Advanced Torts .doc

8/19/2019 Advanced Torts .doc

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Adv. Torts Outline

Chapter 1 -Development of Liability Based on Fault

Strit Liability

Definition of Torts p. 1

o Torts comes from a Latin word “tortuous” which means twisted, and the French

word tort , which means injury or tort. A Tort is a ivil !ron", other than a

breach of contract, for which the la! provides a remedy. #oliy$

1) Peacefu means for adjustin! the ri!hts of the parties who otherwise woud ta"e the

aw in their hands#) To deter wron!fu conduct$) To encounter sociay responsibe beha%ior &) To restore the injured parties to their ori!ina position, by compensatin! them for their

conditions')( To promote broad distribution of oses amon! the community

%e"ular Tort-%evie!$

o &'(Three basis of Fault&Culpability( that tri""er tort liability$

)ntentional Torts "nowed!e, desire, purpose and substantia certainty.

*e"li"ene- careess, breach of duty* + ,L,,*TS neessary to

onstitute a prima faie ase in *e"li"ene +1) had duty to conform

conduct to a specific standard +#) breached that dutyfaied to conform

to appropriate standard +$)-ausations substandard conduct was/ +a)

Cause-in-fact actua cause of Ps injuries +b) Proximate causethere was

a foreseeabe ris" that conduct woud cause Ps injuries +&) P must pro%eactua damages resutin! from the injury +uni"e some intentiona torts)

0ote ud!e decides +1). ury decides +#), +$a), +$b), and +&). Strit Liability absoute iabiity/ iabiity without faut, imposed

iabiity that is poicy dri%en. +$) -ate!ories/

• Animals

• Ativity &abnormally dan"erous(

• #rodut &defetive(

0istory of Tort La! &fault based system(

o Common la! !rits &ori"inated($

Trespass form of action for direct and immediate force Trespass on the ase form of action for indirect injury +23/ o! on the

street* Li"e in%asion of pri%acy, defamation) odern Tort la!- ci%i action shoud be used ony used to compensate for the harm

done. This e3pains the fact that there must be pro%ed of atual dama"es, except in

intentiona torts if harm was done the injured party woud sti sue in case and reco%er,

e%en if no harm was done.

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'. The acti%ity is inappropriate for the ocation.B. The socia %aue of the acti%ity is not sufficient to offset the ris"s.The basic purpose behind the utrahaCardous acti%ity doctrine is to encoura!e the use of

aternati%e methods when possibe.

0DT2@;-omments/ Anaysis e%o%es around the 7uestion of la! ( one fator by itsef is not suffiient to estabish the abnormay dan!erous acti%ity. The 5est. ta"s about the (ativity Purpose of the acti%ity E appies to both business and pri%ate aue to the community E some %aue coud deem T2@T/ Gased the abo%e restatement +0eed to estabish Prima Facia -ase for Abnorma

an!erous Acti%ity to anaysis usin! the factors and the comments to the 5est.) 0ote # H$ p.I=J E abnr. dan!erous acti%ity

Rylands v !letcher Liabiity e3ist b;c “nonnatura condition” +ar!e Kuantity of water)

: than “natura use”no iabiity* owe%er, the American courts ha%e rejected thisapproach and tended to impose iabiity e%en for “natura use” +character of the thin! orthe acti%ity into Kuestion, pace, manner in which is maintained and the reationship to thesurroundin!s2/ Fire in a firepace E not dan!erous b;c custom dictates its a natura purpose). isabsoutey iabe whene%er anythin! escapes from his contro and causes dama!e ater

the rue e3tended to incude most acti%ities that are e3tremey dan!erous.%ule$ A person usin" his land for a dan"erous/ non-natural use is stritly liable for

dama"es to another8s property resultin" from suh non-natural use.

*otes$ @ubseKuent decisions in 2n!and ha%e foowed the distinction between natura

and nonnatura uses of the and. To determine what is natura, courts ha%e oo"ed not

ony to the character of the thin! or acti%ity in Kuestion, but aso to the pace and mannerin which it is maintained, and its reation to its surroundin!s. For e3ampe/ a car isdan!erous, fata to thousands annuay, but it is hed to be “natura”.

2ary 2S ourts rejected the 5yands decision, mainy b;c it was misstated and that

misstatement was rejected. owe%er, recenty the 9@ trend has been %ery much in fa%orof appro%a of the case, and a substantia majority now fa%ors the case.

"iller v Civil Constructions# $nc E A stray buet injured a man after it ricocheted from a

nearby !ra%e pit durin! firearm practice by aw enforcement officer. The court appied


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&. -rop dustin!'. Poisonous !ases.B. 5oc"ets/ s testin! of roc"et fue hed subject to strict iabiity.I. Firewor"s dispaysJ. aCardous waste disposa site

>. Di wes1=. Mater escape

A%iation74round ama!e/ airines used to be hed stricty iabe for !round dama!e in a crash, but this %iew is no on!er justified with the character of panes and their accident records.Natter of common usa!e7-ars "i and injure more peope and dama!e more property than any

of the acti%ities isted. Gut just i"e transmission of eectricity and natura !as, cars are seen as a

common usa!e and no on!er are hed to strict iabiity standards.

#oliy behind Strit Liability/ ?s founded upon a poicy of the aw that imposes upon anyone

who for his own purposes creates an abnorma ris" of harm to his nei!hbors, the responsibiity of

reie%in! a!ainst that harm when it does in fact occur.

Conlusion/ ?f you fa into this cate!ory wi be stricty iabe/

• @trict Liabiity/

o Animas

o Abnormay an!erous Acti%ity

o Product

Limitation on the Strit Liability

• *e9us ativity in:ury &Causal lin; b

aident must be !


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- Limitations on Strit Liability

Facts/ PL;res Foster owned a min" farm. was en!a!ed in a bastin! operation #.#'

mies away. Foster pro%ided notice that the bastin! operations were causin! the mothermin" to "i their "ittens. The bastin! continued unabated.

Le!a ?ssue+s)/ Mhether the ris" that any unusua %ibration or noise may cause wid

animas, raised for commercia purposes, to "i their youn!, are one of the thin!s whichma"e the acti%ity of bastin! utra haCardous, thereby imposin! absoute iabiityO 0o

Law or 5ue+s)/ Dne who carries on an utra haCardous acti%ity is iabe to another whose

person, and or chattes the actor shoud reco!niCe as i"ey to be harmed by theunpre%entabe miscarria!e of the acti%ity for harm resutin! thereto from that hichma.es the activity ultra hazardous, athou!h the utmost care is e3ercised to pre%ent theharm.

/trict liability is only imposed for those in:uries resultin" as a natural onse7uene of

that !hih ma;es an ativity ultra-ha3ardous.

-ourt 5ationae/ The thin! which ma"es bastin! utra haCardous is the ris" that propertyor persons may be dama!ed or injured by comin! into direct contact with fyin! debris, or by bein! directy affected by %ibrations of the earth or concussions of the air. Noderate%ibration and noise #.#' mies away was no more than a usua incident of the ordinaryife of the community. ?t is the e3ceedin!y ner%ous disposition of min", rather than thenorma ris"s inherent in bastin!, which must bear the responsibiity for the oss heresustained. The poliy of la! does not impose the rue of strict iabiity to protect a!ainstharms incident to the ps e3traordinary and unusua use of the and.

Paintiffs Ar!ument/ The business is cassified as a utra haCardous acti%ity which

caused the injury to the P.

efendants Ar!ument/ The conseKuences of mother min" "iin! their "ittens as a resut

of bastin! some distance away do not ie within the e3traordinary ris" of the acti%ity.

9se of the and is unusua in this case not foressabe of bastin! +here to cause was so

une3pected and unusua) ( @ippery @ope open !ate of iti!ation %. Poicin!

5ue/ 0e3us acti%ity b;w injury

0olden v 'mory +1>'&) cts of !od/ unforeseeable +A hurricane caused foods dama!in! Psand)

Fats/ Paintiffs, rea estate owners by the -hicopee 5i%er, brou!ht a suit a!ainst the

defendants, owners of a hydroeectric pant in Ludow. The -hicopee 5i%er o%erfowedand dama!ed paintiffs rea estate after a hurricane, and they now assert that defendantwas ne!i!ence in its maintenance of the Aden @treet di"e.

%ule/ The rule of strit liability for the esape of stored !ater does not apply !here

the in:uries results from an ACT OF =OD/ !hih the o!ner has no reason to

antiipate.

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The rue that Qthe person who for his own purposes brin!s on his ands and coects and

"eeps there anythin! i"ey to do mischief if it escapes, must "eep it in at his peri, and, ifhe does not do so, is prima facie answerabe for a the dama!e which is the naturaconseKuence of its escape,Q does not apply !here the in:ury results from an at of=od that the o!ner had no reason to antiipate.

/andy v &ushey +1>#') Contributory "egligence #not a defense in strict liablity$* orse"ic"ed%ictim Fats/ Paintiff was "ic"ed by the defendants horse and seriousy injured. Paintiff brin!s

this action to reco%er dama!es for such injuries. %ule/ The ;eeper of viious domesti animal ;no!n to be dan"erous annot

interpose ontributory ne"li"ene as a defense to relieve him of his strit liability as

an insurer.

%ule$QThe fact must be estabished that the injury is attributabe, not to the "eepin! of the

anima but to the injured partys unnecessariy and %ountariy puttin! himsef in a way to be hurt "nowin! the probabe conseKuences of his act, so that he may fairy be deemed toha%e brou!ht the injury upon himsef.Q

Chapter 1+ #rodut Liability 5est. %rd of &orts +4o%erns Product Liabiity)@tict iabiity %. absoute iabiity +not correct b;c)

(9mbrea term for liability of manufaturer, seer or suppier of chattes, to one who

is not in privity of ontrat, who suffers physica harm caused by chatte. Product Liabiity E cate!ories -ontract, 0e!i!ence, Marranties, (Strit Liability under

Tort la!

Strit Liability E basis of liability for manufaturers of produts, !ithout ne"li"ene

and breah of !arranty.

Strit liability is not absoute iabiity

#rodut liability +efecti%e)Paintiffs theory of reco%ery is that paintiff was RinjuredSRdama!edS by a defect in a product which the defendant RmadeS RsodS Rrented to +insertessee)S. ?n order to reco%er, paintiff must estabish that it is more li;ely true than nottrue/

o that the product was defective;

o the product was defective when it left the possession of the defendant; and

o a defect in the product was a legal cause of the 'injury( 'damage(.

