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TORTS LAW 580

INTENTIONALLY INFLICTED HARM 1. Definition of intent: When D acts to intend both physical and psychological consequences, D is liable. From the description of Ds action, liability follows, and D has the burden. a. Rationale. Without this kind of liability, every person would be prey to the depredations of his/her worst enemy. No one would sow today to reap tomorrow, because the seeds would be stolen. Scope of intent: Even if a different kind of harm results than the one D intended, D is liable. a. Example. If D only means to bruise Ps leg, but breaks it instead, D is liable for the broken leg, even though this was not the intended harm. b. Rationale. Anyone who deliberately violates the bodily space of another takes the risk that his actions will produce a harm greater than or different from the one he intended to commit. Two Tiers of Intention. If D either intended the harm or the unlawful conduct, D is strictly liable. a. Informal Settings. For casual social interactions the law is that if one strike another upon the hand, or arm, or breast in discourse it is no assault, there being no intention to assault, but if one intended to assault, strike at another and miss him, this is an assault. Tuberville v. Savage (the sword case). i. Rationale. In informal social relationships, people frequently touch each other. ii. However, intending to cause harm includes offense and embarrassment, so you cant steal a kiss. iii. More difficult case: P intends to touch P, not intending to bring about a harmful or offensive result, but still brings about one or the other. 1. RST says that P has not suffered intention harm. 2. Case law says otherwise. See, e.g. Vosburg v. Putney (D touched Ps wounded knee and was liable; if this had taken place on the playground, the result would be different because P would have assumed the risk). iv. Even if D doesnt make bodily contact with P, D can be liable if he intends to cause harm. Garratt v. Dailey (D, 5-year-old boy, pulled chair out from under arthritic old lady as she was lowering herself into it.) v. Even if its slight deliberate touching without consent, D is liable. White v. University of Idaho (piano teacher touched students back). b. Formal Settings. The same two-tiered analysis of intention carries over to settings where the parties establish more formal / explicit rules of conduct. i. Medical injuries. If a medical procedure is beyond Ps consent, D is responsible because of his intent to make unlawful contact, even if he is not liable under the first tier because he intended to help the patient. Mohr v. Williams (surgeon operates on the other ear, which worsened Ps hearing). DEFENSE: Medical emergency, sometimes cast in the language of implied consent. ii. Athletic injuries. Factors to consider: amateur vs. professional (where tort liability can be contracted away), assumption of risk, deterrent effect, and statutory provisions. See, e.g. Hudson v. Craft (D operated unlicensed boxing exhibition; P participated and suffered injuries; voluntary assumption of risk does not excuse D of liability.) Transferred intent. [T]he fact that the injury resulted to another than was intended does not relieve the D from responsibility. Talmadge v. Smith. The question becomes, did P2 assume the risk of accidental consequences (e.g., was P2 trespassing?). Even so, most courts hold D liable. Defenses to Intentional Torts a. Self-defense i. P is an aggressor against D. If D cannot intervene to defend himself, then P will be able to complete a tortious act for which D could recover damages from P. 1. Rationale. Damage remedies are often inadequate to prevent these attacks from taking place because they drag on forever. Some harm (death, paralysis) may not be compensable. Selfhelp remedies may work better. ii. This remedy is not available when D erroneously and unreasonably assumes that he is being attacked by P. iii. The sentiment is divided over whether P should be able to recover when Ds honest and reasonable mistake of being attacked leads to a deliberate harming of P. Some jurisdictions allow this defense.

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Courvoisier v. Raymond (where D shot police officer because he thought he was a burglar). Others limit it to cases where Ps misconduct led to Ds mistake. iv. Principle of disproportionate response usually applies. b. Defense of Property i. D must plead and prove the defense. ii. Retaliation is forbidden as a matter of course. iii. Excessive force may not be used. If D can avoid it, he should. iv. Principle of disproportionate response strictly applies, unless the trespass occurs in Ps home. 1. Limits the use of spring guns. Bird v. Holbrook (D was denied the defense against a trespasser P; P had assumed the risk of accidental harm from a concealed obstacle, but not the willful harm of the gun.) c. Necessity i. Distinguished from self-defense/defense of property: in defense cases, the necessity for response always stems from Ps wrong to D. By contrast, necessity cases involve either from natural events or a violent act of a third party. ii. The defense is limited to risks of death, serious bodily harm, or loss of substantial property, which in most cases means that the property saved (the boat) must be more valuable than the property lost (the dock). iii. Only excuses interference with property rights; never allows the sacrifice of the life of one to save the life of another. iv. Private Necessity. Arises when action necessary to save ones life/property. 1. If S is stranded at sea during a violent storm, he is privileged to moor his boat at Os dock without her consent, in derogation of her exclusive right of ownership. a. O cannot require S to buy off her reluctance to obtain permission, because this creates a bilateral monopoly. If O unties Ss boat, and S suffers injury, O must pay damages. Ploof v. Putnam. 2. Considerations: a. Was Os permission implied form the circumstances? b. Even if not, was the potential harm severe enough? c. Was there some special value O attached to his property that S didnt consider? d. In cases of equal necessity, the nod goes to the owner. 3. Rationale. Relative value that O and S attach to the dock. We want to allow sailors a safe place to dock their boats. O gains the benefit of a like privilege to use other docks. 4. Compensation. Two positions: a. S has to pay damages to repair Os dock (more likely). i. Why? This would be adding insult to injury. Also, once S gets a free pass, he doesnt need to account for Os losses while securing his own gains. If S acts as owner, he should bear the losses of owner and be strictly liable for all damages under the doctrine of incomplete privilege. Vincent v. Lake Erie Trans. Co. (where finding S negligent would have been too hard in light of the interest at stake, i.e. safety). b. S does not have to pay damages. i. Why not? O has been provided compensation by the reciprocal privilege to make use of the facilities of others during this or similar storms. Compensation might also be hard to estimate (e.g. how much was caused by wind?). v. Public Necessity. Arises when action necessary to save lives/property of others. 1. Denies liability for public officials, except when they have acted maliciously. 2. Considerations: a. Did the public official act maliciously? b. Could he have taken less drastic means to achieve the public end? 3. Compensation. Different from private necessity w/t/r/ compensation. If property would have been destroyed anyway, D doesnt have to compensate. a. Rationale. Unlike private necessity, acting out of self-interest is out of the equation. To impose liability would make public officials worse off by taking actions that make the public better off. This would deter. vi. The surgeon versus the trolley problem (Judith Jarvis): Crisis suddenly struck the driver, but not the surgeon; trolley workers assumed the risk by working, while the patient was trying to avoid the risk. 1. Both scenarios pass the cost-benefit analysis.

