual background of the case 2. And/Or ask the court to put off action on the motion until you have an opportunity to do discovery a. The court will probably limit the amount of discovery on the issue of qualified immunity b. You have to convince the court that you have to have discovery to resist the motion to dismiss 15. Injury and Damages a. Deprivation of a constitutional right does not itself entitle the P to damages. b. P must prove actual injury resulting from the deprivation. (includes mental anguish) c. Punitive damages may be recovered against individual tortfeasors on a proper showing; punitive damages may not be awarded against govt entities. d. Could also get injunction/equitable remedies: They must also demonstrate the need for injunction by showing a likelihood of future harm to get injunction. i. Most often used in school segregation cases and Prison conditions.

Misuse of Legal Process

1. Generally a. Malicious Prosecution i. Generally, refers to wrongfully initiating or continuing a criminal prosecution. ii. Wrongful civil proceedings is the civil action for malicious prosecution. b. Abuse of process 64

i. Refers to the abuse of processes available during trial for unintended purposes. c. Keep in mind that courts discover these types of actions i. Courts are there to help people and they dont want people to be encouraged to revert to self-help remedies. 1. Courts want you to make use of legal remedies. ii. Texas has a provision in its Constitution called The Open Courts Remedies 1. Variation of due process clause 2. It basically says that courts shall remain open and available to the people iii. Nevertheless, these torts for misuse of legal procedure do exist and courts struggle to interpret them. 1. You want to discourage frivolous litigation without discouraging meritorious litigation. iv. Both the attorney and the client can be sued for these torts. 2. Malicious Prosecution a. Elements i. Institution of criminal proceedings ii. Lack of probable cause to initiate the proceedings iii. Malice iv. Termination of the proceedings in favor of the accused v. Damages b. Initiate Criminal Proceedings i. The defendant must be actively involved in beginning or continuing the criminal proceeding against the Plaintiff. ii. Any formal institution of criminal proceedings will satisfy this element. 1. You not only call the police and make a complaint, but the result is the institution of some form of criminal action against the other party. 2. Just calling the police and making a complaint is not initiating a criminal proceeding. iii. There can be liability for continuing a criminal proceeding if the party is actively involved. 1. Continuing Proceedings: Restatement 655, Comment C a. Requires active participation on the part of the defendant after it is believed that there is no probable cause for the proceeding. b. So despite knowing there is no PC, you continue urging the police to go ahead with the proceeding. c. There is no liability for omission to stop prosecution after subsequently discovered facts that clear the plaintiff. 65

c.

d.

e.

f.

g.

2. Under the Restatement, this seems to be in line with Nordstroms actions Absence of Probable Cause i. PC means: A reasonable ground to believe that the particular person in question committed the crime ii. The defendant must be shown to have lacked either a reasonable or honest belief in the truth of the charge. iii. A reasonable mistake of fact does not show lack of PC iv. But, Instituting a criminal proceeding when a reasonable person would have investigated further shows a lack of PC. 1. So initiating a proceeding without enough information shows a lack of PC. Favorable Termination i. The criminal proceedings have to result in a favorable termination for the accused. ii. Termination means that the criminal proceeding cannot be revived, and that further prosecution would require a new proceeding. 1. Some sort of permanent dismissal is required and it cannot just be temporarily delayed. iii. Favorable means that the termination was on the merits and in the favor of the accused. 1. The accused was in fact not guilty. Malice i. Defendant must be shown to have had an improper motive for bringing the action. 1. This adds a subjective element to the crime. ii. This means that the defendant must have a purpose other than that of bringing a guilty party to justice. iii. Using the threat of prosecution to obtain some advantage from the plaintiff is a typical example of malicious conduct. 1. This is evidence of an improper motive. 2. E.g., initiated for some sort of leverage against the plaintiff Damages i. The damages recoverable include: 1. Damages for loss of reputation. 2. Damages for emotional distress and humiliation. 3. Damages for the costs of defending against the criminal charges. a. E.g., attorneys fees. Available defenses i. As an affirmative defense, the defendant can undertake to prove that the plaintiff was in fact guilty of the crime. 1. Similar to a defamation action where the defendant can prove the statement was actually true. 66

