Torts II Outline (Zach)

ROGER WILLIAMS UNIVERSITY SCHOOL OF LAW
Torts II
Course Outline
Zachary Pendleton
Spring 2011
Torts Outline keyed to Epstein

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Torts II Outline Z. Pendleton
CONTENTS
Vicarious Liability ........................................................................................................................................................................ 2
Restatements ........................................................................................................................................................................... 2
Cases ........................................................................................................................................................................................ 2
Causation ..................................................................................................................................................................................... 3
Cause in Fact ............................................................................................................................................................................ 3
Toxic Torts Litigation ............................................................................................................................................................ 3
Lost Chance Doctrine ........................................................................................................................................................... 4
Apportionment of Harm to Causes ...................................................................................................................................... 4
Proximate Cause ...................................................................................................................................................................... 4
Ordinary and natural result ................................................................................................................................................. 4
Emergencies ......................................................................................................................................................................... 4
Independent and dependent causes ................................................................................................................................... 5
Intervening/Superseding Cause ........................................................................................................................................... 5
Harm within the risk ................................................................................................................................................................ 7
Restatements ........................................................................................................................................................................... 7
Cases ........................................................................................................................................................................................ 7
Products Liability ....................................................................................................................................................................... 10
Defectively Manufactured Products ...................................................................................................................................... 11
Defectively Designed Products .............................................................................................................................................. 12
Failure to Warn ...................................................................................................................................................................... 12
Plaintiff’s Conduct .................................................................................................................................................................. 13
Federal Preemption ............................................................................................................................................................... 13
Conflict preemption ........................................................................................................................................................... 13
Field preemption ............................................................................................................................................................... 14
Restatements ......................................................................................................................................................................... 14
Cases ...................................................................................................................................................................................... 15
Defamation ................................................................................................................................................................................ 17
False Defamatory Statements............................................................................................................................................ 18
Concerns and Damages the Plaintiff .................................................................................................................................. 18
Publications........................................................................................................................................................................ 19
Libel........................................................................................................................................................................................ 19
Slander ................................................................................................................................................................................... 19
Defenses ................................................................................................................................................................................ 20
Constitutional Privileges ........................................................................................................................................................ 21
Restatements ......................................................................................................................................................................... 22
Cases ...................................................................................................................................................................................... 23
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TORTS II: COURSE OUTLINE
VICARIOUS LIABILITY
R ESPONDEAT S UPERIOR
“Let the master answer”
Makes the employer liable for actions of employees when the actions take place within the scope of the employment
Purpose of Doctrine
Deep pockets of the employer
Generally the employer is more financially capable of covering the loss
Socially expedient to spread among a large group of the community the losses which are inevitable in the
carrying on of industry than to cast the loss upon a few
Efficiency
Imposing vicarious liability may make the employer more likely to monitor employee behavior to
minimize total losses
Limits negligent hiring
Employer Indemnification
Almost all US courts allow employers to recover losses from employees
However, most of the time the employee is unable to cover for the loss or
Employers get insurance to cover damage caused by employee negligence so indemnification cases are rare
Criticism
Common sense is opposed to making one man pay for another man's wrong unless he has actually brought the
wrong to pass
RESTATEMENTS
R ESTATEMENT OF T ORTS (S ECOND ) §427

One who employs an independent contractor to do work involving a special danger to others where the employer
knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to
contemplate when making the K is subject to liability for physical harm caused to such others by the contractors
failure to take reasonable precautions against such dangers
CASES
Ira S. Bushey and Sons Inc, v. US
Drunken sailor turned some wheels on a dry dock and part of the ship and the dock sank. Should the US have to
compensate the dock owner? Were the actions within the scope of employment. This case changed the test for VL
from motive to foreseeability. Employer is liable because the harm was reasonably foreseeable.
Petrovich v. Share Health Plan of Illinois, Inc.
Medical malpractice action for failure to diagnose cancer in a timely manner. Is HMO, health maintenance
organization liable for independent contractor physicians. Rule: Unless the patient knows or should have known
that the physician providing treatment is an independent contractor vicarious liability can attach to an HMO, if
th[pe HMO holds itself out as the provider of care without informing the patients it is given by independent
contractors and if the patient justifiably relied on the conduct by looking to the HMO and not a specific physician.
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CAUSATION
Negligence law includes: Duty, Breach, Cause, Harm. The element of causation is comprised of two concepts (1) cause in
fact and (2) proximate or legal cause.
CAUSE IN FACT
Often considered the simple of the two prongs of causation, but still capable of raising complex issues.
Requires the party with the burden of proof to establish that it is more probably than not that there is a cause and effect
relationship between an actor’s negligent conduct and the harm suffered. This is why it is also known as “actual cause” or
“factual cause”.
To determine whether or not cause in fact has been established, courts use two primary tests:
The “but for” or sine qua non test
This test much more common, but some cases only are amenable to the second test
Note: most cases cannot be attributed to a single cause that brings about the harm to the plaintiff. View
all the causes in relation to each other to determine whether the plaintiff can establish the liability of the
defendant.
The “substantial factor” test
If more than one defendant is responsible for the damage, the plaintiff only needs to establish that the defendants are
responsible. The court will then apportion the responsibility.
Plaintiff typically has three burdens in negligence cases (generally speaking)
Pleading sufficient facts in the complaint to state a cause of action
Producing sufficient evidence at trial to avoid a directed verdict
Ultimately persuading the trier of facts of the merits of the case by a preponderance of the evidence
At trial, the plaintiff may satisfy the burdens of production and persuasion by introducing direct or circumstantial evidence
of critical facts. Sometimes the plaintiff may use res ipsa loqiur if they are unable to offer requisite proof which will shift the
burden to the defendant (only when it would be unfair or unjust not to
TOXIC TORTS LITIGATION

