Académique Documents
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Preemption
Riegel v. Medtronic. page
Instant Facts: An injured patient sued a catheter manufacturer alleging state common law
claims, but the device maker argued that the claims were preempted by federal law.
Black Letter Rule: The Medical Device Amendments preempt state requirements that are
different from, or in addition to, any requirements applicable to a medical device under federal
law.
State common law claims against an FDAapproved medical device are preempted.
Preemption: The principle (derived from the Supremacy Clause) that a federal law can
supersede or supplant any inconsistent state law or regulation.
-A courts determination of a preemption claim in medical device cases generally breaks down
into three considerations:
(1) has the FDA established specific federal requirements that apply to the particular device;
(2) is there a particular state requirement with respect to the medical device; and
(3) does the state claim create requirements that are different from, or in addition to, the
specific federal requirements?
-A lack of specificity in either the federal or the state requirements may defeat a preemption
argument.
-There remains some conflict among the lower courts as to whether the FDAs premarket
approval process imposes specific federal requirements on a medical device, and whether
liability in a tort suit would impose specific state-law requirements.
-If enough specificity exists on both fronts, the court will scrutinize the plaintiffs claims to
determine whether successful litigation of any of them would establish or continue in effect a
different or addition[al] requirement.
-Dual Federalismwe recognize two set of sovereign (Federal & States).
States agree to give up part of their sovereign rights.
o Article 6 2, when state law conflicts with Federal Law, Federal Law trumps.
-Implied Preemptionthere is no express indication of preemption.
Courts first look for clear indication that this is what Congress had in mind.
Without express language, the courts look for clear evidence of intent to apply
preemption.
o You can look for intent in legislative history.
Wyeth Case
(1) FDA requires marketing labels of drugs to only include the language approved by the
FDA.
(2) Congress put FDA in charge of what labeling should include.
Statute of Limitations
-The Statute of Limitations is the time frame in which a tort claim of action must be brought in
-court.
-It serves two purposes:
(1) Encourage plaintiffs to bring tort claims pretty closely within the time of injury.
a. This is so that all evidence is still available, and the courts will be able to get an
accurate recollection of what truly happened.
(2) Period of Time after which a tortfeasor can have a sigh of relief that they can no longer be
sued for their tortious action.
a. If someone does try to bring a tort claim after the statute of limitations has run,
then this will be complete defense and thus bar the claim.
Exceptions to the Statute of Limitations:
Discovery Ruleif you cannot discover that a tort happened, the then SOL is tolled, and
it will start running when you discover or should have known of the tortious act.
Strict Liability
Hammontree v. Jenner.
-Let the loss stay where it lands, unless there is a reason to shift the loss.
-This court said that legislature is the one to deal with strict liability.
Rylands v. Fletcher #1. Page 507.
-Instant Facts: The floor of the defendants reservoir, built on his land,
collapsed and flooded mine shafts on the plaintiffs land.
-Black Letter Rule: A person who, for his own purposes, keeps on his land
anything likely to do harm if it escapes must keep it in at his peril, and if he
does not do so, is prima facie liable for all the damages that are the natural
consequence of its escape.
-This is an ancient tension in tort law, where there is no proof of fault, but we
sill hold the defendant liable.
Res ispa allows you to prove fault indirectly instead of direct evidence.
o But in this case, the court finds liability by the conduct of the
defendant instead of the fault.
Rylands v. Fletcher #2. Page 512.
-Instant Facts: A cotton mill operator built a reservoir on land adjacent to
an underground mining operation. When the reservoir was filled, the water
escaped through some old mine shafts and into the operational mines.
-Black Letter Rule: A landowner is not responsible for damage to
neighboring land caused by the natural use of his land, but is strictly liable
for damage caused by the non-natural use of his land.
-Trespass and nuisance were not thought as a possibility for grounds as relief
on the claim.
-Usually there is no possibility to sue a principal for an independent
contractors work without some other reasoning/relationship.
-If one suffers personal injury, then these are not strict liability casesthere
has to be negligence on the part of the defendant.
Justice Blackburns view
When you go out into the world, you take on a certain amount of risk,
and when such risk matures into an accident, you have subjected
yourself to such injury.
o We leave this injury on the plaintiff.
Cairns View
If you make a non-natural use of the land (even if the materials were
naturally there) and it escapes, then you will be liable.
o It is possible that this non-natural use was probably referring to
ultra hazardous activity or uses of the land (like dynamite).
Three Types of Strict Liability Presented in the Rylands Case
1. Very broad rule of strict liability (Cranworth)If you bring something on
your land and if it escapes and causes damage, then you are going to
be responsible for the damages it causes.
2. Less so (Blackburn)if you bring rain water on your land that doesnt
naturally accumulate on your land, then you will be liable. But if it
accrues on its own, then no strict liability.
3. Very narrow (Cairns)only participating in ultra hazardous activity is
the only time that strict liability should be applied.
Note 3 (page 513)Availability of Insurance
-Exploding Water Boiler Case
In todays society, there are certain uses of the land that are beneficial
to the general welfare of society.
In these cases where something contained on one persons land
escapes to the other persons land and causes injury, sometimes there
is no fault of the landowner.
o You should have insurance companies to compensate injuries
where you cannot prove fault.
Note 5 (page 515)Englands View of Strict Liability
-England lets go of the rule set forth in Rylands v. Fletcher.
-It gives two justifications for it:
1. The availability of nuisance as a way out capturing outcome of the
Rylands case.
2. It might be a variation of trespass.
Sullivan v. Dunham. Page 516.
-Instant Facts: A woman was walking on a public road when she was struck
and killed by a piece of wood that was thrown by a landowner who was
blasting a tree that was on his land.
