Torts IIProf. WhippleSpring 2011 Comparative Negligence y Co N has replaced CN (all or nothing barres Ps recovery) in most states.

y Co N assesses liability in direct proportion (%) to degree of fault. P can recover even if his fault is greater than D y There are 3 models for Co N o Pure Co N P can recover % from liable D regardless of the proportion of their own comparative responsibility. o Greater fault bar (>50% (51)) P is barred from recovery when she is more greater than 50% comparative responsible than D o Equal fault bar (=>50%) P is barred from recovery when she is equal to or greater than 50% more comparative responsible than the D y D: (The degree of fault + incorporates ProxCausation ANALYZE BOTH ELEMENTS)= or can use term Comparative Responsibility (but for) y Some concerns with Co N -what if responsible parties are nor brought before court (problems of contribution and compensation may arise) -assigning a specific % may be difficult when evaluating facts -Last Clear Chance is not used bc it will only give relief to P
HYPO $100K 25% 49% 50% 51% 75% Degree of Fault CN 0 0 0 0 0 EFB $75K $51K 0 0 0 GFB $75K $51K $50K 0 0 P Co N $75K $51K $50K $49K $25K

Hypo: P and D are involved in a two car collision. Each claims the other was driving neg and caused acc. Case goes to trial w/ jury finding that P was 50% responsible and sustained $100,000 in damages while D was 50% resp and sustained $50K in damages.  How much will each receive if both carry high auto liab coverage? In an old rule jurisdiction, in an equal fault bar jurisdiction, in a greater fault, in a pure comparative neg?  Equal bar = 0; pure/greater than = P $50 K, D would get $25K assuming adequate automobile liab coverage ??? WHO is at fault with the percentages???? = The P Hypo #1 Pure Co N Auto Collision With Both Drivers at Fault A was 10% at fault B was 90% at fault A/B damages of $50K They each have $1 mil auto liability policy *A will recover $45K ($50K-10%) *B will recover $5K ($50K-90%) *IF NO AUTO LIABILITY POLICY, LIABILITIES OFFSET (*D may have to compensate P, with no compensation for himself) Hypo #2 Neither has insurance *A will recover $40K ($45K- $5K) *B will recover 0 ($5K- $45K) ($5K- $5K) Hypo #3
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Torts IIProf. WhippleSpring 2011 A damages $5K *A will recover $4500K ($5K-10%) B damages $500K *B will recover $50K ($500K-90%) Hypo #4 Neither has insurance *A will recover $0 ($4500-50K) *B will recover $45,500 ($50k- 4500K) ******ANALYZE: DOES THIS MAKE SENSE???????*********************** Burden of Proof:  CN = D  Last clear chance = P  A/R = D  Avoidable consequences = D
Li v. Yellow Cab Co of Ca. is a case where comparative negligence was implemented by the judiciary. 4 made a turn negligently across 3 lanes. was driving and sped through a yellow light and struck 4. 4 sues, and lower court found 4 contributorily negligent so barred recovery. On appeal, the court abolished contributory negligence and established pure comparative negligence. The doctrine of last clear chance was abolished and assumption of risk was subsumed by pure comparative negligence. ____________________________________________________________________________

Vicarious Liability When one is liable for the tort of another Respondent Superior- Employer- Employee Relationship Independent Contractors ASK for VL: 1) Deep Pockets?! No deep pockets=insolvent 2) RS (1): Agency Relationship 3) RS (2): Reasonable Foreseeable? 4) Negligent Hiring? 5) Exception: (D defenses): Outside scope? Any Frolic/ Detour? 6) Independent K?? 7) Negligent Hiring? 8) Exceptions (P arguments): Non Delegable Duty? 9) Apparent Authority? 10) Implied Authority? 11) Statutory or Regulatory Standards???? 12) D can still sue Ind K!! (indemnification/ contribution)
Ira S Bushey & Sons v US is a case in which the tort was committed within the scope of an employees employment. A seaman working for coastguard returned drunk to his boat, and opened valves on one side of the dry docked ship. The flooding caused the ship to damage the dock, and 4 sues coastguard under theory of respondeat superior. The court said that the sailors conduct was not so unforeseeable as to make it unfair to charge with his tortuous activities. His activities, though not readily explicable, at least were not due entirely to his personal life. He was required to return to the ship. It was foreseeable that crew members, drunk or not, might do some damage while crossing the dry dock.

Torts IIProf. WhippleSpring 2011 Respondent Superior Doctrine Employer is Vicariously Liable for an employees tortious act (jointly with employee) if the employees conduct was within the scope of employment and reasonably foreseeable *Deep Pockets- go after those with money (D) No deep pockets=insolvent In defense using Respondent Superior 1) First use Agency Relationship defense.. then 2) Reasonable Foreseeable Defense Agency Relationship- If X acting in furtherance of business purposes (scope of employment), then agency relationship has been established (even if those means are indirect and the employer has no control over employee during commute) Reasonable Foreseeable- If D (employer) puts the employee in that situation (circumstance) then it may be reasonable foreseeable that results may occur (ex. Giving drunk sailors open access to ship w/o guards) Exception: Employer not liable when the employee creates risks different from those of employment activities (outside scope of liability) *doctor molest patient (battery, assault)*intentional torts are usu. outside the scope of employment no RS (Beyond Agency requirement, not reasonable foreseeable)
y Generally, intentional torts arent included in respondeat superior. There are several exceptions such as if you know the particular employee has a propensity for intentional torts and you keep them on, then you are liable because you have a negligent hiring policy, or if reasonable supervision would have stopped it

If the use of force is included in an employees responsibilities (bouncer, debt collector), intentional torts in relation to his employment could be brought under respondeat superior.

Negligent Hiring (not Vicarious Liability bc based on the employers own negligence)- If employer has not fully investigated employees background. Employer is primarily liable, not vicariously liable. *Dr. Chester the Molester Problems with RS: Agency relationship may not exist Not a clear logical reason to impose RS Frolic and detour: While on a business trip the employee makes a detour. A frolic occurs then the employee takes a route (ex. pursues personal business) that is a substantial deviation from employment. Detour is a smaller deviation. Accidents during frolic may not trigger Respondeat Superior (employer not liable) but brief detour do. The purpose of the detour is also important strip club v church!!!! .

Torts IIProf. WhippleSpring 2011 Independent Contractor One hired to provide services. You do not supervise (micromanage), just request results and they know such. Generally no Vicarious Liability exists for the actions of ind contractors. The rationale for this is that the employer has no right to control the manner in which an independent contractor performs the K (No micro manage!)
Petrovich v. Share Health Plan of Illinois is a case in which an independent Kr was held vicariously liable. 4 said that HMO was vicariously liable for her doctors negligent diagnosis for oral cancer. The court held that vicarious liability may be imposed for the actions of independent Kr if an agency relationship is established under the doctrines of apparent or implied authority. The question to ask is did the agent retain the right to control the manner of work? The HMO did control some of physicians actions.

Arguments (negating ind contractor relationship and holding D (employer) Vicariously Liable for ind contractor) Non Delegable duty- Certain duties are said to be non delegable, deemed so important (ex *cant put peoples lives at risk) (Can be used to negate independent contractor defense by D) Negligent hiring? Apparent authority- negates independent contractor relationship. Establish 1) D held itself out without informing P (*ex D held itself out as provider of health care w/o informing P that care was given by ind. Contractor 2) P justifiable relied upon D to (ex provide services, rather than a specific physician) (*To the outside world, this independent Kr looks like they are employee. D help itself out akaheld Ind Kr out as employee) Implied authority- negates ind contractor relationship. D exerted sufficient control over X (micromanaged) *The employer may have a cause of action against an independent Kr if the employer is held liable by a third party.Just bc P can sue emer and emyee does not effect liability b/t emer and emyee (can still sue: in RS emyee is not off the hook) __________________________________________________________________________ II. AFFIRMATIVE DUTIES Ask for AD: 1. No General duty to rescue (esp trespassers!) 2. Exceptions: Special Relationship exist? 3. Exception: AD beyond non negligence?! 4. GSR: Duty to Aid??- Strict GSR v Laissez Faire GSR (statutes)? 5. -Interfering with Rescue? 6. AOR/ CN/ Co N by P??? A. DUTY TO RESCUE  In American law, there is no general duty to rescue (in most other countries, there is a positive duty to render aid)  Owners of land owe trespasser no affirmative duty (these are only moral obligations, not legal). Only owe a duty to refrain from any further acts of violence