See the Agent Orange Litigation
Toxic torts causation requirements
Substance- can cause the injury
Source- defendant was actually the source of the substance
Exposure - plaintiff was in fact exposed to the substance in a way that caused the disease
Class action. Main class settled. Individual suits were dismissed. Evidence did not support proof of a causal connection
between dioxin and the harm.
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LOST CHANCE DOCTRINE
Injury sustained by a patient whose medical providers negligently deprived the patient of a chance to survive or recover
from a health problem, or where the malpractice lessened the effectiveness of treatment or increased the risk of an
unfavorable outcome to the patient. It allows a plaintiff to recover in proportion to her chance of survival prior to the
allegedly negligent treatment. To prove loss of chance, the plaintiff must show: that the decedent had in fact been deprived
of a chance for successful treatment and that the decreased chance for successful treatment more likely than not resulted
from the defendant's negligence.
Disallowing tort recovery in medical malpractice actions on the theory that a patient was already too ill to survive
or recover may operate as a disincentive on the part of the health care providers to administer quality medical
care to critically ill or injured patients.
APPORTIONMENT OF HARM TO CAUSES
Damages for harm are to be apportioned among two or more causes where
There are distinct harms
There is a reasonable basis for determining the contribution of each cause to a single harm
Damages for any other harm cannot be apportioned among two or more causes.
PROXIMATE CAUSE
Used to limit the extent of liability. Even when a defendant has been negligent and even when that negligence was a factual
cause of the plaintiff’s harm, there is a poin where imposing liability is inapprorpirate, unfair, or unjust. Eventually, the
defendant’s connection to the plaintiff’s harm is so attenuated in a spatial or temporal sense or because of intervining
forces that it is appropriate to cut off liability; policy consideration may also dictate such a result. That is how proximate
cause became known as “legal cause.”
“It is always to be determined on the facts of each case upon mixed considerations of logic, common sense, justice, policy
and precedent.” Courts create a line, uncertain and wavering, changing from case to case, beyond which liability may not
reach.
The most commonly encountered problem in proximate cause is liability for unforeseen consequences. Not to cut off
liability would allow damages out of all proportion to the degree of fault of the defendant.
Note that the majority courts limit liability to consequences reasonably foreseeable at the time, whereas some
courts follow liability to unforeseeable consequences directly caused.
Even direct causation courts cut off damages after a superseding cause.
Palsgraf is generally said to stand for the proposition that there is no liability to an unforeseeable plaintiff. Furthermore,
rescuers can recover against the defendant under this logic “danger invites rescue. The cry of distress is the summons to
relief. The law does not ignore these reactions of the mind in tracing to its consequences. It recognizes them as normal. It
places their effects within the range of the natural and probably. The wrong that imperils life is a wrong to the imperiled
victim; it is also a wrong to his rescuer.” (See Wagner v. International Ry.)
Even if the exact chain of circumstances could not be foreseen the defendant may be liable if injury is a foreseeable result
(even when happening in an unforeseeable manner).
ORDINARY AND NATURAL RESULT

Harm must be foreseeable in order to impose liability
If the harm is not the natural consequence of the negligent conduct then there is no proximate cause
EMERGENCIES
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If a defendant negligently places plaintiff under reasonable apprehension of personal physical injury and plaintiff, in a
reasonable effort to escape sustains physical injury, a right of action arises to recover for the physical injury, a right of
action arises to recover for the physical injury and the mental disorder naturally incident to its occurrence.
If the plaintiff acts in good faith to minimize the risk of loss from a dangerous situation of the defendant's making, those
actions do not sever causal connection.
INDEPENDENT AND DEPENDENT CAUSES

Where each of two successive acts is sufficient to harm the plaintiff but the plaintiff is exposed to the second cause only
because of the negligence in the first.
Second defendant is liable only for incremental damages
INTERVENING /SUPERSEDING CAUSE

In many negligence cases, the plaintiff’s injury follows as an immediate consequences of the defendant’s negligence.
Sometimes, however, there is a considerable separation between the defendant’s negligent act or omission and the
plaintiff’s injury. Other events which muddy the causal picture may occur in the intervening period.
The key question is whether they should be regarded as relieving the defendant of liability, despite the fact that
the defendant’s negligence was a cause of the plaintiff’s injury, or whether the defendant should be held liable,
despite the fact that the later even contributed in some way to the injury.
The Restatement states that an intervening cause does not excuse and only a superseding cause excuses.
“On its face, the problem is one of whether the defendant is to be held liable for an injury to which the defendant has in
fact made a substantial contribution, when it is brought about by a later cause of independent origin, for which the
defendant is not responsible” - Prosser
Intervening Cause: when a later arising cause is to be anticipated so that it does not excuse liability.
Superseding cause: when the later arising cause is not to be anticipated so that liability is not found.
The fact that the original act of negligence did not cause the subsequent event to occur is not always enough to lead to the
conclusion that the subsequent even is a superseding cause. Conversely, the fact that the original act of negligence was the
cause in fact of the subsequent event is not always enough to lead to the conclusion that the subsequent event is not a
superseding cause.
The defendant may be held not liable even though the the subsequent act would not have occurred but for her negligence
(or may be held liable even though negligence did not cause the subsequent event). The key question is whether the
intervening cause should have been anticipated by the defendant.
Neither a presence or absence of a causal connection between the negligent act and the later event is dispositive
of the question of whether the defendant should be held liable.
What is important is whether the intervening even is foreseeable as a ordinary, normal consequence of
the defendant’s act or omission.
If the intervening cause is negligent and thus unforeseeable the defendant is not liable.
A plaintiff who is somewhat at fault in the accident is not barred from recovering completely, but a negligent plaintiff may
only recover a reduced amount of damages. Most jurisdictions hold that the question of whether the plaintiff’s fault was a
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superseding cause, the sole cause of her or his own loss, must still be asked notwithstanding the introduction of a
comparative fault system.
3 RD PARTY INTERVENTION
Last wrongdoer
Traditionally the defendant was only liable if he was the last wrongdoer whose conduct contributed to the harm.
Infants and incompetents
Do not break the chain of causation unless the law regards their action as tortious
Deliberate or malicious
If the acts of the intervening party are deliberate or malicious they negate causal connection
The free deliberate and informed act or omission intended to exploit the situation created by defendant
negates any causal connection
Restatement
The act of a third person in committing an intentional tort or crime is a SUPERSEDING cause of harm to another
resulting therefrom, although the actor's negligent conduct created a situation which afforded an opportunity to the
third person to commit such a tort or crime unless the actor at the time of his negligence realized or should have
realized the likelihood that such a situation might be created and that a third person might avail himself of the
opportunity to commit such a tort or crime
Translation: intentional 3rd party conduct supersedes/negates liability unless the intervention is reasonably
foreseeable.
Third restatement
When a force of nature or an independent act is also a factual cause of physical harm, an actor's liability is limited to
those harms that result from the risks that made the actor's conduct tortious.
R ESCUE D OCTRINE
It is foreseeable that a rescuer will come to the aid of an imperiled person
Tortfeasor owes a duty to the rescuer
Same duty owed to the person he imperiled
Rescue doctrine negates the presumption that the rescuer assumed the risk of injury
Even though the rescuer knows the situation is dangerous
Unless the rescuer acts unreasonably
Rescuer status
Defendant was negligent to the person rescued
That negligence caused the peril
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Peril or appearance of peril was imminent
Reasonably prudent person would have concluded the peril existed
Rescuer acted with reasonable care
HARM WITHIN THE RISK

Risk to class of which plaintiff is a member
If the actors conduct creates a recognizable risk of harm only to a particular class of persons, the fact that it causes
harm to a person of a different class, to whom the actor COULD NOT have anticipated injury does not render the
actor liable to persons so injured.
An actor's liability is limited to those physical harms that result from the risks that made the actor's conduct tortious.
RESTATEMENTS
R ESTATEMENT (S ECOND ) OF T ORTS §432

(1) Except as stated in Subsection (2), the actor's negligent conduct is not a substantial factor in bringing about harm to
another if the harm would have been sustained even if the actor had not been negligent.
(2) If two forces are actively operating, one because of the actor's negligence, the other not because of any misconduct on
his part, and each of itself is sufficient to bring about harm to another, the actor's negligence may be found to be a
substantial factor in bringing it about.

