T II Outline Final 11

Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010 Table Of Contents
1 of 82
I. Intentional Torts .....................................................................................10
Tuning: ............................................................................................................10 A. BATTERY .......................................................................................................10 B. ASSAULT .......................................................................................................11 C. FALSE IMPRISONMENT ....................................................................................11 D. >>>>> Paradigm Shift to Emotions from Dignity <<<<<< ..............................11 E. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS .........................................11 A. CONSENT .......................................................................................................12 If the asserted victim gives permission, what would otherwise be tortious is instead privileged. ........................................................................................................................12 1. Must be the act of a rational, competent person;...............................................................12 2. Intoxication, insanity, and minority may invalidate consent .............................................12 Fine Tuning............................................................................................................................12 a) Scope of consent may not be exceeded - Mohr; Hackbart ................................................12 b) Invalid if obtained by fraud, misrepresentation, or silence concerning a matter as to which there is a duty to disclose - DeMay ...................................................................................12 c) Consent to illegal acts (agreement to fight) MAY OR MAY NOT be a good defense - state by state ..................................................................................................................................12 1. Express consent ................................................................................................................12 (1) Patient unable to give consent ........................................................................................13 (2) Risk of serious bodily harm if not treated ........................................................................13 (3) A reasonable person would give consent .........................................................................13 (4) Physician has no reason patient would refuse treatment under the circumstances.........13 13 2. Apparent Consent ..............................................................................................................13 3. Implied Consent ................................................................................................................13 4. Invalidating Consent ..........................................................................................................13 >>> No difference BTW Apparent & Implied Consent<<<..................................................13 B. SELF DEFENSE ...............................................................................................13 C. DEFENSE OF OTHERS ......................................................................................14 D. DEFENSE OF PROPERTY ..................................................................................14 E. RECOVERY OF PROPERTY ................................................................................15 Exception: Shop Keeper's Privilege .....................................................................................15 F. NECESSITY .....................................................................................................15 1. Public Necessity.................................................................................................................15 2. Private Necessity................................................................................................................15 G. AUTHORITY OF LAW and DISCIPLINE ...............................................................16 H. JUSTIFICATION ...............................................................................................16 A. The Reasonable Person:..................................................................................16 B. THE STANDARD OF CARE.................................................................................17
II. Privileges - Affirmative Defenses .............................................................12
III. Negligence.............................................................................................16
Objective Standard: We are all subject to the same standard of care. Vaughan.................................................................................................17
Generally, a standard of care is owed to a foreseeable plaintiff............................................17 Sources of Standard of Care: ................................................................................................18
1 of 82
Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010
2 of 82
1. legislation ..........................................................................................................................18 2. regulation ..........................................................................................................................18 3. case law ............................................................................................................................18 4. custom or normal care ......................................................................................................18 5. ordinary, prudent person rule.............................................................................................18 Learned Hand Where Duty is hard to find...........................................................................18 Duty to Rescue. There is no duty to go to the aid of a person in peril. BUT, a rescuer is a foreseeable as long as the rescue is not wanton. is liable if he negligently puts himself or a 3rd person in peril and the is injured effecting a rescue..............................18 Child licensees, 500, more duty than to an adult .................................................................19 Public officials are to be treated, 501-502, 1-5 ....................................................................19 NEW RULE: Lessor is under a duty to exercise ordinary care in the maintenance of the premises. ..........................................................................................................................20 The lessor is not the insurer of the safety of his lessees, but only has the duty to take those measures within his power, which can reasonably expected to mitigate the risk of intruders. (the cost may be passed onto the lessee by increasing rent)...........................20 Professionals Because of the specialized skill and training needed to be a doctor, lawyer, accountant, architect, or engineer, are held to the objective duty of care of all professionals in the field - Heath........................................................................................20 Attorneys are not held to anticipate changes in the law if made in good faith and using reasonable care and diligence - Hodges ...........................................................................20 Medical malpractice need expert testimony Boyce............................................................20 National rule Morrison.........................................................................................................20 Locality Rule. .......................................................................................................................20 Modified locality rule (similar community in similar circumstances) is the majority .............20 6. Negligence PER SE.............................................................................................................22 7. Fine Tuning: .......................................................................................................................22 C. BREACH..........................................................................................................23 1. P has the burden of proving that D was negligent where the D had notice of the danger 23 2. Res Ipsa Loquitur ...............................................................................................................23 D. CAUSATION IN FACT .......................................................................................23 1. P must show by a preponderance of the evidence, D's act was a substantial factor OR "but for" cause of the injury. .....................................................................................................23 (1) causal links standards: .....................................................................................................23 (2) Fine tuning: ......................................................................................................................24 (3) multiple acts of negligence ..............................................................................................24 (4) if the drug causes injury AND if you cannot link the P to a specific D ..............................24 E. PROXIMATE CAUSE..........................................................................................24 1. This is a liability limiter.......................................................................................................24 2. there is no proximate cause without causation-in-fact ......................................................24 3. foreseeability .....................................................................................................................24 Dependent Intervening Forces are normal responses or reactions to the situation created by the s negligent act. They are almost always foreseeable. Some common ones are:...24 NOTE: must take the P as you find them physically and mentally - Bartolone ....................25 F. DAMAGES.......................................................................................................25
IV. Joint Tortfeasors ....................................................................................25
A. Joint and Several Liability................................................................................26 1. Three (3) Circumstances for JSL: .......................................................................................26 b) Action in concert ("acting pursuant to a common plan") (Bierczynski, drag racing) .........26
2 of 82
3 of 82
c) Failure to perform a common duty (Coney, employer for acts of employee et al.) (usually in product liability) ............................................................................................................26 d) Independent action by D's leading to indivisible injury .....................................................26 2. Should Joint & Several Liability be abolished in Comparative Negligence Jurisdictions?....26 e) MAJORITY says NO, Coney - JSL is not changed/affected in any way by adoption of comparative negligence ....................................................................................................26 f) MINORITY says YES - Fault is a proxy for damages. (Juries generally apportion the same % damages as they do to fault) ........................................................................................26 NOTE: Even a stranger egging on a fight can be liable as a joint tortfeasors.......................26 B. Contribution & Indemnity mutually exclusive.................................................26 The relationship btw and among s (nothing to do with 's!)..............................................26 Contribution. Both parties are at fault, and one has already paid. ......................................26 Contribution is not limited to the judgment-debtors of the P. (Knell) ...............................26 Non-immune tortfeasors may not seek contribution or indemnity from those who are immune. ............................................................................................................................26 Indemnity. Assumes there is no real fault as between and even though is legally liable. ................................................................................................................................26 (1) Only allowed when D is vicariously liable for the wrongful act of another .......................26 (2) May be contracted around ...............................................................................................26 (3) Indemnity is an equitable remedy to prevent unjust enrichment. ...................................26
V. PRO RATA / PRO TANTO EXAMPLES...........................................................26 VI. Apportionment of Damages (as between accidents) ................................28
1. ON EXAM: ..........................................................................................................................28 Track accidents by date .......................................................................................................28 use expert medical testimony to separate out accident ......................................................28 2. RULES: ...............................................................................................................................28 P keeps the burden of proof when claiming that the 2nd accident aggravated the previous injury from the original accident. (Bruckman) ...................................................................28 Where harm is truly indivisible, impose JSL. If combination of harmless chemicals creates harmful one, once the P meets his burden of proof, the burden shifts to the D. (Michie) . 28 Experts demonstrate the cause, and damages are allocated by a jury. (Dillon) ..................28
VII. Pure Economic Loss ..............................................................................28 (Modern tort law is moving towards standards like foreseeability.) ..............28 VIII. Damages .............................................................................................29
P has burden of proving damages. .....................................................................29 special damages: subject to objective measurement (lost earnings, medical expenses, etc.. ...............................................................................................29 general damages: real, yet hard to measure and fundamentally non-economic (pain and suffering, emotional distress, etc...) .................................................29 5 cardinal elements (p. 521): .............................................................................29 1. Past physical and mental pain ...........................................................................................29 2. Future physical and mental pain (keyed to life expectancy) .............................................29 3. Future Medical expenses ...................................................................................................29 4. Loss of earning capacity ....................................................................................................29 5. Permanent disability and disfigurement (disfigurement is ALWAYS included in computing damages no matter how small) .........................................................................................29 6. (536) maybe (a) emotional distress, or (b) loss of enjoyment of life .................................29
3 of 82
4 of 82
A. Three types: ..................................................................................................29 7. Nominal - small sum of money awarded to the plaintiff in order to vindicate rights, not available in action for negligence ......................................................................................29 8. Compensatory - to make the plaintiff whole ......................................................................29 9. Punitive - additional sum, over and above compensation damages, in order to punish and deter, also not available in action for negligence ..............................................................29 A. Maximum Recovery Rule: Maximum amount of money an jury could reasonably award. If over the limit, judge can adjust (remittitur). Judge determines the amount that can be reached based on all evidence regarding each element. .....29 B. Collateral-source rule - prevents evidence of payments received by an injured party from sources 'collateral' to the wrongdoer, such as private insurance or government benefits. Four exceptions (all of these go towards the credibility of the plaintiff): .................................................................................................29 1. to rebut the 's testimony that he was compelled by financial necessity to return to work prematurely or to forego additional medical care .............................................................29 2. to show that the plaintiff had attributed his condition to some other cause, such as sickness .............................................................................................................................29 3. to impeach the plaintiff's testimony that he or she had paid his medical expenses himself ...........................................................................................................................................29 4. to show that the had actually continued to work instead of being out of work, as claimed ...........................................................................................................................................29 C. Loss of consortium - loss of conjugal relations, society, companionship, household services, etc. during the time period that the injured person is recovering or for a permanent loss ..................................................................29 1. Non-marital relationships (543): courts are split, but trending to "loss of guidance" .......29 D. Doctrine of Unavoidable Consequnces /(545). ROL: P in a personal injury case cannot claim damages for what would otherwise be a permanent injury if the permanency of the injury could have been avoided by submitting to treatment by a physician, including surgery, when a reasonable person would do so under the same circumstances. (D must show that P could've mitigated)...........................29
IX. Survival / Wrongful Death ......................................................................29 X. Defenses ................................................................................................30

A. Contributory negligence (Do not use it unless stated in the facts): The plaintiff's failure to exercise reasonable and ordinary care and who's conduct is the proximate cause of his/her own injuries constitutes a complete bar to recovery from the defendant. .......................................................................................30 1. Last clear chance doctrine (NOT used in most comparative negligence jurisdictions): If the plaintiff has the last clear chance to avoid the accident, the defendant will not be liable. Prima Facie case -> Affirmative Defense CtN -> Last Clear Chance (P's Burden) .............30 2. Comparative Fault is the exception to the old rule that morphed into Comparative Negligence.........................................................................................................................30 Imputed ("hung") Contributory / Comparative Negligence ...................................................30 (1) : CtN will not be imputed upon the owner-passenger of a car involved in an accident unless the relationship is one of master/servant (control) OR joint enterprise (profit-driven and other elements above). ..............................................................................................30 (2) Rejected in FL bc a passenger can in no way exercise control over the vehicle in which he rides. .................................................................................................................................30 B. Comparative negligence (default rule): ..........................................................30 C. Assumption of Risk (two types) - "A voluntary assumption of a known risk" ......30
4 of 82
5 of 82
EXAM: ...................................................................................................................................30 NOTE on Express Assumption of a Known Risk - unambiguous exculpatory clauses are generally held to be valid in the absence of legislation to the contrary. Seignur v. National Fitness (she signs a waiver releasing the gym's liability). Public policy did not prevent the parties from contracting as they see fit. However, there are three exceptions where the public interest will render an exculpatory clause unenforceable: .....................................31 a) conduct of the protected party goes beyond negligence or engages in acts of reckless, wanton, or gross negligence .............................................................................................31 b) grossly unequal bargaining power so as to put that party at the mercy of the other's negligence .........................................................................................................................31 c) when the transaction involves the public interest .............................................................31
XI. Vicarious Liabiltiy ..................................................................................31 NOTE: his liability rests upon a special relationship btw the tortfeasor and the person to whom his tortious conduct is ultimately imputed. ......................31
NOTE: Employer is directly liable for acting tortiously. ........................................................31 Respondeat Superior is one type of vicarious liability of an employer for the negligence of the employee in the course and scope of employment. (includes frolics) .........................31 Frolic (662). Substantial deviation for personal business (no longer within the scope of employement.) Factors to consider: .................................................................................31 employee's intent .................................................................................................................31 Time, nature, and place of deviation ....................................................................................31
time consumed in deviation .......................................................................31 work for which employee was hired ............................................................31 were incidental acts reasonably expected by employer? ..............................31 the freedom allowed to the employee in performing his duties ....................31
EXCEPTIONS .........................................................................................................................31 Coming and Going Rule: The daily commute to and from work is not within the scope of respondeat superior. .........................................................................................................31 Independent Contractor .......................................................................................................32 1. Generally, no liability .........................................................................................................32 2. ON EXAM, argue both by using the test for Independent Contractor vs. Employee: "The right to control the physical details of the work". . . then apply facts. ..............................32 3. Non-delegable duties (responsibilities that the courts will not permit to be delegated to an independent contractor): ..................................................................................................32 4. Apparent Authority ............................................................................................................32
XII. Strict Liability.......................................................................................33
A. Prima facie case:............................................................................................33 1. The existence of an absolute duty on teh amrt of the to make safe;.............................33 2. Breach................................................................................................................................33 3. Which was the actual and proximate cause of the 's injury; AND.....................................33 4. Damage to the 's person or property...............................................................................33 B. Animals..........................................................................................................33 1. Trespassing animals the owner is strictly liable for damage done by his trespassing animlas as long as it was reasonably foreseeable..............................................................33 C. Personal Injuries.............................................................................................33 1. Wild animals strict liabiltiy...............................................................................................33
5 of 82

2. 3. d) e) f)
6 of 82
Domestic animals if owner has knowledge of an animal's dangerous propensities.........33 Persons Protected..............................................................................................................33 Licensees and Inviteed landownerstrictly liable..............................................................33 Except where a landowner is under a public duty to keep the animals (like a zoo)...........33 Trespasser must prove negligence (vicious watchdogs are an exception bc danger is foreseeable).......................................................................................................................33 4. Ultrahazardous activities (substantial risk of serious bodily harm)....................................33 g) Duty limited to Normally Dangerous Propensity............................................................33
XIII. Defamation..........................................................................................33 XIV. Invasion of privacy...............................................................................36 XV. Products Liability .................................................................................37

