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Torts II Outline Fall 2011

STRIC LIABILITY I. Animals a. A possessor of a wild animal is subject to S/L to another for harm done by the animal to the other, even if exercised the utmost care. b. The liability is restricted to harm that results from a dangerous propensity that is characteristic to the animal, of which the keeper knows or has reason to know. c. Domestic animals: One is not S/L for injuries casued by a domestic animal unless the D has scienter or knowledge of the dangerous propensity of the animal. d. Wild or domestic depends on the time and place it is kept. II. Injury to third parties a. Licensees and invitees injured by wild or domestic animal may recover in S/L b. Tresspassers generally cannot unless the landowner knows of their presence and fails to post a warning. III. Abnormally dangerous activities a. One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity although he has exercised the utmost care to prevent the harm. b. Involves a risk of serious harm c. That cannot be eliminated no matter how much care is used d. And is not a matter of common usage. i. Three tests to see if activity is abnormally dangerous e. Rylands v Fletcher: Natural v Unnatural: i. Analyze whether the usage is non-natural (non-customary) ii. And whether the activity is dangerous and inappropriate to the place iii. In light of the place and its surroundings iv. Man made + non-customary+ very dangerous = S/l f. First Restatement i. Focuses whether the activity is per se ultrahazardous ii. Involves risk of serious harm which cant be eliminated even with utmost care iii. Not a matter of common usage iv. Does not focus on whether the activity is appropriate to locale 1. Can be appropriate even though not common g. Second Restatement i. Broader terms, encompasses less extreme risks, applies to activities that cannot be made safe with reasonable care, allows the judge to

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Torts II Outline Fall 2011

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consider social value of the activity and its location in deciding whether to impose strict liability. ii. Six factors to determine the totality of the circumstances 1. High degree of risk 2. The risk is of serious harm 3. Inability to eliminate risk with reasonable care 4. Not a matter of common usage 5. Inappropriate to place carried on 6. Risk outweighs its utility (value to the community vs dangerous unavoidable risks) Defenses to S/L a. Assumption of risk bars recovery in a S/L action i. Analyze whether P knew of the danger and voluntary encountered b. Contributory negligence not a defense to S/L 4 STEP APPROACH TO S/L PROBLEMS a. Determine if within the class of animals or dangerous acivity b. Determine whether the harm suffered was within the inherent risk of the activity. c. Analyze the foreseeable manner, and whether there were any intervening events.

VICARIOUS LIABILITY I. The tortious conduct of one is imputed to the other based upon their relationship, so the liability is indirect. II. Employee- respondeat superior: An employer is liable for the tortious acts of employees who are acting within the scope of the employment. a. EE-ER: relationship exits where the ER maintains the right of control and direct the manner and the means by which the details of the work are to be executed. b. Scope of employment acting in some way to further employers business c. Detour, or slight deviation is within scope of employment d. Frolic, or substantial deviation is not within the scope (look if foreseeable) e. Factors to determine the scope of employment deviation i. Employee intent ii. The nature, time, and place of deviation iii. The time consumed in deviation iv. Work for which employee was hired

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Torts II Outline Fall 2011

v. The incidental acts reasonably expected by employer vi. Freedom allowed to employee in performing responsibilities f. Majority: Control test i. Conduct is within the scope of employment if it is subject to a right of control by the party to be vicariously liable g. Minority- Benefit of the enterprise i. Even in the absence of a right of control, enterprise is vicariously liable if employees conduct would have benefited the enterprise. h. The tort feasor is still liable for own tort, VL imposes additional liability i. Usually the underlying tort is negligence, but intentional can also be within the scope III. Independent contractors: employer of IC in not vicariously liable for the torts of the IC. a. ER-IC when IC does work according his own methods and judgment, is not subject to ER except to the result of work, and has the right to dorect how and in what manner the work be performed. b. 4 exceptions i. Nondelegable duties of the ER, arising out of some relationship with public, or plaintiff which threaten risk of serious bodily injury. ii. Negligence in selecting of supervising the IC iii. Inherently dangerous activities: calls for more than ordinary caution, ONLY applies where harm is directly related to the risk that makes the activity dangerous (does not have to be abnormally dangerous) iv. Illegal activities of ER c. Factors to determine EE or IC i. Extent to which employer controls details of work ii. Does a person have specialized training or skill iii. Customs of the occupation iv. Who supplies the instrumentalities of work v. Length of time the employment to last vi. Method of payment vii. Whether the work being done is part of ER regular business viii. Parties belief as to the nature of their relationship MISREPRESENTATION I. Also called deceit and fraud II. Intentional misrep., negligent misrep., strict liability misrep. 1. Ds misrepresentation of material fact 2. Requisite state of mind