-Black Letter Rule: If a landowner cannot use his land in a particular way
without causing damage, he must either use his land in some other way or
be held responsible for the damage.
*In blasting cases, the court isnt concerned about the carefulness of the
defendants.
This implies that there is some sort of wrongfulness present in the act
of blasting.
o Blasting is likely the type of activity itself where you have a
choice.
If there is a safer way to do something then you should do
it in that way.
Principle: We are asking party A to refrain from some acts
because of the rights of party B. if they still act and
cause injury, then we are going to impose liability, even if
A was careful.
Note 5 (page 519)Stored Dynamite
-Strict liability is imposed if the dynamite explodes, even when it is just
stored.
-But strict liability is not imposed in cases of slaughter houses, fumes, etc.
that have an impact on surrounding property.
Dynamite is much more inherently dangerous where the risk cannot be
reduced even by due care.
o It is abnormally dangerous or ultra-hazardous activity.
Note 6 (page 520) First Restatement & Strict Liabilitycovered
activity that was ultrahazardous (which was defined as involving a risk that
cannot be eliminated by the exercise of the utmost care and is not a matter
of common usage)
-The R.2d reframed the approach by providing that one who carries on an
abnormally dangerous activity is subject to liability for harm resulting from
the activity, although he has exercised the utmost care to prevent the harm.
R.2d 520In determining whether an activity is abnormally
dangerous, the following are factors for consideration:
a) existence of a high degree of risk of some harm to the person,
land, or chattels of others;
b) likelihood that the harm that results from it will be great;
c) inability to eliminate the risk by the exercise of reasonable care;
d) extent to which the activity is not a matter of common usage;
e) inappropriateness of the activity to the place where it is carried
on; and
f) extent to which its value to the community is outweighed by its
dangerous attributes.
-The R.3d, retains the abnormally dangerous from R.2d, but it omitted (e)
and (f) from above.
It left out:
o the location requirement
-Accidents that are due to a lack of care can be prevented by taking care;
and when a lack of care can (unlike Siegler) be shown in court, such
accidents are adequately deterred by the threat of liability for negligence.
The manufacturer of a product is not considered to be engaged in an
abnormally dangerous activity merely because the product becomes
dangerous when it is handled or used in some way after it leaves his
premises, even if the danger is foreseeable.
-Justice Posner said that the point of strict liability is that sometimes
negligence is not going to be enough to transfer the costs of injury to the
person acting or negligence isnt sufficient enough to deter the dangerous
act.
But when negligence is sufficient to accomplish what we need it to,
then use negligence.
-Posner said that the shipper or railroad should be the ones that strict liability
should be imposed on, not the manufacturer.
But he says that this still isnt needed because negligence is adequate.
o The manufacturer put this product in the stream of commerce
they are the initiating force.
There might have been negligence on the part of the
manufacturer by picking a shipper that is not careful.
Either way, negligence works enough to cover both the act
and the harm.
Note 7 (page 529)Governments Liability for Strict Liability
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-Traynor is not afraid to say that the socio-economic society has changed.
Traynor has to persuade us to let go of negligence and adopt strict
liability instead.
-Cardozo on the other hand, is afraid to do this.
He instead doesnt want us to think he is changing the law. He wants it
to appear that he was just applying an old rule to a new set of facts.
Traynors Reasons for Imposing Strict Liability
1. Deterrencepublic policy favoring that incentivize manufacturers to
not put defective products on the market.
2. Insurancespreading the cost of accidents on the manufacturers. Both
the social and economic costs are spread in the cost of the product.
3. Problems of Proofas a consumer, you may not be able to prove
where/how the negligence occurred or where the defect in the product
was at.
4. The key questions are for the jury. Jurors usually find liability
sometimes even when liability hasnt been proven. So this is even like
strict liability. Sometimes to solve this problem we can order a new
trial, but you cant always do it.
5. Fairnessthe innocent plaintiff should not bear the full cost of the
injury.
6. Strict liability already exists in this case as a matter of law in food
product cases.
a. Are we going to say that the risk in food products is really that
different from the products cases? No.
7. Social Change Argumentyou used to buy products from small
manufacturers, local people that you knew. Today, people are buying
stuff by huge international manufacturers.
-Warranty law lends itself to strict liability. if you impliedly or expressly
provide that a product is guaranteed for a specific use, then if someone is
harmed by it, you are going to be held liable.
Warranties are a combo of both contract and tort law.
You had to have privity originally for the warranty to cover/extend to
you.
o In Hennigsen v. Bloomfield Motors, we dont think privity is a
requirement in order for an injured party to sue for a defective
product.
Greenman v. Yuba Power Products, Inc. Page 562.
Judgment for P in a general verdict, so its not clear as to whether it was
found because of breach of warranty or negligence.
The Supreme Court said that this is the case where manufacturers are
going to be held strictly liable for its products.
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b. the user or consumer has not bought the product from or entered
into any contractual relation with the seller.
R.3d (page 568)this simply codified the three types of defects that lead
to imposing strict liability.
1) One engaged in the business of selling or otherwise distributing
products who sells or distributes a defective product is subject to
liability for harm to persons or property caused by the defect.
2) For the purposes of determining whether a product is defective, there
are three types of defects. A product:
a. contains a manufacturing defect when the product departs from
its intended design even though all possible care was exercised
in the preparation and marketing of the product;
b. is defective in design when the foreseeable risks of harm posed
by the product could have been reduced or avoided by the
adoption of a reasonable alternative design by the seller or other
distributor, or a predecessor in the commercial chain of
distribution, and the omission of the alternative design renders
the product not reasonably safe;
c. is defective because of inadequate instructions or warning when
the foreseeable risks of harm posed by the product could have
been reduced or avoided by the provision of reasonable
instructions or warnings by the seller or other distributor, or a
predecessor in the commercial chain of distribution, and the
omission of the instructions or warnings render the product not
reasonably safe.