The liability of a supplier of a product to one injured by the product. There are 5 theories of liability that a P may use: Intent, Negligence, Strict Liability, Implied Warranties, Representation Theories....................................................................................................37 The approaches to determining defect in design fall into four general categories: (745) .............................................................................................................37 Negligence risk/utility analysis, but focuses on whether the manufacturer would be judged negligent if it had known of the product's dangerous condition at the time it was marketed. (LH) .................................................................................................................37 Compares the risk and utility of the product at the time of trial ..........................................37 Consumer expectations about the product (lawn darts would pass this test) ......................37 Combo of 2 & 3.....................................................................................................................37 NOTE: Consensus is to use Risk-Utility Analysis. See O'Brien Factors..................37 Types of Defects................................................................................................38 A. Intentional.....................................................................................................38 B. Negligence (MacPherson) (719) ......................................................................38 C. Strict Liability in Tort (Greenman, 732) ...........................................................39 1. Prove that it happened while you were using it as it was intended to be used. Then show {CIF/PC/Damages } ..................................................................................................39 2. prima facie case: (1) a strict duty owed by a commercial supplier (to supply safe products) owed by a commercial supplier of a product (2) breach of that duty, (3) CIF and PC and (4) damage.............................................................................................................39 3. LEMMON: In practice, this is the same kind of Hand test balancing that would occur if the cause of action were based on negligence. The difference is that the focus is on the product and not on the conduct of the manufacturer. Thus, in theory, it does not matter whether the manufacturers design choice was objectively reasonable at the time it was made if the trier of fact concludes that the product could have been designed to be safer (and thus have prevented Ps injury) without incurring unreasonable additional costs.....39 4. REST 402A:......................................................................................................................39 D. Implied warranties (726) ................................................................................39 4. Express Warranty and Misrepresentation (Baxter, 722) : Representations by a manufacturer whose falsehoods cannot be readily detected by a buyer are liable regardless of privity of K. ..................................................................................................40 E. Manufacturer's Defect ....................................................................................40 F. Design Defect ................................................................................................40 1. 746, "A verdict in favor of the P in a design defect case is the same as a determination that an entire product line is defective." ...........................................................................40 2. Elements: (1) the product was defective, (2) the defect existed when the product left the
6 of 82
7 of 82
D, (3) the defect caused injury to a reasonably foreseeable user. ....................................40 3. State of the Art: .................................................................................................................40 G. Warnings Defect ............................................................................................40 1. A product may be defective as a result of the manufacturer's failure to give adequate warnings as to the risks involved in using the product. For liability to attach, the danger must not be apparent to users. .........................................................................................40 2. 759, The rules of strict liability require a P to prove only that the D did not adequately warn of a particular risk that was known or knowable in light of the generally recognized and prevailing best scientific and medical knowledge available at the time of manufacture and distribution. ................................................................................................................40 EXAM ....................................................................................................................................40 (1) IF Manufacturing Defect action ........................................................................................40 (2) IF Design Defect action ....................................................................................................40
XVI. Nuisance..............................................................................................41 XVII. STRICT PRODUCTS LIABILITY ESSAY OUTLINE.......................................56
PRACTICE EXAM.....................................................................................................................46
A. Prima Facie Case............................................................................................56 1. Strict Duty..........................................................................................................................56 2. Breach of Strict Duty .........................................................................................................56 3. Causation: Whether the defect caused harm to persons or property is determined by the prevailing rules and principles governing causation in tort. 15.......................................57 4. Damages ...........................................................................................................................57 c) Economic: Earl may recover hard costs, including doctor and hospital bills, medication costs, and lost wages.........................................................................................................57 d) Noneconomic: Earl may also recover soft costs, such as pain and suffering.....................57 B. Defenses Comparative Negligence...................................................................57 1. Under 123.456, in a strict products liability action any contributory fault chargeable to the claimant diminishes proportionately the amount awarded as economic and noneconomic damages for an injury attributable to the claimants contributory fault but does not bar recovery........................................................................................................57 2. Thus, the statute imposes a pure comparative negligence standard.................................57 3. The question is whether Earl may be charged with pure (or possibly qualified) secondary implied assumption of the risk (which is a form of comparative negligence):....................57 A. Prima Facie Case............................................................................................57 1. Duty...................................................................................................................................57 2. Breach ...............................................................................................................................57 3. Causation: See the discussion of causation in the strict liability section above.................57 4. Damages: See the discussion of damages in the strict liability section above...................57 B. Defenses: See the discussion of defenses in the strict liability section above.....57 A. Restatement (2d) of Torts 558.......................................................................58 1. False and defamatory statement,......................................................................................58 2. Concerning another,...........................................................................................................58 3. Unprivileged publication to a third party,...........................................................................58 4. Requisite level of fault, and................................................................................................58 5. Requisite harm to the plaintiff. .........................................................................................58 B. Defamatory Language.....................................................................................58
XVIII. NEGLIGENCE Essay OUTLINE after STRICT LIABILITY..............................57
XIX. DEFAMATION ESSAY OUTLINE................................................................58
7 of 82
8 of 82
1. Determination of Defamatory Content...............................................................................58 2. Libel Per Se v. Libel Per Quod.............................................................................................58 3. Plaintiff as Defamation-Proof..............................................................................................58 4. Of or Concerning the Plaintiff ............................................................................................58 5. Publication..........................................................................................................................58 6. Damage to the Plaintiffs Reputation..................................................................................59 7. Fault...................................................................................................................................59 (i) Some cases have given at least privacy protection to start a new life........................59 (ii) However, once gained, public figure status usually cannot be lost...................................59 8. Falsity.................................................................................................................................61 9. Defenses............................................................................................................................61
XX. INVASION OF PRIVACY...........................................................................61
A. Intrusion on Seclusion (Pearson v. Dodd) (text p. 944))....................................61 1. Elements............................................................................................................................61 2. Conclusion: Because there is no physical intrusion, Britdonna does not have a viable cause of action for intrusion on seclusion....................................................................................61 B. Publication of Private Facts.............................................................................61 1. Publication of Private Information: Query whether the press release statements concern private facts:......................................................................................................................61 2. Objectionable to a Reasonable Person: If a reasonable person would object to its publication.........................................................................................................................61 3. Fault ..................................................................................................................................61 4. Causation...........................................................................................................................62 C. False Light (Cantrell v. Forest City Publishing Co. (text p. 958) (news story falsely portrayed young widow and mother as being financially destitute))...................62 1. Publication of Facts:...........................................................................................................62 2. Placing the Plaintiff in a False Light Objectionable to a Reasonable Person.......................62 3. Malice ................................................................................................................................62 4. Causation...........................................................................................................................62 5. Conclusion: Britdonna should prevail on a cause of action for false light...........................62 D. Commercial Misappropriation .........................................................................62 1. Unauthorized Use of the Plaintiffs Name or Likeness:.......................................................62 2. For the Defendants Commercial Advantage: ....................................................................62 3. Malice: Actual malice is not required. ................................................................................62 4. Compensatory Damages....................................................................................................62 5. Punitive Damages: If Britdonna shows actual malice (see the discussion above), she may recover punitive damages..................................................................................................62 6. Conclusion: Britdonna may maintain a cause of action for commercial misappropriation. 62 E. Defenses to Privacy Actions.............................................................................62 1. Consent: ............................................................................................................................62 2. Absolute and Qualified Privilege: The facts do not present either an absolute or a qualified privilege.............................................................................................................................62 3. Truth...................................................................................................................................62 A. Intentional Infliction.......................................................................................62 1. Extreme and Outrageous Conduct.....................................................................................62 2. Severe Emotional Distress..................................................................................................63 3. Causation: Prove the requisite level of conduct that will have caused her distress...........63 4. Conclusion: So long as she can prove malice and severe emotional distress (as manifested
XXI. INFLICTION OF EMOTIONAL DISTRESS....................................................62
8 of 82
9 of 82
in her hives), she will prevail on a claim for intentional infliction.......................................63 B. Negligent Infliction (bonus cause)...................................................................63 1. Duty to Not Inflict Emotional Distress on Another: ............................................................63 2. Breach: ..............................................................................................................................63 3. Causation...........................................................................................................................63 4. Damages:...........................................................................................................................63 5. Impact................................................................................................................................63 6. Manifestation......................................................................................................................63 7. Conclusion: Unless physical impact is required, she may maintain a cause of action for negligent infliction..............................................................................................................63
9 of 82
Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010 I. Intentional Torts Volitional Act (not while sleeping)
10 of 82
Intent 1. Either that the defendant desires or is substantially certain the elements of the tort will occur. 2. Specific intent: having this purpose, OR 3. General intent: a reasonable person would be substantially certain that their actions would bring about the result 4. Absolute liability: foreseeable causation in ultra-hazardous activities such as (i) blasting or (ii) wild animal Causation The defendant's voluntary action must be the direct or indirect legal cause of the harmful or offensive contact. However, defendant need not herself actually contact the victim. Harmful or Offensive Contact By ordinary person standard - Wallace - fire drill case Apprehension 1. Expectation of 2. Imminent contact; 3. Fear not required but 4. Apparent ability is required (question for jury - Western Union) Person More than just the body, argue reasonable violation of dignity Tuning: 1. NOTE: neither insanity (McGuire) nor infancy (Garratt ) is a defense for an intentional tort. However, intent is subjective and requires that the defendant actually desires or be substantially certain the elements of the tort will occur. Consequently, if the defendant is extremely mentally impaired or very young, she may not actually possess the requisite intent. 2. Under the mistake doctrine, if a defendant intends to do acts which would constitute a tort, it is no defense that the defendant mistakes, even reasonably, the identity of the property or person he acts upon or believes incorrectly there is a privilege- Ranson 3. Under the transferred intent doctrine, accepted by many courts, intent can be transferred between five torts (battery, assault, false imprisonment, trespass to chattel, and trespass to land) and different victims within these five torts. Talmage 4. The Restatement does not adopt the doctrine generally, but does endorse transferred intent between assault and battery. 5. voluntary intoxication does not mitigate intent A. BATTERY 1. 2. 3. 4. Volitional act Intended to cause Harmful or offensive contact, OR Apprehension of harmful or offensive contact
10 of 82
11 of 82
5. With the Plaintiff's person, AND a. Things attached to P, in P's possession, or in which P is located (e.g. a car)- Fisher 6. Which causes the harmful or offensive contact B. ASSAULT 1. Volitional act 2. Intended to cause 3. Harmful or offensive contact, OR 4. Apprehension of harmful or offensive contact (For assault to be actionable the victim's apprehension must be of imminent harmful or offensive contact.) 5. With the Plaintiff's person, AND Things attached to P, in P's possession, or in which P is located (e.g. a car)- Fisher 6. Which causes apprehension of harmful or offensive contact w/ P's person C. FALSE IMPRISONMENT 1. Volitional act 2. Intended to cause 3. P to be restricted or confined to a bounded area (The victim must be confined within an area bounded in all directions. The bounded area can be, however, a large area, even an entire city.) Fine Tuning: i. How big an area? We don't know ii. The confinement may be accomplished by (1) physical barriers; (2) force or threat of immediate force against the victim, the victim's family or others in her immediate presence, or the victim's property; (3) omission where the defendant has a legal duty to act; or (4) improper assertion of legal authority. iii. Physical restraint not necessary iv. There must be no apparent escape or risk of harm in escape v. Usually against will but not required if P confined w/o knowledge but injured 4. AND which causes P to be restricted or confined to a bounded area Fine Tuning: i. P must be aware (implies against will b/c consent is a defense, but against will is not required for the reason stated above) 1. The Restatement 42 modifies this requirement and would find liability for false imprisonment, even when the victim is not aware of the confinement, if the victim is harmed by the confinement. Contrary to the Restatement, some authorities hold a child can be subject to false imprisonment even if the child was neither aware of the confinement nor harmed. ii. OR (in some states and under Restatement) P must be harmed iii. D responsible for all harm caused, even if unforeseeable iv. If injured escaping, no FI, but other c/a (maybe battery or negligence p. 42 note 6) D. >>>>> Paradigm Shift to Emotions from Dignity <<<<<< E. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS The Restatement defines extreme and outrageous conduct as behavior which is beyond all possible bounds of decency and to be regarded as atrocious, and utterly intolerable in a civilized community. [Restatement 46 cmt. d.] The vulnerability of the victim and the relationship of the defendant to the victim can be critical.
11 of 82
12 of 82
Volitional act OR Series of Acts Intentional (purpose) OR Reckless (substantial certainty - Harris) Extreme AND Outrageous Fine Tuning: 1. "So outrageous in character, so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society" Harris 2. Character of victim is a factor in this determination (pregnant woman or old lady) - Harris 3. Threats of future physical violence might be sufficient - Siliznoff 4. Threat or harm to a family member in the presence of P might be sufficient 5. If not a relative, it must be shocking (Rest. requires physical harm) 6. Mishandling of family member's remains??? 7. Common carriers and innkeepers are liable for intentional gross insults which cause patrons to suffer mental distress. Slocum. There is no requirement the defendant behave in an extreme or outrageous manner or that the victim suffer extreme distress. 8. Hustler Magazine v. Falwell, held unconstitutional the determination that a parody advertisement could result in liability under IIED. 9. ROL: A public figure could not recover without proving such statements were made with New York Times malice, i.e., with knowledge or reckless disregard toward the truth or falsity of the assertion. Causation Severe emotional distress 1. A severely disabling emotional response by P 2. Where P has a pre-existing condition it must be exacerbated by an increment that qualifies as severe - Harris (but, see "character of victim" above) II. Privileges - Affirmative Defenses A. CONSENT If the asserted victim gives permission, what would otherwise be tortious is instead privileged. 1. Must be the act of a rational, competent person; 2. Intoxication, insanity, and minority may invalidate consent Fine Tuning a) Scope of consent may not be exceeded - Mohr; Hackbart b) Invalid if obtained by fraud, misrepresentation, or silence concerning a matter as to which there is a duty to disclose - DeMay c) Consent to illegal acts (agreement to fight) MAY OR MAY NOT be a good defense state by state 1. Express consent a) Clear expression of specific consent to the tort by a rational competent D b) Required for medical treatment c) Exceptions in medical emergencies, four prong test:
12 of 82
13 of 82
(1) Patient unable to give consent (2) Risk of serious bodily harm if not treated (3) A reasonable person would give consent (4) Physician has no reason patient would refuse treatment under the circumstances 2. Apparent Consent (1) Behavior communicating or otherwise indicating consent by P to a tort by D (2) Objective, reasonable person standard applied in determining apparent consent based on all the circumstances, including P's silence - O'Brien 3. Implied Consent (1) "Consent" found based on nature of P's activities, such as participation in violent sports (may overlap with apparent consent!) - Hackbart (2) Consent limited to contact or otherwise tortious activity within the safety rules of the sport or activity (3) May be implied based on local usage and custom (4) Violated by INTENTIONAL violation by D of safety rules of sport or activity (5) Good faith of D, good results of contact will not be a basis for court to imply consent - Mohr (6) Will be found if all four factors est'd in medical emergency (see "four prong test" above) 4. Invalidating Consent (1) Incapacity (a) An individual can be held to lack capacity to consent. A child, depending on her age, may consent only to less significant matters (b) An individual without sufficient mental capacity due to insanity or retardation may not legally consent. Incapacity can also be the result of drug ingestion (including alcohol). (2) Action Beyond Scope of Consent (a) What constitutes the dimensions of the consent can often be a different issue of fact. Hackbart (b) Since medical treatment requires consent, the determination of the effective actual consent is critical in this context. A medical procedure without the patient's consent can constitute a battery. Mohr (c) The failure to inform the patient of risks when procuring consent is now, however, usually treated under negligence. (3) Fraud (4) Duress (5) Illegality >>> No difference BTW Apparent & Implied Consent<<< B. SELF DEFENSE In essence, reasonable force can be used where one reasonably believes that such force is necessary to protect oneself from immediate harm. (Anyone may use reasonable force to defend self against a threat of battery)
13 of 82
14 of 82
Fine tuning a) Self-defense must be in response to an immediate threat of harm. b) The victim's response must be reasonable. Force intended to inflict death or serious bodily injury is only justified if the individual reasonably believes she would suffer serious bodily injury or death from the attack. c) No privilege to retaliate d) Privilege present when D reasonably believes use of force in self-defense is necessary, even if D is mistaken e) Insults, etc, no matter how vile, do not create a privilege to use force in self-defense f) No need for D to wait for actual batter to occur before acting in self-defense g) Only such force as is necessary in the circumstances is privileged h) Retreat: (1) not required in one's home. (2) may be required elsewhere (3) majority of states do not require retreat (4) minority require retreat (5) doubts generally resolved in favor of D C. DEFENSE OF OTHERS One may defend another in circumstances in which that person would be privileged to defend himself or herself. Fine tuning (1) A privilege derivative of the other's privilege to defend him or himself (2) Interveners conduct governed by all the same rules as govern victim's in cases of self-defense (3) Mistake: courts are divided (4) The majority view holds there is a privilege to use reasonable force to protect a third party whenever the actor reasonably believes a third party is entitled to exercise self-defense. D. DEFENSE OF PROPERTY One may use reasonable force to prevent the commission of a tort against one's property. Unlike selfdefense, a reasonable mistake will not excuse force that is directed against an innocent party. Fine tuning: a) Deadly force may not be used to protect property - Katko b) Even slight force is unreasonable in defense of property if it is excessive. Consequently, if a verbal request would suffice, no force is justified. c) Force Against an Innocent Party. Force in defense of property is only a defense when it is actually directed at a wrongdoer. A reasonable mistake that an individual has wrongfully interfered with property is not an excuse. d) One may not use a mechanical device to do what one could not do oneself - Katko, Rest. 85 e) No privilege to use force if intrusion onto property is lawful f) Vicious DOGS clear notice of danger. Use of force acceptable.
14 of 82
15 of 82
g) Defense of Habitation. Deadly force or force likely to cause serious bodily harm is not justified unless the intruder threatens the occupants' safety, by committing or intending to commit a dangerous felony on the property. (1) Additionally, the homeowner may not eject a non-threatening trespasser or invited guest when doing so would subject that person to serious physical harm. (2) The traditional common law view, still reflected in the Restatement, but increasingly discredited, would authorize the use of deadly force when needed to prevent mere intrusion into a dwelling E. RECOVERY OF PROPERTY May use non-deadly force to recapture chattel Exception: Shop Keeper's Privilege a) Reasonable belief of theft b) Reasonable means to detain c) For a reasonable time F. NECESSITY Necessity is a defense which allows the defendant to interfere with the property interests of an innocent party in order to avoid a greater injury. The defendant is justified in her behavior because the action minimizes the overall loss. The defense is divided into two categories: public and private necessity. 1. Public Necessity When the D appropriates or injures a private property interest to protect the community. Public necessity is a complete defense. (1) A defense to intentional torts except IIED (2) Property may be destroyed or other, otherwise tortious conduct committed when necessary, or apparently necessary, to prevent greater harm to the community. (3) No compensation is required at CL (4) Rationale is that "this particular property would have been destroyed anyhow." (5) Many states have provided for compensation by statute (6) Principle includes quarantine and other physical restraints that would otherwise be false imprisonment or battery (7) Private property rights are subordinate to the safety of society and the community 2. Private Necessity When the individual appropriates or injures a private property interest to protect a private interest valued greater than the appropriated or injured property. Vincent v. Lake Erie Transportation Co. (1) An incomplete defense to trespass to real property (2) Private property may be used or taken in order to avoid a greater harm to persons or other property (3) No legal wrong is committed thereby, therefore owner may not compel user to
15 of 82
16 of 82
desist (4) The user must pay the value of any damage to the property. No punative damages (5) If owner forces user to desist and harm results to user or user's property, owner is liable G. AUTHORITY OF LAW and DISCIPLINE (1) Regulated by statute (2) Many statutory changes, especially wrt parental privilege to discipline (3) Be aware they are out there, but to much based on statute for our attention H. JUSTIFICATION A privilege to commit an act or acts otherwise tortious may arise in various circumstances unanticipated before. III. Negligence Negligence is conduct, which falls below the standard established by law for the protection of others against unreasonable risks of harm. (Restatement 2d 282) To recover for negligence, the plaintiff must establish each of the following elements by a preponderance of the evidence (that is, by more than 50%) Prima facie case: duty, breach of duty, cause-in-fact, proximate cause (scope of liability) and damages. A. The Reasonable Person: The defendant should act as would an ordinary reasonably prudent person in the same or similar circumstances. The reasonable person standard is an objective standard that compares the defendant's conduct to the external standard of a reasonable person. Thus, the law imposes on each person of society an obligation to conform to the objective reasonableness standard. Emergency. (Unforeseen, sudden, unexpected) Nearly all states permit the jury to consider evidence that the defendant was acting under emergency conditions not of the 's making. Does not necessarily exculpate him from liability. Cordas Physical Conditions. As a general principle, the jury in the breach determination may take the 's own physical qualities into account. Sometimes the physical condition of the party requires the use of greater care. Disability standard is of reasonable person w/ that disability - Roberts Mental Conditions. Most courts treat mental conditions as wholly irrelevant for purposes of negligence liability. The insane are held to a standard of sanity and people with cognitive disabilities are held to a level of normal intelligence. Superior Abilities, Skill or Knowledge. The standard of care does not change for those with
16 of 82
17 of 82
superior skills although the defendant's special skills may affect the jury's breach determination. The reasonable person standard sets the minimum of community expectations, and those able to provide more are expected to do so. The Child Most jurisdictions compare their conduct to other reasonable children of the same age, experience, and intelligence under like circumstances. It is far more subjective than the adult reasonable person standard as it allows the jury to consider the child's specific qualities such as experience and intelligence. Below 4 is unlikely to be held to have the capacity to be negligent. Adult Activities. Many jurisdictions have concluded that children should not be entitled to special treatment when they are engaged in adult or inherently dangerous activities, such as driving a car. Common Carriers are required to exercise a very high degree of care toward their passengers and guests. B. THE STANDARD OF CARE A person is negligent when his or her conduct, given all the circumstances, is determined to fall short of reasonable care (when the foreseeable probability and gravity of the harm outweigh the burden to D of alternative conduct, which would have prevented the harm. (United States v. Carroll Towing Co.)) "Legal duty is not co-extensive with moral duty" Objective Standard: We are all subject to the same standard of care. Vaughan Generally, a standard of care is owed to a foreseeable plaintiff. The unforeseeable plaintiff problem arises when a breaches a duty to 1 and also causes injury to 2, to whom a foreseeable risk might not have been created at the time of the original negligent act. POSSIBLE DISCUSSION OF DUTY OF ANOTHER ORDER So, must discuss Andrews, Cardozos, & Restatements views to determine whether or not a duty exists. Andrews 2 may establish existence of a duty by showing that the has breached a duty he owed to 1. Basically, he owes a duty to anyone who suffers injury as a proximate result of his breach of duty to someone. Cardozo 2 can recover only if she can establish that a reasonable person would have foreseen a risk of injury to her in the circumstances (that she was in the zone of danger).
17 of 82
Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010 Restatement looking back . . . Sources of Standard of Care: 1. legislation 2. regulation 3. case law 4. custom or normal care 5. ordinary, prudent person rule
18 of 82
Learned Hand Where Duty is hard to find Whether the burden of avoiding the harm is < the probability of that harm occurring X the likely seriousness of the harm if it does occur. The Hand formula was intended to be flexible. The plaintiff and the defendant often will have different views of probability, magnitude, and burden. It is ultimately for the trier of fact to undertake the balancing of these factors in order to assess the reasonableness of the defendant's conduct. NOT A MATHEMATICAL FORMULA Factors relevant in assessing this cost include: The importance or societal value of the activity or goal of which Ds conduct is a part; The utility of the conduct as a means to that end; The feasibility of alternative, safer conduct; The relative cost of safer conduct; The relative utility of safer conduct; The relative safety of alternative conduct. Specific Situations Custom may define standard of care owed (usually through expert testimony) Trimarco. The may try to assert the s deviation from custom as evidence of lack of due care. Conversely, the may try to avoid liability by showing compliance with custom. Duty to Rescue. There is no duty to go to the aid of a person in peril. BUT, a rescuer is a foreseeable as long as the rescue is not wanton. is liable if he negligently puts himself or a 3rd person in peril and the is injured effecting a rescue. Public companies have no inherent duty to private citizens. (Moch Co.) Owners / Occupiers of Land. Split in Jurisdictions. Some now apply normal negligence to all premises cases. Off the premises not on EXAM Trespasser. One who comes onto land without permission or privilege. Undiscovered Trespassers. No duty. Discovered Trespassers. Once discovered, A negative duty arises to take reasonable
18 of 82
19 of 82
efforts to avert injury. Anticipated Trespassers. Same duty as with discovered trespassers. Frequent trespassers on a very limited area of land. (The existence of a well-defined path across teh land was held to be sufficient evidence of frequent trespass (488, #5)). Infant Trespassers. Exercise ordinary care to avoid reasonably foreseeable risk of harm to children caused by artificial conditions on his property. Must show (1) there is a dangerous condition of which the owner is aware, (2) owner knows or should know that young persons frequent the vicinity, (3) the condition is likely to cause injury, (4) expense of remedy is slight. Commonly applied to abandoned cars, lumber piles, sand bins, and elevators Licensee. Generally a social guest, a licensee is a person who enters the property for his own purpose or business not for the landowners benefit. Duty: there is a duty to warn a licensee of dangerous conditions known to the landowner where (1) he knows it creates an unreasonable risk of harm to the licensee, (2) the licensee is unaware of the condition, AND (3) the licensee is unlikely to discover it. No duty to inspect or repair. (may be persons who "drop in" without an invitation): social guests (an incidental service rendered to an occupier does not clothe that social guest as an invitee) persons who enter with nothing more than consent (such as loafers, loiterers, and people who come in to get out of the weather) persons taking short cuts those in search of their children servants or other third persons spectators and sightseers salesmen canvassing at the door of private homes
Invitee. A person who enters the premises in response to an express or implied invitation. This includes places open to the public (museums, churches, airports). Must not exceed the scope of invitation, or they become trespassers. The duty owed is use reasonable and ordinary care in keeping the property safe for the benefit of the invitee. The same duty to licensees + a duty to make reasonable inspections to discover dangerous conditions and repair them. Child licensees, 500, more duty than to an adult Public officials are to be treated, 501-502, 1-5 Lessors. Control begets duty. Standard: The lessor knew or should have known of the risk and he realizes or has reason to realize the unreasonable danger, and the lessee didn't know or have reason to know.
19 of 82
20 of 82
o NEW RULE: Lessor is under a duty to exercise ordinary care in the maintenance of the premises. o The lessor is not the insurer of the safety of his lessees, but only has the duty to take those measures within his power, which can reasonably expected to mitigate the risk of intruders. (the cost may be passed onto the lessee by increasing rent) Lessor to lessee. Lessor is obligated to give warning of existing defects. Effect of lessors covenant to repair. If the lessor reserves the right to enter the premises to make repairs, he is subject to liability for unreasonably dangerous conditions. Voluntary repairs by lessor. Must not make repairs negligently. Admission to the public. Liability for unreasonably dangerous conditions existing at the time he transfers possession. Tenant remains liable to invitees and licensees. Realtors. Duty to disclose. Prenatal Injuries are actionable (duty is owed to a viable fetus. Wrongful Life not recognized where the failure to diagnose a congenital defect or to properly perform a contraceptive procedure does not lead to liability Wrongful Birth or Wrongful Pregnancy. The childs parents to have an action: Either for failure to diagnose the defect (wrongful birth) or for failure to properly perform a contraceptive procedure (wrongful pregnancy). The mother can recover for unwanted labor (Medical expenses + pain and suffering). If the child has a defect, addl medical expenses may be had. Healthy child rearing does not lead to a recovery of child-rearing expenses. Dangerous instruments There is a duty to properly maintain and inspect instruments (If the nature of a thing is such that it is reasonably certain to place life and limb in peril. (McPherson)) Professionals Because of the specialized skill and training needed to be a doctor, lawyer, accountant, architect, or engineer, are held to the objective duty of care of all professionals in the field - Heath. Attorneys are not held to anticipate changes in the law if made in good faith and using reasonable care and diligence - Hodges Medical malpractice need expert testimony Boyce. National rule Morrison. Locality Rule. Modified locality rule (similar community in similar circumstances) is the majority Informed consent (* emergency is defense, * financial benefits should be disclosed as soon as they decided to use the cells) - Regents of the U of CA
20 of 82
Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010 (a) MD failed to inform of risks (b) patient, if informed would have said no (c) undisclosed risks resulting in injury
21 of 82
Negligent Infliction of Emotional Distress. Avoid threats of physical impact that lead to emotional distress or directly causing severe emotional distress that by itself is likely to result in physical symptoms. Requirements to recover: (1) must suffer physical manifestation of injury (2) must be within the zone of danger Rejected by modern law as long as the (i) is closely related to the person injured (ii) was present at the time of the injury, and (iii) personally observed or perceived the event. Duty to Act. Generally, there is no duty to duty to help, supervise, control, warn (see below), or rescue Coming to the Aid. Once you start helping, to aid without negligence. Good Samaritan Statutes. Licensed doctors, nurses, etc. are exempted where they voluntarily help as long as they are not grossly negligent. s Conduct. When the injury is caused by instrumentality under the 's control . . . the must exercise reasonable care not to exacerbate the injury. Special Relationships. See discussion of Common Carriers. Misfeasance Due Care Required where an affirmative act creates or increases an unreasonable risk of harm. Nonfeasance. No Duty for failure take action that would reduce the risk or prevent harm to the P. Control third Persons. There is no duty to prevent a third person from injuring another. However, if the has actual ability and authority to control the third persons action, there is duty to minimize harm . . . by taking positive steps to effect the rescue of a person who is helpless and in a situation of peril, where the D is the master, inviter, or when the injury arises from an instrument within the Ds control. (Ayres) Duty to Warn (Apply Learned Hand Formula to weigh costs of warning). Psychiatrist/patient relationship is not one where the psychiatrist has taken control of a 3rd person; therefore, there is no duty to warn. HOWEVER, one must weigh the following factors to determine control: psychotherapists ability to control the patient publics interest in safety difficulty in forecasting a violent crime patients rights : On Exam: Weigh (a) possibility of too many warnings, (b) damage to the reputation of the patient, and (c) damage to the psychotherapist relationship with protecting the victim.
21 of 82
Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010 6. Negligence PER SE
22 of 82
In certain situations a criminal statute (or administrative regulation or municipal ordinance) may be used to set the standard of care in a negligence case. The non-performance of a legal duty Threshold questions, whether the: o belongs to the class that the statute was intended to protect o 's injury is of a type that the statute was designed to prevent Employees are protector class NOT protected class Exceptions sec. 288A Where compliance would cause more danger Where compliance would be beyond s control When the statute contains its own excuse AND on the facts the statute is violated, the court should treat as violation of negligence per se and send to a jury Zeni
7. Fine Tuning:
a) There IS a duty: (1) There must be privity of K btw parties in order to maintain an action for professional negligence [unless that person is a third party beneficiary.] (Clagett) (2) where atty had notice that client threatened to cause judge serious harm (3) parents of a 13 y.o. who is suicidal at school (4) Physicians may fulfill a duty owed to unidentified third persons by properly informing the patient. (5) for a college to provide anticipated medical assistance to its players at a school sponsored event. (6) Negligent Entrustment. The defendant's liability is premised on supplying a potentially dangerous instrumentality (such as a car or gun) to a person the defendant knows or should know is not fit to handle it. (7) A landlord/tenant relationship may trigger a duty to protect, provided there is enough foreseeability of harm and it is supported by public policy. (8) To protect children from molestation. (a) Particularized foreseeability because spouse has special reason to know. (9) Religious counselor to refer suicidal young man to mental counselor b) There is NO duty: (1) By a school to supervise, control, or rescue. School does not stand in loco parentis. (Hagel) (2) For a store to aid an invitee who is using an instrument that the store is operating without negligence. (Ayres) (3) A enticed B to jump into a trench. B does it and drowns. A made no effort to rescue. (4) A and B drove around to various fast food establishments. When B got jumped, A made no effort to assist.
22 of 82
23 of 82
C. BREACH The 's failure to act as a reasonable person would have under the same or similar circumstances. Where reasonable minds can disagree, the jury decides whether the defendant has breached a duty. 1. P has the burden of proving that D was negligent where the D had notice of the danger a) actual - D is aware b) constructive D knows or should have known (a) Where a slips and falls on the s property, the must show more than the fact that she fell and was injured. Most courts require the to show that the condition on which she slipped existed long enough so that the should have (i) discovered it and (ii) remedied it. Some jurisdictions permit the plaintiff to try to make a case without proof of actual or constructive notice on the part of the defendant. These courts recognize a mode of operation basis for liability by which the plaintiff bases the defendant's liability on the methods used by the defendant to run the business. 2. Res Ipsa Loquitur a) Two part test (a) no direct evidence (b) absent some sort of negligence the event should not have occurred (c) exclusive control of the instrumentality by the b) Fine Tuning: (a) exception to exclusive control is where a team of doctors and nurses all held negligent (deprive them of the opportunity of saying, "it was none of us"); enterprise liability - Ybarra (The court applied RIL as a means of smoking out evidence from the defendants, shifting to them the burden of proof) (b) judge may decide that inference of RIL may or must be drawn by a jury Rest. 328D (c) The Effect and Value of Res Ipsa Loquitur. In the majority of states, upon proof of RIL by the , a jury may elect to infer that the was unreasonable if it so chooses. With RIL, the jury decides whether the was more likely than not at fault. The s evidence of reasonable conduct may be persuasive enough for a jury to conclude that the was probably not at fault. (d) to counter a RIL inference, offer an alternative cause! c) "post hoc ergo propter hoc" D. CAUSATION IN FACT 1. P must show by a preponderance of the evidence, D's act was a substantial factor OR "but for" cause of the injury. (1) causal links standards: (a) "but for" OR "substantial factor" (a) example: the train's speeding was not a substantial factor where it struck a truck because it would have hit the truck even if it were not speeding - Perkins
23 of 82
24 of 82
(b) "more likely than not" (c) decrease in chance of survival is grounds for liability (i) pharmaceuticals - prove that exposure more than doubles the incidents of the disease. (example: 10,000 --> 10 | 10,000 --> 21 | increase >50% therefore cause exists!) (2) Fine tuning: (a) speculation is not enough to establish cause in fact - Gentry (b) expert witness requirements: - Daubert (a) reflect scientific knowledge (b) conform to scientific method (3) multiple acts of negligence (a) where separate acts of negligence combine to produce a single harm, each tortfeasor is responsible for the entire result - Hill (b) where two things join to cause the harm, but only one tortfeasor is known, he is still responsible - Anderson (c) each is presumed liable for the full damages unless he can prove otherwise - Tice (4) if the drug causes injury AND if you cannot link the P to a specific D (a) market share (a) NY: (i) no specified # of D's to sue under market share theory (ii) each D cannot exculpate itself (iii) each D severally liable for % of market share (no joint and several liability) (b) FL: (i) P must file suit against only one D (who may, in turn, implead) (ii) a D can exculpate itself (iii) the burden is on the remaining D's to prove market share (iv) if 100% not accounted for, the P may not collect full damages (b) enterprise (majority) - if you can get everyone before the court E. PROXIMATE CAUSE 1. This is a liability limiter. 2. there is no proximate cause without causation-in-fact 3. foreseeability Dependent Intervening Forces are normal responses or reactions to the situation created by the s negligent act. They are almost always foreseeable. Some common ones are: Subsequent medical malpractice. Negligence of rescuers. Efforts to Protect Person or Property Reaction Forces Subsequent Disease
24 of 82
Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010 Subsequent Accident
25 of 82
Independent Intervening Forces are foreseeable where s negligence increased the risk that these forces would cause harm to the . Such as: Negligent acts of third persons Criminal acts and intentional torts of third persons Acts of God
NOTE: must take the P as you find them physically and mentally - Bartolone
F. DAMAGES IV. Joint Tortfeasors Persons who act in concert to cause injury to the P or act independently but cause a single indivisible injury to the P. joint liability: All parties are liable individually but not for the whole of the act - infers limitations on liability. concerted action: Tortfeasors who act in concert are each jointly and severally liable for the consequences that result from their actions. contributory negligence: Prior to comparative fault, under contributory negligence, a showing of any fault on the s part would have been a full bar to recover not just of the % of fault as in comparative fault. joinder of defendants: P is permitted to add one or as many Ds as is convenient so long as it is from same T/O. If he chooses not to join, Ds may seek indemnity. indivisible injury: If tortfeasors cause to the P the same injury, think of it as indivisible. ROL Entire Controversy Rule: the entire controversy is assumed to be before the court and is judged as such, 361 comparative negligence: affirmative defense which does not completely bar P's recovery. Pure: P recovers regardless of his guilt (even if only 1%) Modified (Statutory) -- 50% cut-off. P recovers unless P's % of negligence > D's neg. P recovers unless P's % of negligence >= D's neg.
25 of 82
Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010 A. Joint and Several Liability 1. Three (3) Circumstances for JSL:
26 of 82
b) Action in concert ("acting pursuant to a common plan") (Bierczynski, drag racing) c) Failure to perform a common duty (Coney, employer for acts of employee et al.) (usually in product liability) d) Independent action by D's leading to indivisible injury 2. Should Joint & Several Liability be abolished in Comparative Negligence Jurisdictions? e) MAJORITY says NO, Coney - JSL is not changed/affected in any way by adoption of comparative negligence f) MINORITY says YES - Fault is a proxy for damages. (Juries generally apportion the same % damages as they do to fault) NOTE: Even a stranger egging on a fight can be liable as a joint tortfeasors. B. Contribution & Indemnity mutually exclusive The relationship btw and among s (nothing to do with 's!) Contribution. Both parties are at fault, and one has already paid. Contribution is not limited to the judgment-debtors of the P. (Knell) Non-immune tortfeasors may not seek contribution or indemnity from those who are immune. HYPO: workers comp claims may trigger immunity because employees have a liability in administrative law, not in Tort. (1) Intentional tortfeasors may NOT seek contribution. (2) There is no contribution in states that have eliminated JSL (3) A joint judgment is not necessary (4) No contribution where one tortfeasor has discharged the claim Indemnity. Assumes there is no real fault as between and even though is legally liable. (1) Only allowed when D is vicariously liable for the wrongful act of another (2) May be contracted around (3) Indemnity is an equitable remedy to prevent unjust enrichment. V. PRO RATA / PRO TANTO EXAMPLES Calculation of judgments (1) M.B.E. => Comparative negligence with JSL (with a settlement) P (10%) v. D1(10%), D2(40%), D3(40%) D2 is broke! $100k verdict P gets $90k from D1,3 Contribution D1:D3 = 1:4 (2) Rest. 2d Torts => Comparative negligence w/o JSL (with a settlement) Facts same as (2) with $100k verdict P entitled to 90%, BUT D1 pays $9k (10% of $90k)
26 of 82
27 of 82
D3 pays $36k (40% of $90k) (3) Settlement (likely NOT a central issue) Concept. Non-settling Ds get a credit for settlement. Either (i) dollar-for-dollar, pro tanto, OR (ii) proportionate, pro rata PLAINTIFF WILL ALWAYS BE 0% in these on exam. . . Example 1: NOTE: Non-settling Ds get a credit (either tanto or rata) Pro rata non-settling Ds get a credit for 40% of $500k P (0%) v. A(10%), B(40%),C(50%) verdict $500k P settles with B for $100k Prior to verdict, B settles for $100k SO A => $30k C => $150k B has already given $100k THEREFORE P gets $280k Pro tanto P (0%) v. A(10%), B(40%),C(50%) Non-settling Ds get credit for actual settlement $500k - $100k = $400k THEN A => $40k C => $200k B has already given $100k THEREFORE P gets $340k Example 2: B settles of $500k pro rata credit = $200k $300k remaining . . . A => $30k C => $150k B has paid $500k P gets $680k!!! pro tanto credit - $500k A, C pay NOTHING!!!
27 of 82
28 of 82
VI. Apportionment of Damages (as between accidents) 1. ON EXAM: Track accidents by date use expert medical testimony to separate out accident 2. RULES: o P keeps the burden of proof when claiming that the 2nd accident aggravated the previous injury from the original accident. (Bruckman) o Where harm is truly indivisible, impose JSL. If combination of harmless chemicals creates harmful one, once the P meets his burden of proof, the burden shifts to the D. (Michie) o Experts demonstrate the cause, and damages are allocated by a jury. (Dillon) o If P dies, calculate liability by time of: conscious suffering, OR life expectancy from time of injury to time of death If P is seriously injured (not killed) then D is liable for potential earning capacity HYPO: Person almost dies by (i) avalanche, (ii) cancer, OR (iii) ship sinking. Under which would damages be reduced? Avalanche = Strong chance Cancer = Moderate chance Ship sinking = Slim chance VII. Pure Economic Loss (Modern tort law is moving towards standards like foreseeability.) The K must be for P's direct benefit. A tort to the person or property of one man does not make the tortfeasor liable to another merely because the inured person was under a K with that other unknown to the doer of the wrong. Those without physical damage are barred from recovering (M/V Testbank)
28 of 82
Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010 VIII. Damages P has burden of proving damages. special damages: subject to objective measurement (lost earnings, medical expenses, etc..
29 of 82
general damages: real, yet hard to measure and fundamentally non-economic (pain and suffering, emotional distress, etc...) 5 cardinal elements (p. 521): 1. Past physical and mental pain 2. Future physical and mental pain (keyed to life expectancy) 3. Future Medical expenses 4. Loss of earning capacity 5. Permanent disability and disfigurement (disfigurement is ALWAYS included in computing damages no matter how small) 6. (536) maybe (a) emotional distress, or (b) loss of enjoyment of life A. Three types: 7. Nominal - small sum of money awarded to the plaintiff in order to vindicate rights, not available in action for negligence 8. Compensatory - to make the plaintiff whole 9. Punitive - additional sum, over and above compensation damages, in order to punish and deter, also not available in action for negligence A. Maximum Recovery Rule: Maximum amount of money an jury could reasonably award. If over the limit, judge can adjust (remittitur). Judge determines the amount that can be reached based on all evidence regarding each element. B. Collateral-source rule - prevents evidence of payments received by an injured party from sources 'collateral' to the wrongdoer, such as private insurance or government benefits. Four exceptions (all of these go towards the credibility of the plaintiff): 1. to rebut the 's testimony that he was compelled by financial necessity to return to work prematurely or to forego additional medical care 2. to show that the plaintiff had attributed his condition to some other cause, such as sickness 3. to impeach the plaintiff's testimony that he or she had paid his medical expenses himself 4. to show that the had actually continued to work instead of being out of work, as claimed C. Loss of consortium - loss of conjugal relations, society, companionship, household services, etc. during the time period that the injured person is recovering or for a permanent loss 1. Non-marital relationships (543): courts are split, but trending to "loss of guidance" D. Doctrine of Unavoidable Consequnces /(545). ROL: P in a personal injury case cannot claim damages for what would otherwise be a permanent injury if the permanency of the injury could have been avoided by submitting to treatment by a physician, including surgery, when a reasonable person would do so under the same circumstances. (D must show that P could've mitigated) IX. Survival / Wrongful Death
29 of 82
30 of 82
Survival: P's own claim that he/she'd be able to pursue had he lived is compensable. Calculated by gap between (injury & death) or (negligent contact/conduct & death) Wrongful Death (types on 569): Pecuniary losses caused by the death of a loved one as outlined by statute. Defenses against deceased: recovery is allowed only to the extent that the deceased could have recovered in the action if he had lived. Thus, for example, his contributory negligence would reduce a wrongful death recovery in comparative negligence states. Defenses against beneficiary: defenses against potential beneficiaries do not bar the action. However, that particular beneficiary recovers nothing and his damages are not to be include by the jury in the total damages assessed. X. Defenses A. Contributory negligence (Do not use it unless stated in the facts): The plaintiff's failure to exercise reasonable and ordinary care and who's conduct is the proximate cause of his/her own injuries constitutes a complete bar to recovery from the defendant. 1. Last clear chance doctrine (NOT used in most comparative negligence jurisdictions): If the plaintiff has the last clear chance to avoid the accident, the defendant will not be liable. Prima Facie case -> Affirmative Defense CtN -> Last Clear Chance (P's Burden) 2. Comparative Fault is the exception to the old rule that morphed into Comparative Negligence Imputed ("hung") Contributory / Comparative Negligence (1) : CtN will not be imputed upon the owner-passenger of a car involved in an accident unless the relationship is one of master/servant (control) OR joint enterprise (profit-driven and other elements above). (2) Rejected in FL bc a passenger can in no way exercise control over the vehicle in which he rides. B. Comparative negligence (default rule): C. Assumption of Risk (two types) - "A voluntary assumption of a known risk" EXAM: a) Define Assumption of Risk: "A voluntary assumption of a known risk" b) Then, ask if it's one of the exceptions which take into account the subject matter of the transaction (1) Express vs. Implied (a) Implied: make an objective case from the facts based on the "risk that an ordinary person would appreciate." (i) IF no available alternative exists, then P hasn't assumed the risk. (look for exceptions such as (1) common carriers and (2) public utilities, (3) where D engaged in intentional, wanton or willful, or reckless conduct, (4) Statutes intended to protect a P unable to protect himself (eg. failure to wear seatbelt may bar recovery - split), (5) fraud, force or an emergency, (6) Statutes explicitly abolishing the defense in limited situations )
30 of 82
31 of 82
(b) Express: "risk assumed by an express agreement" - Look for a K. (i) Difficult to uphold where there is a K of adhesion. (ii) Void and unenforceable in many states NOTE on Express Assumption of a Known Risk - unambiguous exculpatory clauses are generally held to be valid in the absence of legislation to the contrary. Seignur v. National Fitness (she signs a waiver releasing the gym's liability). Public policy did not prevent the parties from contracting as they see fit. However, there are three exceptions where the public interest will render an exculpatory clause unenforceable: a) conduct of the protected party goes beyond negligence or engages in acts of reckless, wanton, or gross negligence b) grossly unequal bargaining power so as to put that party at the mercy of the other's negligence c) when the transaction involves the public interest (2) Page 606, Note F: Yes, because consortium, in this case, is a derivative and any defense that is good against an injured spouse's claim is good against consortium's spouse's claim. XI. Vicarious Liabiltiy "Liability that is derivatively imposed." One person commits a tortious act against a 3rd party, and another person is liable to that 3rd party for this act. NOTE: his liability rests upon a special relationship btw the tortfeasor and the person to whom his tortious conduct is ultimately imputed. NOTE: Employer is directly liable for acting tortiously. Respondeat Superior is one type of vicarious liability of an employer for the negligence of the employee in the course and scope of employment. (includes frolics) Detour: Slight deviation still sufficiently related enough to be in the scope of employment Intentional tortious conduct, UNLESS force/friction is within the scope of employment Frolic (662). Substantial deviation for personal business (no longer within the scope of employement.) Factors to consider: employee's intent Time, nature, and place of deviation time consumed in deviation work for which employee was hired were incidental acts reasonably expected by employer? the freedom allowed to the employee in performing his duties EXCEPTIONS Coming and Going Rule: The daily commute to and from work is not within the scope of respondeat superior. (3) Exception: When an employee endangers others with a risk arising from or related to work. It is determined by a foreseeability test (where in the context of the particular enterprise an employee's conduct is not so unusual or startling
31 of 82
32 of 82
that it would seem unfair to include the loss resulting from it among other costs of the employer's business. ) (a) Ask, "Was the occurrence an generally foreseeable consequence of the activity?" Independent Contractor 1. Generally, no liability 2. ON EXAM, argue both by using the test for Independent Contractor vs. Employee: "The right to control the physical details of the work". . . then apply facts. 3. Non-delegable duties (responsibilities that the courts will not permit to be delegated to an independent contractor): a) the duty of condemning agent to protect a severed parcel from damage b) general contractor to construct a building safely c) exercise due care where the independent contracor is hired to do work that the employer should recognize as necessarily creating an unreasonable risk of bodily harm unless special precautions are taken (a) burned demolition team where debris started a fire d) landowners to maintain property in reasonably safe condition and comply with safety ordinances (a) landlord installed a guardrail e) employers and suppliers to comply with safety provisions of the Labor Code f) Department of Social Services custodial duty g) hospital's duty to provide emergency room care (split) 4. Apparent Authority a) One who expressly or impliedly states that another is his servant or agent may be held liable for the latter's negligent acts to the extent of the statement. b) examples on (672)! Joint Enterprise / Partnership (674) Same as joint venture Elements: (1) agreement (express or implied) among the members of the group, (2) common purpose, (3) profit-driven, (4) equal right to voice/control of the enterprise. Each member of a partnership or joint venture is vicariously liable for teh tortious conduct of another member committed in the scope and course of the affairs of the partnership or joint venture. Bailment ROL: Bailor is not vicariously liable for the tortious conduct of his bailee. negligent entrustment (giving keys to a drunk dude) ROL: Bailor may be liable for his own negligence in entrusting the bailed object ROL: Remedial Statutes are given liberal construction, but where there is a statute in derogation of the CL, the statute shall be interpreted strictly.
32 of 82
Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010 XII. Strict Liability A. Prima facie case: 1. The existence of an absolute duty on teh amrt of the to make safe; 2. Breach 3. Which was the actual and proximate cause of the 's injury; AND 4. Damage to the 's person or property. B. Animals
33 of 82
1. Trespassing animals the owner is strictly liable for damage done by his trespassing animlas as long as it was reasonably foreseeable. C. Personal Injuries. 1. Wild animals strict liabiltiy 2. Domestic animals if owner has knowledge of an animal's dangerous propensities. 3. Persons Protected d) Licensees and Inviteed landownerstrictly liable e) Except where a landowner is under a public duty to keep the animals (like a zoo) f) Trespasser must prove negligence (vicious watchdogs are an exception bc danger is foreseeable) 4. Ultrahazardous activities (substantial risk of serious bodily harm) g) Duty limited to Normally Dangerous Propensity XIII. Defamation Prima facie: (1) Defamatory language (substantially true) on the part of the , which (2) must be of or concerning the (identifiable by a reasonable reader, listener, or viewer); (3) publication of the defamatory language by the to a 3rd person; (4) damage to the reputation of the . Where the is a public figure, must prove (5) falsity AND (6) fault. (867) Goertz, when a private P sues a media D for defamation, there are 2 constitutionally acceptable options for structuring their c/a (the standard of care): (1) protect the media D more by requiring the P to prove constitutional malice (knew or was recklessly indifferent to the falsity of the statement), OR (2) IN FRANKLIN: protect the media D less by allowing the P to recover on negligence EITHER WAY, the P must prove the statement was false (opposite of the CL rule where the D must prove as an affirmative defense that it is true) EXAM Private P v media D - negligence, P must prove the statement was false ( Public P v media D - constitutional malice, P must prove the statement was false (
33 of 82
Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010 public official has expanded even to people who come into the public eye involuntarily e.g. britney spears Athletes Elected or appointed official Nationally syndicated columnist Anyone in a prominent position who is like a celebrity Private P Defamatory statement Of or concerning Damages Statement was false Media D was negligent Public P Defamatory statement Of or concerning Damages Statement was false Constitutional malice Also consider IIED. Affirmative defenses
34 of 82
o Consent o Truth o Absolute Privilege Judicial, Legislative, or Executive proceedings, Compelled broadcast or publication, and Communication between spouses. o Qualified Privilege Reports of public proceedings, Public interest (statements made to a parole board about a prisoner by one who opposes his release), Fair comment and criticism, Interest of publisher (when the statement is made to defend ones own actions), Interest of recipient(like a statement made by a former employer to a prospective employer), Common interest between publisher and recipient (statements between board members), Mitigating factors (no actual malice, retraction, anger). (1) Defamatory language Inducement and innuendo also actionable if it is defamatory only by adding additional facts. Methods. Pictures, satire, drama, etc. . .
34 of 82
35 of 82
Statements of opinion are defamatory if (1) it appears to be based on specific facts and (2) an express allegation of those facts would be defamatory. E.g. I dont think John can be trusted with a key to the cash register. (2) Of or Concerning the . a reasonable reader, listener, or viewer would understand that the defamatory statement referred to the . Group Defamation. Limit ~25. All members of a small group. Each may establish this element by alleging he is a member of the group. All members of a large group. No member can establish the c/a. Some members of a small group. If a reasonable person would view the language as referring to the (3) Publication is communication to a 3rd person who understood it. May be made intentionally or negligently. It is no defense that had no idea that existed. Repetition each repetition is a separate act for which the may be held liable. Single Publication : all copies of a book or newspaper are treated as one publication. Who is liable? Primary publisher each individual. Republisher. Look for an increase in defamation. Secondary publishers knows or should have known. (4) Damage to s reputation. General and special allowed. Libel is a defamatory statement recorded in writing or some other permanent form (like radio or tv in some circumstances). General damages presumed. libel per se libel on its face therefore actionable without proof of special damages. libel per quod requires additional facts to establish defamatory content. Proof of pecial damages generally required. Slander is spoken defamation that lacks the permanency, broadness and premeditation of libel. Special damages usually required.
35 of 82
36 of 82
Slander per se injury is assumed for the following categories: Business or profession. A defamatory statement adversely reflecting a s abilities in his business, trade, or profession. Loathsome Disease. Historically has been limited to STDs and leprosy Crime involving Moral Turpitude. Allegation that someone committed larceny, assault, a married man had a mistress, etc. . . Unchastity of a Woman. Biracial. (5) Falsity. At common law, a statement is presumed to be false. Now, must prove that it is false. (6) Fault. For public officials and figures, a showing of constitutional malice is required. Public s Malice is (1) knowledge that the statement was false or (2) reckless disregard as to its truth or falsity. Reckless conduct is judged by a subjective standard, where spite is not enough. Deliberate alteration of a quotation attributed to a public figure that materially changes the meaning conveyed by the statemetnt is malice. Private s not subject to constitutional limitations unless the defamatory statement involves a matter of public concern. Matters of Public Concern at lease negligence is required Matters of Purely Private Concern No constitutional limitations
XIV. Invasion of privacy 940. This is the right to protection against unreasonable interferences with an individuals solitude. It has grown to include protection of a persons personality as well as protection against interference with solitude. It is a personal right and does not extend to the persons family or to corporations. Four kinds of wrong are acknowledged: Was there reasonable expectation of privacy in this place or in this communication? 1 Appropriation (peeping tom uses for business) 2 Intrusion upon affairs or seclusion (eavesdropper, peeping tom) 3 Publication of facts placing in a false light; and (what peeping tom reveals) 4 Public disclosure of private facts (intimate details of personal life to which particular scrutiny is unwanted such as illegitimate children, financial situation, etc. . .) (peeping tom adds a title to the image) Individual thoughts vs. communities awareness
36 of 82
37 of 82
Privacy > false light > defamation Appropriation. Unauthorized use by of s picture or name for s commercial advantage. Intrusion. (1) act of prying or intruding on the affairs or seclusion of the by the ; (2) the intrusion is something that would be objectionable to a reasonable person; AND (3) the thing to which there is an intrusion or prying is private. False Light. (1) Publication of facts about by placing in a false light in the public eye; (2) the false light is something that would be objectionable to a reasonable person under the circumstances; AND (3) malice on the part of the where the published matter is in the public interest. A doctored photo that creates a false impression that I have done, said or believed things that I have not done, said or believed. True + True can = False. Public disclosure of private facts about the . (1) Publication or public disclosure of private information about the ; AND (2) the matter made public is such that a reasonable person would object to having made public. Proximate Causation. No need to prove Special Damages Defenses Consent Same as defamation qualified and absolute First Amendment Newsworthiness is a defense as a reflection of public interest vs. a reflection of what the public is interested in. XV. Products Liability The liability of a supplier of a product to one injured by the product. There are 5 theories of liability that a P may use: Intent, Negligence, Strict Liability, Implied Warranties, Representation Theories Defective. A condition that is unreasonably dangerous to users. The approaches to determining defect in design fall into four general categories: (745) Negligence risk/utility analysis, but focuses on whether the manufacturer would be judged negligent if it had known of the product's dangerous condition at the time it was marketed. (LH) Compares the risk and utility of the product at the time of trial Consumer expectations about the product (lawn darts would pass this test) Combo of 2 & 3 NOTE: Consensus is to use Risk-Utility Analysis. See O'Brien Factors
37 of 82
Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010 Types of Defects
38 of 82
Manufacturing Defects. When a product emerges from a manufacturing process different and more dangerous than if it had been made the way it should have been. Design Defects. When all the products are identical according to specifications, but are dangerous. The entire like may be found to be defective because of poor design. Warnings Defects. A type of design defect where the product does not have clear and complete warnings. A. Intentional Tort Involved. Will most likely be battery. Privity not required. Damages. In addition to compensatory damages, punitive damages are available the same as they would be with intentional torts in general. Defenses. The usual intentional tort defenses. B. Negligence (MacPherson) (719) Duty. Duty of care arises when the engages in the conduct associated with being a commercial supplier of products. Privty not required. : (1) Reasonably expected to be dangerous if negligently made and (2) it is foreseeable that the product would be used by those other than the original purchaser, as duty of care exists Breach. Must show (1) negligent conduct by the leading to (2) the supplying of a defective product. Negligence In Manufacturing Defect: Maybe invoke res ipsa. In Design Defect: Show that those designing it knew or should have known of enough facts to put a reasonable manufacturer on notice about the dangers of marketing the product as designed. Defective Product. See discussion of whether product is unreasonably dangerous. Causation and Proximate Cause discussion is the same as normal. Damages are personal injury as usual for negligence Defenses standard negligence defenses.
38 of 82
Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010 C. Strict Liability in Tort (Greenman, 732) 1. Prove that it happened while you were using it as it was intended to be used. Then show {CIF/PC/Damages }
39 of 82
2. prima facie case: (1) a strict duty owed by a commercial supplier (to supply safe products) owed by a commercial supplier of a product (2) breach of that duty, (3) CIF and PC and (4) damage Duty Must be a commercial supplier Product not substantially altered. Privity not required Breach. Prove that hte product was unreasonably dangerous. See EXAM notes to make case for strict liability in tort. 3. LEMMON: In practice, this is the same kind of Hand test balancing that would occur if the cause of action were based on negligence. The difference is that the focus is on the product and not on the conduct of the manufacturer. Thus, in theory, it does not matter whether the manufacturers design choice was objectively reasonable at the time it was made if the trier of fact concludes that the product could have been designed to be safer (and thus have prevented Ps injury) without incurring unreasonable additional costs. 4. REST 402A: (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller. D. Implied warranties (726) 1. Merchantability: If the thing is sold reasonably fit for the purpose for which it was manufactured and sold. It cannot be disclaimed/waived. 2. Fitness for a Particular Purpose: Seller knows or has reason to know the particular purpose for which the goods are required and that the buyer is relying on the seller's skill and judgment in selecting the goods. 3. Warranties extend to bailments, leases, and sales.
39 of 82
40 of 82
4. Express Warranty and Misrepresentation (Baxter, 722) : Representations by a manufacturer whose falsehoods cannot be readily detected by a buyer are liable regardless of privity of K. E. Manufacturer's Defect F. Design Defect 1. 746, "A verdict in favor of the P in a design defect case is the same as a determination that an entire product line is defective." 2. Elements: (1) the product was defective, (2) the defect existed when the product left the D, (3) the defect caused injury to a reasonably foreseeable user. 3. State of the Art: G. Warnings Defect 1. A product may be defective as a result of the manufacturer's failure to give adequate warnings as to the risks involved in using the product. For liability to attach, the danger must not be apparent to users. 2. 759, The rules of strict liability require a P to prove only that the D did not adequately warn of a particular risk that was known or knowable in light of the generally recognized and prevailing best scientific and medical knowledge available at the time of manufacture and distribution. EXAM (1) IF Manufacturing Defect action (a) (1st c/a) Negligence (which goes to conduct) (a) Duty to make ___ that doesn't break (b) Breach - it broke - maybe res ipsa (c) Cause in fact (d) PC (e) Damage (remember consortium) (b) "Breach of Warranty and Negligence require proof of the same elements and use of identical evidence" (c) Negligence (conduct) and Strict Liabiltiy (product) will have different evidence (d) (2nd c/a) Strict Liability (which goes to product) (a) Prove: (i) D made product (ii) product was defective (USE AN EXEMPLAR for comparison) (iii) Defect existed when it left D's control (iv) {CIF/PC/Damages } Stated above (2) IF Design Defect action (a) (1st c/a) Negligence (a) Duty - to design this safely (b) Breach - it broke (c) Proof - exemplar (replicate the accident with an exemplar, which will also be defective) (d) CIF but for, substantial factor, autopsy (e) PC - foreseeable (f) Damages (b) (2nd c/a) Strict Liability in Tort (a) Prove:
40 of 82
Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010 (i) D made/designed product (ii) it was defective. RISK/UTILITY O'Brien Factors:
41 of 82
Usefulness and desirability of the product - its utility to the user and tot he public as a whole. Safety aspect of the product - the likelihood that it will cause injury, and the probable seriousness of the injury the availability of a substitute product which would meet the same need and not be unsafe. Think of reasonable alternative design (Seatback manufacturer example from board.) ROL: Most jurisdictions require that P prove an alternative feasible design in order to prove design defect. The manufacturer's ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility (Favors P) the user's ability to avoid danger by the exercise of care in the use of the product (favors D) The user's anticipated awareness of the dangers inherent in the product and their availability, because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions. (could go either P or D) The feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance. (i) defect was present when it left D (ii) {CIF/PCDamages } Stated above XVI. Nuisance sic utere tuo ut alienum non laedas (So use your own property as not to injure your neighbour's). Private Nuisance is a (1) substantial (2) unreasonable (3) interference with anothers use/enjoyment of real property. Substantial and unreasonable are liability limiters. It is the first line of defense against the tragedy of the commons. It is calculated accd to a reasonable person of ordinary sensitivities. Protects possessors of other land. Different than Negligence because here, you just have to show that the interference happened. Foreseeability of harm is a prerequisite of the recovery of damages in private and also public nuisance. Public Nuisance is an act that unreasonably interferes with the health, safety, or property rights of the community. (e.g. blocking a highway, using a building to commit prostitution, bookmaking.) Can be brought by a private person if (1) they suffer particular harm (e.g. they are running and the acid spill splashes on their leg) and (2) there is general harm to the public.
ON EXAM C/A is Trespass, nuisance, absolute liability, and negligence. Intent is knowledge or reason to know. You must prove that the party knew.
41 of 82
42 of 82
Balance of the Community interest vs. individual interest is the balance we will be striking (Carpenter). Community was the utility of the farm. Examples of where Nuisance has been found: Irrational fear of contagion is enough to find nuisance. Irrational responses by the community It is too upsetting to think of death all the time with morgue next door. Smell of formaldehyde is unreasonable. smell from neighbours' pig farm. smells and fumes from candle making invading adjoining land. disturbing neighbours' sleep by noise and vibrations and damage to clothes from acid smuts. allowing tree roots to suck moisture from adjoining soil, thereby causing subsidence. Interference with the support of the land o Lateral (yard slides sideways) If the undeveloped land slides, is strictly liable, OTOH if land that is built on slides down, must prove negligence. o Subjacent (house collapses through the support from the bottom strict liability
Possessor who fails to abate artificial condition. See 839 handout on nuisance. Failure to abate harmful natural condition of land. See 840 handout on nuisance. Location even for a properly managed use, may cause a nuisance. Look for: Fans Floodlights Odors Unusual amount of trash Remedy as a norm of mutual respect (relates to dignity). Actionable ($ damages) vs. Abatable (injunction ask for a consent decree + injunction for enforceability) nuisance (Can be both). Proof of damage is usually necessary. Damages are found by jury, but an injunction = equity = judge decides. Evidence is evaluated in the light most favorable to the judgment. Enforcement is by law enforcement via civil authority. REQUIREMENTS There are only rare examples where a single act has been held to amount to a private nuisance: Foil had blown from the D's land where it was stored and had damaged an electricity substation, causing the electricity to an industrial estate to be cut off. This had occurred once a few years previously because of the way in which the material was stored. The trial judge held this to be a private nuisance. It was held that a firework display constituted a nuisance when it was inevitable that for 1520 minutes debris of a flammable nature would fall upon nearby property, thereby damaging the property in the ensuing fire.
42 of 82
43 of 82
The court will take the following factors into account in assessing the reasonableness or otherwise of the defendant's use of land: The locality Sensitivity of the claimant. The standard of tolerance is that of the 'normal' neighbour. Therefore, abnormally sensitive plaintiffs are unlikely to succeed in their claims for private nuisance. Contrast: The P's claim was for damage to abnormally sensitive paper stored in a cellar, which was affected by heat from adjoining premises. The claim failed because ordinary paper would not have been affected by the temperature. Fumes from the D's factory damaged delicate orchids. As the fumes would have damaged flowers of ordinary sensitivity there was a nuisance. The utility of the defendant's conduct. It will be unlikely for an activity to amount to a nuisance if it is useful for the community as a whole taking into account all the surrounding circumstances, such as locality and the duration of the activities. Contrast: Building work carried out at reasonable times of the day did not amount to a nuisance. A fried-fish shop was a nuisance in the residential part of a street. An injunction would not cause hardship to the D and to the poor people who were his customers. Malice. It is not necessary to establish malicious behaviour on the part of the defendant but it may be regarded as evidence of unreasonableness. Contrast: The P had been giving music lessons in his semi-detached house for several years. The D, irritated by the noise, banged on the walls, shouted, blew whistles and beat tin trays with the malicious intention of annoying his neighbour and spoiling the music lessons. An injunction was granted to restrain the D's behaviour. The P deliberately diverted water flowing through his land, away from his neighbour's property. The P intended to force them to buy his land at an inflated price. It was held that he was committing no legal wrong because no-one has a right to uninterrupted supplies of water which percolates through from adjoining property. The D, motivated by pure spite, deliberately fired guns near the boundary of P's land in order to scare the P's silver foxes during breeding-time. Held to be a nuisance following Christie v Davey. The state of the defendant's land. An occupier must take such steps as are reasonable to prevent or minimize dangers to adjoining land from natural hazards on his land. However, the danger must be patent and not latent for there to be liability.
43 of 82
44 of 82
The NT owned land upon which there was a large mound of earth, which was being gradually eroded by natural processes, and was sliding onto the P's property. It was held that an occupier must take such steps as are reasonable to prevent or minimize dangers to adjoining land from natural hazards on his land. WHO MAY SUE Only a person who has a proprietary interest in the land affected by the nuisance will succeed in a claim, e.g. as owner or reversionary, or be in exclusive possession or occupation of it as tenant or under a license to occupy (but there may be anomalous exceptions). A person who is in exclusive possession of land may sue even though he cannot prove title to it. WHO MAY BE SUED Creator of the nuisance Any person who creates the nuisance can be sued, whether or not that person is the occupier of the land at the time of the action. Occupiers Occupiers who adopt and continue to allow nuisances on their land may also be liable, even if predecessors in title, trespassers or third parties created such nuisances. Landlord A landlord may be liable for nuisances emanating from land, eg if the landlord had knowledge of the nuisance before letting, or where the landlord reserved the right to enter and repair the premises. For example: DEFENCES Prescription If the nuisance has been continued for 20 years without interruption the defendant will not liable if s/he pleads a prescriptive right to the nuisance. Statutory authority There will be a defense to private nuisance if it can be shown that the activities complained of by the claimant were authorized (expressly or impliedly) by a statute. A good example is: Parliament intended a refinery to be constructed. There was a statutory immunity in respect of any nuisance which was an inevitable result. Coming to the nuisance no defense It is no defense to prove that the claimant came to the nuisance. REMEDIES
44 of 82
45 of 82
Injunction An injunction will only be granted at the discretion of the court. For example, an injunction was refused in Miller v Jackson [1977] 3 All ER 338, where a cricket club was liable for the nuisance created by balls being hit out of the ground. An injunction may be interlocutory: Thompson-Schwab v Costaki [1956] 1 All ER 652. Damages In cases of nuisance by encroachment or damage to land, the measure of damages will be the diminution in the value of land; in cases of interference with enjoyment the measure will be the reduction in amenity value (per Lord Lloyd in Hunter v Canary Wharf). The cost of repairs or other remedial works is also recoverable (per Lord Hope). For the date of assessment see Alcoa Minerals v Broderick [2000] 3 WLR 23. Abatement This is the remedy of self-help, eg removing over-hanging tree branches, which are a nuisance. For further details, see Michael A. Jones, Textbook on Torts, p339
45 of 82
Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010 PRACTICE EXAM My Answer: Torts II, 1, Practice Exam Chevrolet (C) John Brantley (JB)
46 of 82
In a products liability case, there are 5 theories of liability intentional, negligence, strict liability, implied warranties, and express warranties/misrepresentation. Here, there is no cause of action in an intentional tort, and in the jurisdiction of Franklin, we do not discuss warranty, so we discuss negligence and strict liability. NOTE: Breach of warranty and negligence require proof of the same elements and use of identical evidence. To establish a prima facie case for strict liability, JB must show (1) a strict duty to make a safe seatbelt by Chevrolet, (2) a breach of that duty while JB was using the seatbelt as it was intended to be used (a defect), (3) that the breach is the causation in fact and (4) the proximate cause of (5) the injury. Because there is no evidence that the seatbelt was faulty beyond its original design, there is not a question here of liability based on a theory of manufacturing defect. Therefore, the analysis begins with design defect. ISSUE Is C liable to JP for a defect in design in (1) negligence or (2) strict liability in tort? 1 Cause of action: Negligence (goes to conduct) Short Answer: YES, C will be held liable in negligence. Rule/Analysis A prima facie case sounding in negligence consists of a (1) duty, which (2) has been breached, (3) the causation in fact and (4) proximate cause of which has (5) injured the plaintiff.
st
DUTY Chevrolet has a duty to design a seatbelt (not just a pelvic restraint as mentioned in the statute) that is safe in the conditions under which it is intended to be used. The seatbelt in question was used by a passenger in a automobile within the scope of an accident. C had a duty in this case to design a seatbelt which shall remain on the pelvis under all conditions, including collision or rollover of the automobile. BREACH The seatbelt did not remain on the pelvis because the facts state that JB submarined under the seat belt as a result of the accident; therefore, there was a breach of the duty. Breach may be alternatively argued under res ipsa loquitur and negligence per se. Under res ipsa, there is no plausible alternative explanation for JBs movement in the collision except that the seatbelt did not hold him in place; therefore, a breach is found. Under negligence per se, the statute states, in pertinent part, in 4.1(b) A seat belt . . . shall be designed to remain on the pelvis under all conditions . . . . Here, the seatbelt failed to remain on JBs pelvis; therefore, the statute has been violated and negligence per se exists. C might try to argue that the seat belt was not within their control at the time of the accident, but the facts do not point to anything which might lead a trier of fact to find that the seat belt was being used in any other way than for which it was intended. CAUSATION IN FACT
46 of 82
47 of 82
But for the failure of the seatbelt to hold JBs pelvis in place, he would not have submarined. But for JBs submarining (sp.) under the seat belt, he would not have collided with the dashboard. But for JBs collision with the dashboard, he would not have suffered the spinal cord injury. In summary, but for the failure of the seat belt to hold JBs pelvis in place, he would not have suffered the spinal cord injury; therefore, the failure of the seat belt to hold JBs pelvis was the cause in fact of JBs injury. PROXIMATE CAUSE The seat belt here is being used to prevent injury to a potential plaintiff in an automobile collision. It is reasonably foreseeable (in fact, expected) that JB would be using this product precisely in this manner; therefore, he is a foreseeable plaintiff. Under Cardozo, the defective seat belt would be the proximate cause of JBs injury because this injury was caused by the defective seat belt to a foreseeable plaintiff, who was wearing it at the time of the collision. Under Justice Andrews less restrictive approach to foreseeability, proximate causation will be found. Thus, under the must less restrictive and logical looking-back in time Restatement approach to the series of events leading to JBs injury, the defective seat belt would be the proximate cause of JBs injuries. DAMAGES The force of the collision caused JB to suffer a spinal cord injury and the paralysis of his right arm. This is the damages. Conclusion C breached its duty to design a seatbelt that is safe in the conditions under which it is intended to be used resulting in injury to JB. Therefore, C shall be liable in negligence to JB. 2nd Cause of action: Strict Liability in Tort (based on the product) Short Answer: YES, C is liable in strict liability in tort Rule/Analysis In this cause of action, a plaintiff must prove that the defendant (1)designed a product (2) that was defective (3) at the time it left the defendants control. It will require different evidence than the cause of action sounding in negligence. DESIGN C designed the automobile and the seatbelt. DEFECTIVE In order to prove this, JB may use an exemplar to show that under the conditions of this accident, the same injury would occur, as confirmed by JBs two mechanical engineering experts. Also, to prove defective, we employ the risk/utility analysis factors: (1) The products usefulness. A seatbelt and an automobile are very useful to JB in order to get from place to place in modern society, and the automobile is useful to society as a whole, for autos are used by millions of people every day for the basics of life such as getting to work and buying groceries. This favors C. (2) Safety of the product. It is very likely that an automobile will cause injury. It is a multi-ton collection of metal moving at over 60 miles an hour. Accidents are inevitable. This favors C. (3) Availability of a substitute. There are no known substitutes to the automobile within a reasonable range of price and feasibility. This favors C.
47 of 82
48 of 82
(4) Manufacturers ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility. Here, the accident could have been avoided, according to the experts, had C installed a three-point shoulder harness lap belt. This seems to be an inexpensive way to have prevented this injury to this potential plaintiff. While there are factors beyond the manufacturers control, installation of the three-point seat belt is inexpensive and would have prevented THIS injury. This strongly favors JB. (5) Users ability to avoid danger by the exercise of care in the use of the product. Here, JB was not in control of the vehicle, and he was wearing the provided seatbelt as expected. This favors JB. (6) Users anticipated awareness of the dangers inherent in the product and their availability. Generally, the public is aware of the dangers of automobiles; however, there is a trust that the public holds of manufacturers that their products will be built to suitable safety standards. One would think that putting on a lap belt would prevent the hips from submarining. This could go either way, but it slightly favors C. (7) The feasibility on the part of C of spreading the loss or carrying liability insurance. It is very easy for C to carry insurance and/or spread the loss in this case. This factor favors JB. Using an exemplar, the defect will be reproduced successfully (according to the experts). Also, under the OBrien risk/utility analysis, C will be found to have defectively designed the seat belt because the simple and inexpensive addition of a shoulder strap would have mitigated the injury this accident caused to this potential plaintiff. DEFECT EXISTED WHEN PRODUCT LEFT MANUFACTURER There is nothing in the facts/evidence to support that the seat belt was altered in any way after leaving the manufacturer. CAUSATION IN FACT / PROXIMATE CAUSE / DAMAGES Stated above. Conclusion C designed an automobile and seat belt which was defective at the time it left Cs control and it was the cause in fact and the proximate cause of JBs injuries; therefore, C is liable in strict liability in tort to JB. Because there is no evidence that the seatbelt was faulty beyond its original design, there is not a question here of liability based on a theory of manufacturing defect. Therefore, the analysis begins with design defect. Concise and to the pointall that needed to be said in regards to manufacturing defect. Chevrolet has a duty to design a seatbelt (not just a pelvic restraint as mentioned in the statute) that is safe in the conditions under which it is intended to be used. I would recommend starting out your discussion on negligence by defining what actually constitutes negligence. Chevrolet is only liable for negligence if they fall below the standard established by the law for the protection of others against unreasonable risks of harm. Chevrolet is not an absolute insurer of their product. Under negligence per se, the statute states, in pertinent part, in s. 4.1(b) A seat belt 4.1(b) wasnt a statute, but rather an industry custom.
48 of 82
49 of 82
It is reasonably foreseeable (in fact, expected) that JB would be using the product precisely in this manner, therefore, he is a foreseeable plaintiff. Good discussion on proximate cause. Here, the accident could have been avoided, according to the experts, had C installed a three point shoulder harness lap belt. You alluded to the relevant fact in this case (three point shoulder harness), but you needed to provide the applicable rule of law. Applicable Rule of Law: Most jurisdictions require that the plaintiff prove an alternative feasible design in order to prove design defect.
Manufacturers ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility. When shaping your analysis always remember to raise compelling counter arguments. You allude to the expert belief that the shoulder harness could have prevented the injury, but you also would have wanted to discuss the fact that a number of factors affect the reaction of a seat-belted passenger to the impact of the collision. The adoption of the shoulder harness and its correlation to the improved safety of the product may not be so clear cut in this case.
Model Answer Strict Liability in Tort-402A: In practice, this is the same kind of Hand test balancing that would occur if the cause of action were based on negligence. The difference is that the focus is on the product and not on the conduct of the manufacturer. Thus, in theory, it does not matter whether the manufacturers design choice was objectively reasonable at the time it was made if the trier of fact concludes that the product could have been designed to be safer (and thus have prevented Ps injury) without incurring unreasonable additional costs. (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bough the product form or entered into any contractual relation with the seller. At present, questions related to design defects and the determination of when a product is defective, because of the nature of its design, appear to be the most agitated and controversial issues before the courts in the field of products liability. (Prentis v. Yale, pg. 744)
49 of 82
50 of 82
The approaches for determination of the meaning of defect in design fall into four general categories. (Prentis v. Yale, pg. 744) The first, usually associated with Dean Wade, employs a negligence risk-utility analysis, but focuses upon whether the manufacturer would be judged negligent if it had known of the products dangerous condition at the time it was marketed. (Prentis v. Yale, pg. 745) The second, associated with Dean Keeton, compares the risk and utility of the product at the time of trial. (Prentis v. Yale, pg. 745) The third focuses on consumer expectations about the product. (Prentis v. Yale, pg. 745) The fourth combines the risk-utility and consumer expectations tests. (Prentis v. Yale, pg. 745) The overwhelming consensus among courts deciding defective design cases is in the use of some form of risk-utility analysis. The risk utility balancing test is merely a detailed version of Judge Learned Hands negligence calculus. (Prentis v. Yale, pg. 745) Some factors relevant in risk-utility analysis are (OBrien v. Muskin Corp., pg. 752-53): (1) The usefulness and desirability of the product-its utility to the user and to the public as a whole.
o 1973 Chevrolet Nova sedan o The utility of an automobile to the public as a whole is undeniable. (2) The safety aspects of the product-the likelihood that it will cause injury, and the probable seriousness of the injury. o A seat belt extending at a 45 degree angle from the horizontal across the pelvis would tend to restrain both upward and forward body movement to some degree, but might not completely prevent an automobile passenger from submarining under the seat belt in a front end collision. o Brantleys experts, two mechanical engineers, testified that a 45 degree seat belt would not provide
50 of 82
Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010 pelvic support or pelvic restraint under the circumstances of this particular accident.
51 of 82
The risk of collisions was foreseeable and the design must reflect that. Today, this view has swept the field.(note 3, pg. 749)(Larsen v. General Motors Corp., 391 F.2d 495) What is germane is the fact that collisions are so frequent and common that they must be considered an unavoidable incidence of the normal and proper use of automobiles. Normally a seller or manufacturer is entitled to anticipate that the product he deals in will be used only for the purpose for which it is manufactured and sold; thus he is expected to reasonably foresee only injuries arising in the course of such use. However, he must also be expected to anticipate the environment which is normal for the use of his product and where, as here, that environment is the home, he must anticipate the reasonably foreseeable risks of the use of his product in such an environment. These are risks are inherent in the proper use for which the product is manufactured. (Turner v. General Motors Corp., 514 S.W. 2d 497) (3) The availability of a substitute product which would meet the same need and not be as unsafe. Most jurisdictions require that the plaintiff prove an alternative feasible design in order to prove design defect. (note 3, pg. 755) o The experts contended that a three point shoulder harness lap belt would have prevented Brantleys injuries. The prevailing authority under Restatement 402A has been that except in circumstances in which defendants product is so frivolous or dangerous or both as to be lacking altogether in utility, a plaintiffs proof of defect must show that there was at the time of the original manufacture of the product some technologically feasible, safer alternative for it. The requirement of showing an alternative practical design can be seen as an element of the risk/utility analysis, in which one factor to be weighed is the manufacturers ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility. (Understanding Torts, pg. 276) A plaintiff must generally prove that the product could have been designed in an alternative manner so as to minimize or eliminate the risk of harm. This burden includes
51 of 82
52 of 82
the duty to prove under a risk-utility analysis the existence of an alternative design that is both practical and feasible. (Truchan v. Nissan Motor Corp., 316 N.J. Super. 554) o Furthermore, testimony illuminated the fact that a number of factors affect the reaction of a seatbelted passenger to the impact of the collision. Some of the factors mentioned were the position of the persons body at the time of impact, the angle of the seat back, the softness of the seat, the material used in the seat construction, the tightness of the belt, the position of the belt in relation to the point at which the seat belt is anchored to the car frame, and the size and shape of the persons body. (4) The manufacturers ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility. No doubt the manufacturers of automobiles could design and build safety harnesses for automobile drivers and passengers of the kind used to prevent injury to those engaged in automobile racing. But it is doubtful that the motoring public would be willing to burden themselves with such restraints. (Hurt v. General Motors Corp., 553 F.2d 1181) No doubt the manufacturers could design and build an automobile with the strength and crash damage resistance features of an M-2 army tank. I believe the average and reasonable automobile user desires only a reasonably safe, economical form of motor transportation. No greater burden of design-performance ought to be imposed upon automobile manufacturers by either judge or jury. (Hurt v. General Motors Corp., 553 F.2d 1181) While all agree that there is no duty to design a crash-proof car, one court has termed it a non sequitur to use this truism as a basis for saying that there is no duty to design a crashworthy car. (Badorek v. General Motors Corp., 11 Cal. App. 3d 902) The court stated that the burden of taking precautions included a consideration of the particular purpose of the vehicle, the style or aesthetic appeal of the model, and the cost of the change and of the vehicle. So viewed, it is obvious that manufacturers are not required to produce the safest possible car, but only a reasonably safe one. (Turner v. General Motors Corp., 514 S.W. 2d 497) For instance, if a change in design would add little to safety, render the vehicle ugly or inappropriate for its particular purpose, or add a small fortune to the purchase price, then a
52 of 82
53 of 82
court should rule as a matter of law that the manufacturer had not created an unreasonable risk of harm. (Turner v. General Motors Corp., 514 S.W. 2d 497) Sec. 402A of the Restatement of Torts does not impose on the manufacturer the duty to design automobiles that are incapable of producing injuries arising from their use for the purpose for which they were intended. The manufacturer is not an insurer against such loss. (Turner v. General Motors Corp., 514 S.W. 2d 497) The unreasonableness of the danger created by the absence of a roll cage on the car in question involves the consideration of many factors, including cost, economy of operation, effect on maneuverability, and appearance. (Turner v. General Motors Corp., 514 S.W. 2d 497) We do agree that under the present state of the art an automobile manufacturer is under no duty to design an accident-proof or fool-proof vehicle or even one that floats on water, but such manufacturer is under a duty to use reasonable care in the design of its vehicle to avoid subjecting the user to an unreasonable risk of injury in the event of a collision. Collisions with or without fault of the user are clearly foreseeable by the manufacturer and are statistically inevitable. (Larsen v. General Motors Corp., 391 F. 2d 495) (5) The users ability to avoid danger by the exercise of care in the use of the product.
(6) The users anticipated awareness of the dangers inherent in the product and their avoidability, because of general public knowledge of the obvious conditions of the product, or of the existence of suitable warnings or instructions. What is germane is the fact that collisions are so frequent and common that they must be considered an unavoidable incidence of the normal and proper use of automobiles. (Turner v. General Motors Corp., 514 S.W. 2d 497) The court found that the real issue was one of intended use and said that the intended use of an automobile necessarily entails the risk of injury producing accidents; such injuries are foreseeable as an incident to the normal and expected use of a car. (Larsen v. General Motors Corp., 391 F 2d. 495)
53 of 82
54 of 82
(7) The feasibility on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance. By implication, risk-utility analysis includes other factors such as the state of the art at the time of the manufacture of the product. The state of the art refers to the existing level of technological expertise and scientific knowledge relevant to a particular industry at the time a product is designed. Compliance with proof of state of the art need not, as a matter of law, compel judgment for a defendant. (OBrien v. Muskin Corp., pg. 753) In brief, state of the art evidence is relevant to, but not necessarily dispositive of, risk utility analysis. That is, a product may embody the state of the art and still fail to satisfy the riskutility equation. (OBrien v. Muskin Corp., pg. 753) A manufacturer may have a duty to make products pursuant to a safer design even if the custom of the industry is not to use that alternative. (OBrien v. Muskin Corp., pg. 753)
o The seat belt worn by Brantley during the accident conformed to the industry guidelines. Damages: 5/5 points o The force of the collision caused Brantley to suffer a spinal cord injury and the paralysis of his right possible arm. Negligence Cause of Action: Duty (2/10 points possible:) Negligence is conduct which falls below the standard established by law for the protection of others against unreasonable risks of harm. (Restatement 2d 282) A person is negligent when his or her conduct, given all the circumstances, is determined to fall short of reasonable care. Chevrolet has duty to avoid unreasonable risk of harm to others. A risk is unreasonable when the foreseeable probability and gravity of the harm outweigh the burden to D of alternative conduct which would have prevented the harm. (United States v. Carroll Towing Co.) The foreseeable probability or likelihood that the harm will result, in conjunction with the gravity or seriousness of the potential harm, are placed on one side of the scale. The gravity of the harm includes both the extent of the damage and the relative societal value of the protected interest. The burden of reducing or eliminating the risk by alternative conduct is placed on the other side of the scale. Factors relevant in assessing this cost include: (1) The importance or societal value of the activity or goal of which Ds conduct is a part; (2) The utility of the conduct as a means to that end; (3) The feasibility of alternative, safer conduct;
54 of 82
Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010 (4) The relative cost of safer conduct; (5) The relative utility of safer conduct; (6) The relative safety of alternative conduct.
55 of 82
In determining whether conduct is negligent, the customary conduct of the community, industry, trade, business, or profession in similar circumstances is relevant but not conclusive. Such evidence might show that a risk is foreseeable, or that D knew or should have known of the risk, that the risk is an unreasonable one unless the customary precaution is taken, or that a particular safety precaution is feasible. Breach (2/5 points possible): See Duty. Causation in Fact (4/5 points possible): Ds conduct need only be a cause of Ps harm. It need not be the sole cause or even the major or most important cause. But where the negligence of the defendant greatly multiplies the chances of accident to the plaintiff, and is of a character naturally leading to its occurrence, the mere possibility that it might have happened without the negligence is not sufficient to break the chain of cause and effect between the negligence and the injury. (Reynolds v. Texas & Pac. Ry. Co.) Proximate Cause (5/5 points possible): Three views-Cardozo, Andrews, Yun/Restatement Satisfied under Cardozo view if injury sustained by plaintiff under the circumstances was foreseeable.
Damages (5/5 points possible): o The force of the collision caused Brantley to suffer a spinal cord injury and the paralysis of his right arm.
55 of 82
Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010 XVII. STRICT PRODUCTS LIABILITY ESSAY OUTLINE A. Prima Facie Case 1. Strict Duty
56 of 82
(a) Party Owing the Strict Duty (2) A strict duty is owed by a party engaged in selling or distributing products. (3) A party sells a product when, in a commercial context, the party transfers ownership thereto for use. (4) Commercial product sellers include, but are not limited to, manufacturers, wholesalers, and retailers. b) To Whom the Duty is Owed The strict duty is owed to a user or consumer of the product and to a foreseeable bystander, without regard to privity of contract. 2. Breach of Strict Duty (a) A party breaches the strict duty by selling or distributing a defective product. (b) A product may be defective in design, manufacture or warning. (c) Manufacturing Defect: (d) Design Defect (i) A design defect exists when the foreseeable risks of harm posed the product could have been reduced or avoided by the adoption of a reasonable alternative design and the omission of the alternative design renders the product not reasonably safe. (ii) Generally, a design defect results in a problem with the entire line. (iii) To determine whether a design defect exists, two tests are commonly used: (e) Consumer Expectations (i) Some courts use the consumer expectations test when the product is a simple
consumer item.
(ii) Under the consumer expectations test, the question is whether the item performs
according to the expectations of the ordinary consumer.
(f) Risk-benefit. The risk-benefit test is used in complex cases, using the following factors: (See Prentis v. Yale Mfg. Co. (text p. 740) (forklift design).) (i) The usefulness and desirability of the product its utility to the user and to the
public as a whole. (ii) The safety aspects of the product the likelihood that it will cause injury, and the probable seriousness of the injury. (iii) The availability of a substitute product that would meet the same need and not be as unsafe. (iv) The manufacturers ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility. (v) The users ability to avoid danger by the exercise of care in the use of the product. (vi) The users anticipated awareness of the dangers inherent in the product and their avoidability, because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions. (vii) The feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance. See OBrien v. Muskin Corp. (text p. 747) (design of swimming pool bottom; this case comes close to product category liability).
(viii) Reasonable Alternative Design (g) For a design defect, the Third Restatement and case law require proof a
56 of 82
57 of 82
reasonable alternative design (RAD). (i) The Rope product did not suffer from a design defect: (h) A defect does not exist under either the consumer expectations or the riskbenefit test. (i) There is no RAD available for The Rope. (j) Proof of Defect: Proof of defect may be made by direct or circumstantial evidence. Friedman v. General Motors Corp. (text p. 766) (defective gearshift). 3. Causation: Whether the defect caused harm to persons or property is determined by the prevailing rules and principles governing causation in tort. 15. (k) Cause in Fact: But-For Test: The but-for test is used for cause in fact when there is one cause or two or more causes, none of which acting alone would have caused the harm in question. (l) Proximate Cause: A cause is a proximate or legal cause if the harm to the plaintiff is foreseeable. 4. Damages c) Economic: Earl may recover hard costs, including doctor and hospital bills, medication costs, and lost wages. d) Noneconomic: Earl may also recover soft costs, such as pain and suffering. B. Defenses Comparative Negligence 1. Under 123.456, in a strict products liability action any contributory fault chargeable to the claimant diminishes proportionately the amount awarded as economic and noneconomic damages for an injury attributable to the claimants contributory fault but does not bar recovery. 2. Thus, the statute imposes a pure comparative negligence standard. 3. The question is whether Earl may be charged with pure (or possibly qualified) secondary implied assumption of the risk (which is a form of comparative negligence): (a) In pure secondary implied assumption of the risk, the plaintiff is aware of a risk that has already been created by the defendants negligence but the plaintiff voluntarily proceeds to encounter the risk. XVIII. NEGLIGENCE Essay OUTLINE after STRICT LIABILITY A. Prima Facie Case 1. Duty (b) Manufacture: Sun Workout, Inc. had a duty to use due care in the manufacture of The Rope. (c) Design: Sun Workout, Inc. had a duty to use due care in the design of The Rope. 2. Breach (d) Manufacture: Suns duty to manufacture with due care was not breached, because, as discussed above, the parties have stipulated that there was no manufacturing defect in The Rope. (e) Design: See the discussion of design defect in the section on strict products liability. 3. Causation: See the discussion of causation in the strict liability section above. 4. Damages: See the discussion of damages in the strict liability section above. B. Defenses: See the discussion of defenses in the strict liability section above.
57 of 82
58 of 82
XIX. DEFAMATION ESSAY OUTLINE A. Restatement (2d) of Torts 558 1. False and defamatory statement, 2. Concerning another, 3. Unprivileged publication to a third party, 4. Requisite level of fault, and 5. Requisite harm to the plaintiff. B. Defamatory Language 1. Determination of Defamatory Content a) In the first instance, the court determines whether the words are capable of a particular interpretation. b) To be defamatory, language must be capable of injuring a reputation, as judged by the ordinary person. 2. Libel Per Se v. Libel Per Quod c) Libel Per Se (1) Libel per se is written/fixed language that is defamatory on its face. (2) Therefore, the statement . . . may be construed as libel per se. d) Libel Per Quod (1) Libel per quod is written/fixed language that is defamatory only through the introduction of extrinsic facts. (2) If the statement I would be delighted to pose nude for him again is not deemed to be defamatory on its face, the following extrinsic facts may be introduced to prove the defamatory nature of the statement: (a) Britdonna has not posed nude on any other occasions. (b) Britdonna states that she would not pose nude now. (c) Britdonna now lives a quiet, matronly life. (3) Therefore, the statement is, at a minimum, libel per quod. (4) Most jurisdictions no longer distinguish between libel per se and libel per quod. 3. Plaintiff as Defamation-Proof e) Language may be deemed non-defamatory if the plaintiffs reputation is already so sullied that the defendants defamatory remarks can do no harm f) However, courts seem reluctant to label a person as truly judgment proof. 4. Of or Concerning the Plaintiff g) Defamatory language must be of or concerning the plaintiff. 5. Publication h) Definition (1) Publication means communication to a third party other than the plaintiff. Economopolous i) Single Publication Rule (1) All copies within one edition are deemed to be a single publication for the purposes of bringing a
58 of 82
Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010 cause of action (dating from the first copy for the purposes of the Statute of Limitations). 6. Damage to the Plaintiffs Reputation
59 of 82
j) General or Presumed Damages: Damages for Libel Per Se (1) At common law, damages are presumed for libel per se. (2) Thus, general damages, in the form of lost friends or humiliation, may be recovered without any proof. (3) However, if a constitutional element is interjected (see below), proof of actual damages will be required. k) Special Damages: Damages for Libel Per Quod (1) For libel per quod, special damages are required, unless the libel could be classified as slander per se if spoken. (2) The press release did not constitute slander per se, because posing nude should not qualify as impugning the chastity of a woman. (3) Therefore, special damages must be proved if the press release constitutes libel per quod. (4) Special damages involve loss of economic benefits, such as loss of job. (5) These damages consist of quantifiable monetary losses, such as loss of customers (due to the injury to the plaintiff's reputation). l) Actual Damages (1) Proof of actual damages is required constitutionally for a private plaintiff suing a media defendant or when a private person is suing in respect to a matter of public concern, when negligence but not malice is proved. See the discussion below. (2) Actual damages include loss of reputation, humiliation, and mental anguish. (3) Actual losses need not be supported by evidence of monetary losses, but they must be supported by introduction of evidence. (4) If proof of actual damages is required, she may satisfy her burden of proof by introducing evidence of the loss of her PTA position. m) Punitive Damages (1) Malice (a) In constitutional cases, generally, punitive damages may be recovered if malice (actual or express) is shown. (b) See the discussion below concerning malice. (2) Common Law (a) In some jurisdictions, some form of malice is required even in non-constitutional cases. (b) However, in some jurisdictions, for a private figure in a private matter, punitive damages may be recovered according to the usual rules for punitive damages according to state law, which usually requires intentional or reckless conduct. 7. Fault n) Level of Fault (1) Public Official/Public Figure (a) Definitions (b) Loss of Public Figure Status (i) Some cases have given at least privacy protection to start a new life. (ii) However, once gained, public figure status usually cannot be lost. (i) Question of Law: Although it depends heavily on the facts, the
59 of 82
Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010 determination of public figure status is a question of law. (c) Malice
60 of 82
(i) When Actual Malice is Required (a) A public figure must show actual malice, regardless of whether the is a member of the media or a matter of public concern is involved. (ii) What Constitutes Actual Malice (a) Actual malice is the knowledge of falsity or the reckless disregard for the truth. (b) Reckless disregard for the truth means that had a high degree of awareness of probable falsity. (c) Reckless disregard has also been defined as that the author in fact entertained serious doubts as to the truth of his publication. (d) Use of Altered Quotations
(i) When actual quotation is involved, actual malice may be found if materially alters the meaning of the quotation by changing words or punctuation.
(iii) Level of Proof Required for Actual Malice: Actual malice must be proved by clear and convincing evidence. (2) Private Figure (a) Private Person v. Media Defendant in Respect to a Matter of Public Concern (i) Negligence is required if the defendant is a member of the media and the matter
is of public concern. Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) (text p. 892). (ii) The minority requires malice for a private person suing a media defendant in respect to a matter of public concern. (iii) Actual damages must be proved, unless the plaintiff shows actual malice. (iv) Query if there is a matter of public concern here
(b) Private Person v. Private Person in Respect to Private Matter (i) Negligence is probably required if the defendant is a private person (at least if the
defamatory statement does not involve a matter of public concern). (ii) The traditional rule was strict liability. (iii) This decision is now primarily a matter of state, not constitutional, law. (iv) Under state, law, the plaintiff will not be limited to actual damages if just negligence is proved -- presumed damages may be recovered in the appropriate case (i.e., slander per se) without a showing of malice. (v) But if the plaintiff does prove malice, then all compensatory losses, presumed or proven, and punitive damages as well, may be recovered according to state law. (vi) A private plaintiff suing a private defendant apparently may recover punitive damages without showing malice, so long as state law requirements for punitive damages are met.
60 of 82
Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010 8. Falsity
61 of 82
o) Public Figures/Officials: The plaintiff has the burden of proof on falsity. p) Private Person v. Media Defendant in Respect to a Matter of Public Concern: The plaintiff has the burden of proof on falsity. 9. Defenses q) Consent: r) Absolute and Qualified Privilege: s) Truth (See Kilian v. Doubleday & Co., Inc. (text p. 841) (article about WWII actions of colonel)). (1) Truth is a defense when a private person sues a private defendant in respect to a matter of private concern. (2) The standard is whether the statement is substantially true. (3) However, some courts find something close to falsity when true or partially true statements are used in a manner designed to mislead. XX. INVASION OF PRIVACY A. Intrusion on Seclusion (Pearson v. Dodd) (text p. 944)). 1. Elements t) Intrusion on seclusion (the cases tend to involve an invasion of physical space): u) Objectionable to a reasonable person in regard to something private, v) Causation, and w) Actual damages may be required as part of the prima facie case, if Gertz is applied to privacy cases (which means that at least negligence must be shown). 2. Conclusion: Because there is no physical intrusion, Britdonna does not have a viable cause of action for intrusion on seclusion. B. Publication of Private Facts 1. Publication of Private Information: Query whether the press release statements concern private facts: 2. Objectionable to a Reasonable Person: If a reasonable person would object to its publication. 3. Fault x) Malice: In some jurisdictions, actual malice is required for matters of public concern (see Restatement (2d) of Torts 652D special note). (1) A matter of public concern is something that touches the public as a whole. See Gertz. y) Negligence (1) The Restatement suggests that at least negligence is required in all cases of publication of private facts. (2) Query whether Vincent was negligent in using the old quote without checking first with Britdonna.
61 of 82
Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010 4. Causation.
62 of 82
C. False Light (Cantrell v. Forest City Publishing Co. (text p. 958) (news story falsely portrayed young widow and mother as being financially destitute)). 1. Publication of Facts: 2. Placing the Plaintiff in a False Light Objectionable to a Reasonable Person z) False Light (1) The statement as made was true (but see the discussion above). aa) Objectionable to a Reasonable Person: 3. Malice bb) Some courts require malice only for matters of public interest cc) However, the Second Restatement requires actual malice in all false light cases). 4. Causation 5. Conclusion: Britdonna should prevail on a cause of action for false light. D. Commercial Misappropriation 1. Unauthorized Use of the Plaintiffs Name or Likeness: 2. For the Defendants Commercial Advantage: 3. Malice: Actual malice is not required. 4. Compensatory Damages dd) Commercial misappropriation is considered an intentional tort, and therefore damages do not seem to be part of the prima facie case. ee) The plaintiff may recover compensatory damages, measured by the reasonable value of the use of her identity 5. Punitive Damages: If Britdonna shows actual malice (see the discussion above), she may recover punitive damages. 6. Conclusion: Britdonna may maintain a cause of action for commercial misappropriation. E. Defenses to Privacy Actions 1. Consent: 2. Absolute and Qualified Privilege: The facts do not present either an absolute or a qualified privilege. 3. Truth ff) Truth generally is not a defense, except for false light. gg) False Light: See the discussion of truth above. XXI. INFLICTION OF EMOTIONAL DISTRESS A. Intentional Infliction 1. Extreme and Outrageous Conduct hh) Nonconstitutional (1) If private person (see the discussion above), she must demonstrate that acted with extreme and
62 of 82
63 of 82
outrageous conduct, which must be either intentional or reckless. ii) Constitutional (1) In a case involving a public figure or a public official, actual malice is substituted for extreme and outrageous conduct. jj) Conclusion: 2. Severe Emotional Distress kk) Note that neither impact nor manifestation is required for intentional infliction. 3. Causation: Prove the requisite level of conduct that will have caused her distress. 4. Conclusion: So long as she can prove malice and severe emotional distress (as manifested in her hives), she will prevail on a claim for intentional infliction. B. Negligent Infliction (bonus cause) 1. Duty to Not Inflict Emotional Distress on Another: 2. Breach: 3. Causation ll) Cause in Fact: But-for Vincent distributing the press release, Britdonna would not have suffered emotional distress. mm) Proximate Cause: 4. Damages: 5. Impact nn) In negligent infliction cases, some jurisdictions still require physical impact. oo) No physical impact occurred in this case. 6. Manifestation pp) In negligent infliction cases, many jurisdictions still require physical manifestation of the plaintiffs emotional distress. 7. Conclusion: Unless physical impact is required, she may maintain a cause of action for negligent infliction.
63 of 82
Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010 1