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Because of the difference between instinctual reaction to the trolley and the surgeon, something else besides cost-benefit analysis must be going on. 3. This can be understood as an argument for the categorical imperative, which is what tort law believes: you can have a defense of necessity that results in harm to property, but not in taking life. Emotional and Dignitary Harms a. Assault i. P must experience imminent apprehension, plus intent to cause a harmful or offensive contact or imminent apprehension. RST (holding that even if D was negligent/reckless, D is not liable if D lacked intent); Tuberville v. Savage (where P suffered imminent apprehension when D put his hand on his sword, but D didnt intend to cause this apprehension). ii. Imminent threat of battery doesnt need to be severe, and assault still exists if P knows the harm can be defended against or avoided. b. Offensive Battery and Offensive Language. i. As long as the words are intended to inflict dignitary losses, words or actions by D designed to insult or offend P without putting P at risk of voluntary harm make D liable. This could be as simple as spitting in someones face. Alcorn v. Mitchell. ii. Rationale. Its clearly recognizable that the offense was intended to show disrespect to P, and we want to induce D to avoid this behavior. iii. The special case of language. There are amendment issues, plus we desire that Ps have thick skins. c. IIED i. RST: One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress is subject to liability for resulting distress as well as an bodily harm that ensues. Where conduct is directed at a third person, applies to (1) a member of such persons immediate fami ly who is present at the time, or (2) any other person who is present at the time if the distress relates in bodily harm. 1. Clark: I think the RST has it wrong for using a scope of outrageousness; too vague and misleading. I think IIED was used as a filler for gaps in the law where it feels like there should be some regulation, but theres not. What really explains cases is whether the law or politics empowered D to cause distress (by refusing to acknowledge certain claims of IIED; white man problem). ii. Very difficult to win these claims. Courts are more comfortable attaching IIED to other torts, but dont want to compensate IIED alone (even though RST formulation turns solely on Ds con duct without proof of any other tort). However, modern jurisdictions follow the RST, and IIED has been recognized as an independent tort for at least 100 years. See, e.g. Wilkinson v. Downton. iii. Rationale. 1. IIED is easy to fabricate. 2. 1st amdt. issues: we dont want to stifle free speech. 3. Its so subjective. How do we draw the lines, and how do we compensate? 4. Liability would result in too many cases. iv. Considerations: 1. Did D know that P was particularly susceptible to harm? 2. Do we as a society want to tolerate this kind of behavior in our community? 3. Did the distress result in physical harm? 4. Was it attached to another tort? v. IIED becomes less necessary as there are more specific laws that target this behavior and abuse of power. d. NIED (not intentional tort, but fits here) i. The early rule only let P recover if he suffered physical injury because (Mitchell v. Rochester Ry): 1. Damages were too remote 2. Allowing emotional distress claims would lead to a flood of fabricated claims ii. Within the zone of danger rule (RST and Amaya v. Home Ice): a. P can recover if he was within the zone of danger b. Artificial; based on the assumption that a person within the zone will fear the impact. 2. Has the potential to exclude some people from recovery, but useful because it draws lines. iii. Reform and considerations (Dillon v. Legg): a. Whether P was near the scene b. Whether the shock resulted from a direct sensory impact upon P c. Whether P and victim were closely related.

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This case and its progeny have been subject to criticism, by Clark as well. The only way this can be solved is through a case-by-case analysis, which opens an endless inability to draw lines. iv. RTT stance: An actor who negligently causes serious bodily harm to a third person is subject to liability for serious emotional disturbance caused to a person who: a. perceives the event contemporaneously b. is a close family member of the person suffering bodily injury. Categories of Intentional Torts: a. Battery i. Intentional infliction of physical contact or harm ii. If act/harm was intentional, strictly liable for results. Vosburg, Garrett. iii. DEFENSES: 1. Consent (Explicit / Implied / Substitute / Emergency rule) 2. Self-defense b. Assault c. Trespass to Land/Chattels

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STRICT LIABILITY OR NEGLIGENCE? 1. Early Cases show its unclear whether CL adopted SL or negligence standard. a. The Thorns Case (1466). D cut his thorns such that they fell on Ps land. D then trespassed onto Ps land to recover the thorns and caused damage for which P sought recovery. D argued that the falling of the thorns on Ps land was against his will, and that his act of trimming thorns was lawful i. Judge Littleton: Opted for a strict liability standard. If a man suffers damage, it is right that he be recompensed . . . . [What if it were trees instead of thorns?] No more here may he do it, for the law is all one in great things and in small and so, acco[rding to the amount of the trespass, it is proper that he should make amends. ii. Judge Choke: Allowed privilege if D could show that he could not do it in any other manner or that he did all that was in his power to keep them out (something more stringent than a reasonable care standard). iii. Everyone agreed that the owner of trespassing cattle had to compensate P for damage caused, even if the cattle had entered Ps land against his will because b. The Tithes Case (1506). D moved Ps corn to save it from beasts and others. It was damaged as a result. D was liable, because otherwise P could have recovered from those responsible. c. Weaver v. Ward (1616). Unless D is found to be without fault in the case of an inevitable accident, P should recover. This is something of a halfway point between SL and negligence. 2. The Rise of Negligence a. Brown v. Kendall (Mass. 1850). D hit P in the eye a four-foot stick while trying to break up a dogfight between his dog and Ps dog. Shaw said that P had to prove either that D was actuated by an unlawful intent or had failed to show reasonable care under the circumstances: If the act of hitting the P was unintentional, on the part of the D, and done in the doing of a lawful act, then the D was not liable, unless it was done in the want of exercise of due care. This unless clause marks the divergence from SL. b. Does this rule apply as well to trespass as it does to personal injury? 3. Strict Liability Arguments a. Normative i. Basic fairness w/r/t P: P should not have to pay for harm ii. This could be the best way to maintain good relations with neighbors; theres less reason to exami ne fault and point the finger. b. Administrability i. Draws a clear line and gives the jury easy guidelines by which to decide c. Consequential i. Maximum deterrent effect ii. Consistency and predictability iii. Incentive to take reasonable precautions, but not unreasonable ones: if something P brings on his land causes destruction of Ds shed (worth = $2,000), P will not spend more than $2,000 on avoidance measures. iv. If you cant do something / leave something onto your property without causing your harm, maybe you shouldnt do it. d. [See Littletons opinion in The Thorns Case]. 4. Negligence Arguments a. Normative i. Basic fairness w/r/t D: D was not at fault and it was outside his control ii. This could be the best way to maintain good relations with neighbors: we dont demand that neighbors pay for harm to us when they were not to blame. b. Administrability i. Less litigation (because an SL lawsuit is probably not cheaper than a negligence lawsuit debatably) ii. Its cheaper just to let the harm fall where it lies c. Consequentialist i. Incentives for the P to take precautions as well (e.g. not building a shed near a tree that could fall on it) 1. Accounts for cases where P could have more easily avoided the problem ii. Its easier to insure this way; cheaper to buy homeowners insurance than liability insurance. iii. If its something that creates positive externalities, SL might over-deter. d. SL is an arbitrary test that confounds degrees of danger. Such a rule goes against progress and the CL tests of responsibility based on propriety of living in the social state, and encourages barbarism by ignoring the rights of civilization. Brown v. Collins (1873) (where Ds horses became frightened and struck a post). i. 19th c. Judges avoided adopting the SL side of Rylands because of its economic effects.