5 64A Speial Liability of Seller of #rodut for #hysial 0arm to 2ser or Consumer

+1) Dne who sells any produt in a defetive ondition unreasonably dan"erous to the user or consumer or to his property is sub:et to liability for physial harm thereby caused to theutimate user or consumer, or to his property, if +a) the seller is en"a"ed in the business of sellin" suh a produt, and+b) it is e9peted to and does reah the user or onsumer !ithout substantial han"e in thecondition in which it is sod.+#) The rue stated in @ubsection +1) appies athou!h+a) the seer has e9erised all possible are in the preparation and sale of his produt, and

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+b) the user or consumer has not bou"ht the produt from or entered into any ontratualrelation !ith the seller.

ST%)CT L)AB)L)T

Prima !acie Case

A. Absolute duty on the part of the defendant to ma;e safeG. Greach of that duty-. Actua -ause. Pro3imate -ause2. ama!es

The terms “unreasonaby dan!erous” and “defecti%e” are used interchan!eaby andsubject to differin! definitions by different courts.5estatement defines three different types of defects/ manufaturin"/ desi"n and!arnin" defets.

anufaturin"/

Dccurs when a product “departs from its intended desi!n e%en thou!h a possibe care was e3ercised in the preparation and mar"etin! of the product.”?f the product emer!es from manufacturin! different and more dan!erousthan the products made propery, it has manufactured defect.

Desi"n$

Dccurs when the “foreseeabe ris"s of harm posed by the product coudha%e been reduced or a%oided by the adoption of a reasonabeaternati%e . . . and the omission of the aternati%e desi!n renders the product not reasonaby safe.”Mhen a products of a ine are the same but ha%e dan!erous propensities,they may be found to ha%e a desi!n defect.

) *+, to -rove efect /?f P can show/ 1) the product faied to perform safey as anordinary customer woud ha%e e3pected + must anticipatereasonabe misuse) and coud ha%e made the product safe without serious impacton the products price or utiity

Sientifially 2nforeseeable %is; / wi not be iabe for dan!erous not foreseeabe atthe time of the ma"in!.2navoidable 2nsafe produts/ Nanufactures wi not be hed iabe for some dan!erous products +"nife) if the dan!er is apparent and there is no safer way to ma"e the product.The defet/ must ha%e e3isted when the product eft s contro. +this wi be inferred ifthe product mo%ed throu!h norma channes of distribution)

arnin" Defets$

A product may be defecti%e because of inadeKuate warnin!s orinstructions.Liabiity based on foreseeabiity that proper instructions;abes woud ha%emade the product safe to use.There is no duty to warn about ob%ious or commony "nown ris"s.

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@eer must aso warn about injury due to product misuse. ey is whethermisuse was foreseeabe.

Strit liability

For$ A"ainst$

@urro!ate Poice foe safer products eep the !oods of the mar"et?nhibit product de%eopment

-reate unreasonabe Tort Ta3

(Le!isati%e bodies ha%e become in%o%ed in shapin! the aw

,volution of #rodut liability &umbrella term(/ +can brin! a product iabiity cause of actionunder)

• 0e!i!ence E Mc-herson -ase +P E5etaier Guic") P want to sue G +no pri%ity )

o -t. stated that pri%ty of shoud be essened and P can sue G, if the product is

defecti%e and reaches the consumer shoud be remedied.

• Marranties E mplied or 0xpressed +Nisrepresentation under Tort ), sti %iabe theory

of reco%ery

• @trict iabiity under Tort (Tested( 0e!i!ence+& part test) and warranties +is it e3pressed

or impied E do you oo" the an!ua!e, issues of notice such as imited time) probematic do not address the consumers

• UUUUUUUUUUUUUUUUUUUUUUUUUUUUU

• &est for ,trict Liability Claim/

• -ublic -olicy/

• efenses

arranty form of strict iabiity in tort action can be maintained for breach of

warranty without proof of either intentiona representation or ne!i!ence for ,9pressedand )mplied.

&axter v !ord "otor Co., &1E'4( +,9press arranty)

Fats/ P bou!ht Ford car form the deaer and !ass chip hit P in his eye. Ford had caimed thatthe !ass used wi not chip e%en under the hardest impact. Tria court did not aow ad%ertisin!

to be admitted in e%idence* said there was no pri%ity of contract. P appied. Ford ar!uin! thatsince no pri%ity, P cant reco%er based on breach of e3press warranty. Gut ourt said then whenyou advertise the produt to the "eneral publi, we are not "oin" to let privity e9use you.,o - has to show that there as express arranty by and P relied on it . - can recover onbreach of express warranty without proving privity. %ule/ ,9press arranties/ A manufacturer or retaier of a product is responsibe in tort for arepresentations upon which the consumer must rey, re"ardless of a contractua reationship b;wP and . +does not ha%e to ha%e pri%ity of ). anufaturer is stritly liable if ma;in" a false

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representation/ only need to sho! that the representation !as ad and that it !as false/ don8t

need to sho! ne"li"ene.

*otes$ 1ne who ma2es a misrepresentation of material fact regarding the quality of goods is liable toconsumer if that consumer has relied on that representation.

This case !eneray has been foowed for e3press statements as to Kuaity made in ad%ertisin!,on abes, in brochures or other iterature accompanyin! the product, or documents suppied to betransmitted to the utimate buyer ?n most courts, the P is reKuired to demonstrate reiance upon the representation, either inma"in! the purchase or usin! the product.

%enningsen v Chrysler Corp (1234,- ( )mplied arranty product was fit for an ordinary purpose; not the use for which you purposed it but is w/in the realm of the area(

Fats$ Ps husband purchased new car -hryser from deaer. P was dri%in! and steerin! wheespun in her hands causin! her to %eer and crash into a hi!hway si!n. -ant point to any defect because car destroyed. P sued Goomfied Notors, ?nc. +defendant) to reco%er conseKuentia

osses, joinin! his wife in a suit a!ainst Goomfied and -hryser theory was based on ae!edbreah of an implied !arranty of merhantability imposed by the 9niform @aes Act. The reied on a discaimer of the warranty. -ourt rued that P an reover based on breah ofimplied !arranty of merhantability e%en thou!h she didnt directy with . The warrantyruns with the car. Aso, the pro%ision incuded in the purchase not %aid because adhesi%e and unconscionabe. hy this ase$ 5emember in 5yan the court said that need pri%ity in orderto sue under breach of impied warranty of merchantabiity. An e3press warranty, which imits amanufacturers iabiity to repace defecti%e parts, is %oid, as it is a!ainst pubic poicy. 9nder theaw, breach of warranty a!ainst defecti%e parts or wor"manship which caused persona injurieswoud entite a buyer to dama!es e%en if due care were used in the manufacturin! process.#ubli #oliy/ arranties to protect the ordinary consumer who cannot be e3pected to ha%e the

"nowed!e or capacity or e%en the opportunity to ma"e adeKuate inspection of mechanicainstrumentaities, i"e automobies, and to decide for himsef whether they are reasonaby fit forthe desi!ned purpose. The warranty before us is a standardi3ed form desi!ned for mass use

the "ross ine7uality of bar"ainin" position occupied by the consumer in the automobieindustry. The -ourt concude that the discaimer of an impied warranty of merchantabiity by thedeaer, as we as the attempted eimination of a obi!ations other than repacement of defecti%e parts, are %ioati%e of pubic poicy and %oid. %ule$ )mplied arranties/Mhen a manufacturer and a deaer put a new automobie in the stream of trade and promote its purchase by the pubic, an impied warranty that is reasonaby suitabe for use as suchaccompanies it into the hands of the utimate purchaser, despite any contractua pro%isions to thecontrary.

Types of ?mpied Marranties to Product Liabiity/

1. )mplied !arranty of merhantability 7product is suitabe for its ordinary +!enera) use.The product wi pass in ordinary stream of commerce without any objections.

#. )mplied !arranty of fitness for a partiular purpose 7product is suitabe for a specificuse desi!nated by the user and put on the mar"et for that use by the manufacturer. The maindistinction b;w fitness and merchantabiity is that the user must rey upon the ma"erse3pertise with respect to the product bein! used for a particuar purpose.

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*otes/ @ome states wi aow a retaier to disaow the impied warranties of merchantabiity and

fitness, others do not. Aso state e!isatures are !i%en three aternati%es to choose from when

decidin! whom the warranty pro%isions were intended to appy to/

a. A seers warranty whether e3press or impied e3tends to any natura person who is in the

famiy or househod of his buyer or who is a !uest in his home if it is reasonabe to e3pectthat such person may use, consume or be affected by the !oods and who is injured in person by breach of the warranty. Nay need to pro%e pri%ity of in this case.

b. A seers warranty whether e3press or impied e3tends to any natura person who mayreasonaby be e3pected to use, consume or be affected by the !oods and who is injured in person by the breach of warranty. o not need to pro%e pri%ity of in this case.

c. A seers warranty whether e3press or impied e3tends to any person who may reasonaby bee3pected to use, consume or be affected by the !oods and who is injured by the breach ofwarranty. Marranty wi e3tend to a users and there is no imitation to just persons but asoto property dama!es.

0reenman v 5uba Poer Products# $nc. +1>B$),Fats/ 4reenman was injured usin! a power dri. Paintiff, 4reenman, brou!ht this action fordama!es a!ainst defendant, Vuba Power Products, ?nc, the manufacturer of a @hopsmith, acombination power too that coud be used as a saw, dri, and wood athe. After %iewin! ademonstration and readin! the brochure, 4reenman used the athe too to create a chaice from a piece of wood. As he was wor"in! the wood Qsuddeny few out of the machine and struc" himon the forehead, infictin! serious injuries.Q e sued on the "rounds of ne"li"ene and breahof !arranty. 4reenman won, but more importanty, the -ourt reasoned that in the case ofdefecti%e products, “the liability is not "overned by the la! of ontrat !arranties , but by theaw of strict liability in torts.” This was a radica departure from product iabiity, and ed to themodern strict liability standard. %estatement of Torts 564A, which said/ 1) @eers are

!eneray iabe for physica injuries to persons or property without the need to pro%e faut. #)Pri%ity rues are aboished* $) @trict iabiity is enforced.%ule/ Strit Liability when an artice is paced on the mar"et, "nowin! that the product wi beused without inspection for defects* the manufacturer wi be stricty iabe in tort for any injuriescaused by the defect in the product. Purpose of iabiity is for manufacturers to bear the costs. Policy/ Protection of the poweress P, not ma"in! the manufacturer as absoute insurer* p. I$'

Test/ p. I$' Wbottom Wcomes ater aso 5est.#nd &=#A +probem/ defecti%e

condition)* not bein! superseded by 5est $ rd o $rd 5est. / defecti%e condition/

Nanufacturin! defect

esi!n defect

Marnin! EinadeKuate instruction or warrnin!

