Torts II Outline (Zach)

Page | 0

ROGER WILLIAMS UNIVERSITY SCHOOL OF LAW

Torts II Course Outline

Zachary Pendleton

Spring 2011

Torts Outline keyed to Epstein

Torts II Outline Z. Pendleton

Page | 1

CONTENTS

Vicarious Liability ........................................................................................................................................................................ 2

Restatements ........................................................................................................................................................................... 2

Cases ........................................................................................................................................................................................ 2

Causation ..................................................................................................................................................................................... 3

Cause in Fact ............................................................................................................................................................................ 3

Toxic Torts Litigation ............................................................................................................................................................ 3

Lost Chance Doctrine ........................................................................................................................................................... 4

Apportionment of Harm to Causes ...................................................................................................................................... 4

Proximate Cause ...................................................................................................................................................................... 4

Ordinary and natural result ................................................................................................................................................. 4

Emergencies ......................................................................................................................................................................... 4

Independent and dependent causes ................................................................................................................................... 5

Intervening/Superseding Cause ........................................................................................................................................... 5

Harm within the risk ................................................................................................................................................................ 7

Restatements ........................................................................................................................................................................... 7

Cases ........................................................................................................................................................................................ 7

Products Liability ....................................................................................................................................................................... 10

Defectively Manufactured Products ...................................................................................................................................... 11

Defectively Designed Products .............................................................................................................................................. 12

Failure to Warn ...................................................................................................................................................................... 12

Plaintiff’s Conduct .................................................................................................................................................................. 13

Federal Preemption ............................................................................................................................................................... 13

Conflict preemption ........................................................................................................................................................... 13

Field preemption ............................................................................................................................................................... 14

Restatements ......................................................................................................................................................................... 14

Cases ...................................................................................................................................................................................... 15

Defamation ................................................................................................................................................................................ 17

False Defamatory Statements............................................................................................................................................ 18

Concerns and Damages the Plaintiff .................................................................................................................................. 18

Publications ........................................................................................................................................................................ 19

Libel ........................................................................................................................................................................................ 19

Slander ................................................................................................................................................................................... 19

Defenses ................................................................................................................................................................................ 20

Constitutional Privileges ........................................................................................................................................................ 21

Restatements ......................................................................................................................................................................... 22

Cases ...................................................................................................................................................................................... 23

Page | 2

TORTS II: COURSE OUTLINE

VICARIOUS LIABILITY

RESPONDEAT SUPERIOR

“Let the master answer”

Makes the employer liable for actions of employees when the actions take place within the scope of the employment

Purpose of Doctrine

Deep pockets of the employer

Generally the employer is more financially capable of covering the loss

Socially expedient to spread among a large group of the community the losses which are inevitable in the carrying on of industry than to cast the loss upon a few

Efficiency

Imposing vicarious liability may make the employer more likely to monitor employee behavior to minimize total losses

Limits negligent hiring

Employer Indemnification

Almost all US courts allow employers to recover losses from employees

However, most of the time the employee is unable to cover for the loss or

Employers get insurance to cover damage caused by employee negligence so indemnification cases are rare

Criticism

Common sense is opposed to making one man pay for another man's wrong unless he has actually brought the wrong to pass

RESTATEMENTS

RESTATEMENT OF TORTS (SECOND) §427

One who employs an independent contractor to do work involving a special danger to others where the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the K is subject to liability for physical harm caused to such others by the contractors failure to take reasonable precautions against such dangers

CASES

Ira S. Bushey and Sons Inc, v. US

Drunken sailor turned some wheels on a dry dock and part of the ship and the dock sank. Should the US have to

compensate the dock owner? Were the actions within the scope of employment. This case changed the test for VL

from motive to foreseeability. Employer is liable because the harm was reasonably foreseeable.

Petrovich v. Share Health Plan of Illinois, Inc.

Medical malpractice action for failure to diagnose cancer in a timely manner. Is HMO, health maintenance

organization liable for independent contractor physicians. Rule: Unless the patient knows or should have known

that the physician providing treatment is an independent contractor vicarious liability can attach to an HMO, if

th[pe HMO holds itself out as the provider of care without informing the patients it is given by independent

contractors and if the patient justifiably relied on the conduct by looking to the HMO and not a specific physician.


Page | 3

CAUSATION Negligence law includes: Duty, Breach, Cause, Harm. The element of causation is comprised of two concepts (1) cause in

fact and (2) proximate or legal cause.

CAUSE IN FACT

Often considered the simple of the two prongs of causation, but still capable of raising complex issues.

Requires the party with the burden of proof to establish that it is more probably than not that there is a cause and effect

relationship between an actor’s negligent conduct and the harm suffered. This is why it is also known as “actual cause” or

“factual cause”.

To determine whether or not cause in fact has been established, courts use two primary tests:

The “but for” or sine qua non test

This test much more common, but some cases only are amenable to the second test

Note: most cases cannot be attributed to a single cause that brings about the harm to the plaintiff. View

all the causes in relation to each other to determine whether the plaintiff can establish the liability of the

defendant.

The “substantial factor” test

If more than one defendant is responsible for the damage, the plaintiff only needs to establish that the defendants are

responsible. The court will then apportion the responsibility.

Plaintiff typically has three burdens in negligence cases (generally speaking)

Pleading sufficient facts in the complaint to state a cause of action

Producing sufficient evidence at trial to avoid a directed verdict

Ultimately persuading the trier of facts of the merits of the case by a preponderance of the evidence

At trial, the plaintiff may satisfy the burdens of production and persuasion by introducing direct or circumstantial evidence

of critical facts. Sometimes the plaintiff may use res ipsa loqiur if they are unable to offer requisite proof which will shift the

burden to the defendant (only when it would be unfair or unjust not to

TOXIC TORTS LITIGATION See the Agent Orange Litigation

Toxic torts causation requirements

Substance- can cause the injury

Source- defendant was actually the source of the substance

Exposure - plaintiff was in fact exposed to the substance in a way that caused the disease

Class action. Main class settled. Individual suits were dismissed. Evidence did not support proof of a causal connection

between dioxin and the harm.


Page | 4

LOST CHANCE DOCTRINE Injury sustained by a patient whose medical providers negligently deprived the patient of a chance to survive or recover from a health problem, or where the malpractice lessened the effectiveness of treatment or increased the risk of an unfavorable outcome to the patient. It allows a plaintiff to recover in proportion to her chance of survival prior to the allegedly negligent treatment. To prove loss of chance, the plaintiff must show: that the decedent had in fact been deprived of a chance for successful treatment and that the decreased chance for successful treatment more likely than not resulted from the defendant's negligence.

Disallowing tort recovery in medical malpractice actions on the theory that a patient was already too ill to survive or recover may operate as a disincentive on the part of the health care providers to administer quality medical care to critically ill or injured patients.

APPORTIONMENT OF HARM TO CAUSES Damages for harm are to be apportioned among two or more causes where

There are distinct harms

There is a reasonable basis for determining the contribution of each cause to a single harm

Damages for any other harm cannot be apportioned among two or more causes.

