Escolar Documentos
Profissional Documentos
Cultura Documentos
EMOTIONAL AND DIGNITARY HARMS................................................................................................................12 ASSAULT...............................................................................................................................................12 FALSE IMPRISONMENT......................................................................................................................12 INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS................................................................13
Wilkinson v. Downton........................................................................................................................................... 13
SUMMARY CHART................................................................................................................................13 NEGLIGENCE....................................................................................................................................................15 NEGLIGENCE GENERALLY.........................................................................................................................15 SUMMARY CHART...............................................................................................................................15 WHO IS THE REASONABLE PERSON?...................................................................................................................15 GENERALLY.........................................................................................................................................15
Vaughan v. Menlove.............................................................................................................................................. 15 Roberts v. Ring...................................................................................................................................................... 15 Daniels v. Evans.................................................................................................................................................... 16
Emergency.............................................................................................................................................16
Eckert v. Long Island RR...................................................................................................................................... 17
STATUTES & REGULATIONS AND NEGLIGENCE....................................................................................................18 Statutory Violations as Negligence Per Se.............................................................................................18
Gorris v. Scott........................................................................................................................................................ 18 Martin v. Herzog.................................................................................................................................................... 18 Ross v. Hartman..................................................................................................................................................... 19
JUDGE AND JURY............................................................................................................................................22 PROOF OF NEGLIGENCE ......................................................................................................................22 RES IPSA LOQUITOR .........................................................................................................................22
Colemenares v. Vivas............................................................................................................................................ 22 Ybarra v. Spangard................................................................................................................................................ 22 Byrne v. Boadle ................................................................................................................................................... 22
PROXIMATE CAUSE.........................................................................................................................................25 Proximate cause and Physical Injury....................................................................................................25 Damage must be ordinary and natural result of Ds acts......................................................................26
Ryan v. New York Central RR (NY 1866)............................................................................................................ 26
Summary Chart.....................................................................................................................................27
Marshall v. Nugent ............................................................................................................................................... 27
Proximate Cause Intervening Causes.................................................................................................28 MULTIPLE DEFENDANTS: JOINT AND SEVERAL LIABILITY.........................................................29 JOINT AND SEVERAL LIABILITY........................................................................................................................29 PROGRESSION MODERN TRENDS AGAINST PURE J&S LIABILITY.........................................................................29 Joint and Several Liability with Reallocation........................................................................................29 Joint and Several Liability with Threshold Percentage.........................................................................29 Joint and Several Liability Based on Damage Type...........................................................................29 Pure Several Liability............................................................................................................................29
INDIVISIBLE V. DIVISIBLE HARMS .....................................................................................................................29 Action in Concert...................................................................................................................................30 Successive Injuries................................................................................................................................30 Indivisible Harms..................................................................................................................................30 AFFIRMATIVE DUTIES..................................................................................................................................31 DUTY TO RESCUE...........................................................................................................................................31 Exceptions.............................................................................................................................................31 SPECIAL RELATIONSHIPS..................................................................................................................................31
Kline v. 1500 Mass. Ave. Apt. Corp.....................................................................................................................31 Tarasoff v. Regents of University of California ...................................................................................................32
OWNERS AND OCCUPIERS OF LAND.......................................................................................................33 OUTSIDE THE PREMISES....................................................................................................................................33 Natural Hazards....................................................................................................................................33 Artificial Hazards..................................................................................................................................33 TRESPASSERS.................................................................................................................................................33 Exceptions.............................................................................................................................................33 Attractive Nuisance...............................................................................................................................33 LICENSEES.....................................................................................................................................................34 Duty to Licensees...................................................................................................................................34 INVITEES.......................................................................................................................................................34 Definition of Invitees.............................................................................................................................34 Duty of Due Care..................................................................................................................................34 FIREFIGHTERS AND OTHER PUBLIC SAFETY PERSONNEL..........................................................................................34 LESSORS AND LESSEES....................................................................................................................................34 Lessee....................................................................................................................................................34 Lessor....................................................................................................................................................34 VENDORS......................................................................................................................................................35 SEE TORTS IN BRIEF FOR AN OVERALL SUMMARY OF DEFENSES IN NEGLIGENT ACTIONS (ADDRESSED WITHIN EACH OF THE SUBSECTIONS ABOVE).....................................35 VICARIOUS LIABILITY.................................................................................................................................36 VICARIOUS LIABILITY.....................................................................................................................................36 Vicarious Liability relating to officers/govt agents-.............................................................................36 ANIMALS.......................................................................................................................................................37 ABNORMALLY DANGEROUS ACTIVITIES.............................................................................................................37 LIMITATIONS ON STRICT LIABILITY...................................................................................................................37 Scope of Risk ........................................................................................................................................37 PRODUCTS LIABILITY..................................................................................................................................38 PRODUCTS LIABILITY AND NEGLIGENCE.............................................................................................................38
Winterbottom v. Wright (Ex. 1842)......................................................................................................................38 MacPherson........................................................................................................................................................... 38
Typical Negligence Defendants.............................................................................................................39 PRODUCTS LIABILITY AND WARRANTY..............................................................................................................39 Express Warranties...............................................................................................................................39 Implied Warranties................................................................................................................................39 PRODUCTS LIABILITY AND STRICT LIABILITY......................................................................................................40 Generally...............................................................................................................................................40 Non-manufacturer ................................................................................................................................40 Manufacturing, Design and Failure to Warn Defects............................................................................40 Manufacturing Defect............................................................................................................................40
Puncey v. Ford Motor Co...................................................................................................................................... 40
Design Defect........................................................................................................................................40
Volkswagen of America, Inc. v. Young................................................................................................................ 40
Comment K Jurisdictions.......................................................................................................................41 DEFENSES BASED ON A PLAINTIFFS CONDUCT...................................................................................................42 Types of Comparative Negligence Jurisdictions....................................................................................42 Types of Comparative/Contributory negligence by Plaintiff..................................................................42 NUISANCE..........................................................................................................................................................43 PUBLIC NUISANCE..........................................................................................................................................43 PRIVATE NUISANCE........................................................................................................................................44
Fontainebleu Hotel v. Forty-Five Twenty............................................................................................................. 44
Extra-Sensive Plaintiffs.........................................................................................................................44
Rogers v. Elliot ..................................................................................................................................................... 44
Injunction versus Damages....................................................................................................................45 COMPONENTS OF DEFAMATION.........................................................................................................................47 1. Defamatory statement .......................................................................................................................47 3. Fault .................................................................................................................................................47 4. Special Harm ....................................................................................................................................48 LIBEL...........................................................................................................................................................48 SLANDER.......................................................................................................................................................48 PRIVILEGED CLASSES: PUBLIC OFFICIALS AND PUBLIC FIGURES............................................................................48
New York Times v. Sullivan................................................................................................................................. 48
PRIVATE PARTIES...........................................................................................................................................49
Gertz v. Robert Welch, Inc.................................................................................................................................... 49
PRIVILEGES IMMUNITY FROM LIBEL AND SLANDER CLAIMS...............................................................................49 Absolute Privilege.................................................................................................................................49 Qualified Privilege................................................................................................................................49 INVASION OF PRIVACY................................................................................................................................51 MISAPPROPRIATION OF PS NAME OR PICTURE.....................................................................................................51 INTRUSION ON PS SECLUSION..........................................................................................................................51 UNDUE PUBLICITY TO PS PRIVATE LIFE.............................................................................................................51 PLACING P IN A FALSE LIGHT...........................................................................................................................51
TORTS OUTLINE
Formalism
Sought stability in tort law through cannons of construction To what extent Xs action produced resulting Y Economy and society will flourish when we know the consequences specified for actions. Designed with an anti-biased system
Legal Realism
Karl Llewellyn attack on formalism by pointing out inconsistencies contradictory cannons. Created a revolution and required judges to explain WHY they ruled the way they did.