#roduts Defets

%estatement 'rd$ #rodut Defetiveness


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a. Dne en!a!ed in the business of sein! products who ses a defecti%e product issubject to iabiity for harm to persons or property caused by the product defect.

b. A product is defecti%e ony if, at the time of sae, it contains a manufacturin! defect,is defecti%e in desi!n, or is defecti%e b;c of inadeKuate instructions or warnin!s.


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&- some haCardsThe abiity to !uard a!ainst them

The abiity to insure a!ainst the

ris" of injury and spread cost of ris"

a%oidance to customers

a%oided by the adoption of areasonabe aternati%e desi!n byseer, distributor or predecessor inthe commercia chain ofdistribution, and the omission of

the aternati%e desi!n renders the product not unreasonaby safec. Defet b


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(esi!n defects E “”( -t. adapted &=#A E instructions 1= H11 are mirrorin! the 5estatement

B. Desi"n Defets E when the foreseeabe ris"s of harm posed by the product coud ha%e been reduced or a%oided by the adoption of a reasonabe aternati%e desi!n by seer,distributor, or predecessor in the commercia chain of distribution, and the omission of

the aternati%e desi!n renders the product not unreasonabe safe/ b. ' basis tests for DD$• Consumer ,9petation +167rien)

1. Moud the a%era!e reasonabe consumer usin! the product beaware of the ris"s inherent in the productO

• anufaturer ,9petations

1. ?f the mfr "new of the defect causin! harm to P woud he ha%e been reasonabe in introducin! the prod into the stream ofcommerceO

#. can ar!ue misuse of prod• %is; 2tility Analysis

1. Loo"s i"e ne!i!ence but not Kuite7pro%es the cost efficiencyand the "nowed!e in the industry +ma"in! a product safer) Prentis v 5ale "fg +1>J&) +(defecti%ey desi!ned for"ift) -ure "egligence Fats/ +P)ohn Prentis, fractured his hip in an accident whie operatin! a handoperated for"iftmanufactured by defendant, Vae Nanufacturin! -ompany. Qohn Prentis and his wife, een, brou!ht suit ae!in! both ne!i!ence and breach of impied warranty, predicatin! defendantmanufacturers iabiity upon the ae!ed defecti%e desi!n of the for"ift. Athou!h the tria jud!eincuded both ne!i!ence and breach of warranty in his statement of paintiffs theory of the caseto the jury, he refused to !i%e paintiffs reKuested instructions on breach of impied warranty. A jud!ment for the defendant, upon a jury %erdict of no cause of action, was re%ersed by the -ourtof Appeas, which hed that the tria courts faiure to char!e the jury as reKuested was re%ersibe

error, mandatin! a new tria.Q%ule$ Liability for a defetively desi"ned produt shall be based on a pure ne"li"eneanalysis. ?n products iabiity actions a!ainst manufacturers of products, where iabiity is predicated upon defecti%e desi!n, a pure ne"li"ene H ris; utility test should be used.ey$ when ta"in! about desi!n defects, they shoud be anayCed by a ne!i!ence standard whenthe ris" of injury outwei!h the costs of desi!n%is; utility test/ we shoud mr"t ony reasonaby safe products and we determine this bydeterminin! whether the utiity outwei!hs the inherent ris"s +pro%ided ris" had been reduced tothe !reatest e3tent possibe).(1) 2@?40 efect Grin! the principe of faut* part test p. G+ FO% the Final$a:ority Hurisdition %eis;-2tility/ 4nd most used is onsumer e9petation and the

inority @ie! ombined both -Consumer-e9petation and ris;-utility.

*otes$

1/ 4/ and +

67&rien v "us.in 0roup +1>J$) (?njured i%er a poo desi!n defect( Fats/ Nr. enry bou!ht a Nus"in poo and assembed it in his bac"yard. ?t was #= 3 #& 3 & ft.An embossed %iny iner fit, abo%e a shaow bed of sand and w;i the outer structure then it wasfied with water to a e%e of appro3 $.' ft. The outer wa bore the manufacturers o!o and a

1$


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deca that warned D 0DT ?2 in one inch etters. Dbrien arri%ed unin%ited and do%e into the poo either from the patform or the adjacent !ara!e roof. is outstretched hands hit the %inyined poo bottom, sid apart, and he struc" his head on the bottom of the poo.%ule/ P bears the burden that the prod was defecti%e usin! a ris; utility analysis/ ( - must show/

1) must be Nanufacture or the seer, retaier or distributor of the product

#) Product was defecti%e E+1. Nanufacturer E compare with other products on the ine* #.desi!n E ris" utiity and the consumer e3pectation* $. Marranties )$) efect was present when product eft mfrs hand&) efect caused the injury to a reasonaby foreseeabe user

o Goth Actua cause and the e!a cause of the injury

o Preponderances of the e%idence E '1&>X more i"ey than not

anufaturer has a duty to !arn foreseeable users of the ris2s inherent , and not pacin! defect products on the mar"et.%ationale/ %is;-2tility analysis is appropriate when the product may function satisfactoriyunder one set of circumstances, yet b;c of its desi!n present undue ris" of injury to the user in

another situation. The e3istence of a safer and eKuay efficacious desi!n diminishes the justification for usin! a chaen!ed desi!n. ?t was not necessary for the P to pro%e the e3istenceof aternati%e, safer desi!ns. 2%en if no other aternati%e methods of ma"in! bottoms for abo%e!round poos the jury mi!ht ha%e found the ris" posed by the poo outwei!hed its utiity. Toestabish a prima facie case the P shoud adduce sufficient e%idence on the %1&


15/54

commercia chain of distribution, and omission of the instruction or warnin! renders the product unrCby safe.

• anufaturer o!ns duty to !arn &produt an be made safe by !irin"s(

o 8noledge &of the dan"er( under strit liability la!/ Cal. Ct. es

the .noledge an be atual and onstrutive &not havin" a omplete

;no!led"e/ but there are some evidene and indiations(. &,9$ priorhistory reveal (

• Continues duty to arn 9 +can be on!oin!)

• /tate of the art of the evidence 9 to demonstrate level of ;no!led"e or no

;no!led"e only at the time available

• 'deuacy and sufficiency of the arning 9 1) oo"ed at the warrin! E does it !et

the user attention * #) oes the an!ua!e of the warnin! pro%ides the proper noticewhat the haCardous* $) oes the warranty show and pro%ides how to use the product propery

♦ P wants ct to use a standard which says shoud ha%e "nown the prod was dan!erous

and shoud ha%e warnedo Loo"s at state of the art

o @ays can pro%e that a !i%en ris" was neither "nown or "nowabe by the ree%ant

scientific "nowed!e a%aiabe at the time of mfr;distrib part of the @PL anaysis

o M can be under ne!i!ence or PL

o can ar!ue that ris"s werent "nowabe or "nown at the time

'nderson v 6ens-Corning !iberglass +1>>1) (Asbestos e3posure faiure to warn(Fats$ Anderson +P) caims to ha%e contracted asbestosis and other un! aiments throu!he3posure to asbestos whie wor"in! as an eectrician. Dwens-ornin! +), an asbestos

manufacturer, sou!ht to admit state of the art e%idence re!ardin! the "nowabiity of the ris"s ofasbestos e3posure at the time of the distribution.%ule/ no!ability is a required element of strit liability for failure to !arn. @L wasadopted to insure that the costs of injuries resutin! from defecti%e products were borne by themanufacturer. owe%er, @L was not intended to ma"e manufacturers absoutey iabe for ainjuries. Admission of state of the art evidene re!ardin! the "nowabiity of ris"s does infusene!. concepts into @L cases by focusin! on the actions of the manufacturer. ?n a faiure to warntheory of @L, "nowabiity of the ris" accordin! to the state of the art e%idence at the time ofdistribution is ree%ant.

*otes$ ?n warnin!s cases, most courts sti appy a fautbased standard by reKuirin! the P to

show that the manu "new or shoud ha%e "nown of the ris"s that injured P.Dften a case in%o%es caims based both on defecti%e desi!n and inadeKuate warnin!s.a. Db%ious an!ers7Nost jurisdictions ha%e found no duty to warn of ob%ious dan!ers +i.e.

manu of pointed darts not warnin! that the point coud injure an eye). Dne reason for notaways reKuirin! warnin!s is that the proiferation of warnin!s in ob%ious dan!er situationsmi!ht diute the impact of necessary warnin!s.

b. @ophisticated 9sers7Nost jurisdictions empoy some form of the sophisticated user defensein faiure to warn cases.

1'


16/54

c. Presumption that Marnin! wi be read and heeded7in most jurisdictions, the P is entited toa presumption that the user woud ha%e read and heeded an adeKuate warnin!, but that presumption is rebuttabe.

d. AdeKuacy of Marnin!7The determination of whether the warnin! was adeKuate is usuayeft to the jury who in turn reies on e3pert testimony. Marnin! put on a product needs to at

east discose the ris"s that are in%o%ed with the use. espite the fact that a warnin! is on a pac"a!e, if ad%ertisin! minimiCe the harmfu nature of a product, then one mi!ht be abe toshow that the ads diuted the effecti%eness of the abe warnin! and thus the warnin! is notenou!h.

e. Learned ?ntermediary 5ue 7?n cases in%o%in! dru!s, a "ey issue often is whether the pharmaceutica manufacturer shoud pro%ide its warnin!s to the prescribin! r. or directy tothe patient. Nost courts say shoud be pro%ided to the r., who is a “earned intermediary”and is the best person to understand the patients needs and assess the ris"s and benefits of a particuar course of treatment. Gut many jurisdictions do not appy this rue in cases wherethe manu is aware that there wi be no medica pro%ider to pro%ide the earned ad%ice orwhere the patient is directy responsibe for ta"in! an acti%e roe in the seection of the

product.;;;sufficient warnin!s that must be pro%ided to the doctors

this doctrine does notappy outside of the pharmaceutica industryThe “earned intermediary” rue aso arises in cases in%o%in! harm from products used at the

wor"pace. The manu can escape iabiity by !i%in! a warnin! to the empoyer. 23ceptions/

1. ?f manu "nows that empoyer wi not pass the warnin! aon! to empoyees, then must pro%ide a warnin!