Holmes, The Common Law: Rejected SL because he thought it would lead to infinite liability and absurd consequences. Negligence rests on a principle of reasonable foresight to demarcate proximate from remote consequences. Still, he recognized that the strict liability of Rylands applied to certain activities if they are risky enough. 5. Collapsing the Two a. Fletcher v. Rylands, Blackburns caveat: Its not necessary for the escape of the water to be likely, only that the harm be likely once the escape occurs; extends SL to consequential harms instead of using negligence to govern direct ones. D is liable for the natural and probable consequences of things he introduces onto his property, because it would serve no deterrent purpose to hold a D liable for fluke-ish things. However, is this the same as holding D liable for the probable and natural consequences of his behavior?

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NEGLIGENCE 1. Elements a. Duty i. Is this the type of thing tort law deals with? Breach i. Did D act below the standard of care that we want to hold him to? c. Causation: Two questions i. Proximate Cause 1. Is there a sufficient causal link between Ds conduct and the harm? ii. Cause in fact 1. Was Ds conduct the but-for cause? d. Harm: Two questions i. How badly was P hurt? (factual component) ii. Does tort law compensate this harm? (legal component) The Reasonable Person a. Tort law uses an objective reasonable person standard rather than a subjective standard. Vaughan v. Menlove (1837) (where Ds haystack caught fire, destroying Ps cottages, because D should have known based on the standard of a man of ordinary prudence). b. Rationale. This standard serves society by encouraging everyone to live up to the general standard. Its a lso impossible to measure a persons individual capabilities. We must, therefore, choose some line to draw. Holmes, The Common Law. c. Limited capacity and other caveats i. We dont take limited capacity into account unless its extreme. Holmes. So a blind man is not required to see at his peril, but he must consider his infirmity in regulating his actions. ii. Old age. Generally, old age is not taken into account because if a person is not capable of driving safely, e.g., we do not want them to continue driving at an old age. Roberts v. Ring. iii. Beginners. Where the beginner has taken precautions consistent with his skill he is not negligent, as when a new bicyclist selects a lonely road and is accompanied by a competent instructor. ( RST). 1. Rationale. Variations in skill or knowledge are a function of Ds level of training, but we dont want to require everyone else to subsidize their ambitions. iv. Experts. We require D to act on his superior knowledge and skill and not content himself with precautions suitable to the ordinary person. (RST). 1. Rationale. This induces D to take cost-justified precautions, for so long as D already has the needed skills, the cost of using them is low. v. Infancy. RST holds a child to a standard of a reasonably careful person of the same age, intelligence, and experience. RTT says this does not apply when the child is engaging in adult activities. This includes driving. Daniels v. Evans (where the court reasoned in light of the role of the automobile in modern life, that all drivers must, and have the right to expect that others using the highways, regardless of their age and experience, will obey the traffic laws). vi. Insanity. RST holds that insanity or other mental deficiency doesnt relieve the actor for liability for ordinary negligence, but in practice, that position has been moderated as some courts held that insane persons may be excused for their torts if the insanity strikes them suddenly and without warning. See, e.g., Breunig v. American Family Ins. Co. (where D suddenly thought she was Batman while driving, a delusion that could not have reasonably foreseen). 1. My note: This is kind of like Weaver v. Wards idea of inevitable accident, something of a halfway point between SL and negligence. vii. Physical Disabilities. RTT holds that if the actor has a physical disability, the actors conduct is negligent if it doesnt conform to that of a reasonably careful person with the same disability. 1. Rationale. Fairness and deterrence: its not thought fair to hold D to a standard of care that is impossible for him to meet, negating any possibility of deterring his dangerous activities. 2. E.g. If a blind person injures himself while walking with a cane on public streets, D must provide guardrails to excavation sites because [t]he obligations are correlative. Fletcher v. City of Aberdeen. viii. Wealth. Ds wealth plays no role in setting the applicable standard of care and is legally inadmissible at trial. Calculus of Risk a. This more concrete way of thinking about negligence seeks to achieve the best overall efficient result for society as a whole. b. Balancing of costs and benefits b.

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i. D will not be held liable for costs if the benefit outweighs them. This includes considering if taking a precaution would result in costs that make society worse off than the costs Ds conduct inflicts. 1. E.g. Its not negligent to drive a fire truck through a crowded neighborhood at a high speed, even though its likely to cause an accident, because there are also costs to taking the precaution of driving slowly (house burns down). Osborne v. Montgomery (illustration used by court). ii. Usually the benefit is saving some money. See, e.g. Blyth v. Birmingham Water Works (where the benefit was not spending money to clear ice off water plugs because D acted according temperatures of a normal winter). But it can be something as serious as saving the life of a child. Eckert v. Long Island R.R. (where P was run over by a train in his effort to save a child after making a rough and emergency cost-benefit analysis). iii. We also need to think about marginal costs, not just the total costs. Would an alternative have resulted in fewer costs? In the fire truck example, could the driver have taken an alternative route? 1. This is a powerful tool for both Ps and Ds. P will argue that there was something else that D could have done, while D will argue that the alternative poses other costs that are worse. See, e.g., Cooley v. Public Service Co. (where P claimed special baskets could prevent power lines from falling onto telephone wires, and D tried to show that the increased peril to passers-by on the ground is far greater).