Lockean
* Labor Theory in the beginning all things owned communally. God puts humans on earth who used their sweat and labor to make private property. Provides a divine basis for pursuit of private property.
Neo-Lockean
Believe there are limits to how much you can take peoples private property
Lockes Proviso
Says you have a divine foundation of property as long as you have enough thats good enough for others
Hegelian
The meaning/value of an object can only be measured in relation to its owner; an object often has much greater intangible value for the individual than it does on the market soft value.
Utilitarianism
Jeremy Bentham Function fo law is to further thre greatest food for the greatest number. Says we should maximize wealth for society and redistribute it appropriately.
Feminism
Focused on paternalistic aspect of torts. One main question: did the fact that men alone created the law have a distortive effect and create some really deeply biased laws? Fems say YES! The adversarial system is based on an inherently male pattern of behavior settle disputes with violence of confrontation. Fems want to adopt a jurisgenerative approach
Olsen
The most effective groups in a democratic system are small groups they are willing to put money and effort in achieving common goals and know if someone is trying to free-ride
Hardin
Hardin believed in individual property in order to force the internalization of costs without it, each person will graze one more cow for their benefit even if it is to the ultimate detriment of other property shares.
Slippery Slope:
Do not do A because it will lead to B and C and etc. That first step will make it more likely that you will deal with each subsequent argument and the courts dont want to do that.
Floodgate:
If you take this case, there will be TONS of new cases dealing with the same thing. Right now, these cases cannot be litigated and your change would allow them all into the court system.
-The optimal basis for law is efficiency NOT morality. There are too many ideas about what moral is. We can use the law to find maximized wealth. Efficiency o Pareto efficiency pick the change that will benefit at least one person without making anyone else worse off o Kaldor Hicks efficiency dont care if there is a loser, more important to make changes resulting in more winners than losers. Dont compensate the losers. Cost externalization o Any cost or benefit imposed upon others by your activity o Rational actor would want to shift as much negative externalities to others Coase Theorem extremely influential came to fruition at outset of Reagan Administration o 1. A legal dispute is the result of conflicting uses; law should/will support more valuable use (to the community) Ex: A farmer wants to raise crops, excluding cows; rancher wants to have cows, which would trample crops. Whoever prevails depends on what is more valuable to that specific community. In a perfect market it doesnt matter what the law does market will create same result no matter what o 2. BUT there is no such thing as a perfect market there are transactional costs. These are costs you incur just to make the deal they can actually lead to the worst possible outcome. o Coase 1: In a perfect market the more valuable use will prevail o Coase 2: There is no perfect market because of transactional costs, gree riders, and externalities that interfere
INTENTIONAL TORTS
Intentional torts require an evil act and an evil mind. Unlike Criminal Law, the P is a private person, and must prove a preponderance of evidence as opposed to beyond a reasonable doubt. Differs from negligence, which does NOT require an evil mind.
Physical Harms
Battery and Consent
Elements of Battery: Intentional infliction of harmful or offensive nonconsensual contact 1. Elements must be intentional a. Basic intent act with a desire to bring about harm b. Transferred intent if D means to hit 3rd party but hits P, D is still liable i. Only applies to short time after intended injury beyond that should consider negligence theory c. Substantial certainty even if D did not really mean to, he had intent if there was a substantial certainty that he would cause the injury d. Intent to violate a rule intent to violate ANY rule may count as intent
Vosberg v. Putney
D kicked P lightly w/o intent to harm; activated latent injury that seriously hurt P; Ct held D liable b/c of eggshell thin skull rule and fact that D kicked during class when there was no implied license of playground breaking school rule = liable. ALSO TAKE YOUR VICTIM AS YOU FIND HIM. Just because he didnt mean to cause substantial harm doesnt mean that hes not liable just because he was unaware of the victims fragile state.
Garrett v. Daily
5 year old pulls out chair from old lady. MAJORITY RULE: Liability for substantial certainty that harm will occur (i.e. that woman would attempt to sit down and therefore hurt herself even though he did not intend to break her hip).
2. Ds act must be without consent a. CONSENT VITIATES INTENT b. Standard consent any violation to person must be specifically consented to, with the exception of medical emergency
Mohr v. Williams
D doctor does medically sound operation on Ps ear to remove disease; P had consented to operation on right ear, but it turned out after operation that left ear really needed operation; with approval of Ps doctor, D doctor operated on other ear w/o waking her to confirm; P sued for battery and loss of hearing. Court sustained verdict for P
OBrien v. Cunard
P said she received an unwanted vaccination. However, when she was in line for the vaccinations, she stuck her arm out when it was her turn. Court said that if Ps behavior indicated consent on her part, the doctors actions were justified, whatever her unexpressed feelings were. Consent could only be determined by overt acts. d. Exceptions to consent i. Consent may not be needed in emergency situations ii. If person cannot make own decision, someone can be authorized to do that for them (Guardian ed litem) iii. There are statutory prohibitions on certain classes whose assent cannot be considered consent, as they are a protected class 1. incompetents 2. physically disabled 3. minors MAJORITY RULE: CONSENT VITIATES INTENT a volunteer suffers no wrong
Hudson v. Craft
Youth entered boxing match and sued promoter for his injuries; Ct said he was unable to consent legally b/c the match was barred by criminal code. Court said that if legislative purpose in making Ds conduct a crime is to protect classes of persons (including P) from their own poor judgment, Ps assent cannot be considered consent iv. Cant consent to acts that by law are illegal v. Consent based upon fraud or misrepresentation is not consent e. Assumption of risk can be analogous to consent
If an individual is aware of the substantial risk associated with an activity it can be considered assenting to the possible harm that may result
Trespass to Land
Trespass occurs when either D intentionally enters Ps land without permission, or D remains on Ps land without permission to be there, even if she entered rightfully or D puts an object on, or refuses to move an object from Ps land without permission. NO STRICT LIABILITY. Particles and gasses - If D knowingly causes objects, including particles or gasses, to enter Ps property, most courts would consider this a trespass Air space it can be trespass for a plane to fly over Ps property. Liability found if plane is below federal regs for elevation and flight substantially intergeres with Ps use of his land.