-What are the main difference between R.2d and R.3d?
1) R.3d drops the unreasonably dangerous condition from its statutes.
a. Some products are going to be unreasonably dangerous but this
sometimes resembles negligence and poses a tension if R.2d is
actually strict liability?
2) Ultimate user or consumer language is dropped in R.3d.
a. This means that bystanders can sue under strict liability for
injuries they suffer from the defective products.
**We have not dropped the requirement of the product must have a defect.
only defective products lead to recovery under strict liability.
This is not enterprise liability.
It may not be fault based but not exactly strict liability.
o It is strict in a way that even if manufacturers are completely
careful, they are still going to be held liable.
Manufacturing defectproducts come out of the manufacturing process
different than what the product was intended to be.
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**When a product departs from the design norm, we are going to impose
strict liability.
Elmore v. American Motor Co. Page 563.
Injured bystanders should have equal opportunity to benefit from
recovery under strict liability.
Used Goods Sellers (page 564)sellers of used products, generally are
not going to be subject to strict liability.
You have to use negligence in order to recover from injury by a used
product.
Successors (page 564)a company is bought out by a new company.
Is this new company going to be strictly liable?
The Products Liability Restatement 12 adopts the traditional approach
to successor liability, imposing liability on the successor if the
acquisition:
a) Is accompanied by an agreement for the successor to assume
such liability; or
b) Results from a fraudulent conveyance to escape liability for the
debts or liabilities of the predecessor; or (if you transfer your
assets to another company so that you can get out of being
liable for the current lawsuits you are under, then we are going
to ignore the sale)
c) Constitutes a consolidation or merger with the predecessor;
d) Results in the successor becoming a continuation of the
predecessor.
a. These last two cover a lot of companies
Hypo: You lease a tiller from a leasing company can you hold liable the
leasing company under R.2d 402(A)?
Yes, because they put it in your hands even if it is a lease, then this is
going to be enough like a sale for it to cover this case.
Hypo: You buy a Tesla and sell it to a successor, and the car has problems
and injures the new owner. Can the new buyer sue you?
No because you are not in engaged in selling of such product.
Tesla can be sued.
-Comparison of R.2d & R.3dthe R.3d you might be under the business of
selling a product even though you dont normally sell such a product.
As the seller of the car under the R.3d, you might be held strictly liable.
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-These are generally hidden, latent defects that are not easily detectible.
Usually testing or inspection wont reveal these defects.
Manufacture Defectdefined as a departure from the manufacturing
specifications process.
This gives rise to the idea that this might be a fault-based theory of
liability even though we call it strict liability.
o It doesnt matter how careful the manufacturer was, but there
was still a departure but from the manufacturing process not
the standard of care.
Proof is usually difficult to proveplaintiff will have a difficult time
proving where the departure actually occurred.
-However, strict liability also poses the same problem because if the product
was destroyed or sent for repair, we cannot prove a defect of a particular
kind either.
How do we solve this problem?
o You have to show that ordinarily the injury from the product
doesnt occur except when the product has a defect.
This sounds a lot like res ispa loquitur as long as you can
show that the product/injury wouldnt occur unless there
was a defect.
Design Defects
-The characterization between design and manufacturing defects are
conceptually difficult to distinguish.
-The distinction is important because:
for a manufacturing defect youll look at the design and compare it to
the actual product based on departure from the defect and what the
product normally looks like when properly constructed.
design defectyour witnesses will testify to design of a class of
products, types of materials that could have been used, etc.
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In the real world, we usually dont think about safety expectations with
the respect to a design of a product.
**Different consumers might have different expectations.
Or they may have no expectations at all.
-What about the innocent by-standers who are injured? they probably
dont have an expectation as to the safety.
Risk Utility Test (also known as risk-benefit test)
1. Gravity of Danger of Challenged Designhow risky is the product
2. Likelihood of Danger B<P x L analysis
3. Mechanical Feasibility of Alternative Design
4. Financial Cost of an Improved Design
5. Adverse Consequences to Changing Product
**Problem is that if you change the design, then it may no longer be
the same product.
Soule v. General Motors Corporation. Supreme Court of California. Page
573.
Instant Facts: Soule (P) injured in car accident sued GM (D) for design
defect, and jury was erroneously instructed on consumer expectation test,
rather than risk-benefit test.
Black Letter Rule: Use of the consumer expectations test is not
appropriate where the evidence does not permit an inference that the
products performance did not meet the minimum safety expectations
of its ordinary users, and the jury should therefore be instructed on the
alternative risk-benefit test of design defect.
Issue: May a products design be found defective on grounds that the
products performance fell below the safety expectation of the ordinary
consumer if the question of how safely the product should have performed
cannot be answered by the common experience of its users?
Holding: Maybe, the safety expectation of the ordinary customer can
be sufficient to determine where a products design in some cases was
defective and thus resulting in injury to the user. However, in the
present case, the facts were so complex that the expert testimony
needed to be included in establishing whether there was a defect in
this cars design.
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o Even though the product was risky, this still needs to go to the
jury because the utility of the product may be difficult to
determine.
Exp: Some products are necessary, but also some products
are more of a luxury. But judgment as a matter of law can
still be ruled on this.
So those goods that are necessary and cant be made any
safer thats just part of it. But those goods that are luxuries
and cant be made any safer, imposing liability on them will
hopefully deter them from putting the product on the
market.