#. Dr if it is "nown that empoyer is i!norant to the ris"s in%o%ed, then manu must !i%ewarnin! to the empoyees.

$. 4oods sod in bu"7normay with bu" items, no warnin! is necessary b;c there is no pace to put the warnin!, but a distinction is made when bu" items are sod in some formof pac"a!in!.

f. Factua Adjudication Approach7Loo" to a case by case basis of the facts to see if iabiityshoud be cut off. @ome courts use this approach the “earned intermediary” rue. @omeconditions incude/1. @eriousness or ris".#. Na!nitude of harm$. 2ase or difficuty of !i%in! warnin!&. Probabiity of !i%in! warnin!.

!. Post @ae uty to Marn7?n addition to the duty to pro%ide warnin!s at the time a product ismar"eted, some courts impose a duty on the manu to pro%ide postsae warnin!s about ris"sthat are disco%ered after the sae.

h. Presumption that the warnin! wi be read and heeded

i. Post @ae uty to warn and reca

#roof

• Cirumstantial evidene no product but e%idence that coud pro%e what

caused, e%idence surroundin! the accident

• Atual


17/54

!riedman v 0eneral "otors +1>I') ( -ar i!nition system defecti%e(Fats/ Friedman +P) was injured when he started his car and it une3pectedy eapt forward* in anaction a!ainst the cars manufacturer, P was unabe to present direct e%idence that the i!nitionsystem was defecti%ey desi!ned.%ule/ A produt defet may be proved by circumstantial evidence, where a preponderane of

that evidene estabishes that an aident !as aused by a defet and not other possibilities,athou!h not a other possibiities need be eiminated. Five ays to #rove Defet/1. P mi!ht introduce e%idence by an e3pert based upon an e3amination of the product in

Kuestion foowin! the happenin! of the dama!in! e%ent. 23pert e%idence woud be directe%idence of an identifiabe defect.

#. There may simpy be e%idence of a dama!in! e%ent occurrin! in the course of or foowin!use of a product, whether by the testimony of the user or otherwise.

$. A P may add to :# with e3pert e%idence that the most i"ey probabe cause was attributabeto a defect in the product bein! used at the time.

&. ?n addition to e%idence of an accident and the probabe cause of such accident, e%idence

coud be introduced to ne!ate the e3istence of “probabe cause” no attributabe to the ma"er.'. ?n some cases, the physica e%idence of the actua condition of the product after the accidentwoud be such that a ayman coud infer that it was defecti%e.

0otes/ Lay out the eements of product iabiity.

1. P must be prepared to show/a. That the product that injured him was in fact manufactured by the . b. That the product was the cause in fact of his injury.c. That the product was defecti%e and he was injured as a resut.d. That the defect e3isted in the product or was incipienty in it when the particuar sod it.

#. 5es ?psa LoKuitur7@tricty spea"in!, since ne!i!ence is not in Kuestion, 5?L has noappication to a @L case, but the inferences that are at the core of 5?L doctrine are no essappicabe to @trict Liabiity.

$. 5ue on e3cudin! e%idence of product impro%ements to pro%e defect7Nost courts precudeP from introducin! this e%idence, but some wi admit it if the underyin! theory of iabiity is@L rather than ne!i!ence.

&. The most con%incin! e%idence is a direct showin! of what went wron!.'. Dne of Ps hurdes is tracin! the defect bac" into the hands of the . Lapse of time and on!

continued use wi not pre%ent this if there is cear proof of an ori!ina defect. ?n most jurisdictions, there is no strict “cut off” of iabiity.

B. Mhen the defect arises after purchase, P is confronted with another facet of the probem ofestabishin! that the product was “defecti%e” or unreasonaby unsafe.

I. ?nformation about pubic heath and safety issues must be de%eoped durin! disco%ery.

Defenses

A. Paintiffs -onduct/ Affirmati%e defenses raised by the . ?f not raised, then consideredwai%ed. Aso must pead and pro%e these facts.

Attac" on the Prime Facie -ase/o 1. Tehnial defenses E ateration of $rd party +not fait to the manufacturer)

1I


18/54

o #. Comparative fault to aow to product iabiity, ony ' jurisdiction continue to

use the (Contributory "egligence voluntary assumption of ris2 8 absolute bar

to recover +"new, abe to appreciate the ris", and put himsef in harm) Contributory "egligence/

1X no reco%ery E compete bar for reco%ery when assumption of ris" is

%ountary +"new, abe to appreciate the ris", and put himsef in harm) Last cear chance doctrine

-omparati%e faut +&' jurisdiction adapted this principe)E P reco%ery

reduced to his own fauto '. Proper use of the product E if is not use as it is desi!ned, foreseeable misuse

Daly v 0eneral "otors Corp +1>IJ) (oor atch defect(Fats$ ay +P), whose decedent was "ied in a car accident, ae!ed that a defecti%e door atchcaused the death, whie 4N +) attributed the death to the dri%ers faiure to use a shouderharness and his into3ication.%ule/ A Ps reovery in strit produts liability action may be redued accordin! to the e3tent

to which his injury resulted from his o!n la; of reasonable are. This case says that thepriniples of omparative ne"li"ene can be appicabe to actions brou!ht under the theory ofstrict product iabiity. Cate"ories


19/54

2%idence of misuse or ateration coud be use as a defense that the product was notdefecti%e* Aso that any defect in the product did not caused the Ps injury +no causation)*Ps conduct shoud reduce the reco%ery +affirmati%e defense of cooperati%e faut)*Nanufacturer is not subject ti iabiity for unforessabe abnorma use of the product*

Appication of -omparati%e Faut7A “comparati%e faut” principe may be aso appied in the“foreseeabe misuse” cases.

Chapter 41 isrepresentation

). )ntrodution

• isrepresentation fase statement of facts

• #oliy E desi!n to protect from reiance upon fase information +in business contest or

persona)

• isrepresentation in business transations Ethe cassic form is fraud +intentiona

misrepresentation)

• isrepresentation is a distinct cause of action, associated with common aw action ofdeceit.

• Classi form of misrepresentation of deceit and fraud

• The la! of misrepresentation E normay protects economic interests and parameters of

iabiity* intan"ible peuniary loss

• isrepresentation E is %ery compe3 fied due to the e3istence of the numerous

aternati%e remedies, incudin!/o Tort ation of deeit

o Ation for Breah of Contrat when the representation is found to be

e3pressed or impied term of the contract itsef.o

*e"li"ene isrepresentation or misstatement for tan!ibe injuries to the person or property resuts, where dama!es is ony financia oss.o An e7uity ation to resind the transation eKuitabe ien or constructi%e trust

o An ation for restitution for P to reco%er bac" or unjust enrichment

Prima !acie Case for "isrepresentation 9 ;est-

Public Policy-

Defenses -

0istory

Ation of deeit has its ori!in in the od writ of deceit now "nown as maicious

prosecution later superseded by !rit on the ase which became !enera common

aw remedy for misrepresentation, whether frauduent or not, resuted in actua

dama!es. 2ntirey used for direct transaction b;w PH, where tort and contract were notceary distin!uished.

>Caveat emptor? et the buyer be aware E was the rue. +buyer coud !arner protection

from the seer) )n the ase Pasley v !reeman misrepresentation to e3tend to third person and the

ation of deeit was reco!niCed as purely tort ation. : breah of !arranty E

contract action.

1>


20/54

?n the 1>th century eceit was estabished as the basis for tortuous iabiity and deceit

reKuired an actua “intention to cheat.”

)). Conealment and *ondislosure$

/inton v ) !raudulent Concealment +house in%ested w;t

termites).Fats$ @winton +P) purchased a house from Gan" +) which was infested with termites. "newof the termites and did not discose this info to P nor were they as"ed for any such info by P.%ule/ There is no liability for bare nondislosure.%easonin"/ -ourt reasoned that if the seer has a duty to discose info that decreases the %aueof property, then the ne3t step woud be for the buyer to discose info of somethin! that increasesthe %aue of the property. These issues can be deat with in aw rather than tort. 0o discosure

There is no duty to dislose one way around this is for the purchaser to inKuire about

probems then seer woud ha%e a duty to discose truthfu.

Conealment mere failure to reveal smt" not re7uested no duty to dislose

%2L, 1$ in an arms-len"th r8ship &e7ual foota"e(/ one has no duty todislose defets effetin" value.

%2L, 4$ Absent a fiduiary r8ship b

onealment of material fats does not "ive rise to the tort of misrep.

• Fid r8ship I speial r8ship of trust and onfidene b

parties !hih imposes ertain le"al duties one to the other.

Vou aways ha%e to estabish first that there was a duty to discose +if so,

nonfeasance) ?f you cant show that, then you ha%e to show that there was an acti%e

misrepresentation that caused me to rey +misfeasance).*otes

1. 5ues modifyin! the harshness of nondiscosure/a. -t. ibera attitudewhen recession of is sou!ht or other eKuitabe reief

b. iabe for nondiscosure if parties are in a onfidential or fiduiary reation toone another reiance upon !ood faith and fu discosure is justified.

c. Certain type of s suretyship 9 guaranty9 joint venture9 or insurance, create

confidentia reation reKuire fu and fair discosure of a materia facts.

#. Ative Conealment may constitute an act sufficient to base iabiity.

isrepresentation false statement or onealment of fat

"odern trend in re"ards to termites or any latent defets on the ondition of the property

dislosure is re7uired &esp. that there are a!are/ but not visible to the buyer(. )L Statute re7uires dislosure.

0riffith v &yers Construction +1>I$) =ondisclosure# !raud# $mplied arranties +andscapeimpossibe due to hi!h saine soi)Fats/ Purchasers +P) of new homes in tract, sued de%eoper +) of home sites when theydisco%ered that their ots, b;c of hi!h saine content, coud not be andscaped* the homes had been bou!ht not from the de%eoper +), but from the buidin! contractor.