Trespass to Chattels
Any intentional interference with a persons use or posesion of a chattel. D only has to pay damages, not the full value of the property (as in conversion Loss of Posession if P loses possession of the chattel for any time, recovery is allowed even if the chattel is returned unharmed
Conversion
An intentional interference with Ps possession or ownership of property that is so substantial that D sould be required to pay the propertys full value. If P is successful with her suit, forced sale occurs. D is required to pay the full value of the goods but gets to keep the goods Intent all D has to do is intend to take possession of the property. Mistake as to ownership will generally not be a defense V. Trespass to Chattels court considers duration, dominion over the property, good faith or bad faith, harm done to the property, invonvenience to the P Ways to commit o Acquiring possession D takes possession of property from P Most courts hold that a bona fide purchaser of stolen goods is a converter, even if there is no way they could have known that they were stolen o Transfer to a third person ex messenger service delivers goods to the wrong person, person makes off with the goods, messenger service guilty of conversion even though they dont end up with possession of the goods o Witholding good refusing to return goods to their owner, if the regusal last for a substantial time. Ex: D, a parking garage, refuses to give P back her car for a day
Nonconsensual Defenses
1. Insanity insanity is generally NOT a defense. Insane person who by his act does intentional
damage to person/property of another is liable for that damage if sane person in the same circumstances would be liable. We hold insane people to the same standards despite their lack of intent.
McGuire v. Almy
The Nurse P was injured by the insane D, who was in her care. The court found for the P, saying the person who occasioned the loss should bear it, which motivates those interested in the estate (i.e. the insane persons family) to take due care. If the crazy intent includes the intent to commit the harm, thats enough. 2. Self-defense you have a privilege of self defense you can commit offensive touching without consent if its in self defense; its even ok if youre mistaken, as long as the mistake is reasonable. Differs greatly from over in Europe where there is a duty to retreat. Only in kind, in time cant hit the guy back 2 days later and claim SD Level of force must match level of threat (proportionality)
Courvoisier v. Raymond
Police officer P was shot by D when D thought P was an attacker. Court found that if D had reasonable (objective) belief (subjective) that P was endangering his life with greatly bodily harm he was privileged with the use of the same force
10
3. Defense of Property Common Law Majority Rule: moliter manus imposuit If somebody is destroying your property you must first ask him to leave; if he does not, you can lay hands gently on him to defend your property or you can slightly harm them temporarily but you CANNOT kill or seriously wound. - MIlvoy v. Cockran P tore down Ds fence; D beat him severaly and wounded; P sued for A & B; won.
Bird v. Holbrook
Man trap rule cant use a spring gun to protect property its non-discriminate - Make My Day Statutes some states have passed these to supersede common law rule of moli manus say you CAN hurt or kill them in self-defense. These say that you can use self-defense against people breaking into your house or your curtilage area around house driveway etc. 4. Recapture of Chattels D can use reasonable force to recapture chattels if he is entitled to immediate possession, return has been demanded and refused, he is fresh in pursuit and has been reasonably diligent to recover, person who he is trying to recapture from is the wrongdoer, and force used is reasonable under the circumstances Conversion D renders property taken in such a shape that you dont want it back you want the value of the property instead Trespass usually means trespass to land; mistake doesnt matter. Entering land w/o permission or staying past the time youre permitted. Trespass to Chattels taking somebody elses stuff
Kirby v. Foster
P was Ds bookkeeper. Money was missing, D thought P stole it so he deducted it from Ps salary. P got control of similar amount of Ds money and kept it. D attacked P. Held P had no criminal intent and the money was given to him voluntarily. P was justified in using force to retain money that was his, D not justified in use of force to get money. Necessity party A can trespass on Bs land/use his property when immediately necessary to prevent loss of life or serious harm to As property. Even if A only needed help because he was a reckless moron. Preservation of life is more important than property owners right. i. Private Necessity allows people to do things that would normally be a tort (i.e. trespassing in case of a storm) ii. Public Necessity justify a tort committed on account of public necessity (ie bulldoze houses to stop the spread of a fire)
Ploof v. Putnam
P maroons his boat on Ds dock in storm. Ds servant (at command of his master) releases the boat. Ps person and boat are damaged. D is held responsible for damages had no right to untie boat because P was using dock under the privilidge of necessity.
11
HOWEVER A must pay for the damage that he does to B in the process of using Bs property in a time of necessity
FALSE IMPRISONMENT
False imprisonment is intentional infliction of a confinement. Keeping OUT of an area is NOT confinement. Area may be large and need not be stationary. Staying to protect property if P feels compelled (though I not actually forced) to stay in one place to protect his property from a fear of harm to it by D, that can b false imprisonment)
12
Intent P must show that D either intended to confine him of that D knew with substantial certainty that P would be confined by Ds actions Means used either threats or legal authority Knowledge P must know of confinement in order to recover Extent of Liability D is liable for injury that P incurs while making reasonable attempts to escape.
Wilkinson v. Downton
D lied, telling P her husband was severely injured. P suggered shock, vomiting, and weeks of suffering. Court held that D willfully did an act calculated to cause physical harm to the P and willful injuria is in law malicious, therefore an intention to produce such an effect must be imputed, since all but most indifferent would so suffer.
SUMMARY CHART
Battery: intentional act which brings about harm or offense to a person MAJORITY RULE: Liable if there is substantial certainty that harm will occur; Offensive touching without consent Requires intent otherwise it is negligence MINORITY RULE: Intent is formed by breaking a rule or law Does not need to be preempted by assault There are rare cases where words alone are considered assault
Assault: The creation of a reasonable apprehension of battery Offensive Battery: Battery which does not cause actual injury other than against the persons dignity False Imprisonment: Being held in a confined space against your will MAJORITY RULE: There must be total obstruction and detention Intentional Infliction of Emotional Distress:
Does not require a locked door; you must try to leave if you are NOT taking a risk to do so; future threat is not false imp. Easiest to collect if it
Defenses include: protection of property, consent, parental control Narrow category of liability To collect for 3rd party
13
extreme or outrageous conduct caused intentionally or recklessly and resulting in severe emotional distress or bodily harm
Defense Consent
Recapture of Chattels
Private Necessity
Public Necessity
Intoxication
Definition Exceptions Volunteering or consenting to the Emergency Exception; potential harm vitiates intent Substituted Consent; Life Support Decision; Guardian ad litem; parties which cannot consent MAJORITY RULE: an insane MINORITY RULE: Insane person can be liable for battery person is not liable Using force to act in reasonable Time (defend not retaliate); fear of yours or others safety Response must be reasonable To remove someone from your You can use force if they are property, you must first ask them forcibly on your property (selfto leave. If they do not you can defense); Make My Day Law; lay gentle hands upon (moliter cannot do something indirectly manus) that cannot be done directly You can use force to recover Deadly force can never be used; property if someone got it from you cannot use force if you 1) you through fraud, force, or entrusted the property to the without claim of right person 2) know the person and can pursue recovery peacefully (in court) Gives you the right to commit a Is accompanied by a duty to pay tortuitous act (i.e. trespassing) if damages to the injured party (i.e. you are in a life threatening if you harm the property you must situation regardless of how you trespass on) got into it Gives you the right to commit a Majority of states have statutes tortuitous act (i.e. destruction of that require government to property) if it is for the general compensate for the destruction of public good; MAJ RULE: this is private property; however only available to government compensation does not always cover pub. necessity Unintentional hitting due to alcohol (i.e. flaling arms) is negligence and a possible defense for liability. It is an intentional tort if you wanted to hit someone clear directed action against an individual
14
NEGLIGENCE
NEGLIGENCE GENERALLY
Was D reasonable? Did he cause the injury in fact? Was his act the proximate cause of the injury? Does he have any defenses?