OBrian Caseno matter how dangerous the product is, and if there is
no reasonable alternative design and there was an adequate warning,
then the product should be free from product defect liability.
o This is a buyer/user beware situation.
o Also, with adequate warning, then consumer expectation must
be low.
**MANY COURTS FOLLOW THIS.
Camacho v. Honda Motor Co, Ltd.. Supreme Court of Colorado. Page 585.
Instant Facts: Camacho (P), injured while riding his motorcycle, sued Honda
(D) the manufacturer for design defect in not providing crash bars on the
motorcycle.
Black Letter Rule: Where the danger of the product is open and
obvious, the danger-utility test is the appropriate design defect test to
use rather than the consumer expectation test.
Issue: Is the consumer expectation test appropriate to determine whether a
product has a defective condition unreasonably dangerous to the user or
consumer?
Holding: No, in cases where there needs to be explanation and
evidence presented from experts about products that are technical,
then the consumer expectation is not appropriate because an average
consumer likely will not be able to have an expectation of the safety a
product should have.
Comment i to R.2d 402A:
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.
o An obvious danger to a consumer does not make the defect
unreasonably dangerous the better the warning, then the
more unsafe the product can be.
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**Under this test, manufacturers can easily get out of liability by saying
that they gave a warning.
Crashworthiness Doctrinea motor vehicle manufacturer may be liable
in negligence or strict liability for injuries sustained in a motor vehicle
accident where a manufacturing or design defect, though not the cause of
the accident, caused or enhanced the injuries.
A manufacturers duty encompasses designing and building a product
reasonably fit and safe for its intended use, that automobiles are
intended for use on the roadways and that injury-producing collisions
are a frequent, foreseeable and statistically expectable result of such
normal use.
o The automobile manufacturer has a duty of reasonable care in
the design and manufacture of its product, including a duty to
use reasonable care to minimize the injurious effects of a
foreseeable collision by employing common sense safety
features.
The crashworthiness doctrine does not require a manufacturer to
provide absolute safety, but merely to provide some measure of
reasonable, cost effective safety in the foreseeable use of the product.
**This test looks to see whether there were alternatives or other ways
to design the product that could prevent reasonably foreseeable
accidents.
Question posed under the crashworthiness doctrine is not
whether the vehicle was obviously unsafe but rather whether the
degree of inherent dangerousness could or should have been
significantly reduced.
Ortho Factorswhether risk outweighs the benefit of product
-The following factors (set forth by the Ortho case) are of value in balancing
the attendant risks and benefits of a product to determine whether a product
design is unreasonably dangerous:
1. The usefulness and desirability of the productits utility to the user
and to the public as a whole.
2. The safety aspects of the productthe likelihood that it will cause
injury and the probable seriousness of the injury.
3. The availability of a substitute product which would meet the same
need and not be as unsafe.
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Beyond Products
Royer v. Catholic Medical Center. Supreme Court of New Hampshire,
1999. Page 655.
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Instant Facts: Patient who received a defective prosthetic knee sued the
hospital for strict product design liability and hospital argued that it was not
engaged in the business of selling goods.
Black Letter Rule: A health care provider, who in the course of
rendering health care services supplies a prosthetic device to be
implanted into a patient, is not engaged in the business of selling
prostheses for purposes of strict products liability.
-One who sells any product in a defective condition unreasonably dangerous
to the user or consumer or to his property is subject to strict liability for
physical harm thereby caused, if the seller is engaged in the business of
selling such a product.
If the defendant merely provides a service, however, there is no
liability absent proof of a violation of a legal duty.
-When a contract involves both services and products, the court will look to
the essence of the transaction and try to determine what the dominant
purpose of the contract is.
It is possible that a product can be incidental to the transaction, not
the main focus.
Note 4&5 (page 658)Claims Against Professional Service Providers
Courts have closed the door on strict liability to professional service
providers.
Claims Against Pharmacists
In Murphy, court rejects strict liability against a pharmacist.
In this case, is the product ancillary to the service, or the service
ancillary to the product?
o When you go in, youre just after a drug, no so much as the
service.
o In the professional services arena, we treat these as negligence
claims and not strict liability.
Not all courts have followed this rule as to pharmacists.
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Black Letter Rule: A cause of action in tort may not be stated when a
defective product purchased in a commercial transaction malfunctions,
injuring only the product itself and causing purely economic loss.
-The court doesnt allow the tort claim to happen because then the world of
contract law would drown in tort law.
In contract claims, you get to be made whole for the benefit of the
bargain.
o In tort, we want some reasonable limits on the amount of
damages awarded because tort law allows more damages.
If you go to tort law, you lose the benefit of the bargain.
Intentional Harm
Batteryan offensive or harmful touching with the requisite intent.
What kind of intent is needed?
1. Intent to harm/offend.
2. Intent to touch that will harm/offend
3. Intent to touch that in turn harms/offends
R.3d 1you act with the requisite intent if you act with the purpose of
inducing consequence or substantially certain injury would result.
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-In this case Ws theory of battery is that battery is just offensive contact.
W is not claiming that the touching as harmful, but that the touching of
the door was offensive.
He said that it was offensive to his personal dignity.
What Constitutes Offensive Contact Under the Restatement?
What a reasonable person of reasonable dignity would find to be
offensive.
o You dont have to have harm.
o But you can have harmful touching that is offensive.
The two are independent of each other.
you can have harm without offense.
you can have offense without harm.
R.2d 18Battery: Offensive Contact:
1. An actor is subject to liability to another for battery if
a. he acts intending to cause a harmful or offensive contact
with the person of the other or a third person, or an
imminent apprehension of such a contact, and
b. an offensive contact with the person of the other directly or
indirectly results.
