Medical Malpractice Is there an undertaking of duty with a doctor and patient?

The duty will be limited by the undertaking Proof of the standard of care is established through expert medical testimony. -mere testimony by an expert witness saying he/she would have acted different than the plaintiff will not be sufficient to establish the standard of care. -Proof of a standard of care provided by the relevant medical community Exceptions to the proof of the standard of care -If the accident could be understood by common knowledge to provide the standard of care, expert testimony will not be needed. Who are the gatekeepers to medical malpractice suits? Medical Standards are unlike the reasonable person standard because it is very narrow and particular -there are 1000s of standards -the jury instruction must reflect the medical, not the ordinary care standard No expert testimony is needed to establish the standard of care in obvious cases i.e. surgeon amputating the wrong limb. -however it may be needed to establish causation If there is a split in the medical community to use procedure A instead of B, the Dr. can decide -THE STANDARD OF CARE MUST HAVE SUBSTANTIAL SUPPORT IN THE MEDICAL COMMUNITY -THE CUSTOM OF THE RELEVANT MEDICAL COMMUNITY ESTABLISHES THE STANDARD OF CARE -rejection of TJ Hooper -IT IS NOT THE SAFEST PROCEDURE BEING USED IT IS THE CUSTOM -This differs from the reasonable person standard No need for expert testimony in NON-MEDICAL negligence of health care providers (ie slip and fall in hospital) Modified Locality Rule- standard of care which is the degree of care in similar localities. -Strict Locality Rule- degree of care by Drs. in the same locality.

-Creates problems with getting expert witnesses in that locality (might only be one dr in town) -National Standard- duty of care is that of drs. nationwide -Specialists are held to the standard of their specialties -Non-medical practitioners are subject to the standards of the school they profess, not to medical standards. -chiropractors, podiatrists, ect Class 3 -Special Duties arise out of the Dr. & Patient Relationship -Medical Malpractice- Standard of care is one of the relevant medical community -The CUSTOM -THE SAFEST IS NOT REQUIRED, IT IS WHAT IS CUSTOMARY -National Standard- A particular procedure (standard) is medically accepted by reasonably careful doctors of the same class and under the same circumstances Pg. 391 Good Samaritan Statute- reduces level of care to that of Good faith -DUTY OF GOOD FAITH -What is good faith=> Quality of Intention I wanted to help -Would not apply to an emergency room situation or where the Dr. already had a duty to the patients. -Purpose is to encourage aid in an emergency without fear of liability. Derogation of the Common Law- A statute that changes the common law -NAROWLY CONSTRUED Dueling Maxim- Remedial statutes are to be liberally construed -ie workers compensation statutes are likely to be liberally construed

Other Professionals: Standards of care

Nurses- standard for other nurses in a similar practice Hospitals- reasonable care under national standards Pharmacists- no duty to warn physician has prescribed excessive dosage or a drug that is counter-indicated. Patient can be contributorily negligent if dont follow Drs. orders, ect. Res Ipsa: Medical Malpractice 1) The accident does not usually occur without negligence 2) Defendant was probably negligent **** RES IPSA IS ONLY APPROPRIATE WHEN WE DONT KNOW WHAT THE NEGLIGENT ACT IS -Usually based on common knowledge of the community -Expert testimony may be used to bridge the gap, in order to educate the jury on how this type of injury does not usually occur without negligence -If a particular procedure carries an inherent risk and that injury occurs, res ipsa cannot be used -goes against the first core principle of res ipsa -Abandonment- a patient may terminate the doctor-patient relationship, but neither a Dr. nor a hospital can abandon a patient before treatment is completed. Class 4 410-417, 438-40 Most courts have held that exclusive control is no longer a strict requirement in res ipsa cases, no matter what context. -In Ybbara, the plaintiff was unconscious during the procedure, thus had no way of identifying who was negligent. -Use res ipsa to smoke out the facts, require the employees to explain why he/she was not negligent. (Burden of Explanation) Informed Consent -Every human being has the right to determine what shall be done with his/her own body. Informed Consent Doctrine- A physician owes to his patient the duty to disclose in a reasonable manner all significant medical information that a reasonable physician would possess that is material to an intelligent decision by the patient whether to undergo a medical procedure.

-Materiality Standard- duty to disclose medical information that is material to a patient deciding whether to undergo a medical procedure. -Medical Standard- Dr. only owes duty to disclose what is customary of the relevant medical community. -Lower standard than materiality standard *** Both test require duel proof- PROVE A REASONABLE PERSON WOULD HAVE NOT GONE FORTH WITH PROCEDURE AS WELL AS DR. DID NOT CONFORM TO STANDARD -Wooley The Standard of disclosure is that of the reasonable medical practitioner and this will ordinarily require expert medical testimony -Objective Causation Test- that a reasonable person would have refused the treatment had full Information been given. -Medical Battery v. Negligence (malpractice) -Battery would be touching that is either harmful or offensive. - UNCONSENTED TO TOUCHING= MEDICAL BATTERY -exceeding consent would also be battery -Lack of Consent to touching is medical battery. -Modern trend away from medical battery to negligence. -INFORMED CONSENT CASES ARE A TYPE OF NEGLIGENCE -Incompetent Patients and life-saving treatment- try to decipher what the patient would do if he/she was able to make the decision. - Comparative fault can be raised as a defense if it is shown the patient did not fully inform the Dr. of existing issues, medical past, etc. -Statute of Limitations starts running when the harm is DISCOVERED (not when it occurred) Malpractice Evolution: Florida -Pre-Suit Notice- plaintiff must notify each defendant they plan to file suit and provide the medical records -must be a certificate of counsel (Attorney must bring suit in good faith) -caps on non-economic damages

Intentional Torts and Sexual Harassment by Professionals -A battery will almost never be covered by an insurance policy. -Patients attempt to avoid the battery trap through the transference phenomenon (form of neg) -The therapist mishandled the well-known tendency of patients to develop sexual, romantic, or dependent relationships with their therapists Class 5 440-452 The Traditional Family Immunities: -Spouses- CL took view that upon marriage the wife lost her legal identity (merger), which was merged with that of the husband. (Couldnt sue each other under CL) -By 1970 a majority of courts had abolished the spousal immunity in whole or in part. -Parent and Child- CL children and parents cant sue each other -Immunity terminated once child reached the age of majority -A majority of states have abolished the immunity -Some states have begun to find liability for spouses and parents for intentional torts. 1) Goller formula - Immunity for parenting authority and parental discretion in providing food, clothing, etc. (provisioning). 2) New York Rule - no liability for negligent supervision of a child; no duty for adequate supervison of child in NY. Broader Immunity for parents under NY standard than Goller standard. 3) Reasonable Person Standard- Parents owe a reasonable standard of care under the circumstances. Courts are split on immunity for foster parents, step-parents, and others in loco parentis. No immunity for charities any more in most states; abolished CL immunity by statute or decision in most states. R2T states the rule that there is no charitable immunity. 449-454, 457-460, 464, 466-68 Governmental Entities and Officers CL- Sovereign Immunity- King can do no wrong 1607 King James I judges are delegates under Kings authority, a sort of divine right of leadership above the Law. Sir Edward Coke challenged to say that the King is under God and under the Law.

