Académique Documents
Professionnel Documents
Culture Documents
***compare to Gilbert’s
Tort recovery is contingent upon two primary variables: the type of harm alleged by the ∏ and
the nature of the ∆’s alleged conduct. Compensable tortious harms are generally divided into
personal injury, property damage, and emotional distress, invasion of intangible interests such as
reputation and privacy, and economic harm. The nature of ∆’s conduct corresponds to 3 main
bases of liability—intent, negligence, and strict liability.
INTENT—conscious desire that a result will occur OR knowledge that a result will occur OR
knowledge that a result is substantially certain to occur.
-∆’s conduct manifested through a volitional act
-insane people are liable as a matter of public opinion
-child may or may not be liable depending upon maturity, experience and training
-Transferred Intent Doctrine; ∆’s wrongful intent is transferred from intended victim to
actual victim or from intended tort to committed tort
a. must have 2 object to apply
b. originally applied to 5 intentional torts; A, B, FI, TtoL and TtoC
c. Modernly limited to A, B and FI
-“Act” must be volitional; words alone are not sufficient unless ∆ knows ∏’s special
susceptibilities
-conditional threats may negate apprehension
-∏ must have awareness, unlike battery
-Actual apprehension is the test—irrelevant if a reasonable person would not have been
placed in apprehension
-fear is not required; only to be placed in apprehension
-future threats are NOT sufficient
-∆ must have an apparent present ability to cause touching.
-**Compensatory Damages and Punitive Damages are recoverable; actual damages not
needed
SELF-DEFENCE:
1. Reasonable belief of imminent danger and reasonable force used to repel attack.
2. Deadly force privileged where actor believes he is in danger of death or serious
bodily harm.
Duty to retreat: (split)
-Majority: not duty to retreat unless ∏’s conduct intentional
-Minority: must retreat unless retreat would be dangerous, ∆ is in his
home, or ∆ is attempting a valid arrest.
3. No privilege if danger has passed, or if force is excessive (beware of battery)
DEFENSE OF OTHERS:
1. Reasonable force to protect any 3rd person from harm
a. Majority: Step into the shoes of the victim
b. Minority: Reasonable mistake protected
DEFENSE OF PROPERTY:
1. Non deadly force allowed where the intrusion by the other party is not privileged,
where force necessary to terminate the intrusion, and demand is made (unless futile)
2. Deadly force only where life is in danger
3. No privilege to expel an intruder if to do so would expose him to greater danger
LEGAL AUTHORITY:
1. Felony
a. If police officer has a reasonable ground to believe that a felony has been
committed and that the person he arrests has committed it, even if no felony
has in fact been committed
b. Private Citizen privileges only if the felony has in fact been committed or a
reasonable belief exists that the person he arrests committed it, only if a
felony has in fact been committed
2. Misdemeanor
a. A police office is privileged to arrest if a breach of peach exists, and that the
∆ committed the offense in the party’s presence
b. A private citizen is privileged to arrest if a breach of peace exists, a
misdemeanor was actually committed and the ∆ committed the offense, in
party’s presence.
3. Force must be reasonable. Deadly force is allowed if the person poses an imminent
threat to society or the officer.
Negligence
A ∆ may be liable to ∏ for negligence if it can be determined that the ∆ owed a duty of care to
the ∏, the ∆ breached that duty, and that the ∏ suffered damage which were actually and
proximately caused by the ∆’s breach.
DUTY
-Act or Actionable Omission by ∆: an act or a willful omission to act when under an
affirmative duty to act.
-Duty of Due Care
a. only element decided by court, others are left for the jury. It’s a 2-step inquiry
1. Whether the ∆ owed a duty of care
2. Scope of Duty
b. General/Default Duty to act as a “reasonable person” would: if the ∆’s conduct creates
a risk of physical harm, the ∆ owes a duty to “do conduct” w/ due care, as a reasonable
person would
1. Objective test—irrelevant that the ∆ thought he was being careful
2. Test reflects moral judgment: not what an ordinary person does, but what an
ordinary person ought to do under relevant circumstances
3. Standard of Care remains same under all circumstances; reasonableness
a. Risk of harm: greater the risk of harm and greater the amount of that
harm, the greater care required (gasoline has a single standard)
b. Emergency: standard is changed but reasonableness is required for
situations under an emergency situation (minority view)
-other states say a separate emergency instructions is
unnecessary
c. Children: adult activity = adult standard, also judged by age,
experience and intelligence
d. Common Carriers: held by a higher standard
e. Experts: measured by a standard in the trade (doctors held by a
national standard unless G.P.)
