I.

Unborn Children a. There can be no recovery for the death of an unborn child. i. The law has been willing to allow recovery for a child who is injured in the womb, but the child has to be born before damages can be brought. Endresz v. Friedberg b. A majority of states uphold a civil claim for the wrongful death of an unborn child. i. Usually triggered by whether or not the child was viable at the time of the injury. c. An injury to a mother which results in injuries to a later conceived child does not establish a cause of action in favor of the child against the original tortfeasor. d. Wrongful Life refers to a cause of action brought by or on behalf of a defective child who claims that but for the defendant doctors negligent advice to or treatment of its parents, the child would not have been born. i. Only a few jurisdictions recognize this as a legitimate claim. ii. May recover special and medical expenses but not damages for wrongful life. Procanik e. Wrongful Death applies to the cause of action of parents who claim that the negligent advice or treatment deprived them of the choice of avoiding conception, or of terminating the pregnancy.

OWNERS AND OCCUPIERS OF LAND f. General Rule i. The owner is responsible for preventing the activities of anyone on her property if she knows or should know there is a danger to outsiders. Reasonable precautions std. (Salevan v. Wilmington--- baseballs) ii. A landowner is under a general standard of reasonable care to prevent an unreasonable risk of harm is to be decided as a question of fact upon the circumstances of the individual case. Taylor v. Olsen g. Outside the Premises i. A landowner has a general duty to prevent an unreasonable risk of harm to persons off the land from artificial conditions. The distinction between natural and artificial conditions is gradually falling out of favor, but it still important. ii. Natural Conditions - The general rule is that a landowner has no duty to protect one outside the premises from natural conditions on the land (examples include normal flow of surface water, and natural vegetation) 1. Exceptions a. Decaying trees next to sidewalks or streets in urban areas. i. Taylor v. Olsen- D couldnt have known about the decayed condition of the tree and a reasonable person isnt expected to regularly inspect his trees. IF he knew/should have known he would be liable if he didnt take reasonable precautions. ii. In urban/suburban areas there may be an affirmative duty to inspect trees to prevent them from posting an unreasonable risk of harm.

b. Once the landowner alters the condition of his land it becomes artificial and he most exercise reasonable care for the protection of those outside the premises iii. Artificial Conditions General duty to prevent an unreasonable harm. 1. Definition of Artificial a. Once a land owner alters a condition of his land, it becomes an artificial one for the purposes of tort law b. This also deals with conditions that may appear, on the surface, to be a natural one but actually have been altered. 2. Specifically a. Unreasonable Dangerous Conditions - A landowner is liable for damage caused by unreasonably dangerous artificial conditions or structures abutting adjacent land. i. Example While one would not be liable for natural collections of ice on the sidewalk, he might be liable for negligently permitting water to drain off his rood and form ice on the sidewalk. b. Duty to Protect Passerby A landowner also has a duty to take due precautions to protect persons passing by from dangerous conditions i. Ie. P walking along public sidewalk sits on Ds doorstep to tie his shoe and is injured when a brick falls on him liability ii. No liability as to dangers a considerable distance from the highway c. When the land has a deceptive appearance of being a continuation of the public way, a duty may be imposed on the landholder to guard a trap or excavation even though the hazard actually was a considerable distance within private property. i. Courts tend to treat this accidental trespasser as an invitee for some reason. iv. Criminal Opportunities 1. No duty to people off the premises who are mugged by third parties. 2. Hall likes this because it is tricky and not a directly logical application. h. On the Premises Generally, the nature of a duty of an owner or occupier of land to those on the premises depends on the legal status of the plaintiff in regard to the property (i.e. trespasser licensee, or invitee) i. Trespassersgenerally, no duty 1. Sheehan v. St. Paul- Guys foot gets caught in railwayno duty to unknown trespassers, but there may be a duty of reasonable care once his presence is discovered. 2. No duty to discover trespassers 3. Exceptions