1 Appropriation (peeping tom uses for business)......................................................36 1973 Chevrolet Nova sedan.............................50 1st Cause of action.............................................. Negligence (goes to conduct)....................46
64 of 82
A A A A A A
2
2 Intrusion upon affairs or seclusion (eavesdropper, peeping tom).......................36 2nd Cause of action............................................. Strict Liability in Tort (based on the product) .................................................................47
3
3 Publication of facts placingin a false light; and (what peeping tom reveals)..................36
4
4 Public disclosure of private facts (intimate details of personal life to which particular scrutiny is unwanted such as illegitimate children, financial situation, etc. . .) (peeping tom adds a title to the image).....................36 4.1(b) wasnt a statute, but rather an industry custom.........................................................48
7
746, ................................................................40
A
A => $30k.......................................................27 A => $40k.......................................................27 A and B drove around to various fast food establishments. When B got jumped, A made no effort to assist.........................................22 a D can exculpate itself...................................24 A defect does not exist under either the consumer expectations or the risk-benefit test..............................................................57 A defense to intentional torts except IIED........15 A design defect exists when the foreseeable risks of harm posed the product could have been reduced or avoided by the adoption of a reasonable alternative design and the omission of the alternative design renders the product not reasonably safe........................56 A doctored photo that creates a false impression that I have done, said or believed things that I have not done, said or believed. True + True can = False..................................................37 A enticed B to jump into a trench. B does it and drowns. A made no effort to rescue............22 A joint judgment is not necessary....................26 A landlord/tenant relationship may trigger a duty to protect, provided there is enough foreseeability of harm and it is supported by public policy.................................................22 A manufacturer may have a duty to make
A A A
A A
A A
A A A
products pursuant to a safer design even if the custom of the industry is not to use that alternative. (OBrien v. Muskin Corp., pg. 753) ....................................................................54 matter of public concern is something that touches the public as a whole. See Gertz....61 party breaches the strict duty by selling or distributing a defective product...................56 party sells a product when, in a commercial context, the party transfers ownership thereto for use..........................................................56 person is negligent when his or her conduct, given all the circumstances, is determined to fall short of reasonable care........................54 person who is in exclusive possession of land may sue even though he cannot prove title to it..................................................................44 prima facie case sounding in negligence consists of a (1) duty, which (2) has been breached, (3) the causation in fact and (4) proximate cause of which has (5) injured the plaintiff........................................................46 private plaintiff suing a private defendant apparently may recover punitive damages without showing malice, so long as state law requirements for punitive damages are met. ....................................................................60 privilege derivative of the other's privilege to defend him or himself..................................14 privilege to commit an act or acts otherwise tortious may arise in various circumstances unanticipated before....................................16 product may be defective as a result of the manufacturer's failure to give adequate warnings as to the risks involved in using the product. For liability to attach, the danger must not be apparent to users.....................40 product may be defective in design, manufacture or warning...............................56 public figure must show actual malice, regardless of whether the ( is a member of the media or a matter of public concern is involved.......................................................60 reasonable person would give consent.........13 risk is unreasonable when the foreseeable probability and gravity of the harm outweigh the burden to D of alternative conduct which would have prevented the harm. (United States v. Carroll Towing Co.)........................54 severely disabling emotional response by P. 12 strict duty is owed by a party engaged in selling or distributing products....................56 tort to the person or property of one man does not make the tortfeasor liable to another merely because the inured person was under
64 of 82