#=


21/54

%ule/ Mhere a %endor has "nowed!e of a defect in property which is not within the fair andreasonabe reach of the %endee and which he coud not disco%er by the e3ercise of reasonabedii!ence, the sience and faiure of the %endor to discose the defect in the property constitutesactionabe frauduent conceament. The conceament here was aso materia and thus the ac" ofstrict pri%ity is immateria.

i. %2L, 1$ F doesn8t re7uire privity of b


22/54

?f the s beief is unreasonabe, it may be stron! e%idence that it does not in fact e3ist, and thatconcusion may be reached by an inference of fact.Gad moti%e, as distin!uished from intent to misead, is not essentia to the tort of deceit. 0e!i!ent Nisrepresentation Y ?nnocent NisrepresentationFraudulent isrepresentation Test E

1. no!led"e4. Sienter a!are of the falsity of the statement

'. ade to # or 'rd parties

. ith intent to indue to

+. # relies on the representation

K. # relies on his peuniary&atual eonomi loss( detriment

• efense to misrepresentationE reasonable standard

0otes' 5est. '#B Frauduent Nisrepresentation

$nternational Products v >rie RR +1>#I) 0e!i!ent NisrepresentationFats/ ?nternationa +P), an importer, insured its imported !oods, reyin! on 2ries +)misinformation that they were ocated at doc" F* the !oods were ater destroyed by fire at oc" and the insurance company woud not co%er b;c of misdescription.%ule/ An ation for dama"es for ne". misrep !ill lie !here the spea;er o!es a duty to "iveorret info.The duty stems from the business reationship and thus a duty e3ists, if one spea"s at a, to !i%ethe correct info.((0ote that e%en if a duty has been breached, P must sti pro%e that, !i%en competent ad%ice, onthe baance of probabiities, he woud ha%e secured effecti%e insurance to co%er the oss.To Determine if a Duty >xist/ There ust be no!led"e That/

1. The info is desired for a serious purpose.#. That the person to whom it is !i%en intends to rey and act upon it.$. That if fase or erroneous, he wi be injured in person or property.

?n cases of persona injury, the courts ha%e been more ibera in aowin! reco%ery for ne!.misrepresentation.A substantia number of 9@ courts ha%e e3tended the ne!. action from tan!ibe injuries to pecuniary oss, and ha%e aowed reco%ery in such an action.(0e!i!ence Nisrepresentation E is made in pursuant to a business reationship, in %ioation ofobi!ation owed, upon which the P reied on his detriment.

*otes

1. inority of Amerian Ct. hod that action for deceit itsef wi ie for ne!i!entmisrepresentation resutin! in pecuniary dama!es. 2ither fault of negligent Yof

intend to deceive D5 duty to learn that facts Y 2nowledg e of their e3istence.*otes

,n"lish la! for misrepresentation E ony reco!niCed frauduent misrepresentation%elationship E certain contracts, business reationships, fiduciary reationship

0e!i!ence Nisrepresentation

##


23/54

1. uty E +ne!i!ence accrued or communicated )

>1) Product liability# =egligence and !alse misrepresentation+Nushroom eater)Fats/ Minter +P) reied on a boo" on mushrooms pubished by Putnam +) and became

criticay i after eatin! poisonous mushrooms.%ule/ @trict product iabiity is not appicabe to the e3pressions contained within a boo".Product iabiity is !eared towards tan!ibe objects. -opyri!ht, ibe, and misrepresentation aws!o%ern the e3pression of ideas.Aso there is a stron! 1st Amd ri!ht for e3chan!e of ideas. And the court stated that since the pubisher is not a !uarantor of the accuracy of an authors statements, an action for ne!.misrepresentation coud not be maintained.

0o duty owed by the pubisher / 1) 1st Amendment* #) W*e"li"ene isrepresentation

Faiure to warn under strict iabiity caim E the boo" +product) E the court disa!reed Fasity is reKuired +not in this case)

*otes

1. p. 16'E %est. 4nd § $11 "egligent Misrepresentation nvolving 3is2 of -hysical arm+1)Dne who ne!i!enty !i%es fase information to another is subject to iabiity for physicaharm caused by action ta"en by the other in reasonabe reiance upon such information,where such harm resuts+a) to the other, or +b) to such third persons as the actor shoud e3pect to be put in peri by theaction ta"en.

Comment b. The rue is not imited to information !i%en in a business or professiona capacity, or to those en!a!ed in a business or profession. ?t e3tends to any person who, in the course of anacti%ity which is in furtherance of his own interests, underta"es to !i%e information to another,and "nows or shoud reaiCe that the safety of the person of others may depend upon the accuracyof the information.

%anberry v %earst Corp. +1>B>) =egligent "isrepresentation +sipper and unsafe shoes)Fats$ The paintiff +anberry) bou!ht shoes made by earst +) that bore the 4oodouse"eepin! @ea of Appro%a and was injured. @he sued earst +4ood ouse"eepin!) ae!in!that the shoes were dan!erousy sippery and that earst had !uaranteed the shoes when it pubished its appro%a of them.%ule/ A party, who endorses a product for its own economic !ain, and for the purposes ofinducin! the pubic to buy it, may be iabe to purchases who, reyin! on the endorsement, purchase the product and are injured by it.*otes

1. Defetive shoes

4. Consumer 0ouse;eepin" seal implied is that some investi"ation !as done here

failure to inspet properly.

'. Contratual relationship

. #ubli #oliy benefited from the advertisement

#$


24/54

52-ap -rima 4acie Case for Misrepresentation

1. A False %epresentation


25/54

%ule/ Accountants may be iabe to persons not in pri%ity for ne!i!enty preparin! financiareports if /

a. The aountants ;ne! that the financia reports were to be used for a partiularpurpose or purposes*

b. in furtherance of which a "nown party of parties was intended to rely* andc. there was some ondut on the part of the accountants lin;in" them to that party or parties, which woud show that they understood the party or parties reiance. Gasicaythere must be some type of meetin! of parties.

This case uses the approach of near pri%ity +if a the abo%e are met) than there is approachin!

pri%ity. This is better than strict pri%ity, but is sti narrow in scope.

*otes

=ltramares Case E-ardoCo Eindefinite iabiity E concerns with openin! the !ates for a otof suits* Traditiona iew E iabiity of an accountin! +pri%ity) or reationships of

approachin! pri%ity. ( These rues appy to any professiona in !enera(

Citizens &an. v ;imm# /chimidt +1>J$) M?Fats/ Timm +) contended that -itiCens +P) coud not reco%er from them as accountants b;c no pri%ity e3isted when the reports which P reied were ne!i!enty prepared. certified pubicaccountants, prepared audit reports for -inton Fire Apparatus, ?nc. The report ne!i!enty faiedto accuratey refect the -AFs financia position. Prior to disco%erin! the probem P reied uponthe reports in endin! -FA money. After, the errors were re%ied, -FA went ban"rupt. P sue for the reco%ery of the outstandin! baance on the -FA debt.%ule$ Accountants may be hed iabe for the ne!i!ent preparation of audit reports to a $rd partynot in pri%ity who reies on the report. The main issue is that it is reasonaby foreseeabe that a$rd party woud use reports to !au!e a companys financia condition preparatory to endin!money. +Pubic Poicy)This case uses the %easonably Foreseeable Test to broaden the scope. -ourt wants to broadenthe scope to deter bad beha%ior and hod down the cost of credit to the pubic.%easonin"/ $rd party must be abe to rey upon financia statements in order to faciitatecommerce. ?t is reasonaby foreseeabe that a $rd party woud use the report to find out thecompanys finica position before endin!. T9@, !hether the harm !as reasonablyforeseeable !as a fatual 7uestion.

*otes

Pubic Poicy E anyone who is injured shoud be abe to reco%er 9trameras Pri%ity E Traditiona App. E a:ority @ie! 3est.


26/54

Fats/ ?n reiance upon an audit of Fred @tern prepared by Touche +), 9tamares +P) madese%era oans to Fred @tern. The audit showed @tern to be worth [1N when the company wasactuay inso%ent.%ule/ 0e!i!ent words are not actionabe uness they are uttered directy, with "nowed!e ornotice that they wi be acted on, to one to whom the spea"er is bound by some reation of duty,

arisin! out of pubic cain!, , or otherwise. This case uses strai!ht pri%ity of contract.*otes/ TD $rd Party/ 4raud +scienter;"nowed!e) Ethe accountants were aware that the statements were fase.

+-ardoCo different %iew in re!ards to frauduent misrepresentation than ) 3easonable accountant E coud not ha%e just cosed their eyes without in%esti!ation

this is gross negligence E creatin! an inference of "nowed!e thus rises to frauduent

misrepresentations. Mhen the ne!i!ence is bad rises to a e%e that an inference of"nowed!e. +ne!i!ence Ywith inference of "nowed!e mo%es into the area of fraud)

Approahes to Liability to 'rd #arties/1. *ear-#rivity 7 Nust be "nowed!e of reiance by a person for a specific purpose. Person Y

particuar person or sma cass of persons. Aso reKuires a meetin! or some conduct in"in!the parties.

#. %estatement %estrition


27/54

*otes$ A seers assurance of repair reasonaby precudes the necessity for an independentinspection.(Nateriaity7A statement must be materia to a reasonabe person uness "nows of a certainidiosyncratic tendency of the P.(Najority rue is that the P has no duty to in%esti!ate or inKuire as to the truth of an apparenty

reiabe statement made to him.

5eiance must be reasonabe;justified

Db%ious fase representation Dpinion

Opinion

/axby v /outhern Aand 7+1>=>) @tatement of opinionFats$ @a3by +P) contended that @outhern +) misrepresented the acrea!e of the farm he bou!ht.