a. Discovered/known trespassers Once a land owner discovers the presence of a trespasser, he is under a duty to exercise ordinary care to WARN the trespasser of, or to MAKE SAFE, artificial conditions known to the landowner that involve a risk of death or serious bodily harm and that the trespasser is unlikely to discover. There is no duty owed for natural conditions and less dangerous artificial conditions. i. The owner or occupier also has a duty to exercise reasonable care in the exercise of active operations on the property. ii. Same as duty to licensee! --exercise reasonable care to warn licensee of, or make safe, natural or artificial conditions, and in carrying on any activities, involving any risk of harm known to the land occupier and not obvious to the reasonable entrant, including threats of harm by third persons already on the land. iii. D cant injure the T negligently by an act specifically directed at him iv. Liable for conduct that is willful or wanton v. Duty to use ordinary care to avoid injuring discovered trespasser by active operations. b. Frequent trespassers to a limited area of landreasonable care standard c. Tolerated intruder d. Dangerous conditions obvious to an owner. e. should a land occupier discover a trespasser trapped or injured and helpless on the occupiers land, the occupier has an affirmative duty to use reasonable efforts to aid the trespasser. ii. Note: Courts rely on the motivation of the non-landholders presence to decide the category (invitee, licensee) the person falls into. 1. Invitees/licensees who fail to stay within the scope of the area becomes a trespasser. iii. Licensees--- warn or make safe known hazards 1. A licensee is one who enters on the land with the landowners permission, express or implied, but who does not have a business purpose. Ie. Social guests 2. Barmore v. Elmore P went to Ds lodge to discuss business and was stabbed by Ds sonheld to be a licensee bc there was no benefit to D no duty to use reasonable care, simply a duty to warn of known dangers. a. No duty to Inspect for unknown defects or repair known defects (as opposed to with an invitee)

b. duty to exercise reasonable care in the conduct of active operations for the protection for the licensee whom he knows to be on the property. c. Social Guests . i. Take the premises as you find it 1. duty to warn the licensee of any hidden dangers which are unknown to his guests, of which he , the owner, has knowledge, and to refrain from injuring his guest willfully or wantonly. ii. Performance of minor services for the host does not make the guest an invitee. d. Firefighters rule police officers and firefighters are generally treats like licensees rather than invitees, based on public policy or assumption of risk grounds. They cannot recover for a landowners failure to inspect or repair dangerous conditions that are an inherent risk of their law enforcement or firefighting activity. iv. Inviteesduty to exercise reasonable care in keeping the premises reasonably safeso to inspect for hidden dangers and remedy them 1. An invitee is a person who enters onto the premises in response to an express or implied invitation of the landowner for some purpose related to the activities or interests of the land occupier. 2. Basically, there are two classes of invitees: a. Those who enter as member of the public for a purpose for which the land is held open to the public (museums, churches, airports) b. Those who enter for a purpose connected with the business or other interests of the landowner or occupier (store customers and persons accompanying them, employees, persons making deliveries) 3. Essentially an invitee is there for the benefit of the landowner, so he owes some care. 4. Campbell v. Weathers- P sued D store owner when he fell on his way to bathroom before buying anything if one goes into a store w/ a view of then, or at some other time, doing business with the store, he is an invitee natural or pecuniary benefit 5. Whelan v. Van Natta : There is a scope in which an individual is an invitee within a store. However, once an individual has left that scope he is a licensee. 6. Examples of Invitees a. An entrant serving some purpose of the possessor generally is treats as an invitee (garbage man, mail carries, gas meter readers, etc)

b. Ppl attending free meetins, spectators at free parks, person going into a bank for change, state land open to the public, visitors at national parks. c. Person who is invited to go to an unusual part of the premises to make his selection (e.g. stockroom) 7. Duty Owed a. The landowner owes an invitee a general duty to use reasonable and ordinary care in keeping the property reasonably safe for the benefit of the invitee. This general duty includes the duties owes to licensees (to warn of non-obvious, dangerous conditions known to the landowner and to use ordinary care in active operations on the property) plus a duty to make reasonable inspections to discover dangerous conditions and, thereafter, make them safe. b. The duty owed is reasonable care in all circumstances, meaning, that even though the danger is known to the plaintiff, the defendant may be found to be negligent if it is not too difficult to eliminate the danger and he should reasonably anticipate that the plaintiff might still be injured by it. i. Includes situations in which a warning is not enough. c. Modern trend towards making safe in addition to warning d. A number of jurisdictions hold that the invitor owes no duty to any invitee who slips or falls because of an obvious natural hazard, such as snow or ice. i. A puddle in a floor? Not a natural hazard the roof failed. ii. A puddle outside the store is natural most likely. e. Whether the I becomes a L or T when he goes outside the area of his invitation depends on if he got permission. v. Scope 1. A person loses her status as an invitee if she exceeds the scope of the invitation-if she goes into a portion of the premises where her invitation cannot reasonably be said to extend. (Note that the invitation normally does extend to the entrance and steps of a building) 2. The defendant may be found to be negligent if it is not too difficult to eliminate the danger and he should reasonably anticipate that the plaintiff might still be injured by it. 3. A number of jurisdictions have held that when the hazard is natural one such as ice, snow, or rainwater, the invitor owes no duty to any invitee who slips or falls because of the hazard. vi. Merging categories 1. Rowland v. Christiansocial guest hurt himself on a cracked handle that D knew and had complained aboutadopted general negligence standard and said C should consider factors a. Closeness of connection between injury and Ds conduct b. Moral blame attached to conduct c. Policy of preventing future harm d. Prevalence and availability of insurance.