f. Custom: not considered a standard of care but failure to comply may
be evidence of negligence
*Palsgraf: To whom is duty owed?
i. Cadozo View—only in the foreseeable Zone of danger (Majority)
Foreseeability—Cardoza in palsgraf
-Criminal actions of 3rd parties are not foreseeable, unless
-Independent unforeseeable intervening act is the only
thing that can break the chain of actual causation
-Rescuer Doctrine; danger invites rescue—had it not been
for the negligent product/action which caused the accident, the
rescuer may not have been injured or the injury of the victim
would not have been increased by the rescuer
CAUSE
Actual Cause (“cause in fact”): “but for” had it not been for ∆’s act, the injury would
not have resulted
1. Concurrent: when separate negligent acts concur and ∏ would not have
been injured but for the concurrence—but one act may be non-
tortious act of god.
2. Joint Tortfeasors:several ∆’s jointly engaged in negligent conduct—
each ∆ liable even though one may have inflicted the injury
3. Successive tortfeasors: ∆s acting entirely independent but whose acts
have caused successive impacts to ∏ resulting in a single indivisible
injury to ∏--tortfeasors must attempt to disprove potential
responsibility
-Substantial Factor Test:
1. used if 2 ∆s’ acts would have been sufficient to cause the injury, both
would be a substantial factor
2. Alternative Liability: Summers v. Tice—insufficient facts as to which
of several ∆s caused the injury, both couldn’t but one could have
caused it, the burden of proof shifts to each ∆ to show not
negligent or the ∆s are jointly and severally liable
Proximate Cause (“scope of liability”): “who should bear the risk of loss” w/ a ∆ who
has been negligent and who has actually caused damage to the ∏, is there a policy
reason why the ∆ should be relieved of liability for this damage?”
1. Direct Causation (domino theory)—act of ∆ caused damages to ∏ w/o an
intervening act.
a) Majority hold ∆ liable only for foreseeable results of his negligent
act
b) Minority hold ∆ liable for all directly caused results
-Exception to Majority Rule: Thin Skulled ∏
Rule/Eggshell/Pre-existing Condition—all courts hold ∆ liable
for full extend to ∏’s injuries.
3. Analyze each item of damage separately if some cause is direct and some
are indirect
4. 2 types of intervening causes:
a) Dependent: Normal response to stimulus created by ∆’s act
1) Foreseeable: 4 types:
i. Rescue Forces--∆ liable for aggravated injuries
caused by rescuer to ∏
ii. Reaction Forces: ∆’s negligence causes a
foreseeable reaction
iii. Checking Forces: Negligent treatment of
∏(watch out for malicious treatment and
remember, negligence is foreseeable)
iv. Escape Forces: injuries in attempts to mitigate
harm or escape
b) Independent: Abnormal response to stimulus created by ∆’s
negligence. (An act of God, animal or 3rd person that is not caused by
∆’s negligence, but acts on the stage created by the ∆’s negligence)
1) Foreseeable: The fact that the intervening force was not
reasonably foreseeable does not excuse ∆ from liability as
long as result was foreseeable:
i. Acts of God
ii. Animals
iii. 3rd person’s Negligent Conduct
2) Unforeseeable Superseding cause
i. Unforeseeable criminal acts
ii. Unforeseeable acts of 3rd person; abnormal
rescue
iv. Exception—foreseeable results doctrine
(Gibson v. Garcia)
**Cardozo views liability in the form of duty--∆ argument
**Andrews views it as one of causation--∏ argument
**Must incorporate analysis of Palsgraf from duty in w/ causation analysis.
DAMAGES
1. General Damages: covers damages deemed inherent in the injury itself;
pain & suffering, disability or disfigurement (past, present and future for all)
2. Special Damages: all economic losses and expenses—medical bills, lost
wages or business profits, cost of hiring household help, etc…
3. Punitive Damages: NO Recovery in Negligent action—only in Intentional
4. Loss of Consortium: Majority require complete loss for a definite period of
time (companionship and intercourse between spouses). Minority extend to
parent/child.
5. Avoidable Consequence Rule: ∏ must act reasonably to mitigate damages--
If a ∏ claims permanent injury, he must do a mitigating surgery—a
reasonable person would do a simple surgery to avert permanent injury.