P stated that the 1'=acres of pine timber, #= were burned, but it turn out that B= were burned.%ule$ Actionabe misrepresentation must be of an e3istin! fact, not a statement of opinion. Dpinion is not substantia enou!h for one to reasonaby rey upon. Dny statements of fact wiinduce a reasonabe person to rey, and, thus, ony misstatements of fact are actionabe. Loo" to p. 1='B :# for some e3ampes.*otes

Facts dont ha%e to be pro%en, beief , oose, %a!ue and !enera, indefiniteness ?f an opinion is unreasonabe to reined on it. Professiona or e3perts opinions +speciaiCed "nowed!e) E is reasonabe to rey on this Future predictions E not reiabe either

Bulcan "etals v /immons 7+1>1J)Fats/ @immons +) sod %acuum ceaner manufacturin! machines to ucan +P) caimin! thatthey were “perfect” and that the %acuum ceaners had ne%er been mar"eted before. contendedthat his staemates were mere opinion.%ule$ There is a certain amount of “puffin! up” aowed. This is the statement that the ceanerswere “perfect”7aso caed deaers ta", tryin! to ma"e a se and no sensibe man wi ta"ecomment seriousy.The more specific the ae!ation, the more i"ey that it wi be reied on the thus be actionabefor ne!i!ent misrepresentation. 23pression that ceaners had ne%er been on mar"et was reiedupon and a matter of fact, so it is actionabe.*otes

Speifi type of opinion >trade tal;? or >puffin"?- that are part of our cuture The parties in this case on the same !rounds business people

La!

/orenson v 0ardner 7+1>'>) matter of aw or opinionFats/ 4ardner +) made fase representations about the code %ioation status of a house which@orenson +P) was buyin!. presented to P that the house met a code reKuirements, with rep. to

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eectric wirin!, pumbin! septic tan"s, and sewa!e disposa pro%ided to be fase. contended

that these statements were matter of aw or opinion%ule/ ?f a representation as to a matter of aw is a representation of fact, the recipient is entitedto rey upon it to the same e3tent as if it were a representation of any other fact* and, an actionfor deceit wi ie if it pro%es to be fase. has "nowed!e of underyin! facts concernin!

eectricity, pumbin!, etc. and so his misrepresentation shoud be actionabe. Moud not beactionabe if he did not ha%e the underyin! "nowed!e.(Aso, representations as to the aw of another state are treated as statements of fact, upon whichthe P may justifiaby rey.%easonin"$ Nisrepresentation based upon aw made by a ay person is unreiabe : in case of professionas +attorney ony in this case; buider ayperson)/ to rationales$ 1. everyone ;no!sabout the la! or 4. no one ;no!s the la!

#redition and )ntention

"c>lrath v >lectric $nvestment 7+1>11) future factsFats/ 2ectric +) induced Nc2rath +P) to ease property on assurances that an eectric car inewoud be constructed on it.%ule$ 0e!i!ent misrepresentation or deceit must be based on an “e3istin!” +present or past)fact, not on a prediction of a future fact. owe%er, if one can show that intended to create theimpression that the intended future act is a present fact in the mind of some party then it is

actionabe.*otes/

&urgdorfer v ;hielemann 7+1>$B)Fats/ Thieemann +) induced Gur!dorfer +P) to transfer a ot upon which there was a mort!a!e

to him, partiay on the promise to pay off that mort!a!e.%ule/ eceit reKuires a misstatement of an e3istin! fact, but the promise to do somethin!, withthe present intent to do the contrary is as cear a case of misrepresentation or fraud as can bemade, and the proof of such fraud wi not be precuded by the @DF.(There must be a misstatement of an e3istin! fact* but the state of a mans mind is as much a factas the state of his di!estion. A misrepresentation as to the state of a mans mind is, therefore, amisstatement of fact.*otes$

-the intent or the state of the persons mind an be a fat in ase of misrepresentation

Possibe Ad%anta!es of the Action in eceit o%er a -ontract Action for Greach of the Promise?tsef/

1. eceit action may a%oid the statute of frauds.#. ?t may a%oid the difficuties of the paro e%idence rue, pre%entin! any promise not

inte!rated into a written from bein! re!arded as a part of the .$. ?t may a%oid the defense that the promise was without consideration.&. ?t may a%oid the defense that the was an ie!a one.

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'. ?t may a%oid the defense of the statute of imitations, since a on!er period may beappicabe in the deceit action, or the statute may run ony from the Ps disco%ery of thefraud.

B. ?t may a%oid a imitation of iabiity contained in the itsef.I. ?t may a%oid a defense a!ainst the action, such as infancy.

J. ?t may a%oid the necessity of joinin! parties to a joint in one action.

Dama"es must suffer peuniary loss

%in.le v Roc.ville "otors 7+1>I1) breach of warranty and misrepresentationFats/ 5oc"%ie +) sod, as a new car, a %ehice which had been pre%iousy wrec"ed.%ule/ A defrauded P shoud be aowed to caim outofpoc"et e3penses. P may aso be abe tosue for benefit of his bar!ain.T!o ,lement of Dama"es for isrepresentation/&ort 3ecovery Dut of Poc"et 23penses Y Mhat paid for the item E aue of what recei%ed.

Contract Law Genefit of Gar!ain Loss Y aue of what promised E aue of what recei%ed.

*otes$ Tan!ibe e%idence to estabish the amount Mitnesses +23perts) P has the burden to demonstrate dama!e ifferentia Y the 7enefit of the 7argain 3ule under . Law E is a%aiabe under fraud representation >alue of -rice ctually -aid 8 ctual >alue ? 1ut of -oc2et 0xpenses >alue 3epresented 8 ctual >alue ?7enefit of the 7argain 3ule #@AAA 8 %AAA ? BAAA$

will yield more DD than 1ut of -oc2et

Chapter 1G Defamation

Defamation Test$

1. Fase @tatement +cannot be true)#. Fase @tatement Df the P or concernin! P$. Pubication E to communicated to somebody other than the P&. ama!e injury to reputation(importation( +oss of esteem in the eyes of the pubic)

• efamation is a matter of fact +Nainy)

• Protected ?nterest of 5eputation Loss %. Pecuniary Loss

• -assic Forms of Defamation/o Dra E @ander

o Mritten E Libe

0istory

At Common La!/ Libel per se E its a presumed the injured occurred +actionabe without proof of dama!es andinjury),lander E specia monetary dama!es must be shown +b;c of the potentia of future harm)

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*ature of a Defamatory Communiation$

&elli v 6rlando Daily =espapers E +1>BI) Aabel +oray) and /lander +fase or maicious pubication that is injurious to someones reputation)Fats$ A newspaper printed a fase story that Gei +P) had char!ed to his hote bi and that thishad to be paid for by the oca bar association. This is an action for ibe and sander. P we"nown attorney, a!reed to aid a oca bar association in e3chan!e for his hote bis. > years ater,this story was reayed to a oca !ossip coumnist. ?t was embeished to incude ae!ations thatP had char!ed numerous items of cothin! to his hote bi and had ta"en the oca bar associationwhich had to pay the entire bi. This info was fase but it was pubished by newspaper +),which faied to %erify the story. The -t. dismissed on the basis that had not diminished Psreputation and was not defamatory.%ule/ ?f a statement may be interpreted in defamatory and nondefamatory manner, it is the pro%ince of the jury to determine which one the !enera pubic woud ha%e ta"en.%easonin"$ The Kuestion shoud ha%e been submitted to the jury b;c the statements weresusceptibe to two different interpretations.&hings to get from this case/1. -ourt ma"es the initia decision as to whether the statement is defamatory.#. ?f it is e!ay nondefamatory, the court remo%es it from the jury.$. ?f it is susceptibe to two meanin!s, one defamatory and one not, the jury must decide the

issue.&. The statement must be fase.'. The person must ha%e no ri!ht to ma"e the statement.B. The statement must injure either the persons reputation or business.

Libel/ A fase and unpri%ie!ed pubication +written statement) by etter or otherwise 1) which

e3poses a person to distrust, hatred, contempt, or ridicueW or #) which has a tendency to injuresuch person in his office, occupation, business or empoyment.Libel per se 7one does not ha%e to show specia dama!es, it wi be assumed.

*otes

T!o different minin"8s of !ords or ontent of the$ defamatory and no defamatory

nature &loss of esteem in the eyes in the publi( or &unambi"uous on its fae and its

not defamatory/ the Ct. an dismiss it as a matter of la!(.

There is a roll for both udge &=ate ;eeper loo; at the statement &on its fae( to

determine if he finds it damnatory/ as matter of la! but if the statement has a dual

meanin" then it must "o to the :ury( and ury &must determine !hether is

defamatory(.

0rant v Reader7s Digest 'ssn E +1>&') Libel Fats$ 5eaders i!est +) printed in its pubication an artice which made reference to the factthat 4rant +P)awyer had been a e!isati%e representati%e for the NA -ommunist Party. This isa suit for ibe. The di!est was mainy red by jud!es and awyers, and accused the P was has beenhired by a N. Communist party to act as its e!isati%e a!ent.

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%ule$ Libe consists of utterances that arouse hatred, contempt, scorn, oboKuy, or shame in theminds of the peope whether or not those persons are “ri!ht thin"in!” peope. ?t is defamatory asa matter of aw to say that a person is an a!ent of the communist party.%easonin"$ This case brin!s out the distintion bet!een right thin2ing +poitica correct or awabidin!) and wrong thin2ing +poiticay correct or unawfu) persons. The libelous statement

does not ha%e to brin! out contempt in ony “ri!ht thin"in!” persons +or e%en a majority of persons), ony that some peope fee hatred or contempt towards the P because of the statement.Liabiity is not a Kuestion of majority %ote.The issue is embedded in time, pace and cuture.There must be an eement of discredit or dis!race, e%en in the eyes of the particuar se!ment ofthe community.

*otes

%easonable standard peers&:ury(

Does not matter !hether right or rong thin;in" "roup &as lon" some people feel

hatred or thin;s differently about you( ;here must be an element of discredit or

disgrace 9 e%en in the eyes of a particuar community +emocrat %. 5epubican)T,ST$ #leadin" Defamation/ Mhen the meanin! that defames the P is cear upon the face

of the words uttered, the cause of action is made out by peadin!, and pro%in!, the words

themse%es and their communication to a third person. ?f the meanin! is not cear upon the

face of the words, the tas" of the P is more difficut. ?n such a case the P must plead$

Prime !acie Case:

• !alse /tatement 9 must be ansered or The defamatory !ords. 23/ e burned down

his own barn

• 6f and Concern of P

o Collo7uium -A forma ae!ation that the !ords !ere spo;en of andonernin" #. +often ob%ious but aso not) 2/ e

• Publication/ communication of the words to a third person. +action word to

communicate fase statement)

• $nury to reputation

o The )nduement 7 e3trinsic facts, b;c of which the words were reasonaby

understood to con%ey a meanin! defamin! the P. +2/ ?nsurance poicy)o The )nnuendo 7An ae!ation of the particuar defamatory meanin! con%eyed by

the words. +An additiona para!raph to tie it to the e3trinsic facts, as ane3panation of this facts) 2/ +?nsurance Fraud). -onnectin! the dots. ?f it is notdefamatory on its face.

o @pecia dama!es when they are necessary to the cause of action.