2. The standard will be proof by a preponderance of the evidence. 3. If the guilt of the plaintiff is established to the jury satisfaction, it is a complete defense. 4. This is a high-risk proposition because you risk enraging the jury. a. You not only brought baseless charges but you wont give up because you are still trying to hurt the plaintiff. 5. So you better be really confident that you will be successful. ii. Defense: Advice of Counsel 1. Seeking advice of counsel tends to show good faith and therefore negates the element of malice. a. Shows PC b. Helps negate malice 2. BUT: This defense depends on making a full disclosure of the facts to the attorney. Advice obtained after suppressing exculpatory facts will not provide a defense. a. You have to convince the trier of fact that you explained everything, including all good and bad facts, to the attorney. h. Example: Banks v. Nordstrom the misidentified shoplifter. i. Initiation of Criminal Proceedings 1. Nordstrom called police 2. Held shoplifting suspects 3. Helped in actual proceedings ii. Probable Cause 1. The lack of PC would occur when Nordstrom was given information that made them realize the proceeding was against the wrong person. iii. Favorable termination 1. The charges were dismissed in favor of the plaintiff because the plaintiff clearly did not commit the crime. iv. Damages 1. Here, plaintiff had potential damages for costs of hiring an attorney. 3. Wrongful Civil Proceedings a. The elements of wrongful civil proceedings are essentially the same as for malicious prosecution of a criminal proceeding i. Have to institute or continue the proceedings ii. Lack of PC iii. Malice, or some sort of ulterior purpose iv. Damages v. Some courts add the requirement of special injury.

67

1. The major difference with malicious prosecution often lies with the damages element because you have to show some sort of loss, typical pecuniary, as a result of the wrongful action 2. In this context, special injury means injury caused by the seizure of the plaintiffs person or property. b. The Problem of Frivolous Litigation i. We are concerned with this because this is where we can get sued as a lawyer ii. One who takes an active part in the initiation, continuation or procurement of civil proceedings is subject to liability if 1. He acts without PC, and primarily for a purpose other than that of securing the proper adjudication, and 2. The proceedings have terminated in favor of the person against whom they are brought. iii. Basically: You need that PC in order to avoid potential liability. 1. So get an expert opinion before filing a lawsuit c. Texas Disciplinary Rules of Professional Conduct i. Rule 3.01 Meritorious Claims and Contentions ii. A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless the lawyer reasonably believes that there is a basis for doing so that is not frivolous. iii. What is not frivolous? Comment 2: 1. Assertion of a knowingly false claim or defense. 4. Abuse of Process a. Generally: i. Not about having no basis for initiating the lawsuit ii. The defendant must make use of the processes of the court; iii. The use must be for a purpose for which the process was not designed. iv. Note: 1. Lack of probable cause to bring the suit is not an element 2. Favorable termination of the underlying suit is not an element. b. The elements of abuse of process are: i. Process was used 1. Process = some enforceable order of the court; thus merely filing a complaint does not constitute abuse of process a. BUT service of summons = process of the court ii. For an ulterior or illegitimate purpose iii. Resulting in damage. c. Examples i. E.g., Vittands v. Sudduth the developer and the bitchy neighbors. ii. E.g., Contractor and subcontractor in dispute about job file claims against one another 68

1. The contractor gets a prejudgment attachment order to seize all the subcontractors tools and the subcontractor goes out of business because they cant do any other jobs 2. This gives the contractor leverage to force the SC to settle the lawsuit in order to get paid and win the dispute. iii. E.g., Seller sues Buyer of apartment building for breaching agreement to refurbish unites, sell as condos, and pay percentage of profits to Seller. 1. The buyer really wants to just put on a little paint, flip the building, and sell it right away to someone else, for a small profit, without going to the trouble of refurbishing as condos. 2. This angers the Seller because he is only going to get a small percentage of a small profit. 3. Assume either: a. Suit is for breach of contract and would not affect transfer of title; or b. Suit is for rescission of sale, to regain title. 4. Then, Seller files lis pendens to block resale of building a. This is a notice to other potential buyers that a lawsuit is pending that could affect the title to the property. i. So if someone buys the property then they take title subject to the outcome of the lawsuit. b. This basically means that no one is going to buy that property. 5. In either case, is the filing of a lis pendens an abuse of process? a. Yes, in the first suit because it doesnt affect title. All the plaintiff wants in this case is damages. i. But then why are you filing the lis pendens? ii. It is basically being used as leverage to hurt the Buyer and force him to act the way Seller wants him to.