6. Collateral Source Rule: that a ∆ cannot tell jury that you already
have a insurance which you paid by yourself and has already paid you a
certain amount in order to decrease ∆’s damages owed. Also ∆ cannot
use the aggregate of the discounted medical bills as opposed the whole
regular medical bill amount
Except by statute, it does not apply against public entities or
medical mal practice
7. Multiple ∆ issues:
a) Joint and Several Liability: if 2 ∆s act in concert (injury divisible or
indivisible) or independently, each is liable for ∏’s entire damages
incurred
b) Joint & Several means ∏ may elect to sue both jointly or
alternatively, each tortfeasor may be sued severally and held liable
for all damages caused—one ∆ cannot compel ∏ to join other in as
parties in action.
8. Contributions: each ∆ is liable for the share of the other ∆ but may have an
action to recover against other ∆ the amount paid for him
-Additor vs. remittitor: when judge decides there is no way a jury could
come to such a conclusion and applies an additor (increase of award) or
remittitor (deduction in award)
Joint Tortfeasors (more than one ∆ liable for the same tort)
Writing Checklist:
1. Are the facts dealing with direct causation or indirect causation?
2. If direct, determine whether the result was unforeseeable and, if so, whether the Thin
Skulled ∏ is applicable.
3. If indirect, then an intervening act has come into play, is it dependent or
independent?
4. If dependent, then normally liability unless unforeseeable results.
5. If dependent, then were the results foreseeable (argue for liability) or unforeseeable
(argue for no liability but beware of foreseeable results doctrine.
6. **You must incorporate analysis of Palsgraf from duty in with your causation
analysis. Remember, Cardozo views liability in the form of duty (∆ argument) while
Andrews views it as one of causation (∏ argument).
SURVIVAL
1. Common Law: No cause of action existed
2. Modernly: Most courts allow a cause of action for injuries to the person and property
to survive the death, some allow for pain and suffering (same items of damages are
recoverable as in a normal personal injury case, but are cut off at time of death)
3. If victim dies instantaneously: No action will lie for pain and suffering. However,
property losses are recoverable.
DEFENSES
-∏’s Conduct
1. Contributory Negligence: conduct on the part of the ∏ that falls below the standard to
which he should conform for his own protection, and which is legally contributing cause
in addition to the negligence of the ∆ in bringing about the ∏ harm.
-at CL it acted as a complete bar to recovery by the ∏ for any contributory
negligence.
2. Comparative Negligence: allocates responsibility between the ∏ and ∆ based on relative
negligence
-the reduction of the damages to be recovered by the negligent ∏ in proportion to his
fault
-abrogates implied assumption of risk
3. Last Clear Chance Doctrine: a party who has the last chance to avoid injury to another,
but negligently fails to do so, is liable for damages to the other, even if the other party
was initially negligent.
4. Exculpatory Clause: a contractual provision relieving a party from any liability resulting
from a negligent or wrongful act.
5. Assumption of Risk: the act or an instance of a prospective ∏’s taking on the risk of loss,
injury or damage. Risk is not assumed when a person has no reasonable alternative but to
encounter a known danger.
a. Express: still valid more of contractual issue rather than a tort as there is a written
agreement
b. Implied
1) Primary assumption of risk: ∆ was not negligent b/c he either owed no duty or
did not breach any duty (common jerking/lurching of a train by operator)
2) Secondary assumption of risk; an affirmative defense
i) Reasonable (pure) assumption—father rushes in a burning building to
save son—unfair doctrine
ii) Unreasonable (qualified) assumption—father rushes to save his
favorite hat—comparative negligence covers this already
Statute of Limitations
-for medical malpractice statute of limitations may be tolled until the ∏ discovers or
should have discovered the injury
-2 years for personal injury
-statute begins to run at the time of injury or when injury discovered.
Immunities: Extinguishes any liability of ∆ based upon his status
1. Families:
a. Spouses:
-Common Law: absolute immunity between spouses
-Modernly: most all jurisdictions have rejected interspousal immunity; some in
intentional torts only but others have abolished all intentional and
negligent torts
-Immunity not applicable under Respondeat Superior where a spouse injures his
spouse while under the scope of employment.
-spouses may sue for property damage but not for personal injury.
b. Parent/Child:
-Common Law—no immunity
-Early American History—immunity for personal torts but not property torts
-MODERNLY: restricts or rejects parent/child immunity to negligence but
allowed to sue for willful torts
-some states have abolished immunity only if liability insurance exists so there is
“no threat to family harmony.”
-child not permitted to sue mother for injuries caused by car accident during
child’s minority
2. Charities: nongovernmental charitable institutions are liable for their own negligence and the
negligence of their employees—this as an old rule to promote charities but today it’s
a huge business with each having insurances and assets.
3. Employer Immunity
4. State and Local Governments:
a. Common Law: state (everything public) was immune from tort liability, however, there
was no immunity for “proprietary or private functions” (gas, water, electric, pub.