PROXIMATE CAUSE

Used to limit the extent of liability. Even when a defendant has been negligent and even when that negligence was a factual

cause of the plaintiff’s harm, there is a poin where imposing liability is inapprorpirate, unfair, or unjust. Eventually, the

defendant’s connection to the plaintiff’s harm is so attenuated in a spatial or temporal sense or because of intervining

forces that it is appropriate to cut off liability; policy consideration may also dictate such a result. That is how proximate

cause became known as “legal cause.”

“It is always to be determined on the facts of each case upon mixed considerations of logic, common sense, justice, policy

and precedent.” Courts create a line, uncertain and wavering, changing from case to case, beyond which liability may not

reach.

The most commonly encountered problem in proximate cause is liability for unforeseen consequences. Not to cut off

liability would allow damages out of all proportion to the degree of fault of the defendant.

Note that the majority courts limit liability to consequences reasonably foreseeable at the time, whereas some

courts follow liability to unforeseeable consequences directly caused.

Even direct causation courts cut off damages after a superseding cause.

Palsgraf is generally said to stand for the proposition that there is no liability to an unforeseeable plaintiff. Furthermore,

rescuers can recover against the defendant under this logic “danger invites rescue. The cry of distress is the summons to

relief. The law does not ignore these reactions of the mind in tracing to its consequences. It recognizes them as normal. It

places their effects within the range of the natural and probably. The wrong that imperils life is a wrong to the imperiled

victim; it is also a wrong to his rescuer.” (See Wagner v. International Ry.)

Even if the exact chain of circumstances could not be foreseen the defendant may be liable if injury is a foreseeable result

(even when happening in an unforeseeable manner).

ORDINARY AND NATURAL RESULT

Harm must be foreseeable in order to impose liability

If the harm is not the natural consequence of the negligent conduct then there is no proximate cause

EMERGENCIES


Page | 5

If a defendant negligently places plaintiff under reasonable apprehension of personal physical injury and plaintiff, in a

reasonable effort to escape sustains physical injury, a right of action arises to recover for the physical injury, a right of

action arises to recover for the physical injury and the mental disorder naturally incident to its occurrence.

If the plaintiff acts in good faith to minimize the risk of loss from a dangerous situation of the defendant's making, those

actions do not sever causal connection.

INDEPENDENT AND DEPENDENT CAUSES Where each of two successive acts is sufficient to harm the plaintiff but the plaintiff is exposed to the second cause only

because of the negligence in the first.

Second defendant is liable only for incremental damages

INTERVENING/SUPERSEDING CAUSE In many negligence cases, the plaintiff’s injury follows as an immediate consequences of the defendant’s negligence.

Sometimes, however, there is a considerable separation between the defendant’s negligent act or omission and the

plaintiff’s injury. Other events which muddy the causal picture may occur in the intervening period.

The key question is whether they should be regarded as relieving the defendant of liability, despite the fact that

the defendant’s negligence was a cause of the plaintiff’s injury, or whether the defendant should be held liable,

despite the fact that the later even contributed in some way to the injury.

The Restatement states that an intervening cause does not excuse and only a superseding cause excuses.

“On its face, the problem is one of whether the defendant is to be held liable for an injury to which the defendant has in

fact made a substantial contribution, when it is brought about by a later cause of independent origin, for which the

defendant is not responsible” - Prosser

Intervening Cause: when a later arising cause is to be anticipated so that it does not excuse liability.

Superseding cause: when the later arising cause is not to be anticipated so that liability is not found.

The fact that the original act of negligence did not cause the subsequent event to occur is not always enough to lead to the

conclusion that the subsequent even is a superseding cause. Conversely, the fact that the original act of negligence was the

cause in fact of the subsequent event is not always enough to lead to the conclusion that the subsequent event is not a

superseding cause.

The defendant may be held not liable even though the the subsequent act would not have occurred but for her negligence

(or may be held liable even though negligence did not cause the subsequent event). The key question is whether the

intervening cause should have been anticipated by the defendant.

Neither a presence or absence of a causal connection between the negligent act and the later event is dispositive

of the question of whether the defendant should be held liable.

What is important is whether the intervening even is foreseeable as a ordinary, normal consequence of

the defendant’s act or omission.

If the intervening cause is negligent and thus unforeseeable the defendant is not liable.

A plaintiff who is somewhat at fault in the accident is not barred from recovering completely, but a negligent plaintiff may

only recover a reduced amount of damages. Most jurisdictions hold that the question of whether the plaintiff’s fault was a


Page | 6

superseding cause, the sole cause of her or his own loss, must still be asked notwithstanding the introduction of a

comparative fault system.

3RD PARTY INTERVENTION

Last wrongdoer

Traditionally the defendant was only liable if he was the last wrongdoer whose conduct contributed to the harm.

Infants and incompetents

Do not break the chain of causation unless the law regards their action as tortious

Deliberate or malicious

If the acts of the intervening party are deliberate or malicious they negate causal connection

The free deliberate and informed act or omission intended to exploit the situation created by defendant

negates any causal connection

Restatement

The act of a third person in committing an intentional tort or crime is a SUPERSEDING cause of harm to another

resulting therefrom, although the actor's negligent conduct created a situation which afforded an opportunity to the

third person to commit such a tort or crime unless the actor at the time of his negligence realized or should have

realized the likelihood that such a situation might be created and that a third person might avail himself of the

opportunity to commit such a tort or crime

Translation: intentional 3rd party conduct supersedes/negates liability unless the intervention is reasonably

foreseeable.

Third restatement

When a force of nature or an independent act is also a factual cause of physical harm, an actor's liability is limited to

those harms that result from the risks that made the actor's conduct tortious.

RESCUE DOCTRINE

It is foreseeable that a rescuer will come to the aid of an imperiled person

Tortfeasor owes a duty to the rescuer

Same duty owed to the person he imperiled

Rescue doctrine negates the presumption that the rescuer assumed the risk of injury

Even though the rescuer knows the situation is dangerous

Unless the rescuer acts unreasonably

Rescuer status

Defendant was negligent to the person rescued

That negligence caused the peril


Page | 7

Peril or appearance of peril was imminent

Reasonably prudent person would have concluded the peril existed

Rescuer acted with reasonable care

HARM WITHIN THE RISK

Risk to class of which plaintiff is a member

If the actors conduct creates a recognizable risk of harm only to a particular class of persons, the fact that it causes

harm to a person of a different class, to whom the actor COULD NOT have anticipated injury does not render the

actor liable to persons so injured.

An actor's liability is limited to those physical harms that result from the risks that made the actor's conduct tortious.

RESTATEMENTS

RESTATEMENT (SECOND) OF TORTS §432

(1) Except as stated in Subsection (2), the actor's negligent conduct is not a substantial factor in bringing about harm to

another if the harm would have been sustained even if the actor had not been negligent.