Misrepresentation
1. Overview a. In General, i. Most of the time were talking about pure economic loss ii. However, you could still have liability for other injuries based on misrepresentations 1. E.g., encouraging someone to take a dangerous risk where they get injured 2. E.g., stand here instruction on a ladder when it wasnt safe to stand there iii. Sort of a continuum of states of mind 69

b. Types of Misrepresentation Actions i. Deceit (knowing falsity) ii. Negligent Misrepresentation (When does a duty exist to use due care before speaking?) iii. Innocent misrepresentation (compare express warranty and strict liability) iv. [Mutual Mistake] 1. neither party induced into making mistake 2. both are entering into transaction based on a mutual misunderstanding of the facts v. [Unilateral Mistake] 1. One party doesnt know something and the other party does but didnt induce the other to enter the transaction 2. Deceit a. Elements i. A false representation (of material fact) by the defendant. ii. Knowledge or belief by the defendant that the representation is untrue. 1. Requires Scienter making the misrepresentation with knowledge that it is untrue (or reckless with regard to whether it is true) and with intent to deceive the other party.) 2. NOTE misrepresentations made negligently may still be actionable as negl. misrep (a different economic tort discussed below) iii. Intent by the defendant to induce the plaintiff to act in reliance on the representation. iv. Justifiable reliance on the misrepresentation by the plaintiff. 1. Must representation that a reasonable person would rely on 2. Must be material about something that makes a difference 3. P must in fact rely on his statement to his detriment v. Damage to the plaintiff from reliance on the misrepresentation. b. E.g., West v. Gladney guy buys stock and then company goes bankrupt. i. Plaintiffs claim failed because he had the information right in front of him, he probably knew more about the company than the defendant, and you cant misrepresent the value of something through the price you sell it for (think of the eBay buy it now button) ii. So no false representation and no justifiable reliance. c. Justifiable Reliance i. Whatever the basis of liability, all the actions for misrepresentation require justifiable reliance by the plaintiff on the misrepresentation. In other words, the misrepresentation must in fat cause the plaintiff to take some action, and the plaintiff must have been justified in taking this action on the basis of the representation. 1. Has to induce plaintiff to do something 70

2. And must be a representation the plaintiff would be justified in relying on 3. If you really shouldnt have been relying on something, then your SOL. ii. What constitutes Justifiable Reliance? 1. We have to see what duty we are imposing on the victim of the fraud to take his own precautions iii. Two Aspects: 1. Was the representation one that a reasonable person would rely upon? a. It must be material about something that makes a difference. 2. Did the plaintiff in fact rely upon the statement to his or her detriment? (This is a causation element.) a. Has to have made a difference and induced the plaintiff to act iv. Justifiable Reliance on Opinions 1. In general, courts do not regard opinions as reliable, but: a. Statements of quantity are usually considered statements of fact. b. Opinions may imply a factual basis on which they are based, and this may be false c. The defendant may not really have the opinion d. Predictions of the future are usually considered statements of opinion. i. i.e., this oil well will produce fifty barrels a day ii. but it could be a misrepresentation if you knew that the statement was not true. iii. You also get excuses for puffing here 1. Meaningless, vague expressions for the good deal 2. No one takes particularly seriously 3. Not specific enough to be relied on d. Knowledge and Investigation i. Plaintiff is not entitled to rely if the plaintiff actually knows facts indicating that the representation is untrue. ii. Generally, courts today do not impose on plaintiffs the duty to investigate statements of fact to determine their truth, unless the plaintiff on notice of circumstances indicating further investigation is required. e. The Varieties of Representation i. Deceit will lie for an affirmative misrepresentation of fact.

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ii. Deceit will also lie where the defendant actively conceals facts and prevents the plaintiff from learning them. This is considered active deception. iii. Deceit was not available when the defendant simply remained silent, but made no effort to deflect the plaintiff from discovery or to conceal the matter. f. The Sounds of Silence: Liability for Non-Disclosure i. Silence when no duty to speak existed was not deceit. This was termed mere nondisclosure. ii. The rule allowed one party to take advantage of the others ignorance. 1. Some think this is a good thing because it encourages people to be knowledgeable. iii. However, courts began to develop exceptions to the non-disclosure rule, by discovering a duty to speak in certain situations. Failure to disclose in these circumstances is deceit. g. A Duty to Speak i. If the defendant owes a fiduciary duty to the plaintiff, this creates a duty to disclose. 1. You have to make full disclosure. 2. This is extremely pertinent to lawyers. a. A lawyer enters into a business deal with a client. b. If you take advantage of the client in the slightest, then you can be subject to liability. c. You need to make full disclosure to make sure the deal is fair. ii. The proverbial half-truth which tells part of the story but creates a misleading impression by omitting important information is deceit. 1. You may have a duty to correct any misleading information. iii. A duty to disclose exists when a party makes a statement and later acquires information showing the statement to be untrue. 1. You need to correct the information. iv. Courts have begun to impose a duty to disclose on parties who have access to basic information about a transaction, when customs of the trade would call for disclosure. h. Statements of Intention i. Statements of intention are treated as statements of fact; that is, it is a factual matter whether the defendant actually has the stated intention at the time the statement is made. 1. The problem is how do you prove lack of intent? 2. The only way to prove someones state of mind is by observing their conduct. a. Simply not carrying out the promise is not enough. b. E.g., the defendant told a buddy that he never intended to carry out the promise 72