Applied to federal and state governments under US common law. Muni courts are not sovereign entities, they are corporations but were traditionally accorded immunities nonetheless, but with various exceptions proprietary activities (ie. Rubbish removal, street repairs, etc.) -exception: no private property can be taken without just compensation (5th and 14th amendments). Immunities today will vary by branch of government, type of government entity, and whether the act was FTCA- waiver of immunity by government in some respects: -Must be in federal court, no jury (only bench trial) -Federal court follows the substantive law of the state in which they sit Immunity is retained in a couple of areas: 1) 2) 3) 4) combatant activity delivery of mail all claims arising in foreign countries Some specific torts mostly of a dignitary or economic kind: Include those arising out of: a) -assault, battery, false imprisonment, malicious prosecution, abuse of process, libel, slander, misrepresentation, and interference with contract (intl torts).

-Assault and battery limitations: 1) If an off-duty employee commits a battery, may be liable for negligence in fostering the risk -for instance if allows employee to take government rifle off-duty -usually doesnt apply to on duty employees 2) Gov. may be liable for the assault, battery, or False Impr. if it is committed by investigative or law enforcement officers 2) The Court has construed the statute to permit liability of the gov. only for the negligent or other wrongful acts of gov. employees. Strict liability is not permitted. NO STRICT LIABLIITY 3) Feres Rule- court adopted rule providing immunity against claims against the government by people serving in the military.

-broadly construed to bar claims by active military personnel -was it incident to service? -service members injured while on furlough are not incident to service -Does not bar claims by spouses and children of military personnel related to direct injuries to spouses and children, but does bar claims for service-related injuries to military personnel. -most common example is medical malpractice in a military hospital. Loge v. US: Court holds that the discretionary function exception of the FTCA applies to the CREATION or DESIGN of a course of government action, but NO discretion (and therefore no immunity) exists to enforce already codified regulations. Two-part test: Rothrock, DISCRESTIONARY IMMUNITY 1) Did government have a choice? 2) Is that choice of the kind that the exception was designed to shield? -governmental actions and decisions based on considerations of public policy.

Dealing with Federal and State officers: Are they sued under Fed. Civil Rights claims or State law -Is there a deprivation of a Constitutional right? -Was the right clearly established at the time of deprivation? *** No immunity if answers are yes, OBJECTIVE TEST -Who are executive officers? Federal and State agencies, and local officials acting in their executive capacity. State or Local officers sued under State Law: -11th amendment says you cant sue the state. -Liable for ministerial acts, and immunity for discretional acts (immunity only destroyed by malice) - ministerial act- a gov. action "performed according to legal authority, established procedures or instructions from a superior, without exercising any individual judgment."

Federal Executive Branch Officers: immunity for executive acts -Cant sue an executive officer for a bad decision Federal Officers have been sued directly under the Constitution -if you sue them under State law it will be very very difficult Public Duty Doctrine- public entities and officers are not liable for failure to carry out a duty owed to the public at large 477 FTCA- a federal officer will be immune under FTCA -can sue the US government Westfall Act- attorney general can certify that federal employee was acting within the scope of his federal employment and is immune -Plaintiff can then sue US gov. , subject to all FTCA limitations State Officers- state and local officers can be sued in their local capacity, however this suit cannot reach state funds. -Local Governments are the easiest to sue -City or county has to be sued based on something that is POLICY OR CUSTOM -something embedded in the process or system of the municipality -the munincipality is entitled to a good faith defense See Handout: Governmental Immunities Nonfeasance- 483-502 Common Law Rule- People are not liable for nonfeasance (not acting), only liable for misfeasance (negligence in doing something active). Is the distinction between misfeasance and nonfeasance really helping? No, they are factually loaded issues where the facts dictate the outcome. Exceptions -If the D has caused or created the harm, he then has a duty to render assistance -if a person has created an unreasonable risk of harm, reasonable care to prevent harm from occurring

-Statute or ordinance may require a person to act Two Parts Regarding Reasonable Care 1) If D takes charge of a situation, or begins to act (UNDERTAKING), he owes a reasonable duty of care. -Dont make things worse. -If D starts to render aid then leaves the victim in a worse position there will be liability. 2) Special Relationship -Traditionally duty was only owed to invitees -Restatement three recognizes the movement of a duty to licensees as well. -If special relationship exists, there will be a duty whether or not the D created or increasing the risk -Indeterminate or ad hoc relationships- relationships without names, the courts can still find relationships not named that will impose a duty. (buddies who went out drinking, etc.) -Restatement Third List: -carrier/passenger, innkeeper/guest, landowner/lawful entrant, employee/employer, school/student, landlord/tenant, custodian/person in custody. -Companions on a Social Venture (drinking buddies), but not social guests as in Wakulich v. Mraz. Chapter 18- Duty to Protect from Third Persons 524-General Rule- Courts routinely say defendant owes no duty to protect the plaintiff from a third persons conduct. -Balancing Test- method for determining when business owners owe a duty to provide security for their customers -Carroll Towing Test, Hand Test -Balance the foreseeability and gravity of harm with burden on business owner. -The problem with the approach is that D may have no duty to deal even with foreseeable harm (if burden is greater than utility) Employer/Employee- Rest. 2nd recognizes a duty of an employer to protect an employee from a third party if the employee comes into a position of IMMINENT danger, and this is known to the employer. ***Remember!!! Judge determines duty.

Most courts will not find a cause of action for failing to report. -some courts will accept a negligence claim based on failure to report. School Duty to Protect from 3rd Parties: -Look at the relationship as well as knowledge of the Defendant -School/student relationship- If student in school (custody) and KNOWLEDGE of risk. -Look at the ABILITY and AUTHORITY TO CONTROL THIRD PERSON -Ie duty will likely be imposed in a school setting if the D was under the control of the school (faculty, student) Duty to Control Child-Parents will not be liable for the torts of their children. -Parents will only be liable for failing to control if the parent knows or should know in the exercise of reasonable care. -Even with dangerous children a plaintiff must show the parent had reason to know with some specificity of a present opportunity and need to restrain child to protect from imminent harm. -Liability only if child has a specific dangerous habit- ability to control the child will be taken into account. -Most courts will imply some sort of duty out of the therapist/patient relationship -If a duty is found, it will be one of reasonable care -Statutes in a number of states have adopted some sort of Tarasoff (therapist/patient) duty. -once a therapist determines, or under reasonably professional standards should have determined, that a patient poses a serious danger of violence to others, he bears a duty to exercise reasonable care to warn or otherwise protect the foreseeable victim of that danger. -Examined with the Carroll Towing Formula: B<PL -The probability of the harm might be great, the gravity will almost always be great. The burden will depend on the circumstances. -Sometimes just a burden to warn, sometimes if victim is unnamed the burden will be great. At CL the tavern owner is not liable for the injuries of a third person that are caused by the acts of intoxicated customers.