Halls)
b. Modernly—many have abolished sovereign immunity; governmental entities are not
immune from tort liability (school dist.)
-Federal Torts Claim Act abolishes tort immunity for negligence plus most
intentional torts by federal officers or investigators, HOWEVER,
immunity retained for other intentional or strict liability and
“discretionary” acts by government employees; park ranger releasing a ∏ who
gets hit by a car is discretionary
-Feres Doctrine; part of FTCA judicially created to deny ∏’s in armed forces
from recovery from government during or incident to service
-a city is immune from liability for the negligent failure to provide police
protection; sovereign immunity
-where a municipality has assumed the duty to protect an individual, they may be
found liable
5. The United States: Executive branch, judges and legislature in high-ranking positions have
complete immunity
-Lower ranking positions; immune only in claims of negligence BUT no
immunity for ministerial functions
-Discretionary functions; immunity if acting in good faith
6. Public Officers: discretionary conduct of government agents acting within the scope of their
authority are protected by the discretionary function exception to the Federal Torts
Claims Act.
VICARIOUS LIABILITY
1. Respondeat Superior (always fact-based, not a legal issue); public policy demands E
should bear the risk of loss and E is liable for e’s tortious acts where the E caused dangers
at or related to work (fumes at work), even if e was mere “going to and coming from
work,” and exception to RS
-E may also be liable for e’s mere detour as opposed to frolic, by tending to E’s work
-master who borrows another’s servant will be vicariously liable for the torts of that
servant
2. Independent Contractors: E is not liable for the torts of his IC unless;
a. Inherently dangerous activities (beware of strict liability)
b. Non-delegable duties (maintain roads in good repair, maintain automobile,
maintain public premises)
c. R2 414: “One who entrusts work to an IC, but who retains the control of any part
of the work, is subject to liability for physical harm to others for whose safety the
E owes a duty to exercise reasonable care.”
d. Collateral Negligence Rule: E is only responsible for the risks which are inherent
in the work, not for the collateral negligence of the IC.
3. Enterprise Liability/Joint Enterprise (always on test): a ∆ is not vicariously liable for the
negligence of another under a theory of joint venture unless the joint venture was
motivated by profit.
a. Four elements of Enterprise Liability
1) an agreement, express or implied, among the members of the group
2) a common purpose to be carried out by the group
3) a community of pecuniary interest in that purpose, among members,
and
4) an equal right to a voice in the direction of the enterprise, which gives
an equal right of control
4. Bailments: Generally involve no vicarious liability, unless lack of due care shown on the
part of bailor.
-mostly in car situations; rental car agency is liable for damages caused to another with
their rental car by an individual who had not rented that vehicle.
1) Negligent entrustment may still apply
5. Imputed Contributory Negligence: contributory negligence may not be imputed to a
passenger riding in her own automobile without the finding of either a master-servant
relationship or a finding of joint enterprise.
6. Parent/Child: A parent is not vicariously liable for the tortious conduct of the child at
common law. However, most states, by statute, make parents liable for the willful and
intentional torts of their minor children up to a certain dollar amount
CAVEAT: If the related party is not vicariously liable, he may be liable for his own
negligence (e.g., negligent selection of IC, negligent entrustment of automobile, negligent
supervision of child)
Strict Liability: liability without fault—liability that does not depend on the actual negligence or
intent to harm, but that is based on the breach of an absolute duty to make something safe.
1. Animals: the owner of an animal known to the owner to be vicious is strictly liable for
damage caused by the animal—contributory negligence is not a defense to strict liability.
-ultra hazardous only on things like teeth, size, claws, poison etc…their fur, feces don’t
make them ultra hazardous! What makes them ultra hazardous?
a) Domestic Animals—one is strictly liable for injuries caused by a domestic
animal (dogs/cats etc…) unless the ∆ has “scienter” or knowledge of
the dangerous propensities of the animal, however after one bit, the
owner is presumed to have knowledge of the dangerous propensities
(one-bite rule)
1) The possessor is liable only for the injuries attributable to the animal’s
known dangerous propensity
2) Compare – normally dangerous domestic animals. The possessor of a
domestic animal belonging to a class of animals that normally has
dangerous propensities (eg., bull) is not strictly liable for
injuries caused by that animal’s normal dangerous propensity.