Torts IIProf. WhippleSpring 2011     Owners of land are not bound to warn trespassers of latent or patent defects, and may do nothing. Evaluation of duty is a matter of law Licensed doctors not obligated to enter into contractual physician- patient relationship. No affirmative duty if they have not caused the predicament Exceptions: No duty to rescue unless a special relationship exist aka o Familial relations o On going professional relationships (caregiver-patient) o Common Carriers- required to engage in their profession or contractual agreement (*bus driver has to pickup all patients) certificate of completion o *Even though situation created was through non negligence of YOU (*car sliding down icy road) once created YOU have the affirmative duty to reduce harms to others (*usu via a warning!). (In a sense you created the danger) o Time may be a factor (did YOU have ample time to warn others, were you aware of danger and knew others would not be Good Samaritan Rule  Strict- Not obligated, BUT if voluntarily attempt to rescue/ aid another, must attempt in non negligent fashion (RPP applicable standard of care, dont necessarily have to be successful)  Exception: o Most states have Good Samaritan statutes p Typically they will insulate one from suit for ordinary neg but not gross neg or recklessness/ willful or wanton (Rationale: P maybe worse if by your help, other may be able to help in better fashion!) *Some states also apply strict GMR for medical practitioners  Interfering with rescue o One may not intentionally or negligently interfere w/3rd party attempting to give rescue/aid    Hurley v Eddingfield: doctor refuses to render aid p License to practice does not equal license/obligation to aid. Montgomery v Natl Trucking: truck parked 50 ft downhill on icy road p if you create a peril, although non N, you do have affirmative duty to warn so as to prevent injury, even though you did not cause the peril intentionally. RST (2d) 324 Duty to One who Takes Charge of Another who is Helpless Once you start helping someone who is helpless, youre liable for harm caused by failure to exercise reasonable care to secure the safety of the other; or discontinuing aid/protection resulting in the other being in a worse position tan before RST (3d) 39 Duty Based on Prior Conduct Creating a Risk of Physical Harm When an actors prior conduct, even though not tortious, creates a continuing risk of physical harm of a type characteristic of the conduct, the actor has a duty to exercise reasonable care to prevent or minimize the harm. RST 322: Duty to aid another harmed by actors conduct.

Torts IIProf. WhippleSpring 2011 If the actor knows or has reason to know that by his conduct, whether tortious or innocent, he has caused such bodily harm to another as to make him helpless and in danger if further harm, the actor is under a duty to exercise reasonable care. Hypo: D sees P, a blind man about to cross the street in path of a bus. Without any way endangering himself, D could call out to warn P. He does nothing and P is severely injured. NO liability; no duty to rescue Hypo: This time P in a correctional facility; screaming, calls out in pain, suffers an attack of appendicitis; guards ignore; suffers med expenses Would impose liability special relationship Hypo: D hits a golf ball; D carefully determined that no one was on the fairway; as soon as she hits the ball, P emerged from the ruff and suffers a concussion. Is D liable to P? Yes; has to yell out fore havent done anything negligent, but your actions still put someone in peril; you have a duty to take reasonable actions/warn them; if they get hit by the ball, you have a duty to call for medical aid. Hypo: D finds P, a stranger outside of a pizza place; she was taking her to the hospital, see it was taking too long, stopped to buy cigs, Ps situation gets worse; D is liable for P b/c undertook risk; had to take it in non-neg fashion Hypo: M is attempting to take an unconscious stranger P to the hospital; M asks D for directions, who is also new to the city, and gives him wrong directions; As a result of the delay, P suffers brain damage. Is D liable to P for the brain damage? Gray area; Whipple thinks you shouldnt give information if you dont know its correct B. DUTIES OF OWNERS AND OCCUPIERS

Ask for DOO: 1) Tri-Partied Theory? TLI 2) v. Ordinary Negligence? 3) ANT: Attractive Nuisance Theory for Kids? MATTER OF LAW 4) Special Relationship? Kline and Tarasoff TRI- PARTIED THEORY Traditional categories: o Trespassers: enters land w/out implicit or explicit permission, enters at own risks  No duty for reasonable care, but you cant willfully harm them Exception: Inadvertent trespassers (P mistakes property for public property or public right of way)- duty to keep property in good repair o Licensees: owner permits individual to enter land; including social guests  Duty to warn of known (or had reason to have known) latent (hidden) defects on the property, but not patent (obvious) defects; generally licensee must take reasonable steps to learn of them o Invitees: Joint interest (usually some type of business relationship OR open to public (ex. Dept. store, public pool)  Maintain property in a reasonably safe fashion ( general neg standard)

Torts IIProf. WhippleSpring 2011 Attractive Nuisance Theory- a differential standard for children. A matter of law If artificial condition lures children and they are injured children get the benefit of general negligence rules (app SOC), Its not what attracts the child, but the nuisance itself! 1) Applies ONLY to artificial conditions *not natural conditions (cliff) (placed there by D or created by D (pool) 2) If children are likely to trespass, and D has reason to know 3) If there is an unreasonable risk of death 4) Evaluate risk utility (cost/benefit analysis B<LP (Learned Hand) 5) Look at nature (type) of risk and ask would a child of this age in our society appreciate the risk? (IF so, NO ANT) ORDINARY NEGLIGENCE THEORY o Rowland Approach: lumped everyone together in a reasonability (neg) standard; The circumstances will dictate the degree of duty owed o Evaluate what RPP do in same circumstance(s) o A mans life or limb isnt less worthy of protection or compensation just bc of tri-partied classification o Matter of Fact, discretion under this theory to evaluate circumstances= More ability to for P and D sides to produce evidence. (Tho maybe less definite verdict!) Response to Rowlands: o Some jurisdictions have abolished difference in licensees and invitees but left trespassers separate. A melding together (Whipples words) Most common defense to a premises liability case = CN or AOR

  

Rowland v Christian: P messed up his hand while using the bathroom faucet. o Considerations for liability: forseeability of harm to P; degree of certainty that P suffered injury, the closeness of the connection b/w Ds conduct and the injury suffered; the moral blame attached to Ds conduct; the policy of preventing future harm; the extend of burden on D and consequences to the community of imposing a duty to exercise care w/ resulting liability for breach and the availability, cost, and prevalence of insurance for the risk involved Hypo: D has a small pond on her property. D knows that children in the neighborhood will trespass on her property and swin in the pond. D takes no precautions of any kind. P, a 10 yr old who cant swim, trespasses on the property, enters pond and drowns. Is D liable for the ensuing wrongful death action? o Whipple doesnt think attractive nuisance applies in these circumstances b/c its a child of 10 years old; he should know of dangers of water. Hypo: D maintains a small artificial pond on her summer property. D knows that children in the neighborhood will, from time to time, trespass on her property and swim in the pond. D takes no precautions of any kind. P, 10 yr old who cant swim trespasses on the property, enters pond and drowns.  D not liable 10 yr old should know dangers of water; Hypo: D invites his friend P to dinner. He knows that his private road has been dangerously undermined at pt where it runs along an embankment and that this is not observable to a person

Torts IIProf. WhippleSpring 2011 driving along the road. When giving the invitation, D fails to warn Peggy to stay to the left at that point. While using the road, it collapses, causing serious injury to P. Is D liable to P?  P is a licensee invited a social guest duty towards licensees, to warn of latent dangers; situation that D knew about, should have warned P about the latent defect; since D didnt do that, D will probably be liable to P. Hypo: Same facts as above EXCEPT D didnt know of the problem w/ his private road. He could have discovered the problem, however, with reasonable diligence. Is D liable to P?  Most jurisdictions and RST would hold D liable if he could have discovered the latent defect. C. SPECIAL RELATIONSHIPS  Duties Owed to a Special Relationship: KNOW THESE CASES!!! o Kline (DC 1970) Duty? This case is an example of a special relationship via Landlord/ Tenant - LL had exclusive control of hallway, had notice of prior incidences so.. * In the best position to take the necessary protective measures against physical defects, if no duty (apts) would go unprotected! *Should have apply same level of security that was present when P began lease (not necessary same methods, but same level *D is justified in passing the expense (of security) on to patrons (B>LP!) Whipple says: Holding doesnt set a reasonable standard for ALL (no benchmark): What about poor people who may initially have no security and retain no security, LL not liable for anything??? Leads to verdict for Jury discretion Dissent says since P is M2M lease why not just move elsewhere, there was no guarantee of security in lease. And hasnt proved proximate cause bt protection and harm (what if another tenant did was the perpetrator?) *What role does P have? (Co N?) *Cost/Benefit Analysis! (B<LP) duty of LL to T to provide reasonable security in public areas  By analogy, Kline rationale has been extended to condos, schools, shopping malls, similar situations  Exception: Most cts have stopped liability when harm occurs off premises or off property (P takes risk, D has not duty to provide security to those areas) o Tarasoff (Cal 1976) Again, Special Relationship (Psychologist- Patient) Ct imposes reasonably foreseeable standard- D owes a duty of care to all persons who are reasonably foreseeably endangered by his (or clients) conduct to reduce harm. Need to exercise reasonable degree of professional expertise, skill, knowledge under those circumstances