2. Considerable agreement that the general negligence std should be applied to licensee and invitees- but no agreement on if it should apply to trespassers. i. Lessors/lessees i. NB. Borders v. Roseberrysocial guest at leased home slipped and fell bc water was dripping from the roof and had frozenno liability upon landlord for defective conditions existing at the time of lease. SIX IMPORTANT EXCEPTIONS 1. Undisclosed dangerous conditions known to lessor and unknown to lessee. R2d 358 a. a lessor of land who conceals or fails to disclose to his lessee any condition, natural or artificial, which involves unreasonable risk of harm to persons on the land, is liable if i. Lessee does not know or have reason to know of condition AND ii. Lessor knows or has reason to know of the condition and realize/should realize the risk and has reason to expect that lesee will not discover the condition b. If the lessee actively conceals the condition the liability continues until the lessee discovers it and has reasonable opportunity to take effective precautions, if not liability continues until the lessee has had reasonable opportunity to take effective precautions 2. A lessor of land who transfers the property in a condition which he realizes/should realize involves unreasonable risk to others outside the land is subject to the same liability as if he had remained in possession. 3. Land leased for a purpose involving the admission of the public-- landlord has affirmative duty to exercise reasonable care to inspect and repair the premises before possession is transferred to prevent unreasonable risk 4. Parts of the land that remain under lessor's control 5. Where lessor contracts to repair, before could only sue under K law for breach, now can sue in tort in most jx 6. Negligence in making repairs if the tenant neither knows nor should know that the repairs have been negligently made. ii. Pagelsforf v. Safecoinvitee fell of porch bc of defective railingno longer use general non-liability with the six exceptions, rather apply general reasonable care negligence standard. 1. A landlord owes his tenant or anyone on the premises with the tenants consent a duty to exercise ordinary care. If a person lawfully on the premises is injured as a result of the landlords negligence in maintaining the premises, he is entitled to recover from the landlord in maintaining the premises, he is entitled to recover from the landlord under general negligence principles j. Children i. General - Most courts impose upon a landowner the duty to exercise ordinary care to avoid reasonably foreseeable risk of harm to children caused by artificial conditions on his property.

ii. Chile Licensees: there may be some duty to inform a child licensee of a risk where an adult would not have to be informed. iii. Attractive Nuisance Doctrine R2d 339 1. A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if a. the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and b. the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and c. the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and d. the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and e. the possessor fails to exercise reasonable care to eliminate the danger or otherwise protect the children. 2. Important that the child is not mature enough to recognize the danger! 3. Limitations a. Common hazards on the ground that any child of sufficient age to be allowed at large by his parents, and so to be likely to trespass, can be expected as a matter of law to appreciate the danger and avoid it, or at least make his own reasonable and intelligent choice. b. Eliminates hazards that arise in the state of nature iv. Criminal Acts 1. A landlord has the duty to take reasonable precautions to protect tenants from foreseeable criminal acts of third parties (Kline v. 1500 Massachusetts Ave. Apartment Corp.) 2. A landlord who has a doorman, but then eliminates him, has acknowledged that there is a problem. 3. Several decisions finding landlord liable to tenant or its employee or agent for an attack by a 3rd person when the attack was foreseeable and reasonable steps to increase security would have prevented it. 4. Shifts the burden to the landlord to keep people safe a. Idea that the landlord is best equipped to deal with the situation i. This is not always true b. Public policy can go both ways on this issue DAMAGES II. The plaintiff must show damages in order to impose liability on the defendant AND Unlike in intentional torts, in every case where liability is based on negligence, there must be a showing of actual damages to person or property.

