Torts II Class Notes and Briefs

Torts II Class Notes and Briefs 1/19/11 6:35 PM

Midterm= .15 x ___

MBE= .15 x ___

E-1= .35 x ___

E-2= .35 x ___

TOTAL= ______

When addressing a question: Start with and determine what Theory, COA,

Elements

**Midterm: Products Liability

Strict Liability: Liability for an activity that cannot be made safe even with

the exercise of due care.

Strict Liability: Ultra-hazardous activity and animals

Animals: Domesticated and Wild

Common Law: If owner knew dangerous propensities of animal before attack

they are to be held strictly liable. “One Bite Rule” is common law, not

modern.

Comparative Negligence:

Ex. Sign claiming danger and you continue to go through door

Ex. Provocation: child hitting dog.

Wild Animals: inherently dangerous propensity in question must cause the

harm; not other behavior.

Strict Liability: Use proximate cause chain. No need to address actual cause

because no need for fault.

Ultra-hazardous Activity: An activity that cannot be made safe even with the

exercise of due care.

Blasting; explosives

o Noise, concussion, debris, vibration

Crop dusting

o Plane with pesticide. Wind causes hazard; cannot be

controlled

Manufacture of explosives

Storage of large quantities of water

o Hydra-static pressure.

Defenses:

Act of God

Contribution

Common Law: no knowledge of dangerous propensities

Provocation

Start with Strict Liability, if not viable move onto negligence, if again not

viable, go onto intentional tort.

Strict Liability:

Analyze event to determine if it falls into strict liability categories

Proximate Cause Chain

Damages

Introduction to Next Week’s Lecture:

Products Liability:

1 Intent: As defined

2 Negligence:

3 Warranty:

4 Strict Liability in Tort

Greenman v Yuba Power Products Corp.

Page 762; to a **human being

Product: Cannot be a service, cannot be other than chattel (personal

property; cannot be a person), Moveable, entity of itself or made up of

individual products (car). Product has to be defective

Defects:

Design

o in structure

Manufacturing

o workmanship or in material

manufactured materials brought in to build defect

manufactured product etc.

Warning;

Must first determine if it is intent or negligence

Look at injuries to determine

o Ex. Bodily harm= battery

o Ex. Negligence= Duty, Breach, AC, PC, Damages.

Breach: Failure to act as a reasonably prudent

manufacturer

Warranty:

Express: What it says it is

Implied:

o Merchantability

o Fitness for a Particular Purpose

1. What Is Strict Liability? An Introduction.

a. Again, it should be remembered from Torts I that there are three

theories in tort law; intent, negligence, and strict liability. The

seven causes of action involving intentional torts and the necessary

elements of a cause of action for negligence were covered in Torts I.

b. Causes of action rooted in theories involving allegations of

intentional conduct and negligent conduct rely upon a finding

of fault on the part of the alleged tortfeasor. In causes of action

rooted in allegations of intentional conduct, that fault is based upon

proving that the alleged tortfeasor acted willfully, volitionally, or

purposefully. In a cause of action for negligence, the plaintiff must

establish that the alleged tortfeasor acted unlike a person exercising

due care, recklessly, or with a conscious disregard for the rights

and safety of others or their property.

c. However, when considering allegations of strict liability, certain

activities, when producing harm to others or their property, will

impose liability without regard to fault.

2. Is Strict Liability Known By Other Names?

a. Yes, it is also referred to absolute fault, or absolute liability.

3. Why Is Liability Thus Imposed?

a. Because some activities cannot be made safe even with the exercise

of due care.

b. Therefore, person(s) or entities choosing to engage in such

activities must bear the risk of loss should injuries or harm result

from their activities.

4. Under What Circumstances Is Such Liability Imposed? *

a. Ultra-hazardous Activities:

i. Blasting.

ii.

Crop dusting.

iii.

Manufacture of explosives.

iv.

Storage of large quantities of water.

b. Animals:

i. Injury or harm by wild animals.

ii.

Trespassing domesticated animals or livestock.

iii.

Dog bites:

1. Common law:

a. Required that the defendant knew of the

alleged dangerous propensities of the animal in

question.

i. Gave rise to what was known as the “one

bite rule”.

2. Modern Law (Including California):

a. More modernly, prior knowledge of the alleged

dangerous propensities of the animal in

question is not required. This has done away

with the so-called, “one bite rule”.

* Students should note that this is not intended to be a complete list of

activities that might fall into this category. Rather, these are offered to

stimulate and direct thought and represent both the most common

categories

where strict liability is imposed and also those covered in the text.

5. Is engaging in such an activity alone sufficient to impose liability and

damages upon the alleged tortfeasor?

a. No. The activity must be causally related to the injury or damage

suffered.

b. This means that an analysis of both actual cause and proximate

cause as was taught regarding negligence must also be established.

c. Students should be aware then, that the harm suffered must be

reasonably foreseeable to the alleged tortfeasor and, as such,

causally related to the activity. For an example of a causal limitation

on the imposition of strict liability, the students’ attention is directed

to the case of Foster v. Preston Mill Co. at page 710, et seq. of the

text.

d. Therefore, one defense available to a defendant accused under a

theory of strict liability is that the harm is not causally related to the

activity in question.

6. Are the other defenses that may be available to an alleged tortfeasor who

is

accused under a theory of strict liability?

a. Yes.

i. An Act of God having created the harm arising from an

alleged ultrahazardous activity. [See, Golden v. Armory case

at page 712 of the text.]

ii.

Contribution to the harm by the plaintiff or others.

iii.

Regarding animals, no prior knowledge of the subject

dangerous propensities in jurisdictions following the

common law on this point.

iv.

Again, regarding animals, provocation of the animal

by the plaintiff which then takes the form of contribution or

comparative fault as in a negligence action.

Torts II 1/19/11 6:35 PM

Plaintiff v Def I, Def II, etc.

Area of law for reader (Products Liability)

o Product

Moveable, chattel, acted upon in chain of commerce,

transportable

Conclude that it is a “Product”

o Defect

Isolate “defect”

Design

Fall below standard in industry

Manufacturing

Warning/ Sign

o Joining Parties: Stream of Commerce: Manufacturer-Retailer-

etc.