SUMMARY CHART
Question Was the person reasonable in their actions? Was this unreasonable act the factual cause of the injury? Was the act the proximate cause of the injury? Are their defenses for all or part of the liability? Yes Case is over unless it is a question of negligence per se Go to proximate cause Look at defenses or restrictions on liability No Go to causation Case is over Case is over
Vaughan v. Menlove
D placed his hay rick too close to Ps property and refused to fix or move it despite warnings. Court no excuse will be given for stupidity. D thought it shouldnt be negligence, as he acted to the best of his judgment. Sets the precedent that objective reasonable person is the standard. Allowing for Ds stupidity would afford no rule at all. Everyone takes upon himself the duty of so dealing with his own property as not to injure the property of others. 1. Defendants infirmities infirmities are irrelevant standard is reasonable D, not this D
Roberts v. Ring
D (old man, limited vision/hearing) in car ran over P (7 year old boy) in street; P argued D was negligent either in failing to look carefully as he drove or in stopping quickly enough. Trial judge charged jury
15
that they should take into account the Ds age and infirmity in deciding whether he was negligent. Jury found for D and P appeals claiming error in charge. Held: Jury was charged incorrectly. The standard is the behavior of a reasonable driver, NOT including consideration of THIS drivers age and physical condition. Also, Ps possible contributory negligence should be considered in view of fact that a boy of seven is not held to the same standard of care in self-protection as an adult.
2. Defendants Age D is held to standard of a reasonable person of the same age, intelligence,
and experience (with the exception of child engaging in adult activities)
Daniels v. Evans
Ps decedent, a 19-year old youth, was killed when his car hit Ds car. Alleged error urged on appeal was question of whether a youth had same standard of care in driving as an adult. Held, a minor when driving must be judged by same standard of care as an adult. It would penalize other drivers to hold him less accountable; a driver cannot know if the driver of another car is a minor or adult. I.e. Child Ps and child Ds are held to the same standard of care so same standard for childrens negligence and contributory negligence.i Restatement (3rd) Torts GP 8: holds a child to standard of a reasonably careful person of the same age, intelligence, and experience. Exception: children engaging in adult-like activities. - One rule of thumb for many courts (although problematic) is that a child has same standard of care if the activity is one for which govt requires a license e.g. driving, but not riding bike (or sometimes, shooting.)
7/7/14 Rule: Children under 7 are incapable of negligence. They dont have capacity. Children between the ages of 7 and 14 are presumed incapable of negligence, but they might be capable. Children 14 or over are presumed to be capable of Neg. Rare that subjective standard is applied to anyone over the age of 16.
3. Beginners: Beginners at an activity are held to same standard of care as those who are reasonably skilled and practiced at it 4. Mental Capacity/Insanity D with mental incapacity held to same standard as a person of ordinary intelligence. Gives incentive to Ds family to prevent them from causing harm a. Exception - D is not liable for her damages if she had no reason to think/know she would be afflicted e.g. of sudden affliction 5. Plaintiffs Physical Disabilities disabled person must act as reasonable person with that disability would act. Fletcher v. City of Aberdeen Blind man fell into manhole.
Held: blind men are entitled to live in the world and must use the care that a reasonable person with the same disability would use; P here acted properly
Emergency
If P I confronted with an emergency, and is forced to act with little time or reflection, D must merely behave as a reasonable person would if confronted with same emergency, and not as a reasonable person with time to think
16
Malpractice
If D has a higher degree of knowledge, skill or experience than the reasonable person, D must USE that higher level. Generally: - Professionals must act with the level of skill and learning commonly possessed by members of the profession in good standing.
Brown v. Shyne
unlicensed chiropractor accused of causing paralysis he DID violate criminal statute requiring license, but that isnt enough to show Neg per se; jury must still find that D failed to meet objective standard of the profession of which he held himself out to be a member. Statute was designed to prevent against unskilled practitioners, and theres no proof that he was unskilled.
- D may still plead contributory Neg/ assumption of risk.
1. Good results not guaranteed professional does not have to guarantee good results, just that the minimum requisite for skill and competence will be met
17
2. Differing Schools if there are conflicting schools of thought, D just judged in comparison to the school of thought he follows 3. Specialists If D represents himself as a specialist, will be held to the minimum standard for that specialty 4. Minimally Qualified Member D must be shown to have lacked the skill level of the minimally qualified member in good standing a. No novice exception one who is just beginning the profession is held to same level as a member of the practice generally 5. Community Standards doctors and other professionals have been bound by the professional standards prevailing in the community in which they practice, not by a national standard
Gorris v. Scott
Ps sheep were washed overboard off of Ds ship. A statute existed requiring that the pigs be penned in a certain way. The statute existed to prevent the spread of disease from sheep to sheep. Statutory Purpose Doctrine P must also show that the statute was designed to prevent the type of injury that occurs. Here, there was a causal connection between breach of statutory duty and Ps harm, but statute was enacted with a totally different injury in mind.
Martin v. Herzog
(violation of relevant statute is Neg per se)
18
Facts: Ps decedent was killed when his buggy collided after dark with Ds car; decedent was driving without lights, in violation of NY statute. Trial Ct refused Ds desired jury charge (that decedents violation of statute was prima facie evidence of contributory negligence) and told jury it MAY consider the violation as some evidence of Neg, but it was not dispositive. Held: Jury instructions were wrong. Statutory violation IS Neg itself, not just evidence of it. Jurors may not choose freely whether to treat the violation as Neg they have no dispensing power to relax the duty that one traveler on the highway owes under the statute to another.
Ross v. Hartman
D violated ignition key statute by leaving key in car; P was injured when thief stole Ds car and ran over him; HELD, D was liable b/c his violation created a hazard that the statute was designed to prevent (harm resulting from unauthorized users, not the theft of the car itself). Black Letter Law Today: theres been a sharp split on ignition key statutes some courts find the main intent of the statute is to prevent theft, not protect safety thus violation is not Neg per se.