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The Hand Formula

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i. The PL curve measures the benefits from additional precautions, which reduce the probability of accident. 1. Ceases to be worthwhile when m = -1. ii. The B curve indicates the additional costs that must be induced to reduce the accident curve. 1. B curve could also be horizontal to assume that the cost of additional precaution is constant. iii. The first simple precautions yield the greatest economic return (when PL = B). 1. If PL > B, you should have taken the precaution negligent. 2. If PL < B, you should not have taken the precaution inefficient, but not negligent. iv. United States v. Carroll Towing: Barge owner didnt have a guard on board a vessel moved about NY City harbor during wartime. Hand uses the B < PL approach in this case because there is no general rule to determine when absence of a guard makes the barge owner liable. The reason that theres no general rule is that an owner will always perform a cost-benefit analysis. v. Critiques: 1. Can be used as window-dressing for results reached on other grounds. 2. Measurement problems: How well do juries apply it? What if the L is human life? Gaps to fill. The open-ended standards of the reasonable person and unreasonable risks leave room for a huge amount of unwanted uncertainty in the law. Two sources of authority are invoked to fill these gaps: a. Customs. Rationale: People can rely on sound customs without reflection, and without understanding exactly why they are sound, or how they evolved. Tried and true, they may exhibit hidden virtues that are undetected by more rational approaches to human behavior. When customs gain widespread acceptance, they enable people to coordinate their activities with greater ease. i. RST: In determining whether conduct is negligent, the customs of the c ommunity, or others under like circumstances, are factors to be taken into account, but are not controlling where a reasonable man will not follow them. ii. Two distinct uses: 1. Violations of customs can be used by P to establish negligence (very powerful evidence of absence of due care) 2. Compliance with custom can be used by D to establish due care (less weight is given here) 3. Rationale. Conclusive reliance on custom allows any industry or trade to set itself above the law, and to develop unreasonably risky practices. iii. Sometimes, judges will even refuse to allow D to introduce custom into evidence when it s evident that the practice is manifestly dangerous. See, e.g., Mayhew v. Sullivan Mining Co. (where P, and independent contractor hired by D, fell through a newly cut, unguarded and unmarked hole; even if this were customary since the days of Tubal-Cain, its not consistent with due regard for safety.). iv. Hands famous and influential limitation of weight accorded to evidence of custom: a whole calling may have unduly lagged in the adoption of new and available devices. It may never set its own tests; however persuasive be its usages. The T.J. Hooper (where P alleged that owner of a tug lost at sea in

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a gale was negligent in failing to equip the tug with a radio; Hand held that custom was not decisive, and that there was a duty to supply radio sets based on evolving technology usage.). When should we rely on custom? 1. When its hard for a jury to figure out the risks 2. Where the custom is clear and ascertainable 3. Epstein argues that we should defer to customs more in consensual relationship situations and less in stranger cases a. Its less likely that a stranger would consent to a certain amount of risk. b. The jury has no place in determining the relationship between knowledgeable business partners. Some courts say that a companys internal rules (e.g. employees must mop the floor 3 times a day) are evidence in support of D because it shows their cost-benefit analysis; others dont. Medical Customs. 1. In medical malpractice cases, we let the profession set the standard instead of letting jury. Why? a. Doctors are better disposed to put their best efforts into providing the best patient care due to the incentive structure of the profession. b. We cant trust juries as much in these cases. i. Over-deterrence of medical practices because juries are more likely to hold doctors liable. ii. The problem of hindsight and other cognitive biases. 2. Deferral to medical profession standards is not really a deferral to custom. Why not? a. 99.9% of the time, the medical professions judgment about what ought to be done coincides with what it does. b. It doesnt really involve judgment about what is common practice. 3. Battle of the experts: the problem of incorporating custom is that juries must decide on which expert they like best. 4. Local vs. national standards: a. Traditionally, judges asked juries to defer to the local standard of care. b. Today, courts have largely rejected this approach and held that we should talk about the relevant standard of care regardless of locality. See, e.g., Brune v. Belinkoff (Mass. 1968) (where D tried to rely on local custom for the dosage of spinal anesthetic, but the judge held the nationals standard was more appropriate). c. Rationale. Patients are entitled to the same level of care everywhere. Also, education and training follow national standards. d. Problem. This expands the pool of expert witnesses, exacerbating the battle of the experts. 5. Different school problem. The legal system responds the problem posed by honest division of opinion over the proper course of treatment by holding that a practitioner of neither school is negligent for his failure to follow techniques and precepts of the other. Informed Consent, or duty to disclose. Acceptance of customary standards has not been uniformly applied in this corner of medical malpractice law. Medical professionals must disclose not only the procedure, but also relevant costs and benefits of alternative treatments, or no treatment at all . 1. Rationale. Autonomy: patient assumes responsibility for key decisions affecting her welfare. a. Slippery slope arguments; the paternalism of I think its better for you can lead to results that are indeed worse b. The doctor doesnt know what matters to you (e.g. concert pianist) 2. Counterargument: The autonomy fallacy. a. Lottery example: how do we justify raising our income by preying upon our poorest citizens? By saying that no one has to play. b. We take advantage of peoples inability to evaluate risks well. c. At the same time, we ban other activities because they destroy peoples autonomy, thus taking away choices to promote choice. 3. P needs to show that if he had known the risks, he would have made a different decision. Canterbury v. Spence. a. Rationale. There must be a link between the bad conduct and the harm. You wouldnt have any basis for damages, and there would be nothing accomplished by suing. 4. The scope of disclosure should not be full disclosure (because its not practical), but what the patient needs to know to make a good decision. Id.

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Exceptions: a. When the patient is unconscious or incapable of making a decision Id. b. When risk-disclosure poses such emotional distress that the patient cant make a good decision (narrowly construed). Id. b. Statutes and Regulations i. In most states, violation of a statute or regulation negligence per se. ii. RTT: An actor is negligent if, without excuse, the actor violates a statute that is designed to protect the type of accident the actors conduct causes, and if the accident victim is within the class of persons the statute is designed to protect. iii. Rationale. 1. This respects the hierarchical nature of law by assuming that statutes, so long as they meet constitutional standards, always trump CL rules. Thayer. 2. Cardozo says, Jurors have no dispensing power by which they may relax the duty th at one traveler on the highway owes under a statute to another. Martin v. Herzog. 3. Reduces administrative costs. iv. D may not introduce evidence that the legislature was misguided. v. Considerations: 1. Was the injury the type of harm that the statute attempts to prevent? 2. Does the statute explicitly trump or not trump CL? 3. Does it say who may sue whom for what breach of duty? a. If not, judges must fill in the gaps through statutory construction. 4. Role of but-for causation: P can establish the link between the statutory violation and the harm only by showing an increased risk or hazard from Ds conduct. Brown v Shyne (where D gave chiropractic treatment to P without a license). Proof of Negligence a. Res Ipsa Loquitor. The thing speaks for itself. Tort law invokes this when P seeks to establish Ds negligence by circumstantial evidence because P otherwise cant (probably because he doesnt exactly know what happened). i. Rationale. Prevents the D from saying you havent proven it in situations where P cannot prove it. ii. Three requirements must be met in order for RIL to apply (Clark thinks this test is confusing): 1. the accident must be of a kind which ordinarily doesnt occur absent negligence 2. it must be caused by an agency or instrumentality within the exclusive control of D 3. it must not be due to any voluntary action or contribution on the part of P Colmenares Vivas v. Sun Alliance Ins. Co. (where Ps suffered injury on an escalator when the handrail stopped moving). iii. What courts are really trying to get at with the test is, are the circumstances sufficient to show negligence? Is Ds negligence the most likely explanation? iv. Sometimes P seeks to persuade a jury on the strength of the doctrine itself. Byrne v. Boadle (where P was passing along Ds house when a barrel of flower being lowered from a window injured him; P introduced no evidence of negligence, and court introduced a new principle of proof into CL). v. Other times, P combines the doctrine with lay and expert testimony. vi. In these cases, D can show either: 1. It was not Ds conduct (or conduct of Ds servants) that caused the injury. 2. D was not negligent. vii. Public authorities and non-delegable duties. If the public entrusts an authority to provide a safe public accommodation, the authority cannot delegate this duty to someone else. Colmenares (where the escalator was located in a Port Authority accommodation).