Torts IIProf. WhippleSpring 2011 Tho just bc Patient tells you (they want to kill many) doesnt create duty. Only liable when theres reasonable foreseeable using (RPP in profession) his skill, expertise to determine the (Patient) will follow through to protect others Must Ask is threat specific enough! Liability limited to particular threats D may argue this will impair Patient/Client relationship (isnt the purpose to gain Patient trust in order to prevent such occurrences)D cant predict if Patient will be violentIs this really foreseeable? All Special Relationship have this standard (Priest- Patron / Lawyer-Client) Liability limited to Special Relationship ( SR with victim or wrongdoer is necessary) .and very limited to ordinary individuals (special relationship must still exist aka guardian/ mentally ill.parent/bully child)

Duty of psychotherapist to warn third parties of probable criminal acts by patients  Fairly limited threats to a named individual by a named potential offender

RST (Second) 315 General Principle There is no duty so to control the conduct of a 3rd person as to prevent him from causing physical harm to another unless (a) A special relation exists b/n the actor and the 3rd person which imposes a duty upon the actor to control the 3rd persons conduct, or (b) A special relation exists b/n the actor and the other which gives the other a right to protection In Weirum v. RKO, the court imposed liability on a radio station w/no pre existing special relationship. Here, the court looked at the outrageousness of the conduct and the danger it brought to the general public. The duty to potential victims (those in car, those listening to radio) was expanded ****Kline v. 1500 Massachusetts Avenue Apartment Corp. *****p o Cts typically draw the line is when the crime occurs off premises (i.e. a commercial establishment where patrons have to park on the street = no duty) o Enhanced duty for innkeepers in hotels the concept is that patrons dont know about the layout of the common areas, so theres still a heightened SOC ****Tarasoff v. Regents of University of California***** p o A special relationship b/n the D and the actor is enough to impose a duty. It doesnt need to be b/n the D and the 3rd person too. o Obviously we do not require that the therapist, in making that determination, render a perfect performance; the therapist need only exercise 'that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of (that professional specialty) under similar circumstances. RST 315: There is no duty so to control the conduct of a 3rd person as to prevent him from causing physical harm to another unless (a) a special relationship exists between the actor and the 3rd person which imposes a duty upon the actor to control the 3rd persons conduct, or (b) a special relationship exists between the actor and the other which gives the other a right to protection

Torts IIProf. WhippleSpring 2011 IV. ULTRAHAZARDOUS ACTIVITIES (UHA) Ask for UHA 1. Strict Liability= UHA? 2. Occurrence MUST stem from UHA! 3. 6 Factors?? 4. Defenses: CN, AOR (NOT CoN) A. ABNORMALLY DANGEROUS ACTIVITIES A person is SL for any damage which occurs while conducting UHA *You can engage in UHA but are SL for damages and must bear the cost, even if exercising highest SOC (non negligent)* To be strictly liable under UHA: a. Strict liability only imposed if the injury stems from the UHA nature of the activity aka The injury MUST occur from UHA activity (transporting toxic material, get into car crash..blast, wall falls NO..these are negligent cases! b. Fall within 6 factors c. Matter of Law make evaluation of factors to determine whats UHA Expands Ryland v Fletcher (aka liability for adding an unnatural instrumentality to anothers land. Six Factors: 1) There is a high degree of risk of harm to others --H 2) Great harm will result---H 3) Risk cant be eliminated by reasonable SOC---R 4) Activity is not common place ---C 5) Activity is not appropriate for place where carried out 6) Danger outweighs benefits (activities value to community) ---D Policy question: Res Ipsa v UHAinverse relationship Res Ipsa: evaluates exclusive control over instrumentality, occurrence does happen but for negligence UHA: even if non negligent (exercising higher SOC), still liable GO FOR THE DEEP POCKETS!!! No deep pockets=insolvent Indiana Harbor Ps arguments: P wants to make arguments broad in scope (D is ultimately the responsible party, He produced, marketed, and transported the UHA, As a common carrier I cant refuse service, so cant be strictly liable) Ds arguments: D wants to make arguments limited in scope (The relevant activity is Ps transportation, If use Ps theory every shipper will be strictly liable! Leak caused by Ps carelessness, P had the ultimate responsibility to exercise due care, so cant be strictly liable)

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Torts IIProf. WhippleSpring 2011

*No Strict Liability for D, made more sense to make those who handle the product liable. Most spills preventable by due care, leak was caused by carelessness! (P liable) *Co N is not a defense for UHA. If damages are too remote D may not be liable *Siegler: Tractor trailer full of gas, trailor disengages, P dies from explosion. Ds negligent cant be shown bc evidence destroyed - Ct says Rylands v Fletcher strict liability applies (even tho this activity isnt really unnatural or unusual) Ds are strictly liable. Transport of gas involves high degree of risk and is UHA and cant be eliminated by reasonable SOC. --Like Hotel case, D can spread the loss among its customers who benefitted from this UHA RST 519 p SL only applies to inherent propensity of activity. 1. One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm. This SL is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.  RST (3d) 20 Abnormally Dangerous Activities (a) A D who carries on an abnormally dangerous activity is subject to strict liability for physical harm resulting from the activity (b) An activity is abnormally dangerous if: 1. The activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors; and 2. The activity is not a matter of common usage.  Special rules for aviation: o Has changed over the yrs as technology consequent safety record has improved o Apply neg to in-air collisions o Apply UHA activities strict liability to ground damage o Mostly, any ground damage caused by aircraft upon ascending/descending will be UHA o Objects falling from planes will be governed by strict liability, however mid-air collisions are governed by neg  Spano v. Perini p even though blaster exercises the highest duty of care, it's an inherently dangerous activity p SL on blasting. So P doesn't need to introduce expert standard of care, but prove only causation & damages.  In most states, fireworks are a UHA, but there can still be AOR and CN (if an idiot smokes cigarettes near fireworks).  Hypo: P, a spectator at a game of paintball, was struck in the eye by a stray paintball pellet. She sustained significant injuries as a result. o Can P recover from the games organizers on a theory of SL for an abnormally dangerous activity?  If a new type of sport/activity, courts may see this as an ultrahazardous activity. Sort of doing a socio-utility analysis. -----------------------------------------------------------------------------------------------------------------

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Torts IIProf. WhippleSpring 2011 PRIVATE NUISANCE Ask in PN: 1. Look at Ps claims (how unreasonable from Ps POV)? 2. FountainbleuLatches doctrine? 3. (D defense: AOR? CN?)Coming to the Nuisance? ok, ok Purchase Injunction??? Ordinary Person Standard: Hypersensitivity (person or property)? NOPE! 4. Economic Disparity Present?? Compensatory:Past/Future damages OR Equity: injunction (IF $$ not enough, then equity damages! OR just $$ damages IF doesnt make since to give equity damages and vice versa) 5. Damages? Since no enjoyment of land: (compensatory (Past/Future damages) equitable remedy: injunction (*if no economic disparity)? 6. Equity Jurisdiction WTF???? (how imp!) 7. Even if P not directly affected (no nose, cant smell) may recover for Private Nuisance (family, friends who visit) Tho evaluate if P bought home @ lower cost considering?? A private nuisance.is a nontrespassory (trespass has a type of strict liability/ if there has been a true physical trespass to land you should not be suing under Nuisance but in trespass) substantial ( that encompasses, both the magnitude of interference, the duration and the extent) and unreasonable (in nuisance is it unreasonable from the Ps point of view, how much can he not use his property cause of this nuisance) ****NON- corporeal**** (interfering with Ps use of his property, dust, noise, ordor,excessive/not enough light, think like a 17th century personand know whats not a trespass and whats a nuisance) interference with anothers USE and enjoyment of the land P Must have interest in land that has been affected. (A fisherman injured by oil spill cant sue bc no interest in land held by him is affected) P Must assert 2 elements: 1) His use and enjoyment was interfered with in a substantial way, not just inconvenience 2) Ds conduct was negligent, UHA, or intentional (intent to commit act or w substantial certainty) (NO SL???????) D interference must be unreasonable: Unreasonable if either 1) The harm to P outweighs utility of Ds conduct 2) Harm to P > P should bear w/o compensation Remedies: Damages: harm already occurred= compensatory Equity damages: Injunction Defenses: CN or AOR CN- based on Ps negligent maintenance of nuisance AOR- P coming to nuisance)- (P purchases property with advanced knowledge that nuisance exists UNLESS rights of innocent parties (bona fide) are at stake .If rocks come on your land thats trespass *In nuisance law you get economic losses and protections since you cant get the enjoyment of your land. P can get compensatory damages but there is also the possibility of equity damages. The typical equitable remedy that we often have in nuisance is, say you want to stay