How did the product end up in the commerce chain?

o Substantially certain that the defect may create injury?

o Discuss in intent. “Substantial Certainty”

o These facts will lead to either an Intentional Tort or a cause of

action for Negligence, not both!

o ***Damages will lead into what causes of action.

Causes of Action:

o Intentional Torts: Grenshaw, exploding Ford truck

o Negligence:

o Warranty Argument:

i. There are 3 warranties:

1. Expressed warranties.

a. See Restatement 402B.

2. The Implied warranty of fitness for a particular

purpose.

a. Requires that the seller know the purpose

intended by plaintiff and make a

representation of fitness to plaintiff prior to

the point of sale

3. The Implied warranty of merchantability.

a. Requires that all goods be of “fair and

average quality”

4. These are set forth in the Restatement 2d and

should be studied along with the class materials

o Strict Liability in Torts

****Manufacturer owes a duty to the consumer to produce a product that is

reasonably safe in its normal and usual intended use.

Duty, breach, actual cause (but/for), proximate cause, Damages

o No known defect, it appears defective because no properly

made product would behave this way; res ips loquitor for

breach

1. What is Products Liability?

a. This is an area of tort law which examines liability for injuries and

damages caused by products which are defective in their normal

intended use.

2. What kind of defects?

a. Defects can be in design, manufacture or warning.

o i. Design:

1. A faulty design or one that falls below the standard in

this industry.

2. “State of the art” knowledge and technology may be

taken into account.

o ii. Manufacturer:

1. Substandard workmanship or materials.

o iii. Warning:

1. Where a product cannot be made entirely safe in its

normal intended use, warnings are required.

2. These may / must be placed on the product itself, on

its packaging, or in materials enclosed with the product.

3. How the user may best avoid harm.

4. See, Anderson case at page 757.

3. Under what theories is a Products Liability action brought?

a. It can be an intentional tort (assault, battery, etc.)

o i. One example is the Grimshaw v. Ford Motor Company case

tried in the Orange County Superior Court.

o ii. In that case, it was alleged that FMC knew of the fact that

the Ford Pinto’s gas tank would explode upon sufficient rear

end impact, but nonetheless chose not to re-design nor recall

the cars. Rather, knowing the explosions would injure or kill

others, they decided it was cheaper to pay the judgments

than to re-deign or re-tool the car.

o iii. This, then clearly shows that they acted volitionally or with

purposefulness, will malice, oppression, or so as to defraud

others, or with a conscious disregard of the rights and safety

of others as such injuries and deaths were substantially

certain to occur.

Examples of the Causes of Action: Wrongful Death,

Survival, 7 Intentional Torts, Damages

b. It can also be brought as a negligence action

o i. Failure to safely design, manufacture or warn about the

subject product. This is the most common theory.

o ii.See MacPherson v. Buick Motor Company, page 719, 409.

c. It can also be brought as a strict liability action.

o i. Here, however, it is called “Strict Liability In Tort” and arose

from the Greenman v. Yuba Power Products case. [See, page

732.] That opinion was written by Justice Traynor and reads:

“A manufacturer is strictly liable in tort when an article he

places on the market knowing that it is to be used without

inspection for defects, proves to have a defect that causes

injury to a human being.”

o ii.See also, Restatement 2d, 402A.

d. It can also be brought under a warranty argument:

o i. There are 3 warranties:

1. Expressed warranties.

a. See Restatement 402B.

2. The Implied warranty of fitness for a particular

purpose.

a. Requires that the seller know the purpose

intended by plaintiff and make a representation of

fitness to plaintiff prior to the point of sale.

3. The Implied warranty of merchantability.

a. Requires that all goods be of “fair and average

quality”.

4. These are set forth in the Restatement 2d and should

be studied along with the class materials.

4. Under which of the foregoing 4 theories must a student argue:

a. Any and/or all that are arguably applicable.

b. Therefore, a single question / fact pattern may require up to 4

different analyses of the same question.

5. Who can be held liable under products liability?

a. Anyone in the “stream of commerce”.

o i. For example:

1. The manufacturer.

2. The distributor.

3. The wholesaler.

4. The retailer.

6. Who can sue under products liability?

a. The consumer.

o i. That is, the person who purchases the product in question.

b. A bystander.

o i. That is, a person that is injured as a result of the consumer’s

use of the product in question.

c. A foreseeable user.

o i. That is, one to whom the products is given or loaned by the

actual consumer.

7. Are there any defenses to products liability?

a. Yes, for example:

o i. Misuse of the product.

1. Plaintiff’s decedent tries to use a shotgun shell to

hammer a nail into the wall. The decedent strikes the

nail with the brass end of the shell containing the

detonating cap, causing the shell to discharge thus

killing the decedent.

o ii. Alteration of the product.

1. Plaintiff takes the surrounding cabinet off of a space

heater permitting materials in the room to come into

contact with the heating coils and start a fire.

o iii. Modification of the product.

1. A teenager bores out the cylinders on an engine

causing the engine block to crack and disintegrate thus

seizing the engine which causes the car to roll over.

Modify the character of the product

o iv. Other forms of contributory or comparative negligence.

1. Holding a scalding hot beverage purchased at a drive

through between one’s legs in the car.

2. Disabling safety mechanisms on machinery.

o v. Other forms of assumption of the risk.

1. Use of an inner tube for white water rafting. The tube

strikes a rock, bursts, and plaintiff’s decedent is

drowned

o vi. Failure to use the product for its intended purpose.

1. Plaintiff buys shoes intended for use at the gym and

tries to use them for mountain climbing in the snow.

The glued soles detach and plaintiff’s feet freeze.

o vii. Failure to maintain the product in a reasonably safe

condition.