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PLAINTIFFS CONDUCT: CL defenses to negligence actions 1. Contributory Negligence a. P may not recover when her negligence is a legally contributing cause co -operating with the negligence of the defendant in bringing about the Ps harm. RST. i. Under traditional rule of contributory negligence it was a complete bar to Ps cause of action. ii. Under the modern rules, we have a rule of comparative negligence. b. Rationale. i. Fairness/Normative argument Ps should not recover from others when they themselves were negligent. We want to impose the same standards on everyone. Why should P recover if her conduct was no better than Ds? ii. Consequentialist argument We want to encourage Ps to look out for themselves; dual function of liability rules for both Ds and Ps. Accident prevention depends on both sides. LeRoy Fibre Co. v. Chicago. Milwaukee & St. Paul Ry. (where P iii. Administrability This regime is easier to administer than comparative negligence because there is less difficulty assigning damages. c. Considerations: i. Did Ps negligence increase the harm to himself, not to D? Was this the type of harm the law was trying to prevent? ii. Did Ds conduct cause P to be negligent? 1. E.g. an employer failing to provide safe facilities, even though P was aware of this. Gyerman v. United States Lines Co.. 2. E.g. an icehouse owner who didnt provide a railing for the platform, even though he warned P not to go near it. Smithwick v. Hall & Upson Co.. iii. Does D owe a heightened duty of care to P, as a custodian? iv. Does D have a superior knowledge of the dangers, as a physician? v. What do we expect P to do? Do we expect P to stack his flax farther from the RR? d. The Property Context. Courts sometimes hold that property owners have exclusive possession and use of their land. LeRoy Fibre Co. v. Chicago, Milwaukee & St. Paul Ry. (where P stacked his flax close to the railroad and sparks caught it) (Holmess concurrence: when balancing this conflict of interest, it depends on the degree; we want both parties to have reasonably accounted for the possibility of fire). e. The Employment Context. Continuing to work in the face of danger doesnt excuse an employer because employees are not in the position to know whether or not they should keep working. Gyerman v. United States Lines Co. (Cal. 1972) (where P injured himself when his employer incorrectly staked sacks of fishmeal and he notified the employer). i. Anachronistic example because most employees are no longer covered by tort law. f. Doctrine of Last Clear Chance. If D had the last clear chance to avoid the harm and didnt take it, even if P has been contributorily negligent, D is liable. i. Designed to mitigate the harshness of the bar on Ps recovery; not so relevant anymore. ii. Arguably, this doctrine is unnecessary, because if D chooses not to avoid the harm, Ds conduct could be described as intentional. g. Courts are hesitant to apply contributory negligence in particular categories: i. Statutory duty cases. If a statute imposes non-waivable safety requirements on employers for their employees, and an employee decides to work with knowledge that the safety devices have not been supplied, courts dont allow D to argue P was contributorily negligent. Koenig v. Patrick Construction Corp. (window washer case). The question is, was this the kind of harm the statute aims to prevent? ii. Custodial care cases. If P and D have an asymmetrical relationship such that P is under the custodial care of D, then this shapes the understanding of the duties of the parties. D has an elevated duty to ensure that P doesnt harm himself. Padula v. State (where Ps gained access to a copy room at rehab center and drank ditto fluid). iii. Medical malpractice cases. In the context of a medical negligence case, the physicians superior knowledge and expertise in the subject area and the generally limited knowledge of the patient concerning the dangers . . . may negate the elements of contributory negligence. Dunphy v. Kaiser Foundation Health Plan of Mid-Atlantic States (where Ps leg was amputated because D didnt diagnose his infection). Assumption of Risk a. D concedes that he has inflicted harm on P, but claims that since P assumed the risk, it was as though the harm was self-inflicted. Parallels the concept of consent for intentional torts. i. Has the effect of saying that D was not negligent and didnt breach any duty to the P. ii. Still a complete bar to recovery.

2.

12

3.

Rationale. i. Fairness How can P complain about something P knew about and welcomed? ii. Consequentialist 1. More peoples needs are met when we give them the autonomy to assess risks. 2. An alternative rule would have the indirect effect of making amusements more expensive. 3. The basic transactional system will unravel if P can disclaim the risk when it materializes, for then D will never enter into an agreement in the first place. iii. Administrability (in support of a broad rule in the context of drafting contracts) It takes a lot of money and time for lawyers to draft contracts waiving liability when the danger of the activity is manifest. It also makes the warning less clear. c. Considerations: i. Was P warned of the danger? Just putting up a sign doesnt waive liability, but it helps D argue that P knew about the danger and accepted it. ii. Was the risk obvious? iii. Did P voluntarily assume the risk, or was there unequal bargaining power? iv. Was P in a better position than D to know the risks? v. Ks was there a meeting, objectively manifested? Was it an adhesion K? d. Employment Context. Historically, laissez-faire judges let employers contract-away liability. Today, courts hold that these are cases of unequal bargaining power, and they dont say that employees assumed the risk. i. Holmes may have point with the old rule. There might be jobs where part of what P is paid for is the danger. If P decides that what he wants to be paid for is the risk, and its worth it in his own internal calculus, then the court could recognize that. Lamson v. American Axe & Tool Co. (where P was painting hatchets and one fell off the new rack and injured him). ii. The Firemans Rule is also a caveat to this. Negligent fire-starters are not liable for firefighters injuries because they assumed the risk through the job; doesnt apply to intentional arsonists. e. Amusement Context. Cardozo says, Volenti non fit injuria If P knowingly and willingly accepted the risk, P cant recovery for injury that results from that risk. Murphy v. Steeplechase Amusement Co. (The Flopper case). f. Contract Context. A contract waiving liability seems to be the clearest assumption of risk, putting P in a position where P cannot recover. But sometimes, even a seemingly explicit assumption of risk will be troubling. A contract in which P assumes risk not inherent in the activity can be contrary to public policy. Dalury v. S-K-I Ltd. (where P suffered serious injury after colliding into a pole while skiing; the court invalidated the waiver P signed as against public policy because ski resorts are in a better position than skiers to know the risks of the course and should be encouraged to reduce accidents). i. Tunkl v. Regents of Univ. of Cal. lists factors to consider: 1. The K concerns a business of a type generally thought suitable for public regulation. 2. The party provides a service of great importance to the public (e.g. healthcare, food, etc.) 3. The party is willing to perform this service for pretty much anyone 4. The party possesses bargaining strength against any member of the public 5. The party uses a standardized adhesion contact. 6. The purchasers person/property is under the control of the seller. Comparative Negligence a. There has been a massive legislative and judicial move toward comparative negligence since 1970. b. Comparative negligence is preferable to the all-or-nothing doctrine of contributory negligence. Li v. Yellow Cab of California (Cal. 1975). Sullivans rationale: i. Fairness argument Contributory negligence is inequitable because it fails to distribute responsibility in proportion to fault ii. Administrability/Consequentialist argument Its not applied consistently, detracting from public confidence in the law. iii. Wants to adopt pure f=orm (which apportions the loss in accordance with the relative fault of the two parties) as opposed to the modified form (which simply lowers, but does not eliminate, the bar of contributory negligence because P must show that her negligence is below a fixed threshold before she can recover). c. Problems: This system doesnt create a practical problem, but rather, a theoretical problem: what are they comparing? negligence-ness? the risk imposed? the perceived moral failing? d. This doctrine makes the last clear chance doctrine useless. e. The assumption of risk doctrine merges in cases where both P and D were negligent, but not in cases where Ps harm results from Ps negligence. In this way, the comparative negligence system pushes courts to clarify exactly what assumption of risk is contemplating.

