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NEGLIGENCE

Elements: 1. Duty: a legally recognized relationship b/w parties that requires D to act a certain way 2. Breach: A failure of D to meet the required standard of care 3. Causation: Nexus b/w Ds conduct and Ps harm 1. Factual (actual) cause - "but for" 2. Proximate (legal) cause 4. Damages: A cognizable loss to P, compensable by a money reward 3. CAUSATION: 1. Proximate Cause: (1) Reasonably foreseeable harm of the consequent damage (2) Liable for anticipated/expected consequences of Ds neg. acts Factors: 1. Foreseeable Consequence 1. Type of Harm (foreseeable) Not Extent of Harm 2. Eggshell Skull, the harm (foreseeable) not Particular Type of Harm 3. Unusual Manner, manner need not be foreseen 2. Not too attenuated (in time and space) 3. Natural and Continuous Sequence 1. NO superseding Intervening Forces: Unforeseeable intervening forces - Cut Off Liability Later int'l/crim conduct; extraordinary or far removed from Ds neg. severs prox. Cause Foreseeable Intervening Forces - DO NOT cut off liability Later neg. by others Later acts of nature; unless extraordinary or unanticipated 4. Direct Connection (w/public policy reasoning) 4. DAMAGES P must prove actual damages ($loss) as part of their prima facie case for Negligence Tort Damages: COMPENSATORY: "to make P whole again" Purpose: restitution and indemnity (nothing more) 1. Special (money damages) - must be plead and provide evidence Medical and related expenses Lost earnings/earning capacity General (non-econ relief) - no calculations Pain and suffering

Complete Destruction - Fair mrkt value Partial Damage - Diminution in Fair mrkt value OR Cost of Repair Temp. Deprivation of Use - Rental value Not avail. In Neg Actions

NOMINAL: small sum awarded to prove a point

Purpose: Vindicate Ps rights or Prevent D from acquiring A Right

PUNITIVE: additional sum awarded over/above compensation

Not avail. In Ordinary Neg Actions

Purpose: punish the D and deter others engaged in similar conduct Available when Ds conduct is outrageous D's act with Reckless disregard or Malice RULES: Single Recovery: All compensatory damages [past/present/future] must be awarded @ time of trial Adjust for time value [ for inflation for present value/interest ] Duty to Mitigate: no recovery for aggravated damages [ Doctrine of Avoidable Consequences] P is responsible to limit losses by exercising reasonable care 3. Collateral Source: Ps damages are NOT affected by compensation received from collateral sources P gets a windfall; tort reform ha eliminated the rule in some states 4. Maximum Recovery: Jury award must be reasonably supported by the Evidence Cannot be 2nd guessed by judge if w/in max. amnt. supported by the evidence LEGAL VIDEOS: "Day in the life" - used as evidence during the damages phase @ trial "Settlement Documentary" - used pre-trial to present case Damages With Mutiple Ds JOINT TORTFEASORS: D's who either 1. Act in concert; agree to aid, engage, or encourage a tort 2. Cause a single divisible harm; from independent acts 3. Are Vicarious Liable; based on a special relationship RULES: COM. LAW: Joint and Several Liability Entire amount recoverable from each tortfeasor; OR A share of the damages from each BUT; no double recovery MODERN: Comparative Fault P may recover only fault based share from each tortfeasor

DEFENSES TO NEGLIGENCE

Based on Ps Conduct CONTRIBUTORY NEGLIGENCE: COMPLETE BAR (1) Ps own conduct falls below the strd. of care and (2) is a legally contribution cause UNLESS; D had the Last Clear Chance (doctrine) to avoid the harm If applicable: D remains liable despite Ps prior neg. COMPARATIVE NEGLIGENCE: LIMITS RECOVERY Pure: can recover regardless of own neg. but Ps recovery is reduced by own fault % Modified: Ps recovery is reduced by % of own neg. OR BARRED - IF P's negligence EXCEEDES the fault bar [level of culpability] is "greater than" Ds neg = BAR {Majority} is "Equal or Greater than" Ds neg = BAR

is "More than Slight" = BAR {1 State} ASSUMPTION OF THE RISK [A/R]: Generally D is NOT LIABLE Where P knows of the risk posed by Ds conduct and voluntarily encounters it 1. EXPRESS A/R : by K or other explicit agreement P accepts risk: COMPLETE BAR Exceptions; (assumption is invalid) 1. Intentional, Reckless or Gross Negligence (by D?) 2. Grossly unequal bargaining power 3. Public Interest Transactions i. TUNKL TEST: (determine what is pub trans)