-Dram Shop Laws have modified this- if a tavern owner sells alcoholic beverages to a minor or an intoxicated person, the unreasonable risk of harm to others is foreseeable. -Negligent Entrustment Provision- a basis for finding a cause of action for the negligent sale of alcohol to minors or intoxicated persons. -The other elements of negligence will also have to be proven. (Prox. Cause) Traditionally the violation of a statute regulating sales of alcohol (selling to intoxicated persons or minors) was NOT actionable. -Traditionally no negligence per se -Some states will impose negligence per se -DRAM SHOP STATUTES CREATE A CAUSE OF ACTION -For the third party that was injured -Some states will not have dram shop statutes but there will be a judicially created cause of action. -Regulatory statutes will be harder to circumvent in order to find a cause of action. -Sellers will often be liable under the Dram Shop laws, however Social hosts will not. -Invitee/licensee difference. -The risk being created by the Dram Shop is the negligent driving. Doctrine of Negligent Entrustment- Owner of chattel is under a duty not to create unreasonable risk to third parties by entrusting it to others. (ie handing keys to someone who is obviously drunk) Limiting Duties by the type of Harm -Courts are receptive to physical harm. -Examples of Non-physical harm- Economic harm or emotional harm Two ways to recover for emotional harm: 1) Negligent Infliction of Emotional Distress (NIED)- Stand alone claim a. Hard to prove, lots of special rules 2) Parasitic Claim- Emotional distress is recoverable as part of the damage element of a negligence claim. a. Rides on the negligence claim- duty, breach, Damages (parasitic damages ride of the damages claim), Causation b. MUCH EASIER TO ESTABLISH

Transferred intent doctrine does not apply to NIED Negligent Infliction of Emotional Distress Three Rules: 1) The Impact Rule- without impact upon the plaintiffs body, the plaintiff will not be able to recover for emotional harm. -Physical Harm=> Emotional harm -If state is an impact state, there is no stand alone claim for emotional harm. -Most states have overruled the impact rule, however it is still relevant because it prescribes a way to attain parasitic damages. -Florida is an impact rule state. 2) Physical Manifestation Rule/ Physical Injury Standard- recovery for emotional harm where there is physical harm or the MANIFESTATION of physical harm. -Emotional Harm comes first=> then physical injury -Emotional Harm=> Physical Harm *** Rule 1 & 2 are Parasitic 3) Stand Alone Claims- Emotional Harm (NIED)=> No physical harm. -Impact will still be relevant although it is not required. -If there is impact, likely will plead two complaints (if win both have to make an election of remedies) Special Rules to NEID claims: emotional harm resulting from injury to another: Bystander cases Grube Zone of Danger Test (exception)- A worker within the zone of danger of physical impact will be able to recover for emotional injury caused by fear of physical injury to himself. -expression of fear is an essential element Legg case: Foreseeability Guidelines- defendant might owe a duty to protect not only the injured person but those who might foreseeably suffer emotional harm because of the injury 3 Guidelines: 1) Was plaintiff near the scene of the accident 2) Did shock result from a direct emotional impact upon the plaintiff from the sensory and contemporaneous observance of the accident 3) Whether plaintiff and victim were closely related

Thing case: Bright Line Rules- plaintiff can recover for emotional distress caused by observing the negligently inflicted injury of a third person if, and only if, plaintiff is: 1) Closely related to the injury victim (usually by blood or marriage) 2) Is present and aware of the injury producing event at the time it occurs 3) As a result suffers severe emotional distress *** Difference between Legg and Thing is Legg presents guidelines whereas Thing presents a bright line test--Thus much more leeway in the Legg test -Sensory perception will likely not yield recoverable damages -Daughter was aware mother was in surgery and that something might be wrong, she did not recover. Burgess Rule- relationships (including implicit agreements between the parties) are important in determining duties owed. -Was there an undertaking of duty? Ie the mother giving birth might recover but the father who was in the room will not (Mother was drs. patient, father was not) -The clear case for recovery is one in which the plaintiff actually sees an injury as it occurs. -Courts usually insist on a CLOSE RELATIONSHIP between the victim and the plaintiff Duty of care to protect emotional well-being independent of physical risks: -MOST DEAD BODY CASES SEEM TO REQUIRE MORE THAN NEGLIGENCE IN ORDER TO RECOVER. -recklessness, wanton misconduct, intentional, willful, ect. Misinformation Cases -Many courts will deny recovery for misdiagnosis/misinformation cases stating that the plaintiff was never faced with actual physical peril. -Ie- Ds misinform P that he/she has aids -Courts that focus on physical harm will deny liability Death Messages- erroneously announcing the death of a close relative will lead to recovery in many courts. (jurisdiction specific) *** 3 factors that surface in emotional distress claims: 1) Physical Harm 2) Relationships a. The negligent act has to relate to the relationship somehow

3) Duties or Undertakings How the rules fit together: 1) Stand Alone claim- NEID a. Bystander b. Dead Body c. Misinformation Prenatal Harms, 600 Traditional rule is that pregnant woman will have a claim against a negligent defendant Traditional rule is that an unborn fetus will not have a claim Traditional rule is that a child born alive will have a cause of action even if it is not viable at the time the negligence occurs. Traditional rule is that a child not born alive will have a cause of action if it was viable when negligent act occurred.

3 Different Wrongful conception case- claims usually allege that the defendant physician failed to prevent conception because he negligently performed a sterilization procedure on the father or the mother. -Effort to recover the cost associated with bearing the child -2/5 of courts allow for recovery here Wrongful Birth- a Dr. has negligently failed to diagnose a genetic difficulty -Parents would have aborted -resulting in physical harm to the fetus and economic and emotional harm to the parents. Wrongful Life- The child cannot recover for being born Some courts have been reluctant to award damages for emotional harm in wrongful birth cases. Class 12? 617 S Death At CL -The cause of action did not survive the death of the plaintiff - the plaintiffs cause of action did not survive the death of the defendant

-there was no separate cause of action on behalf of those who were dependent upon the deceased person Survival Statutes- provide that the cause of action survives the death of the plaintiff or the defendant or both. Wrongful Death Claim- Dependents (Family members) -Will recover the contributions that would have been made by the decedent -It is an Economic Recovery, GENERALLY NO PAIN AND SUFFERING -Wrongful Death Damages- two measures, loss-to-survivors or loss-to-dependents and loss-toestate -Some problems will arise -Non-wage earning decedents- it is hard to say that the wrongful death caused a loss to the estate or that they were supporting other persons. -Could yield a 0 award. -THEREFORE THE NON-PECUNIARY CLAIMS BECOME VERY IMPORTANT -The decedents contributory fault will be treated as a defense Non-Pecuniary Claims Generally: 1) Punitive damages 2) Damages for the mental anguish or grief 3) Loss of consortium, which might include (a) loss of society or companionship, (b) loss of services, and (c) loss of guidance and care. *** The first two are generally not recoverable under a wrongful death claim, HOWEVER LOSS OF CONSORTIUM IS. -Courts stress this does not include emotional distress of the survivors, but that it DOES INCLUDE A BROAD RANGE OF MUTUAL BENEFITS OF FAMILY MEMBERSHIP -IE love, affection, care, companionship, and the like. Survival Action- Estate of Decedent -survives whatever action the decedent would have had if not for his/her death, and the damages are paid to the estate. -Loss between the injury and the death