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Torts IIProf. WhippleSpring 2011 there you can also ask for an injunction to stop with the leather operation. So you do have a possibility of equitable remedy and the judge may say, the leather tanning operation interferes too much with the enjoyment of the Ps enjoyment with the landagain unreasonable is from the POV from the P Owner of land is at liberty to use his land, esp to grow trees. Its natural for growth and penetration of roots to occur. Not an unreasonable interference with use and enjoyment! P: His remedy is at his own hands! (can cut branches down if he wants to) Wiser to leave individually to protect himself. Fountainbleau - One must not use his property in a way that will injure the rights of another. Generally, court will not find this case as a Private Nuisance. A landowner has no legal right to the free flow of light and air across the adjoining land of his neighbor. The right to have ones view remain unobstructed cannot be created by implication; otherwise, property development would be hindered. NO GOLDEN NUGGET!! (case by case basis) Whipple says could argue this anyway or test (any city ordinance violations?) Latches doctrine- P was sitting on rights ..waiting too long to bring suit (Ds building already hallway built!!) Ensign (*Dog breeding v Neighbors)- Coming to the nuisance (aka purchasing property with advance knowledge that the nuisance exist) Not a complete defense, just a factor to evaluate whether private nuisance is valid claim. Ct enjoined D from continuing property use (injunction) Public Policy? If private nuisance, wouldnt be able to expand cities if building owners say I was here first. YES, this is a Private Nuisance (damages + injunction) *Private nuisance is supposed to be flexible and broad to adapt to times*! Ordinary Person Standard- What if P has a hypersensitivity/ peculiarity? (sunstoke v Quasimodos bell) Not liable under Private Nuisance. R2T- There is liability only to those whom it causes significant harm suffered by NORMAL (ordinary) person!! (*IIED for P?) IMP- Boomer (Cement Plant with dust v Neighbors) Ct say where there is substantial economic disparity (P property value decreased by consistent damage, damages is going nowhere! D P has no money) D is required to pay Past or Future damages OR submit to an injunction (close down plant!) Tho this type of ruling does not deter future suits by P if damages (dust) persist Whipple loving Note cases todaySpur (anti Ensign)- (Retirement Village v smelly Cattle Feed lot) Again, Coming to nuisance situation. Ct says Ok, we will enjoin D bc the smell will have a substantial impact on P residents, BUT ct renders unique Purchase Injunction . Basically, P wins injunction, D enjoined and forced to move, but P will have to indemnify D for costs in moving! (Rationale: D had been operating for yrs with no expectation of nearby housing, then P got *cheap land, came into the nuisance, and now claims Private Nuisance! wth?

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Torts IIProf. WhippleSpring 2011 Crispy Nugget- A ct sitting in equity has discretion to apply what it thinks is a fair remedy! Equity Jurisdiction Ask: 1. Is (problem) equitable (MATTER OF LAW) or actionable by law 2. Ct of equity (NO JURY!)- lots of discretion on how to allocate damages, can hold party in contempt if dont pay damages 3. Actionable by law- sheriff can obtain non exempt property to compensate other party *Money damages were the sole remedy (compensatory, punitive) for private persons *If money damages are not adequate remedy at law (property damage) alternatives include: injunctions or (K) specific performance BUT have to show money damages are nor adequate! *Defenses by D: adequate remedy already at law (aka money damages are sufficient) or Latches Doctrine, Unclear Hands, Unconscionable remedy Ct of Law: $ damages, Pleading, Juries Ct of Equity: Everything else, no Juries: Used for cases that seek Precedence, Specific Performance or Injunction (Judge discretion) _____________________________________________________________________ PUBLIC NUISANCE Ask: 1. Unreasonable interference to public? 2. Can individuals (private nuisance) piggyback? 3. Particularized damage? From the public 4. D have complete control? look lengthy casual chain? An unreasonable interference with a right common to the general public (health hazards, obstruction of public streets) Doesnt have to relate to your real property (like Private Nuisance) BUT.if particularized damageAKA 1) If you have been prohibited from total access to your property 2) If you have sustained personal injury 3) = Then can piggyback on to Public Nuisance! Can a private individual bring claim for Public Nuisance? (exceptions above and below).... Usu an attorney will bring actions not usually!...limited, BUT 1) If P harmed (with rest of community) inconveniently but the extent of the inconvenience MUST be particular (*of a different kind *Particularized injury (from community suffered?) then P can bring public nuisance action for damages or injunction Madison (Time Square v Wall Falls) Ask: *Should these businesses have covered (insurance) themselves when these circumstances occur?! Aka prior business interruption insurance!

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Torts IIProf. WhippleSpring 2011 Camden: (Kids with Guns) Ask: Does making D liable for distributing handguns really deter criminal use through this litigation?! Ct says Too far reaching from traditional definition of public nuisance. D has to be in complete control of its source AND too lengthy of a causal chain _________________________________________________________________________

V. PRODUCTS LIABILITY Ask for PL: 1. Privity of K *w/ exceptions? (now limited due to R2T and MacPherson: Imminently Dangerous?) 2. SL or Neg!!??? (Escola, MacPherson, R2T) 3. SL!!??? (2 Theories: LM and LS) and Corrective Justice 4. Casa ( No K expectation damages, The Other Exception!!!) 5. RST 2 (Unreasonably dangerous product in defective state?) and RST 3 (MD, DD, D2W) PL refers to the liability of a seller of a tangible item which bc of defect, causes injury to its user or sometimes bystander.  Classes of Ds = Manufacturer and Retailer A. EXPOSITION (Historical development)  Traditional req of Privity of K (Winterbottom) o *Policy argument = floodgates would be opened if product liability claims werent restricted to those involved in the K  Exceptions to the GR- limits Privity of K Rule o Purchases for benefit of minor (Parent)? o D knowingly sells imminently dangerous product o Fraudulent Concealment by manufacturer (knowingly conceals a latent defect, they can be held SL)  Situation where the manufacturer had purposely put putty in crack and caused damage, injured party could sue o Foodstuffs, cosmetics, drugs  Deemed to be different in nature; therefore privity not required o Imminently dangerous consumer goods (to health and life and limb)  I.e. coffee urn p cts try to avoid concept of privity; of expanding these particular exceptions; became clearer and clearer to deem these products imminently dangerous o **MACPHERSON** p. Ask: Whats imminently dangerous?? Expansion of imminent danger: not only poison, explosives and deadly weapons

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Torts IIProf. WhippleSpring 2011 but to .. ..**Anything of a " nature... that such is reasonably certain to place life and limb in peril when negligently made is then a thing of danger"*** (cars, coffee pot, etc) ..**Rationale: D has knowledge the danger may be shared by people other than the buyer! ----**Privity of K gen rule NOT overruled but now limited aka Consumers can now sue manufacturers by proving product was imminently dangerous!  Cardozo: who determines "imminently dangerous" products"" depends on judge. Mixed question of law & facts so judge will decide or send it to jury in borderline cases. MATTER OF LAW ***Escola**** Neg or Strict Liability o Strict Liability makes the seller of a product liable without fault (or if D used all reasonable care) for injuries if sold in a defective state. o In order to est neg in products cases, cts began to stretch the doctrine of RIL in order to prove deviation from the appropriate SOC  **Escola** Talking about exclusive control: all sorts of people could have handled the bottles; all P to recover on neg theory and using RIL o Some jurists begin to argue that cts should be more intellectually honest and adopt a SL approach in PL cases (See Traynors concurring opinion in Escola) Policy arguments for adopting SL o Cost Reduction Theory (CRT) AKA Loss minimization  P may be unprepared to meets the consequences of injury (overwhelming misfortune). Manufacturer is in the best position to minimize the losses (by manufacturing correctly and inspecting before products leave factory) that arise out of ordinary use of the product p forces manu to implement process that would result in very few accidents b/c of defects o Cost Spreading Theory (CST) AKA Loss spreading  Manu is in the best position to cost/loss spread b/c if manu is held strictly liable, then they can incorporate that potential liability into the cost of products  D should input potential costs (suits, even considering D uses best reasonable care 1/100 consumers may be injured) into their product as the cost of doing business (+ $.20) *this theory spreads costs, neither party will be worse off! o Simplification of proof at trial  Eliminates the need to resort to RIL your product has injured someone, so you should compensate regardless of breach o Corrective justice  Someone is injured and should be compensated o The foodstuffs analogy

B. THE RESTATEMENTS Casa K claims are NOT to be intermingled with Tort claims (flood cts) K claim measure expectancy damages, Tort claims measure personal injury or *OTHER property damage (aka something other than the product itself or expectations)

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Torts IIProf. WhippleSpring 2011 o In this case the condominium = one component, P needs to argue they bought the components of house so the cement did damage to OTHER parts of property RST (second) of Torts o 402A [PG. 748] imposed liability (SL) upon product seller for physical harm to consumer  Expressly negated all possible care defense  Expressly negated any privity req o Caveats and the comments to 402A are very important o Adopted by most states by early 1970 o Allows P to sue everyone up and down the chain of commerce

(1) One who sells any product in a ( IF:)defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer to his property if: a. The seller is engaged in business of selling such a product b. It is expected to reach the user w/o substantial change in the condition in which it is sold (2) The Rule applies although a. The seller has exercised all possible care in the preparation and sale of his product and b. The user has not bought the product from or entered into any K relation with the seller (NO privity of K necessary!) Caveat: No opinion as to whether the rules may not apply (1) To harm to person other than users (2) To the seller of a product expected to be processed or substantially changed bf reached consumer (3) To seller of a component part of a product to be assembled. Comments: 1) Business of selling does not include occasional seller (wife) 2) Defective condition only where the product is at the time it leaves the sellers hand (not abnormal or mishandling by P) 3) Unreasonably dangerous only beyond whats contemplated by ordinary user (no sugar and diabetic) *bad whisky w dangerous amount of fusel oil 4) Warning Label only necessary when a substantial number of pop are allergic or danger is latent (not when product is unsafe in excessive amounts or dangerous over span of time! *beer and fried chicken) 5) CN not a defense for D, but AOR is!  RST (third) of the law of PL ****(753)*** COPY DOWN RSC 3!!!!! o Reflects 3 tripartite division of PL law- Distinguish ALL 3, use ALL in HYPO  Manufacturing defect = SL!