The following considerations are in themselves or in combination with one another important in determining whether the
actor's conduct is a substantial factor in bringing about harm to another:
(a) the number of other factors which contribute in producing the harm and the extent of the effect which they
have in producing it;
(b) whether the actor's conduct has created a force or series of forces which are in continuous and active
operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces for
which the actor is not responsible;
(c) lapse of time.
CASES
New York Central RR v. Grimstad
Captain of the covered barge fell out of the boat into the water and drowned. Wife files suit for negligence. Claims
failure to equip the barge with proper life preservers. Court claims life preservers are for use before getting into
the water. Court holds that life buoys are covered by the claim. The proximate cause of death was his falling in.
This did not occur due to negligence on the part of either party. Whether he would have survived had there been a
life buoy is only speculation and conjecture. Not a cause in fact of his death. Court erred in denying motion to
dismiss.
Zuchowicz v. United States
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Claim to have developed fatal lung disease due to Dr's prescription of an overdose of Danocrine District court
found in favor of plaintiff. When a negative side effect is demonstrated to be the result of a drug and the drug was
wrongly prescribed in an unapproved and excessive dosage, the plaintiff has generally shown enough to permit the
finder of fact to conclude that the excessive dosage was a substantial factor in producing the harm. There is also a
direct causal link in this case between the overdose and the disease.
Reynolds v. Texas
Where the negligence of the defendant greatly multiplies the chances of accident to the plaintiff and is of a
character naturally leading to its occurrence, the mere possibility that it might have happened without the
negligence is not sufficient to break the chain of cause and effect between the negligence and the injury
General Electric Co v. Joiner
Plaintiff's theory of liability was that exposure to PCBS promoted his development of lung cancer. However there
was not a sufficient link between exposure to PCB's and small cell lung cancer. Expert opinion not sufficient to
show causal link.
Doe v. Ortho-Clinical Diagnostics
Claim that a drug administered to the plaintiff's mother during pregnancy caused the plaintiff's autism. Claim
required general causation- the product was of a type that could have caused the injuries and specific causation-
there was an actual causal connection between the product and the injuries. Show that it could, then show that it
did.
Herskovits v. Group Health Cooperative
Dr. failed to diagnose cancer in a timely matter. Plaintiff can show reduction in chance for survival but cannot show
that decedent would have lived to normal life expectancy had he been diagnosed sooner. Dr. owed the patient a
duty of care, which he failed to exercise in diagnosing the patient. The failure to exercise his duty increased the
harm, therefore he is liable. Damages should be awarded to the injured party based only on damages caused
directly by the premature death such as lost earnings and medical expenses.
Kingston v. Chicago & NW Ry
Fire set by defendant's locomotive was a proximate cause of damage to plaintiff's property. Another fire of an
unknown origin was also a proximate cause in the destruction of plaintiff's property. Each fire would have caused
the damage alone without uniting with the other fire. "where two parties are the cause of the injury they are both
responsible for the whole of the damages. Defendant is liable.
Summers v. Tice
Three guys went hunting. Two of them were really dumb, and turned around and both shot at the same bird,
which just happened to be in the same direction the third hunter was in. Instead of staying in a line and shooting
only line of sight and not at each other, they missed the bird and shot their friend instead. Them shooting him was
a direct and proximate cause of his injury. Burden shifts to idiot defendants to prove they did not shoot him. They
failed.
Skipworth v. Lead Industries Association
Child was hospitalized for lead poisoning 3 times. Filed action against lead pigment manufacturers, even though
they could not identify which manufacturer's paint she ingested. Market share liability- in Sindell court held the
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plaintiff need not identify a particular manufacturer, manufacturers of an identical product are liable in shares
proportional to share of the market at the time of ingestion, regardless of actual causation. Did not adopt this test
because the relevant time period is more extensive and manufacturers that most likely didn’t manufacture the
paint ingested would be held liable.
Ryan v. New York Central RR
Railroad is supposed to take reasonable care to prevent the spread of fire. The reason the damages spread are not
an immediate result of the defendant's negligence. Enforcing liability here would subject the defendant to liability
which no level of care could avoid. Doesn't make sense to require the railroad to get insurance for a non
foreseeable event.
Berry v. Sugar Notch Borough
Plaintiff was speeding. Tree blew over, crushed the car and injured the plaintiff. Driving faster than 8 mph does not
bar right of recovery. Speed was not the cause of the accident. Even though he violated a statute, in order for the
violation to bar recovery, the violation must be the proximate cause of the injury.
Brower v. New York Central & H.R.R.
Rule: Third party actions do not affect liability if such acts are not reasonably foreseeable. Train loaded with goods
hit plaintiff's wagon. Third parties stole the plaintiff's goods. Defendant had a guard to protect goods on the train.
Plaintiff sought recovery for stolen goods. Court held that the accident was the proximate cause of the stolen
goods. If the defendant thought it was necessary to protect its own belongings from thieves, it is reasonable for
the defendant to believe plaintiff's goods will be stolen also. But for the accident, the goods would not have been
stolen.
Wagner v. International Ry.
As International Ry. Co.’s (Defendant’s) train turned a curve, a violent lurch threw Plaintiff’s cousin out of the car.
Wagner (Plaintiff) got out and walked 445 feet until he arrived at the bridge where he thought he would find his
cousin’s body. Plaintiff lost his footing in the dark, fell from the structure, and was injured. Synopsis of Rule of Law.
A tortfeasor is liable to all those who are injured in a reasonable rescue attempt. A tortfeasor will not be held liable
for injuries suffered by a rescuer if the rescue efforts were unreasonable.
In Re Polemis & Furness, Withy & Co.
Boat was carrying petrol. Plank fell into it and caused an explosion. Owners claimed value from charterers alleging
loss was due to negligence. Whether or not the damage is foreseeable is irrelevant if the negligence is the direct
cause of the harm, whether or not the harm is foreseeable.
Palsgraf v. Long Island RR
Defendant helped push a man onto a train. Dropped his package of fireworks which exploded. Scale fell and
injured the plaintiff. Negligence is based on the foreseeability of the harm between the parties. Dissent- each
person owes an absolute duty of care and must refrain from acts foreseeable or not that unreasonably threaten
the safety of others.
Marshall v. Nugent
Truck driver forced a car off the road. Offered to help pull him onto the road. Another driver saw that his way was
blocked, and tied to avoid a collision. Hit a fence the fence hit the plaintiff and injured him. Courts want to confine
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the liability of a negligent actor to those harmful consequences which result from the operation of the risk or of a
risk the foreseeability of which rendered the defendant's conduct negligent.
Overseas Tank ship Ltd v. Mort's Dock and Engineering Co
Appellants carelessly discharged oil into the harbor. Oil ended up in plaintiff's wharf. Plaintiff would not allow
burning or welding until he knew more. Found out the oil was not flammable, instructed his men to exercise extra
caution to ensure no flammable material fell into the oil. Oil caught fire. A man is responsible for the probable
consequences of his actions.
Virden v. Betts and Beer Construction Co.
School maintenance man fell from the top of a ladder he was standing on and suffered severe injury. Sued the
contractors for constructing a falling ceiling. Rule: Conduct constitutes actionable negligence if it is also the
proximate cause of the injury.
Herbert v. Enos
Plaintiff was watering flowers on defendant's property and received a shock. Claimed the water was faultily
repaired and caused the electrical current. The injury was highly extraordinary and "so remote in everyday life" as
to preclude a finding that the alleged negligence was a legal cause of the injuries.
PRODUCTS LIABILITY
Products liability law governs the activities of the full panoply of manufacturers, distributors, and sellers who have placed a
product in the stream of commerce and therefore are no longer in possession of it at the time that it causes damage
First major debate was whether to allow the cases at all
Privity
Prevented the injured party from suing the remote supplier of the product in question
Injured party could only sue the immediate vender
Erosion of privity
Exceptions allowed for products known to hold hidden dangers which manifested themselves in ordinary
use.
MacPherson
Rejected privity by imposing liability for negligence on a remote seller
Escola
Strict liability should govern manufacturer liability
Responsibility should be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective
products that reach the market
Place responsibility for whatever injury defective products may cause upon the manufacturer even if he is NOT negligent in
the manufacture of the product if responsible for it reaching the market
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Services are not products: pharmacist filling a prescription is not a proper defendant because she is performing a service
not making a sale of a product.
DEFECTIVELY MANUFACTURED PRODUCTS