a K with that other unknown to the doer of the wrong.....................................................28 A, C pay NOTHING!!!........................................27 AbatementThis is the remedy of self-help, eg removing over-hanging tree branches, which are a nuisance. For further details, see Michael A. Jones, Textbook on Torts, p339...45 absent some sort of negligence the event should not have occurred............................23 Absolute and Qualified Privilege.......................... The facts do not present either an absolute or a qualified privilege..............................62 Absolute liability.................................................. foreseeable causation in ultra-hazardous activities such as (i) blasting or (ii) wild animal......................................................10 Absolute Privilege............................................34 Action Beyond Scope of Consent.....................13 Action in concert (...........................................26 Acts of God......................................................25 actual - D is aware...........................................23 Actual Damages..............................................59 Actual damages include loss of reputation, humiliation, and mental anguish..................59 Actual damages may be required as part of the prima facie case, if Gertz is applied to privacy cases (which means that at least negligence must be shown)...........................................61 Actual damages must be proved, unless the plaintiff shows actual malice........................60 Actual losses need not be supported by evidence of monetary losses, but they must be supported by introduction of evidence....59 Actual malice is the knowledge of falsity or the reckless disregard for the truth....................60 Additionally, the homeowner may not eject a non-threatening trespasser or invited guest when doing so would subject that person to serious physical harm..................................15 Admission to the public. Liability for unreasonably dangerous conditions existing at the time he transfers possession.............20 Adult Activities. Many jurisdictions have concluded that children should not be entitled to special treatment when they are engaged in adult or inherently dangerous activities, such as driving a car....................................17 Affirmative defenses........................................34 All copies within one edition are deemed to be a single publication for the purposes of bringing a cause of action (dating from the first copy for the purposes of the Statute of Limitations)..................................................59 All members of a large group. No member can establish the c/a...........................................35
65 of 82
All members of a small group. Each may establish this element by alleging he is a member of the group...................................35 allowing tree roots to suck moisture from adjoining soil, thereby causing subsidence.. 42 Also consider IIED............................................34 An incomplete defense to trespass to real property.......................................................15 An individual can be held to lack capacity to consent. A child, depending on her age, may consent only to less significant matters.......13 An individual without sufficient mental capacity due to insanity or retardation may not legally consent. Incapacity can also be the result of drug ingestion (including alcohol)................13 AND which causes P to be restricted or confined to a bounded area........................................11 Andrews 2 may establish existence of a duty by showing that the ( has breached a duty he owed to 1. Basically, he owes a duty to anyone who suffers injury as a proximate result of his breach of duty to someone.......17 Animals............................................................33 Anticipated Trespassers. Same duty as with discovered trespassers. Frequent trespassers on a very limited area of land. (The existence of a well-defined path across teh land was held to be sufficient evidence of frequent trespass (488, #5))......................................19 Anyone in a prominent position who is like a celebrity.......................................................34 Apparent ability is required (question for jury Western Union)............................................10 Apparent Authority..........................................32 Apparent Consent............................................13 Applicable Rule of Law......................................... Most jurisdictions require that the plaintiff prove an alternative feasible design in order to prove design defect....................49 Apportionment of Damages (as between accidents)....................................................28 Apprehension.............................................10, 11 Apprehension of harmful or offensive contact 10, 11 Apprehension of harmful or offensive contact (For assault to be actionable the victim's apprehension must be of imminent harmful or offensive contact.).......................................11 Appropriation. Unauthorized use by ( of s picture or name for (s commercial advantage....................................................37 Ask, .................................................................32 ASSAULT..........................................................11 Assumption of Risk (two types) - ....................30 At common law, damages are presumed for libel
65 of 82