SL

***The product is defective when at the time of sale it contains a manufacturing defect
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Torts IIProf. WhippleSpring 2011 A product contains a manufacturing defect when the product (1)SL deviates from its intended ordinary design even though all possible care was exercised in the preparation and marketing of the product or. y These cases rep situations in which there is a (2)defect in an individual item even when most of the same product items reach the mkt place w/out such defect y Defective Product off assembly line (1/1000) used by consumer (P) Theyre injured. Theres a deviation from how we want product to be designed In PL look for manufacturers so much as *look at product itself and ask *Is the product unreasonably dangerous to consumer?!) ****INCLUDES (liable for) Product includes all in packaging (reasonable contemplated by D) or foreign objects (fly in soup) SL no demonstration of reasonable care in manufacturing and inspection process will negate liability

y y y

y P must still est cause in fact and proximate causation y Expert testimony!
y Pure economic losses (expectation damaged) not included only harms to person or property (Casa Clara)

y Sales of products vs. provision of services o Services are not products: general neg concepts must still be applied to defective series (installation of products IS still a service)
o Hybrid transactions are often difficult to characterize p recent cases tend to insulate the seller/service provider  Design defects = Inbetween SL/neg!!  Every Product off assembly line has the same defect. Product designed in a way that includes potential defect to injure others. THO not all may injure every person. Why someone injured, Why potential? BC another event makes product a potential injury ..foreseeable risks could have been reduced by alternative design  Defective Warning = Inbetween SL/neg When foreseeable risks of harm posed by the product could have been reduced or avoided by reasonable instruction  Hypo manufacturing defect; manufacturer will not be able to introduce that type of evidence; for manufacturers defects, it is taken as SL; will not be able to be introduced o If you knew that the real problem was that it was misassembled, you can sue on negligence theory  SOL vs. S. of Repose o SOL(K) vs. SOR (tort) tort cases  Torts- start when injuries occur or when P should reasonably know

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Torts IIProf. WhippleSpring 2011 when injuries occurred Problem: (sponge case in surgery) the effects of the product may be longer than SOL  Warranty (K) start when product bought (time of breach) (*TEND TO BE LONGER*) Why might you still apply K theory? *If Client comes in too late to bring suit, P may not be fully compensated if beyond SOL  SOL (tort) vs SO Repose o How are they calculated? In essence D doesnt have to calculate claimsAviation Case o How are S of repose diff?  Protects class of manufacturers. Outside limit on claims (many jurisdictions on med mal doctor leaving sponge in you 10 yrs ago); even taking into account reasonable DY o In what areas do we often find S of repose? Medical devices, Hi-tech machines, General Krs Successor Corporation in interest liability o When a co buys another out, generally new co not liable for old companies products. o BUT when you purchase company arent your purchasing their liability! D may be the only company P can sue o EXCEPTIONS??? KNOW THESE 4 See Sec 12 of R3T  Express or implicitly assumption of liability  Consolidation or merger of 2 companies  Continuation under (new) name and owner  Fraudulent attempt to avoid liability DESIGN DEFECTS

C.

Ask for DD Inbetween SL/Neg!! 1. P Need not point to a particular design defect! USECircumstantial Evidence? (Product did not perform as intended, P exclude other causes!) 2. Sale or Service? 3. Manu liable for intended purpose + reasonably foreseeable (Volkswagon: Second Collision) 4. SL vs Neg standard 5. Intended Purpose vs (OR+) (NG) Reasonable Foreseeable Test? (ANALYZE!!!) 6. D: Intended Purpose! Passive Passthrough Doctrine? Used Products? Polycentric Design Exception? Open and Obvious (like knives: products cant be made entirely safe!) 7. IMP: 2 Part test? (RCE, RAD) Which to Use? Every Product (1000/1000) off assembly line has the same defect. Product designed in a way that includes potential defect to injure others. THO not all may injure every person. Why someone injured, Why potential? BC another event makes product a potential injury Speller- (Fridge company defected electric fire v D say gas fire)

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Torts IIProf. WhippleSpring 2011 If part of the direct evidence (fridge) has been destroyed (proof impossible) P can use circumstantial evidence! P Need not point to a particular design defect! Burden on P to prove more likely than not 1) Product did not perform as intended 2) P must exclude all other causes not attributable to D Cafazzo (Implanted Medical Device) No liability for D (surgeons) bc P did not purchase the implant from D. D just implanted Ask? (debate) Service OR Sale 1) Is transaction primarily service? = if yes, Negligence, not SL (You dont take these items home!) 2) Is transaction primarily a sale? = SL for manufacturing defect (In this case P received an itemized bill (with markup) Isnt that a sale??? Passive Passthrough DoctineEx Pharmacist sells drug thats a prescription but ends up being defective. NO liable on pharmacist or drug store bc it was delivered to them. Ex. Librarian purchases Do It Yourself book that ends up having defective instructions Rationale D not a retailer of good, cant treat these individuals as retailers (dont extend liability that far!) .BUT liability to LL-T or car leases (Hertz) What about Used Products (Troy McGlure) Gen Rule: Cant sue vendor (can manufacturer) for SL (but negligence) bc not a direct chain of commerce with used dealer Exception: If D markets used product as certified or selling a reconditioned product (car) .then YES vendor can be liable under SL (and negligence) Volkswagon (P hit my drunk driver and product defect v Big Bad Car Company *The fact that the design defect does not cause the initial collision makes no difference when the injury to P results from both (the negligence of car driver in this case) and the design defect. Both actors are liable (only in PL automobile cases??) Ct uses negligent standard: The intended purpose isnt just to create an automobile for transportation, BUT also to provide reasonable measure of safety (ie seatbelts, air bags) ***Manufacturer liable for intended purpose (transportation) + (reasonable foreseeable) possibility of collision*** (second Collision) Should D be liable for ALL injuries? Ct should take into account injuries in safe car v injuries in design defect car and Allocate Responsibility (divide injuries) *D: can argue P would have been injured even w/o design defect (subtract from damages) Test: Its reasonable foreseeable an automobile may be involved in a collision (hence safety precautions: seatbelts, etc) ***Polycentric design Exception*** *Car Manufacturers): (good for P, well really D to argue) If P I injured in side collision, P: if steel reinforcement, then I would have been protected!!!

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Torts IIProf. WhippleSpring 2011 Other P injured in side collision, P: if NOT steel reinforcement, then car would have absorbed impact aka I would have been protected!! *Catch 22- D IN BIND! *damn if you do, damned if you dont- D engineer must take into account to decide design Polycentric Design (D can argue if too many precautions for gun, what if P gets robbed?) AOR??

Barker (P falls off bulldozer in uneven land, idiot!) Test: 2 Part: P HAS BURDEN 1) Reasonable Consumer Expectation Test: (RCE) Its unreasonable dangerous beyond that would be contemplated by ordinary consumer? Matter of Fact: Really should only use Test when its an ordinary consumer product (coffee pot vs bulldozer) Open and Obvious? 2) Reasonable Alternative Design Test: (R3T test) (RAD) D could have incorporated into design (seat belts, etc) P: hire expert witnesses or find same product, similar price with safer component (of course its should be not be (D) outrageously expensive or thats a defense for D 3) (After causation proven?) Burden shift to D to disprove. D: non-design defect related There was no alternative, safer design (or the alternative is way expensive or more chance for defects in alternative) or #1 Test (RCE) isnt valid *In some jurisdictions Burden on P to prove either test= D liable In others use just #1/ #2 Halliday (Kid watches Scarface, kills himself with Daddys gun) Need to be asking myself: 1) So when is manufacturer ever liable? 2) So when is consumer ever liable? 3) Evaluate 2 Test!! Ct says bc gun makers usu only liable if their product malfunctions, and in this case it didnt and the gun worked as intended= D not liable *Ct evaluates from date of manufactured (Reasonably safe product @ time of the manufacture?) Modifications to product= If reason for Ps injury= D not liable ..butwhat if P modifies Intended Purpose? Vs Unreasonably dangerous! Polycentric Design (D can argue if too many precautions for gun, what if P gets robbed?) AOR?? Linegar (bulletproof vest, Police killed on side of body) Evaluate 2 Test! NO CN defense in these cases