-Majority of states allow punitive damages -Will generally require some sort of foundation -A huge question will be Will nominal support punitive damages -Survival Damages- medical expenses, wages lost before death, pain and suffering, and punitive if they would have been appropriate had the decedent lived. -Some survival statues exclude recovery for certain kinds of claims such as those founded on libel or slander or other dignitary torts. No separate claim for punitive damages, they are parasitic, must ride on some sort of compensatory damages. *** Both wrongful death and survival claims are ENTIRELY STATUTORY -subject to minor exceptions in federal maritime law. In a wrongful death case the defendant can raise contributory negligence as a defense. Damage Caps will be applied to wrongful death claims. STRICT LIABLITY Vicarious Liability-624 Respondeat Superior- employers are liable for the torts of their employees acting within the scope of their employment. Goals of Vicarious Liability 1) Prevention of Future Injuries 2) Assurance of compensation to victims 3) The equitable spreading of losses caused by an enterprise (enterprise liability) *** The employee is liable as well as the employer -Enterprise Liability- Strict liability of enterprises for harms associated with its operation -Will provide optimal deterrence -Will be able to spread the losses among those who are benefiting from the enterprise. -The consumer will be paying a small sum, however receiving great safety -The relationship between the master and the servant can be established without payment or promise of payment.

-however the relationship is not established unless the putative servant submits himself to the CONTROL of the master. Scope of Employment Issue: Is the negligent tortfeasor an employee? Hinmin v. Westinghouse -Going and Coming Rule- an employee going to and coming from work is ordinarily considered outside the scope of employment -exceptions do exist, ESPECIALLY WHERE THE TRIP INVOLVES AN INCIDENTAL BENEFIT TO THE EMPLOYER -Risk based kind of approach -Dual Purpose Exception -Special Errand Exception- where the employee is on a special errand for the employer in his/her car, they are viewed as on call (within scope of employment) Dual Purpose Rule/Exception- in addition to merely commuting, the employee is performing another service for his employer that would have been necessitated for another employee. -For his self as well as for the employer (Dual) -Ie driving home, but dropping something off for the employer on the way Control Rule- how much control does the employer have over the employee. Detour and Frolic Frolic- the employer will NOT be liable for a frolic -drinking alcohol is a frolic -The question will be when did employee re-enter into the scope of employment (after the frolic) -usually going to be when the employee is reasonably near the authorized space and time limits and ALSO acting with intent to further the employers business. Detour- employer will be liable for a mere detour -trivial departure from work ***Employer held liable for the employee stepping outside to smoke a cigarette and burning down the hotel -EMPLOYERS ARE NOT GENERALLY LIABLE FOR THE INTENTIONAL TORTS OF THE SERVANT

Exceptions: Elder Abuse- group home will be responsible for the intentional torts of the employees Which employer will be liable? Kastner v. Toombs -Borrowed servant rule- a servant who is loaned by one master to another is regarded as acting for the borrowing master, AND THE LOANING MASTER IS NOT HELD RESPONSIBLE FOR THE SERVANTS NEG. ACTS. -The borrowing employer will be held vicariously liable. Captain of the ship Doctrine- some courts say the Dr. is the captain of the ship and will be found vicariously liabile -Who is leading the show in the particular enterprise -Other courts will examine the facts in order to discover control issues -General Rule is, subject to limited exceptions, an employer is not vicariously liable for the torts of an independent contractor. -Independent Contractor Test1) Right of Control a. A right to control the details will tend to emphasize liability. b. THE ACTUAL DETAILS OF THE AGREEMENT WILL BE THE FOCUS 2) Control is only one factor a. Does the person in question have their own business (working for others), did he/she use his or her own tools??? These factors will likely indicate=> independent contractor. b. Special Expertise or Skills? -Retained Control- employees who are ordinarily independent contractors (general building contractors and their subcontractors for example) may become servants if sufficient control is retained by the employer. -Retained control may also show that employer himself was negligent in not exercising the control he has to obtain appropriate safety. -An employer who is not vicariously liable for torts of a servant or independent contractor, is nevertheless liable for his own CAUSAL or DIRECT NEGLIGENCE. Examples include negligence in: 1) selecting 2) supervising 3) or retaining a dangerous or incompetent contractor

-Ostensible or Apparent Agency- liability of hospitals that permit patients to believe the ICs/Drs are in fact authorized agents of the hospitals. Two factors: 1) whether the patient looks to the institution, rather than the physician for care 2) whether the hospital holds out the physician as its employee -Nondelegable Duty- As a policy matter, one who uses an independent contractor cannot avoid the duty to use reasonable care in certain cases / circumstances. Test for independent contractor (IC): An independent contractor decided the details of the work and only submits final product/result to the employer -Hospital under a nondelegable duty to provide emergency room care -Generally the contractor will be liable where the IC builds a building then the owner retakes possession. -Inherently Dangerous Work Exception- is there a foreseeable special danger in the work? -Is the risk or danger peculiar??? -An owner of land who employs an IC to repair something on land would be liable once repair is complete. Collateral negligence rule I.C. Performs work that is temporarily unsafe; IC negligently creates this situation on his own he is liable, but after temp. work is done landowner / employer is responsible again. -Most courts will refuse to hold an employer vicariously liable to the contractors employees. Other Forms of Vicarious Liability p 484 -Partnership- partnership is not a separate entity in the way a corporation isand both partners are personally liable. Each partner can be seen as a general agent for the other partner or partners -Both could be liable for the negligence of the other -Joint Enterprise- courts have imposed liability upon all members of a joint enterprise when persons outside the enterprise are injured. -vicariously liable to persons OUTSIDE the enterprise 4 factors in determining a Joint Enterprise: 1) 2) 3) 4) an agreement, express or implied there is a common purpose there is a community of interest there is equal right of control

*** Terms are interpreted liberally Negligent Entrustment- D may be liable for his own negligent entrustment of the car to one who is incompetent to drive. -This is not vicarious liability, but requires proof the D knew or should have known of the incompetence. -Comparative Fault When D permits another to drive, but himself remains in the car, owner retains some degree of control and may be liable to exercise that control. -WHEN THERE IS A BAILMENT THE OWNER IS GENERALLY NOT LIABLE UNLESS THERE IS RIGHT OF CONTROL OF THE OWNER / BAILOR Bailment- if owner simply lends the car to a competent driver and retains no control, there is no agency and no liability Both Ways Rule-The contributory negligence of the employee should be imputed to the employer -so there is vicarious liability as well as reducing the liability of the employer (due to employees negligence) -Servant is Masters employee=> Servant and Third Party are involved in a car accident, both were driving negligently=> Masters recovery in a suit against Third party will be reduced by S(employees) negligence (because M is vicariously liable for the neg. of S=employee) The development of Strict Liability an absolute duty to make safe based on a foresight of risk intent, etc. does not matter at all (I.e. blasting, crop dusting). At early CL, the elements of writ of TRESSPASS-Direct application of force to person or property Strict liability basically only needed to prove force and direct application to person/property. Fault or intent not required. -Force -Direct application to person or property. - You throw a log, it hits P directly this is TRESSPASS TRESPASS ON THE CASE (dont just say CASE!) - covered instances in which the Ds acts caused harm to the plaintiff, but in which the harm did not result directly or did not result from physical force.