III.

IV.

Andersonhouse burned down-- 5 types of damages a. past physical and mental pain b. future physical and mental painmost C say dont have to reduce to present value c. future medical expenses d. loss of earning capacity e. permanent disability/disfigurement f. Richardonadds pain and suffering. Types of Damages a. Special Damages the plaintiff is entitled to recover all economic losses and expenses she has suffered as a result of the injury (e.g. medical bills, lost wages or business profits, cost of hiring household help, etc.) i. This includes expenses already incurred, and expenses that the plaintiff proves she probably will incur in the future. ii. Future Economic Losses 1. The recovery for loss of future loss of earnings, medical expenses, etc, can be taken into account whatever period of time the plaintiffs disability is expected to last. b. General Damages in addition to all special damages incurred, the plaintiff is entitled to recover those damages deemed inherent in the injury itself (e.g. pain and suffering past and future and any disfigurement loss of limbs, scaring or any disability attributable to the injury. i. Pain and Suffering before death 1. You can get a lot of money even if the person only suffers a little while a. Victim must be conscious enough to suffer ii. Pre-impact fear and post-impact fear 1. Most courts award damages for fear caused by apprehension of impending death. iii. Loss of enjoyment of life 1. Most courts have refused to recognize a separate item of damages called loss of enjoyment of life that would cover such matters as the inability to be active or play the violin. a. These should be considered in pain and suffering. iv. Unexpected Damages 1. Defendant takes the plaintiff as he finds them, so the defendant is liable for all injuries actually sustained by the plaintiff even if the plaintiff is abnormally sensitive. c. Punitive damagesonly where the conduct is particularly outrageous i. Product liabilitynot if its just strict liability, only if P can show D knew of the defect and made the product anyway issues though with multiple punitive awards. ii. Constitutional limits 1. State Farm v. Campbellfew awards may exceed a single digit ratio---- must consider a. degree of reprehensibility

V.

VI.

VII. VIII.

IX.

b. disparity between actual/potential harm suffered and the award c. difference between punitive damages awarded and those in similar cases 2. Gorecant be grossly excessive 3. CA considers a. Character of Ds act, the nature and extent of the harm to the P and the wealth of the D. 4. Other C have added a. Ds degree of awareness of the misconduct, profitability of M, duration of M, attitude & conduct of D upon being discovered, financial condition, and total deterrent effect of other punishment. Collateral Source ruleMontgomery WardP can recover even if they are reimbursed by a third party, unless that third party isnt acting on Ds behalf (like their insurance co.) MitigationZimmerman-- P may not recover damages which he could have reasonably avoided through seeking adequate medical care. BOP is on D. The test is what a reasonable person in the circumstances would do. Cheatham-- State statutes on punitivesOK that 75% of all punitives went to the state. Pure Economic Loss-- when a person suffers pecuniary (money related) loss not consequent upon injury to his person or property. a. In situations where the loss is purely economic, courts are more likely to restrict the claim. b. Two Relevant Categories i. Negligent misrepresentation or misstatement causing economic loss, and ii. Negligent acts causing economic loss. c. General Rule: i. Deny recovery if we are talking about pure monetary damages ii. The fact that you have negligently damaged a person or property resulting in economic loss means that the economic loss is recoverable. Emotional Distress a. Where the plaintiff has narrowly escaped imminent and serious harm to his own physical well being, the courts have readily allowed recovery upon a demonstration of ensuing mental disturbance. b. Still impose the reasonable person standard i. No hypersensitive recovery. ii. liable for the heart attack. iii. Eliminates the impact requirement. c. Only applies to a persons own physical well being. d. Physical Injury i. A nervous disorder can be a physical injury because it is an illness that can be objectively analyzed 1. All we need is a mechanism by which the injury can be measured for it to be physical.

X.