Measuring Damages: i. Benefit of the Bargain = the difference btw the actual value of what P received and the value it would have had if it had been as represented 1. Value promised Value received = value of lost damages + consequential damages (if any) = TOTAL DAMAGES 2. Basically gives you what you were promised. a. So the more you were promised, the more you will get. ii. Out of Pocket Measure = difference btw the value of what P gave and the value of what P received (alternative measure) 1. Value gave value received = out of pocket losses + consequential damages = TOTAL DAMAGES 2. Puts you back to where you were before you entered the transaction. a. So you are no worse off than you were than when you entered the transaction. iii. *Consequential damages 1. Under either measure, the plaintiff can also recover additional consequential damages proximately caused by the fraud. 2. Separate from the transaction itself but these are damages that are proximately caused by the misrepresentation. j. General Rules: i. P is NOT entitled to recover if the P in fact knows facts indicating that the representation is untrue ii. Today, cts do not impose on P a duty to investigate statements of fact to determine their truth, unless P is on notice of the circumstances indicating further investigation 3. Negligent Misrepresentation a. Because the defendant in these cases is only negligent and not intentionally deceptive, liability is limited to situations (business, profession, employment, economic interest) where the defendant should understand that the matter is important and that care in providing information is essential. b. We have to start with duty. When does a person have a duty to say a certain thing such that if they are not careful that you could be subject to liability if someone relies on what you say and suffer some sort of injury? i. Restatement sec. 552 1. Any transaction in which a person has a pecuniary interest 2. Supplies false information for the guidance of others in their business transactions, 3. Is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information. a. See above 73

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c. Elements i. Defendant made false representation ii. The misrepresentation is made in the course of the defendants business, profession, or employment, or in the course of a transaction in which the def has an economic interest iii. The misrepresentation results from the negligence of the defendant in obtaining the info and communicating it to the P (failure to use reasonable care) iv. Justifiable reliance (by a P to whom the def owes a duty of care) v. Resulting economic damages d. General Rules i. No negligent misrepresentation in arms-length transactions. ii. Negligent misrep does not req scienter (knowledge of falsity w/ intent to deceive) e. Liability to third Parties: i. In professions such as law and accounting, the profession often prepares documents for a client that the professional knows the client will show to others. 1. Audited financial statements involve an accountant doing more than just adding up the numbers, he has to evaluate the condition of a company or whatever 2. People rely on these statements and invest millions and billions of dollars ii. Should the professional be liable to these others, not in privity of K, if the document contains negligent misrepresentations? iii. Three Rules have developed: 1. The modern NY Rule (Privity) accountants are liable for negligence when: a. They are aware their stmts will be used for a particular purpose; b. By a particular known party; c. Some conduct by the accountant links them to the 3d party who will rely on the stmts d. NOTE Most protective of accountants 2. The Restatement Rule: (the majority rule) a. Accountant is liable to the limited group of persons that he knows will rely on the information b. W/ regard to a transaction that the accountant intends the information to influence c. Restatement 552:

4. *most of the same elements as Deceit but with a different state of mind and limitations to the circumstances in which it applies

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i. (2) Except as stated in Subsection (3), the liability stated in Subsection (1) is limited to loss suffered ii. (a) by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it; and 1. requires more specific knowledge of who will be relying on the information 2. must be more than I will be supplying this info to investors a. at least a limited group of who those investors are iii. (b) through reliance upon it in a transaction that he intends the information to influence or knows that the recipient so intends or in a substantially similar transaction. 3. Forseeability Rule: a. Accountants are liable for all foreseeable consequences of their actions b. Most broad out of all three rules f. Other Types of Deceit i. Most courts today would include under concept of deceit the following statement: 1. Statements that imply a basis for knowledge that the speaker does not in fact possess. a. I was there yesterday and I saw that it was fine vs. Yeah, its fine 2. Statements that misrepresent the speakers own confidence in the truth of the statement. 4. Misappropriation a. Defendant diverts to itself the profitable benefits created by the efforts of another, thereby depriving the plaintiff of the fruits of its efforts. b. The foregoing description of the tort cannot possibly be taken seriously, as it would effectively make competition impossible. 5. Trade secrets are usually creations of state law, today usually statutory law. a. Trade secrets are therefore distinguishable from patents, trademarks, and copyrights. b. Elements: i. Information, ii. Which derives economic value iii. Because it is not readily ascertainable iv. And for which reasonable efforts have been made to keep secret 75

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