b) Wild Animals—a possessor is subject to liability to another for harm done by
the animal to the other, his person, land or chattels, although the
possessor has exercised the utmost care to confine the animal, or otherwise
prevent it from doing harm (non-delegable duty)
i) liability limited to harm that results from a dangerous propensity that is
characteristic of wild animals of that class, or of which the possessor
knows or has reason to know
ii) strict liability does NOT apply where the animals is under a public
duty (zoo) or under transport by a common carrier
c) Trespassing Livestock – Strict liability for trespass/damages
d) Injuries to 3rd parties
i) Licensees & invitees injured by wild or abnormally dangerous
domestic animals may recover in strict liability
ii) Trespassers may not generally recover in strict liability for such
animal-inflicted injuries. They may, however, recover in
negligence where the landowner knows of their presence and
fails to post warnings
(1) Strict liability recovery does apply even to trespassers fro
injuries inflicted by vicious dogs
2. Ultrahazardous/Abnormal Dangerous Activities: even w/o fault, ∆s must pay for damages
caused by abnormally dangerous activities;
a. Ryland v. Fletcher held that a person who brings something onto his land that
involves a non-natural use of the land and is likely to cause substantial damage if
it escapes will be strictly liable if it in fact escapes and causes harm
b. Ultra-hazardous (1st Restatement) involves a risk of serious harm to the persons
or property of others, which cannot be eliminated even by due care, which is not
a matter of common usage (utility v. risk) (blasting, drilling fumigating)
c. One who maintains an abnormally dangerous condition or activity (2nd
Restatement) on his or her premises , or engages in an activity that involves a
high risk of harm to the persons or property of others may be liable for the harm
it causes even though reasonable care to prevent such harm have been exercised.
(crop dusting, transporting a large quantity of highly flammable chemicals in
one’s auto)
1) Factors to consider:
a) the risk of harm is great (no ultra hazard if dynamite doesn’t
explode)
b) the harm which could materialize is great
c) any damage could not have been prevented with the exercise of
due care
d) the activity was not one of common usage
e) the activity was inappropriate to the place in which it took place,
and
f) the value to the community of the activity is not great compared
to the unavoidable risk.
d. A strict liability action requires a prima facie showing that ∆ breached an
absolute duty to make safe
e. Duty owed to foreseeable ∏’s and to the results from the kind of danger to be
anticipated. (Mink Case)
1) Strict liability is limited to the kind of harm, the possibility of which
makes the activity abnormally dangerous
f. Actual cause & proximate cause should be argued. Some courts cut off
proximate cause when the ∏’s own act caused the strict liability harm
g. Damages – Harm to ∏’s persons or property
h. Assumption of the risk may prevent recovery/comparative negligence
3. Limitations on Strict Liability: discharging firearms in a range or the manufacturing and
shipping (as opposed to carrying) of toxic chemicals is not abnormally dangerous.
-not strictly liable for damage which is not within the scope of danger created by
that activity
3) Causation: ∏ will have to establish that the ∆ was the actual cause and
the proximate cause of the injuries. If abnormal use was involved or if
dealer actually knew of danger and fails to warn, the manufacturer will
be relieved of liability. An obvious hazard will not relieve the
manufacturer of liability if the cost of eliminating the hazard is
outweighed by the benefits obtained. In this case, the consumer
expectation test is not used.
2. Product Defects
a. Manufacturing Defect
b. Design Defect
c. Warning Defect
3. Proof
4. Defenses
a. ∏’s conduct
b. Preemption and Other Government Actions
NUISSANCE: An act by ∆ that constitutes a nontrespassory invasion of ∏’s interest in the use
and enjoyment of his land, causing ∏ substantial and unreasonable harm.