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Torts II Outline Fall 2011

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3. Intent to induce reliance 4. Ps justifiable reliance 5. Damages 6. Defenses Misrepresentation of material fact a. Misrepresentation is words or actions that create a false impression of reality b. Common law: caveat emptor (no duty to disclose) c. Modern: D has duty to disclose if has knowledge of a defect and P could not discover the defect by exercise of reasonable diligence. d. Material if i. Reasonable person would attach importance to it before entering into the transaction, or ii. D has reason to know that this particular P considers the information important. e. Fact: has to be fact NOT opinion Requisite state of mind a. Intentional: Fraud/deceit i. D knew the misrepresentation was false ii. D acted with reckless disregard for truth or falsity iii. Reckless if D was consciously aware of his lack of knowledge about truth or falsity b. Negligent: i. Failure to determine truth when there is duty owed to P ii. Duty to speak carefully 1. D knows the info is desired for a serious purpose 2. P intends to rely on it 3. If false P will be injured 4. Relationship between the parties has the right to rely on the other iii. Do quick breach of the duty analysis c. Strict liability: i. Rare circumstances ii. Do not need to prove state of mind. Intent to induce reliance a. P must prove that D wanted P to rely on the misrep. b. If direct communication easily satisfied c. If indirect or to third parties, analyze i. Majority rule: 1. Reason to expect reliance if

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Torts II Outline Fall 2011

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a. D knew that P or Ps class would rely b. D made representation wih that in mid c. Linking conduct (some jurisd.) ii. Minority rule: Foreseeability 1. If fraud, no class restriction on P 2. If negligent, limited potential class of P Justifiable reliance a. P must establish that he relied on the representation made by D and his reliance was reasonale or justifiabl. b. Actual reliance i. Proves causation- the misrep must have caused Ps action ii. Material: something important to the ransaction that influenced P c. Reasonable person would have relied on the misrep. i. Exception: If D knows P is gullible, judged form tha POV d. Fact v Opinion: fact if you can prove at the time of making it to be true or false i. P has no duty to investigate apparently reliable statements ii. Cant ignore obvious warning signs iii. Look for special knowledge of P which makes the reliance unjustifiable iv. the relationship of the parties makes one to rely on the others good conscience v. Prediction of future event is not actionable vi. Present intent to never perform in the future is fraud Damages a. Actual damages are required b. Majority benefit of the bargain i. Difference between the value of what P got and what would have gotten had the rep. be true(promised-received) c. Minority out-of-pocket i. Difference between what P paid and what P got (amount paidactual value) Defenses: a. Intentional misrep: assumption of risk only b. Negligent misrep: contributory negligence, comparative negligence, assumption of the risk

PRODUCTS LIABILITY Refers to the liability of a seller of a tangible item which, because of a defect, causes injury to its purchaser, user, or bystander.

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Torts II Outline Fall 2011

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General rule a. Commercial seller who sells a product b. With a defective condition that is unreasonably dangerous c. Is liable for harm to persons or property caused by the defect. Commercial seller a. Products manufacturer b. Retailer c. Other person in the distributive chain d. Do not need privity between P and D Defective condition (manufacturing, design, and failure to warn) a. Manufacturing defect the product is unreasonably dangerous if i. The product unit differs from other units D manufactures; and ii. Because of this deviation, the product is more dangerous than other iii. Because the product deviated from the intended design 1. The manufacturer is strictly liable even though all possible care was exercised in preparation and manufacturing it. b. Design defect all of the similar products manufactured by D are the same, and they all bear a feature whose design is itself defective and unreasonably dangerous (the design is poor or flawed) i. Unreasonably dangerous tests 1. Consumer expectation test the product is more dangerous than would be contemplated by the ordinary consumer with ordinary common knowledge about its dangers. a. What does the consumer reasonably expect knowing the quality, the dangers that are commonly known to be connected to this product or what the customer knows from the warning of the product. ii. Imputed knowledge would seller have been unreasonable in selling the product if the seller had known of its harmful or dangerous condition. 1. Imposes constructive knowledge of the risk on the manufacturer and then asks whether it would be unreasonable for the manufacture had actual knowledge of the risk. iii. Risk- Utility test 1. Usefulness and desirability of the product its utility to the user as a whole 2. Likelihood and severity of injury the likelihood that it will cause injury and the probable consequences