(2) If two forces are actively operating, one because of the actor's negligence, the other not because of any misconduct on

his part, and each of itself is sufficient to bring about harm to another, the actor's negligence may be found to be a

substantial factor in bringing it about.


The following considerations are in themselves or in combination with one another important in determining whether the

actor's conduct is a substantial factor in bringing about harm to another:

(a) the number of other factors which contribute in producing the harm and the extent of the effect which they

have in producing it;

(b) whether the actor's conduct has created a force or series of forces which are in continuous and active

operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces for

which the actor is not responsible;

(c) lapse of time.

CASES

New York Central RR v. Grimstad

Captain of the covered barge fell out of the boat into the water and drowned. Wife files suit for negligence. Claims

failure to equip the barge with proper life preservers. Court claims life preservers are for use before getting into

the water. Court holds that life buoys are covered by the claim. The proximate cause of death was his falling in.

This did not occur due to negligence on the part of either party. Whether he would have survived had there been a

life buoy is only speculation and conjecture. Not a cause in fact of his death. Court erred in denying motion to

dismiss.

Zuchowicz v. United States


Page | 8

Claim to have developed fatal lung disease due to Dr's prescription of an overdose of Danocrine District court

found in favor of plaintiff. When a negative side effect is demonstrated to be the result of a drug and the drug was

wrongly prescribed in an unapproved and excessive dosage, the plaintiff has generally shown enough to permit the

finder of fact to conclude that the excessive dosage was a substantial factor in producing the harm. There is also a

direct causal link in this case between the overdose and the disease.

Reynolds v. Texas

Where the negligence of the defendant greatly multiplies the chances of accident to the plaintiff and is of a

character naturally leading to its occurrence, the mere possibility that it might have happened without the

negligence is not sufficient to break the chain of cause and effect between the negligence and the injury

General Electric Co v. Joiner

Plaintiff's theory of liability was that exposure to PCBS promoted his development of lung cancer. However there

was not a sufficient link between exposure to PCB's and small cell lung cancer. Expert opinion not sufficient to

show causal link.

Doe v. Ortho-Clinical Diagnostics

Claim that a drug administered to the plaintiff's mother during pregnancy caused the plaintiff's autism. Claim

required general causation- the product was of a type that could have caused the injuries and specific causation-

there was an actual causal connection between the product and the injuries. Show that it could, then show that it

did.

Herskovits v. Group Health Cooperative

Dr. failed to diagnose cancer in a timely matter. Plaintiff can show reduction in chance for survival but cannot show

that decedent would have lived to normal life expectancy had he been diagnosed sooner. Dr. owed the patient a

duty of care, which he failed to exercise in diagnosing the patient. The failure to exercise his duty increased the

harm, therefore he is liable. Damages should be awarded to the injured party based only on damages caused

directly by the premature death such as lost earnings and medical expenses.

Kingston v. Chicago & NW Ry

Fire set by defendant's locomotive was a proximate cause of damage to plaintiff's property. Another fire of an

unknown origin was also a proximate cause in the destruction of plaintiff's property. Each fire would have caused

the damage alone without uniting with the other fire. "where two parties are the cause of the injury they are both

responsible for the whole of the damages. Defendant is liable.

Summers v. Tice

Three guys went hunting. Two of them were really dumb, and turned around and both shot at the same bird,

which just happened to be in the same direction the third hunter was in. Instead of staying in a line and shooting

only line of sight and not at each other, they missed the bird and shot their friend instead. Them shooting him was

a direct and proximate cause of his injury. Burden shifts to idiot defendants to prove they did not shoot him. They

failed.

Skipworth v. Lead Industries Association

Child was hospitalized for lead poisoning 3 times. Filed action against lead pigment manufacturers, even though

they could not identify which manufacturer's paint she ingested. Market share liability- in Sindell court held the


Page | 9

plaintiff need not identify a particular manufacturer, manufacturers of an identical product are liable in shares

proportional to share of the market at the time of ingestion, regardless of actual causation. Did not adopt this test

because the relevant time period is more extensive and manufacturers that most likely didn’t manufacture the

paint ingested would be held liable.

Ryan v. New York Central RR

Railroad is supposed to take reasonable care to prevent the spread of fire. The reason the damages spread are not

an immediate result of the defendant's negligence. Enforcing liability here would subject the defendant to liability

which no level of care could avoid. Doesn't make sense to require the railroad to get insurance for a non

foreseeable event.

Berry v. Sugar Notch Borough

Plaintiff was speeding. Tree blew over, crushed the car and injured the plaintiff. Driving faster than 8 mph does not

bar right of recovery. Speed was not the cause of the accident. Even though he violated a statute, in order for the

violation to bar recovery, the violation must be the proximate cause of the injury.

Brower v. New York Central & H.R.R.

Rule: Third party actions do not affect liability if such acts are not reasonably foreseeable. Train loaded with goods

hit plaintiff's wagon. Third parties stole the plaintiff's goods. Defendant had a guard to protect goods on the train.

Plaintiff sought recovery for stolen goods. Court held that the accident was the proximate cause of the stolen

goods. If the defendant thought it was necessary to protect its own belongings from thieves, it is reasonable for

the defendant to believe plaintiff's goods will be stolen also. But for the accident, the goods would not have been

stolen.

Wagner v. International Ry.

As International Ry. Co.’s (Defendant’s) train turned a curve, a violent lurch threw Plaintiff’s cousin out of the car.

Wagner (Plaintiff) got out and walked 445 feet until he arrived at the bridge where he thought he would find his

cousin’s body. Plaintiff lost his footing in the dark, fell from the structure, and was injured. Synopsis of Rule of Law.

A tortfeasor is liable to all those who are injured in a reasonable rescue attempt. A tortfeasor will not be held liable

for injuries suffered by a rescuer if the rescue efforts were unreasonable.

In Re Polemis & Furness, Withy & Co.

Boat was carrying petrol. Plank fell into it and caused an explosion. Owners claimed value from charterers alleging

loss was due to negligence. Whether or not the damage is foreseeable is irrelevant if the negligence is the direct

cause of the harm, whether or not the harm is foreseeable.

Palsgraf v. Long Island RR

Defendant helped push a man onto a train. Dropped his package of fireworks which exploded. Scale fell and

injured the plaintiff. Negligence is based on the foreseeability of the harm between the parties. Dissent- each

person owes an absolute duty of care and must refrain from acts foreseeable or not that unreasonably threaten

the safety of others.

Marshall v. Nugent

Truck driver forced a car off the road. Offered to help pull him onto the road. Another driver saw that his way was

blocked, and tied to avoid a collision. Hit a fence the fence hit the plaintiff and injured him. Courts want to confine


Page | 10

the liability of a negligent actor to those harmful consequences which result from the operation of the risk or of a

risk the foreseeability of which rendered the defendant's conduct negligent.