2. An act which is not done with the intention stated in Subsection
(1,a) does not make the actor liable to the other for a mere
offensive contact with the others person although the act
involves an unreasonable risk of inflicting it and, therefore, would
be negligent or reckless if the risk threatened bodily harm.
o Comment c to 18 notes that the contact need not be:
directly caused by some act of the actor and also
notes that the essence of the plaintiffs grievance
consists in the offense to the dignity involved in the
unpermitted and intentional invasion of the
inviolability of his person and not in any physical
harm done to his body.
R.2d 19What Constitutes Offensive Contact
A bodily contact is offensive if it offends a reasonable sense of
personal dignity.
o Comment a to 19 explains what kind of conduct offends a
reasonable sense of personal dignity:
In order that a contact be offensive to a reasonable
sense of personal dignity, it must be one which
would offend the ordinary person and as such one
not unduly sensitive as to his personal dignity.
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False Imprisonment
False Imprisonmentunlawful restraint of an individuals personal liberty
or freedom of locomotion.
Imprisonmentdefined as any unlawful exercise or show of force by which
a person is compelled to remain where he does not wish to remain or to go
where he does not want to go.
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Shoplifting
-At common law, even a peace officer had no privilege to arrest for a
misdemeanor committed in the officers presenceunless the officer had a
warrantif the misdemeanor involved no breach of the peace.
-For a citizens arrest, most states require that the person arrested be guilty.
The shopkeeper must establish that a misdemeanor has indeed
occurred.
o Thus, if a suspect refuses to open packages or explain suspicious
conduct, traditional law presents the shopkeeper with the choice
of making a possible unlawful citizens arrest or letting the
suspect go.
o If, in fact, the suspect has obtained the goods legally, the
shopkeepers reasonable belief that they were stolen will not
protect against liability for battery if force is used to retrieve
goods.
If instead, the shopkeeper yells after this shoplifter to stop, and a
police officer makes the arrest, the shopkeeper will be deemed to have
instigated the arrest and will be subject to the standards of a citizens
arrestalthough the police officer may be protected as having made
the arrest on reasonable grounds.
o Reasonable grounds shall include, but not be limited to:
knowledge that a person has concealed possession of
unpurchased merchandise of a retail mercantile establishment.
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-It is for the court to determine, in the first instance, whether the defendants
conduct may reasonably be regarded as so extreme and outrageous as to
permit recovery, or whether it is necessarily so.
Where reasonable men may differ, it is for the jury to determine
whether in the particular case, the conduct has been sufficiently
extreme and outrageous to result in liability.
Note 4 (page 922)Criticisms of Intentional Infliction of Emotional
Distress.
No clear definition of prohibited conductoutrageous is too squishy.
Does not actually give description for defendants conduct for courts to
follow.
-Offensive conduct and harmful is still subjective just like outrageousness.
-What can judges do if your concern of lack of clear guidance?
Judges consistently take that cases away from the jury and decide it for
themselves.
-The court in Russo, was skeptical if there was IIED because there was no
actual physical injury as a result of the stress.
Note 7 (page 923)Collection Agencies Harassing Debtors.
-Court ruled that the persistent calling 10-20 times per day and threatening
letters and threatening to embarrass the debtor in front of her employers
constituted IIED.
-The clinic over the medical bill was the one that got charged with IIED.
Why did this claim get put on the clinic?
o When the clinic hired the debt agency, they entered into a
contract to get them to make the calls. This is vicarious
liability.
But you have an independent contractor here. Even though
there might be an independent contractor, the collection
agency might have gone so far as to create a jury question
as to whether the agency went too far with the phone calls
and trying to recover the money.
Harassment Case
-All harassment cases that are applied under Title VII and other federal
statutes that fill the gaps of common law and provide plaintiffs a federal
forum on federal question.
-Statutoforificationa lot of the common law is being replaced by
statutes. It is the act of the common law being codified.
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Hypo: You take neighbors wheelbarrow for a day and return it. What is
this?
o Conversion?No. Because it didnt so seriously interfere with the
neighbors exclusive right of dominion control. You interfered
with owners right to say, no you cant use it.
o Trespass to ChattelYes. What are the damages and how are
they measured?
You could rent a wheel barrow from Home Depot. This
would be the fair market value of a wheelbarrow for a day.
Hypo: What if you return it with no wheel, a whole, and a broken
handle?
o Here, this is conversion, and you owe the full value of the
wheelbarrow.
Hypo: You loan a wheelbarrow to someone and you cant find yours so
you take the neighbors who you thought you lent yours to.
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Exp: If you consent to an exam doesnt mean that the doctor can
do exploratory surgery.
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Exception: You can use deadly force if the trespasser was committing a
felony of violence or the trespasser was threatening the life of
someone.
Hypo: What if burglars are getting ready to leave and then you decide
to shoot?
o You have no privilege to shoot because you will be defending
your property.
Unless there is a statute that allows you to defend your
property no matter what.
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o He said that this is what he was doing when he cut the ship
loose.
**You only have the right to create a harm when that harm is going to be
lesser than the other harm that would have occurred.
P has a right of preservation of life/limb & protection of their very own
property.
-The question to ask: Do you have a superior right or greater interest in
protecting your own property so that it is justified to violate the other
persons right?
Exp: Break into parking garage to save severe hail damage to your car.
you probably have a superior interest than the garage owner.
Vincent v. Lake Erie Transportation Co.. Supreme Court of Minnesota,
1910. Page 958.
Instant Facts: During a fierce storm, a steamship was repeatedly thrown
against a dock, causing damage to the dock.
Black Letter Rule: Damage caused to anothers property due to
necessity requires compensation for the actual harm caused.