Dramshop Rule
Holds businesses liable for serving alcohol to the level that the bartender is judged by what a reasonable person should have known in the situation (did the person come to the bar all the time to drink, did he have keys in his hand, etc) Office parties some cases liability extends here can be overcome with cash bars and available DDs Residential Parties only if obvious assistance to cause the harm (i.e. helping an obviously drunk person to their car) 3. Causation must still be shown even if D violates statute, P must still prove causation. Violation is evidence of negligence ONLY where theres a logical connection between the proven violation and the alleged negligence NOTE No private action for damages against D who violated a FEDERAL CRIMINAL STATUTE
The TJ Hooper
Facts: P (owner of cargo) sued D (owner of tug) when tug was lost during a gale and would have been saved if tugs had working radios to receive weather reports. There was no statute requiring tugs to have radios, but some tugs in the region DID use them and an expert testified that they were necessary. Held: (trial and appellate L. Hand) There was not really a custom; some tugs used radios, some did not. Reasonable prudence is not always common prudence 19
2. Evidence by P conversely, proof offered by P that others in Ds industry followed a certain precaution that D did not, will be suggestive but not conclusive evidence that D was negligent BLACK LETTER LAW TODAY: Courts and commentators overwhelmingly adhere to the Hand Formula standard of care determined by a cost-benefit analysis, and secondly by custom
Cantebury v. Spence
Facts: D (doctor) operated on P; after surgery and post-surgery accident, P was left partly paralyzed. D never told P of 1% risk of paralysis from surgery; D said it was remote risk and disclosure may cause P to avoid surgery. Trial Ct granted SJ for D; Appls Ct ordered new trial for P. Holding: some JDs use a rule of custom (compliance with custom voids liability). This Ct rejects that: it may appear that the custom is deliberately to avoid disclosure where in fact its just carelessness or negligence to fail to disclose risks. So the rule is the standard measuring performance of the doctors duty to disclose is conduct that is reasonable under the circumstances. The scope of the disclosure must meet the patients need for information that is material to the decision (material = all risks potentially affecting the decision). Causal connection must still be shown: Failure to disclose does not alone make doctor liable P must still show causation. Patient has no suit if he would have chosen the surgery even once he was told of risk. And the test is NOT whether P later (or at trial) decided he would not have chosen surgery test is whether prudent person in patients position would have decided if suitably informed of all perils bearing significance.
Calculation of Risk
P must show that Ds conduct imposed an unreasonable risk of harm on P (or on a class of persons of whom P is a member)
Balancing
Must balance interests to determine if the risks taken by D are justified by the ends sought. Where an act is one which a reasonable person would recognize as involving a risk of harm to another, the risk is unrecognizable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act.
20
Condition
Risk must be calculated according to normal and usual conditions NOT extremes
21
PROOF OF NEGLIGENCE
RES IPSA LOQUITOR
The thing speaks for itself allows P to point to the fact of the accident, and create an inference that, even without a precise showing of how D behaved, D was probably negligent Basic Rule: 1. There is a paucity of evidence 2. The event must be of a kind that doesnt ordinarily occur in absence of somebodys negligence 3. Event must be caused by an agency or instrumentality with the exclusive control of the defendant 4. Event must not have been due to any voluntary action or contribution on part of the plaintiff Event must have been caused by instrumentality/agency in EXCLUSIVE CONTROL of D. Rarely means actual exclusive control can mean legal control/ultimate responsibility. e.g. grenade.
Colemenares v. Vivas
P injured while riding escalator when handrail stopped; Held; D could not avoid liability by saying it had contracted out its maintenance duties; b/c D was a public entity (airport) and even if it contracted out, it could not as a matter of LAW delegate its duty to maintain.
Ybarra v. Spangard
P had pain after operation; remembered painful handling just before going under. Could not prove exclusive control of any SINGLE because he was unconscion, so court let him hold all Ds liable in order to ferret out the rat. Common Knowledge Rule in most JDs, Cts say that P may go to jury even w/o benefit of expert testimony to back her up its enough that she can say that common knowledge says that D was Neg e.g. cases where a water bottle during operation was too hot and burned P. But if it takes expert knowledge, then you cant necessarily take your case to the jury.
Byrne v. Boadle
Facts: P was walking near Ds shop; flour barrel fell from 2nd story onto D; P sued for negligence. D argued that P could not offer affirmative evidence to say exactly what the negligent action was and why barrel fell, or who caused it to.
22
Held: res ipsa loquitor fact of the barrel falling establishes Neg barrel couldnt have fallen without Neg
23
NY Central RR v. Grinstad
Ps husband fell overboard; P sued D for failure to have life preservers on board. Held, plaintiff loses b/c the proximate cause of death was mans falling over. Even if ship had life preservers, they may not have helped him (b/c theyre to be used beforehand); also, wife may not have reached it in time.
2. Concurrent Causes Sometimes Ds conduct meets the cause in fact requirement even though it is NOT a but for cause because there is another event that could cause the harm as well
Summers v. Tice
P and D were hunting. Ds shot at quail and one of them shot P in the eye. Insufficient evidence to determine which D was guilty of the negligence causing injury. They are jointly liable. Policy and justice demand that the burden shift to the Ds to absolve themselves. Ds under these circumstances are in a far better position to offer evidence to determine which one caused the injury. Alternative causation test shifts the burden of proof to Ds. This case produced the same result as re ipsa loquitor does. 4. Market share liability mostly in products liability cases If P cannot prove which of three or more persons caused his injury, but can show that all produced a defective product, the court will require each of the Ds to pay that percentage of Ps product at the time of the injury. No joint and several liability. 24
5. Lost Chance Doctrine P can establish cause in fact even if its only an increased chance of injury, not the actual injury itself
Proximate Cause
Generally: Even after P has shown that D was the cause in fact of Ps injuries, P must still show that D was the proximate cause of those injuries. Is ultimately a question of foreseeability How far removed from an event can a person be held liable? Why? A defendant should not automatically be liable for ALL of the consequences, no matter how improbable or far-reaching, of his act. Generally, D will not be liable for unforeseeable consequences CARDOZO was P in zone of injury? (conservative and limiting the role of the jury) ANDREWS (more broad) was accident direct cause of Ps injury? (judge has less ability to exclude cases from going to the jury) See More Below: Wagon Mound
25
4. D may be liable even if injury is not very likely or probable. If I shoot gun in the air, Im liable for the person it hits even if its unlikely that it would hit anybody b/c streets are almost deserted.
26
could NOT have reasonably anticipated that the falling plank would cause a spark, but they could have foreseen that it would cause damage to the ship or crew. Held: once Neg is shown, liability follows. It doesnt matter whether D could have anticipated the type or extent of damage resulting from his Neg; if he has acted Negligently, hes liable for all direct consequences of the act. (And here, the Arbitrator found that the spark and fire were direct consequences of the Neg dropping). It is no defense to say that the damage was not the natural and probable result. - Most American JDs have adopted the Polemis rule.