Typically (but not exclusively) a suit brought against the product’s manufacturer. Restatement §402(a) says that it can be
brought against the seller if the seller is engaged of the business of selling the product.
This applies both to sellers of products (if a plaintiff is injured before purchasing the product, the seller may still be
liable) and to the leasers of products.
There is a strict liability standard on defectively manufactured products, because the manufacturer or seller of a product is
in the best position to make the product safe and to insure against the consequences of loss caused by the product.
Most products liability cases involve products that cause harm in a fairly direct ant tangible manner (such as exploding soda
bottles, malfunctioning motor vehicles, etc.).
However, sometimes there can be some doubt about whether the thing that caused harm to the plaintiff is a
“product” for the purposes of strict products liability.
For example: a book on mushrooms that leads a plaintiff to eat a poisonus mushroom, is not considered a
product for the purposes of product liability. However, a chart leading to an airplane crash may be a
product, because the chart is a highly technical tool.
Animals that injure their owners may or may not be a product, depending on the jurisdiction. It may not
be because an animal is not in a fixed state when it leaves the sellers control; it changes continually.
In a manufacturing defect case, the plaintiff must prove three things:
That the product was defective
That it was defective when it left the defendant’s hands (manufacturer or seller)
That the defect in the product was the proximate cause of the harm that the plaintiff suffered.
The product must also be expected to and does reach the user or consumer without substantial change in the condition in
which it is sold. Usually, manufacturing defects are established by expert evidence (and contradicted often by defense’s
expert testimony).
This can only happen if the product is still in existence—often it is not. Most people don’t keep the glass from an
exploding soda bottle or the bottle of shampoo that burned them. The remains of the products would be very
valuable for expert analysis.
Manners of proving a product defective (Restatement (Third) of Torts: Products Liability §3):
Direct evidence—usually using expert witnesses
Circumstantial evidence (example: when a car catches fire, showing that the car is relatively new
may evidence an product defect).
By eliminating all other likely causes of failure, even if he cannot positively identify what the
defect is or how it arose.
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Plaintiff is then forced to prove the existence of a defect by the inference from the fact that it failed (very similar to
res ipsa loquitor)
This is different from the res ipsa loquitor inference, however, because it is not an inference on the
negligence on the part of the defendant, but rather an inference that the product was defective.
This inference can only be made when there are no other plausible explanations that are consistent with
the proven facts.
DEFECTIVELY DESIGNED PRODUCTS

Design defects are different from defective manufacturer because they were made in the manner the manufacturer
intended. If such a product causes harm to the plaintiff, his complaint is about the way the product was designed, not how
it was made.
Thirty-seven states recognize the Restatement (second) of Torts, §402A approach has a core question, which is whether the
product was “in a defective condition” when sold.
Two main tests have developed to determine whether a product is defective because of the way it was designed:
The consumer expectations test
Does not focus on the process by which the product was made or whether it could reasonably
have been made safer. Focuses on what level of safety the ordinary consumer would expect the
product to have. If the product is not as safe as ordinary consumer would expect it to be, it is
“defective.”
Derives from comments g and i to §402A: “the rule stated in this Section applies only where the
product is, at the time it leaves the seller's hands, in a condition not contemplated by the
ultimate consumer, which will be unreasonably dangerous to him” and “the article sold must be
dangerous to an extent beyond that which would be contemplated by the ordinary consumer
who purchases it, with the ordinary knowledge common to the community as to its
characteristics.”
The risk/utility test
Focuses on the process by which the product was made, rather that the expectations of
consumers about its safety. A product is defective if its design embodies “excessive preventable
danger” which occurs when the risk of danger inherent in the challenged design outweighs the
benefits of that design.
Some states only use the consumer expectations test, others use it primarily but will sometimes undertake a
risk/utility analysis. Furthermore, some states only use the risk/utility, and yet others will use the risk/utility and
then the consumer expectations as a factor in the test.
An issue for either test (more so for the risk/utility test) is whether the product in question could have been more
safely—with a lower risk of harm. Most jurisdictions consider the availability of a feasible alternative design merely
one of several factors that the jury may consider in determining whether a product design is defective.
FAILURE TO WARN
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Some products are unavoidably unsafe, in the sense that they cannot possibly be made completely safe without losing their
usefulness all together.
Many prescription drugs fall into this category, as do many pieces of machinery (motorbikes, eg).
It does not follow that such a product is defective simply because it is unsafe. However, the product may be defective if it
does not bear adequate warnings of the dangers associated with its use. The defect does not lie in the design of the
product, but in the absence of a warning.
A manufacturer only needs to warn consumers about anticipated uses of the products it makes. This is still a strict liability
standard. Even if the plaintiff should have known the danger, the manufacturer still has a duty to warn.
This may not be true if the danger is “open and obvious”. The test to determine if a danger is open and obvious is
whether "an average user with ordinary intelligence would have been able to discover the danger and the risk
presented upon casual inspection."
Because the test is objective, this Court "looks not to whether plaintiff should have known that the condition was
hazardous, but to whether a reasonable person in his position would foresee the danger
A warning that is vague or misleading may be held the same as no warning at all.
Restatement §388 (comment n): Warnings given to third person Chattels are often supplied for the use of others, although
the chattels or the permission to use them are not given directly to those for whose use they are supplied, as when a
wholesale dealer sells to a retailer goods which are obviously to be used by the persons purchasing them from him, or when
a contractor furnishes the scaffoldings or other appliances which his subcontractor and the latter's servants are to use, or
when an automobile is lent for the borrower to use for the conveyance of his family and friends. In all such cases the
question may arise as to whether the person supplying the chattel is exercising that reasonable care, which he owes to
those who are to use it, by informing the third person through whom the chattel is supplied of its actual character.
PLAINTIFF’S CONDUCT
Defendants have several options for defenses to products liability cases: Assumption of Risk, Failure to Obey Instructions,
and Misuse of the products. Misuse as a defense to liability is usually a matter decided by the jury. It exists to encourage
manufacturer's to equip their products with safety devices regardless of whether the safety devices' use is mandatory or
even widespread.
FEDERAL PREEMPTION
The US Constitution in the Supremacy Clause holds federal law to be the Supreme Law of the land, meaning that any state
law or state constitution that contradicts loses
Major tort litigation is concerned with the interaction between direct forms of federal regulation and the common law of
product liability
Implied preemption can occur in two ways: field preemption or conflict preemption.
CONFLICT PREEMPTION
Under the Supremacy Clause, any state law that conflicts with a federal law is preempted. Conflict arises when it is
impossible to comply with both the state and federal regulations, or when the state law interposes an obstacle to the
achievement of Congress's discernible objectives.
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Actual conflict. A conflict exists if a party cannot comply with both state law and federal law (for example, if state
law forbids something that federal law requires).
Obstacle. In addition, even in the absence of a direct conflict between state and federal law, a conflict exists if the
state law is an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.
M INIMUM S AFETY S TANDARD VS . U NIFORM S AFETY S TANDARD