Overseas Tank ship Ltd v. Mort's Dock and Engineering Co

Appellants carelessly discharged oil into the harbor. Oil ended up in plaintiff's wharf. Plaintiff would not allow

burning or welding until he knew more. Found out the oil was not flammable, instructed his men to exercise extra

caution to ensure no flammable material fell into the oil. Oil caught fire. A man is responsible for the probable

consequences of his actions.

Virden v. Betts and Beer Construction Co.

School maintenance man fell from the top of a ladder he was standing on and suffered severe injury. Sued the

contractors for constructing a falling ceiling. Rule: Conduct constitutes actionable negligence if it is also the

proximate cause of the injury.

Herbert v. Enos

Plaintiff was watering flowers on defendant's property and received a shock. Claimed the water was faultily

repaired and caused the electrical current. The injury was highly extraordinary and "so remote in everyday life" as

to preclude a finding that the alleged negligence was a legal cause of the injuries.

PRODUCTS LIABILITY Products liability law governs the activities of the full panoply of manufacturers, distributors, and sellers who have placed a

product in the stream of commerce and therefore are no longer in possession of it at the time that it causes damage

First major debate was whether to allow the cases at all

Privity

Prevented the injured party from suing the remote supplier of the product in question

Injured party could only sue the immediate vender

Erosion of privity

Exceptions allowed for products known to hold hidden dangers which manifested themselves in ordinary

use.

MacPherson

Rejected privity by imposing liability for negligence on a remote seller

Escola

Strict liability should govern manufacturer liability

Responsibility should be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective

products that reach the market

Place responsibility for whatever injury defective products may cause upon the manufacturer even if he is NOT negligent in

the manufacture of the product if responsible for it reaching the market


Page | 11

Services are not products: pharmacist filling a prescription is not a proper defendant because she is performing a service

not making a sale of a product.

DEFECTIVELY MANUFACTURED PRODUCTS

Typically (but not exclusively) a suit brought against the product’s manufacturer. Restatement §402(a) says that it can be

brought against the seller if the seller is engaged of the business of selling the product.

This applies both to sellers of products (if a plaintiff is injured before purchasing the product, the seller may still be

liable) and to the leasers of products.

There is a strict liability standard on defectively manufactured products, because the manufacturer or seller of a product is

in the best position to make the product safe and to insure against the consequences of loss caused by the product.

Most products liability cases involve products that cause harm in a fairly direct ant tangible manner (such as exploding soda

bottles, malfunctioning motor vehicles, etc.).

However, sometimes there can be some doubt about whether the thing that caused harm to the plaintiff is a

“product” for the purposes of strict products liability.

For example: a book on mushrooms that leads a plaintiff to eat a poisonus mushroom, is not considered a

product for the purposes of product liability. However, a chart leading to an airplane crash may be a

product, because the chart is a highly technical tool.

Animals that injure their owners may or may not be a product, depending on the jurisdiction. It may not

be because an animal is not in a fixed state when it leaves the sellers control; it changes continually.

In a manufacturing defect case, the plaintiff must prove three things:

That the product was defective

That it was defective when it left the defendant’s hands (manufacturer or seller)

That the defect in the product was the proximate cause of the harm that the plaintiff suffered.

The product must also be expected to and does reach the user or consumer without substantial change in the condition in

which it is sold. Usually, manufacturing defects are established by expert evidence (and contradicted often by defense’s

expert testimony).

This can only happen if the product is still in existence—often it is not. Most people don’t keep the glass from an

exploding soda bottle or the bottle of shampoo that burned them. The remains of the products would be very

valuable for expert analysis.

Manners of proving a product defective (Restatement (Third) of Torts: Products Liability §3):

Direct evidence—usually using expert witnesses

Circumstantial evidence (example: when a car catches fire, showing that the car is relatively new

may evidence an product defect).

By eliminating all other likely causes of failure, even if he cannot positively identify what the

defect is or how it arose.


Page | 12

Plaintiff is then forced to prove the existence of a defect by the inference from the fact that it failed (very similar to

res ipsa loquitor)

This is different from the res ipsa loquitor inference, however, because it is not an inference on the

negligence on the part of the defendant, but rather an inference that the product was defective.

This inference can only be made when there are no other plausible explanations that are consistent with

the proven facts.

DEFECTIVELY DESIGNED PRODUCTS

Design defects are different from defective manufacturer because they were made in the manner the manufacturer

intended. If such a product causes harm to the plaintiff, his complaint is about the way the product was designed, not how

it was made.

Thirty-seven states recognize the Restatement (second) of Torts, §402A approach has a core question, which is whether the

product was “in a defective condition” when sold.

Two main tests have developed to determine whether a product is defective because of the way it was designed:

The consumer expectations test

Does not focus on the process by which the product was made or whether it could reasonably

have been made safer. Focuses on what level of safety the ordinary consumer would expect the

product to have. If the product is not as safe as ordinary consumer would expect it to be, it is

“defective.”

Derives from comments g and i to §402A: “the rule stated in this Section applies only where the

product is, at the time it leaves the seller's hands, in a condition not contemplated by the

ultimate consumer, which will be unreasonably dangerous to him” and “the article sold must be

dangerous to an extent beyond that which would be contemplated by the ordinary consumer

who purchases it, with the ordinary knowledge common to the community as to its

characteristics.”

The risk/utility test

Focuses on the process by which the product was made, rather that the expectations of

consumers about its safety. A product is defective if its design embodies “excessive preventable

danger” which occurs when the risk of danger inherent in the challenged design outweighs the

benefits of that design.

Some states only use the consumer expectations test, others use it primarily but will sometimes undertake a

risk/utility analysis. Furthermore, some states only use the risk/utility, and yet others will use the risk/utility and

then the consumer expectations as a factor in the test.

An issue for either test (more so for the risk/utility test) is whether the product in question could have been more

safely—with a lower risk of harm. Most jurisdictions consider the availability of a feasible alternative design merely

one of several factors that the jury may consider in determining whether a product design is defective.

FAILURE TO WARN


Page | 13

Some products are unavoidably unsafe, in the sense that they cannot possibly be made completely safe without losing their

usefulness all together.

Many prescription drugs fall into this category, as do many pieces of machinery (motorbikes, eg).

It does not follow that such a product is defective simply because it is unsafe. However, the product may be defective if it

does not bear adequate warnings of the dangers associated with its use. The defect does not lie in the design of the

product, but in the absence of a warning.

A manufacturer only needs to warn consumers about anticipated uses of the products it makes. This is still a strict liability

standard. Even if the plaintiff should have known the danger, the manufacturer still has a duty to warn.

This may not be true if the danger is “open and obvious”. The test to determine if a danger is open and obvious is

whether "an average user with ordinary intelligence would have been able to discover the danger and the risk

presented upon casual inspection."

Because the test is objective, this Court "looks not to whether plaintiff should have known that the condition was

hazardous, but to whether a reasonable person in his position would foresee the danger

A warning that is vague or misleading may be held the same as no warning at all.