1. Private nuisance: Unreasonable interference with possessory interest of an individual in
the use or enjoyment of his land
2. Public nuisance: Unreasonable interference with a right common to the general public in
order to sue. Attorney general sues for public nuisance
3. Special Features:
a. Can be intentional, negligent, or strict liability
1) Watch of issues of trespass and strict liability
2) Remember, when the intrusion is nonphysical (smoke, noise, vibration)
the court will treat it as a nuisance
b. Look for a substantial invasion
c. ∏ must be in actual possession or must have the right to immediate possession
d. Utility v. Risk
e. Coming to the nuisance is not a defense but zoning may be a defense
f. R2 201 & 203: “An entry on land in the possession of another by a possessor of
neighboring land is privileged if the entry is made
1) For the purpose of abating a structure or another condition on the land,
which constitutes a private/public nuisance, and
2) At a reasonable time and in a reasonable manner, and
3) After the possessor upon demand has failed to abate the nuisance, or
without such demand if the actor reasonably believes it to be
impractical or usless”
g. Damages
1) Money damages and/or injunction to abate – beware of equitable defenses
4. Defenses:
DEFAMATION
A. Prima Facie Case: ∏ must prove that the matter was false and defamatory, published
intentionally or negligently by ∆ to a 3rd person, that the 3rd person understood the defamatory
imputations applied to ∏ and ∏ suffered damage as a result of the defamation
1. Special Features:
a. Defamatory: matter must lower ∏’s esteem in the community (Rest 2nd)
1) Fact v. opinion (reasonable person test)
a) MILKOVICH v. LORAIN JOURNAL CO. (1990): The U.S. Supreme
Court held that an opinion that contains false factual assertions is not
entitled to constitutional protection. While the privilege of
fair comment is designed to protect opinions bearing on
public concern, it does not protect any type of statement ,
opinion or otherwise, which is untruthful and states or implies a
factual basis
b. Published intentionally/negligently to 3rd person
1) Facts will normally support element
c. Understood:
1) Defamation per quod: Statements which are only capable of being understood
as defamatory by the use of extrinsic facts
a) Inducement: Extrinsic facts necessary to establish and understand
defamatory meaning
b) Innuendo: Meaning which results from the inducement
c) Colloquium: Defamatory statement that makes no reference to ∏. ∏
has burden to establish that the person to whom the
defamation was published reasonably interpreted it as
referring to ∏
2) Group defamation: Size of group determines cause of action
3) ∏ must be a living human being
d. Damages:
1) Slander: (ear) Special pecuniary damages actually suffered need be proven
unless per se (CLUB). Once specials proven, general damages are
recoverable
a) Special damages means pecuniary losses that flow directly from the
defamation
2) Libel: (eye) If statement is libel on its face (libel per se) special not required
and general damages are presumed
a) Libel per quod-split of jurisdiction
3) Per se: (proof of specials not required and generals presumed)
CLUB
Crime
Loathsome Disease
Unchastity
Buinsess, trade or profession (ie., bad cops or judges)
2. Republisher Liability: Anyone who takes part in the publication may be liable. (beware
of Respondeat Superior)
a. Exception
1) Dissemination unless reason to know of defamation exists
3. Retraction: May limit amount of general damages recoverable
a. No effect on specials
4. Defenses:
a. Consent
b. Truth*
c. Absolute privileges:
1) Judicial proceeding
2) Legislative proceedings
3) Executive – official statements of government officials
4) Husband/Wife
5) Broadcasters (equal time doctrine)
d. Qualified Privileges*: Can be lost if statement was irrelevant, made with malice,
excessive publication, bad faith belief in statement
1) Reports of public proceedings
2) Fair comment
3) Interest of publisher: protection of ∆’s own legitimate interests
4) Interest of others: (warn employer)
5) Common interest: (business dealings with a common pecuniary
interest)
6) Communications to one who may act in public interest: (prevention fo
a crime)
e. Constitutional Privileges*:
1) NEW YORK TIMES: Public official. Actual Malice-knowledge of
its falsity or reckless disregard for its truth or falsity
2) WALKER AND BUTTS: Public Figures
3) HUSTLER MAGAZINE V. FALWELL: Public figure must prove
defamation “actual malice” in order to recover damages fro
intentional infliction of emotional distress
4) GERTZ v. WELCH: Private individual involving matters of public
concern – negligence will suffice. A punitive damage
allegation requires proof of actual malice.
a) DUNN & BRADSTREET v. GREENMOSS BUILDERS:
When the defamatory statement involves a matter of
purely private concern, GERTZ does not apply, and
∏ may therefore recover presumed and punitive
damages according to state law. The courts will look to
the content, form, and context of a publication in order
to determine whether the matter is a public or private
concern.
5) PHILADELPHIA NEWSPAPERS, INC v. HEPPS (1986): Private
∏ in matter of public concern must show statements were
false to collect damages.
6) BARNICKI v. VOPPER (2001): The court held that the 1st
Amendment precludes holding the media civilly liable for
broadcasting a tape of a conversation that was
illegally intercepted and recorded, so long as the media played no role
in the illegal taping an so long as the tape concerned a matter
of public importance.
7) Four possible law suits:
a) Public figure ∏ v. media ∆ - NY Times;
b) Public Figure ∏ v. non-media ∆ - NY Times;
c) Private ∏ v. media ∆ (public concern) – Negligence actual
damages/non-media ∆ (public concern) – Malice
presumed damages – GERTZ
8) Key issues:
a) Is the ∏ a public figure or private person?
b) Is the subject matter a public or private concern?