Often times there may be a question of frustration of congressional purpose or the state law standing as an obstacle to
congressional intent. This will raise a question of whether congressional or administrative intent in passing the law was
uniformity or minimum national safety standards. Congressional intent may be to allow States to pass laws that will
“establish greater safety than the minimum safety achieved by a federal regulation intended to provide a floor.”
Alternatively, the purpose of a federal law could be to set a uniform national standard.
FIELD PREEMPTION
Even without a conflict between federal and state law or an express provision for preemption, the courts will infer an
intention to preempt state law if the federal regulatory scheme is so pervasive as to “occupy the field” in that area of the
law, i.e. to warrant an inference that Congress did not intend the states to supplement it. For example, the courts have held
that the National Labor Relations Act (NLRA) preempts state laws directed at conduct actually or arguably prohibited or
protected by the NLRA or conduct Congress intended to leave unregulated.
RESTATEMENTS

One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the
supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical
harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier
(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied,
and
(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition,
and
(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to
be dangerous.
R ESTATEMENT (S ECOND ) OF T ORTS §402A

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is
subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is
sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.
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CASES
Winterbottom v. Wright
Contract between wright and the postmaster. Wright provided coaches and had a duty to keep them working.
Wright subcontracts with another party who employs winterbottom. Postmaster uses the coaches to deliver mail
gets money. Wright gets money for selling coaches. Atkinson gets money wright gets coaches. Winterbottom gets
money Atkinson gets a worker. When the coach broke we assume wright breached duty to provide a safe carriage.
However the duty Is limited only to the party with whom he is in privity, the postmaster.
Macpherson v. Buick
Automobile manufacturer sold a car to a retail dealer who resold it to a plaintiff. Car collapsed and injured the
plaintiff. Wheel was faulty. Defect could have been discovered by reasonable inspection. If the nature of a thing is
such that it is REASONABLY CERTAIN TO PLACE LIFE AND LIMB IN PERIL WHEN NEGLIGENTLY MADE, it is a thing of
danger. Its nature gives warning of the consequences. If there is knowledge that the thing will be used by persons
other than the purchaser without new tests then the manufacturer is under a duty of care to make it carefully.
Injury here is an almost inevitable result of defective manufacturing.
Escola v. Coca Cola Bottling Co of Fresno
Waitress was stocking the fridge with coke. One bottle exploded in her hand. Sued for negligence, claimed that
Coca-Cola had been negligent in selling bottles which on account of excessive pressure or gas or by reason of some
defect in the bottle was dangerous and likely to explode. Res Ipsa prevails here. Without negligence the bottle
wouldn’t have exploded.
Speller v. Sears
Fridge caught fire caused by faulty wiring- plaintiff did not prove specific defect. Plaintiff must prove that the
product did not perform as intended and exclude all other causes for the products failure that aren't attributable
to D.
Cafazzo v. Central Medical Health Services Inc
Prothesis was defective. Sued to hold the seller providers of users of the devices that they should be held strictly
liable for providing, selling, or placing the products in the stream of commerce. Hospital not liable because they did
not know the product was defective and were not careless. Imposing strict liability would not provide an incentive
to safety because they don’t even do the tests. Can't impose products liability on someone who did not
manufacture the product.
Casa Clara Condominium Association Inc. v. Charley Toppino and Sons, Inc.
Charley supplied concret for construction. The salt in the concrete caused steal to rust. The contcrete broke off.
Homes were built with and damaged by the concrete. Manufacturer can be held liable for physical injuries caused
by defects if his goods must match a standard of safety defined in terms of conditions that create unreasonable
risks of harms. Cannot be held liable for LEVEL OF PERFORMANCE of his products unless there is agreement that
the product was designed to meet the consumer's expectations. MUST SHOW HARM ABOVE AND BEYOND
EXPECTATIONS.
Campo v. Scofield
Law is satisfied if
Page | 15
Manufactuer does everything necessary to make the machine function properly for the purpose for which
it is designed
Machine is without any latent defect and
Its functioning creates no danger or peril that is not known to the user
Consumer expectations test has replaced this one
Volkswagen of America v. Young
Automobile manufacturer is liable for a defect in design which the manufacturer could have reasonably foreseen
would cause or enhance injruies. Court did not apply strict liability to design defect cases. Manufacturer is
OBLIGATED to exercise that degree of care in his plan or design so as to avoid any unreasonable risk of harm to
anyone who is likely to be exposed to the danger when the product is used in the manner for which the product
was intended as well as unintended yet reasonably foreseeable use
Barker v. Lull Engineering Co.
Guy was operating a high lift loader. Sued manufacturer for damages, injuries caused by defective design of the
loader. A product is defective in design where: 1) it failed to perform as safely as an ordinary consumer would
expect when used in an intended or reasonably foreseeable manner 2) benefits of the challenged design do not
outweigh the risk of danger inherent in such a design.
Linegar v. Armour of America
Man was shot and killed while wearing a bullet proof vest. Bullet did not hit him in the vest. The article sold must
be dangerous to an extent beyond that, which would be contemplated by the ordinary consumer who purcahses it
and has the ordinary knowledge common of the community as to its characteristics. Defendant should not have
anticipated that any person would expect a bullet proof vest to protect a part of the body not covered by the vest.
Vest here was not unreasonably dangerous or even defective.
Halliday v. Sturn, Ruger and Co
Child shoots himself with handgun. Rule- generally gun makers are oly laible when their products malfunction. A
limited category is not sanctioned as a matter of public policy. Low weight, easily concealed, short barrel cheap,
inaccurate guns are foreseeably used for crime. Here, the gun is not of that type. Gun was not defectively
designed. Plaintiff should have used common sense.
MacDonald v. Ortho Pharmaceutical Corp.
Plaintiff had a stroke after taking birth control pills. Sued manufacturer for failure to warn. The Common Law Duty
to Warn necessitates a warning comprehensible to the average user, which conveys a fair indication of the nature
to the mind of a reasonably prudent person. Jury decides whether a warning is adequate.
Vassalo v. Baxter Healthcare Corp
Plaintiff got implants. One of them ruptured. Manufacturer not liable under failure to warn or provide instructions
about risks that were not reasonably foreseeable at the time of sale or could not have been discovered by ay of
reasonable testing prior to marketing the product.
Uniroyal Goodrich Tire Co. v. Martinez
Page | 16
Company failed to warn that you cannot mount a 16 inch tire on a 16.5 rim. Duh WARNING: If you mount this tire
on a 16.5 rim the tire will explode DUMBASS. Design defect: bead should have been stronger. Don't make tires that
are so close in size. Make all tires and rims the same size or no half sizes.
Hood v. Ryobi America Corp.
Plaintiff removed safety guard from saw. Partially amputated thumb and cut his leg. There are warnings which say
never to remove the safety guards. He thought the purpose of the warnings was to prevent clothing and hands
from being caught in the saw not that the blade would detach. Warnings need not include every possible scenario
in which injury may occur. People would not read warnings at all if they were long.
Daly v. General Motors Corp.
Plaintiff was killed when thrown from his car, which allegedly hada defective door latch. Plaintiff was not properly
using his seatbelt and did not lock the door and was intoxicated at the time. Comparative negligence can be
applied in strict products liability cases to reduce a plaintiff's recovery.
Geier v. American Honda Motor Co.
The National Traffic and Motor Vehicle Safety Act of 1966 required auto manufacturers to equip a certain number
of their 1987 vehicles with passive restraints. The question before the Supreme Court was whether the Act pre-
empted state common-law tort claims saying that the auto manufacturer, although in compliance with the Act,
“should nonetheless have equipped a 1987 automobile with airbags.” The court indicated that, despite a savings
clause, the statute “reflects a desire to subject the industry to a single, uniform set of federal safety standards. Its
pre-emption of all state standards, even those that might stand in harmony with federal law, suggests an intent to
avoid conflict, uncertainty, cost, and occasional risk to safety itself that too many different safety–standard cooks
might otherwise create.”
DEFAMATION
The plaintiff must ordinarily prove four elements in a defamation claim
A publication to one other than the person defamed
A false statement of fact
That is understood as
Being of and concerning the plaintiff; and
Tending to harm the reputation of the plaintiff
If the plaintiff is a public figure, he or she must also prove actual malice
Per Se Defamation
Statements that are SO harmful to reputation that damages are presumed
Categories
Commission of a criminal offense
Infection with venereal disease
Inability to perform or want of integrity in the discharge of duties of public office
Fornication or adultery
Page | 17
Words that prejudice a party in her trade, profession or business
Per Quod Defamation
Requires extrinsic facts to show defamatory meaning
FALSE DEFAMATORY STATEMENTS