Restatement §388 (comment n): Warnings given to third person Chattels are often supplied for the use of others, although

the chattels or the permission to use them are not given directly to those for whose use they are supplied, as when a

wholesale dealer sells to a retailer goods which are obviously to be used by the persons purchasing them from him, or when

a contractor furnishes the scaffoldings or other appliances which his subcontractor and the latter's servants are to use, or

when an automobile is lent for the borrower to use for the conveyance of his family and friends. In all such cases the

question may arise as to whether the person supplying the chattel is exercising that reasonable care, which he owes to

those who are to use it, by informing the third person through whom the chattel is supplied of its actual character.

PLAINTIFF’S CONDUCT

Defendants have several options for defenses to products liability cases: Assumption of Risk, Failure to Obey Instructions,

and Misuse of the products. Misuse as a defense to liability is usually a matter decided by the jury. It exists to encourage

manufacturer's to equip their products with safety devices regardless of whether the safety devices' use is mandatory or

even widespread.

FEDERAL PREEMPTION

The US Constitution in the Supremacy Clause holds federal law to be the Supreme Law of the land, meaning that any state

law or state constitution that contradicts loses

Major tort litigation is concerned with the interaction between direct forms of federal regulation and the common law of

product liability

Implied preemption can occur in two ways: field preemption or conflict preemption.

CONFLICT PREEMPTION Under the Supremacy Clause, any state law that conflicts with a federal law is preempted. Conflict arises when it is

impossible to comply with both the state and federal regulations, or when the state law interposes an obstacle to the

achievement of Congress's discernible objectives.


Page | 14

Actual conflict. A conflict exists if a party cannot comply with both state law and federal law (for example, if state

law forbids something that federal law requires).

Obstacle. In addition, even in the absence of a direct conflict between state and federal law, a conflict exists if the

state law is an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.

MINIMUM SAFETY STANDARD VS. UNIFORM SAFETY STANDARD

Often times there may be a question of frustration of congressional purpose or the state law standing as an obstacle to

congressional intent. This will raise a question of whether congressional or administrative intent in passing the law was

uniformity or minimum national safety standards. Congressional intent may be to allow States to pass laws that will

“establish greater safety than the minimum safety achieved by a federal regulation intended to provide a floor.”

Alternatively, the purpose of a federal law could be to set a uniform national standard.

FIELD PREEMPTION Even without a conflict between federal and state law or an express provision for preemption, the courts will infer an

intention to preempt state law if the federal regulatory scheme is so pervasive as to “occupy the field” in that area of the

law, i.e. to warrant an inference that Congress did not intend the states to supplement it. For example, the courts have held

that the National Labor Relations Act (NLRA) preempts state laws directed at conduct actually or arguably prohibited or

protected by the NLRA or conduct Congress intended to leave unregulated.

RESTATEMENTS


One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the

supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical

harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier

(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied,

and

(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition,

and

(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to

be dangerous.

RESTATEMENT (SECOND) OF TORTS §402A

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is

subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is

sold.

(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of his product, and

(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.


Page | 15

CASES

Winterbottom v. Wright

Contract between wright and the postmaster. Wright provided coaches and had a duty to keep them working.

Wright subcontracts with another party who employs winterbottom. Postmaster uses the coaches to deliver mail

gets money. Wright gets money for selling coaches. Atkinson gets money wright gets coaches. Winterbottom gets

money Atkinson gets a worker. When the coach broke we assume wright breached duty to provide a safe carriage.

However the duty Is limited only to the party with whom he is in privity, the postmaster.

Macpherson v. Buick

Automobile manufacturer sold a car to a retail dealer who resold it to a plaintiff. Car collapsed and injured the

plaintiff. Wheel was faulty. Defect could have been discovered by reasonable inspection. If the nature of a thing is

such that it is REASONABLY CERTAIN TO PLACE LIFE AND LIMB IN PERIL WHEN NEGLIGENTLY MADE, it is a thing of

danger. Its nature gives warning of the consequences. If there is knowledge that the thing will be used by persons

other than the purchaser without new tests then the manufacturer is under a duty of care to make it carefully.

Injury here is an almost inevitable result of defective manufacturing.

Escola v. Coca Cola Bottling Co of Fresno

Waitress was stocking the fridge with coke. One bottle exploded in her hand. Sued for negligence, claimed that

Coca-Cola had been negligent in selling bottles which on account of excessive pressure or gas or by reason of some

defect in the bottle was dangerous and likely to explode. Res Ipsa prevails here. Without negligence the bottle

wouldn’t have exploded.

Speller v. Sears

Fridge caught fire caused by faulty wiring- plaintiff did not prove specific defect. Plaintiff must prove that the

product did not perform as intended and exclude all other causes for the products failure that aren't attributable

to D.

Cafazzo v. Central Medical Health Services Inc

Prothesis was defective. Sued to hold the seller providers of users of the devices that they should be held strictly

liable for providing, selling, or placing the products in the stream of commerce. Hospital not liable because they did

not know the product was defective and were not careless. Imposing strict liability would not provide an incentive

to safety because they don’t even do the tests. Can't impose products liability on someone who did not

manufacture the product.

Casa Clara Condominium Association Inc. v. Charley Toppino and Sons, Inc.

Charley supplied concret for construction. The salt in the concrete caused steal to rust. The contcrete broke off.

Homes were built with and damaged by the concrete. Manufacturer can be held liable for physical injuries caused

by defects if his goods must match a standard of safety defined in terms of conditions that create unreasonable

risks of harms. Cannot be held liable for LEVEL OF PERFORMANCE of his products unless there is agreement that

the product was designed to meet the consumer's expectations. MUST SHOW HARM ABOVE AND BEYOND

EXPECTATIONS.

Campo v. Scofield

Law is satisfied if


Page | 16

Manufactuer does everything necessary to make the machine function properly for the purpose for which

it is designed

Machine is without any latent defect and

Its functioning creates no danger or peril that is not known to the user

Consumer expectations test has replaced this one

Volkswagen of America v. Young

Automobile manufacturer is liable for a defect in design which the manufacturer could have reasonably foreseen

would cause or enhance injruies. Court did not apply strict liability to design defect cases. Manufacturer is

OBLIGATED to exercise that degree of care in his plan or design so as to avoid any unreasonable risk of harm to

anyone who is likely to be exposed to the danger when the product is used in the manner for which the product

was intended as well as unintended yet reasonably foreseeable use

Barker v. Lull Engineering Co.

Guy was operating a high lift loader. Sued manufacturer for damages, injuries caused by defective design of the

loader. A product is defective in design where: 1) it failed to perform as safely as an ordinary consumer would

expect when used in an intended or reasonably foreseeable manner 2) benefits of the challenged design do not

outweigh the risk of danger inherent in such a design.

Linegar v. Armour of America

Man was shot and killed while wearing a bullet proof vest. Bullet did not hit him in the vest. The article sold must

be dangerous to an extent beyond that, which would be contemplated by the ordinary consumer who purcahses it

and has the ordinary knowledge common of the community as to its characteristics. Defendant should not have

anticipated that any person would expect a bullet proof vest to protect a part of the body not covered by the vest.