**Court said that necessity may allow you to trespass on anothers property,
but justice requires you to compensate the damage you created.
The courts generally will only let the injured property owner recover
the cost to fix the physical damage, not things like lost rent, etc.
Note 7 (page 962)R.2d View of Private Necessity
Hypo: You throw someone else in harms way in order to save yourself.
o If it is a minor harm, then this can be a privilege because you
have a greater interest in protecting your own life when it only
causes minor injury.
But you cannot sacrifice anothers life to protect your own
life.
Hypo: A is Nobel Peace Prize Winner & 3 year old dies.
o No privilege here.
Hypo: But can you sacrifice the 3 year old to save 127 other people?
o The courts take the position that you cannot sacrifice anothers
life, but you can sacrifice their well being, convenience, or minor
injuries.
Can you be sued for the medical expenses that you caused
the other person by protecting yourself? Yes. This is just
like Vincent.
But they cannot sue you for the interference with
their right to have no one to interfere with their
bodily well being.
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The duty to pay medical fees are also extended by the egg
shell plaintiff rule.
Compensatory Damages
Pecuniary
Medical
Past
Future
Non-Pecuniary
(pain & suffering, etc)
Lost Earnings
Past
Past
Future
Future
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-Judge Posner has said that damages for past pain and suffering has no
significance because its hard to put a value on your pain.
But, your pain and suffering might be reflected in your past lost
earning and medical expenses.
He said that past pain and suffering have no economic value alone.
o Even future pain and suffering might have no significance.
-There are methods in which the court can adjust the damage award after
the jury has allotted the amount.
In California, the only way an Appellate Court can reverse damages is if
it shocks the conscience.
Remitturtrial court knocks damages down.
Additurcourt increases damages.
Seffert v. Los Angeles Transit Lines. Supreme Court of California, 1961.
Page 711.
Instant Facts: A bus passenger who was permanently and severely injured
when the bus dragged her for several blocks while her arm and foot were
caught in the bus door was awarded a large amount for pain and suffering.
Black Letter Rule: A jurys award of damages for pain and suffering
will not be disturbed unless it is so large as to shock the conscience of
the court.
Issue: Was the amount of damages for pain and suffering, which was several
times greater than the pecuniary damages and was based on a
mathematical formula suggested by plaintiffs attorney, excessive?
Holding: No. It must be remembered that the jury fixed these
damages and that the trial judge denied a motion for a new trial.
-An appellate court can interfere and declare the judgment to be excessive
only if the verdict is so large that, at first blush, it shocks the conscience and
suggests passion, prejudice, or corruption on the part of the jury.
In making this determination, the appellate court may consider the
amounts awarded prior cases for similar injuries, but each case must
be decided on its own facts and circumstancesinjuries are seldom
identical and the amount of pain and suffering in each case will vary
greatly.
-Lost wages are calculated by your recent paystubs so that you can see what
the current pay is.
-How do you prove future medical expenses?
You get testimony from doctors as to what their predictions of what
future medical care/expenses will be.
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As judge you can perform additurwhere you can add to the jury
award.
o Only some courts allow this. The federal courts arent allowed to
do this because it violates the 7th Amendment.
The theory behind this is that under remittitur, the jury
already approved those lower amounts so you can reduce
the award.
But with additur, you are adding to the award that the jury
wasnt willing to go that high.
But you can also make the same argument that
reducing the amount also forces an award that the
jury didnt want.
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The courts want the decedents estate to still get the value of what the
decedent should have gotten.
Pain & Sufferingseems to require that the decedent must have been
alive and conscious for at least some time.
o This includes emotional suffering, etc.
o Since this is highly subjective, it makes it very difficult to
calculate.
Wrongful Death Actions (the beneficiaries of the decedent are the ones
who bring the suit)
It compensates the survivors for the loss they experience because the
decedent died.
o Usually includes pecuniary and non pecuniary damages.
This claim is provided for by statute, and so they are narrowly
construed.
-Wrongful death and survival actions are often brought together.
-In wrongful death actions, the major item of damages traditionally has been
the economic loss to the beneficiaries, because in many states only
pecuniary loss is recoverable.
Since the beneficiaries are to recover only their loss, their damages are
not the decedents loss wages as such.
o From that lost income figure, the amount the decedent would
have spent personally for food, clothing, and other personal
consumption has to be deducted.
Hedonic LossLoss of the enjoyment of life.
Why does this even fit into survival actions?
o This awards looks at the life the person lost because of the
death.
This is a forward looking damage while survival actions are based on
the past.
**This is an odd fit in wrongful death action because the survivors are the
one getting the money.
Durham v. Marbery
Decedent was killed instantly. So should the estate be able to recover
the loss of life for her death?
o Did she need to be alive for some point in order to recover, or
does it not matter?
Two Parts to Hedonic Damages:
1. Loss of Lifethese are the actual years that they lost because they
were killed.
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Punitive Damages
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-The Utah Supreme Court said the ratio of 1:145 was okay because:
1. Reprehensibility of Conduct
2. Wealth of State Farm
3. State Farm is rarely punished
4. Ratio isnt unwarranted
5. Compared to civil liabilities & criminal penalties
6. The value of punitive damages were proportional.
**United States Supreme Court instructed courts reviewing punitive damages
to consider three Gore guideposts:
1. Degree of Reprehensibility of Defendants Misconduct
2. Ratio of compensatory damages and punitive damages
3. Difference between amount of punitive damages and the civil/criminal
penalties.
-The wealth of a defendant cannot be taken into consideration for awards of
punitive damages.
But they are often important because you want the damages to
actually hurt a little.