The statement in question must have had a defamatory meaning. It can generally be said that a defamatory statement is
one that harms a person’s reputation. Dobbs on Torts, he says “under the classic English definition, words had a defamatory
quality if they exposed the plaintiff to hatred, ridicule, or contempt. American decisions added that defamation included
anything that subject the plaintiff to obloquy, odium, shame, disgrace or other forms of discredit or harm to reputation.”
In order for a statement to harm a person’s reputation in the community, the statement would have to be understood by
others in the community. Some statements are pretty clear on their face that they are damaging a nother person’s
reputation in the community.
Other statements may not be so clear and may need additional facts to show why those statements would have
been understood as defamatory. It may be that other facts reveal the defamatory nature of the statement. Some
statements appear complimentary, but are spoken with iron or insult.
A plaintiff must prove that the statement harmed his or her reputation among some members of the community. There is
one requirement that it be only among some, ill-defined, “right thinking” group.
If the group is so small or so anti-social that their views are not sufficient representative of the community, there is
no defamatory meaning. (EG Losing reputation amongst organized crime members is not defamation).
Note: The law has consistently held that you cannot defame the dead.
At common law there would have been no liability if the defamatory statement was true. For longer documents or
statements it might be difficult to show that every word was true. It is not, therefor, necessary to prove that the document
is absolutely true in every word. The rule would have required that the statement or document be “substantially true”
In considering the truth or falsity of a statement, you have to recognize that some items are just not subject to
determining whether they are true or false.
When a person gives an opinion, for example, that opinion may neither be true or false.
Defamation claims may arise from opinions, however, when they seem to imply the existence of facts. This, unfortunately,
means that each case will have to be judged on the individual set of facts.
CONCERNS AND DAMAGES THE PLAINTIFF

The defamatory statements must be “of and concerning” the plaintiff—the plaintiff has to be the one that can be identified
as the person about whom the statement was made. This is not as easy as it sounds: books are written about people, but
the author claims the books are fiction; people sometimes make statements that defame large groups of people. In those
examples, the question is always asked whether any one in that group.
If the work could be reasonably understood to identify the plaintiff, he would have an action. It should be clear
that this could raise a fact question in some cases as to whether, under the circumstances of the case, the work
could be “reasonably understood” to identify the plaintiff.
When a person seems to defame a whole group, additional problems arise. The real question is, how can any one plaintiff
claim that he or she was the one being identified when the statement concerns a whole class. Generally, the courts have
Page | 18
indicated a two-step approach to this problem. For an individual to claim her or she was defamed, the whole group must
have been identified and the size of the group being defamed must be small.
PUBLICATIONS
In defamation claims, published or publication does not mean producing a book or newspaper, it is a “word of art. It
includes any communication by any method to one or more persons who can understand the meaning.” Publication,
therefore, means getting the information or defamatory material to a third person who understands it.
The law of defamation requires that the publication to third person be done either intentionally or negligently.
Typically the publication is intentional. Where the defendant intends to tell some third person or intends to write a
message to some third person, then there is an intentional publication.
A negligent publication is where the defendant made the statement or wrote the message, but did not intend for
anyone else to hear it. If the defendant failed to use reasonable care to keep others from receiving the material,
then it is a negligent publication.
LIBEL
Libel is the permanent embodiment of a statement. Libel is more dangerous than slander because it is permanent.
Use of language which others knowing the circumstances would REASONABLY believe to be defamatory of the person
complaining of and injured by the defamation. Person is not absolved from liability just because his statement was not
intended to harm
Libel is a strict liability standard.
Even if the statement is published in good faith, with the writer believing it to be true, it is still libel if the
statement is both false and injures the plaintiff. Cannot show that the libel was not of and concerning the plaintiff
just because he had never heard of the plaintiff
L IBEL P ER S E
Many jurisdictions assume that all libel is libel per se. That would mean that the publication of a libel would allow recovery
without any proof of special losses or damages.
For jurisdictions with this position, the problems of libel are simplified. Once it is determined that the publication
was libel, and not slander, no additional proof of special necessary.
L IBEL P ER Q UOD
Those jurisdictions that differentiate between libel per se and libel per quod would say that libel per se is actionable on its
face. That means it is obvious from reading the libel that it is defamatory. No additional evidence is necessary to
understand why it is defamatory.
Libel per quod, however, is an interesting type of problem in defamation. There are some type of statements that do not
appear defamatory on their face. Once the existence of additional facts is realized, however, it becomes obvious that the
statement is designed to harm a person’s reputation among those that know the additional facts.
If a statement is libel per quod, the plaintiff will have to prove “special damages” in order to recover.
SLANDER
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Slander is considered to be oral defamation. Since it is less permanent additional proof of damages is usually required. Use
of a mere transitory gesture commonly understood as a substitute for spoken words is slander not libel.
There are, however, different types of slander, called slander per se, that are considered more harmful to the plaintiff.
When a statement falls under the heading of slander per se, the plaintiff does not have to prove the additional damages. In
that way, slander per se is treated like libel.
Special damages (for slander or for libel per quod): should be noted that the “special” harm requires proof of
particularized pecuniary loss. Mere loss of friends is not enough. Personal injuries or emotional distress will not
satisfy the “special” damage requirement. Pecuniary losses are those that reflect a specific economic injury to the
plaintiff.
Slander per se statements are typically:
Accusations of criminal conduct. It must be a crime of moral turpitude, not just a minor crime.
Claims of someone having a “loathsome” disease. Loathsome diseases consisted of venereal diseases with the
possible expansion into leprosy.
Attacks on a person’s trade or business. The statement must reflection the person’s competence or ability to carry
on a particular trade or business.
Allegations of serious sexual misconduct.
DEFENSES
Truth isn't really a defense anymore because courts generally require that the plaintiff probe the statement is false. Burden
doesn’t lie on the defendant to prove that it is true.
Elements
Public or private duty to communicate
Legal
Moral
Communication is fairly warranted by any reasonable occasion or exigency
A statement in the conduct of his own affairs where his interest is concerned
Fair Comment
Artistic and literary criticism
Applied only to opinion
Freedom of Public Discussion
Where do we draw the line between fact and opinion
If a bare statement is made in terms of a fact, or if facts and comments are so intermingled that it is not clear what
purports to be inference and what is claimed to be fact, the reader will naturally assume that the injurious
statements are based upon adequate grounds known to the writer.
Page | 20
Courts must balance the freedom of speech with the right to not have your reputation defamed.
Under certain circumstances, a person may be immune from liability or be “privileged” to communicate some information.
Some of those privileges are viewed as absolute while others may be limited or qualified.
Absolute Privilege
Executive Privilege: there is a privilege for communications by the President and certain other members of the
executive branch of government.
Judicial privilege: there is a privileged for communications, under certain conditions, by people working in the
judicial setting.
Legislative privilege: there is a privilege for communications, under certain conditions, for people working in the
legislative branch of government.
Qualified Privilege
Protect self—the speaker makes the statement in order to protect some personal interest. EX: a person calls the
police and says “that man is stealing my car”, despite it not being his car. If the man believed that his car was being
stolen, it is privileged.
Protect others—the speaker makes the statement in order to protect some third party’s interest. EX: a professor
can tell about a grade and about if they would/wouldn’t recommend a person for a job.
Protect a group or common interest—the speaker makes the statement in order to protect some group of which
the speaker is a member. EX: a person can say that someone is stealing if it is to protect the common interest of
the partners at a law firm.
Qualified privileges may be lost when they are abused. Determining when they are abused is a two part
alternative. The privilege may be lost by excessive publication or by making the statements with malice.
CONSTITUTIONAL PRIVILEGES
The New York Times v. Sullivan case created a special basis of liability for cases where the plaintiff was a public official or
public figure. For those who are public officials or public figures there is a higher burden of proof.
A public official would, of course, be a person who holds a public office or is seeking a public office. It would
include those people who hold government positions with substantial responsibilities.
A public figure is more vague than a public official, but fit into three categories:
Some public figures, because of such power, fame, influence and notoriety, are public figures for all
purposes. EX: well-known sports star.
Other public figures reach that level by thrusting themselves into a public controversy in order to have an
impact on the outcome. A person who decides to lead a public demonstration, for example, may be a
public figure.
Some people find that they become involuntary public figures. This is rare and the person that such a
person is a public figure is limited. People involved in important news stories may become such public
figures.
Page | 21
RESTATEMENTS