Vest here was not unreasonably dangerous or even defective.

Halliday v. Sturn, Ruger and Co

Child shoots himself with handgun. Rule- generally gun makers are oly laible when their products malfunction. A

limited category is not sanctioned as a matter of public policy. Low weight, easily concealed, short barrel cheap,

inaccurate guns are foreseeably used for crime. Here, the gun is not of that type. Gun was not defectively

designed. Plaintiff should have used common sense.

MacDonald v. Ortho Pharmaceutical Corp.

Plaintiff had a stroke after taking birth control pills. Sued manufacturer for failure to warn. The Common Law Duty

to Warn necessitates a warning comprehensible to the average user, which conveys a fair indication of the nature

to the mind of a reasonably prudent person. Jury decides whether a warning is adequate.

Vassalo v. Baxter Healthcare Corp

Plaintiff got implants. One of them ruptured. Manufacturer not liable under failure to warn or provide instructions

about risks that were not reasonably foreseeable at the time of sale or could not have been discovered by ay of

reasonable testing prior to marketing the product.

Uniroyal Goodrich Tire Co. v. Martinez


Page | 17

Company failed to warn that you cannot mount a 16 inch tire on a 16.5 rim. Duh WARNING: If you mount this tire

on a 16.5 rim the tire will explode DUMBASS. Design defect: bead should have been stronger. Don't make tires that

are so close in size. Make all tires and rims the same size or no half sizes.

Hood v. Ryobi America Corp.

Plaintiff removed safety guard from saw. Partially amputated thumb and cut his leg. There are warnings which say

never to remove the safety guards. He thought the purpose of the warnings was to prevent clothing and hands

from being caught in the saw not that the blade would detach. Warnings need not include every possible scenario

in which injury may occur. People would not read warnings at all if they were long.

Daly v. General Motors Corp.

Plaintiff was killed when thrown from his car, which allegedly hada defective door latch. Plaintiff was not properly

using his seatbelt and did not lock the door and was intoxicated at the time. Comparative negligence can be

applied in strict products liability cases to reduce a plaintiff's recovery.

Geier v. American Honda Motor Co.

The National Traffic and Motor Vehicle Safety Act of 1966 required auto manufacturers to equip a certain number

of their 1987 vehicles with passive restraints. The question before the Supreme Court was whether the Act pre-

empted state common-law tort claims saying that the auto manufacturer, although in compliance with the Act,

“should nonetheless have equipped a 1987 automobile with airbags.” The court indicated that, despite a savings

clause, the statute “reflects a desire to subject the industry to a single, uniform set of federal safety standards. Its

pre-emption of all state standards, even those that might stand in harmony with federal law, suggests an intent to

avoid conflict, uncertainty, cost, and occasional risk to safety itself that too many different safety–standard cooks

might otherwise create.”

DEFAMATION The plaintiff must ordinarily prove four elements in a defamation claim

A publication to one other than the person defamed

A false statement of fact

That is understood as

Being of and concerning the plaintiff; and

Tending to harm the reputation of the plaintiff

If the plaintiff is a public figure, he or she must also prove actual malice

Per Se Defamation

Statements that are SO harmful to reputation that damages are presumed

Categories

Commission of a criminal offense

Infection with venereal disease

Inability to perform or want of integrity in the discharge of duties of public office

Fornication or adultery


Page | 18

Words that prejudice a party in her trade, profession or business

Per Quod Defamation

Requires extrinsic facts to show defamatory meaning

FALSE DEFAMATORY STATEMENTS The statement in question must have had a defamatory meaning. It can generally be said that a defamatory statement is

one that harms a person’s reputation. Dobbs on Torts, he says “under the classic English definition, words had a defamatory

quality if they exposed the plaintiff to hatred, ridicule, or contempt. American decisions added that defamation included

anything that subject the plaintiff to obloquy, odium, shame, disgrace or other forms of discredit or harm to reputation.”

In order for a statement to harm a person’s reputation in the community, the statement would have to be understood by

others in the community. Some statements are pretty clear on their face that they are damaging a nother person’s

reputation in the community.

Other statements may not be so clear and may need additional facts to show why those statements would have

been understood as defamatory. It may be that other facts reveal the defamatory nature of the statement. Some

statements appear complimentary, but are spoken with iron or insult.

A plaintiff must prove that the statement harmed his or her reputation among some members of the community. There is

one requirement that it be only among some, ill-defined, “right thinking” group.

If the group is so small or so anti-social that their views are not sufficient representative of the community, there is

no defamatory meaning. (EG Losing reputation amongst organized crime members is not defamation).

Note: The law has consistently held that you cannot defame the dead.

At common law there would have been no liability if the defamatory statement was true. For longer documents or

statements it might be difficult to show that every word was true. It is not, therefor, necessary to prove that the document

is absolutely true in every word. The rule would have required that the statement or document be “substantially true”

In considering the truth or falsity of a statement, you have to recognize that some items are just not subject to

determining whether they are true or false.

When a person gives an opinion, for example, that opinion may neither be true or false.

Defamation claims may arise from opinions, however, when they seem to imply the existence of facts. This, unfortunately,

means that each case will have to be judged on the individual set of facts.

CONCERNS AND DAMAGES THE PLAINTIFF The defamatory statements must be “of and concerning” the plaintiff—the plaintiff has to be the one that can be identified

as the person about whom the statement was made. This is not as easy as it sounds: books are written about people, but

the author claims the books are fiction; people sometimes make statements that defame large groups of people. In those

examples, the question is always asked whether any one in that group.

If the work could be reasonably understood to identify the plaintiff, he would have an action. It should be clear

that this could raise a fact question in some cases as to whether, under the circumstances of the case, the work

could be “reasonably understood” to identify the plaintiff.

When a person seems to defame a whole group, additional problems arise. The real question is, how can any one plaintiff

claim that he or she was the one being identified when the statement concerns a whole class. Generally, the courts have


Page | 19

indicated a two-step approach to this problem. For an individual to claim her or she was defamed, the whole group must

have been identified and the size of the group being defamed must be small.

PUBLICATIONS In defamation claims, published or publication does not mean producing a book or newspaper, it is a “word of art. It

includes any communication by any method to one or more persons who can understand the meaning.” Publication,

therefore, means getting the information or defamatory material to a third person who understands it.

The law of defamation requires that the publication to third person be done either intentionally or negligently.

Typically the publication is intentional. Where the defendant intends to tell some third person or intends to write a

message to some third person, then there is an intentional publication.

A negligent publication is where the defendant made the statement or wrote the message, but did not intend for

anyone else to hear it. If the defendant failed to use reasonable care to keep others from receiving the material,

then it is a negligent publication.

LIBEL

Libel is the permanent embodiment of a statement. Libel is more dangerous than slander because it is permanent.