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Torts IIProf. WhippleSpring 2011 Neither defective or unreasonably dangerous ***There was no latent defect and (*D) defect (not really) was Open and Obvious!!!= D not liable**** The Second Crash Scenario Logically the D should only have to indemnify the plaintiffs injuries that were aggravated by the defective design. P damages either way

has burden of Proof ( D: you would have received

P gets injured, cant introduce evidence of defective manufacture? D liable? No manu defect, Should there be a guard? P Should Use 2 Test RCE, RAD Duty to Warn? How does P argue? Ps land mover gets jammed. Tries to fix, fingers severed Design Defect? Guard? Breaking System> RCE, RAD, then Burden on D Duty to Warn? Would RPP know? D should introduce expert witnesses  Damages in DD cases o Logically, the Ds should only have to indemnify the Ps injuries that were aggravated by the defective design (2nd crash scenario) o In many instances, it will be difficult to distinguish damages due specifically to the design defect. The RST (3rd) shifts the burden in such ambiguous situations to the D to prove the initial (non-design defect related) damages (see 16(c))  Toddler problem o Reasonable consumer expectations wouldnt expect chair to collapse and sever fingers; can bring suit against manufacturer, retailer, and against neighbor on theory of negligence using the stuff we learned from 1st semester. Defensive evidence reasonable alternative design aesthetically or monetarily different, still probably want to get an expert witness to prove design defect based on reasonable alternative design.  Harder in a reasonable consumer expectation state to bring in information; going to be more difficult to get out of it; you can bring in defensive evidence in re: to reasonable alternative design; engineers considered other designs but the other designs were seen as unduly expensive, might have been dangerous in another way, not aesthetically pleasing  Open and Obvious Dangers o Many product designs dont provide complete consumer protection. If these design compromises are open and obvious and dont offend reasonable consumer expectations, they will not give rise o a PL cause of action (see Linegar v. Armour) o Other open and obvious situations might include knives, hunting rifles, and similar items which have social utility but cannot be made entirely safe  Problem re: lawnmower blade see Torts II outline o Can be an argument for assumption of risk o Could have been warnings on lawnmower re: not getting close to blade o Automatic brake mechanism to stop blade reasonable alternative design if you can find other lawnmowers that are not unduly expensive and can stop the blade from

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Torts IIProf. WhippleSpring 2011 turning and doesnt cost much more, you can win as a plaintiff by using reasonable alternative design o Manufacturer would have to assert that this is unduly expensive, non-aesthetic, change the function of the lawnmower; automatic brake can cause other sorts of danger to the consumer they would have to bring that sort of argument A. DUTY TO WARN FR,R

Ask in D2W 1. Avoid Reasonable Foreseeable Harm through warnings? 2. D: Only warn of dangers reasonable under circumstances! (D: detailed warnings bad! No duty to give reason of warnings 3. 2 Test from DD ? (RCE, RAD) 4. D: State of Act exception , Learned Intermediary Doctrine, tho exceptions (contraceptives/ elective long term medicine) P: When foreseeable risks of harm posed by the product could have been reduced or avoided by reasonable?? warning Defective Warnings or Instructions  Even if a product is designed and manufactured w/out defect, it still may cause injury through improper use or pose dangers to certain individuals  Manufacturers have a duty to provide effective instruction on how to use the produce safely and give warnings of potential dangers  (D:)A warning need only be reasonable under circumstances (need not warn of every mishap! AND Remember Detailed Warnings May Actual Undermine their effectiveneness  P: Reasonable Foreseeable Misuse??  Standards: Most cts us a standard of avoiding reasonable foreseeable harms through reasonable warnings or instructions. See RST 2(c)  D: State of the Art (breast implant case): at the time of manufacture standard Courts wont require manufacturers to warn of dangers which they had no knowledge if they have conducted reasonable testing programs. Not reasonable foreseeable! Reasonable testing prior to marketing is required  P: Exception: IN Breast Implant Case Ps decedent (husband) can sue for Loss of consortium (no sex anymore!)  Reasonable Alternatives? (saline implants) Burden on P to prove  Need to have a middle approach to instructions p dont wait to put too many to where people wont read them or too little  What warnings, if any, should be included on a jar of PB? o Allergies? Whipple not worried about it o May need warnings for younger children p i.e. baby oil case  GR: duty to warn any person that may come into contact w/ pharmaceutical. o Learned Intermediary Doctrine : if warning given to learned intermediary (physician), manufacturer has no duty to directly warn the patient. Rely on doctor to

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Torts IIProf. WhippleSpring 2011 convey information. BC doctor can tailor the type of warning to a particular patient and explain! y Exception: Contraceptives OR elective long-term medicine: because of the drive-by nature of pills (get the pill, get out, come back next year> less chances to be informed), doctor knows patient. D under duty to warn ultimate consumer

E.

PLAINTIFFS CONDUCT, FEDERAL PREEMPTION

Ask : 1. Ps conduct: Many cts adopt Comparative Responsibility or Pure AOR (D defenses) 2. Fed Preemption? (blocking state tort claims) Expressed or Implied?  Effect of Ps conduct o The law is in flux. Cts are struggling w/how to adapt Cont neg and comp neg concepts to a system that is not actually based on classical neg principles o D: Many if not most cts are adopting a system of Comparative Responsibility standard (Influx of SL and Con N:D: The degree of fault + incorporates ProxCausation ANALYZE!! (how P causation to injury?)) (See RST third 8) *earlier o Cts still adopt Pure AOR defense (P appreciates risk and continued to take on risk) o These are serious issues whether such an approach should be adopted o P: will lessen a manus incentive to produce safe products o P: All D has to do is assert P did SOMETHING! Effect of Federal Preemption o Fed preemption generally affects DD and D2W cases only o A finding of fed preemption (blocking state tort claims) will mean that states may not impose more stringent standards that those est by federal statutes, regs, and directives o Ex. A statute requiring manus to equip some BUT not all cars with airbags o Preemption can be:  Express: (Statute say there is preemption AKA no savings clause for P)  Implied y conflict of preemption? (D:airbags; gradual phase!) (bt state tort claims and fed statute) y Field preemption (thwart fed scheme) * So comprehensive, Congress implies total preemption (no state tort claims)  Many conflict and field preemption cases will be difficult to reconcile  P injured at 2% level toxic. Fed law says D only liable at 4% toxic. Analyze! 3 circumstances o When the state law is inconsistent w/federal statute o When the federal statute is sufficiently comprehensive to occupy the field

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Torts IIProf. WhippleSpring 2011 o When the enforcement of the state law frustrates the federal scheme VI. NO-FAULT SYSTEMS: WORKERS COMP Ask: 1. P burden?: 1. Injury during course of employment? 2. While fulfilling employment duties? 2. Injury a substantial deviation? (P:no recovery) 3. D: Going and Coming Rule (No WC if P just traveling to and from work OR P: 2nd Jobsite (home) Defense? 4. New Zealand (limited tort claims, socialist!) Policy Argument? No fault systems  Workers compensation Matter of Fact (cant sue employer in reg legislature) o Est. comp to workers for on the job injuries and occupational diseases o *If on the job + defect product = Workers Comp + sue manu for PL (-) recovery in WC case o P must prove 1. Injury occurred in course of employment 2. While fulfilling the duties of employment o No P recover if injury is a substantial deviation from the employment duties o DS defenses such as CN and AOR dont apply but sometimes gross neg or intentional wrongdoing will be a defense o Damages for P: AWW (average week wage) + percentage % o WC is a societal trade off (rapid monetary award but NO loss wages or pain and suffering (compensatory damages). Injured parties receive guaranteed compensation w/o proof of fault in exchange for generally lower monetary awards than under a neg suit  Third party vs. first party insurance compensation plans o Many no fault plans such as WC are still 3rd party insurance; i.e. the claimant collects against the insurance co  New Zealand Accident Compensation Plan o Most comprehensive of compensation plane. Covers all accidents as well as medical malpractice under gov plan. Abolishes CL tort actions. Socialist sysyem!
  3d party v. 1st party: Claims against your own insurance compensation plans; many no fault plans such as worker's comp are still 3dP insurance based (i.e. claimant-P collects against insurance purchased by employer (get L and insurance pays policy limts). Auto no-fault plans are generally 1st party insurance based aka P collects from OWN insurance (like WC, for smaller claims).

VII.

CL DEFAMATION

Matter of Law
Ask: 1. Applies to Private P v Private D (NOT mass media) 2. Communication, gestures, signals? Trucker defamation? 3. Prima Facie PDCCR: Publication? (Negligent Publication?) Defamatory Communication? (*Defamatory Meaning Per Se/ Hermeneutic Devices) Of or concerning the P ? Causation? (*Injury to rep, no friends, etc, financial) Real Damages?