1. Plaintiff fails to check and maintain the nuts that hold

a grinding wheel on to the motor on a grinder thus

permitting the wheel to dislodge and strike plaintiff at

high velocity

o viii. The “Closed or Sealed Container Doctrine”: (DON’T USE)

1. Where a product is manufactured and placed in a

closed and sealed container [for example, a television

set] and by so doing the manufacturer knows that

others in the stream of commerce are not likely to

inspect it as it passes through their hands on the way to

the ultimate consumer, those others may raise the

closed container doctrine to argue that they had no

opportunity under the circumstances to inspect,

discover, and correct any defect in the product. In this

hypothetical, the television was wired incorrectly which

then caused the TV tube to explode upon being plugged

in a turned on. Plaintiff buys the TV from “ABC

Appliance Store” takes it home, plugs it in and turns it

on while sitting in front of it. The TV explodes propelling

glass shards into plaintiff’s eyes. The manufacturer is

XYZ Corp. Plaintiff sues ABC and XYZ.

8. What damages are recoverable in a Products Liability Action?

a. Personal injuries.

o i. I.E., bodily injuries.

b. Property damages.

o i. Including the value of the subject product itself (paid money

for it)

1. Except where the only damage is failure of the

product to perform as expected.

c. Other special damages.

o i. Lost wages, etc.

d. Emotional distress damages.

e. Loss of consortium damages where applicable.

o Loss of services (conjugal)

f. A questionable area:

o i. A condom fails in its normal intended use resulting in an

unwanted pregnancy. Did the product simply fail to perform

as expected, or has physical harm resulted for which recovery

should be permitted under strict liability in tort?

1. See, Miceli v. Ansell, Inc. (1998) 23 F. Supp. 929

res ips loquitor

up to manufacturer to manufacture properly

did plaintiff contribute?

Does this happen in the absence of

negligence?

*******Greenman v Yuba Power Products, Inc.*******

Judge Traynor, Page 762

“A manufacturer is strictly liable in tort when an article he places on

the market, knowing that it is to be used without inspection for

defects, proves to have a defect that causes injury to a human

being.”

Macpherson v Buick Motor Co.

Stream of commerce argument established

Material substandard: substandard material= manufacturing defect

Baxter v Ford Motor Co.

Torts Class Notes and Briefs 1/19/11 6:35 PM

Foundational:

Product

Defect

Stream of Commerce

Intent:

Battery

Conversion

Trespass to Chattels

Trespass to Land

Negligence:

Duty: Manufacturer owes a duty to the consumer to produce a

product that is reasonably safe in its normal and usual intended

use.

Breach

Actual Cause

Proximate Cause

Damages (actual)

Warranty:

Expressed

o Has to be given

o Contractual

Implied

o Merchantability

Fair and average quality

o Fitness

Used for a particular use and when it failed= breach

Strict Liability in Tort

Greenman v Yuba, 1963

o Justice Traynor wrote opinion

o ***** “A manufacturer is strictly liable in tort when an article

he places on the market, knowing that it is to be used without

inspection for defects, proves to have a defect that causes

injury to a human being.”

o

o a manufacturer is strictly LIT when a product he places

on the market, knowing it is to be used without

inspection for defects, proves to have defects and

causes injury to a human being.

o

Page 799

Misuse, alteration, modification

Negligence and strict liability in tort.

Pre-emption

Immigration

o who is and who isn’t a citizen

Airlines/ air travel:

o FAA is ultimate authority

o If not, there would be inconsistencies with laws and

regulations.

Navigable waters

o

Article 1, Federal Supremacy Clause

Standardization; uniformity

Ensure states are setting minimum standards

Wyeth v Levine

Failure to obtain informed consent (malpractice)

Products: services vs. good provided;

o failure to warn user of the product and it subsequently harms

third person.

Peterson v Lou Bachrodt Chevrolet Co.

Burden of proof on Plaintiffs; defense for the suppliers in the chain

of commerce; maintenance is the duty of the consumer

o Couldn’t show that the defects were present when the car left

the dealership

Hector v Cedars-Sinai Medical Center

Determination of liability based on performing services and selling

products

Plaintiff v Defendants

Product

Defect

Stream of Commerce

o Duty: Greenman v Yuba

o Breach:

o Actual Cause:

o Proximate Cause:

o Damages:

**Defective products are never a fair and average quality

Defense from a third party’s cause of action against you for the product’s

defect causing them harm.

Indemnification under warranty of the product

General Negligence vs. Strict Liability Negligence

GN: All persons owe all

SLN: “Every manufacturer is strictly liable in tort when an article he

places on the market, knowing that it is to be used without

inspection for defects, proves to have a defect that causes injury to

a human being.”

In determining a defect: Deductive reasoning

Manufacturing: History of problem? Any other occurrences? Workmanship

or material

Design: falls below a minimum standard in the industry

Warning defects: Need to warn only if the product cannot be used in its

typical operation safely

***On Exam, Analyze and Outline First

Parties

Area of law: products liability

Product:

Defect:

manufacturing: fair and average quality

design: falls below industry standards

warranty: failure to warn if product cannot be used safely in

its intended use.

Chain of Commerce:

Intent: battery, conversion, trespass to chattels

General Negligence: all manufacturers owe a duty to consumers to

produce a product that is reasonably safe in its normal and intended

use.

Strict Liability: A manufacturer is strictly liable in tort when a

product he places on the market, knowing it is to be used without

inspection for defects, proves to have a defect and causes injury to

a human being. Justice Traynor, Greenman v Yuba. 1963

Warranty:

Implied:

o Fitness: for a particular purpose and failed to perform

o Merchantability: Fair and average quality

Expressed:

o Contractual

o Warning given

(Negligence)

Duty: See above

Breach:

Actual Cause: But for

Proximate Cause: Chain

Def’s Act:

o Direct

Foreseeable?

Unforeseeable?

o Indirect

Damages: Injuries, property damage, etc.

Defenses: alteration, modification, not used in intended use.


Private and Public Nuisance:

Interference with another’s use and enjoyment of land.

Nuisance:

Always pertaining to real property and land.

1. Public

Oil tank leaking oil of southern California coast, oil on land.

Public has been effected

o Public use and enjoyment of land.

o No one may recover unless you have received damages which

are different in kind

2. Private

individuals ability to enjoy and use land.

Damages; determined by jury

**Nuisance is a form of damage.

Theories used for the damages based on nuisance:

Intent:

o Trespass to land

Negligence

o Garbage Band…

Duty to hold all others away from reasonable harm

Damage: sleep


o Ultra hazardous activity; blasting damages other’s property

o Direct and foreseeable

o Strictly liable for foreseeable damages

o Private Nuisance

Nuisance is not a separate tort. That is to say, it is not a cause of action.