Use of language which others knowing the circumstances would REASONABLY believe to be defamatory of the person

complaining of and injured by the defamation. Person is not absolved from liability just because his statement was not

intended to harm

Libel is a strict liability standard.

Even if the statement is published in good faith, with the writer believing it to be true, it is still libel if the

statement is both false and injures the plaintiff. Cannot show that the libel was not of and concerning the plaintiff

just because he had never heard of the plaintiff

LIBEL PER SE

Many jurisdictions assume that all libel is libel per se. That would mean that the publication of a libel would allow recovery

without any proof of special losses or damages.

For jurisdictions with this position, the problems of libel are simplified. Once it is determined that the publication

was libel, and not slander, no additional proof of special necessary.

LIBEL PER QUOD

Those jurisdictions that differentiate between libel per se and libel per quod would say that libel per se is actionable on its

face. That means it is obvious from reading the libel that it is defamatory. No additional evidence is necessary to

understand why it is defamatory.

Libel per quod, however, is an interesting type of problem in defamation. There are some type of statements that do not

appear defamatory on their face. Once the existence of additional facts is realized, however, it becomes obvious that the

statement is designed to harm a person’s reputation among those that know the additional facts.

If a statement is libel per quod, the plaintiff will have to prove “special damages” in order to recover.

SLANDER


Page | 20

Slander is considered to be oral defamation. Since it is less permanent additional proof of damages is usually required. Use

of a mere transitory gesture commonly understood as a substitute for spoken words is slander not libel.

There are, however, different types of slander, called slander per se, that are considered more harmful to the plaintiff.

When a statement falls under the heading of slander per se, the plaintiff does not have to prove the additional damages. In

that way, slander per se is treated like libel.

Special damages (for slander or for libel per quod): should be noted that the “special” harm requires proof of

particularized pecuniary loss. Mere loss of friends is not enough. Personal injuries or emotional distress will not

satisfy the “special” damage requirement. Pecuniary losses are those that reflect a specific economic injury to the

plaintiff.

Slander per se statements are typically:

Accusations of criminal conduct. It must be a crime of moral turpitude, not just a minor crime.

Claims of someone having a “loathsome” disease. Loathsome diseases consisted of venereal diseases with the

possible expansion into leprosy.

Attacks on a person’s trade or business. The statement must reflection the person’s competence or ability to carry

on a particular trade or business.

Allegations of serious sexual misconduct.

DEFENSES

Truth isn't really a defense anymore because courts generally require that the plaintiff probe the statement is false. Burden

doesn’t lie on the defendant to prove that it is true.

Elements

Public or private duty to communicate

Legal

Moral

Communication is fairly warranted by any reasonable occasion or exigency

A statement in the conduct of his own affairs where his interest is concerned

Fair Comment

Artistic and literary criticism

Applied only to opinion

Freedom of Public Discussion

Where do we draw the line between fact and opinion

If a bare statement is made in terms of a fact, or if facts and comments are so intermingled that it is not clear what

purports to be inference and what is claimed to be fact, the reader will naturally assume that the injurious

statements are based upon adequate grounds known to the writer.


Page | 21

Courts must balance the freedom of speech with the right to not have your reputation defamed.

Under certain circumstances, a person may be immune from liability or be “privileged” to communicate some information.

Some of those privileges are viewed as absolute while others may be limited or qualified.

Absolute Privilege

Executive Privilege: there is a privilege for communications by the President and certain other members of the

executive branch of government.

Judicial privilege: there is a privileged for communications, under certain conditions, by people working in the

judicial setting.

Legislative privilege: there is a privilege for communications, under certain conditions, for people working in the

legislative branch of government.

Qualified Privilege

Protect self—the speaker makes the statement in order to protect some personal interest. EX: a person calls the

police and says “that man is stealing my car”, despite it not being his car. If the man believed that his car was being

stolen, it is privileged.

Protect others—the speaker makes the statement in order to protect some third party’s interest. EX: a professor

can tell about a grade and about if they would/wouldn’t recommend a person for a job.

Protect a group or common interest—the speaker makes the statement in order to protect some group of which

the speaker is a member. EX: a person can say that someone is stealing if it is to protect the common interest of

the partners at a law firm.

Qualified privileges may be lost when they are abused. Determining when they are abused is a two part

alternative. The privilege may be lost by excessive publication or by making the statements with malice.

CONSTITUTIONAL PRIVILEGES

The New York Times v. Sullivan case created a special basis of liability for cases where the plaintiff was a public official or

public figure. For those who are public officials or public figures there is a higher burden of proof.

A public official would, of course, be a person who holds a public office or is seeking a public office. It would

include those people who hold government positions with substantial responsibilities.

A public figure is more vague than a public official, but fit into three categories:

Some public figures, because of such power, fame, influence and notoriety, are public figures for all

purposes. EX: well-known sports star.

Other public figures reach that level by thrusting themselves into a public controversy in order to have an

impact on the outcome. A person who decides to lead a public demonstration, for example, may be a

public figure.

Some people find that they become involuntary public figures. This is rare and the person that such a

person is a public figure is limited. People involved in important news stories may become such public

figures.


Page | 22

RESTATEMENTS


A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the

community or to deter third persons from associating or dealing with him.


The meaning of a communication is that which the recipient correctly, or mistakenly but reasonably, understands that it

was intended to express.


A defamatory communication is made concerning the person to whom its recipient correctly, or mistakenly but reasonably,

understands that it was intended to refer.


One who falsely publishes matter defamatory of another in such a manner as to make the publication a libel is subject to

liability to the other although no special harm results from the publication.


(1) Publication of defamatory matter is its communication intentionally or by a negligent act to one other than the person

defamed.

(2) One who intentionally and unreasonably fails to remove defamatory matter that he knows to be exhibited on land or

chattels in his possession or under his control is subject to liability for its continued publication.


An occasion makes a publication conditionally privileged if the circumstances induce a correct or reasonable belief that

(a) there is information that affects a sufficiently important interest of the publisher, and

(b) the recipient's knowledge of the defamatory matter will be of service in the lawful protection of the interest.


(1) An occasion makes a publication conditionally privileged if the circumstances induce a correct or reasonable belief that

(a) there is information that affects a sufficiently important interest of the recipient or a third person, and

(b) the recipient is one to whom the publisher is under a legal duty to publish the defamatory matter or is a person

to whom its publication is otherwise within the generally accepted standards of decent conduct.

(2) In determining whether a publication is within generally accepted standards of decent conduct it is an important factor

that

(a) the publication is made in response to a request rather than volunteered by the publisher or

(b) a family or other relationship exists between the parties.



Page | 23

An occasion makes a publication conditionally privileged if the circumstances lead any one of several persons having a

common interest in a particular subject matter correctly or reasonably to believe that there is information that another

sharing the common interest is entitled to know.

CASES

Doe v. Gonzaga University

Two students had a sexual relationship. Teacher heard a conversation about rape. Assumptions were made.