Wagon Mound
D carelessly discharged oil into the harbor. Worker dropped molten metal from the wharf into the water, igniting the fire, and ruining Ps dock. This limits Polemis. A man must be considered responsible for probable consequences of his acts that a reasonable man would foresee. The test for forseeability for fire is forseeability of injury by fire. Injury by water igniting is not foreseeable. Dismissed. D is liable for damage that occurs in zone of the accident that he created.
Summary Chart
Unforseen Harm Polemis any direct result of the negligence (regardless of foreseeability) satisfies proximate cause Wagon Mound if the change in harm during the chain of causation is unforeseeable, causation is limited as the chain of causation is cut off Unforseen Plaintiff Andrews if the plaintiff was injured as a direct result of the negligence, the question of causation should go to the jury Cordozo only those plaintiffs within the zone of danger (snapshot before event) fall within proximate cause; jury determines the zone as a matter of fact (not law)
Marshall v. Nugent
Facts: P was injured by a third party driver who swerved to avoid accident caused by a truck driven by Ds agent, which had collided with Ps car when driving negligently. Held: the question of proximate cause should be put to the jury. Although the particular act of Neg here (Negt driving of truck) was over and done with, the traffic mix-up caused by that Neg was still occurring and Ps injury was result of extra risks caused by Ds Neg.
Palsgraf v. LIRR
D shoved X, who dropped fireworks that exploded, causing scales to fall on P, standing a bit away. Holding: A duty that is owed must be determined from the risk that can reasonably be foreseen under circumstances. If no hazard is apparent to an eye of ordinary vigilance, an act doesnt become a tort because it was wrong with reference to someone
27
else. Dissent says everyone owes the world at large the duty of refraining from acts that may unreasonably threaten the safety of others. In determining proximate cause the court must ask whether there was a natural and continuous sequence between cause and effect. Here there was no remoteness in time and little in space and injury in some form was probable. Not addressed carrier higher standard of care argument. Cardozo v. Andrews (majority and minority, respectively)
28
If there is a rational basis for apportionment that is, that some of the harm is result of D1s act and the remainder is the result of D2s then each will be responsible only for that directly-attributable harm
Action in Concert
If 2 defendants can be said to have acted in concert, each will be liable for injuries directly caused by the other. NO APPORTIONMENT Ex. D1 and D2 drag race. D1 swerves and hits P. D2 could be held entirely liable for D1/s collision, because D1 and D2 acted in concert
Successive Injuries
Courts can often apportion harm if the harms occurred in successive incidents, separated by substantial periods of time. Ex. D1 pollutes Ps property from 1970-1990. D1 sells to D2, who pollutes from 19901991. The court will apportion damage neither will have to pay for the damage done by the other. Overlap it may be the case that D1 is jointly and severally liable, but that D2 is only severally liable. This is likely when D2s negligence is in response to D1s. Ex. D1 negligently breaks Ps arm. D2 negligently sets the arm leading to gangrene. D1 is liable for all harm, including gangrene and amputation. D2 is only liable for the amount by which his negligence worsened the condition (i.e. liable for the difference between a broken arm and an amputated one.
Indivisible Harms
If harm is indivisible, each co-defendant is jointly and severally liable for the entire harm Death or single injury: The plaintiffs death or any single injury (i.e. a broken arm) is not divisible Fires if Ps property is burned or otherwise destroyed, the damages is indivisible OVERALL NOTE ON JOINT AND SEVERAL LIABILITY: Even if D1 and D2 are jointly and severally liable, P is only entitled to one single satisfaction of her claim. Ex. D1 and D2 are J&S liable for 1 million in damages to P. If P collects 1 million from D1, she cannot collect from D2
30
Affirmative Duties
Duty to Rescue
No duty to rescue in common law D has no duty to take affirmative action to help P D generally has no duty to avoid causing unintended mental suffering to P D has no duty to avoid causing pure economic loss to P in the absence of more tangible types of harm such as physical injury
Exceptions
D must rescue if he puts P in the dangerous position - D must rescue if, through negligently or innocently, he puts P in the dangerous position. - Yania D urged decedent, a mentally fit adult, to jump into strip-mine pool; he jumped in and drowned when he was unable to climb out the sheer walls; P argued that D put him in that position and then didnt help him; Held, it was the dead guys own damn fault. Once D begins to aid somebody, he must act as a reasonable adult would - e.g. when state undertakes to aid an abused child by putting him in foster homes, state is liable for more harm that occurs to child in those homes.
Special Relationships
Duty to give assistance may arise out of special relationship Employer/Employee employer has duty to prevent harm to society by employees, except in cases of "frolic and detour" by employee which are outside the scope of employment (Teen Angel) Landlord Tenant landlord has basic duty to protect tenants from criminal acts of others
Doctor/Patient
32
Natural Hazards
Property owner generally has no duty to remove it. In urban settings, may be liable Ex: O allows a tree to grow in such a way that it may hit a tall truck passing by. Traditionally, O is not liable to the driver of truck. But in an urban context, O might be liable
Artificial Hazards
Where the hazardous condition is artificially created, the owner has a general duty to prevent an unreasonable risk of harm to persons outside the premises. Therefore hard to prove attractive nuisance in an industrial context.
Trespassers
Landowner has no duty to a trespasser to make her land safe, to warn of dangers on it, to avoid carrying on dangerous activities on it, or to protect the trespasser in any other way.
Exceptions
Constant trespass on a limited area if limited portion of land is frequently used by various trespassers, reasonable care required to make land safe or at least warn of dangers Discovered trespassers Once the owner has knowledge that a particular person is trespassing, the owner is the under a duty to exercise reasonable care
Attractive Nuisance
Property owner owes no duty to trespasser, unless trespasser is a minor; then liability for artificial danger requires - knowledge that kids are likely to trespass; - knowledge of an unreasonably dangerous condition; - kids b/c of their youth do not discover the danger - utility of the dangerous condition and burden of eliminating it are slight compared to risk to kids - owner fails to exercise reasonable care to eliminate it or otherwise protect kids.
33
Licensees
A licensee is a person who has the owners consent to be on the property, but who does not have a business purpose for being there, or anything else entitling him to be on the land apart from the owners consent. Licensee is usually a social guest.
Duty to Licensees
The owner does not owe a licensee any duty to inspect for unknown dangers. BUT if the owner KNOWS of a dangerous condition, she must warn the licensee of that danger
Invitees
The owner does owe an invitee a duty of reasonable inspection to find hidden dangers. Also, the owner must use reasonable care to take affirmative action to remedy a dangerous situation
Definition of Invitees
Persons who are invited by O onto the land to conduct business with O, and those who are invited as members of the public for purposes for which the land is held open to the public Open to the public = those who are on property for the purposes for which it is held open, even if peeps wont confer economic benefit Scope of invitation If visitors uses of premises goes beyond the business purpose i. EX: P goes into store to buy beer. O then allows P to use private bathroom in the back. P started out as an invitee, became a licensee when he went into private bathroom.