Rather it is a type of harm which arises from an invasion of real property

rights through conduct which is tortuous. This tortuous conduct giving rise

to the harm referred to as nuisance will fall under one of the three previously

learned tort theories; intentional conduct, negligent conduct, or conduct

giving rise to strict liability.

Nuisances are one of two types:

Private nuisance.

Public nuisance.

Private Nuisance:

Definition - A substantial, unreasonable interference with the use and

enjoyment of the land of another.

Elements:

Substantial interference – The interference must be offensive, inconvenient,

or annoying to the average person in the community. A specialized use of

land by the plaintiff, or hypersensitivity of the plaintiff will not suffice.

Unreasonable interference – The severity of the inflicted harm must outweigh

the utility of defendant’s conduct. This is a balancing test. It should be

remembered that all parties are entitled to use their own land in a

reasonable way.

Public Nuisance:

Definition – An act which unreasonably interferes with the health, safety or

property rights of the community.

Examples – Obstruction of a highway. Pollution of waterways. Use of

building for criminal activity (i.e., prostitution, bookmaking, etc.)

Note – Recovery by a private plaintiff is only possible if they have suffered

damages which are “different in kind”; that is, which are unique from the

general public.

Example – Defendant obstructs a sidewalk. All members of the community

are inconvenienced by having to walk around the obstruction. Therefore,

that alone will not permit a private plaintiff to recover for the inconvenience.

However, if plaintiff trips, falls, and is injured by the obstruction, plaintiff’s

damages have become different in kind from the general public.

Example 2 – Defendant factory pollutes a river which dumps into the bay.

The general public cannot use the beaches at the bay. All are thus

inconvenienced. However, a small group within the community fish for living

in the bay. Due to the pollution they cannot fish. They thus suffer losses of

earnings. They thus have damages which are different in kind from the rest

of the community.

Distinguishing Nuisance from Trespass:

In trespass the plaintiff’s exclusive right of possession is interfered with

through intrusion upon the land by the defendant.

In nuisance, however, the plaintiff’s right to use and enjoy their land is

interfered with by activities carried on by the defendant upon their land.

There may or may not be an intrusion. Further, what is being examined is

the use and enjoyment instead of the possessory interests in the land.

General Note:

Generally nuisance is intentional. This is because normally before an action

is brought, the interference is brought to the attention of the defendant by

the plaintiff with a request that it be abated. The refusal of the defendant to

so abate the nuisance causes the continuing nuisance to then be viewed as

intentional.

Remedies for Nuisance:

If the nuisance is temporary, damages are normally awarded to compensate

for the loss of use and enjoyment during the period of the nuisance.

If, instead, the nuisance is continuing, normally injunctive relief is sought. An

injunction is a court order to do something or to refrain from doing

something. Such injunctive relief may take two forms:

Mandatory Injunction – Thou shalt abate the nuisance.

Prohibitory Injunction – Thou shalt not continue in the activity that is causing

the nuisance.

The Equitable Doctrine of Self Help:

Private Nuisance:

One plaintiff has given defendant notice and demand, and once that

defendant has refused to act, plaintiff holds a qualified privilege to enter

upon the land of the defendant to abate the nuisance. However, if other

damage is caused during the abatement of the nuisance by plaintiff,

defendant may claim the same back against the plaintiff.

Example – Defendant is burning trash on his land. The smoke is drifting over

plaintiff’s land. Plaintiff demands that defendant stop burning the trash

because due to the smoke and smell he cannot even be outside his home.

Defendant refuses. Plaintiff goes on to defendant’s land and puts out the fire

with a hose. However, in the process, he short circuits the defendant’s

landscape lighting.

Public Nuisance:

If an individual has unique damages as required for a viable cause of action

for public nuisance, that individual also holds a qualified privilege to enter

upon the land of the defendant to abate the nuisance under the same

conditions described above.

However, if no one holds that privilege, the nuisance may only be enjoined

by the courts or abated by public authority.

Example – Trash filled house and lot in Seal Beach as belonged to a professor

at CSULB. In the papers a short time ago. It presented a health and safety

hazard in the neighborhood. None of the neighbors, however, suffered any

damages any different from anyone else. Ergo, the city obtained an

injunction ordering the professor to clean up her property. She refused.

Under public authority, and in keeping with a second injunction, the city then

sent its employees to forcibly clean the property and haul away the

professor’s junk. Of course, she claimed that it was “valuable” junk.

Defenses to Claims of Nuisance:

Legislative Authority.

Zoning ordinances permitting the conduct complained of.

Conduct of Others:

Concurrent causes (i.e., 10 factories are polluting the same river) – each

actor is liable only for the damage that they cause.

Defenses available to intentional torts if claim of nuisance is based upon

intentional conduct by the defendant.

Contributory / Comparative Negligence:

Available only where the relief is being sought is based upon a cause of

action for negligence.

Defenses available to strict liability causes of action if claim is based upon

strict liability.

Coming to the Nuisance:

Where the defendant is already engaging in the conduct that the plaintiff

complains of before the plaintiff arrives on the scene, defendant will claim

essentially that plaintiff came to the nuisance or that plaintiff assumed the

risk of what is now being complained of.

To the contrary, plaintiff will claim that defendant should be forced to cease,

curtail, modify, etc., the conduct complained of so as to not be permitted to

constructively condemn the plaintiff’s ability to use and enjoy their land.

The prevailing view is that absent a prescriptive right inuring to the benefit

of defendant, the character of an area may change over time by and through

the entry of others to the area, and/or a changing use of the area concerned.

Thus a pre-existing use may become disallowed and the defendant may be

required to change, modify, curtail or even entirely cease their prior

activities upon their own land. However, where the plaintiff seeks to enjoin

such prior activities of the defendant concerned, the plaintiff may have to

indemnify the defendant. This may take the form of moving costs, forced

sale of defendant’s land, etc.

See, Spur case at page 857.

Note – this very testable as it provides excellent ground for a close

argument.


Pages 833-916

Slander: Verbal

Special Damages: Must be Proven

o Crimes, business, loathsome acts by women, render general

damages presumed

General Damages: Emotional distress, chastised,

o Are readily available with attachment to….