Teacher told other students. The statements stopped the dean of the school from signing the moral character

affidavit that was necessary for him to teach. Common interests of corporation employee's is only a qualified

privilege. Privielged communication involves the occasion where an otherwise slanderous statement is shared with

a 3rd person who has a common interest in the subject and is easonably entitled to know the information. When a

corporate employee publishes a defamatory statement there is liability if the employee is not actiong in the

ordinary course of his or her work.

Firth v. State of New York

Employed by a weapons acquisitioner. State inspector issued a report. Critiqued the department's style and

procurement of weapons. Report defamed him. Was posted on the internet. Single publication requirement

shouldn't apply in internet cases. Court held: applying a multiple publication rule would expose publishers to stale

claims. Single publication rule limits the possibility of hardship to plaintiffs. Applying republication exception would

discourage people from placing information on the internet.

Muzikowski v. Paramount Pictures Corp.

Hardball movie is based on a book about experiences as a coach in the inner city. The coach was portrayed in the

movie as an alcoholic and practicing without a license. Court held that the plaintiff should have the opportunity to

prove that the character bore such a close resemblance to plaintiff that no other inference could be made except

that the character portrayed him. Defamation is not actionable If it may be innocently interpreted or referring to

someone other than the plaintiff.

Wilkow v. Forbes

Forbes magazine ran a column on creditor case. Wilkow filed a defamation suit. Claimed statements that he was

poor and filched the bank's money. Claims the magazine should have informed the readers that the money was

lent without recourse against the partners. Downturn in the market casued the majority of the banks loss. Court

held the article was not defamatory because it is plain the speaker is expressing a subjective view. Nothing in the

article implies that Wilkow did anything illegal .

E Hulton & Co. v. Jones

Newspaper article ran an article using the name Artemis Jones. Thomas Artemis Jones filed a defamation suit.

Newspaper claimed they had never heard of plaintiff and used the name fictitiously. Libel is defined not by what

the writer intends, but how the statement is likely to be understood.

Terwilliger v. Wands

Defendant told another person that the plaintiff was having sex with another man's wife and would do anything in

his power to keep the husband in prison so he could continue to sleep with the wife. Plaintiff got sick needed

medical treatment. Neglected his business and had to hire more help. Words alone were not actionable must

proves special damages. The injury was the natural and immediate legal consequence of the defamatory


Page | 24

statement. The damages he claimed are not the normal damages. Special damages: loss of marriage, housing,

entertainment. Whenever a person is prevented by the slander from receiving that which would otherwise be

conferred upon him. Law cannot hold that all language that hurts the feelings or adversely affects a person's health

are grounds for action. There must be a limit to liability for words.

Ellsworth v. Martindale-Hubbell Law Directory, Inc.

Plaintiff alleges that his code rating was misstated in the directory which caused him to lose business and injured

his reputation as a lawyer. Not a per se claim, must plead special damages. Court says that a diminution in business

and income after the publication is sufficient to proceed to the jury.

Faulk v. Aware Inc.

Communism corporation made statements against radio performer charging him with communist sympathies.

Filed defamation suit. Was awarded large amount in damages, large amount alone does not render verdict

excessive. Performer was rendered UNEMPLOYABLE by these statements. Court found the damages excessive and

unrealistic because they were much higher than what he was actually making and higher than projected earnings.

Auvil v. CBS 60 Minutes

Aired a segment on chemicals which addressed the harmful effects of the chemical on children. The growers failed

to show a genuine issue of material fact because they could not prove that the statement was false. The actual

statements must be false and defamatory, not just the overarching message.

Watt v. Longsdon

Defendant showed a letter to plaintiff's wife that acccused plaintiff of several unflattering things. The plaintiff sued

for defamation. Defendant claimed he was under a duty to show the letter to the wife, and the statement was

therefore privileged communication. Rule

A speaker is privileged to make defamatory statements about another when the speaker had either a duty or an

interest to publish the statements. The privilege may be lost if: 1)they go beyond the limits of the duty or interest

or 2)they may be published with express malice so that the occasion is not being legitimately used but abused

Kennedy v. Cannon

Plaintiff accused defendant's client of rape. The defendant made a statement to the newspaper defending his

client. Plaintiff sued the defendant for defamation. Holding: statements made to the newspaper were not

privileged because they were not part of the judicial proceeding. Rule: absolute immunity extends to the judge as

well as to witnesses and parties to the litigation, for defamatory statements uttered in the course of a trial or

contained in pleadings, affidavits, depositions and other documents directly related to the case.

Brown & Williamson Tobacco Corp v. Jacobson

Libel suit brought by tobacco co. for slanted portrayal of investigation report. Libelous per se because accusing a

cigarette company of marketing to children is most certainly harmful to the company. Summaries of government

proceedings and investigation must be fairly and accurately published. Remanded to jury to determine if the

summary carried a greater sting than the original and was thus actionable

New York Times Co. v. Sullivan


Page | 25

The Respondent, L.B. Sullivan (Respondent), is one of three elected Commissioners of the City of Montgomery,

Alabama. The Respondent brought this action against the Petitioners, four individuals who are African-Americans

and Alabama clergymen and against the New York Times (Petitioners). The complaint alleged that the Respondent

had been libeled by statements in a full-page advertisement that was carried in the New York Times on March 29,

1960. Rule: The constitutional guarantees require a federal rule that prohibits a public official from recovering

damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made

with “actual malice,” that is, with knowledge that it was false or with reckless disregard of whether it was false or

not.

Curtis Publishing Co. v. Butts

The Plaintiffs, Butts and Walker (Plaintiffs), were public figures and not public officials. Both were awarded

damages for defamation. The Defendant, Curtis Publishing Co. (Defendant), appealed to extend the constitutional

safeguards outlined in New York Times to public figures. Rule: A public figure has the same standard of proof for

libel as a public official does under New York Times.

Gertz v. Robert Welch Inc.

Petitioner Elmer Gertz is an attorney representing the family of a youth who was shot and killed by a police officer

in Chicago in 1968. While representing this family in a civil trial, Respondent, Robert Welch, Inc. publisher of

American Opinion magazine, published an article-accusing Petitioner of being a Leninist and part of a Communist

conspiracy. These statements against Petitioner were found to be falsely based, and caused Petitioner to sue

Respondent for libel. During trial Respondent seeks protection under the New York Times standard. Rule: Under

the First and Fourteenth Amendment states are allowed to develop their own lesser level of fault, as long as it is a

no fault standard, for libel against private figures because of the vulnerability private figures have to serious injury

when compared with public figures. Damages for libel found against a private figure is limited to that amount that

will compensate him for actual injury.

Philadelphia Newspapers v. Hepps

Plaintiff brought suit against Philadelphia Newspapers, Inc. (Defendant), after it published a series of articles

alleging that Plaintiff had links to organized crime, and had used their position to exercise influence over the

government. Rule: A private party cannot bring suit against a newspaper for slander or libel, without bearing the

burden of showing falsity and fault, before recovering damages.

Torts II Outline (Zach)

Documents

Transcript of Torts II Outline (Zach)