Factors To Determine Reprehensibility (guidepost) of a Defendant:
1. Type of Harmphysical or economic?
2. Does case raise health or safety concerns?
3. Were the financially vulnerable specifically targeted by defendant?
4. Is it an isolated event or repeated event?
5. Was it result of an accident or an intentional act?
Ratio Guidepost
There is no specific formula, but usual ratios should be in single digits.
o So 1:10 might be unconstitutional.
o But the ratio can be higher when the compensatory damages are
much lower.
Restatements view is that compensatory damages already include
some punitive aspects.
Note 4 (page 771)Harm to Others
A Supreme Court case said that consideration of harms to others
cannot be considered when awarding punitive damages (assessing the
amount of punitive damages to impose).
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But the court said that you can use this evidence when determining
the reprehensibility of and ratio.
o The Court probably means that you can use this for
reprehensibility so a few occasions of bad behavior isnt as
reprehensible where continuous repeated occasion are more
deserving of punishment.
o As far as ratios, you cant use national conduct in setting a
punitive damages amount (number). But you can use this
evidence to determine whether the award the jury decided is in
line with the other cases.
The Supreme Court ruled that the due process clause barred
consideration of harm to others in awarding punitive damages.
o A jury may not punish a defendant for harm to others.
Rationale behind this is they dont want the defendant to
suffer double punishment when they are punished now,
and then another plaintiff comes along and sues them for
the same behavior later.
Insurance
-Insured are seeking protection against the financial consequences of the
occurrence of an undesired eventwithout regard to any legal rules of tort
liability.
First-Party Insuranceprotection of the insured or the insureds family
from the direct adverse economic effects of a particular event.
Third-Party Insuranceliability insurance taken out to protect the
insured against economic impact of having to pay damages to another
person.
o Here, the insurer pays a third person for a loss the insured has
caused.
-Insurance is pooling risk so that people are not wiped out by catastrophic
events that they cannot pay for.
-Insurance is an idea from when people used to co-op together to pay for
losses they might have suffered.
Difference between co-ops and insurance?
o Today, insurance has lots of overhead (advertising, etc.) that the
co-op didnt.
o Most of these insurance companies are publicly traded so there
are shareholders this results in profit motives.
While the co-op just raise what they could.
o Insurance companies want to be better and underwriting so that
they can deny their claims in order to make more profits.
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*One way to avoid paying is saying that there is no coverage for this type of
event or specific exclusions. (Exp: Intentional Torts).
**There are some statutory guidelines regarding insurance that must be
followed like having to carry a certain amount of auto insurance.
-To carry insurance on something, you must have an insured interestthis
means that people must have some sort of interest in the property in order
to get an insurance coverage over it.
Intentional and Criminal Conduct are usually not covered by insurance.
Argument against punitive damages to be paid by insurance coverage?
The insurance company wont pay for intentional torts.
Punitives are given to deter but if your insurance pays, then there is no
deterrence.
o But, if we extend coverage of punitive damages to cover gross
negligence cases, then there is an argument to need insurance
as a way to police the too far extension of this award.
**Insurance contracts are contracts of adhesion.
You interpret the meaning against the drafter of the contract.
This means that you interpret in favor of the insured when at all
possible.
Subrogation
Frost v. Porter Leasing Corp.. Supreme Court of Massachusetts, 1982.
Page 785.
Instant Facts: An insurance company paid for some of the medical
expenses of an insured accident victim, and then the insurance company
tried to get repaid from the proceeds of the victims settlement with the
tortfeasor.
Black Letter Rule: Unless there is a specific contractual provision in
the insurance agreement, insurers do not have a right of subrogation
for medical expenses.
-Courts have readily implied rights of subrogation under policies covering
property damage.
-On the other hand, courts have not recognized implied rights of subrogation
in the area of personal insurance, a category that has included medical
expense benefits as well as life insurance and other forms of accident
insurance.
Personal insurance is said to be less a contract of indemnity than a
form of investment.
-Is medical insurance more like property insurance or personal insurance?
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Instant Facts: An insured and his assignee sued the insurance company for
failing to settle a claim for the policy limits upon demand.
Black Letter Rule: When the insurers investigation into the merits of
a claim is not yet completed, the insurer by refusing to settle the claim
does not evidence bad faith, which requires a conscious and knowing
indifference to the probability that the insured will be held personally
accountable for a large judgment.
Issue: Does an insurance company act in bad faith when it refuses early
settlement of a claim that the insured is likely to lose if litigated?
Holding: No, an insurance company is entitled to finish investing the
facts of the case in order to determine liability and does not have to
accept a settlement agreement if it has not yet had the chance to do
so.
-Whenever an insurer is presented with a settlement offer within policy
limits, a conflict arises between the insurers interest in minimizing its
payments and the insureds interest in avoiding liability beyond the policy
limits.
-Precedent clearly bars a bad faith prosecution for conduct amounting to
ordinary negligence.
-In order to establish a prima facie case of bad faith, the plaintiff must
establish that the insurers conduct constituted a gross disregard of the
insureds interests.
That is, a deliberate or reckless failure to place on equal footing the
interests of its insured with its own interests when considering a
settlement offer.
o A bad faith plaintiff must establish that the defendant insurer
engaged in a pattern of behavior evincing a conscious or
knowing indifference to the probability that an insured would be
held personally accountable for a large judgment if a settlement
offer within the policy limits were not accepted.
-Bad faith is established only where the liability is clear and the potential
recovery far exceeds the insurance coverage.
The equation must include consideration of all facts and circumstances
relating to whether the insurers investigatory efforts prevented it from
making an informed evaluation of the risks of refusing settlement.