Libel: Written

Emails, letters, radio, etc.

o Special Damages: Presumed

o General Damages: Immediately Available

Where statement is not patently defamatory consider libel per quod?

Inducement through Innuendo by means of extrinsic information

Facts brought in to establish negative connotation but not

facially stated in inducement.

1: Theory?

2: Cause of Action?

3: Elements?

In every defamation claim there is:

Inducement:

o Statement itself; what words were used

o #1: False Statement

Innuendo:

o What is the meaning of those words

o #5: Why is “it” defamatory; Why slanderous, how does it hold

Plaintiff to ridicule, injury, etc.

o May be how the statement attacks virtues as well. Unethical,

lacking virtue, thief, etc.

Colloquium:

o Understanding on the part of the recipient relating to the

Plaintiff

o #4:

Defamation:

1) False Statement

2) Published by Defendant

3) To 3rd Party

4) Understand as relating to Plaintiff

5) Which holds Plaintiff up to Hatred, scorn, ridicule or abuse.

Classes of people being protected:

Right to speak ends at other person’s dignity

No need to establish malice, if 5 elements established, no need etc.

Private persons involved in a matter or public concern or a person

being thrust into the vortex of controversy

o Is the story truly newsworthy?

If so, then you do not show malice, but negligence

o Ex: media reporting something, shown wrong, was the

newspaper negligent? Yes, failed to check sources.

Public official, public figures

o Malice must be shown

Ex. Conscious disregard for the falsity of the statement,

or acting with intent.

Defamation:

A false statement published by the defendant to third party, which

holds the plaintiff(s) up to hatred, scorn, ridicule, or abuse.

o ONLY ONE PERSON MUST BE SHOWN TO HAVE BELIEVED THE

STATEMENT RELATING TO PLAINTIFF FOR DEFAMATION TO BE

ESTABLISHED.

False:

In order for a publication to be defamatory, it must be false.

A publication which has a negative effect upon a plaintiff which is

not false, may be actionable as an invasion of privacy (false light,

public disclosure of private facts, etc.) but cannot be defamatory

except in certain limited circumstances where it is published under

circumstances sufficient to constitute at the same time the

intentional infliction of emotional distress.

Statement:

A statement may be verbal (a direct spoken remark) or in some

other form (i.e., pictures, photos, cartoons, satire, drama, etc.)

o If a statement is verbal, it is characterized as “slander”.

o If a statement takes a “written” form, it is characterized as

“libel”.

Published:

Again, publication may be verbal or may take some other form such

as a writing, a radio announcement, a television broadcast, etc.

However, in order to have actionable defamation it must be

“communicated”. This is the meaning of “publication”.

Third Party:

Defendant cannot defame the plaintiff by making statements to the

plaintiff unless there are third parties also present who hear the

published statement.

Which Holds The Plaintiff(s) Up To Hatred, Ridicule, Scorn Or Abuse:

Statements which are defamatory “on their face” may be actionable

for defamation (i.e., John is a thief).

However, other statements may not be defamatory “on their face”.

This to say, some statements which are not set in context may not

have a “defamatory effect” unless taken in context. In such

instances, three factors must be considered which are as follows:

Inducement:

The statement itself.

Innuendo:

The defamatory character or meaning of the statement.

Colloquium:

The statement must then be understood by the third party or

parties to whom the statement is published as relating to the

plaintiff(s).

o Special attention should be paid to colloquium where alleged

group defamation is involved.

Impeachment Of Character:

When considering whether a statement is likely to hold a plaintiff up

to hatred, scorn, ridicule or abuse, reputation is concerned.

Therefore, the statement would be likely to adversely affect the

plaintiff’s reputation as to one or more of the following types of

attributes:

o Honesty.

o Integrity.

o Virtue.

o Sanity.

o Chastity.

o Fidelity.

o Etc.

Statements of Opinion:

Statements by a defendant of opinion are normally not actionable

unless it can be shown by the plaintiff that they are based upon

alleged specific facts, and where an express allegation of those

facts would be defamatory.

o Example: “I don’t think John can be trusted to be the

treasurer and hold the checkbook”.

This would imply that the defendant/publisher knows of

some dishonest act by John involving his honesty.

Who may be defamed?

Living persons.

You cannot defame the dead.

Includes both individuals and groups of individuals.

Organizations – Corporations, Unincorporated Associations,

Partnerships.

Normally referred to a “Trade Libel”.

Who may be liable for defamation?

“Publishers”.

A person who makes a statement to a newspaper reporter.

“Republishers”.

The newspaper when it prints the statement of the publisher.

Secondary Publishers”.

o Normally not liable unless they knew or should have known

that the published statement was false.

o For example, here, the newspaper salesman on the corner.

Slander versus Libel:

Slander:

o Verbal communications.

Libel:

o A defamatory statement recorded in writing or some other

permanent form.

o May include radio, television, writings, photos, drawings, etc.

Damages:

Slander.

o General damages (i.e., to reputation) are normally presumed

but only if special damages can be shown.

o Special damages (financial) are required to be proven by the

plaintiff for the cause to be actionable.

Exception is “Slander Per Se” [CLUB]

Here, special damages are presumed. The statement

will have to do with one of 4 categories [CLUB]

C = crimes or criminal activity.

L = Loathsome Diseases.

U = Unchaste acts by females.

B = Business involvement – that is, that plaintiff is

dishonest or disreputable in business practices.

Libel.

o Libel Per Se. [statement defamatory on its face]

o Specials damages may be awarded but need not be proven

for the cause to be actionable.

o General damages are normally presumed.

Libel Per Quod. [statement to be defamatory requires reference to

extrinsic facts – see inducement, innuendo & colloquium, above]

o Special damages must be proven.

o General damages available if special damages can be proven.

Public Officials and Public Figures as Plaintiffs:

Those who have “thrust themselves into the vortex of public

controversy”.

o Includes elected and/or appointed officials.

o Also includes high profile business persons, community

leaders, entertainers, etc.

Where the plaintiff is a public official or public figure, the plaintiff

has the added burden of showing that the published statement was

made with “actual malice”.