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3. Availability of alternatives that will meet the same need and not be unsafe 4. Practicability 5. Users ability to avoid danger 6. Users expectations 7. Feasibility of manufacturer spreading the risk iv. P needs prove that the risk of harm was foreseeable v. Which could have been reduced or avoided by vi. The adoption of a reasonable alternative design. c. Warning defect the maker has neglected to give a warning of a danger in the product, and this lack of warning makes an otherwise safe product unreasonably dangerous. i. Has to be conspicuous, complete, something that will effectively want the foreseeable user ii. Manufacturer may not have to warn of an obvious danger, or iii. Miht have to warn of an allergy or unusual side if foreseeable to a substantial number of people 1. Ask to determine whether warning defect. iv. Did the manufacturer know or should have known of the danger? v. Was he negligent in failing to communicate the warning? 1. Special cases a. Obvious hazards no duty to warn b. Sophisticated users can defend by saying the P didnt need a warning c. Prescription drugs it is the doctors duty to tell the patient d. Post-sale duty to warnif the manufacture learns of a defect after the sale has a duty to give a post-sale warning. e. Causal link need to show a causal link between the failure to warn and the actual injury. Persons or property a. Purchaser b. User c. Bystander Caused by the defect a. The product needs to leave the defendant in the manner in which it caused the harm Defenses a. Comparative and contributory negligence are defenses

Professor Delman b. c. d. e. Product misuse Assumption of the risk Ignoring safety precautions Use for unintended purpose

Torts II Outline Fall 2011

DEFAMATION I. Defamatory communication about P a. Adversely affecting plaintiffs reputation (on its face or per quod?) b. Contains an element of obloquy (disgrace, verbal abuse) i. External context sometimes extrinsic evidence may be needed to explain why a statement is defamatory that does not appear to be on its face. ii. Thus, P must introduce external evidence in 2 ways: 1. Inducement P pleads extrinsic evidence to support his claim that a statement is known by certain persons to be defamatory in its meaning, AND 2. Innuendo the P must then allege the meaning that he thinks flows from the combination of the statement and extrinsic evidence it is not a fact c. Reasonably interpreted as referring to P P must show that the statement was understood to refer to, though not necessarily aimed at, the P i. colloquium used to establish that the P is the person defamed 1. supply information or evidence that leads one to believe that the defamatory statement had to be about the P external proof 2. if your name is referred to, then no need for colloquium 3. equivalent of inducement and innuendo in proving defamatory statement ii. Group defamation look at the size of the group and to how many was referred to in the statement. 1. If > 60, inclusive group cant sue indefinite, unless special circumstances 2. If part of the group analyze why is it referred to P 3. If personal to employee corp. cant sue 4. If affects the corporation can sue 5. The use of name alone is insufficient need more II. FALSE Communication must be materially false a. If substantially true, not actionable

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b. Defendant cant prove truth of specific instances alleged to have been done by plaintiff with other specifics that didnt happen c. cant prove truth of specific instance by showing generally bad character of plaintiff PUBLICATION statement must reach at least one third party who understands a defamatory thrust from the statement a. Negligent or intentional repetition b. Single publication rule i. Repeater liability one who repeats a defamatory statement made by another is held to have published it and is liable as if the first person. c. Internet provider immune when content comes from another source i. Liable for foreseeable repetitions ii. Liable even when naming source or when denying belief FAULT a. Fault (degree of fault depends on who the parties are and the type of speech involved) b. Public or private plaintiff? (NY Times, Gertz) i. NY Times: must show actual malice for a public official to recover under defamation in an issue of public concern. ii. Actual malice knowledge that it is false OR reckless disregard of its falsity 1. Must have sufficient evidence to permit the conclusion that D in fact entertained serious doubts 2. Higher standard than reasonable man 3. failure to investigate is insufficient 4. Need clear and convincing evidence iii. Public figure those who put themselves in the particular public controversy 1. Limited voluntarily injects himself in partivular public controversy 2. All purpose individual who achieves such pervasive fame as to become public figure for all purposes iv. Public officials 1. Public employees 2. Candidates for office c. Media or non-media defendant? (NY Times, Dun & Bradstreet) d. Speech of public or private concern? (Dun & Bradstreet) i. Content, context, form ii. Libel written or printed words