b.

13

f.

This shift, seeming to help P, actually helps D because courts apply this scheme more frequently than they would have applied contributory negligence because that scheme acts as a complete bar.

MULTIPLE TORTFEASORS 1. Join and severable liability: a. If two Ds coordinated and caused the harm both liable b. If they didnt coordinate but each was sufficient to cause the harm both liable c. If Ds conduct was not by itself sufficient to cause the harm, or if P cannot determine whose conduct caused the harm P can only recover from one d. Kingston v. Chicago N.W. Ry. 2 fires caused Ps property to burn, one started by D and one from an unknown source. D was unable to show that the property would have burned anyway because court assumed it was caused by another tortfeasor, so D can be held liable because his conduct was sufficient. 2. Vicarious liability: a. Respondeat superior: Let the employer answer. Elements: i. Employer liable for the conduct of employee ii. if it is within the scope of employment. 1. Does the harm the employee cause depend at all on his specific employment? 2. Is it characteristic of employment activity? 3. Would it make any difference if D had a different job? iii. Rationale: 1. Fairness the employer is the one making a profit at the cost to society, and they cant disclaim liability for accidents that are characteristic of its activities. 2. Administrative The employer has the money to compensate P, and they can more easily spread the cost (this argument not enough by itself). 3. Consequentialist Employers have incentives to take additional care in training their employees to be safe. iv. The motive test: Something is within the scope of employment if D is acting within the interests of the employer. Rejected by Ira S. Bushey & Sons v. United States because it leads to inconsistent results. v. Employers are not liable for independent contractors, but what is an independent contractor? 1. Implied authority analysis: does the employer have the ability to control the way the agent does his work? Petrovich v. Share. vi. Volunteers? We want volunteer to internalize the risk, but we dont want to over -deter.

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CAUSATION 1. Cause in Fact: the factual question of causation a. RTT: Tortious conduct must be a factual cause of physical harm for liability to be imposed. Conduct is a factual cause of harm when the harm would not have occurred absent the conduct. b. Rationale. If we hold people liable for something that would happen anyway, we might end up deterring things that we want without addressing the real cause of the harm. c. The heart of cause in fact is a debate between each sides over the evidence to determine whether Ds negligence actually caused the harm. d. P must show that Ds negligence in fact caused the injury. New York Central RR v. Grimstad (where P sought damages for drowning of decedent because D failed to equip barge with life buoy; P failed to prove decedent would have survived with a life buoy on board). e. Collapse with proximate cause. Calabresi, using Cardozos logic, collapses proximate cause into cause in fact and lightens the burden on P: If we know that D was negligent, and we know that the negligence is likely to cause a particular kind of harm, P has generally shown enough to prove cause in fact. Zuchowicz v. United States. i. Problem: It might over-deter, and Ds might be a little too careful. Cardozo believes this is a problem we can live with. f. Lost chance doctrine. If a negligently misdiagnosis of Ps illness detracts from his chance of survival, he may recover from his doctor. Herskovitz v. Group Health Cooperative (where Ds delay in diagnosis reduced Ps chance of surviving 5 years by 14%). i. Otherwise, doctors cannot be held liable for failure to diagnose if the Ps chance of survival were less than 50% because the illness itself is the cause in fact. ii. Endorsed by RTT; adopted in a majority of jurisdictions. iii. Problem: Errors in individual cases will not cancel out in the long run, so that Ds may be systematically overtaxed for harms that they didnt cause. iv. Damages: computed by looking at the percentage reduction in the value of life or limb. g. Market share liability: when, e.g., you cant figure out which specific dru g company caused your injury because there isnt enough evidence that they manufactured it. i. This has been rejected by courts, who have adopted the rule that, in general, if you cant show causation, you lose. Proximate Cause: the legal question of causation a. Two main questions: i. Whether the harm was the foreseeable result of Ds negligence 1. In re Polemis rejected foreseeability because it opens the door to D arguing that the harm he negligently caused was worse or different than he expected. 2. Cardozo in Palsgraf reintroduced foreseeability with respect to duty rather than proximate cause, but made the mistake of asserting that if harm is without the scope of the risk of the duty, D is still liable. 3. Best as a proximate cause question. Marshall v. Nugent. ii. Whether this is the type of harm that the makes D negligent 1. E.g. youre speeding and scare a dog that bites a kid