INVASION OF PRIVACY
A. Gist of this cause of action is the interference with an individual’s “Right to be let alone.”
1. Special features
a. Appropriation of ∏’s name/likeliness:
1) Unjust enrichment through the theft of goodwill – look to
unauthorized use
2) Appropriation is for ∆’s pecuniary benefit
3) Look for a ∆ promoting product/services
MISREPRESENTATION
1. Intention (fraud/deceit): A misrepresentation of an existing material fact made
knowingly, with the intent to induce ∏’s reliance, causing ∏ to justifiably rely to his damage
Special Features
Active concealment is a form of misrepresentation
Scienter is essential for deceit
3) Liability extends to those whom ∆
intended to induce to rely (including all ∏s whom would reasonably
and foreseeably rely) upon
Damages:
(a) Benefit of a bargain: Difference between actual value received and
what would have been received had the representation been true
(majority)
(b) Out-of-Pocket: Difference between what ∏ received and what he
parted with plus reliance damages
(c) Beware of punitive damages
CAVEAT: Beware of K/Remedies crossover
2. Negligent: A false material representation of a
material fact which is made with a lack of due care intended to induce reliance to which
proximately cause ∏’s damage
Special Features:
1) Look for a special business or
personal relationship where it’s one’s business to supply information
for others
a) A contractual relationship can create the duty. If that duty exists,
then the ∆ must act as a reasonable person in making the
representation. If a reasonable person, knowing what ∆ knows,
would not believe the truth of the representation, then ∆ has breached
his duty to ∏ in making the representation
2) Liability extends to those whom ∆
knows the information will be communicated, ie., ∆ must have
contemplated ∏’s reliance
Damages: Out of pocket measure
BUSINESS TORTS
1. Injurious Falsehood (disparagement): The publication of matter derogatory to the ∏’s
title to his property, its quality, business, or personal affairs, calculated to prevent others
from dealing with ∏
a. Special Features
1) ∏ must plead special damages (loss of customers)
2) Matter must be false
3) Competitive privilege allowed
4) Noncompetitive situations require ∆’s honest belief of statement – see
defamation defenses
5) Beware of Defamation
2. Family Relations
1/20/11
Rush v. Commercial Realty Co.: Risk is not assumed when a person has no reasonable
alternative but to encounter a known danger.
Teeters v. Currey: State of Limitations may be tolled until the ∏ discovers that she has
been involved/injured.
Freehe v. Freehe: Spouses are not immune from liability in personal injury cases.
Renko v. McLean: Child not permitted to sue mother for injuries caused by car accident.
Abernathy v. Sisters of St. Mary’s: Nongovernmental charitable institutions are liable for
their own negligence and the negligence of their employees.
1/27/11
Getting all the issues is clearly passing. Doing it well is what makes the higher points.
Issues:
Leased land—land occupier
Bullet piercing hat—battery (no defense to intentional tort). For tort intent does not
matter!
Second shot—assault
Camera breaking from swinging door—trespass to chattel and conversion may be
(punitive comes with intentional torts)
**watch intentional torts—hardly no defense to it.
**Learn to differentiate between criminal law and tort in intents and actual ability.
For multi-state: issue spot as you read and if you think a defense, not it in your
mind. Find the answer which your issues relate to… Never change your mind from
your first choice in multi-state.
Start doing essays now. Follow the call exactly, don’t separate lawsuits if the call says to
discuss both.
2/3/11
Joint venture/enterprise liability; carpooling etc…
Popejoy v. Steinle: family farm purpose or kid’s purpose
Malchose v. Kalfell: if parents wrote kid off on taxes and the car was in parent’s name,
there is an equal right to control—joint enterprise
Smalich v. Westfall: no equal right to control, thus no joint venture and vicarious liability
cannot be imputed.
Strict Liability: by its nature it’s dangerous or likely to escape from your land that you
brought it to (where even a duty cannot control it)…inanimate objects don’t count since
they are harmless without an intervention in inherently themselves.
Rylands v. Fletcher:
Golden v. Amory: unforeseeable act of god cuts the chain of strict liability/causation
Sandy v. Bushey: contributory negligence is not a defense to strict liability, unless it’s
100% stupidity. Playing the dynamite game would amount to assumption of the risk
2/10/11
Cases that we MUST know and put on flashcards:
Palsgraf
Summer v. Tyce
Roland v. Christian
MacPherson v. Buick Motors
Products Liability
2/17/11
Rix v. General Motors Corp.: sellers are strictly liable for manufacturing defects that
reach the consumer without substantial change in the defective condition.
O’Brien v. Muskin: A ∏ must make a prima facie showing of a defective product, based
on the risk-utility analysis.
*Ford Motor v. Mathews: Manufacturers are liable for reasonable, foreseeable, albeit
abnormal (misuse), uses of their products.