Suitable for pub regulation Essential service Services held open to the pub

Superior bargaining power Adhesion K Seller has control over and subjects P to risk

4. Outside the scope of Assumption 5. K invalid, Fraud, Mistake, Undo Influence 2. IMPLIED A/R: Ps conduct shows P assumed risk : COMPLETE BAR D must prove P; (1) Knew of the risk/magnitude, and (2) voluntarily encountered it INVOLUNTARY Conduct: Juris split where P is coerced or under duress P has no reasonable alternative UNREASOANBLE A/R: Juris Split [1] [2] A/R Remains Complete Defense A/R Partial merger w/ COMP Fault Unreasonable A/R Reasonable A/R BAR Traditional

(Patial Defence) Min. Trend Recovery BAR

[3]

A/R Fully merged w/ COMP Fault NO BAR Unreasonable A/R Recovery No or Some Reasonable A/R

Maj. Trend

VICARIOUS LIABILITY [V/L]


Liability based on a relationship not fault (imputed) Employer [ER] / Employee [EE] - Generally Liable (if w/in scope of employment) ER / Independent Contractor [IC] - Generally not Liable Joint Enterprises - Generally Liable Bailment - Generally Not LiablE EMPLOYMENT V/L Step 1: Is the tortfeasor an EE or an IC Test: Right of Control - Factors

Control over details Similarity of occupation to business Extent of supervision

Tool provider and place of work Length of employment Payment method (salary EE) Understanding of the parties

Skill level (higher = more likely IC)

EXCEPTION: foreseeable damages that arise from or are related to work Step 2: a. IF EE - Were they acting w/in Scope of Employment Test: "Going and Coming Rule" - EE ordinarily outside scope while commuting to/from work EXCEPTION: foreseeable dangers "Frolic and Mere Detour Rule" Frolic: personal acts far removed in time, distance, purpose, and expectations of employment - outside scope Detour: personal acts closely related in time, distance, purpose, and expectations of employment - within scope "intentional Torts" ER V/L for EE int'l torts where EE acted to serve ER's purposes ER NOT V/L for EE int'l torts when EE acted purely for personal reasons b. If IC - Do any exceptions apply to general rule of No V/L Exceptions: "Non-Delegable Duties" - as a matter of pub policy cannot discharge duties by hiring someone else "Inherently Dangerous Activities" - Require more than ordinary precaution ER Not V/L if IC engage in collateral negligence - risk not usual to work -crop dusting, moving giant logs, unloading propane JOINT ENTERPRISES - mostly applies to commercial ventures Factors: Agreement, common goal, pecuniary purpose, equal right of control BAILMENTS - loaning chattel to another Exception to general non liability; Permission given to the driver - bailee from bailor Car consent statutes, bailor is passenger in car, Family Purpose Doctrine

STRICT LIABLITY [S/L]


Liability without fault, not absolute b/c need prox cause and some defenses are awarded ANALYTIAL FRAMEWORK:

o o

Step 1: are S/L Animals or S/L Activities involved Step 2: is type of harm w/in the inherent risk posed by Animal or Activity Step 3: is there causation, factual but for and prox cause foreseeable harm Step 4: does D have any Defenses TRESPASSING ANIMALS - keepers of roaming animals are S/L for any harm caused Exceptions: cats and dogs, livestock straying from highways Livestock Statutes: Fencing out - P fences out Fencing in - D fences in Strict liability - same as common law No liability w/o fault DANGEROUS ANIMALS - 2 Tests; wild v. domestic 1. Inherent Nature of Species - dangerous and untamable Look at entire class of animal, not just the particular case 2. Customarily of Service to Humankind - determined by community standards Wild - S/L - provided the type of harm results from the animals dangerous nature unless exception exists (zookeeper) Domestic - ordinarily not S/L for harm Exception; if owner is on notice (or should have known) of animals vicious propensities (scienter) Subject to statutory modification ABNORMALLY DANGERUS ACTIVITIES - 2 approaches 1. Rylands: when a person brings something thats harmless as long as it remains, BUT would naturally do mischief if it escapes the property, the owner is S/L for all natural consequences Exceptions: Acts of God (as a superseding innerving cause), unnatural consequence, Ps contrib. neg Applies only to harm to property from non-natural uses of property RS 2nd Factor Test : (balancing) 1. High risk of some harm 2. Likelihood of great harm 3. Inability to eliminate risk w/out reasonable care 4. Uncommon usage Community strd Masses of humanity engage 5. Inappropriate location 6. Value to community outweighed by danger of activity ] Hand formula: B<PL B = Burden, P = probability of harm, L = magnitude of harm Activities: Dynamite blasting, tox chem ship/storage, pile driving, fumigation, rocket testing DEFENSES A/R - know/voluntarily encounters risk Privileges and immunities - exempt because of public good or government requirement Comparative fault - not defense, results in reduction Contributory negligence - not complete defense, some jurisdictions allow for reduction

PRODUCTS LIABLITY
1. Governs liability for the commercial transfer of products that cause harm b/c they are defective and/or falsely represented NEGLIGENCE Duty: owed by all Products Sellers (Ds) to Purchasers and other foreseeable Ps Breach: Unreasonable product design, mfg., or warnings Causation: But for factual and proximate foreseeable harm legal cause Damages: $ loss from physical injury or property harm Defenses: Comparative fault, Implied A/R, Unforeseeable Product Misuse (will bar p's claim if injury results from unforeseeable misuse of defective product - but not if misuse was reasonably foreseeable) INTENTIONAL Requires: Intent: D Intended consequences or KTSC harm would occur Damages: Compensatory and Punitive (like intl torts) Defenses: Consent only (no neg defenses for intl torts) MISREPRESENTATIONS: RS2nd 402b - Seller of any product in a defective condition unreasonably dangerous to the consumer/user of property is subject to liability of physical harm Elements: 1. Merchants 2. Who make a misrepresentation of material fact to public in advertising, labels or otherwise 3. Are liable to P (consumer or incidental user) if justifiably relies on the misrep 4. And damages for physical injury proximately result Defenses: Ps Neg and A/R STRICT PRODUCTS LIABLITY (RS 402A) manufacture, design, warning defects IF; 1. Seller is engaged in the business of selling such a product and 2. It is expected to and does reach consumer without substantial change in condition Elements: Commercial seller and consumer user; enjoy, prepare for use, doing work w/ product) Defective product that is unreasonably dangerous The defect caused physical harm or property damage The product is expected to and does reach consumer without substantial change MANUFACTURING DEFECTS: does not conform to some significant aspect of the intended design nor does it conform to the great maj of products with that design Test: Product unit is dif from others Is more dangerous Defect existed @ the time the product left Ds control Considerations: post sale alterations, time passage, settlements

2.

3.

4.

2. DESIGN DEFECTS: occur when intended design of whole product line is inadequate and needlessly dangerous Tests: Risk Utility - If R > U then design defect R=Risk of harm from product design. U=Utility of product as designed RS3rd Factors: 1. Usefulness and desirability to user/public 2. Safety aspects of product 3. Available substitute 4. Ability to make safe without increased cost/usefulness 5. User ability to avoid dangers 6. Mfg. spreading loss > insurance 7. Consumer expectations State of the art: Existing level of technological expertise and scientific knowledge of a particular industry at the time the product was designed