1. Goth the colloquium and the innuendo must be reasonable in the i!ht of the wordsspo"en and the facts peaded in the inducement.

4. At common aw there has been !enera a!reement that an action of defamation wi ieonly if the statement is both defamatory and false. 2%en where true and thus notactionabe as defamation, a statement may support a cause of action for in%asion of pri%acy.

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Common la! E presumption of fasity + at common aw has the burden of proof the

statement is fase unti pro%en true). 8illian v Doubleday @ Co. +1>'1) Libel &print( Fats/ A boo" was pubished by oubeday +) which contained an artice which caimed thatiian +P), as commander of an army camp and hospita, had mistreated patients. The artice

ae!es that P has mastered patients and the P has been reprimanded and fined for his actions.At tria, it was shown that the author was ne%er at the hospita, but he was merey reatin! storieshe had heard. P won the suit b;c the specific statements were not substantiay true.%ule/ To caim truth as a defense, it must be shown that the statements in the artice weresubstantially true, not that the other acts of a different nature occurred. ?t must be pro%en that specific allegations that were made are substantiay true. Dther serious, but different, offensesthat occurred are not enou!h.*otes$

-Truth is an affirmative defense in a defamation suit. +P has to proof has faied the truth ofthe statement );Affirmati%e defense that has to be raised by the efense otherwise wi be ost.5epeatin! a story someone ese has tod you that is fase can !i%e an action for defamation.

?f a statement is accurate but intentionay miseadin! +as in a headine) an action for defamationmay ie.A P bein! “libel proof ” +reputation so bad that he is not abe to show that a statement worsenedhis reputation) is no on!er an appicabe defense. ?t does not matter how bad the Ps reputationis. 0otes

5aises the 1st Defense E is truth +if true not defamation, it coud be pri%acy) 1. 4alse ,tatement EP must proof E and efense can raise Truth as Affirmati%e efense #. 1f and concerning - E cooKuium $. -ublication boo" &. njury to 3eputation E inducement and innuendo

Substantial truth Esubstantiay simiar one to occur +not 1==X accuracy) 7urdon of proof is on the +must demonstrate truth) efenses

=eiman-"arcus v Aait E +1>'#) Of and onernin" the #Fats$ Lait +) pubished a boo" in which he referred to 0N modes +P) and saeswomen +P) as bein! ca !irs and which referred to 0N saesmen +P) as fairies. There are $J# saeswomen, #'saesmen and > modes.%ule/ the siEe of the group matters since a statement about a large group would not give anyindividual an action for libel . Mhere a !roup dispara!ed is a ar!e one, absent circumstances pointin! to a particuar P as the person defamed no indi%idua member of the !roup has a causeof action. Thus the saeswomen had no cause of action. owe%er, where the !roup or cass

ibeed is sma, and each and e%ery member of the !roup or cass is referred to, then anyindi%idua member can sue. Thus the saesmen and modes can sue indi%iduay.%estatement of Torts 5+K pplicability of efamatory Communication to -laintiff A defamatory communication is made concernin! the person to whom its recipientcorrecty, or mista"eny but reasonaby, understands that it was intended to refer.There are e9eptions to the lar"e "roup theory. ?f can show that there is somethin!about the acti%ities of the !roup that woud ma"e an ae!ation about the !roup seem true+such as an ae!ation that a members of a footba team ta"e steroids) then an indi%idua

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in that !roup woud ha%e a cause of action. Aso if there are extrinsic facts "nown bythe hearer of an ae!ations and that statement impunes the whoe !roup, then may be

an action for an indi%idua in that !roup.((@ome e!isation was passed after MM?? focused on !roup defamation directed at ews,AfricanAmericans and -athoics amon! others. 1st Amend. jurisprudence has since undermined

the %aidity of such e!isation.((Any i%in! person can be defamed +incudin! chid), no actionabe defamation of the dead.owe%er if the defamation of the dead defames the i%in! it may be actionabe.((-orporations can ha%e no reputation in a persona sense and cannot be defamed. Gut acorporation can maintain an action for defamation that casts an aspersion upon its honesty, credit,efficiency, or other business character.*otes

-4. Of and onern of # !ho alle"ation &ollo7uium( the larger the group the harder is tosue for defamation +not impossibe, if you can tie it bac" to you)* the smaller the group can sue*: is important* ?ssues of Colloquium E Df and the -oncernin! of P +must connect to P) LDD at 0ote $, &, ', B +ony ai%e person can be defamed), I +corporation can be defamed its

reputation or !ood wi)- )* people or less E P abe to pre%ai in defamation cases for !roups +continues to be appiedtoday).

&indrim v "itchell +1>I>) P E 4roup Therapist H E Author, no%eistFats/ +P) ae!ed that he was defamed in a boo" written by Nitche +) e%en thou!h s boo"is a wor" of fiction and the character does not physicay resembe the P. enroed in a nudetherapy !roup, run by P and caimed that she was ony enroed for therapeutic reasons, butshorty after pubished a boo" on the cass. P sued for abe, fase reorientations of the P%ule$ The test of identification in a ibe action is whether a reasonable person, %iewin! thewor", woud identify the “fictiona” character described as the P. oes not ha%e to be the !enera

pubic, ony needs to be someone who woud "now that the character was the P and ony has to be one person.(A statement that says “that this is a wor" of fiction and any simiarity to e3istin! persons wasunintended” woud not e3onerate the .%easonin"$ set her defense that there were se%era distinctions b;w the character in her no%e

and P* namey a physica appearance and professiona de!ree hed. The -t. said that the test is

one of reasonabe person woud ha%e indented that fictiona character as that of the paintiff.

*otes

Df and concernin! the P +-ooKuium)

5easonabe peope in the community thin" E oose e%e of esteem Einjuries to reputation+important)

Libel and Slander$

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Libel 7consists of the pubication of defamatory matter by written or printed words, or by itsembodiment in physica form, or by any other form of communication which has the potentiayharmfu Kuaities characteristic of written or printed words +i"e T or radio pro!rams).

Slander 7consists of the pubication of defamatory matter by spo"en words, transitory !estures,

or by any form of communication other than those stated abo%e in ibe.The area of dissemination, the deiberate and premeditated character of its pubication, and the persistence of the defamation are factors to be considered in determinin! whether a pubication isibe rather than a sander.

p. J'1 E 0G]

/hor v &illingsley +1>'J) P E defamed restaurateur H E Naster of ceremoniesGiin!sey +), whie actin! as the master of ceremonies of a teecast show, made reference to@hor +P) as bein! hea%iy in debt to “e%eryone”* this statement was made whie the show was onthe air. These statements, aon! with pictures of P were teecasted. P sue for defamatory

statements%ule$ efamation throu!h the media of motion pictures, T, or radio is considered ibe, notsander. +Athou!h traditionay sander is tried i"e a iabe)* G;- the ora statement has the potentia to ha%e a !reat effect +%ast audience), thus it must be treated sander.This rue of aw is sti !ood aw, but it has been chan!ed in most states by statute. Nost of thestatutes, enacted under obbyin! from broadcastin! companies, pro%ide that any broadcastdefamation is to be treated as sander, whether there is a script or not. This was done b;c insander the P has to pro%e dama!es. 0otes-Defama Cast Statutes o%er the airways or T E this rue is not on!er appied +whether thereis a script or not) if treated as sander E easer for the P* 7=& state has chose and in their

statutes they made it harder for the paintiff E ma"in! it abe. Majority of the ,tates have statutes E is sti !ood approach.

;erilliger v


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(The party repeatin! the defamation is himsef iabe for its pubication, e%en thou!h he states

the source.

( !ettin! di%orce and oss of job E specia +pecuniary dama!es)

Speial IM Dama"es E connection b;w injuries and actua pecuniary E resut of the fasestatement Slander E proof of specia dama!es are reKuired/

22PT?D0/ Slander per seNFour Cate"ories/ Are e3ceptions to the common rue and are

actionabe w;o proof of specia dama!es

1. )mputations of a:or Crimes 70o distinctions between the cate!ories of feony ormisdemeanor* any crime in%o%in! mora turpitude E conduct that is considered contrary tothe mora %aue.

#. Loathsome Disease 7This is not e3tended and not used much in modern society. ? fasunder* erpes E propery no +not fata) does not ha%e the same connotation. 23communicated

by the society.$. Business/ Trade/ #rofession or Offie 7?f the spo"en words are i"ey to affect the P in his business, trade, etc., the probabiity of some “tempora” dama!e is sufficienty ob%ious. Thee3ception was imited to defamation of a "ind incompatibe with the proper conduct of the business itsef.

&. Serious Se9ual isondut 7Principe appication of this to date has been a char!eimputin! unchastity to a woman +-ommon Law sti in pace) id not appy to a man. G9T "ow FBth mendment Eman can sue too. +eKua opportunity).

Libel per se/ A statement is defamatory on its face and the estabished rue at common aw was

that it is not necessary to pro%e specia dama!es in order to maintain an action for ibe. @ome

courts de%iate from this rue, and many courts beie%e that a ibe is ibe per se.+Presumed;without proof specia dama!es).

Libel per 7uod/ @ome courts bro"e away from the abo%e rue and assumed that if the statement

was not defamatory on its face, that they must be aware of the e3trinsic or unstated facts and the

P must pro%e specia dama!es and those e3trinsic facts in order to ha%e a cause of action. ;Dn the

face are not injures to the reputation, but it reKuires e3trinsic facts to pro%e.

#ubliation$ to ommuniate the false statement to 'rd

a. Pubication is a word of art in defamation cases. ?t does not mean printin!, writin!, or e%en

pubicity, but merey communication of the defamatory words to some one other than the person defamed.

b. @ometimes the court presumes that someone has read and understood the defamatory words.c. Nost courts ha%e hed that there is pubication, athou!h it may be pri%ie!ed +such as

dictation to a steno!rapher)* and when the words are in fact ta"en down, there is pubicationof a ibe. @ome courts hod the opposite and say there is no pubication when it is pri%ie!ed.