per se...........................................................59 Athletes...........................................................34 Attorneys are not held to anticipate changes in the law if made in good faith and using reasonable care and diligence - Hodges......20 AUTHORITY OF LAW and DISCIPLINE................16 Availability of a substitute. There are no known substitutes to the automobile within a reasonable range of price and feasibility. This favors C........................................................47 Avalanche = Strong chance.............................28
66 of 82
case.............................................................10
C
C => $150k.....................................................27 C => $200k.....................................................27 C breached its duty to design a seatbelt that is safe in the conditions under which it is intended to be used resulting in injury to JB. Therefore, C shall be liable in negligence to JB.................................................................47 C designed an automobile and seat belt which was defective at the time it left Cs control and it was the cause in fact and the proximate cause of JBs injuries; therefore, C is liable in strict liability in tort to JB.............48 C designed the automobile and the seatbelt.. .47 Calculation of judgments.................................26 Cancer = Moderate chance.............................28 Cardozo 2 can recover only if she can establish that a reasonable person would have foreseen a risk of injury to her in the circumstances (that she was in the zone of danger)........................................................17 case law...........................................................18 Causation...............10, 12, 38, 55, 57, 61, 62, 63 Causation............................................................ Whether the defect caused harm to persons or property is determined by the prevailing rules and principles governing causation in tort. 15..................................................57 Prove the requisite level of conduct that will have caused her distress.........................63 See the discussion of causation in the strict liability section above...............................57 Causation and Proximate Cause discussion is the same as normal.....................................38 CAUSATION IN FACT.............................23, 46, 48 CAUSATION IN FACT / PROXIMATE CAUSE / DAMAGES.....................................................48 Causation, and.................................................61 Causation.........................................................62 Cause in fact....................................................40 Cause in Fact....................................................... But-For Test.................................................... The but-for test is used for cause in fact when there is one cause or two or more causes, none of which acting alone would have caused the harm in question.......57 But-for Vincent distributing the press release, Britdonna would not have suffered emotional distress....................................63 Character of victim is a factor in this determination (pregnant woman or old lady) Harris...........................................................12 Chevrolet (C)..................................................46 Chevrolet has a duty to design a seatbelt (not
B
B has already given $100k..............................27 B has paid $500k.............................................27 B settles of $500k............................................27 Bailment..........................................................32 BATTERY..........................................................10 Be aware they are out there, but to much based on statute for our attention..........................16 Because there is no evidence that the seatbelt was faulty beyond its original design, there is not a question here of liability based on a theory of manufacturing defect. Therefore, the analysis begins with design defect.. 46, 48 Behavior communicating or otherwise indicating consent by P to a tort by D..........................13 Biracial.............................................................36 Breach.............33, 38, 39, 40, 46, 55, 56, 57, 63 BREACH.....................................................23, 46 Breach - it broke..............................................40 Breach - it broke - maybe res ipsa...................40 Breach of Strict Duty.......................................56 Breach. Must show (1) negligent conduct by the ( leading to (2) the supplying of a defective product........................................................38 Breach. Prove that hte product was unreasonably dangerous..............................39 Britdonna has not posed nude on any other occasions.....................................................58 Britdonna now lives a quiet, matronly life........58 Britdonna states that she would not pose nude now..............................................................58 burned demolition team where debris started a fire...............................................................32 Business or profession. A defamatory statement adversely reflecting a s abilities in his business, trade, or profession......................36 But if the plaintiff does prove malice, then all compensatory losses, presumed or proven, and punitive damages as well, may be recovered according to state law.................60 By a school to supervise, control, or rescue. School does not stand inloco parentis. (Hagel).........................................................22 By ordinary person standard - Wallace - fire drill
66 of 82