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AFFIRMATIVE DUTIES 1. 2. In general, D has no affirmative duty to help P in her time of need or peril. This is best thought of as a rebuttable presumption, not a categorical rule. a. The nonfeasance/misfeasance binary is not stable; e.g. running a read light vs. failing to apply the break. Duty to rescue a. D is under no duty to rescue P, a stranger, from the position of peril not brought about by Ds c onduct. b. Rationale: D is responsible for the consequences of his own actions, but is not a conscripted savior against the misfortunes that fall on others. This enhances autonomy from legal constraints. P should only be able to recover from his tortfeasor, not from bystanders. c. Arguably, the exceptions to this rule are cases where D was negligent in some way. Exceptions; specialized duties to rescue: a. Ds conduct creates a dangerous condition that would cause P injury. Montgomery v. National Convoy & Trucking (where Ps car stalled on an icy road). i. Rationale: D has created a risk and is in a position to mitigate its effects ii. Ps action lies only for the new harm that Ds remedial action could have prevented; creates a set of line-drawing problems that the SL rule avoids. b. D moves P from a public to a private place, so can be liable for preventing a third person from aiding her. i. Rationale: Ds conduct increased Ps risk of injury by positively reducing chance for rescue. c. D has undertaken, gratuitously or for consideration, a duty to provide assistance to P. i. Rationale: Similar to promissory estoppel in K law; once D has undertaken a duty or a promise, P relies on him to perform. Erie Railroad Co. v. Stewart (where RR company usually kept a guard at the crossing, which P relied on). ii. Cardozos approach in Moch Co. v. Rensselaer Water Co. (where Ds failure to provide enough water to put out a fire was the denial of a benefit, not the commission of a wrong): 1. Analyze Ds conduct to see whether it gives rise to a relationship. 2. Analyze the extent to which D needs to follow through with undertaking. d. D and P have a special relationship. i. RST: There is no duty to control the conduct of a third person as to prevent him from causing physical harm to another unless: 1. a special relation exists between the actor and the third person which imposed a duty upon the actor to control the third persons conduct a. Tarasoff v. Regents of U. of Cal. (where therapist owed a duty to the victim of his patients attack to use reasonable care in warning her that the patient wanted to kill her) 2. a special relation exists between the actor and the other which gives the other a right to protection a. landlords; Kline v. 1500 Mass. Ave. (where landlord had a duty to take reasonable care in protecting his tenants from criminal activity; this can be construed as the LL having undertaken the duty to keep common areas safe). b. Also: innkeepers, landowner-invitee, businessmen-patron, employer-employee, school district-pupil, hospital-patient, carrier-passenger. Duties of Owners and Occupiers a. To trespassers (innocent) owner cannot inflict deliberate harm through wanton and willful misconduct, but owner does not owe a duty of reasonable care. Robert Addie & Sons v. Dumbreck. i. Rationale: Heightened protection of autonomy on ones own land. ii. Exception: attractive nuisance doctrine 1. Allows infant trespasser to recover when lured onto Ds premises by some tempting condition created and maintained by D. 2. Applies when possessor knows or has reason to know that children are likely to trespass. 3. Doesnt apply to natural conditions. RST. b. To licensees (people D allows on property, like a social guest) D owes a duty not to have hidden dangers or traps. c. To invitees (people on Ds property for business purposes) D owes a duty of reasonable care. i. Slip-and-fall cases: Licensor has no duty to inspect for these conditions, but inviter has an explicit duty to seek out and correct these conditions within a reasonable time after their occurrence. ii. Public officials are invitees if they arrive under ordinary circumstances (e.g. garbage collectors); otherwise, they are licensees. d. Should licensees and invitees be distinguished?

3.

4.

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i. Rowland v. Christian (Cal. 1968) tried to get rid of the distinction between invitees and licensees; its based on an arcane idea that we should protect property rights more than human safety. Opts for a case-by-case approach rather than a categorical one. ii. However, strong arguments for maintaining the categorical approach: 1. The categories reflect different types of usages and expectations 2. They reflect an internalization of externalities; we want D to feel comfortable letting other people using Ds home and shouldnt be liable if Ds not making a profit from them.

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TRADITIONAL STRICT LIABILITY Animals a. Wild animal SL b. Dog due care standard. Gehrts v. Batteen (where dog was restrained in the bed of a pick-up, and P asked if she could pet the dog, and the dog bit in the face; there was no evidence that D should have foreseen the danger or that dog had dangerous propensities) c. Rationale: Scope of the risk of owning a dog versus a tiger; these standards can be collapsed. 2. Ultrahazardous or abnormally dangerous activities strictly liable for harm to others, even if D exercised reasonable care a. Concept has its foundations in Rylands v. Fletcher, which held the owner of a reservoir strictly liable for water that escaped from a bursting reservoir. b. Rationale: Ps should recover for injuries resulting from nonreciprocal risks c. D only liable for harm that is within the scope of the abnormal risk that is the basis of liability; doesnt necessarily need to be carried out on Ds land. d. Considerations as to whether an activity is abnormally dangerous (RST): i. existence of a high degree of some harm to the person/land/chattels ii. likelihood that the harm that results form it will be great iii. inability to eliminate the risk by exercise of reasonable care iv. extent to which the activity is not a matter of common usage 1. RTT says that if the activity is of common usage, its not abnormally dangerous; e.g. aviation was a dangerous activity in RFT, but not in RST and RTT as it became more common. 2. Common usage alters the extent to which the risks are expected/reciprocal; it also makes it too hard to enforce v. inappropriateness of the activity to the place where it is carried on vi. balancing test of value to the community versus dangerous attributes 1. Comment: an activity valuable to the community may be such that the danger will not be regarded as an abnormal one. 2. RTT got rid of this consideration, and modern courts say value to the community shouldnt be a factor. 3. Clark argues that it should be a consideration when the value to the community is external, and most people arent in the position to tap into that value a. E.g. fireworks; its not economically feasible to profit from them. 3. Nuisance a. Unintentional nuisance due care standard b. Intentional nuisance strict liability component; even if D decided the value of the activity outweighed the social cost and was reasonable in doing so, the court will sometimes still allow the jury to find him liable. c. Considerations: i. Can the suffering person easily avoid the harm? ii. What are the expectations of the surrounding area? iii. Does P have an ordinary temperament? iv. Is the nuisance a result of a socially valuable activity? PRODUCTS LIABILITY 1. Producers of inherently dangerous products are liable for harm their products cause, even if P cannot show negligence. Rationale: a. Companies can spread the cost (not enough by itself) b. It gives companies the incentives to take maximum precautions, and to reduce their activity level if necessary. c. Companies have better access to safety information and evidence. d. Consumers rely on the safety of the products they consume. e. Its almost a kind of intentional harm because companies know about inherent risks, yet manufacture the products anyway SL History of the doctrine: a. Mid 19th to early 20th c. privity limitation prevented the injured party from suing the remote supplier of the product in question; this requirement eroded as exceptions were created for products known to hold hidden dangers. b. Early to mid 20th c. rejected the privity limitation by imposing liability for negligence ona remote seller; MacPherson v. Buick Motor Co. (Cardozo). 1.

2.

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3. 4.

5. 6.

7.

8.