Malice:

o Defined as making a statement with knowledge that it is false,

or with “reckless disregard for the truth or falsity of the

statement”. [New York Times v. Sullivan.]

Reckless Disregard is not measured by the “RPT” but rather by

whether the defendant “entertained serious doubts” as to the

truthfulness of the published statement.

Private Persons as Plaintiffs:

Where the plaintiff is a private person, there is no requirement to

establish “actual malice”. [Gertz v. Welch.]

Middle Ground – Private Persons Involved in a Matter of “Public Concern”

Public Concern:

o Newsworthy.

o Malice need not be shown, but negligence must be.

o Presumed damages prohibited – only actual damages can be

awarded.

However, it “actual malice” can be shown by such

plaintiffs, then punitive damages are also available to

them.

Defenses to Actions for Defamation:

Truth. – complete defense.

Consent. – complete defense.

Absolute Privileges:

Prevents liability for defamation from being found.

o Judicial.

All statements made in court by the judge, jury,

witnesses, and counsel that bear some reasonable

relationship to the proceedings.

o Legislative.

Hearings and floor debates.

o Executive.

Statements made while exercising function of office.

Compelled broadcasts or publications.

“Equal time” requirements.

o Communications between spouses.

Granted as a public policy to encourage free exchanges

and communication between spouses.

o Qualified Privileges:

Prevents liability for defamation, but can be lost if

abused.

Abuses:

Malice.

o Statement not within the scope of the privilege.

o Reports of public proceedings.

Excuses reporting inaccurate statements made but not

reporting inaccurately otherwise accurate statements.

o Public interest.

Fair comment and criticism [book reviews, public

institutions, etc.]

Publication to one acting in public interest [parole

boards, reports to police, etc.]

o Interest of publisher.

Statements made to protect the publisher’s own

interests such as explanation of actions, failures to act,

etc.

o Interest of recipient.

Where information is requested such as a prospective

employer calling a prior employer for information on an

applicant.

o Common interest of publisher and recipient.

Statements made by members of the same board of

directors to one another – normally considered private

and for consideration and concerted action.

Mitigation:

Does not obviate liability but lessens its effect or perceived liability

for the same and thereby arguably lessens damages.

Anger:

o Where the publisher is provoked by the aggrieved plaintiff.

Retraction:

o Does not undo the wrong suffered but does tend to indicate

that there was no actual malice and thereby lessens the

likelihood of punitive damages.

Other showings that establish that there is no actual malice:

o Again it does not undo the wrong but may lessen damages

awarded.

“I didn’t mean to cause…”

“I didn’t know of inaccuracies…”

argumentum ad vernicundium

argumentum ad baccurum

argumentum ad hominem

***Intracacies will most likely be found on multiple choice sections of exams:

Exceptions to the exceptions

Belli v Orlando Daily Newspapers, Inc.

Attorney

Columnist published statement stating he ran up bills at hotel

“take”= steal, deceive

Sued for Libel and Slander, trial court dismissed, the court in the

case at bar reversed and remanded for jury to determine how the

statement would have been interpreted by “common mind”

Grant v Reader’s Digest Ass’n

Kilian v Doubleday & Co., Inc.

No evidence to support specific instances in which the Colonel was

pictured as dictator/ cruel and unusual punisher.

Evidence submitted was just a testimony to actual character but not

to specific cases in which was published.

Neiman-Marcus v Lait

No one may sue as a group under a cause of action for libel or

slander unless specifically mentioned or noted in the inducement or

statement.

Bindrim v Mitchell

Shor v Billingsley

Radio telecast

Issue: Live telecast not read from a prepared script sounds in libel

or slander

Terwillinger v Wands

Although the 5 elements are established, the plaintiff was unable to

show that the special damages arose from the actual slanderous

statements; therefore the COA is not libel.


Finish cases all through pages 916-975

Economopoulos v A.G. Pollard Co.

Publication in order to establish defamation

Understanding must also be established

Another person must be involved

Carafano v Metrosplash.com, Inc.

Immunities for internet servers services (not responsible for content

independently provided within)

Ogden v Association of the United States Army

statute of limitations

may only bring suit 1 year after ORIGINAL publication of defamatory

material

New York Times Co. v Sullivan

Either knowing of the falsity or reckless disregard for truth

establishes actual malice.

Public Figure and public officials not necessarily included.

START ON PAGE 929

GERTZ V ROBERT WELCH, INC.

Defamation:

A false statement … (Inducement)

Published by Defendant …

To a Third Party …

Understood as relating to Plaintiff … (Colloquium)

Which holds Plaintiff up to hatred, ridicule and scorn or abuse…

(Innuendo)

Type (pick one)

Slander

o Prove special damages

o General Damages

Libel

o Does not require special damages, but should do so if present

o General Damages


Invasion of Privacy:

The Right to Be Left Alone

o 1: Intrusion upon Seclusion & Solitude

Looking over back fence, peeping, etc.

o 2: False Light

Corollary into Defamation

Truthful but still portray other in a negative light.

o 3: Public Disclosure of Private Facts

o 4: Misappropriation of Name or Likeness for Pecuniary Benefit

Privacy:

1. What is it?

A tort based upon the right of a private individual to be let alone

and to be protected from unauthorized publicity in essentially

private affairs.

2. How does it arise?

This tort falls into one of four categories:

o 1. Intrusion upon seclusion and solitude.

o 2. False light.

o 3. Public disclosure of private facts.

o 4. Misappropriation of name or likeness for pecuniary benefit.

3. What are the elements of each type of invasion of privacy?

a. Intrusion upon seclusion and solitude:

o a. It must be shown that the defendant intruded upon the

physical privacy of the plaintiff or pried into the plaintiff’s

private affairs.

o b. The intrusion or prying must be the sort of activity that

would be objectionable to the reasonable person.

o c. The plaintiff must possession a reasonable expectation of

privacy either in the place or over the information or affairs

concerned.

b. False Light:

o a. The must be a dissemination of information by the

defendant regarding the plaintiff.

i. Note that this requires more than “publication” in the

sense used in defamation. It must be disseminated to

the point of giving rise to publicity.

o b. The information disseminated must be presented in such a

fashion by the defendant that it places the plaintiff in a “false

light” in the public eye.

i. To portray a plaintiff in a false light, the information

must give the recipients of the disseminated

information the impression or understanding that the

plaintiff holds views he/she does not hold, or that they

have acted in a manner in which they have not acted.

o c. The “false light” in which the plaintiff is portrayed must be

objectionable to the average reasonable person.

o d. And, where the plaintiff is either a public figure, or official,

malice on the part of the defendant must be shown.

i. Note a close cross-over to defamation here. Normally,

falsity is not required to establish invasion of privacy.