just a pelvic restraint as mentioned in the statute) that is safe in the conditions under which it is intended to be used..............46, 48 Chevrolet has duty to avoid unreasonable risk of harm to others.............................................54 Child licensees, 500, more duty than to an adult ....................................................................19 CIF but for, substantial factor, autopsy............40 Clear expression of specific consent to the tort by a rational competent D...........................12 Combo of 2 & 3................................................37 Coming and Going Rule....................................... The daily commute to and from work is not within the scope of respondeat superior.. 31 Coming to the Aid. Once you start helping, to aid without negligence.................................21 Coming to the nuisance no defenseIt is no defense to prove that the claimant came to the nuisance................................................44 Commercial Misappropriation..........................62 Commercial misappropriation is considered an intentional tort, and therefore damages do not seem to be part of the prima facie case. ....................................................................62 Commercial product sellers include, but are not limited to, manufacturers, wholesalers, and retailers.......................................................56 Common carriers and innkeepers are liable for intentional gross insults which cause patrons to suffer mental distress. Slocum. There is no requirement the defendant behave in an extreme or outrageous manner or that the victim suffer extreme distress.....................12 Common Carriers are required to exercise a very high degree of care toward their passengers and guests................................17 Common interest between publisher and recipient (statements between board members),...................................................34 Common Law...................................................59 Communication between spouses...................34 Comparative Fault is the exception to the old rule that morphed into Comparative Negligence...................................................30 comparative negligence...................................... affirmative defense which does not completely bar P's recovery.....................25 Compares the risk and utility of the product at the time of trial............................................37 Compelled broadcast or publication, and.........34 Compensatory - to make the plaintiff whole....29 Compensatory Damages.................................62 Concept. Non-settling Ds get a credit for settlement. Either (i) dollar-for-dollar, pro tanto, OR (ii) proportionate, pro rata...........27
67 of 82
Concerning another,........................................58 concerted action.................................................. Tortfeasors who act in concert are each jointly and severally liable for the consequences that result from their actions.....................................................25 Concise and to the pointall that needed to be said in regards to manufacturing defect......48 7.Conclusion............................47, 48, 61, 62, 63 Because there is no physical intrusion, Britdonna does not have a viable cause of action for intrusion on seclusion...............61 Britdonna may maintain a cause of action for commercial misappropriation...................62 Britdonna should prevail on a cause of action for false light............................................62 So long as she can prove malice and severe emotional distress (as manifested in her hives), she will prevail on a claim for intentional infliction..................................63 Unless physical impact is required, she may maintain a cause of action for negligent infliction...................................................63 conduct of the protected party goes beyond negligence or engages in acts of reckless, wanton, or gross negligence........................31 conform to scientific method...........................24 conscious suffering, OR...................................28 Consent..............................12, 13, 34, 37, 61, 62 CONSENT.........................................................12 Consent limited to contact or otherwise tortious activity within the safety rules of the sport or activity.........................................................13 Consent to illegal acts (agreement to fight) MAY OR MAY NOT be a good defense - state by state............................................................12 Constitutional............................................34, 63 Constitutional malice.......................................34 constructive D knows or should have known ....................................................................23 Consumer Expectations...................................56 Consumer expectations about the product (lawn darts would pass this test)...........................37 Contribution & Indemnity mutually exclusive26 Contribution D1................................................... D3 = 1............................................................. 4 26 Contribution. Both parties are at fault, and one has already paid..........................................26 contributory negligence....................................... Prior to comparative fault, under contributory negligence, a showing of any fault on the s part would have been a full bar to recover not just of the % of fault as in comparative fault.................................25
67 of 82

Creator of the nuisanceAny person who creates the nuisance can be sued, whether or not that person is the occupier of the land at the time of the action.................................................44 credit - $500k..................................................27 credit = $200k.................................................27 Crime involving Moral Turpitude. Allegation that someone committed larceny, assault, a married man had a mistress, etc. . .............36 Criminal acts and intentional torts of third persons........................................................25 Custom may define standard of care owed (usually through expert testimony) Trimarco. The may try to assert the (s deviation from custom as evidence of lack of due care. Conversely, the ( may try to avoid liability by showing compliance with custom. ....................................................................18 custom or normal care.....................................18
68 of 82
D
D made product...............................................40 D made/designed product...............................41 D responsible for all harm caused, even if unforeseeable..............................................11 D1 pays $9k (10% of $90k).............................26 D2 is broke!.....................................................26 D3 pays $36k (40% of $90k)...........................27 Damage (remember consortium).....................40 Damage to the Plaintiffs Reputation...............59 Damage to the 's person or property.............33 Damages....29, 34, 38, 40, 42, 45, 54, 55, 57, 63 Damages............................................................. See the discussion of damages in the strict liability section above...............................57 DAMAGES..................................................25, 47 Damages are personal injury as usual for negligence...................................................38 Damages. In addition to compensatory damages, punitive damages are available the same as they would be with intentional torts in general.....................................................38 Dangerous instruments There is a duty to properly maintain and inspect instruments (If the nature of a thing is such that it is reasonably certain to place life and limb in peril. (McPherson)).......................................20 Deadly force may not be used to protect property - Katko...........................................14 decrease in chance of survival is grounds for liability.........................................................24 Defamation......................................................33 DEFAMATION ESSAY OUTLINE..........................58 Defamatory Language.....................................58 Defamatory language must be of or concerning the plaintiff..................................................58
Defamatory statement....................................34 Defect existed when it left D's control.............40 DEFECT EXISTED WHEN PRODUCT LEFT MANUFACTURER..........................................48 defect was present when it left D....................41 DEFECTIVE.......................................................47 Defective. A condition that is unreasonably dangerous to users......................................37 DEFENCES........................................................44 Defense of Habitation. Deadly force or force likely to cause serious bodily harm is not justified unless the intruder threatens the occupants' safety, by committing or intending to commit a dangerous felony on the property.......................................................15 DEFENSE OF OTHERS.......................................14 DEFENSE OF PROPERTY...................................14 Defenses............................30, 37, 38, 57, 61, 62 Defenses.............................................................. See the discussion of defenses in the strict liability section above...............................57 Defenses against beneficiary............................... defenses against potential beneficiaries do not bar the action. However, that particular beneficiary recovers nothing and his damages are not to be include by the jury in the total damages assessed..........30 Defenses Comparative Negligence..................57 Defenses standard negligence defenses.......38 Defenses to Privacy Actions.............................62 Defenses. The usual intentional tort defenses. ....................................................................38 Define Assumption of Risk................................... 30 Definition.........................................................58 Definitions.......................................................59 Department of Social Services custodial duty..32 Design................................................................. See the discussion of design defect in the section on strict products liability.............57 Sun Workout, Inc. had a duty to use due care in the design of The Rope.........................57 DESIGN............................................................47 Design Defect......................................38, 40, 56 Design Defects. When all the products are identical according to specifications, but are dangerous. The entire like may be found to be defective because of poor design...........38 Determination of Defamatory Content.............58 Detour................................................................. Slight deviation still sufficiently related enough to be in the scope of employment .................................................................31 Difficult to uphold where there is a K of adhesion......................................................31
68 of 82

difficulty in forecasting a violent crime............21 Disability standard is of reasonable person w/ that disability - Roberts................................16 Discovered Trespassers. Once discovered, A negative duty arises to take reasonable efforts to avert injury...................................19 disturbing neighbours' sleep by noise and vibrations and damage to clothes from acid smuts...........................................................42 Domestic animals if owner has knowledge of an animal's dangerous propensities.............33 doubts generally resolved in favor of D...........14 Duress.............................................................13 Duty...........18, 19, 21, 33, 38, 39, 40, 54, 57, 63 DUTY................................................................46 Duty - to design this safely..............................40 Duty (2/10 points possible................................... ) 54 Duty limited to Normally Dangerous Propensity...................................................33 Duty to Act. Generally, there is no duty to duty to help, supervise, control, warn (see below), or rescue......................................................21 Duty to make ___ that doesn't break...............40 Duty to Rescue. There is no duty to go to the aid of a person in peril. BUT, a rescuer is a foreseeable as long as the rescue is not wanton. ( is liable if he negligently puts himself or a 3rd person in peril and the is injured effecting a rescue............................18 Duty. Duty of care arises when the ( engages in the conduct associated with being a commercial supplier of products. Privty not required.......................................................38
69 of 82
E
e.g. britney spears...........................................34 each D cannot exculpate itself........................24 each D severally liable for % of market share (no joint and several liability).......................24 each is presumed liable for the full damages unless he can prove otherwise - Tice...........24 Each member of a partnership or joint venture is vicariously liable for teh tortious conduct of another member committed in the scope and course of the affairs of the partnership or joint venture........................................................32 Economic............................................................. Earl may recover hard costs, including doctor and hospital bills, medication costs, and lost wages................................................57 Effect of lessors covenant to repair. If the lessor reserves the right to enter the premises to make repairs, he is subject to liability for unreasonably dangerous conditions....................................................20
Efforts to Protect Person or Property...............24 EITHER WAY, the P must prove the statement was false (opposite of the CL rule where the D must prove as an affirmative defense that it is true).............................................................33 Elected or appointed official............................34 Elements..............................................32, 40, 61 Elements.............................................................. (1) agreement (express or implied) among the members of the group, (2) common purpose, (3) profit-driven, (4) equal right to voice/control of the enterprise.................32 (1) the product was defective, (2) the defect existed when the product left the D, (3) the defect caused injury to a reasonably foreseeable user......................................40 Emergency. (Unforeseen, sudden, unexpected) Nearly all states permit the jury to consider evidence that the defendant was acting under emergency conditions not of the ('s making. Does not necessarily exculpate him from liability. Cordas............................................16 Employees are protector class NOT protected class.............................................................22 employers and suppliers to comply with safety provisions of the Labor Code........................32 Enforcement is by law enforcement via civil authority......................................................42 enterprise (majority) - if you can get everyone before the court...........................................24 Even slight force is unreasonable in defense of property if it is excessive. Consequently, if a verbal request would suffice, no force is justified........................................................14 EXAM.............................................30, 33, 40, 46 example............................................................... the train's speeding was not a substantial factor where it struck a truck because it would have hit the truck even if it were not speeding -Perkins...................................23 examples on (672)!.........................................32 Except where a landowner is under a public duty to keep the animals (like a zoo)...........33 Exception............................................................. Shop Keeper's Privilege..............................15 EXCEPTIONS....................................................31 Exceptions sec. 288A.......................................22 exclusive control of the instrumentality by the ( ....................................................................23 exercise due care where the independent contracor is hired to do work that the employer should recognize as necessarily creating an unreasonable risk of bodily harm unless special precautions are taken...........32 Expectation of..................................................10
69 of 82