-In making this determination the courts must assess:
the plaintiffs likelihood of success on the liability issue in the
underlying action;
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**Policy reason behind this case is that we dont want to allow the plaintiffs
to set arbitrary deadlines that are unreasonable and hold that when an
insurance company fails to settle within that deadline, then they are going to
be held liable for bad faith refusal to settle.
Note 5 (page 817)Third Party Claim for Bad Faith Refusal to Settle
Does a third party bad faith to settle claim get the same entitlement as
the first party (who is the policy holder)?
o Courts from time to time have allowed this in common law.
So its a possibility that a third party can bring a claim
against Ds insurance company.
Note 7 (page 818)Whether Bad Faith Insurance Claim Extends to
Punitives?
Can you include the punitive damage award in your complaint for a
bad faith failure to settle?
o NY says that you cannot bring the punitives in your complaint
and try to recover them as well:
Given the punitive nature and condemnatory nature of
punitives, it would be against public policy to allow the
insured to sue the insurer for the punitives in bad faith
claims.
o California comes to the same conclusion.
Note 10 (page 819)Excess Coverage Obligations
There are layers of insurance that you can purchase.
o 1st Layercovers you up to a certain amount per person/
maximum per occurrence
o 2nd Layerkicks in once the policy limits have been exceeded
under the 1st layer. Usually covers x through y amount of
additional liability.
o 3rd Layerkicks in once the middle tier has been exhausted.
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nearby farm land, despite the metal companys contention that the action
should have been brought under nuisance.
Black Letter Rule: A trespass is any intrusion which invades the
possessors protected interest in exclusive possession, whether that
intrusion is by visible or invisible pieces of matter or energy.
A trespassan actionable invasion of a possessors interest in the exclusive
possession of land.
A nuisancean actionable invasion of a possessors interest in the use and
enjoyment of his land.
-Liability for trespass has been recognized where the harm was produced by
the vibration of the soil or by the concussion of the air which is nothing more
than the movement of molecules.
We must look to the character of the instrumentality which is used in
making an intrusion upon anothers land, and emphasize the objects
energy or force rather than its size.
-The most important factor which describes the nature of the interest
protected under the law of trespass is nothing more than a feeling which a
possessor has with respect to land which he holds.
**The court in this case did not abandon the direct and indirect invasion
distinction.
But other courts might.
Note 5 (page 680)Intangible Invasions Sufficient to be Trespass
Electromagnetic waves and radiation can also result in a trespass and
they have no measureable mass.
o But they have energy and force.
Gases, fumes, and particulets can also result in trespass.
Nuisance
-Nuisanceis the unreasonable interference of the ability of the occupier of
land to enjoy the use of their land.
Nuisance can be from the intentional conduct of the defendant or
reckless/negligent conduct.
o However, if it exists/lasts for a really long time, then it will be
treated as an intentional invasion.
**If people come to the nuisance can they bring a claim for such nuisance?
Original viewno, it was a bar to a claim if you went to the nuisance.
Todays viewYou can bring the suit it is one of the factors to
consider however when deciding if its a nuisance or not.
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**In this balance that we try to achieve between lawful use of defendants
property and the lawful use of plaintiffs property, we lean more toward
Plaintiffs favor.
Private Nuisance
-R.2d 822 states the general rule:
One is subject to liability for conduct that is a legal cause of an
invasion of anothers interest in the private use and enjoyment of land
if the invasion is either:
a) intentional and unreasonable, or
b) unintentional and arising out of negligent or reckless conduct or
abnormally dangerous
-Unintentional nuisancesis governed primarily by the rules relating to the
underlying negligence, recklessness, or abnormally dangerous activity on
which the nuisance is based, with the added requirement that the injury be
related to an invasion of interest in the use and enjoyment of land.
-An intentional invasion satisfies the unreasonableness requirement,
according to R.2d 826, if:
a) the gravity of the harm outweighs the utility of the actors conduct, or
b) the harm caused by the conduct is serious and the financial burden of
compensating for this and similar harm to others would not make the
continuation of the conduct not feasible
**this also can go the reverse way, so if compensating the victim
is causes less injury to the defendant than the harm that would
result from an injunction, then defendant will be entitled to
continue nuisance but must compensate the injured party.
**Also, your claim for a nuisance might fail under 826A, but it might sill be
a nuisance under 826B.
R.2d 827: Gravity of HarmFactors Involved
In defining the gravity of the harm from an intentional invasion of
anothers interest in the use and enjoyment of land, the following factors are
important:
a) the extent of the harm involved;
b) the character of the harm involved;
c) the social value that the law attaches to the type of use or enjoyment
invaded;
d) the suitability of the particular use or enjoyment invaded to the
character of the locality; and
e) the burden on the person harmed of avoiding the harm.
R.2d 828: Utility of the ConductFactors Involved
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The New York Court of Appeals in this case held that you can impose a
temporary injunction until the defendant pays for the interference of
the land.
o Which means that as long as the defendant compensates the
inured party for their interference, then they can continue the
harmful use.
*Thus, in this case we did not depart from the NY rule technically, but in
actual life, we have departed from it, because as long as defendant pays, an
injunction wont be imposed.
Calculating Damages
Generally, you will get a real estate appraiser to determine what the
value of the property was before the interference and then how much
the value has decreased as a result of the interference.
How do you calculate periodic payments?
o You have to discount the present value over a period of time.
This period of time is usually the estimated useful life of
the property.
Policy Reasons to Want a Lump Sum Payment
As a land owner, you want to be fully compensated for the loss youve
taken in your land as a result of the interference.
o Cement Factory Perspective: They want periodic payments
because they can hopefully solve the nuisance problem and be
allowed to quit paying.
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You must establish that the defendants were in control of the instrumentality
alleged to have caused the nuisance when the harm occurred.
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