Survivalold law was if either party dies prior to judgment the case went away, but this has been changed by statute in most jx. a. Wrongful deathcompletely new COA that can be brought by family members of the deceased and focuses on pecuniary loss that results from the wrongful death.

DEFENSES I. Contributory Negligence (Basically gone) a. Definition i. Conduct on the part of the Plaintiff which is a contributing cause to his own injury and falls below the standard of care to which he is required to conform for his own protection ii. All or nothing! At common law. b. Requirements i. Objective Standard (unless a child, then it is a subjective test)-- reasonable person would have under the same or similar circumstances. ii. Plaintiffs negligence must be a substantial factor! iii. The burden of pleading and proving contributory negligence is on the defendant. c. Causation in Fact Plaintiffs negligence stand on the same footing as defendants and will bar recovery only if it is a substantial factor in bringing about the results d. Contributory negligence is not a defense to an intentional tort. e. Generally contributory negligence is still held to be a defense although defendant was negligent per se because of violations of a statute. f. Question is up to the jury and courts have been reluctant to take it away with a summary judgment or JML g. Last clear chance i. Davies v. Mannhorse accidentif just before the accident D had an opportunity to prevent the harm the existence of this opportunity (the last clear chance) wipes out the effect of Ps contributory negligence. ii. Basically, if D had the last opportunity to avoid harm and failed to do so bc of his negligenc,e then he cant assert the affirmative defense of CN. II. Comparative Negligence (adopted by most states!) a. Definition --- Mcintyredrunk guys crash into each otheronly case i. Attempts to individualize accident recoveries by placing the economic sting on the parties in proportion to their fault! b. Types i. Pure Li v. Yellowcab 1. Defendant is liable for any portion of his negligence which caused the damage, even if his damage is greater than 50%.

III.

ii. Modified: Defendant is liable only if his negligence is below a certain percent. 1. Not as great as jurisdiction Cannot be 49% or more a. Can the plaintiff recover if 50% at fault? No. 2. Not greater than cannot be 50% or more a. Cant he plaintiff recover if 50% at fault? No. iii. Slight/Gross (only used in South Dakota) 1. Plaintiffs negligence must be slight in the face of the defendants negligence. c. Burden of Proof is on the defendant i. He is the one trying to get off after all. d. Application of the comparative negligence rule i. The new rule makes the doctrines of remote contributory negligence and last clear chance obsolete. ii. In cases of multiple tortfeasors, plaintiff will be entitled to recover so long as plaintiffs fault is less than the combined fault of all tortfeasors. e. Joint and Severed Liability i. It is questionable whether it has value 1. P benefits in that they dont have to sue everyone 2. Other jx have claimed that it is outdated. Assumption of Risk- Plaintiff assumes the risk when he has knowledge, comprehension, appreciation of a danger and voluntarily chooses to encounter it. a. Requirements i. Knowledge of a particular risk 1. This is essential! ii. Appreciation of its magnitude iii. Voluntary encountering of the risk. 1. Look for voluntary acts with volitional acts a. Many acts are volitional, but not really voluntary b. Assumption of Risk acts as a complete defense! i. It matters in jurisdictions where contributory negligence (also a complete defense) has been thrown out for comparative negligence. ii. Comparative negligence allows some recovery c. Two basic issues involved when defendant asserts that plaintiff expressly assumed a risk i. Whether that risk that injured the plaintiff fell within the unambiguous terms of the agreement. ii. Whether the contract itself violates public policy and therefore should not be enforced. d. Types i. Express: parties agree in advance that the defendant will not be liable 1. Contractual (exculpatory clause) a. D can use an exculpatory clause to get out of liability if clause was valid and the plaintiff knew what she was agreeing to.