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Torts IIProf. WhippleSpring 2011 4. Malice Matter of Fact? P NO prove falsity 5. D: Pure opinion v Statement of Fact (opinions protected, MUST be factual)? Truth, Absolute Privilege Matter of Law (IF Judicial officer, Ls Qualified Privilege OR akaIntra-corporate Privilege (for businesses) MUST BE WITHIN SCOPE OF EMPLOYMENT (AKA NO GOSSIPING!!!) 6. P: Single Publication Rule? Multiple Publication Rule? 7. P: Meteor Scences- IF statement capable of innocent and defamatory interpretation, innocent prevails, P counterargument: Noone could reasonably think movie NOT about me 8. P MUST show defamation per se (so harmful to P rep damages are presumed) or per quod (require P show extrinsic evidence and state damages to show defamatory AKA actual diminution in reputation , financial, but can include social relationships or doctor bills))

Elements of CL Def o Publication necessary!- AKA communicating to a 3P who is not privileged!!! BUT MUST be meaningful to 3P (Bulgarian? que??!!!) Negligent Publication: make statement and leave on test where one will reasonably read (housekeeper) or put im mail, you know secretary may read (PUT: To be read by..) but IF diary and robber gets, no defamation o Defamatory communication. (innuendo!)

Defamatory Meaning 1. Allegations suggesting P is guilty of a felony or misdemeanor involving moral turpitude (theft) 2. Allegations of a character trait or matter of conduct making P unfit for his/her profession 3. Allegations that P holds opinions or engages in conduct that is counter to fundamental social/moral tenants of the community (sexual misconduct?) 4. Allegations of physical or mental traits that would induce others not to associate w/P (AIDS) (Ask would 19th C person fall into this category) Hermeneutic Devices A. Literal meaning B. Total Literary Context *negates defamation ***Look At Before and After convo to ascertain**  Rest of the article explains what the original statement meant and its no

Per Se

longer defamatory in nature TO measure damages:

C. General Social Context- Everyone D. Subgroup or Subculture of recipient group context Just Roman Catholics!!  Def statement could be considered Def by the recipient group Examples:
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Torts IIProf. WhippleSpring 2011 o Patrick is a child molester p 1A  What if he walked into a bar with a very young gf? B NOT defamation, D not trying to defame just statement o I saw Priest eating having steak during lent. 2C (To NON RC P may be viewed as hypocrite) / D o I saw eating veal at commanders palace- PETA director! 2C/D ..just a PETA supporter?!...4D o Newspaper headline: RC priest Adams marries Reynolds daughter  Literal Meaning could be def in nature, but under Total Literary Context, its clear that he was just marrying a couple. Negates Defamation  Cases go both ways p some say its still def if the headline was trying to be titillating  If the headline and text are separate, cts are more likely to say that people are more likely to take the headline literally and its def in nature  Also, (D) subgroup IMP..if P is Episcopalian priest= defamation doesnt really matter! GROUP DEFAMATION- ___Jews suck at life!  Small Group (<24) All, Most, Many actionable, Some maybe. One is not  Medium Group (25-100) All or Most may be actionable. Many uhh. Some or one is NOT  Lg Group (101-1000) All may be actionable. Most uhh  Mega Group (1000+) Nothing actionable o Colloquim: Of or concerning the P *P: RPP would think its about me!..its implied o Causation o Real Damages  Special  General P doesnt have to prove falsity!!!!!!!!!!!!!!!!  Defenses for D (burden on D 1. Pure opinions v Statement of Fact! 2. Truth NO Counterclaim for P: (P doesnt have to prove Falsity) 3. Absolute privilege Matter of Law (IF Judicial officer, LsMUST be in course of trial..pleadings, affidavits, deposition) NO Counterclaim for P: CAN SAY ANYTHING but Still can hold D in contempt tho! 4. Qualified Privilege Matter of Law OR aka Intra-corporate Privilege (material/common interest of businesses, have duty) MUST BE WITHIN SCOPE OF EMPLOYMENT (AKA NO GOSSIPING!!!)  Employee evals, credit checks  Fair summary of governmental report  Self-defensive comms  Consented to by P comms  Situations in which social or moral tenets require comm

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Torts IIProf. WhippleSpring 2011  Literary, artistic, culinary reviews (fair comment)  To wife OR Interested Party??? Moral or Social Duty..uhh Not Really! P: CL Malice Matter of Fact??? (P: D making communication with spite and illwill!!!) negates Qualified Privilege 2nd type of defamation IF D intentionally or fails to remove defamatory remarks (given reasonable time) liable for continuing publication even if D didnt put up in first place (Tavern liable for Call 4146273013 for a good time!!!!) SOL??? Single Publication Rule- Although publication reaches thousands one publication =one COA Rationale- limit flooding of court, allows P to bring all claims in one suit (P: BUT sites can be altered at any time, (internet) reaches new audience each hit retriggering SOL, location of article important! Muzikowski D making negative Portrayal of P GR: Meteor Scences IF statement (or meaning of statement) capable of innocent and defamatory interpretation, innocent prevails GR: P MUST show defamation per se (so harmful to P rep damages are presumed) or per quod (require P show extrinsic evidence and state damages to show defamatory) P: No innocent interpretation. Noone could reasonably think movie NOT about me 1C, 2C, ) D: Movie capable of innocent (about someone else) and defamatory interpretation GR:D: Just a statement of opinion, not applying P did anything illegal, already publicly publicized and actually endorsing P behavior = NO Defamation!  Status of P p Public Figure, private figure, public official  ***SOLs for defamation are short (1 yr. in many states) B. LIBEL AND SLANDER, SPECIAL DAMAGES

Ask: 1. Libel OR Slander 1. Libel: Permanent, no per se GR: Its not what the writer intends (to injure) but how statement is understood (Vosberg approach) 2. RST (2nd) labels broadcasting defamatory matter on radio or TV as libel 3. Slander: Per Se, Per Quod? Special Damages?  Libel: Generally refers to written comms and other comms in tangible form  Ds statement embedded in some permanent form (i.e. book or picture) 1. B/c of permanence, libel was a more dangerous form of misconduct and therefore actionable w/o per se proof of damages 2. Others should reasonably think to be regarding P (defamation) 3. Its not what the writer intends (to injure) but how statement is understood  Slander: False spoken words and also gestures commonly understood as a sub for spoken words the concept is that it doesnt have a lot of permanency

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Torts IIProf. WhippleSpring 2011 4. Generally actionable only with proof of special damages (i.e. lost business arrangement) 5. Exceptions:  Slander per se [pecuniary damages need not be shown] y Serious criminal misconduct, moral turpitude y Traits or conduct not consonant w/ Ps business or profession y Serious sexual misconduct (used to be imputation of unchasitity) y Loathsome disease  If the conduct fits in one of these categories, damages are presumed and you dont have to prove them  If the slanderous conduct does not fit into 1 of the 4, special damages (Slander per quod- prove direct pecuniary damages) must be proven (actual diminution in reputation , financial, but can include social relationships or doctor bills)  If conduct falls into 1 of these categories, there can be general damages for: 1) Injury to reputation 2) Loss of business 3) Wounded feelings and bodily suffering resulting therefrom        Hypo: D tells R that P, a clerk-typist does not pay her bills. Does P have a slander action against D in the absence of special (pecuniary) damages? Probably not, no. unless taxes RST (2nd) labels broadcasting defamatory matter on radio or TV as libel Hypo: D tells R that P, a retail store owner, does not pay her bills. Probably yes in this casegoing against merchant Hypo: D tells R that P has just return from Hong Kong and is experiencing symptoms of SARS. Yesfalls in category of slander per se Hardball case: Little league coach sues for movie based loosely on his life b/c it shows him in a bad light. p Whipple would have done a statistical analogy: 85% represents me and no one else, 15% is the new bad stuff>> enough of a factual issue to go to jury. OLD CASES of def: strict liability even if you didnt mean to hurt anyone. If harm dome, then you are liable. NEW CASES: Not really SL: publication element has to be either intentional or Neg in nature. If thief steals a safe that had defamatory note, there is no liability.

D. GENERAL DAMAGES, OTHER REMEDIES, TRUTH  Def and Damages 1. Slander per quad req proof of direct pecuniary damages 2. Slander per se and all libel [in most jurisdiction] may be based on gen reputational damages w/o specific direct pecuniary harm. General damages include:  Diminution in reputation in community or sub-community  Diminution in self-esteem  Other Remedies a. Injunctions p Very rare to get pre-publication injunctions b/c of 1st Amendment reasons

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Torts IIProf. WhippleSpring 2011 b. D: Retraction p Mostly statutory; Allows media that made mistake to retract mistake; doesnt typically completely exculpate defamation but instead mitigates damages and generally speaking theres no punitive damages c. Reply Statutes pAllowed someone who thought they were being defamed to have guaranteed space in the newspaper/TV to give their side  Theyve been held unconstitutional      P: Injurious Falsehood (NOT Defamation Per Se)  Slander of title (D: P doesnt really own property!)  Product disparagement (P cant sell apples bc D broadcast they kill kids!) OLD RULE (CL defamation); Truth was a defense for D. NOW Prima Facie: P have to prove falsity. P has that burden D: Qualified Privilege: There was a fair and accurate summary, dont have to reproduce exact facts P: CL malice! (ill will spite)

Injurious Falsehood II o False communication o About Ps conduct, business, property o Causing o Pecuniary damage.