expert witness requirements............................... - Daubert.....................................................24 Experts demonstrate the cause, and damages are allocated by a jury. (Dillon)....................28 Express................................................................ 31 Express consent...............................................12 Express vs. Implied..........................................30 Express Warranty and Misrepresentation (Baxter, 722) ................................................ Representations by a manufacturer whose falsehoods cannot be readily detected by a buyer are liable regardless of privity of K.40 Extreme AND Outrageous................................12 Extreme and Outrageous Conduct...................62
70 of 82
F
Facts same as (2) with $100k verdict..............26 Failure to abate harmful natural condition of land. See 840 handout on nuisance.........42 Failure to perform a common duty (Coney, employer for acts of employee et al.) (usually in product liability).......................................26 Fair comment and criticism,............................34 False and defamatory statement,....................58 FALSE IMPRISONMENT.....................................11 gg)False Light............................................37, 62 See the discussion of truth above...............62 False Light (Cantrell v. Forest City Publishing Co. (text p. 958) (news story falsely portrayed young widow and mother as being financially destitute))....................................................62 Falsity........................................................36, 61 Fans.................................................................42 Fault..............................................26, 36, 59, 61 Fear not required but.......................................10 Fine tuning.................................................14, 24 Fine Tuning....................................11, 12, 22, 23 First Amendment Newsworthiness is a defense as a reflection of public interest vs. a reflection of what the public is interested in. ....................................................................37 Fitness for a Particular Purpose........................... Seller knows or has reason to know the particular purpose for which the goods are required and that the buyer is relying on the seller's skill and judgment in selecting the goods.................................................39 Floodlights.......................................................42 for a college to provide anticipated medical assistance to its players at a school sponsored event..........................................22 For a design defect, the Third Restatement and case law require proof a reasonable alternative design (RAD)..............................57 For a reasonable time......................................15
For a store to aid an invitee who is using an instrument that the store is operating without negligence. (Ayres)....................................22 For libel per quod, special damages are required, unless the libel could be classified as slander per se if spoken..........................59 Force Against an Innocent Party. Force in defense of property is only a defense when it is actually directed at a wrongdoer. A reasonable mistake that an individual has wrongfully interfered with property is not an excuse.........................................................14 foreseeability...........................22, 24, 28, 31, 47 Fraud...............................................................13 Future Medical expenses.................................29 Future physical and mental pain (keyed to life expectancy).................................................29
G
general contractor to construct a building safely ....................................................................32 general damages................................................. real, yet hard to measure and fundamentally non-economic (pain and suffering, emotional distress, etc...).........29 General damages presumed............................35 General intent...................................................... areasonable person would be substantially certain that their actions would bring about the result..................................................10 General or Presumed Damages........................... Damages for Libel Per Se............................59 Generally, a design defect results in a problem with the entire line.......................................56 Generally, a standard of care is owed to a foreseeable plaintiff.....................................17 Generally, no liability.......................................32 Good discussion on proximate cause...............49 Good faith of D, good results of contact will not be a basis for court to imply consent - Mohr 13 grossly unequal bargaining power so as to put that party at the mercy of the other's negligence...................................................31 Group Defamation. Limit ~25.........................35
H
Harmful or Offensive Contact..........................10 Harmful or offensive contact, OR...............10, 11 Here, the accident could have been avoided, according to the experts, had C installed a three point shoulder harness lap belt..........49 How big an area? We don't know...................11 However, courts seem reluctant to label a person as truly judgment proof....................58 However, if a constitutional element is interjected (see below), proof of actual damages will be required.............................59
70 of 82

However, in some jurisdictions, for a private figure in a private matter, punitive damages may be recovered according to the usual rules for punitive damages according to state law, which usually requires intentional or reckless conduct..........................................59 However, some courts find something close to falsity when true or partially true statements are used in a manner designed to mislead.. 61 However, the Second Restatement requires actual malice in all false light cases)............62 Hustler Magazine v. Falwell, held unconstitutional the determination that a parody advertisement could result in liability under IIED....................................................12 HYPO................................................................... Person almost dies by (i) avalanche, (ii) cancer, OR (iii) ship sinking. Under which would damages be reduced?....................28 workers comp claims may trigger immunity because employees have a liability in administrative law, not in Tort.................26
71 of 82
I
if 100% not accounted for, the P may not collect full damages................................................24 IF Design Defect action....................................40 If injured escaping, no FI, but other c/a (maybe battery or negligence p. 42 note 6).............11 IF Manufacturing Defect action........................40 If not a relative, it must be shocking (Rest. requires physical harm)...............................12 If owner forces user to desist and harm results to user or user's property, owner is liable....16 If P is seriously injured (not killed) then D is liable for potential earning capacity.............28 If private person (see the discussion above), she must demonstrate that ( acted with extreme and outrageous conduct, which must be either intentional or reckless.......................63 If proof of actual damages is required, she may satisfy her burden of proof by introducing evidence of the loss of her PTA position.......59 If the asserted victim gives permission, what would otherwise be tortious is instead privileged.....................................................12 if the drug causes injury AND if you cannot link the P to a specific D.....................................24 Illegality...........................................................13 Imminent contact;...........................................10 Impact.............................................................63 Implied................................................................. make an objective case from the facts based on the ......................................................30 Implied Consent...............................................13 Implied warranties (726)..................................39
Imputed (.........................................................30 In a case involving a public figure or a public official, actual malice is substituted for extreme and outrageous conduct................63 In brief, state of the art evidence is relevant to, but not necessarily dispositive of, risk utility analysis. That is, a product may embody the state of the art and still fail to satisfy the riskutility equation. (OBrien v. Muskin Corp., pg. 753).............................................................54 In certain situations a criminal statute (or administrative regulation or municipal ordinance) may be used to set the standard of care in a negligence case........................22 In constitutional cases, generally, punitive damages may be recovered if malice (actual or express) is shown....................................59 In Design Defect.................................................. Show that those designing it knew or should have known of enough facts to put a reasonable manufacturer on notice about the dangers of marketing the product as designed..................................................38 In essence, reasonable force can be used where one reasonably believes that such force is necessary to protect oneself from immediate harm. (Anyone may use reasonable force to defend self against a threat of battery).......13 In Manufacturing Defect...................................... Maybe invoke res ipsa...............................38 In negligent infliction cases, many jurisdictions still require physical manifestation of the plaintiffs emotional distress........................63 In negligent infliction cases, some jurisdictions still require physical impact.........................63 In pure secondary implied assumption of the risk, the plaintiff is aware of a risk that has already been created by the defendants negligence but the plaintiff voluntarily proceeds to encounter the risk....................57 In some jurisdictions, some form of malice is required even in non-constitutional cases....59 In the first instance, the court determines whether the words are capable of a particular interpretation...............................................58 In this cause of action, a plaintiff must prove that the defendant (1)designed a product (2) that was defective (3) at the time it left the defendants control. It will require different evidence than the cause of action sounding in negligence...................................................47 Incapacity........................................................13 Indemnity is an equitable remedy to prevent unjust enrichment........................................26 Indemnity. Assumes there is no real fault as
71 of 82

between and ( even though ( is legally liable............................................................26 Independent action by D's leading to indivisible injury............................................................26 Independent Contractor...................................32 Individual thoughts vs. communities awareness ....................................................................36 indivisible injury................................................... If tortfeasors cause to the P the same injury, think of it as indivisible............................25 Inducement and innuendo also actionable if it is defamatory only by adding additional facts. ....................................................................34 INFLICTION OF EMOTIONAL DISTRESS.............62 Informed consent (* emergency is defense, * financial benefits should be disclosed as soon as they decided to use the cells) - Regents of the U of CA...................................................20 Insults, etc, no matter how vile, do not create a privilege to use force in self-defense...........14 Intended to cause......................................10, 11 Intent.........................................................10, 41 Intent is knowledge or reason to know. You must prove that the party knew...................41 Intentional..........................10, 12, 26, 31, 38, 62 Intentional (purpose) OR Reckless (substantial certainty - Harris).........................................12 Intentional Infliction.........................................62 INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS.....................................................11 Intentional tortfeasors may NOT seek contribution.................................................26 Intentional tortious conduct, UNLESS force/friction is within the scope of employment.................................................31 Intentional Torts..............................................10 Interest of publisher (when the statement is made to defend ones own actions),............34 Interest of recipient(like a statement made by a former employer to a prospective employer), ....................................................................34 Interference with the support of the land........42 Intoxication, insanity, and minority may invalidate consent........................................12 Intrusion on Seclusion (Pearson v. Dodd) (text p. 944))............................................................61 Intrusion. (1) act of prying or intruding on the affairs or seclusion of the by the (; (2) the intrusion is something that would be objectionable to a reasonable person; AND (3) the thing to which there is an intrusion or prying is private.........................................37 Invalid if obtained by fraud, misrepresentation, or silence concerning a matter as to which there is a duty to disclose - DeMay..............12
72 of 82
Invalidating Consent........................................13 Invasion of privacy...........................................36 INVASION OF PRIVACY.....................................61 Irrational fear of contagion is enough to find nuisance......................................................42 Irrational responses by the community............42 Is C liable to JP for a defect in design in (1) negligence or (2) strict liability in tort?........46 ISSUE...............................................................46 It is reasonably foreseeable (in fact, expected) that JB would be using the product precisely in this manner, therefore, he is a foreseeable plaintiff........................................................49 It is too upsetting to think of death all the time with morgue next door.................................42
J
John Brantley (JB)...........................................46 joinder of defendants........................................... P is permitted to add one or as many Ds as is convenient so long as it is from same T/O. If he chooses not to join, Ds may seek indemnity.........................................25 Joint and Several Liability................................26 Joint Enterprise / Partnership (674)..................32 joint liability......................................................... All parties are liable individually but not for the whole of the act - infers limitations on liability.....................................................25 Joint Tortfeasors...............................................25 judge may decide that inference of RIL may or must be drawn by a jury - Rest. 328D..........23 Judicial, Legislative, or Executive proceedings,34 JUSTIFICATION.................................................16
L
landlord installed a guardrail...........................32 landowners to maintain property in reasonably safe condition and comply with safety ordinances...................................................32 Language may be deemed non-defamatory if the plaintiffs reputation is already so sullied that the defendants defamatory remarks can do no harm..................................................58 Lateral (yard slides sideways) If the undeveloped land slides, ( is strictly liable, OTOH if land that is built on slides down, must prove negligence.........................................42 Learned Hand Where Duty is hard to find.....18 legislation..................................................18, 31 Lessor to lessee. Lessor is obligated to give warning of existing defects..........................20 Lessors. Control begets duty.........................19 Level of Fault...................................................59 Level of Proof Required for Actual Malice............. Actual malice must be proved by clear and convincing evidence.................................60
72 of 82

Libel is a defamatory statement recorded in writing or some other permanent form (like radio or tv in some circumstances)..............35 Libel Per Quod.................................................58 Libel per quod is written/fixed language that is defamatory only through the introduction of extrinsic facts..............................................58 libel per quod requires additional facts to establish defamatory content. Proof of pecial damages generally required........................35 Libel Per Se......................................................58 Libel per se is written/fixed language that is defamatory on its face.................................58 libel per se libel on its face therefore actionable without proof of special damages. ....................................................................35 Libel Per Se v. Libel Per Quod..........................58 Licensees and Inviteed landownerstrictly liable ....................................................................33 life expectancy from time of injury to time of death...........................................................28 Loathsome Disease. Historically has been limited to STDs and leprosy.........................36 Locality Rule....................................................20 Loss of consortium - loss of conjugal relations, society, companionship, household services, etc. during the time period that the injured person is recovering or for a permanent loss ....................................................................29 Loss of earning capacity..................................29 Loss of Public Figure Status.............................59
73 of 82
M
majority of states do not require retreat..........14 3.Malice.............................36, 43, 59, 60, 61, 62 Actual malice is not required......................62 In some jurisdictions, actual malice is required for matters of public concern (see Restatement (2d) of Torts 652D special note)........................................................61 Manifestation...................................................63 Manufacture........................................................ Sun Workout, Inc. had a duty to use due care in the manufacture of The Rope...............57 Suns duty to manufacture with due care was not breached, because, as discussed above, the parties have stipulated that there was no manufacturing defect in The Rope.........................................................57 Manufacturing Defects. When a product emerges from a manufacturing process different and more dangerous than if it had been made the way it should have been... . .38 Many states have provided for compensation by statute.........................................................15 Many statutory changes, especially wrt parental
privilege to discipline...................................16 market share -.................................................24 Matters of Public Concern at lease negligence is required....................................................36 Matters of Purely Private Concern No constitutional limitations..............................36 Maximum Recovery Rule..................................... Maximum amount of money an jury could reasonably award. If over the limit, judge can adjust (remittitur). Judge determines the amount that can be reached based on all evidence regarding each element.......29 May be contracted around...............................26 May be implied based on local usage and custom.........................................................13 may be required elsewhere.............................14 May use non-deadly force to recapture chattel ....................................................................15 MD failed to inform of risks..............................21 Media D was negligent.....................................34 Medical malpractice need expert testimony Boyce...........................................................20 Mental Conditions. Most courts treat mental conditions as wholly irrelevant for purposes of negligence liability. The insane are held to a standard of sanity and people with cognitive disabilities are held to a level of normal intelligence..................................................16 Merchantability.................................................... If the thing is sold reasonably fit for the purpose for which it was manufactured and sold. It cannot be disclaimed/waived......39 Methods. Pictures, satire, drama, etc. . ..........34 minority require retreat...................................14 Misfeasance Due Care Required where an affirmative act creates or increases an unreasonable risk of harm...........................21 Mishandling of family member's remains???. . .12 Mistake................................................................ courts are divided......................................14 Mitigating factors (no actual malice, retraction, anger)..........................................................34 Model Answer..................................................49 Modified (Statutory) -- 50% cut-off..................25 Modified locality rule (similar community in similar circumstances) is the majority..........20 More than just the body, argue reasonable violation of dignity.......................................10 Most jurisdictions no longer distinguish between libel per se and libel per quod......................58 Most jurisdictions require that the plaintiff prove an alternative feasible design in order to prove design defect. (note 3, pg. 755).........51 multiple acts of negligence..............................24 Must be a commercial supplier........................39
73 of 82

Must be the act of a rational, competent person; ....................................................................12
74 of 82
N
National rule Morrison...................................20 Nationally syndicated columnist......................34 NECESSITY.......................................................15 Negligence. 16, 22, 24, 37, 38, 40, 41, 54, 60, 61 NEGLIGENCE....................................................57 Negligence (conduct) and Strict Liabiltiy (product) will have different evidence..........40 Negligence (MacPherson) (719).......................38 Negligence is conduct which falls below the standard established by law for the protection of others against unreasonable risks of harm. (Restatement 2d 282)...............................54 Negligence is conduct, which falls below the standard established by law for the protection of others against unreasonable risks of harm. (Restatement 2d 282)...............................16 Negligence is probably required if the defendant is a private person (at least if the defamatory statement does not involve a matter of public concern).......................................................60 Negligence is required if the defendant is a member of the media and the matter is of public concern. Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) (text p. 892)................60 Negligence of rescuers....................................24 Negligence PER SE...........................................22 Negligence risk/utility analysis, but focuses on whether the manufacturer would be judged negligent if it had known of the product's dangerous condition at the time it was marketed. (LH)............................................37 Negligent acts of third persons........................25 negligent entrustment (giving keys to a drunk dude) ROL........................................................ Bailor may be liable for his own negligence in entrusting the bailed object.................32 Negligent Entrustment. The defendant's liability is premised on supplying a potentially dangerous instrumentality (such as a car or gun) to a person the defendant knows or should know is not fit to handle it................22 Negligent Infliction (bonus cause)....................63 NEW RULE............................................................ Lessor is under a duty to exercise ordinary care in the maintenance of the premises. 20 No compensation is required at CL..................15 No contribution where one tortfeasor has discharged the claim....................................26 no direct evidence...........................................23 No legal wrong is committed thereby, therefore owner may not compel user to desist..........16 No need for D to wait for actual batter to occur
before acting in self-defense........................14 No need to prove Special Damages.................37 No physical impact occurred in this case.........63 No privilege to retaliate...................................14 No privilege to use force if intrusion onto property is lawful.........................................14 no specified # of D's to sue under market share theory..........................................................24 Nominal - small sum of money awarded to the plaintiff in order to vindicate rights, not available in action for negligence................29 Non-marital relationships (543)........................... courts are split, but trending to ................29 Non-settling Ds get credit for actual settlement ....................................................................27 non-settling Ds get a credit for 40% of $500k. 27 Nonconstitutional.............................................62 Noneconomic....................................................... Earl may also recover soft costs, such as pain and suffering............................................57 Nonfeasance. No Duty for failure take action that would reduce the risk or prevent harm to the P............................................................21 not required in one's home..............................14 NOTE................................................................... Consensus is to use Risk-Utility Analysis. See O'Brien Factors..................................37 Even a stranger egging on a fight can be liable as a joint tortfeasors.......................26 must take the P as you find them physically and mentally - Bartolone..........................25 Non-settling Ds get a credit (either tanto or rata).........................................................27 Employer is directly liable for acting tortiously..................................................31 his liability rests upon a special relationship btw the tortfeasor and the person to whom his tortious conduct is ultimately imputed. .................................................................31 Note that neither impact nor manifestation is required for intentional infliction..................63 Nuisance..........................................................41
O
Objectionable to a Reasonable Person................. If a reasonable person would object to its publication...............................................61 Objectionable to a reasonable person in regard to something private,...................................61 Objective Standard.............................................. We are all subject to the same standard of care. Vaughan.......................................17 Objective, reasonable person standard applied in determining apparent consent based on all the circumstances, including P's silence O'Brien.........................................................13
74 of 82

OccupiersOccupiers who adopt and continue to allow nuisances on their land may also be liable, even if predecessors in title, trespassers or third parties created such nuisances.....................................................44 Odors...............................................................42 Of or concerning..............................................34 Of or Concerning the Plaintiff...........................58 Off the premises not on EXAM......................18 ON EXAM ( C/A is Trespass, nuisance, absolute liability, and negligence...............................41 ON EXAM, argue both by using the test for Independent Contractor vs. Employee............. 32 One may defend another in circumstances in which that person would be privileged to defend himself or herself.............................14 One may not use a mechanical device to do what one could not do oneself - Katko, Rest. 85................................................................14 One may use reasonable force to prevent the commission of a tort against one's property. Unlike self-defense, a reasonable mistake will not excuse force that is directed against an innocent party..............................................14 One who expressly or impliedly states that another is his servant or agent may be held liable for the latter's negligent acts to the extent of the statement...............................32 Only allowed when D is vicariously liable for the wrongful act of another................................26 Only such force as is necessary in the circumstances is privileged..........................14 OR (in some states and under Restatement) P must be harmed..........................................11 ordinary, prudent person rule..........................18 Owners / Occupiers of Land. Split in Jurisdictions. Some now apply normal negligence to all premises cases.................18
75 of 82
P
P P P P P P P P P (0%) v. A(10%), B(40%),C(50%)...................27 (10%) v. D1(10%), D2(40%), D3(40%)..........26 entitled to 90%, BUT.....................................26 gets $280k....................................................27 gets $340k....................................................27 gets $680k!!!................................................27 gets $90k from D1,3.....................................26 has burden of proving damages...................29 has the burden of proving that D was negligent where the D had notice of the danger.........................................................23 P keeps theburden of proofwhen claiming that the 2nd accident aggravated the previous injury from the original accident. (Bruckman) ....................................................................28
P must be aware (implies against will b/c consent is a defense, but against will is not required for the reason stated above).........11 P must file suit against only one D (who may, in turn, implead)..............................................24 P must show by a preponderance of the evidence, D's act was a substantial factor OR ....................................................................23 P recovers unless P's % of negligence > D's neg. ....................................................................25 P recovers unless P's % of negligence >= D's neg...............................................................25 P settles with B for $100k................................27 P to be restricted or confined to a bounded area (The victim must be confined within an area bounded in all directions. The bounded area can be, however, a large area, even an entire city.).............................................................11 Page 606, Note F................................................. Yes, because consortium, in this case, is a derivative and any defense that is good against an injured spouse's claim is good against consortium's spouse's claim........31 parents of a 13 y.o. who is suicidal at school...22 Party Owing the Strict Duty.............................56 Past physical and mental pain.........................29 Patient unable to give consent........................13 patient, if informed would have said no...........21 PC....................................................................40 PC - foreseeable...............................................40 Permanent disability and disfigurement (disfigurement is ALWAYS included in computing damages no matter how small). .29 Person..............................................................10 Personal Injuries..............................................33 Persons Protected............................................33 persons taking short cuts................................19 Persons who act in concert to cause injury to the P or act independently but cause a single indivisible injury to the P..............................25 persons who enter with nothing more than consent (such as loafers, loiterers, and people who come in to get out of the weather).......19 pharmaceuticals- prove that exposure more than doubles the incidents of the disease. (example.......................................................... 10,000 --> 10 | 10,000 --> 21 | increase >50% therefore cause exists!).................24 Physical Conditions. As a general principle, the jury in the breach determination may take the ('s own physical qualities into account. Sometimes the physical condition of the party requires the use of greater care...................16 Physical restraint not necessary......................11 Physician has no reason patient would refuse
75 of 82