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d. Nost courts ha%e hed that there is pubication when the communication is from one officer,a!ent, or office on an or!aniCation to another.

e. For a communication to a $rd party to be a pubication, it must ha%e been done intentionayor by a ne!i!ent act.

f. ?f the defamatory matter is sent by to P himsef in a seaed etter, which is une3pectedy

opened and read by a $rd

person, there is no pubication.!. The posta ser%ice does not ma"e a pubication when it dei%ers a etter. owe%er, there is a pubication when a tee!raph company transmits a messa!e or a $rd party oray repeats amessa!e.

>conomopoulos v '0 Pollard +1>1&)Fats/ P was tod by a!ents of that he had stoen a hand"erchief. P was tod this by the cer"in 2n!ish and it was ater repeated to the P in 4ree". There was no e%idence that a $rd partyheard the 2n!ish con%ersation or understood the 4ree" con%ersation.%ule/ For a cause of defamation to ie there must be pubication to $rd parties of the defamatorystatement in such a manner so as to be understood by those hearin! the statement. #erson

hearin" it it must be understand it.*otes

@omeone other than the P has to understand it and no $rd person communication +here onyan a!ent of the empoyer +foor mana!er)

@tatement repeated E but no one heard it.

Carafano v "etrosplashcom +#==$)Fats$ 9n"nown person pretended to be an estabished actress and without her concetn, postedse3uay su!!esti%e information to an onine datin! ser%ice under her identity on bo!usmatchma"in! profie for Nasterson on Natchma"er.com, an onine datin! ser%ice. ?n the profiethe name -hase was used, aon! with her photo!raph and home address +e%en thou!h homeaddresses are not aowed under Natchma"er.com poicies). The man aso used a Vahoo] emaiautoresponder in the profie to pro%ide her physica address and teephone number in response toKueries. As a resut, Nasterson recei%ed se%era se3uay harassin! %oice mai messa!es and a fa3which she found Qhi!hy threatenin! and se3uay e3picitQ and Qthat aso threatened her son.Q To protect hersef, Nasterson fed her home, i%in! in hotes and tra%ein! with her son for se%eramonths.%ule$ The immunity pro%ision of the -ommunications ecency Act, &I [email protected]. #$=+c)+1)+-A),

immuniCes an interacti%e computer ser%ice +?-@) from iabiity for pubishin! fase or

defamatory materia if another part besides the ?-@ pro%ides the objectabe materia.

6gden v 'ssn of the ?/ 'rmy +1>'>)

Fats/ this is an appication of the @in!e Pubication 5ue. Goo" was ori!inay pubished in 0o%. 1>'', but the suit arises from a reprintin! of the boo" in 1>'>. ?ssue is whether thedefamation occurred in 1>'' or 1>'> +b;c of the statute of imitations).%ule$ The pubication of a boo", periodica, or newspaper containin! defamatory matter !i%esrise to but one cause of action for ibe, which accrues at the time of the ori"inal publiation,and the @DL runs from that date. 7=& Vou can repubish +then the @tatute of Limitation starts runfrom the repubication). 0otes

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Statute of Limitation E one year, e3ertion to the statue +menta incapacity, minor,medica cases no aware of medica condition.)

Mhen the ?njuries E occur when the boo" is pubished but one republished the lo;starts a"ain

Only one ause of ation E when one story pubished mutipe times, G9T if you pubish

a boo" or repeated that has the same content but with different tite +mutipe cause ofactions)

Basis of Liability

Theres a difference between primary publishers and secondary publishers. 2%en thou!h

4rishams pubisher did not write the words 4risham wrote, they are iabe for the words that are

printed in his boo"s.

Primary pubishers are iabe for the defamation in the boo". @econdary pubishers, i"e @Kuare

boo"s, are not iabe uness a P can show they "new the content was fase. A they did was se

the boo".

F. >arly Aa E imposed strict iabiity for defamation* Later E P had to pro%e not ony thatit was defamed but that it was inspired by maice +i wi or desire to harm)

). 0ewspaper or Goo" Pubisher does not Kuaify as a secondary pubisher and it is subjectto strict iabiity e%en thou!h it innocenty too" the defamatory materias from someoneese.

%. Communiation Deeny At E !ranted )mmunity to )S#s computer ser%es ony aforum+for the most part, when they start puttin! themse%es information on their websitethen they are treated differenty as info contentment pro%ider and it is becomin! a pubisher)E seondary publishers. The fact that the pubisher has no actua intention todefame a particuar indi%idua or to injure anyone does not pre%ent reco%ery of

compensatory dama!es by one who connects him with the pubication. )nternet Site prior to the -ommunity ecency Act were not treated as secondary), PDLV-V E desi!nto promote the internet !rowth*

a. Vahoo.com , ADLPut the information on the on the webThen 0o more

immunity +and secondary pubisher)B. Seondary #ublishers 7there was one important e3ception +Dny if they ha%e

"nowed!e). A %endor or distributor of a newspaper, ma!aCine or boo" is caed asecondary pubisher and is not iabe if he had no ;no!led"e of libelous matter in the pubication and had no reason to be put on !uard. ;endors


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F st md. -olicies:1. Promote 5obust discussion runnin! of Pubic Fi!ure). ,elf Censorship$. Greathin! @pace

*OT,S$2.S Constitution$

Supremay Clause Artile @)/ l.4 if there is a dispute b

state stapes aside

1st Amendment freedom of speeh

16th Amendment state po!ers/ !hat is not stated in the Constitution is reserved to

the States/ unless Con"ress enats le"islation

1St Amd. Analysis$

1. # publi offiial or publi fi"ure private person

4. D member of the media &1st Amd. #rotetion of the press( &T@/ publishers/

broadast/ papers/ ma"a3ines/ internet/ and radio station(.

'. Does speeh onern a matter of publi onern &meanin"(

=e 5or. ;imes v /ullivan +1>B&) Public 6fficial Fat/ 0ew Vor" Times +) pubished a fupa!e ad critica of the manner which theNont!omery, AL poice, under -ommissioner @ui%an +P), responded to ci%i ri!htsdemonstrations. The ad contained se%era factua errors. P and & s and media%ule/ A pubic officia may not reco%er dama!es for a defamatory fasehood concernin! hisofficia conduct uness he can pro%e that the statement was made with atual malie. The-onstriction reKuires actua maice. +Pubisher "nowin! that it was fase or with rec"essdisre!ard of whether it was fase or not). ctual malice standard is used when/ Pubic officia is criticiCed about matter of pubic conduct.

%easonin"/ wanted to combat the fear and timidity imposed upon those who woud !i%e %oice to pure criticism by any rue that woud compe such a critic of officia conduct to !uarantee thetruth of a his factua assertions. Gasicay, the court is sayin! that a certain amount of fasehoodwi be toerated b;c of the actua maice rue in order for there to be 1st Amd. 5i!hts and freedomof the press. ?f criticism of a pubic officia without actua maice Ewithout "nowed!e that is wasfase and without rec"ess disre!ard of whether or not it was fase E it is protected by theconstitutiona ri!ht of freedom of speech and press. This Kuaified pri%ie!e to pubishdefamation of a pubic officer is not imited to comment or opinion, but e3tends as we to fasestatement of a fact, pro%idin! that there is no actua maice.*OT,S

ater of #ubli onerns ivil ri"hts

Collouium problem !as not speifially named in the * artile( an brin"induements and e9trinsi fats to tie the #olie Department ba; to him.

#ubli Offiial eletion/ position has a prominent position in "overnment/

substantial responsibility !ith ontrol over the "overnmental affairs/ poliy ma;in"

positions

edial D * ne!spaper

atters of #ubli Conern rimes/ speeh dealin" !ith :udiial proeedin"s/

upmost importane of publi onern

$J


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Atual alie

o 1st Amd. #oliies$

1. 2ninhibited robust and !ide-opened debate on publi issues &* Times Case(

4. Self-Censorship &=ert3(

'. Breathin" spae essential for the fruitful e9erise of speeh &breathin" spae for

true speeh on matter of publi onern( &=ert3(-1st Amd. #rohibits a publi offiial from reoverin" dama"es for a defamation of false in

order to reover atual malie is re7uired$ false statement !as made !ith re;less

disre"ard or !ith ;no!led"e< faulty


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%ule/ ?n a defamation suit fied by a pubic fi!ure, an appeate court must conduct a penaryre%iew of the entire record to confirm whether the paintiff has shown that ae!ed defamatorystatements were made with a rec"ess disre!ard for the truth. 0otes p.JJB The standard is subjective one re;less disre"ard E hi!h de!ree of awareness of fasity

of the statements,videne %e7uired in ,stablishin" Atual alie$

-ommon Law maice +is i wi, bad wi) : that the 1st Amd. "alice is a to the jud!e and the court, not the jury from preponderance of e%idence E it mo%esto hi!her de!ree of lear and onvitin" evidene 0ewspapers moti%e for profit or to promote an opponents candidacy insufficient@tatements must be made with 1) "nowed!e of their fasity or rec"ess disre!ard for the truth+e.!. entreatin! serious doubts* hi!h de!ree of awareness of probabe fasity)^uestion of actua maice is a Kuestion of aw and the @tandard of 5e%iew is de novo -ear and con%incin! e%idence is reKuired E I'XLoo" the -hart E to see whether the 1st Amd.

0DT2 $ Pubic Dfficia p.JIJ and >1& +down) who ha%e or appear to have substantialresponsibility for or ontrol over the ondut of "overnmental affairs*o resumed Dama"es ationable per se and no evidene !ere re7uired for falsity( or

#unitive E b;c potentia of creatin! censorship +a!ainst 1st Adm.)9nder Actua Naice ama!es can be reco%ered E Actua H -ompensatory, Puniti%e

ama!es%e-Cap

*$ 1st Amendment Atual alie &;no!led"e or re;less of disre"ard I hi"h

de"ree of a!areness of falsity(

1. # I#ubli Offiial or Fi"ure

4. D I media

'. #ubli etter Conerns

#rivate #laintiffs$

0ertz v Robert I&)Fats/ 5obert Mech +) pubished an artice accusin! 4ertC +P) of bein! a communist in aconspiracy a!ainst the poice.%ule$ The standard of iabiity for a defamation which a pubisher or broadcaster pubishes abouta pri%ate indi%idua is set by the states. The pri%ate defamation P must pro%e fasity or rec"ess

disre!ard for the truth to reco%er any dama!es other than compensation for actua injury. Fautcan be anythin! state sets up other

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