A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the
community or to deter third persons from associating or dealing with him.

The meaning of a communication is that which the recipient correctly, or mistakenly but reasonably, understands that it
was intended to express.

A defamatory communication is made concerning the person to whom its recipient correctly, or mistakenly but reasonably,
understands that it was intended to refer.

One who falsely publishes matter defamatory of another in such a manner as to make the publication a libel is subject to
liability to the other although no special harm results from the publication.

(1) Publication of defamatory matter is its communication intentionally or by a negligent act to one other than the person
defamed.
(2) One who intentionally and unreasonably fails to remove defamatory matter that he knows to be exhibited on land or
chattels in his possession or under his control is subject to liability for its continued publication.

An occasion makes a publication conditionally privileged if the circumstances induce a correct or reasonable belief that
(a) there is information that affects a sufficiently important interest of the publisher, and
(b) the recipient's knowledge of the defamatory matter will be of service in the lawful protection of the interest.

(1) An occasion makes a publication conditionally privileged if the circumstances induce a correct or reasonable belief that
(a) there is information that affects a sufficiently important interest of the recipient or a third person, and
(b) the recipient is one to whom the publisher is under a legal duty to publish the defamatory matter or is a person
to whom its publication is otherwise within the generally accepted standards of decent conduct.
(2) In determining whether a publication is within generally accepted standards of decent conduct it is an important factor
that
(a) the publication is made in response to a request rather than volunteered by the publisher or
(b) a family or other relationship exists between the parties.
Page | 22
An occasion makes a publication conditionally privileged if the circumstances lead any one of several persons having a
common interest in a particular subject matter correctly or reasonably to believe that there is information that another
sharing the common interest is entitled to know.
CASES
Doe v. Gonzaga University
Two students had a sexual relationship. Teacher heard a conversation about rape. Assumptions were made.
Teacher told other students. The statements stopped the dean of the school from signing the moral character
affidavit that was necessary for him to teach. Common interests of corporation employee's is only a qualified
privilege. Privielged communication involves the occasion where an otherwise slanderous statement is shared with
a 3rd person who has a common interest in the subject and is easonably entitled to know the information. When a
corporate employee publishes a defamatory statement there is liability if the employee is not actiong in the
ordinary course of his or her work.
Firth v. State of New York
Employed by a weapons acquisitioner. State inspector issued a report. Critiqued the department's style and
procurement of weapons. Report defamed him. Was posted on the internet. Single publication requirement
shouldn't apply in internet cases. Court held: applying a multiple publication rule would expose publishers to stale
claims. Single publication rule limits the possibility of hardship to plaintiffs. Applying republication exception would
discourage people from placing information on the internet.
Muzikowski v. Paramount Pictures Corp.
Hardball movie is based on a book about experiences as a coach in the inner city. The coach was portrayed in the
movie as an alcoholic and practicing without a license. Court held that the plaintiff should have the opportunity to
prove that the character bore such a close resemblance to plaintiff that no other inference could be made except
that the character portrayed him. Defamation is not actionable If it may be innocently interpreted or referring to
someone other than the plaintiff.
Wilkow v. Forbes
Forbes magazine ran a column on creditor case. Wilkow filed a defamation suit. Claimed statements that he was
poor and filched the bank's money. Claims the magazine should have informed the readers that the money was
lent without recourse against the partners. Downturn in the market casued the majority of the banks loss. Court
held the article was not defamatory because it is plain the speaker is expressing a subjective view. Nothing in the
article implies that Wilkow did anything illegal .
E Hulton & Co. v. Jones
Newspaper article ran an article using the name Artemis Jones. Thomas Artemis Jones filed a defamation suit.
Newspaper claimed they had never heard of plaintiff and used the name fictitiously. Libel is defined not by what
the writer intends, but how the statement is likely to be understood.
Terwilliger v. Wands
Defendant told another person that the plaintiff was having sex with another man's wife and would do anything in
his power to keep the husband in prison so he could continue to sleep with the wife. Plaintiff got sick needed
medical treatment. Neglected his business and had to hire more help. Words alone were not actionable must
proves special damages. The injury was the natural and immediate legal consequence of the defamatory
Page | 23
statement. The damages he claimed are not the normal damages. Special damages: loss of marriage, housing,
entertainment. Whenever a person is prevented by the slander from receiving that which would otherwise be
conferred upon him. Law cannot hold that all language that hurts the feelings or adversely affects a person's health
are grounds for action. There must be a limit to liability for words.
Ellsworth v. Martindale-Hubbell Law Directory, Inc.
Plaintiff alleges that his code rating was misstated in the directory which caused him to lose business and injured
his reputation as a lawyer. Not a per se claim, must plead special damages. Court says that a diminution in business
and income after the publication is sufficient to proceed to the jury.
Faulk v. Aware Inc.
Communism corporation made statements against radio performer charging him with communist sympathies.
Filed defamation suit. Was awarded large amount in damages, large amount alone does not render verdict
excessive. Performer was rendered UNEMPLOYABLE by these statements. Court found the damages excessive and
unrealistic because they were much higher than what he was actually making and higher than projected earnings.
Auvil v. CBS 60 Minutes
Aired a segment on chemicals which addressed the harmful effects of the chemical on children. The growers failed
to show a genuine issue of material fact because they could not prove that the statement was false. The actual
statements must be false and defamatory, not just the overarching message.
Watt v. Longsdon