Consumer Expectations : defective product design if it is Dangerous to an extent BEYOND that contemplated by the consumer with ordinary knowledge common to the community as to its characteristics Hybrid Approach: Prong 1: Consume Expectations Test: P must prove product failed to perform safely as an ordinary consumer would expect Prong 2: Risk/Utility Test: if p proves the products design proximately caused the injury, D must prove U> R (utility as designed was greater than risk of the harm) Availability of Safer Design Alternative: Courts split on if P must prove a safer, practical, alternative design was available to the manufacturer Unavoidably Unsafe Products Doctrine: risk/benefit analysis; Even though the product is dangerous (aka serious cancer drug side effects), the product is not defectively designed b/c the risks outweigh the benefits of the product (cancer drugs saving a life) This exception typically applies to medical devices where a. The product is unavoidably unsafe (incapable of being made completely safe) for its intended and ordinary use b. The product has an extraordinarily high utility c. The utility of the product outweighs the dangers; and d. The product is sold with appropriate directions or warnings are provided. 3. WARNING DEFECTS: Rule: manufacturers obligation is to inform consumers of hazards which seller knew or should have known at the time of manufacture and distribution For S/L failure to warn, P must prove Ds actual or constructive knowledge of the products potential risk/danger

Manufacturer owes no duty to warn about risks that are open and obvious Adequacy of Warning: Content - comprehensible and fair indication of specific risk Form - Reasonably catch consumers attention Factors:

Gain Attention

Instruct on Avoidance

2. Identify Hazard

4. Provide Remedy

Sophisticated User Doctrine: exempts sellers from duty to warn if the buyer already knows of the risk b/c of his expertise Learned Intermediary Rule: pharmaceuticals - warnings can be directed at Dr. not patient and seller owes no duty to warn to patients Post Sale Duty to Warn Doctrine : imposes a duty for manufacturer to provide post sale warnings about risks discovered after the sale

MISREPRESENATION
[Commercial] harm caused by Ps justified reliance on Ds false representation of material fact Words or Actions that: 1. Create false impressions 2. Cover up 3. Remove discovery opportunities Methods for Achieving Misrep: 1. Active Deceptions (words/actions) 2. Certain Failures to Disclose a. Fiduciary relationship = duty b. Buyer unable to discover w/ reasonable diligence = maybe duty 3. Partial Disclosures, 1/2 Truth Factors for Misrepresentation: (Int'l, Neg, S/L) 1. Must be MATERIAL TESTS: Objective - a RPP would attach importance to it Subjective - D knew or should have known of the particular P would consider it important 2. Must be Past or Existing FACT Gen Rule: Opinions such as Puffering, Trade Talk, ad Statements of Value are not actionable Exception: parties are of unequal footing Opinions are Actionable when; 1. Ds with superior knowledge and expertise 2. Fiduciary Duty 3. Independent Neutrals Predictions: Statements cannot consist of conjectures of future acts/events UNLESS; the misrep implied existing facts or present intent INTENTIONAL MISREPRESENTATION - Fraud - Factors;

3. State of Mind: Requires Scienter (as to falsity) a. Knowledge that it is false OR b. Recklessness as to the truth 4. Proper Party: Ds liable to persons (or class) whom; a. D intends or has reason to expect will act in reliance of misrep 1. Desire to induce or KTSC they will rely b. Must be reliance on the Type of Transaction D Intended or Expected to Influence c. P must be of the Class D had reason to expect to View the misrep 5. Justifiable Reliance: P cannot rely on a misrep which is obviously false and cannot avoid discovery of the truth a. Factors; Nature of the Statement, P's Qualities and Character, and the Circumstances 6. Damages: a. Benefit of the Bargain = Bargained for Value - Actual Value b. Out of Pocket = Amount Paid - Actual Value NEGLIGENT MISREPRESENTATION - Factors; 2. Limited to Commercial Fact 3. State of Mind: American Rule - Recovery Allowed where D a. Who: Owes a duty to give "Correct Info" Speak with Care b. When: (1) D has Knowledge of Materiality and Reliance AND (2) A relationship exists where P has a righ to rely 4. Protected Parties: a. NY Approach: (Quasi-Privity) - in K Relationship or Equivalent 1. Requires; a. Ds awareness of the particular purpose info to be used for b. " " a specific party intended to rely on info AND c. Linking conduct between D and P showing D understood P would rely b. WI Approach: (Foreseeable) 1. Ps injury must be Foreseeable and Liability Not against Public Policy (PP): a. PP Considerations 1. Injury too remote 2. Injury disproportionate to culpability 3. Too highly extraordinary that neg. brought harm 4. Unreasonable burden on D 5. Fraudulent claims 6. Recovery would open the liability floodgates