-Classic example is if you throw a log on the road and the P trips over it in the dark = Tress. On Case -No force or direct application indirect force -Second idea that arose was an unlawful act -Third idea was waiving trespass and pursuing trespass on the case. -FAULT had to be found. -distinction between immediacy and consequentiality (Trespass and Trespass on the Case) *** Brown v. Kendall- marked a turning point in liability, two strands of torts, FAULT BASED LIABILITY -contact and intentional fault=> liability -contact and negligent fault=> liability -Writ system began to fall apart The emergence of a negligence system was important because the Industrial Revolution was occurring -It would be much harder to hold a corporation liable under a strict liability Trespassing Animals p 487 Nuisance -Substantial and unreasonable invasion of land. -can have injunctive relief or damages First question in a nuisance case, would a damages remedy be adequate? If not, resort to injunctive relief.

Rylands v. Fletcher- KNOW FOR BAR -Relevant Facts: The df were owners of a mill. In order to supply it with water they constructed a reservoir upon nearby land. The Pl was working certain coal mines, under lands, close to but not adjoining the premises on which the reservoir was constructed. The Df employed an engineer and contractors or plan and build the reservoir. The contractors, in excavating for the bed of the reservoir, came upon five long ago abandoned vertical shafts. B/c they were filled with soil neither the contractors nor the Dfs suspected that they were abandoned mine shafts. The reservoir was completed and partly filled. Within days one of the shafts gave way and burst, letting water flow into the pls workings, flooding their mine. -If a person brings something upon the land that escapes, and causes mischief, it is at his own peril. (He will be strictly liable) MILL PONDS (make flour) WERE NON NATURAL USES IN MINING COUNTRY, therefore SL for owners/operators courts will look to communities to determine standards. Strict liability for: Escaping Cattle Rule- trespassing cattle Generally will not cover personal injuries (unless it occurred as part of the trespass) Other animals (such as dogs) if, but only if, the owner knows of the dogs VICIOUS PROPENSITY, the owner will be strictly liable for injuries resulting from that propensity Wild animals strict liability would be imposed for injuries connected with the WILD CHARACTERISTICS of the animal. Lack of reciprocity of the risk Abnormal Danger Conception Evolution of Strict Liability in the US -Sullivan found liability for a stump that was blasted into the air, struck the plaintiff who died.

-This was for a direct trespass -Exner found an absolute liability, without regard to fault, where there has been an actual invasion of property by rocks or debris. Strict Liability for Abnormally Dangerous Activity, generally applied by courts: The activity involves risk of serious harm to person or property The activity cannot be performed without risk of serious harm, NO MATTER HOW MUCH CARE Ie if reasonable care would reduce the risks to a less than significant level, strict liability does not apply. It must not be a commonly engaged in activity Mill ponds in Lancaster are not commonly used Blasting, Manufacturing Explosives, Crop Dusting, and Fumigating (examples of non common usage activities) ***NO RISK/UTILITY ANALYSIS, THAT IS FOR NEGLIGENCE! Most Courts Reject Rylands: Strict Liability in for these subjects: POCKETS of Strict Liability Cattle Domestic Animals if owner knows propensity of viciousness (one free bite rule) Wild animals under persons care/possession Risky or highly dangerous activities (have SL): 1. Impoundments Noxious Percolation Noxious substances suddenly escape 2. Hazardous Waste- generally will be strict liability 3. Blasting- Generally will be strict liability 4. Nuclear Energy -Governmental liability- Public entities have generally retained immunity as to strict liability claims. -Private Liability- heavily regulated by statute 5. High Energy Activities- strict liability -I.e. rocket testing, pile driving, 6. Utilities- courts have refused to apply strict liability to transmission of electrical power and transmission of gas. -common usage -likely that the utility companies use the highest degree of care 7. Fireworks- Mixed results -risk of reasonable harms when reasonable care is exercised -common usage (4th of July) 8. Poisons- strict liability for crop dusting and fumigating 9. Blasting and Explosives- strict liability -some courts will apply strict liability to storing explosives 10. Fire- generally no strict liability 11. Environmental Statutes- Superfund act- provides a fund for the gov. to clean up substances released into the environment -Representatives of the fund can sue person responsible for the substance as well as land owner (whether they released substance or not) ****No liability for all harms, just the harms resulting from the risk of the abnormally dangerous activity.

-i.e. the vicious dog owner will be liable for bites, but not for chasing a child on a bike down who falls and is injured. -Supervening and Intervening Causes and Strict Liability: -Innocent and negligent acts of 3rd parties DO NOT bar recovery for strict liability. - EVEN AN ITERVENING CRIMINAL ACT MAY NOT BAR RECOVERY UNDER S.L. IF IT WAS FORESEEABLE -CONTRIBUTORY NEGLIGENCE (traditionally) IS NOT A DEFENSE TO STRICT LIABLITY. -Unless there is knowing contributory negligence -Liability is not based on negligence in SL. -Most comparative negligence states will apply the same rules to strict liability cases. Key Factors of Common Law Strict Liability (absolute duty to make safe) which court will consider?: 1) Nature of the activity 2) Is the risk reciprocal? 3) Enterprise liability 4) Common Usage in jurisdiction Elements of CL strict Liability (Prima Facie case): 1) Does Def. have absolute duty to make safe? 2) Is there a breach of duty? 3) Actual / Proximate cause 4) Injury / harm to person/property Strict Products Liability Begin 3/23/11 R2 402A factors: Strict Products Liability Seller / Mfr. Is Strictly Liable if place product in stream of commerce: 1) Engaged in business of mfr. product 2) Reaches user w/o change of condition 3) Even where seller / mfr. Uses due care 4) Even though No privity of K 5) Where dangerous/defective Product results from A) Mfr. B) Design 3) Info. 6) Used in foreseeable way 7) defect is Prox. Cause of injury.