Medtronic v. Lohr: The Medical Device Amendments of 1976, a federal statue, does not
preempt a state common-law negligence action against the manufacturer of an allegedly
defective medical device.
Peterson v. Lou Bachrodt Chevrolet Co.: A remote retailer (seller of used cars), who
outside of the original producing and marketing chain, is not subject to strict products
liability.
On the essay: Start w/ neg. then mcpherson v. buick, warranty (exp (almost never
on test) or implied with fitness for those intended (always tested)), strict liability—
design (most likely on test—risk v. utility) or manufacturing defect(less likely on
test).
Whyeth v. Levine: Federal preemptions as to warnings are not applicable to
pharmaceuticals—warning is the floor not the ceiling; a min, not a max and state law
applies to pharmaceuticals.
2/24/11
(new Case from Supreme Court); National Childhood vaccine act of 1986 preempts all
state law, thus no liability for products liability. Not applicable to pharmaceuticals but it
does to vaccines.
Nuisance (is not a tort) is a theory or type of damage; interference with the peaceful,
quiet enjoyment of a land of another, without consent or legal justification.
-intentional, negligent or strict liability
Philadelphia Electric Co. v. Hercules, Inc.: Actions for private nuisance can typically be
brought only by neighboring landowners, and actions for public nuisance can be brought
by members of the public whose general rights have been interfered with.
Morgan v. High Penn Oil: intentional interferences which cause nuisance are actionable
even if the party causing the nuisance is not negligent.
Public v. Private Nuisance; Public nuisances require a public attorney to bring suit for
the public.
Carpenter v. The Double R Cattle Company, Inc.: the doctrine of continued nuisance
allows the nuisance to continue, but aggrieved landowners need not be compensated for
their injuries, if the utility of nuisance is great.
Winget v. Winn-Dixie Stores, Inc.: even lawfully zoned businesses may constitute a
nuisance if they are operated so as to unreasonably interfere with the health or comfort of
neighbors.
Boomer v. Atlantic Cement Co., Inc.: A continued nuisance may be remedied by the
payment of permanent damages, allowing the interfering activity to continue.
Spur Industries Inc. v. Del E. Webb Development Co.: A party “who comes to a
nuisance” may be entitled to an injunction may be obligated to pay damages to the ∆.
3/17/11
DEFAMATION: a false statement communicated to a 3rd party which ruins the
reputation of them
-Libel—have to prove damages
Modernly—libel us any defamation in permanent form
-Slander—damage is presumed
Qualified privilege - can be lost by not telling the truth or making it look like it was
otherwise (need just the facts, no opinions)
Warranty of fitness for intended purpose vs. Warranty for merchantability …same thing?
Not doing what it is supposed to do.
3/31/11
Civil rights actions—(intentional torts) must only intend the act and not the result…just a
volitional act.
Pg 1041
1. criminal prosecution instituted or cont’d by the ∆ against the ∏
2. termination of proceedings in favor of the accused
3. absence of probable cause for the proceeding
4. Malice
5. Damages
Non-suit;
Abuse of process; use of power with improper purpose (actual damages and punitive
damages)
Abuse of Process (tort) vs. Malicious Prosecution (criminal) {not on the bar}
FRAUD (Misprepresentation);
Intentional—false statement communicated to a 3rd party which is intended to,
and does, induce foreseeable, justifiable detrimental reliance. General and
specific damages.
Statements of future is never actionable if it’s not finite or provable like palm readers;
can’t tell the future.
Filing a les pendins one day before close of escrow can be injurious and actionable.
Since it’s an intentional act, punitive damages as well. Valid quiet title action can be
legitimate…ie., a house sold to 2 people at once.
4/11/11
An action will lie in interference with contractual relationships; may sue for expectation
interests. In addition there may be an injunction to prevent you from going elsewhere
until the time period of the contract ends. Punitive damages apply—it was intentional.
REVIEW
Products Liability:
1. Negligence – what would a reasonable manufacturer
would have done; usually a product which wasn’t test
properly. To whom is a duty owed; CL-only to those in
Privity of K vs. modern—any foreseeable end user
(Macpherson vs. ?) Breach is failing to test. Then
Causation and Foreseeability. Damages; general and
special.
2. Breach of Warranty; express (only to those who
read/heard it and relied on it) and implied warranty of
fitness for intended purpose (breach is when it doesn’t
do what it supposed to do).
3. Strict Liability based on breach of manufacturing or
design defect (test is risk vs. utility).
Defenses; misuse of product and ???
Damages: special, general and punitive