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Torts II Outline Fall 2011

1. Libel per se: defamatory on its face 2. Libel per quod not defamatory on its face iii. Slander spoken words 1. Slander: not defamatory on its face 2. Slander per se: defamatory on its face Defenses to Defamation Complete Privilege absolute privilege for anything defamatory said in relation to matter at issue Judicial Proceedings: applies to any communication made during litigation (including pleadings, discovery, by parties, attorneys, witnesses, jurors, judge,) Legislative Proceedings: debate, voting, reports, committee work, official publications Executive Communications: certain executive officers in the discharge of their duty Conditional Privilege must be exercised for proper purpose and in proper manner or will be lost(if acts primarily from malice) Privilege to defame to protect s own interest (publisher) Privilege to protect interest of a third party (old employer new employer) Privilege to protect a common interest (public mistake about a crime) Abuse of conditional privilege Even if conditional privilege exists it may be abused Actual malice Excessive publication Public Figure/Official Public Concern NYT actual malice 1. knowing or reckless disregard 2. presumed damages Private Figure Gertz negligence 1. some fault plus actual damages 2. unless NYT is established, then presumed/punitive allowed

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Torts II Outline Fall 2011

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Torts II Outline Fall 2011

NUISANCE Not a separate tort. Interference with public right OR interference with right to use and enjoy property Public While exercising public right, plaintiff suffers substantial damage Damage is different in kind, not just greater in degree, than that suffered by general public The defendant must have had control over the instrumentality at the time of damage Private An unreasonable interference with Ps use and enjoyment of his land. Action for Damages: Has to be tortious o Intentional: Negligent or reckless: Strict liability Must show substantial Interference o If merely a small inconvenience there will be no recovery o Affects property value Has to be unreasonable Interference o An amount that would be unfair for plaintiff to suffer without compensation o the harm to P outweighs the utility of Ds conduct With Plaintiffs Use and Enjoyment of Property Action for Injunction, add: Defendants Use is Unreasonable Balancing the equities 1.Tangible vs intangible harm 2. Extent of harm 3. Utility of plaintiffs right being interfered with 4. Utility of defendants use 5. Burden on plaintiff of avoiding the harm 6. Hypersensitivity of plaintiff 7. Suitability of activity to the location 8. Relative economic hardship on the parties 9. Priority in time of respective uses 10. Defendants motive

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Professor Delman

Torts II Outline Fall 2011

INVASION OF THE RIGHT OF PRIVACY APPROPRIATION OF NAME OR LIKENESS One who appropriates to his own use or benefit the name or likeness of another for benefit of Ds commercial advantage, is subject to liability to the other for invasion to his privacy. 1. Unauthorized use 2. Of plaintiffs name or likeness 3. For defendants benefit 4. Causing damage to plaintiff INTRUSION One who intentionally intrudes physically or otherwise upon the solitude or seclusion of another will be liable to P for invasion of his privacy if the intrusion would be highly offensive to a reasonable person o No publication required o Ex. Taking photos, eavesedropping, examining personal files 1. Invasion 2. Of plaintiffs solitude (private place) 3. Which would be offensive to a reasonable person PUBLIC DISCLOSURE OF PRIVATE FACTS One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is o Highly offensive to a reasonable person, and o Is not a matter of legitimate public concern. Liability may attach even if the publication is true. Public disclosure of private facts is not actionable where the publication is newsworthy. 1. Publicity 2.Of plaintiffs private facts 3.The disclosure of which would be highly offensive to a reasonable person Publicity placing person in false light One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy if o The false light in which the other was placed would be highly offensive to a reasonable person, and o The actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter.

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