Theories: Contract theory for breach of warranty Tort theories of negligence, strict liability, or even fraud At CL based on privity of contract Implied Warranty- goods are fit for the ordinary purposes of which they are used -Strict liability in a way, however required privity of contract Restatement 2nd 402a Sellers were strictly liable for physical injuries to persons or property other than the product itself; this meant the injured consumer could recover w/out proving fault

Privity rules were abolished; Strict liability attached to products that were defectiveness because they were unreasonably dangerous to the consumer 1) The consumers reasonable expectations defined what counted as a defective product Rationales for Strict Products Liability 1) Consumer expectations- consumers relying on the manufacturers representation that their products are safe and healthy 2) Enterprise Liability 3) Practicality- Cheaper to let the plaintiff sue manufacturer directly; saves court the time of proving negligence 4) Fairness a. Because manufacturer benefits from selling products, it should also bear the costs associated with doing business b. Non-reciprocal risks- the manufacturer imposes risks on the consumer that are not at all equal to the risks the consumer imposes on the manufacturer i. Makes sense to use a loss spreading approach when dealing with non-reciprocal risks 5) Deterrence- if strict liability is imposed manufacturers will tend to make products safer in order to avoid liability; the burden should be on the party who could most easily avoid it. R2T 402A: ELEMENTS OF STRICT LIABILITY 1) BUSINESS PUTS PRODUCT INTO STREAM OF COMMERCE / engaged in business of mfr. product 2) NO CHANGE IN PRODUCT SINCE LEAVING MFR. HANDS 3) EVEN IF MFR. USES ALL DUE CARE 4) EVEN WITHOUT PRIVITY OF K (BYSTANDERS CAN RECOVER AS WELL) 5) DEFECT DUE TO UNREASONABLE DANGER TO CONSUMER either by 1) mfr, 2) design, or 3) information (warnings, etc.) 6) FORESEEABLE USE 7) DEFECT WAS PROXIMATE CAUSE OF INJURY SUSTAINED Restatement 3rd: Products Liability: essentially retains strict liability only for products flawed in manufacture, and adopts a negligence-LIKE standard (REASONABLENESS/RISK UTL for DESIGN and WARNING(INFORMATION) defects.

Enterprise liability = safety of product should be reflected in cost of product mfr. Is responsible for injuries due to SL Moorman Case -Contract law will deal with unfit products and qualitative issues -Tort law will generally only be used where there is a personal injury 217 F3d 692 However if vacuum cleaner blows up and injures someone, you can add in economic loss to product -No physical harm or damage to person or property Economic Loss Rule- contract law will be the grounds for recovery involving stand alone economic loss; where the only harm occurs to the product itself and profits -primarily warranty law when dealing with the quality of the product itself -theoretically can bargain for the price, disclaimers, etc. -Not just for strict liability, applies to negligence as well -IS THERE PHYSICAL INJURY OR DAMAGE TO PERSON OR PROPERTY OTHER THAN THE PRODUCT? -This (economic loss rule) is the MAJORITY RULE. 3 Different Kinds of Defects: 1) Manufacturing Defects (1 in a million) 2) Design Defects (all products produced present potential lawsuit) 3) Information Defects (maybe can correct buy issuing a new warning?) Tests: 1) Consumer Expectations Test- where the product does not conform to the consumers reasonable expectations 2) Risk Utility Test- weighing the risk of design against the benefits 3) Restatement 2 and 3 Tests You can use circumstantial evidence to illustrate a defect in the product, it is not necessary for the plaintiff to show exactly what the defect is. LIKE R.I.L. Manufacturing Defect- is a physical departure from a products intended design. -usually only a very small percentage in the entire product line.

Design Defect- a defect in the design of a product -all the products in that line are defective -Restatement 2 Test- Consumer Expectation Test will determine if a product is defective- is the product dangerous beyond the normal expectations of the ORDINARY consumer -Restatement 3 Test- Departure from Design- when a product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product. For Food, however, R3T uses the consumer expectation test for greater product safety presumably. Strict Liability Elements: 1) P must prove not only that the product was defective 2) And that defect was an actual and proximate cause of plaintiffs harm 3) Product was defective when it left the Ds hands *** Borrows from negligence and contract law -borrows the concept circumstantial evidence from negligence -breach of warranty notion borrowed from contract law (consumer expectation test) DEFECTS CAN BE INFERRED A NEGLIGENCE CLAIM FOCUSES ON DS CONDUCT WHILE A STRICT PRODUCTS LIABILITY CLAIM FOCUSES ON THE PRODUCT ITSELF. -For food cases Rest. 3 will follow the consumer expectation test (usual standard is if it departs from its intended design) Jackson v. Nestle p. 519 Design Defects- every product in the line will be defective -Restatement 2: Consumer Expectations Test-a product would be considered defective if it was more dangerous than the ORDINARY consumer would expect. Generally Pro-plaintiff. -it works well with in some situations, and fails the plaintiff in others, such as: 1) Complex Product 2) Innocent Bystander (no expectations) 3) New Product (no expectations) 4) In the workplace setting where someone is not familiar with the product or the experienced employee whose expectations are not going to change

-Bystanders could have a claim under strict products liability foreseeablity under ordinary consumers expectations. -Foreseeable Use Test- manufacturers are liable for harms caused by defective products that are put to foreseeable uses, EVEN IF UNINTENDED -RAD- reasonable alternative design- the seller could have avoided a foreseeable risk by a reasonable alternative design of which the product would be unsafe without. -Basically a risk/utility approach. -Much authority now adopts the risk-utility test when dealing with design defects. -The consumer expectations test does not work well with complex products or in situations when the consumer has lots of experience -Restatement 3 of Products Liability- a product is defective in design when the seller could have reduced or avoided the products foreseeable risks of harm by the adoption of a reasonable alternative design, and the omission of the alternative design renders the product not reasonably safe. R.A.D. TEST Reasonable alternative design. R3T uses consumer expectation test only for food -more of a negligence approach

Knitz test: used consumer 735 skim mccarthy Barker=> Consumer Expectations Test or the Risk/Utility Test=> SHIFTING APPROACH -minority approach -All the plaintiff has to show is that the design caused harm, then the burden shifts to the D to justify the design -The most plaintiff friendly type of test Strict RAD Test (Honda) - there had to be an available RAD that likely would have prevented the injury and it was economically and technologically feasible. -Elements: safer alternative, alternative would have significantly reduced the injury without substantially impairing the products utility and it is technologically and economically feasible. -Restatement 3 does not require the plaintiff to show a RAD is ACTUALLY available, just that it COULD BE

-MANIFESTLY UNREASONABLE DESIGNS- designs that are so manifestly unreasonable that there is no proof needed of an RAD. -A product can most definitely be dangerous and not defective. -A few courts have allowed Ps to proceed on defective or negligent marketing claims when promoting sales through to channels to criminally disposed type of markets -Drugs- basically no strict liability in these cases, P will want to pursue a negligence claim. -Restatement 3 basically immunizes manufacturers from design defects. -Superstrict Liability- Unknowable Risks-liability for unknown and unknowable risks at the time of manufacturing or marketing. -Rest. 3 rejects this test -State of the Art Defense- defense for the manufacturer if it can show it used state of the art at manufacture or sale. Warning or Information Defects -Restatment 2- consumer expectation- the absence of a warning renders the product unreasonably dangerous beyond the reasonable expectations of the ordinary consumer. Restatement 3- a product is defective if foreseeable risks of harm would be reduced or avoided by the provision of a reasonable warning, and the omission of such a warning renders the product not reasonably safe 735-765 Hindsight Rule (superstrict liability)- idea that a manufacturer might be liable for failure to warn of risks that were not only known, but unknowable -Very little support -Under Rest. 3- NO DUTY RULE- GENERAL RULE IS THAT THERE IS NO DUTY TO WARN OF OBVIOUS DANGERS -even where a product is not defective for lack of warning, it still may be defectively designed -Rest. 2 Consumer Expectation- obvious danger- still depends on the expectations of the consumer -however, the D will usually prevail because the obviousness creates an expectation of danger to the consumer *** A risk/utility analysis will usually benefit P more in an obvious danger case.