Mid to late 20th c. Began with the famous concurring opinion of Traynor in Escola v. Coca Cola Bottling Co. (Cal. 1944), which argued that SL rather than negligence principles should govern the manufacturers liability; incorporated into the RST. i. Rationale: manufacturers market power, capacity to obtain insurance, and ability to internalize the costs of accidents associated with their products. 1. The real social cost of a bottle of Coke is 78 instead of 65. 2. As a result, they started using plastic bottles. ii. Caused litigation to soar Claims can be brought against anyone in the supply chain, but there are often indemnification clauses (in car dealership Ks, e.g.). Federal preemption. The general rule is that federal safety statutes dont preempt tort liability. a. Just because product meets federal safety standards doesnt mean its not defective b. However, if it fails to meet standards, this is close to negligence per se. c. When the regulations are very focused on a particular trade-off and represent a desire for there to be uniformity on this issue, the court might find that this statute is sufficient to preempt litigation on this issue. Manufacturing Defects a. Strict liability. Speller v. Sears Roebuck and Co. Defective Design a. We cant hold companies SL for defective design; to decide what counts, 2 tests: i. Consumer expectation test if the product was more dangerous than consumer expected. RTT. 1. Defense: risk was open and obvious. ii. Cost-benefit / risk-utility test if burden of making the product safer does not outweigh the benefit of heightened safety 1. One central focus: feasibility of alternative designs. 2. Overcomes the open and obvious limitation on recovery. b. Contributory negligence: misuse and modifications, but P can still argue that the use/modification was foreseeable. Duty to Warn a. Manufacturers have a duty to warn P of the risks of using the product; can be thought of as a part of product design, and a way for the product to meet consumer expectations. b. Prescription drug exception to the duty to warn. MacDonald v. Ortho Pharmaceutical Corp. i. Physicians know patients condition better ii. Patient is more likely to heed to physicians warning. c. Problems with warnings: i. People are bad at evaluating risks, so warnings may either over-deter or under-deter. ii. We dont want warnings to substitute for effective design changes iii. Too much information may keep user from reading iv. They impose information costs as well, so there has to be some cost-benefit calculation. d. In general, though, we take the position that more information is better; autonomy over paternalistic arguments. e. Majority rule: theres no duty to warn if D didnt know about the risks (making the rule something less than strict liability). Vasallo v. Baxter Healthcare Corp.. f. 20/20 hindsight (minority) rule: manufacturer is charged with a duty to warn of risks without regard to whether the manufacturer knew or reasonably should have known of the risks. Plaintiffs Conduct a. Some courts accept comparative negligence in products liability cases. Daly v. General Motors Corp.. i. Rationale: 1. Dont want to bar Ps action completely (which is what assumption of risk does). 2. However, we know that certain kinds of behavior should limit Ps recovery. b. Plaintiffs conduct should not limit recovery if: i. The misuse/modification is foreseeable. RST. ii. The risk P assumes is the very risk that makes the product defective.

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DEFAMATION 1. Traditional elements of a defamation claim: a. Defamatory communication i. Lowers the eyes of others so as to make them not want to associate with you b. False i. This is a modern statement of the rule; the old rule held that truth was a defense. ii. The incorporation of this as an element is a result of constitutional limits. iii. In most cases, P has to show at least negligence as to falsity. iv. If D is a public official, P has to show more than falsity actual malice, meaning knowledge that the statement was false, or reckless disregard of whether it was false or not. New York Times v. Sullivan. 1. The actual malice standard was extended to cover public figures as well. Curtis Publishing Co. v. Butts. c. Publication i. Someone else has to be told. ii. This is arguably not an element, but intrinsic in the definition itself iii. Publication is also almost always intentional iv. In some jurisdictions, it has to be an unprivileged publication, but this probably belongs as a defense. Doe v. Gonzaga. v. There needs to be a new publication (e.g. a new edition of the book) to refresh the statute of limitations. See Firth v. State of New York (discussing old CL multiple publication rule and the transition to the single publication rule). 1. Rationale: This is an inchoate type of tort thats hard to trace, which puts pressure on when the statement was actually made. Printers, bookstore owners, deliverers are not held liable for content under CL. Rationale: We dont think these professionals should have to police content. Newspapers: Can truthfully report what was said if theyre passing it off as news, but cannot make statements that are potentially false without framing it as a potentially un-true statement or making it understood that the newspaper is just repeating something else.

2. 3.

20

4.

5.

6.

Defenses: a. Truth i. Obsolete, because P now needs to prove falsehood. ii. Statements that are neither true nor are not actionable: 1. opinion 2. parody 3. matters open to scientific dispute. Auvil v. CBS 60 minutes. b. Conditional privileges i. Circumstances affording a kind of good faith defense ii. If D had some good reason to pass on information, courts would let D off the hook. iii. Also obsolete: this is just another way of showing D was not negligent iv. D can prove that he had a duty or an interest in communicating, and that this duty confers the privilege. Watt v. Longsdon. c. Absolute privilege i. Cannot be sued for defamation in certain situations: 1. Legal proceedings, but this doesnt extend to statements not made in the judicial proceeding itself. Kennedy v. Cannon. ii. Constitutional privilege 1. D can show there was no actual malice when discussing public figures or officials. Sullivan, Curtis Publishing. 2. States need to at least require negligence when D is a private party, and punitive damages can only be awarded in cases of actual malice. Gertz v. Robert Welch. 3. A narrow reading of the Supreme Court case law leaves open the possibility that a state in a case involving a purely private plaintiff and a purely private defendant (not a media org.) involving a matter not of any public concern can still constitutionally retain some of its old pro-plaintiff defamation law. d. Fair comment i. This is also maybe intrinsic in the logic of defamation e. Ambiguity (older issue) i. P must show that the statement is not subject to another interpretation w/t/r whether or not it specifically applies to P. ii. Modern courts wrestle with the ambiguity issue in a more reasonable way by distinguishing between opinion and fact; this puts it into the falsehood element because opinions are either neither true nor false (or always true). iii. D must make it clear that it was an opinion. Libel often defined categorically. Muzilowski v. Paramount Pictures Cop.: i. Commission of a crime ii. Infection of a loathsome disease iii. Words that prejudice a party in trade, profession, or business iv. Fornication or adultery b. If it doesnt fall into one of these categories, P has show special damages a more specific form of damages; concretely, what business was lost, etc. Defamation attacking a group of people: a. Tort law is not good at dealing with group libel; its harm is diffuse and hard to trace. b. Statements about groups also tend to butt up against legitimate things that we allow people to talk about (1st amdt.) c. Its better for courts to treat these statements as opinions rather than as facts (as long as they dont purport to be factual). d. Neiman-Marcus v. Lait i. One defamatory statement referred to a small group, and targeted most of them. The court held that this was libel. ii. Another statement referred to a large group, and the court held that no reasonable man would take the writer seriously and conclude from the publication a reference to any individual.

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