NON-CONSTITUTIONAL PRIVILEGES  Common Qualified/Conditional Privilege o Credit checks o Consent o Employee recommendations p Although qualified privilege exists, most employers will not give recommendations o Self-defensive statements **Qualified privilege may be negated if theres CL malice (ill-will/spite in its publication)  Watt v Longsdon p Employee is sleeping w/ maid and having orgies (letter one); Employer: follow-up on this, bribe if need be (letter 2); Employer told wife (letter 3). o Gonzaga case: Intra corporate communication Qualified privilege; Privilege can be negated by common law malice: ill will/spite or by going beyond the scope o Whipple: in the advent of AIDS and under Tarasoff wouldnt you have a duty to warn o What you have to evaluate is whether publication was motivated by ill will/spite or, on the other hand, genuine business or moral interests  Scope of Absolute Privilege (very limited) o Judges in the course of official business o Lawyers for conduct preliminary to and in the course of judicial proceedings o Parties to judicial proceedings o Conflict is in determining scope of judicial proceeding

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Torts IIProf. WhippleSpring 2011 Cts have not allowed an exception for sham litigation Has been upheld for administrative proceedings treated as quasi-judicial For bodies that look more like political flora, its usually a conditional privilege (i.e. president of a Ts association o Administrative Tribunals p Likely privileged if it resembles a courtroom (rules of procedure, witnesses sworn in, etc.) Kennedy v Cannon: Black man on trial for raping white lady; Black attorney: D admits to sex but she consented; Attorney: absolute privilege to defend my client. o Whipple: AP are limited > If part of judicial process in courtroom. Here, defense of client could be a qualified privilege (divergence of court opinion) Brown v Williams p Fair Summary of an official Report (Qualified privilege) o Dont have to give the whole story, but cant outrageously slant the summary (i.e. give the wrong impression) o Applies to reports of legislative, judicial, and administrative proceedings, as well as quasi-public bodies Criticism critic reviews: fair comment as a qualified privilege. Opinions are fair game. However if it says material misstate of fact, then no privilege. Must introduce evidence that it was not spiteful, malicious, good faith does mitigate damages.   

F. CONSTITUTIONAL PRIVILEGES PUBLIC OFFICIALS AND FIGURES st  1 Amendments: Newspapers!!  Public officials and general public officials: New York Standards- CTs want free flow of speech 1. In addition to CL elements P MUST now also prove both (1) falsity and (2) actual malice IFFFF D is a mass media 2. Actual malice is defined as publishing a known falsehood or reckless disregard for the truth 3. Quantum of proof also increased to (3) clear and convincing evidence (not just preponderance of evidence) P: Prima Facie for Con Priv       New York Times standard Actual Malice (known falsehood or reckless disregard for the truth by D) Burden of Proof: clear and convincing..so heightened standard Remember Libel: Its not what the writer intends (to injure) but how statement is understood THO P MUST ALSO PROVE FALSITY!! 1. Status of P A. Public Official (Previous/Current/Potential elected officials, NOT public employees) B. Public Figure (GAGA, UGA coach, Army general) 1. General  50% or more of population knows who the figure is 2. Limited (Ciolino!) More CL standard  Less then 50%, say 10, know of the individual C. Private Figure (Local Lawyer- NOT 10% or anything!) More CL standard

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Torts IIProf. WhippleSpring 2011 Have to prove Negligence (more vulnerable than other 2, less rebuttal power) + Falsity AND Fault Philadephia y BUT for Punitive Damages (hurt feelings) have to prove New York standards (falsity +actual malice+ clear and convincing!) 2. Nature of Comms A. Matter of General public interest (P involved in public duties?) B. Specialized Interest (i.e. cat breeder) C. Essentially private in nature 3. Nexus b/n P and particular communication A. Direct nexus P status + occupation and D communication (Colloquim) OR else just negligence. ONLY NECESSARY IF PUBLIC OFFICIAL/ GEN PUBLIC FIGURE! B. No direct nexus 4. Status of D A. Mass media large (is D a mass media outlet?) B. Mass media small/medium C. Mass media specialized D. Private Individual y

G.

CONSTITUTIONAL PRIVILEGES PRIVATE PARTIES

**In Essence, newspaper are given a pat on the back (free flow of speech) and there IS a heightened PF standard for P to have to prove** Has Defamation been totally constitutionalized? NO not if Private P v Private D  Private figures and Topics of Gen Public Concern 1. In Gerts, the ct est a min degree of fault for cases involving private figures and topics of general public concern of ordinary neg 2. States are free to adopt a higher degree of fault standard, BUT may not impose SL for def involving matters of general public concern Gertz v. Robert Welch inc. p Attorney sues paper for communist accusation 1. For private figures in a public setting, NY Times standard does not apply, only a negligent standard 2. Req on the neg standard is that some damages are pecuniary linked. To get punitive, it must be est. by reckless or intentional Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. o If something is of private concern only and theres a private P, then maybe apply CL defamation to statements b/c theres no media/constitutional issue o D issued a credit report on P to several of its customers that stated that P had filed for voluntary bankruptcy. Philly newspaper v. Hepps o Private individual and matter of public concern (here against a large media D)p req. constitutionally that truth become part of the PF case for defamation p P required to prove falsity (+ fault) o We are requiring P prove fault under Gertz, so lets add fault too

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Torts IIProf. WhippleSpring 2011  Def vs injurious falsehood o Although first cousins, def and IF are separate torts o Product disparagement or trade libel is a sub-category of injurious falsehood o While def deals w/the reputation of the individual or corp., IF involves disparaging remarks concerning the Ps business, personal, or real property o Contrary to CL def, falsehood is an element of prima facie case of IJ VIII. INVASION OF PRIVACY IPF  Invasion of Privacy 1. Most consider this just a gen category that really reps 4 separate but closely related torts  Intrusion upon seclusion  Public disclosure of embarrassing private facts  False Light  Commercial appropriation of name or likeness 2. Problem w/ invasion of privacy as a tort today: in modern society, people intentionally put themselves into the stream of media; when tort developed, people tried to stay out of media.

A. INTRUSION UPON SECLUSION  Intrusion upon seclusion p concept is that your ..  Inclusion- zone of privacy has been invaded,  highly offensive to RPP? and therefore, it doesnt include a 3d party as a necessary outlet (oftentimes, it does). Normally, $ damages will do the remedy but  unlike def, theres the possibility of injunctive relief 1. Elements 1. Intentional 2. (Unreasonable) Intrusion 3. Upon the seclusion or private affairs of P Publicity (>20) 4. Highly offensive 5. To a reasonable person o Doesnt need a 3d party D: They already know about private life Ct: harassing (phone calls) tailing car= OK wireless eavesdropping= NOT OK

In most cases Ct insulate mass media

D access email? = OK (under D control) B. PUBLIC DISCLOSURE OF PRIVATE FACTS  Public disclosure of embarrassing fact (accepted by most jurisdictions!) 1. True Facts 2. Must be Private Facts/ Concern 3. Publicity (>20) Publication NOT enough (just 3P) 4. More newsworthy = more balance ? 5. Must be private facts! NO concern to public! p this element is generally the problematic element b/c changes w/ societal changes.

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Torts IIProf. WhippleSpring 2011 6. P: Schaudenfrauden= P gets pleasure out of the misfortune of another= YES Situations: Person has bad past and tries to move on but someone publically discloses the bad past courts much more sympathetic to this situation than the opposite. 7. Would be highly offensive to RPP p D knows that P wants to remain private or hypersensitivity? = NO hypersensitivity standard (has to affect sig #)

8. Past offensive facts?= NO unless relevant to something current

9. Sexual activities? NO ct less sympathetic ct says CANT COMPARTMENTALIZE CURRENT LIFESTYLE (esp ifwith current electronic trends) 10. P: book published, should use different names, CT: NAW just use CL defamation o D: Defenses: implied consent, info already public record, info is of public concern

C. FALSE LIGHT, ETC p WTF? WHIPPLES AN ASSHOLE False light (Play written in false light about P) That places the other before the public in false light  Least accepted of IP Torts 1. Publicity (>20) 2. Offensive to RPP 3. P prove Actual Malice 4. P should use if: 5. Colloquim (OF or concerning) is weak, Innuendo (Defamatory Meaning) is weak!  Commercial appropriation of name or likeness 1. Generally using picture, image, or name of person for commercial purpose and playing off of that in order to gain money. 2. Most highly developed and recognized of the privacy torts 3. Theory behind the tort is more akin to IP law than traditional torts

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