Liriano- there may be a duty to warn even when dealing with obvious dangers Heeding Presumption- there is a presumption that the consumer will have read and heeded the warning -rebuttable by D -Where the P has already proved that a warning would have made the product reasonably safe. -Once a warning is given, it is still subject to attack as unreasonable in CONTENT, FORM, OR LOCATION. -warnings must be reasonably clear, and of sufficient force, and intensity to convey the nature and extent of the risks to a reasonable person. -Language of the warning must be linked to the likely consumer community

Warning cases are essentially negligence cases. Information warnings are necessary even if the danger is obvious. Need to assist consumers by providing info. To prevent specific dangers. Warnings can be inadequate. Content, form, location of warnings can be deficient to show liability to Manufacturers. This renders product defective as to information. Adequate warnings are not too long either! Alos may need other languages, etc. R2T absence of adequate warning renders product unreasonably dangerous beyond expectation of ordinary consumer. R3T foreseeable risk could be reduced or avoided by adequate warning that product is not safe

-ie if a company advertises in Spanish, the warning will likely have to be in Spanish as well. Learned Intermediaries and Sophisticated Customers (4/11/2011) 1) Prescription Drugs- the manufacturer can inform the Dr. of the risk, who becomes the learned intermediary and can then explain the risks to the customer -R3T provides that warnings about the health risks of prescription drugs and medical devices must be given directly to the consumer ONLY when the manufacturer knows or had reason to know that the learned intermediary will not be in a position to reduce the risks of harm in accordance with the instructions or warnings -Learned Intermediary Rule- the manufacturer can give an appropriate warning to a learned intermediary, and can rely on the LI to use the goods properly and deliver a sufficient warning. 2) Bulk goods, sophisticated users- those who supply goods in bulk and those who supply to sophisticated users may be permitted to rely upon their buyers to use the goods properly and to pass on any appropriate warnings.

Heeding presumption: That the consumer would have heeded the warning Post-Sale Warnings / Recalls Rest. 3 Rejects Gregory for a reasonable person standard. -seller is obliged to give a post-sale warning when a reasonable person would do so. A reasonable person would do so if he knew or should know that the product poses a substantial risk of harm; those to whom a warning might be given can be identified and assumed to be unaware of the risk; a warning can be effectively communicated; and the risk of harm outweighs the burden of giving a warning. STATUTES OR REGULATIONS MAY REQUIRE POST-SALE WARNINGS OR REPAIRS. Subsequent Remedial Measures -In negligence cases, evidence of the Ds subsequent remedial measures is not admissible to show negligence. -some states do allow Note 1 759- end of chapter. Strict Liability Principles under Rest. 2 focuses on the product, not the conduct of the parties. -Traditional Rule- contributory negligence is not a defense to strict liability -Rest. 2 does allows assumption of risk as a defense to strict products liability. -contributory negligence is not a defense

whatever comparative responsibility system is used in a give state should apply to products liability claims as well.
-Rest. 3-

Rest 3 adopts the comparative negligence/fault as a defense-Unforeseeable misuse will usually defeat a plaintiffs case.
-

-However, foreseeable misuse will not

Under Rest 2 misuse is not a defense -misuse is part of the Ps prima facie case,

If misuse was foreseeable, then the product will be found defective.

-Whether the use was foreseeable to the D is part of the Ps prima facie case. -D has to rebut this evidence. 3rd Party Misuse- was the misuse foreseeable? -The superseding cause analysis- D must show that the misuse was unforeseeable. -Under Rest. 3 foreseeable misuse becomes a form of comparative negligence. -If misuse if foreseeable and the product fails to protect consumers from that very misuse, it is defective. -Generally manufacturers will not be liable for substantial modifications of a product from its original condition by a third party = modifications become a superceding cause of harm therefore Mfr. Defect is NOT the Proximate Cause of Harm. -however, a manufacturer may be liable if Ps can produce evidence to show that a product was purposefully manufactured to permit use without a safety feature.

Thin Skull Rule generally applies to strict products liability.

-

Bexiga duty to protect a plaintiff from foreseeable harms even if they are the plaintiffs fault (even if the harm is caused by Ps negligence).

Under Rest. 2 and the Ordinary Consumer Test the P does not need to be an ordinary consumer a P can recover for all damage (even if the P was especially susceptible) that results if the product was defective 991 in defamation A use in against a legally sufficient warning will be a MISUSE, which will also be considered UNFORESEEABLE There are different Statutes of Limitation on the different theories / claims of tort (negligence, strict liability, warranty). Also note differning accrual time for SOLs, and statutes of repose (8 yr. limit on discovery in tort cases claim is then barred. P. 551 Disclaimers: -Manufacturers cannot disclaim liability for personal injury. -You can make warranty disclaimers Compliance with Statutes or Regulatory Standards: -A manufacturers compliance with statutes does not conclusively demonstrate the ABSENCE of negligence -NOT A DEFENSE -Compliance with a statute can be submitted as evidence of non-liability (lack of negligence) 785 Rest 2 Poses Strict Liability for SELLER, MANUFACTURER, FOR ANYONE WITHIN THE COMMERCIAL CHAIN OF DISTRIBUTION WHO PLACES A DEFECTIVE PRODUCT IN THE STREAM OF COMMERCE. -Essentially all commercial dealers within the chain of distribution -Yes for distributors, wholesalers, retailers, ect. Everyone in the chain of distribution of the product. -No for occasional sellers (Yes for Ogorman and his extensive drug dealing, no for Shabo who occasionally sells) Rest 3 provides one who distributes as its own a product manufactured by another is liable as if it were the manufacturer. -Retailer or wholeseller who is held liable usually will have an indemnity claim against the manufacturer. Used Goods