Lessor
Generally not liable once he transfers possession to lessee few exceptions
34
Known to lessor, unknown to lessee Open to public if lessor believes lessee will hold premises open to public, lessor has affirmative duty to inspect premises and repair damages Common areas the lessor has a general duty to use reasonable care to make common areas (e.g. the lobby or stairwells) safe Negligent Repairs if repairs are begun and are either unreasonable or incomplete, landlord may be liable General negligence standard same as occupiers of land
Vendors
Generally a seller of land is released from tort liability once he has turned over the property with these exceptions: Concealment if vendor doesnt disclose a known dangerous condition Builders where vendor is the builder, some courts apply general negligence to the vendor
SEE TORTS IN BRIEF FOR AN OVERALL SUMMARY OF DEFENSES IN NEGLIGENT ACTIONS (ADDRESSED WITHIN EACH OF THE SUBSECTIONS ABOVE)
35
Vicarious Liability
Vicarious Liability
Respondeat Superior (Formally Master-Servant Law)
employer is liable for his employee when those actions fall within the scope of employment Teen Angel Song Left his set route so court found that it wasnt respondeat superior but now a court likely would find respondeat superior because it was during hours of work, in the company van, etc. McDonalds Example: Security Guard is told that non-patrons cannot use the bathroom. A man sneaks in and the guard follows him and severely beats him with his club. Arguments: Outside Scope: We never said hit; this was a criminal act and therefore superceding and intervening Inside Scope: You gave him the club and he is security trained to use force when necessary Negligence (Not under Respondeat): Negligence in hiring, training, and supervising
Vicarious Liability relating to officers/govt agentsThere is no liability for the discretionary acts of the agents (immunity) only for acts falling outside of this realm
36
Strict Liability
Strict liability holds D prima facie liable for any harm he causes to P or Ps property, regardless of negligence. Makes D bear Ps loss, while negligence imposes liability only when need to alter Ds basic behavior. Not premised on fault, but is a policy choice to place accident losses from the activity on the actor rather than on its victims. SL forces internalization of costs of all injuries occurring from activity. Ultimately will squeeze out all activities whose societal costs outweigh social benefits
Animals
Trespass - Owner liable for damages caused by a trespassing animal Non-trespass liability A person is strictly liable for damage done by any dangerous animal he keeps. Animal is dangerous if he does not have animus revertendi (intent to return) i. Wild animals liable if damage done is from a dangerous propensity that is typical of the species in question ii. Domestic animals injuries caused by a domestic animal do not give rise to strict liability unless the owner knows or has reason to know of the animals dangerous characteristics
37
Products Liability
Products liability refers to the liability of a seller of a tangible item which, because of defect, causes injury to its purchaser, user, or sometimes bystanders. Based upon three theories : Negligence Warranty Strict Liability
MacPherson
Facts: D is manufacturer of Buicks; it bought a defective wooden wheel from a subcontractor and did not inspect the wheel before installing on car; sold a car to a retail dealer, who sold it to P. P was injured when wheel collapsed while he was driving. D claims that it owed duty of care, and thus was liable only for damages to retailer (under Winterbottom reasoning). Held (CARDOZO): Everyday items are foreseeably dangerous if improperly constructed. 2. Therefore the rule of precedent cases is not overturned merely interpreted more broadly than a simple close reading would suggest. 3. Liability follows where: a. products nature gives warning of the consequence to be expected; b. manufacturer knows that in usual course of events it will be used by persons other than the purchaser; c. manufacturer knows that its users will not perform their own safety tests; d. manufacturer knows that danger is not merely possible but probable (imminent danger); ALSO,
38
e. proximity or remoteness of the relation is a factor to be considered but not dispositive. 4. Here, car manufacturer passes all the tests and is thus liable. 5. Fact that Buick did not make the wheel is irrelevant; it was responsible (and liable) for the finished product. EVERY jurisdiction in America now uses the Macpherson rule.
Express Warranties
A seller may expressly represent that her goods have certain qualities. If the goods turn out not to have these qualities, the purchaser may sue for this breach of warranty KIND OF strict liability - as long as P can show that the representation was not in fact true, it does not matter that D reasonably believed it to be true, or even that D could not possibly have known that it was untrue
Implied Warranties
Implied from the fact that the seller has offered the goods for sale Warranty of merchantability goods must be fit for the ordinary purposes for which such goods are used Warranty of merchant seller must be a merchant of the goods in question NOTE: A manufacturers warranty extends to remote purchasers further down the line. NOTE: In most states, any user of the defective product not just the purchaser can recover
39
Non-manufacturer
SPL applies to retailer as well, and any other person in the distribution chain Ex: In above example, consumer could recover against dealer
Manufacturing Defect
A particular instance of the product is different from, and more dangerous than, the others, because the product deviated from the original design Res Ipsa Loquitor DIFFERENT than in negligence case! NOT conclusive if P proves that product has not performed as intended AND excluded all causes of accident not attributable to D, fact finder MAY infer Ds liability even if the fact has not yet been proven
Design Defect
All products are the same, and bear a feature whose design is in itself defective and unreasonably dangerous D has a duty to use reasonable care in design of its product to avoid subjecting user to an unreasonable risk of injury. NOTE: Compliance with industry standard of design does not necessarily protect from liability!
car; when he was thrown into back seat, he was killed by second collision (with the interior of his car). Issue: does D car maker have duty to protect Ps from second collisions cases where cause of injury is not the Ds product itself but the second collision caused by a third partys Neg. Held: YES. D is liable b/c it must guarantee safety for all intended use of its product, and intended use includes both proper use and the fact that theres a chance the driver may be in an accident. Second collision cases differ from other product liability cases in two ways: 1. the defect is design, not construction of the product. 2. the defect is not the cause of the initial impact. Reasoning: fact that the defect did not cause the first collision does not matter if defect was the cause of the ultimate injury.
Comment K Jurisdictions
Deals with pharmaceuticals serves to protect drugs that have a truly high public benefit. Many times, a comment K (Ss 402A) product will only become unsafe if it is used by someone other than the intended user (i.e. for whom it was prescribed) - Feldman Kearl holds "mini-trial" to determine if comment k applies. If it does, moves on to negligence issue; if not, strict liability o Benchmark is the polio drug vaccine (sets a very high benchmark) Brown Treats ALL pharmaceuticals under comment k (imposes negligence standard)
41
Use a Bifurcated Proceeding start with a mini-trial to see if the product is unavoidably unsafe
unreasonable, it will cause plaintiffs recovery to be proportionally reduced but NOT absolutely bar recovery. Ignoring Safety Precautions if P consciously fails to use an available safety device Use for unintended purpose if P totally misuses the product, D will not be relieved from liability unless the misuse was so unforeseeable or unreasonable that either a) the misuses couldnt reasonably be warned against or designed against, or b) the misuse is found to be superseding.