Defendant showed a letter to plaintiff's wife that acccused plaintiff of several unflattering things. The plaintiff sued
for defamation. Defendant claimed he was under a duty to show the letter to the wife, and the statement was
therefore privileged communication. Rule
A speaker is privileged to make defamatory statements about another when the speaker had either a duty or an
interest to publish the statements. The privilege may be lost if: 1)they go beyond the limits of the duty or interest
or 2)they may be published with express malice so that the occasion is not being legitimately used but abused
Kennedy v. Cannon
Plaintiff accused defendant's client of rape. The defendant made a statement to the newspaper defending his
client. Plaintiff sued the defendant for defamation. Holding: statements made to the newspaper were not
privileged because they were not part of the judicial proceeding. Rule: absolute immunity extends to the judge as
well as to witnesses and parties to the litigation, for defamatory statements uttered in the course of a trial or
contained in pleadings, affidavits, depositions and other documents directly related to the case.
Brown & Williamson Tobacco Corp v. Jacobson
Libel suit brought by tobacco co. for slanted portrayal of investigation report. Libelous per se because accusing a
cigarette company of marketing to children is most certainly harmful to the company. Summaries of government
proceedings and investigation must be fairly and accurately published. Remanded to jury to determine if the
summary carried a greater sting than the original and was thus actionable
New York Times Co. v. Sullivan
Page | 24
The Respondent, L.B. Sullivan (Respondent), is one of three elected Commissioners of the City of Montgomery,
Alabama. The Respondent brought this action against the Petitioners, four individuals who are African-Americans
and Alabama clergymen and against the New York Times (Petitioners). The complaint alleged that the Respondent
had been libeled by statements in a full-page advertisement that was carried in the New York Times on March 29,
1960. Rule: The constitutional guarantees require a federal rule that prohibits a public official from recovering
damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made
with “actual malice,” that is, with knowledge that it was false or with reckless disregard of whether it was false or
not.
Curtis Publishing Co. v. Butts
The Plaintiffs, Butts and Walker (Plaintiffs), were public figures and not public officials. Both were awarded
damages for defamation. The Defendant, Curtis Publishing Co. (Defendant), appealed to extend the constitutional
safeguards outlined in New York Times to public figures. Rule: A public figure has the same standard of proof for
libel as a public official does under New York Times.
Gertz v. Robert Welch Inc.
Petitioner Elmer Gertz is an attorney representing the family of a youth who was shot and killed by a police officer
in Chicago in 1968. While representing this family in a civil trial, Respondent, Robert Welch, Inc. publisher of
American Opinion magazine, published an article-accusing Petitioner of being a Leninist and part of a Communist
conspiracy. These statements against Petitioner were found to be falsely based, and caused Petitioner to sue
Respondent for libel. During trial Respondent seeks protection under the New York Times standard. Rule: Under
the First and Fourteenth Amendment states are allowed to develop their own lesser level of fault, as long as it is a
no fault standard, for libel against private figures because of the vulnerability private figures have to serious injury
when compared with public figures. Damages for libel found against a private figure is limited to that amount that
will compensate him for actual injury.
Philadelphia Newspapers v. Hepps
Plaintiff brought suit against Philadelphia Newspapers, Inc. (Defendant), after it published a series of articles
alleging that Plaintiff had links to organized crime, and had used their position to exercise influence over the
government. Rule: A private party cannot bring suit against a newspaper for slander or libel, without bearing the
burden of showing falsity and fault, before recovering damages.
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Torts II Outline (Zach)

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ROGER WILLIAMS UNIVERSITY SCHOOL OF LAW

Torts Outline keyed to Epstein

R ESTATEMENT OF T ORTS (S ECOND ) §427

Petrovich v. Share Health Plan of Illinois, Inc.

The “but for” or sine qua non test

The “substantial factor” test

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

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

Producing sufficient evidence at trial to avoid a directed verdict

TOXIC TORTS LITIGATION

Toxic torts causation requirements

Substance- can cause the injury

Source- defendant was actually the source of the substance

ORDINARY AND NATURAL RESULT

INDEPENDENT AND DEPENDENT CAUSES

Second defendant is liable only for incremental damages

INTERVENING /SUPERSEDING CAUSE

Infants and incompetents

Tortfeasor owes a duty to the rescuer

Same duty owed to the person he imperiled

Even though the rescuer knows the situation is dangerous

Unless the rescuer acts unreasonably

Defendant was negligent to the person rescued

That negligence caused the peril

Reasonably prudent person would have concluded the peril existed

Rescuer acted with reasonable care

HARM WITHIN THE RISK

R ESTATEMENT (S ECOND ) OF T ORTS §432

R ESTATEMENT (S ECOND ) OF T ORTS §433

(c) lapse of time.

Zuchowicz v. United States

General Electric Co v. Joiner

Doe v. Ortho-Clinical Diagnostics

Herskovits v. Group Health Cooperative

Kingston v. Chicago & NW Ry

Skipworth v. Lead Industries Association

Ryan v. New York Central RR

Berry v. Sugar Notch Borough

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

Wagner v. International Ry.

In Re Polemis & Furness, Withy & Co.

Palsgraf v. Long Island RR

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

Virden v. Betts and Beer Construction Co.

First major debate was whether to allow the cases at all

Injured party could only sue the immediate vender

Rejected privity by imposing liability for negligence on a remote seller

Strict liability should govern manufacturer liability

DEFECTIVELY MANUFACTURED PRODUCTS

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

That the product was defective

Direct evidence—usually using expert witnesses

DEFECTIVELY DESIGNED PRODUCTS

The consumer expectations test

The risk/utility test

M INIMUM S AFETY S TANDARD VS . U NIFORM S AFETY S TANDARD

R ESTATEMENT (S ECOND ) OF T ORTS §388

R ESTATEMENT (S ECOND ) OF T ORTS §402A

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

Escola v. Coca Cola Bottling Co of Fresno

Cafazzo v. Central Medical Health Services Inc

Machine is without any latent defect and

Consumer expectations test has replaced this one