Further, the same is true herein. However, a “false

impression” or “false understanding” is the effect and

must therefore be established.

ii. Note also, that in the case of Time, Inc. v. Hill (1967)

385 U.S. 374, where the information being disseminated

is in “the public interest”, malice (under the same

standards as set forth in the case of New York Times v.

Sullivan) must also be established.

c. Public Disclosure of Private Facts:

o a. There must be private facts concerning the plaintiff that the

average reasonable person would not want to have made

public.

i. Note that facts which are a matter of public record are

not private facts.

o b. The defendant must publish those facts regarding the

plaintiff to the public.

i. In this regard note that private disclosure is

insufficient. It must be made generally known to the

public.

o c. The disclosure must be objectionable to the average

reasonable person.

i. Note that the facts may be true. It changes nothing.

ii.Note also that a publisher of such information may

have a privilege to publish the information even it is

private where:

1. The information is such that it gives rise to

legitimate public interest.

2. Or where the person was a public figure but no

longer is so long as the information concerned is

regarding the plaintiff from his time in the public

eye.

o d. Misappropriation of Name or Likeness for Pecuniary Benefit:

a. The use of the plaintiff’s name or likeness must be

unauthorized.

b. The plaintiff’s name or likeness must be used by the

defendant to defendant’s pecuniary advantage or

benefit.

i. Note: Liability is normally limited to such uses as

may arise with commercial promotion or

advertisement or a product or service.

ii. Note also: However, “mentioning” someone

else alone may not be sufficient. For example,

someone writes a story intending to sell the story

(profit). However, in the telling of the story,

defendant uses plaintiff’s name. The story is not

about the plaintiff. Rather they were just part of

the story. This is probably not actionable.

5. What are other considerations commons to all four types of invasion of

privacy?

Causation:

o The invasion of plaintiff’s privacy must be causally related to

the actions of the defendant.

Liability:

o Invasions may be either intentional or negligent.

Damages:

o Plaintiff need not prove special damages. Emotional distress

and mental anguish alone are sufficient.

Defenses:

o a. Consent – this vitiates the “unauthorized” character of the

act, or nullifies the intrusive aspect of the act or dissemination

of the information.

o b. Defamation Defenses:

o a. See absolute and qualified privileges in defamation.

i. However, note that “truth” is not a defense here.

o c. This privacy right applies only to persons.

o a. Therefore, unlike in defamation, corporations or other

entities may not sue for invasion of privacy.

1/19/11 6:35 PM

LECTURE NOTES

MISREPRESENTATION

PROSSER ON TORT, 12TH ED.

PP. 1060-1116

I.

INTENTIONAL MISREPRESENTATION [aka, Fraud, Deceit]

a. Definition:

i. A misrepresentation of material fact made by a defendant with

scienter, which is intended to induce reliance on the part of a

plaintiff, and which does induce justifiable reliance on the part of

that plaintiff which then causes damage to the plaintiff.

b. Elements:

i. Misrepresentation.

1. The information related by defendant to plaintiff is false or

misleading in some fashion.

2. Generally there is no duty to communicate anything.

However, in some instances, such a duty is imposed. For

example:

a. Agents to their principals based upon fiduciary duty.

b. Defendant has information that the plaintiff cannot

obtain from any other source.

c. Where a prior communication by the defendant has

already misled the plaintiff, the defendant is under a

further duty to correct plaintiff’s understanding.

d. Active Concealment- Note also that defendants may

actively hide the truth concerning the matter under

consideration from the plaintiff.

ii.Material Fact.

1. The misrepresentation must relate to information which the

plaintiff would have deemed important and which, had the

plaintiff known the correct information, would have altered

in some way the plaintiff’s decision(s).

2. Note that in some cases, there is a distinction made

between a representation of “fact” and the communication

of an “opinion”.

iii.

Made with scienter.

1. Scienter is the operative plan of the defendant. It is the

design, or scheme whereby the defendant intends to

defraud the plaintiff.

2. This is what makes this type of

misrepresentation “intentional”. Therefore, if you cannot

find scienter, consider a cause of action for negligent

misrepresentation.

iv.

Intended to Induce Reliance.

1. As a part of the scheme noted under “scienter” above,

the defendant intends that the plaintiff rely upon the

misrepresentation.

v.Which does induce Justifiable Reliance.

1. The reliance by the plaintiff upon the misrepresented

information given to the plaintiff by the defendant must be

reasonable or justifiable.

vi.

Which then Causes Damage.

1. Note that the damage must bear a causal relationship to

the misrepresentation of the defendant, and the justifiable

reliance placed upon the misinformation by the plaintiff.

c. Damages:

i. The damage that naturally flow from the tort – that is, the pecuniary

losses suffered due to the plaintiff’s justifiable reliance upon the

misrepresentation made by the plaintiff.

ii.Punitive damages – because this is intentional conduct.

II.

NEGLIGENT MISREPRESENTATION:

a. Definition:

i. A misrepresentation of material fact made by a defendant to a

plaintiff wherein the defendant had a duty to represent the subject

matter of the communication to the plaintiff in an accurate fashion,

upon which the plaintiff then justifiably relies to their damage.

b. Elements:

i. Misrepresentation.

1. See above.

ii.Material Fact(s):

1. See above.

iii.

Where defendant had a duty to represent accurately.

1. Negligence analysis.

a. Duty – did the defendant occupy a position relative

to the plaintiff where a duty was imposed was

the defendant to give accurate information to the

plaintiff?

b. Breach – did defendant fail to relate accurate

information to the plaintiff?

c. Actual Cause – But for, etc.

d. Proximate Cause – Normal analysis.

iv.