treatment under the circumstances.............13 Physicians may fulfill a duty owed to unidentified third persons by properly informing the patient...................................22 Placing the Plaintiff in a False Light Objectionable to a Reasonable Person.........62 Plaintiff as Defamation-Proof...........................58 PLAINTIFF WILL ALWAYS BE 0% in these on exam. . ........................................................27 Possessor who fails to abate artificial condition. See 839 handout on nuisance...................42 POSSIBLE DISCUSSION OF DUTY OF ANOTHER ORDER.........................................................17 Prenatal Injuries are actionable (duty is owed to a viable fetus...............................................20 PrescriptionIf the nuisance has been continued for 20 years without interruption the defendant will not liable if s/he pleads a prescriptive right to the nuisance................44 prima facie case.................................................. (1) a strict duty owed by a commercial supplier (to supply safe products) owed by a commercial supplier of a product (2) breach of that duty, (3) CIF and PC and (4) damage....................................................39 Prima facie case.................................................. duty, breach of duty, cause-in-fact, proximate cause (scope of liability) and damages..................................................16 Prima Facie Case.......................................56, 57 Primary publisher each individual.................35 Principle includes quarantine and other physical restraints that would otherwise be false imprisonment or battery..............................15 Prior to verdict, B settles for $100k.................27 Privacy > false light > defamation..................37 Private (s not subject to constitutional limitations unless the defamatory statement involves a matter of public concern.............36 Private Figure..................................................60 Private Necessity.............................................15 Private P........................................33, 34, 60, 61 Private P v media D - negligence, P must prove the statement was false (............................33 p)Private Person v. Media Defendant in Respect to a Matter of Public Concern.................60, 61 The plaintiff has the burden of proof on falsity.......................................................61 Private Person v. Private Person in Respect to Private Matter..............................................60 Private property may be used or taken in order to avoid a greater harm to persons or other property.......................................................15 Private property rights are subordinate to the safety of society and the community...........15
76 of 82
Privilege present when D reasonably believes use of force in self-defense is necessary, even if D is mistaken............................................14 Privileges - Affirmative Defenses.....................12 Privity not required....................................38, 39 Privity not required..........................................38 pro rata............................................................27 Pro rata............................................................27 PRO RATA / PRO TANTO EXAMPLES.................26 pro tanto..........................................................27 Pro tanto..........................................................27 Product not substantially altered.....................39 product was defective (USE AN EXEMPLAR for comparison).................................................40 Products Liability.............................................37 Professionals Because of the specialized skill and training needed to be a doctor, lawyer, accountant, architect, or engineer, are held to the objective duty of care of all professionals in the field - Heath.......................................20 Proof - exemplar (replicate the accident with an exemplar, which will also be defective).......40 Proof of actual damages is required constitutionally for a private plaintiff suing a media defendant or when a private person is suing in respect to a matter of public concern, when negligence but not malice is proved. See the discussion below.............................59 Proof of Defect..................................................... Proof of defect may be made by direct or circumstantial evidence. Friedman v. General Motors Corp. (text p. 766) (defective gearshift).................................57 Property may be destroyed or other, otherwise tortious conduct committed when necessary, or apparently necessary, to prevent greater harm to the community...............................15 Prove that it happened while you were using it as it was intended to be used. Then show{CIF/PC/Damages }............................39 Proximate Causation........................................37 Proximate Cause.................................................. A cause is a proximate or legal cause if the harm to the plaintiff is foreseeable..........57 PROXIMATE CAUSE....................................24, 47 Public (s..........................................................36 Public companies have no inherent duty to private citizens. (Moch Co.)..........................18 Public disclosure of private facts about the . (1) Publication or public disclosure of private information about the ; AND (2) the matter made public is such that a reasonable person would object to having made public.............37 Public Figures/Officials......................................... The plaintiff has the burden of proof on
76 of 82

falsity.......................................................61 Public interest (statements made to a parole board about a prisoner by one who opposes his release),.................................................34 Public Necessity...............................................15 public official has expanded even to people who come into the public eye involuntarily.........34 Public Official/Public Figure..............................59 Public officials are to be treated, 501-502, 1-5 19 Public P......................................................33, 34 Public P v media D - constitutional malice, P must prove the statement was false (..........33 Publication...............................35, 37, 58, 61, 62 Publication means communication to a third party other than the plaintiff. Economopolous ....................................................................58 Publication of Private Facts..............................61 Punitive - additional sum, over and above compensation damages, in order to punish and deter, also not available in action for negligence...................................................29 5.Punitive Damages...................................59, 62 If Britdonna shows actual malice (see the discussion above), she may recover punitive damages.....................................62 Pure..................................................................... P recovers regardless of his guilt (even if only 1%)...................................................25 Pure Economic Loss.........................................28
77 of 82
Q
Qualified Privilege............................................34 Query if there is a matter of public concern here ....................................................................60 Query whether Vincent was negligent in using the old quote without checking first with Britdonna.....................................................61 Question of Law................................................... Although it depends heavily on the facts, the determination of public figure status is a question of law.........................................60
R
Rationale is that ..............................................15 Realtors. Duty to disclose...............................20 Reasonable Alternative Design........................56 Reasonable belief of theft................................15 Reasonable means to detain...........................15 Reckless disregard for the truth means that ( had a high degree of awareness of probable falsity...........................................................60 Reckless disregard has also been defined as that the author in fact entertained serious doubts as to the truth of his publication......60 RECOVERY OF PROPERTY.................................15 reflect scientific knowledge.............................24 Regulated by statute.......................................16
regulation........................................................18 Rejected in FL bc a passenger can in no way exercise control over the vehicle in which he rides.............................................................30 Religious counselor to refer suicidal young man to mental counselor.....................................22 REMEDIES........................................................44 Repetition each repetition is a separate act for which the ( may be held liable.....................35 Reports of public proceedings,........................34 Republisher. Look for an increase in defamation...................................................35 Required for medical treatment.......................12 REQUIREMENTS...............................................42 Requisite harm to the plaintiff.........................58 Requisite level of fault, and.............................58 Res Ipsa Loquitur.............................................23 Respondeat Superior is one type of vicarious liability of an employer for the negligence of the employee in the course and scope of employment. (includes frolics).....................31 Restatement (2d) of Torts 558......................58 Restatement looking back . . .......................18 Risk of serious bodily harm if not treated........13 Risk-benefit. The risk-benefit test is used in complex cases, using the following factors...... (See Prentis v. Yale Mfg. Co. (text p. 740) (forklift design).)......................................56 ROL...................................................................... Bailor is not vicariously liable for the tortious conduct of his bailee................................32 Remedial Statutes are given liberal construction, but where there is a statute in derogation of the CL, the statute shall be interpreted strictly...................................32 A public figure could not recover without proving such statements were made with New York Times malice, i.e., with knowledge or reckless disregard toward the truth or falsity of the assertion..........12 ROLEntire Controversy Rule............................... the entire controversy is assumed to be before the court and is judged as such, 361 .................................................................25 Rule/Analysis.............................................46, 47
S
Safety of the product. It is very likely that an automobile will cause injury. It is a multi-ton collection of metal moving at over 60 miles an hour. Accidents are inevitable. This favors C..................................................................47 salesmen canvassing at the door of private homes..........................................................19 Same as defamation qualified and absolute....37 Same as joint venture......................................32
77 of 82

Satisfied under Cardozo view if injury sustained by plaintiff under the circumstances was foreseeable..................................................55 Scope of consent may not be exceeded - Mohr; Hackbart......................................................12 Secondary publishers knows or should have known..........................................................35 See Duty..........................................................55 See EXAM notes to make case for strict liability in tort...........................................................39 See the discussion below concerning malice.. .59 SELF DEFENSE.................................................13 Self-defense must be in response to an immediate threat of harm............................14 servants or other third persons........................19 Severe emotional distress...............................12 Severe Emotional Distress...............................63 Ship sinking = Slim chance............................28 Short Answer....................................................... YES, C is liable in strict liability in tort........47 YES, C will be held liable in negligence......46 Should Joint & Several Liability be abolished in Comparative Negligence Jurisdictions?........26 sic utere tuo ut alienum non laedas (So use your own property as not to injure your neighbour's).................................................41 Since medical treatment requires consent, the determination of the effective actual consent is critical in this context. A medical procedure without the patient's consent can constitute a battery. Mohr..............................................13 Single Publication Rule....................................58 Slander is spoken defamation that lacks the permanency, broadness and premeditation of libel..............................................................35 smell from neighbours' pig farm......................42 Smell of formaldehyde is unreasonable...........42 smells and fumes from candle making invading adjoining land..............................................42 SO....................................................................27 So, must discuss Andrews, Cardozos, & Restatements views to determine whether or not a duty exists..........................................17 social guests (an incidental service rendered to an occupier does not clothe that social guest as an invitee)...............................................19 Some courts require malice only for matters of public interest..............................................62 Some courts use the consumer expectations test when the product is a simple consumer item.............................................................56 Some members of a small group. If a reasonable person would view the language as referring to the .....................................35 special damages..................................................
78 of 82
subject to objective measurement (lost earnings, medical expenses, etc..............29 Special Damages................................................. Damages for Libel Per Quod........................59 Special damages involve loss of economic benefits, such as loss of job.........................59 Special damages usually required...................35 Special Relationships. See discussion of Common Carriers.........................................21 Specific intent...................................................... having this purpose, OR............................10 Specific Situations...........................................18 spectators and sightseers................................19 speculation is not enough to establish cause in fact - Gentry.................................................24 Standard.............................................................. The lessor knew or should have known of the risk and he realizes or has reason to realize the unreasonable danger, and the lessee didn't know or have reason to know. .................................................................19 Stated above...................................................48 Statement was false........................................34 Statements of opinion are defamatory if (1) it appears to be based on specific facts and (2) an express allegation of those facts would be defamatory. E.g. I dont think John can be trusted with a key to the cash register........35 Strict Duty.......................................................56 Strict Liability.................................33, 39, 40, 49 Strict Liability in Tort (Greenman, 732)............39 STRICT PRODUCTS LIABILITY ESSAY OUTLINE. 56 Subjacent (house collapses through the support from the bottom ( strict liability...................42 Subsequent Accident.......................................25 Subsequent Disease........................................24 Subsequent medical malpractice.....................24 Survival................................................................ P's own claim that he/she'd be able to pursue had he lived is compensable. Calculated by gap between (injury & death) or (negligent contact/conduct & death)......................................................30 Survival / Wrongful Death................................29
T
Tenant remains liable to invitees and licensees. ....................................................................20 The unforeseeable.........................................17 The ('s failure to act as a reasonable person would have under the same or similar circumstances. Where reasonable minds can disagree, the jury decides whether the defendant has breached a duty...................23 The approaches for determination of the meaning of defect in design fall into four
78 of 82

general categories. (Prentis v. Yale, pg. 744) ....................................................................50 The approaches to determining defect in design fall into four general categories............ (745)...........................................................37 The availability of a substitute product that would meet the same need and not be as unsafe..........................................................56 The availability of a substitute product which would meet the same need and not be as unsafe..........................................................51 the burden is on the remaining D's to prove market share...............................................24 The defendant's voluntary action must be the direct or indirect legal cause of the harmful or offensive contact. However, defendant need not herself actually contact the victim.........10 the duty of condemning agent to protect a severed parcel from damage.......................32 The existence of an absolute duty on teh amrt of the ( to make safe;...................................33 The experts contended that a three point shoulder harness lap belt would have prevented Brantleys injuries.......................51 The failure to inform the patient of risks when procuring consent is now, however, usually treated under negligence.............................13 The feasibility of alternative, safer conduct;...18, 54 The feasibility on the part of C of spreading the loss or carrying liability insurance. It is very easy for C to carry insurance and/or spread the loss in this case. This factor favors JB.. .48 The feasibility on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance....54 The force of the collision caused Brantley to suffer a spinal cord injury and the paralysis of his right arm..........................................54, 55 The fourth combines the risk-utility and consumer expectations tests. (Prentis v. Yale, pg. 745).......................................................50 the freedom allowed to the employee in performing his duties...................................31 The importance or societal value of the activity or goal of which Ds conduct is a part;. . .18, 54 The K must be for P's direct benefit.................28 The lessor is not the insurer of the safety of his lessees, but only has the duty to take those measures within his power, which can reasonably expected to mitigate the risk of intruders. (the cost may be passed onto the lessee by increasing rent)............................20 The liability of a supplier of a product to one injured by the product. There are 5 theories
79 of 82
of liability that a P may use.............................. Intent, Negligence, Strict Liability, Implied Warranties, Representation Theories.......37 The locality......................................................43 The majority view holds there is a privilege to use reasonable force to protect a third party whenever the actor reasonably believes a third party is entitled to exercise self-defense. ....................................................................14 The manufacturers ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility.............52, 56 The minority requires malice for a private person suing a media defendant in respect to a matter of public concern...........................60 The non-performance of a legal duty...............22 The plaintiff may recover compensatory damages, measured by the reasonable value of the use of her identity..............................62 The press release did not constitute slander per se, because posing nude should not qualify as impugning the chastity of a woman.............59 The relationship btw and among (s (nothing to do with 's!).................................................26 The relative cost of safer conduct;.............18, 55 The relative safety of alternative conduct. 18, 55 The relative utility of safer conduct;..........18, 55 The Restatement does not adopt the doctrine generally, but does endorse transferred intent between assault and battery.......................10 The Restatement suggests that at least negligence is required in all cases of publication of private facts..........................61 The risk of collisions was foreseeable and the design must reflect that. Today, this view has swept the field.(note 3, pg. 749)(Larsen v. General Motors Corp., 391 F.2d 495)...........51 The safety aspects of the product the likelihood that it will cause injury, and the probable seriousness of the injury...............56 The safety aspects of the product-the likelihood that it will cause injury, and the probable seriousness of the injury..............................50 The seatbelt did not remain on the pelvis because the facts state that JB submarined under the seat belt as a result of the accident; therefore, there was a breach of the duty....46 The second, associated with Dean Keeton, compares the risk and utility of the product at the time of trial. (Prentis v. Yale, pg. 745). . .50 The standard is whether the statement is substantially true.........................................61 THE STANDARD OF CARE.................................17 The state of the defendant's land. An occupier
79 of 82

must take such steps as are reasonable to prevent or minimize dangers to adjoining land from natural hazards on his land. However, the danger must be patent and not latent for there to be liability.......................................43 The statement as made was true (but see the discussion above)........................................62 The third focuses on consumer expectations about the product. (Prentis v. Yale, pg. 745)50 The traditional common law view, still reflected in the Restatement, but increasingly discredited, would authorize the use of deadly force when needed to prevent mere intrusion into a dwelling.............................................15 The traditional rule was strict liability..............60 The usefulness and desirability of the product its utility to the user and to the public as a whole...........................................................56 The usefulness and desirability of the productits utility to the user and to the public as a whole...........................................................50 The user must pay the value of any damage to the property. No punative damages...........16 The users ability to avoid danger by the exercise of care in the use of the product...53, 56 The users anticipated awareness of the dangers inherent in the product and their avoidability, because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions. ....................................................................56 The users anticipated awareness of the dangers inherent in the product and their avoidability, because of general public knowledge of the obvious conditions of the product, or of the existence of suitable warnings or instructions. ....................................................................53 The utility of an automobile to the public as a whole is undeniable.....................................50 The utility of the conduct as a means to that end;.......................................................18, 54 The victim's response must be reasonable. Force intended to inflict death or serious bodily injury is only justified if the individual reasonably believes she would suffer serious bodily injury or death from the attack..........14 THEN................................................................27 Then, ask if it's one of the exceptions which take into account the subject matter of the transaction...................................................30 There is no contribution in states that have eliminated JSL..............................................26 there is no proximate cause without causationin-fact..........................................................24
80 of 82
There is no RAD available for The Rope...........57 There is nothing in the facts/evidence to support that the seat belt was altered in any way after leaving the manufacturer.............................48 There must be no apparent escape or risk of harm in escape............................................11 There must be privity of K btw parties in order to maintain an action for professional negligence [unless that person is a third party beneficiary.] (Clagett)..................................22 THEREFORE.....................................................27 Therefore, special damages must be proved if the press release constitutes libel per quod.59 Therefore, the statement . . . may be construed as libel per se..............................58 Therefore, the statement is, at a minimum, libel per quod......................................................58 These damages consist of quantifiable monetary losses, such as loss of customers (due to the injury to the plaintiff's reputation)...............59 Things attached to P, in P's possession, or in which P is located (e.g. a car)-Fisher..........11 This decision is now primarily a matter of state, not constitutional, law..................................60 This is a liability limiter....................................24 those in search of their children......................19 Those without physical damage are barred from recovering (M/V Testbank)...........................28 Threat or harm to a family member in the presence of P might be sufficient.................12 Threats of future physical violence might be sufficient - Siliznoff.....................................12 Three views-Cardozo, Andrews, Yun/Restatement.........................................55 Thus, general damages, in the form of lost friends or humiliation, may be recovered without any proof.........................................59 Thus, the statute imposes a pure comparative negligence standard....................................57 time consumed in deviation.............................31 Time, nature, and place of deviation...............31 To be defamatory, language must be capable of injuring a reputation, as judged by the ordinary person............................................58 to counter a RIL inference, offer an alternative cause!..........................................................23 to impeach the plaintiff's testimony that he or she had paid his medical expenses himself. 29 To protect children from molestation...............22 to rebut the 's testimony that he was compelled by financial necessity to return to work prematurely or to forego additional medical care................................................29 To recover for negligence, the plaintiff must establish each of the following elements by a
80 of 82

preponderance of the evidence (that is, by more than 50%)...........................................16 to show that the plaintiff had attributed his condition to some other cause, such as sickness.......................................................29 to show that the had actually continued to work instead of being out of work, as claimed ....................................................................29 To Whom the Duty is Owed The strict duty is owed to a user or consumer of the product and to a foreseeable bystander, without regard to privity of contract.........................56 Tort Involved. Will most likely be battery........38 Torts II, 1, Practice Exam..............................46 Track accidents by date...................................28 Trespasser must prove negligence (vicious watchdogs are an exception bc danger is foreseeable).................................................33 Trespasser. One who comes onto land without permission or privilege.................................18 Trespassing animals the owner is strictly liable for damage done by his trespassing animlas as long as it was reasonably foreseeable.....33 Truth....................................................34, 61, 62 Truth (See Kilian v. Doubleday & Co., Inc. (text p. 841) (article about WWII actions of colonel)).......................................................61 Truth generally is not a defense, except for false light.............................................................62 Truth is a defense when a private person sues a private defendant in respect to a matter of private concern............................................61 Two part test...................................................23 Types of Defects..............................................38
81 of 82
undisclosed risks resulting in injury.................21 Undiscovered Trespassers. No duty................18 Unprivileged publication to a third party,........58 Unusual amount of trash.................................42 use expert medical testimony to separate out accident.......................................................28 Use of Altered Quotations................................60 Usually against will but not required if P confined w/o knowledge but injured............11
V
verdict $500k...................................................27 Vicarious Liabiltiy.............................................31 Vicious DOGS clear notice of danger. Use of force acceptable..........................................14 Violated by INTENTIONAL violation by D of safety rules of sport or activity....................13 Void and unenforceable in many states...........31 Volitional act........................................10, 11, 12 Volitional Act (not while sleeping)..................10 Volitional act OR Series of Acts........................12 voluntary intoxication does not mitigate intent ....................................................................10 Voluntary repairs by lessor. Must not make repairs negligently.......................................20
W
Warnings Defect........................................38, 40 Warnings Defects. A type of design defect where the product does not have clear and complete warnings.......................................38 Warranties extend to bailments, leases, and sales............................................................39 were incidental acts reasonably expected by employer?....................................................31 What Constitutes Actual Malice.......................60 What constitutes the dimensions of the consent can often be a different issue of fact. Hackbart......................................................13 What is germane is the fact that collisions are so frequent and common that they must be considered an unavoidable incidence of the normal and proper use of automobiles.. 51, 53 What is germane is the fact that collisions are so frequent and common that they must be considered an unavoidable incidence of the normal and proper use of automobiles. (Turner v. General Motors Corp., 514 S.W. 2d 497).............................................................53 When Actual Malice is Required.......................60 When actual quotation is involved, actual malice may be found if ( materially alters the meaning of the quotation by changing words or punctuation.............................................60 When the D appropriates or injures a private property interest to protect the community. Public necessity is a complete defense........15
U
Ultrahazardous activities (substantial risk of serious bodily harm)....................................33 Unchastity of a Woman....................................36 Under negligence per se, the statute states, in pertinent part, in s. 4.1(b) A seat belt.......48 Under state, law, the plaintiff will not be limited to actual damages if just negligence is proved -- presumed damages may be recovered in the appropriate case (i.e., slander per se) without a showing of malice.........................60 Under the consumer expectations test, the question is whether the item performs according to the expectations of the ordinary consumer.....................................................56 Under the transferred intent doctrine, accepted by many courts, intent can be transferred between five torts (battery, assault, false imprisonment, trespass to chattel, and trespass to land) and different victims within these five torts. Talmage..........................10
81 of 82

When the individual appropriates or injures a private property interest to protect a private interest valued greater than the appropriated or injured property. Vincent v. Lake Erie Transportation Co........................................15 When the statute contains its own excuse AND on the facts the statute is violated, the court should treat as violation of negligence per se and send to a jury Zeni.............................22 when the transaction involves the public interest........................................................31 where atty had notice that client threatened to cause judge serious harm............................22 Where compliance would be beyond (s control ....................................................................22 Where compliance would cause more danger. 22 Where harm is truly indivisible, impose JSL. If combination of harmless chemicals creates harmful one, once the P meets his burden of proof, the burden shifts to the D. (Michie). . .28 Where P has a pre-existing condition it must be exacerbated by an increment that qualifies as severe - Harris (but, see ..............................12 where separate acts of negligence combine to produce a single harm, each tortfeasor is responsible for the entire result - Hill...........24 where two things join to cause the harm, but only one tortfeasor is known, he is still responsible - Anderson................................24 Which causes apprehension of harmful or offensive contact w/ P's person....................11 Which causes the harmful or offensive contact ....................................................................11
82 of 82
Which was the actual and proximate cause of the 's injury; AND.......................................33 While all agree that there is no duty to design a crash-proof car, one court has termed it a non sequitur to use this truism as a basis for saying that there is no duty to design a crashworthy car. (Badorek v. General Motors Corp., 11 Cal. App. 3d 902)..........................52 Who is liable?...................................................35 WHO MAY BE SUED..........................................44 WHO MAY SUE.................................................44 Wild animals strict liabiltiy............................33 Will be found if all four factors est'd in medical emergency (see ..........................................13 With the Plaintiff's person, AND.......................11 work for which employee was hired.................31 Wrongful Death (types on 569)............................ Pecuniary losses caused by the death of a loved one as outlined by statute..............30 Wrongful Life not recognized where the failure to diagnose a congenital defect or to properly perform a contraceptive procedure does not lead to liability.............................................20
Y
You alluded to the relevant fact in this case (three point shoulder harness), but you needed to provide the applicable rule of law. ....................................................................49
belongs to the class that the statute was intended to protect......................................22 must be within the zone of danger..............21 must suffer physical manifestation of injury. 21
82 of 82

T II Outline Final 11

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

T II Outline Final 11

Uploaded by

Copyright:

Available Formats

Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010 Table Of Contents

I. Intentional Torts .....................................................................................10

II. Privileges - Affirmative Defenses .............................................................12

Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010

IV. Joint Tortfeasors ....................................................................................25

Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010

Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010

IX. Survival / Wrongful Death ......................................................................29 X. Defenses ................................................................................................30

Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010

XII. Strict Liability.......................................................................................33

Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010

Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010

XVI. Nuisance..............................................................................................41 XVII. STRICT PRODUCTS LIABILITY ESSAY OUTLINE.......................................56

XVIII. NEGLIGENCE Essay OUTLINE after STRICT LIABILITY..............................57

XIX. DEFAMATION ESSAY OUTLINE................................................................58

Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010

XX. INVASION OF PRIVACY...........................................................................61

XXI. INFLICTION OF EMOTIONAL DISTRESS....................................................62

Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010

Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010

Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010

Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010

Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010

Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010

Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010

Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010

Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010

Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010

Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010

Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010

Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010

Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010

Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010

Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010

Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010

Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010

Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010

Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010

Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010

Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010

Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010

Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010

Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010

Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010

Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010

Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010

Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010

Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010

Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010

Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010

Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010

Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010

Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010

Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010 1

Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010

Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010

Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010

Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010

Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010

Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010

Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010

Torts II Cumulative Exam Outline, Professor Robert Mensel, Spring 2010