c. RS Approach: P must be a person or limited group for; 1. Whose benefit and guidance D INTENDS to supply info (or knows recipient intends to supply info) 2. P relied on an intended transaction or subs. similar one e. Justifiable Reliance and Damages: Same as Intl S/L MISREPRESENTATION 2. Limited to certain Sales Transactions 3. State of Mind: Innocent - D has means of knowing, duty to know or ought to know truth 4. Protected Parties: Privity - only parties of the transaction 5. Justifiable Reliance : same 6. Damages: Same as Intl But LIMITS to OUT OF POCKET DEFENSES (none for Intl Misrep)

1. Contributory Neg: Only Neg. Misrep 2. Comparative Neg: Neg. and S/L 3. A/R: Neg. and S/L

DEFAMATION
Harm to reputation from false statements Com. Law: Def stmts are those that hold P up to "SCORN, RIDICULE, or CONTEMPT RS : Def stmts tend to harm Ps reputation by a. LOWERING him in estimation of community OR b. DETERS 3rd parties from associating with him Elements: 1. DEFAMATORY STATEMENT : must be UNDERSTOOD as defamatory by a. Gen Rule: SOME # of pple b. RS Position: A SUBSTANTIAL minority of pple who are not ANTI-Social c. Min Rule: some RIGHT Thinking people Plead in addition to Def Stmt to Inducement: background info to explain principle that makes the stmt defamatory Innuendo: Explains defamatory Meaning 2. ABOUT THE P : must reasonably be understood by recipients as being ABOUT or CONCERNING the P Colloquium: the formal allegation that the Def words are "of and concerning the P" IF P is a member of a: Large Group: cannot sue; UNLESS particular circumstances point to the P (can an individual in a large group prevail) Small Group: May all sue; IF stmt refers to EVERY MEMBER 3. FALSE : P must prove falsity at least in cases w/ public Ps or Media Ds and Matter of Public Concern Trad Com Law Rule: PRESUMED Def Stmt to be FALSE; but D could asset "TRUTH" as affirmative defense To support Defense based on truth -D must be able to prove the stmts are SUBSTANTIALLY TRUE 4. FACTUAL : stmt must be a fact to be actionable (opinions actionable in limited circumstances) Fact v. Opinion Matters of Pub Concern: Stmt must be PROVABLY FALSE Protected Exception: Rhetorical Hyperbole which cannot be reasonably interpreted as actual facts Gen OPINION Rule: Actionable where it either a. Contains or implies provably true or false facts OR b. Is contrary to speakers actual viewpoint 5. PUBLISHED : (1) COMMUNICATED int'ly or neg'ly by the D (2) to @ least ONE person other than the P who UNDERSTOOD it a. Self Publication: NO publication where P rather than D communicates the Def Stmt EXCEPT; Reasonably expected consultants or Forced Self Publication b. Re-Publishers: REPETION of a published Def Stmt GENERALLY constitutes an actionable publication