-usually going to be negligence and misrepresentation -The UCC permits exclusion of warranty when selling used goods as is with all faults. -Cases are divided as to strict liability for personal injury cases Builders and Sellers of Real Property -Liability will lie within negligence. -Builders can be strictly liable for design defects SEE HANDOOUT (TORTS 402A) -DEFENDANTS ARE NOT STRICTLY LIABLE FOR DELIVERING DEFECTIVE SERVICES -Thus a surgeon is not strictly liable when an operation goes bad, nor a lawyer who loses an easy case. Hybrid Transactions- transactions involving both the transfer of tangible items and also the delivery of services. -THE DELIVERY OF A SERVICE USING A DEFECTIVE PRODUCT CAN BE THE BASIS FOR A STRICT LIABILITY CLAIM -There will be strict liability is some cases. Defamation- p. 982 (old edition handout). AT Common Law: Strict Liability for libel- P had to prove that (a) the D published (b) defamatory material (c) of and concerning the plaintiff. -P was not required to prove falsehood or damages -D must prove truth Slander- Oral\ Libel- Written -At CL all that the P needed to prove regarding intent was D intended to publish. Repeaters Rule- repeaters are liable -CL viewed them as publishers -DEFAMATORY MEANING IS ANY PUBLICATION THAT WOULD LOWER THE ESTEEM OF PLAINTIFF AMONG A SUBSTANTIAL SETTING OF THE COMMUNITY.

-content would be facts and opinions. -name calling is insufficient -Jury will usually determine if something has a defamatory meaning (as long as its a reasonable conclusion) -defendant has Burden of Proof Damages -Libel- PRESUMED DAMAGES -Slander- have to prove pecuniary loss (money damages) 985 Slander Per Se- usually will have to prove pecuniary damages, these are the exceptions: (presumed damages in these situations) FOUR CATEGORIES: 1) An imputation of a serious crime- accusation of a serious crime 2) Imputation of a loathsome disease- statement that someone has a frowned upon disease (ie, leprosy) 3) Imputation of Traits or conduct incompatible with plaintiffs business trade a. I.e. the minister was drunk 4) Imputation of serious sexual misconduct- usually an imputation of unchastity to a woman -The Truth matters in the sting of the statement, not the details. -The truth will work to defeat the plaintiffs defamation claim only if the sting is true, and the sting is the idea that the P doctored evidence. 5 Common Law Privileges: 1) Official Privilege- Those directly involved in judicial and legislative work enjoyed absolute priv. to defame in the course of that work a. Ie lawyers and witnesses speaking in the course of trial 2) The priv. to communicate in ones own interest, the interest of 3rd persons, or in common interest of publisher and the recipient 3) The priv. to report information pertaining to a crime or the like to appropriate officers 4) The priv. to report a public document, meeting, or activity 5) Fair Comment- priv. to comment about accurately stated facts concerning some matter of public concern New York Times v. Sullivan -The constitution requires, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made

with actual malice- that is, with knowledge that it was false or with reckless disregard of whether it was false or not. - Public person / public concern *** Rule applied to elected public officials as well as public figures -Damages are presumed -Malice- KNOWING OR RECKLESS FALSEHOOD (about the material published) -negligence (in a failure to investigate) is not sufficient -If malice is proven, then you can receive presumed damages -Plaintiff has burden of proof of malice Gertz v. Robert Welch Inc. 1974 -State may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual. -Distinguishes between public figures and private citizens. -Under 1st amendment there is no such thing as a false idea. *** Plaintiff must prove falsity (generally a negligence type of fault) and actual damages -Negligent failure to investigate or negligent investigation is sufficient here (unlike NYT). -Private person /public concern- is the issue under discussion or the communication involved a matter of public interest? Three approaches to defamation at this point: 1) CL- strict liability 2) Ny Times- Free Speech Approach 3) Gertz- Middle ground for a private party / public concern type case. Between CL and NYT. p.996 Public Figures -All-purpose public figures- very involved in the public -Public figure who voluntarily injects himself into a public issue -look for voluntary thrust into public spotlight -a public official invites the scrutiny of the person holding the office, beyond the office itself -Generally a private person will be governed by CL defamation standards -private letter writer Public Official will come under the NY Times Standard

-At CL there can be liability for an opinion -State could protect that -Gertz said there must be some sort of factual falsity and that it must be reasonably understood as such. Dun & Bradstreet v. Greenmoss -Private Individual/ Private Concern- Presumed damages

-Open Question type of proof: Seems to lean towards the CL standard of proof -will plaintiff have to prove fault as under Gertz? -Or will there be presumed falsity as at CL?

Malicious Prosecution- 1001 Five Factors at CL: 1) Has to be a prosecution 2) D is the instigator- must have played a significant role in the instigation 3) D acted maliciously- abuse of power 4) D acted without probable cause- acted without a reasonable belief that the P has committed the crime charged. 5) The criminal action is terminated in favor of the plaintiff. Immunities -ABSOLUTE Immunities for judges and prosecutors. -Can be malicious prosecution claims in civil claims but there must be a strong showing. Abuse / Misuse of Process- 1006 -Use of the legal system for an ulterior or improper use. - misuse of the legal system for some personal end. - Elements: Bad motive + Use of Process-Process- subpoenas, writ of injunction, arrest, etc. - act, threat, or demand must be made AFTER process has been issued. SLAPP suits- strategic suits against public participation. -developers sue an environmental group in order to discourage their exercise of const. rights. -plaintiff/developers dont care if they win, merely want to intimidate. -lots of controversy; some statutes have been enacted to stop SLAPP suits Privacy- 1008 Four Primary Privacy Torts: 1) Intrusive Invasions- Intrusion into a private domain that would be objectionable to a reasonable person i.e. - unauthorized microphone in someones home 2) Commercial Appropriation- The unauthorized use of the Plaintiffs name or photo plus commercial advantage. 3) False Light- elements of False Light: 1) MALICIOUS Publicity of or concerning the Plaintiff and 2) facts about the Plaintiff that would be objectionable to a reasonable person. Not defamatory because they are or could be true, but instead are an invasion of privacy because of the nature of the (private) revelation. Solano case great example: Public Revelation of Private Facts- private information that would be objectionable to a reasonable person to have published. Posting TRUTH IS NOT A GOOD DEFENSE TO PRIVACY CLAIMS PLAINTIFF NEED NOT PROVE SPECIAL DAMAGES -EMOTIONAL DISTRESS WOULD BE SUFFICIENT

Misrepresentation- 1040 -must be about a material fact, and the plaintiff must rely on the misrepresentation. -usually about fraud which causes an economic loss in a bargaining transaction.

3 kinds of Misrepresentations:
1) Scienter Fraud- the requirement of an intent to deceive- a knowing or reckless falsehoodDerry v. Peek p. 1041. You get expectation damages (benefit of the bargain).

2) Negligent Misrepesentation- now generally accepted that negligence can also form a basis of liability for misrepresentations. You get reliance damages (no benefit of the bargain). 3) Strict Liability for Misrepresentation- Misrepresentation by a seller where a reasonable person would know its false.-seller of staples represents that the staples are safe, but the staple pokes the P in the eye, the seller is strictly liable. Puffing or statements of opinion are not enough.