Nuisance
Type of Injury not a type of tort, but a type of INJURY which P has sustained. In the case of public nuisance the injury is the loss of any right that P has by virtue of being a member of the public. In the case of private nuisance, Ps injury is interference with his use or enjoyment of his land. Three mental states a suit for nuisance may be supported by any of the three defendant mental states intentional interference with Ps rights negligence abnormally dangerous activity or other conduct giving rise to strict liability
Public Nuisance
Common law rule: in general, nuisances to the public must be punished by a public representative that is, the gov't (usually administrative regulations or criminal prosecutions). However, an individual P may sue in civil action if he suffers special, peculiar or disproportionate harm than the average member of the public. Why? Not so much justice as efficiency all those actions are simply too hard to maintain. Examples of Public Nuisances that Give Rise to Private Actions: 1. Total loss of access to private land 2. Personal injuries. Harder Intermediate Cases - partial loss of access: usually uncompensable. E.g. Mass. Ct held that P could not recover when D City cut off his access to a closed street although he retained access to another street (707).
43
Ct applies straight Calabresian cheapest cost-avoider analysis: if we dont hold D liable, we wont give him an incentive to fix his offensive behavior. Comments: Epstein says Oppen can be read as an effort by court to prevent the destruction of the common pool. Resources not subject to private ownership will be consumed rapidly b/c all self-interested actors will not need to take into account the social losses that accrue from the damage done to the pool of fish through capture. Since Ps do not actually own the fish, court substitutes ownership by permitting Ps to recover on a nuisance claim. - But one difficulty with creating private ownership of common resources through permitting private actions is deciding who has standing who is so far removed from damage that their suit should be denied.
Private Nuisance
Unreasonable interference with Ps use and enjoyment of his land Nature of Private Nuisance 1. Must have interest in land P can sue based on a private nusance only if he has an interest in the land that has been affected 2. Elements P must demonstrate two elements in order to recover a. His use and enjoyment of his land was interfered with in a substantial way b. That Ds conduct was either negligent, abnormally dangerous, or intentional
Extra-Sensive Plaintiffs
Nuisance is one area where take victim as you find him does NOT apply judge him by objective standard.
Rogers v. Elliot
Facts: P was ill and confined to bed near church where bell-man (D) rang bell loudly each day, causing P to have convulsions. Ps doctor asked D to stop; D said he has no love for P
44
and would ring bell even if his own mother were sick; rang bell next day and P had convulsions. P sued for damages to his health. Held: An activity to be a nuisance must offend a reasonable person of ordinary sensitivities, not an abnormally sensitive plaintiff. Otherwise, factories would shut down every time a sick person passed by, etc. Industry could not prosper.
Main lesson of Boomer: courts in nuisance cases can balance interests of all the parties and craft creative solutions. Remedy for nuisance at common law has always been fairly fluid; Cts have wide discretion in what types of damages to award. And sometimes Ct will find a nuisance, but then refuse to award damages for policy/economic reasons. This especially happens in cases where Ps claim is malicious e.g. P doesnt have to locate his house near a farm, but does so and then sues to enjoin its operation. When crafting a solution, a Ct in a nuisance case CANNOT award damages to Ps once and then bar future buyers of those homes from suing again. SCOTUS bars this as a Due Process issue. Malice in nuisance: In cases like bell-ringing case, malice (in the D) can be very important here courts are likely to enjoin, when D is malicious.
46
DEFAMATION
Libel and Slander. To establish a prima facie case for either libel or slander, P must prove:
Components of Defamation
1. Defamatory statement
A false or defamatory statement that tends to so harm the reputation of another so as to lower him in the estimation of community or to deter third persons from associating or dealing with him * Community must be a substantial and respectable subgroup of the population that find the statement defamatory does not count if it only offends some individuals with peculiar views * Group Defamation hard to win court says its unconstitutional for a huge group to recover i.e. a group of 600 million Muslims in class action against a derogatory film * Injurious falsehood if you say something false that harms someone but does not defame (i.e. a competitor says other store is out of business when its not) you can be liable * Accidental Publication no liability if thief steals and publishes a manuscript that says defamatory things in it from your desk. Must be at least negligent, if not intentional NOTE: Innocent construction rule if there is a way to interpret a statement as innocent then interpret it that way! However, you must consider the statement in context giving the words and implications their natural and obvious meanings.
2. Publication
a COMMUNICATING of that statement to a person other than the plaintiff Publication to agent of the defamer communicating defamatory matter to an agent does not prevent it from being an actionable publication. However, if agent is considered a component part of one corporate function, there is NO publication (i.e. a lawyer dictating to his legal assistant) Republisher one who takes document and repeats it is just as liable as publisher can be liable for not removing statement one knows is false Dissemination: exposing material to a broader audience taking chattel with a defamatory statement and selling it or making it public liability depends on whether they had notice/reason to know it was defamatory.
3. Fault
fault on the part of the D, amounting to at least negligence, and in some instances a greater degree of fault
47
4. Special Harm
either or a pecuniary nature, or the actionability of the statement despite the non-existence of such a specific harm *Must be able to reasonably identify P as the subject of statement
Libel
Consists of a written or printed matter more dangerous because its permanent Generally actionable without proof of special damages Libel per quod when listener requires extrinsic facts to identify that person Libel per se when D specifically names a person
Slander
Mainly involves false spoken words also gestures Generally actionable only upon proof of specific damages (b/c its harder to prove as it is not written) 4 CATEGORIES CONSIDERED SLANDER PER SE Here P does not have to prove special damages, but may have to prove pecuniary loss. P still has to prove the injury, but can do it with witnesses that come from the community 1. Crime statements attributing morally culpable criminal behavior to P 2. Loathsome Diseases statements alleging that P currently suffers from a venereal or other loathsome and communicable disease, such as the clap. Do YOU have the clap? DO YOU? 3. Business, profession, trade or office an allegation that adversely reflects on Ps fitness to conduct her business, trade, profession, or office a. P cheats his customers! 4. sexual misconduct statement imputing serious sexual misconduct to P IN ALL CASES TRUTH IS A DEFENSE Ie Yer moms a whore! is not slander if your mom, is in fact, a dirty dirty whore.
48
Criminal conduct by public officials: is subject to the NY TIMES rule, even if the criminal
conduct seems unrelated to the Ps official capacity see Monitor Patriot v. Roy (SCOTUS 1971) D newspaper called a political candidate a former small time bootlegger NO DEFAMATION.
Qualified Privilege
Protection of publishers interest i.e. if D thinks that P stole his property, he can say as much to the police Interest of others D can act for the protection of the recipients of his statements i.e. an ex-employer generally has the right to give information about his ex-employee to a new prospective employee when asked Public Interest ex: A private citizens reasonable but mistaken accusation made to the police that P committed a crime Report of public proceedings reporting on court cases, legislative proceedings, etc
49
Neutral reportage one who correctly and neutrally reports charges made by one person against another will be protected if the charges are a matter of public interest, even if the charges are false
50
INVASION OF PRIVACY
Misappropriation of Ps name or picture
P can sue if her name or picture has been misappropriated by D for his own financial benefit
Intrusion on Ps Seclusion
P may sue if his solitude is intruded upon, and this intrusion would be highly offensive to a reasonable person
51