Rules a. Primary Publishers: are liable for any repub. EVEN IF they innocently took Def Stmt from someone else b. EXCEPTIONS; 1. Single Publication Rule - entire edition of a book, periodical, or newspaper constitutes a single pub = a single cause of action 2. Secondary Publishers - Are NOT LIABLE a. UNLESS; They (1) had KNOWLEDGE of the Def matter AND (2) Some reason to be put ON GUARD c. Internet Publishers: No interactive comp service is treated as a publisher of info provided by another content provider 6. P must SUFFER DAMAGES : proof of damages turns on; Com Law: whether claim is Libel or Slander Con Law: status of the parties and type of concern SLANDER - Spoken words, transitory gestures and any form non Libel Rule: requires proof of Special Damages unless claim is Per-se Eg. Loss of marriage, customers, gratuitous entertainment Per-se: 4Cs a. Serious Crimes 2. Loathsome Communicable Diseases c. Professional inCompetence 4. Serious sexual misConduct (want of Chastity)

LIBEL - Written or Printed words, or embodiment in physical form of equivalent harmful qualities Rule: allows for general (presumed) damages Per-se: Def meaning understood from the written words alone Per Quod: extrinsic evidence needed to show defamatory meaning *juris split on proof of damages 1st Amendment Elements 7. Ds STATE OF MIND : In matters with Pub Officials/Figures Rule: Pub Officials/Figures can only recover from Def Stmts made with ACTUAL MALICE b/c have/appear to have sub. Responsibly for or control over the conduct of Gov affairs actual malice re true/false Applies to; (1) Pub Official and Pub Figure Ps, (2) Public Matters, (3) Possibly Media Ds PROOF OF FAULT: Actual Malice: reckless disregard for truth or falsity of Stmt Must be sufficient EV that 1. D entertained SERIOUS DOUBTS as to the truth of Pub OR 2. D made Pub w/ HIGH DEGREE OF AWARENESS of Probable Falsity Evidentiary Strd Clear and Convincing Evidence All Purpose Pub Figure: has achieved pervasive fame and notoriety or enjoys pervasive power and influence Limited Purpose Pub Figure: Voluntarily injected him/herself OR Was drawn into a particular Pub controversy and Attempted to INFLUENCE THE OUTCOME

DEFENSES TO DEFAMATION ACTIONS CONSENT 1. Not based upon fraud or duress (voluntary) 2. The publication does not exceed the scope of consent and 3. Made by a competent person TRUTH: D must be able to prove the statements are substantially true **con law cases shifts the burden to P if PO/PF or Matter of Public Concern** PRIVILEGES Absolute Privilege - absolute immunity GOVERNMENT PROCESS (judicial, legislative & executive); Protects statements by Anyone involved in a judicial hearing a. Published in the course of judicial proceedings b. That have some reasonable relationship to the judicial proceedings Legislative privilege protects statements a. Made in legislative proceedings (e.g. floor debate, committee work, witnesses at hearings) b. Made as part of the deliberative process Executive Privilege applies at least to a. Absolute and statutory - limited to hi ranking fed and state gov officials b. Who are exercising the functions of office *The Federal Tort Claims Act protects: Statements by any federal official w/in the scope of employment (exceptions and can be waived) COMPELLED BROADCASTS: Can't sue the outlet that is broadcasting gov. type forced stuff SPOUSAL COMMUNICATIONS: Communication between married couples is protected Qualified/Conditional Privilege - can be lost (if you knew it was false when it was said, or made it with an improper purpose/ill will bad faith)

P has proved all the elements, D is saying that they cannot be held liable b/c of a priv. FAIR COMMENT PRIVILEGE : Protects opinion on matters of public interest Irrelevant: look to provably false standard (if implies facts that are provably true that are objective then actionable) FAIR AND ACCURATE REPORTING PRIVILEGE : Reports on public proceedings are conditionally privileged as long as the reports are Verbatim transcriptions or Fair and accurate summaries (not biased or taken out of context, substantially correct) Lost if not transcribed correctly If 1st amendment applies, D must be at fault INTEREST PRIVILEGES (social utility, but can be los if abused) Public interest: protects statements that are made in the interest of the public, like a PSA, and trying to inform the public Loose if made with malice, or made knowing they are false or to an inappropriate person who is not in a position to benefit Ds self-interest Protected unless know it is false acting with ill will/malice 3rd party interest Common interest

Personal Injury

Property Damage

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