Justifiable Reliance.

1. See above.

v.Damage.

1. Again, must be causally related to the misrepresentation

made by defendant.

c. Damages:

i. Normally compensatory damages are available to the plaintiff,

however, due to the lack of scienter (read as intent to defraud) on

the part of the defendant, no punitive damages are available to the

plaintiff.


Torts

IN MS Victoria Principal’s Manuscript She Denies Infidelity

Intentional Torts

(7-11)

Negligence (5) (4)

Duty

Breach

Actual cause

Proximate cause

Damages

o Contributory negligence

o Comparative negligence

o Assumption of risk

o Last clear chance

Misc concepts

Wrongful Death

o Statute of limitations

Survival

o Immunity

Strict Liability

Ultra-hazardous

Abnormally dangerous

Animals?

Vicarious Liability

Employer/employee

Independent contractor

Joint enterprise

Bailments

Imputed contributory negligence

Products Liability

Intentional

Negligence

Warranty


Greenman v Yuba Power Products

Macpherson v Buick Motors Co.

o Product

o Defect

o Stream of commerce

Misc. Torts (N.M.B.I.)

Nuisance

o Public

o Private

Misuse of Legal Procedure

Business torts

Improper litigation

Misrepresentation

IM

NM

SR JR DAM

SIT JR DAM

Defamation

Libel-Written

Slander-Spoken/ Oral

Slander per se

Invasion of Privacy (4)

Invasion on Land

Intrusion upon seclusion

Public Privity of Facts

Misap

False Light


Business Torts

Both fall under theories with intent

Always Intentional

o Interference with contract

1: Has to be a valid contract

2: Defendant Must Know that there is a Valid Contract

3: Defendant Must Act with Intent to Induce a Breach

4: Breach Must Occur

5: Plaintiff Must Suffer Damages

o Interference with prospective economic advantage

Does not require contract

Someone does have future pecuniary interest

1: Valid Future Expectancy

2: Defendant Must Know of It

3: Defendant Must Act Intentionally so as to try

and Terminate that Future Expectancy

4: Success in Termination

5: Plaintiff Must Suffer Damages

Damages:

Punitive and Compensatory Recoverable

May Recover for Emotional Distress because it may involve a

relationship

Defenses:

Negate one of the elements


Tort Reform:


Final Review:

2 Essays, 30 MBEs

Outline

Big Picture

Write on all applicable COA

Address chronologically

I:

N:

M:

S:

V:

P:

M:

-s-

D:

I:

What is the impact of strict liability on trespassing animals as related to land

owner occupier?

Is there a difference between ultra hazardous activities and abnormally

dangerous conditions?

UHA

o Activity that cannot be made safe even with reasonable due

care

ADC:

o Does not necessarily give rise to strict liability.

o Ex. Natural Conditions: Yellowstone Geysers; must notify

those as invitee or licensee.

o A reasonable prudent person must disclose.

What sets a manufacturer defect aside from a design defect

Manufacturer: substandard materials

o Nothing related to what’s drawn on paper

o Focus on single product

Design:

o Even with exercise of using proper materials, design itself still

arises with problems because of defect.

o Design defect will create defects of multiple products

Greenman v Yuba

Comparative negligence is not a defense under strict liability in tort

Public official:

Person who has thrusts themselves into vortex of controversy

Must establish actual malice

New York Times

Public figure:

Person who may have been thrust by third party

Gertz v Welch: must establish negligence; not actual malice;

reckless disregard for truth

What is the difference between trespass to land and nuisance.

TTL:

o Invasion of possessory interest

Nuisance:

o Interference of use and enjoyment interest in land

Strict Liability

P v D

Strict Liability

Absolute Liability: Liability without regard to fault.

o Arises out of facts involving animals or ultra hazardous

activities

o Rule: Injuries or damages resulting from

Ultra-Hazardous Activity/ Animals/ Dog Bites

How is it? Why?

E/A

o Animals:

CL: Propensities

ML: No need for prior…

Actual Cause:

But for the …

Proximate Cause:

Damages:

Attach activity to damages

**If animal, go straight to STRICT LIABILITY

Invasion of Privacy

P v D

Invasion of Privacy:

Rule: Right to be left alone.

Type:

Ex. Intrusion upon seclusion and solitude.

o Rule: Unreasonable invasion of another’s reasonable

expectation of privacy.

Elemental Analysis:

Break down rule

Ex. False Light

o Rule: A true statement that holds another forward to the

public in a false light.

Elemental Analysis:

Break down rule

Ex. Public disclosure of private facts

Nuisance:

Facts:

Neighbors A and B

A smokes and wind pushes smoke to B’s patio

B cannot use patio

P v D

Negligence

Duty

Breach

AC

PC

Damages:

Nuisance

o Definition: unreasonable interference….

o Private

o E/A

New COA: T to L (after notice was given)

Definition

E/A

Damages:

o Punitive damages

o Compensatory Damages:

General?

Special?

Defamation:

Multiple statements, MUST breakdown EACH statement

**Nuisance per se/ nuisance per accidence just analyze as nuisance as a

whole.

Defamation:

P v D

Defamation: Establish Inducement, Innuendo, Colloquium

Rule

E/A

o COA:

Intentional

False Statement

Published to 3rd party

Volitional

Purposeful

**Intent

Knowingly published false statements

Negligent

False Statement:

Published to third party

Duty

Breach

AC

PC

Understood by third party as applying to P

holding P up to hatred, ridicule, Shame or A

Damages: discussed later

Recklessly disregarded the truth or falsity of the

statement

Libel or Slander?

Effect?

In terms of Damages

o Slander: must prove special damages

o Libel: special damages presumed; general damages

established.

Damages:

Slander per se or libel per quod?

Improper Litigation

Person Died: Wrongful Death and Survival discussed under damages

Intentional:

Battery

Assault

Damages:

o Wrongful Death?

o Survival?

Negligence

Duty

Breach

AC

PC

Damages

o Wrongful Death?

o Survival?

Strict Liability

U/H

Animal

AC

PC

Damages

o Wrongful Death?

o Survival?

Vicarious Liability:

Torts II Class Notes and Briefs

Documents

Transcript of Torts II Class Notes and Briefs