b. Seignur v. National Fitness Institute-- Three situations have been identified where public interest will render an exculpatory clause unenforceable i. 1. When a party protected by the clause unintentionally causes harm or engages in acts of reckless, wanton, or gross negligence. ii. 2. When the bargaining power of one party to the contract is so grossly unequal so as to put that party at the mercy of the others negligence. iii. 3. Then the transaction involves the public interest. ii. Implied 1. D must show that Ps actions demonstrated that they knew of the risk in question a. Usually this standard is subjective and P must ACTUALLY have known of the PARTICULAR risk. 2. and voluntarily consented to bear that risk themselves. a. Duress-- Rush v. Commercial Realtyshe had no other choice but to use the outside bathroom which constitutes duress. b. Existence of a reasonable alternative will mean taking the dangerous choice was AOR, whether it is reasonable depends on factors such as dangerousness, inconvenience, etc. If the lack of alternatives isnt Ds fault, the AOR defense will still apply. (ie. I have no choice but to get in your car with no brakes bc I have to get to the hospitalI have assumed the risk). iii. Implied AOR and CN 1. Blackburn v. Dorta: The court held that implied assumption of risk as a defense had been merged into the defense of comparative negligence.. 2. random a. Common Carriers and public utilities are not permitted to limit their liability for person injury by a disclaimer on (e.g. a ticket, a posted sign) b. Risks will not be assumed in situations involving fraud, force, or an emergency. (e.g. e. Note: i. Rescuers do not assume the risk ii. If objective standard overcomes the subjective standard, plaintiff is contributorily negligent. f. EFFECT OF COMPARATIVE NEGLIGENCE

IV.

i. In a contributory negligence jx the only time AOR can be a total bar to recovery is where it is an express AOR. Implied AOR has generally been merged into and replaced by comparative negligence. ii. Primary assumption of risk--- no duty at all bc D is reasonable in relying on the fact that P understands and has assumed the risks. Secondary--- D does owe a duty of care but P knowingly encounters the risk, most C apply comparative N. iii. Sometimes P may be reasonable in encountering the risks, in which event her recovery will not be reduced, even in a comparative N state. iv. g. Assumption of Risk v. Contributory Negligence i. Assumption of risk involves the meeting of subjectively known risk. ii. Contributory negligence may involve a plaintiff exposing himself to danger of which he was subjectively unaware but which would have been apparent had he used due care. iii. Examples: 1. Teaching a new driver to drive? Assumption 2. Entering a premises in the dark without using caution negligence 3. Plaintiff thinks he can handle the risk and acts anyway assumption 4. Driving with a drunk driver assumption iv. Important not to put assumption out unless all 3 elements are met. Statute of Limitations a. Provides a complete bar to actions that did not meet the actions limited time period to bring the action i. Teeters v. Curreypregnancy issues--- COA accrues and the SOL begins to run when the patient discovers or in the exercise of reasonable care should have discovered the resulting injury. b. Tolling- Stop the running of time within which to file for various reasons (minors, legally insane, incompetent, etc.) c. Statues of Repose i. Limits potential liability by limiting the time during which a cause of action can arise. ii. Substantive rather than procedural nature and stem from the equitable concept that a time should arrive when a person is no longer responsible for a past act. iii. This may run out before the action even takes place. iv. These are statute based. v. Example: 1. Congress has provided an 18-year statute of repose for general aviation manufacturers vi. Problems: 1. The statute can run before a person ever has a chance to get hurt.

VICARIOUS LIABILITY V. Definition a. Legal doctrine that assigns liability for an injury to a person who did not cause the injury but who has a particular legal relationship to the person who did act negligently. b. It does not matter whether or not the employer was negligent. c. liability even though the other person has played no part in it, has done nothing whatever to aid or encourage it, or indeed has done everything possible to prevent it. d. This liability rests upon a special relationship between the tortfeasor and the person to whom his tortuous conduct is ultimately imputed. e. It is also referred to as imputed negligence i. The tort which imputes negligence of one person to another (like a employer, parent, guardian, caring for elderly parent) ii. Look to the person higher up Specifics for Employee/Employers a. The employer is liable for the torts of employees that occur within the scope of their employment. i. An employee acting within the scope of his employment when he is performing services for which he has been employed, or when he is doing anything which is reasonably incidental to his employment-the test is whether such conduct should have been fairly foreseen from the nature of the employment and the duties relating to it (OShea v. WelchD driving from store to deliver football tickets and made spontaneous decision to pull into service stationsays you have to consider 1. Ees intent 2. Nature, time and place of deviation 3. Time consumed in deviation 4. Work for which the ee was hired 5. Incidental acts reasonably expected by er 6. Freedom allowed to the ee in performing his job b. Employers can also be held liable for intentional tort, but its less likely bc if you can show the ee acted from purely personal motives, its considered to not be part of the employment anymore. i. Ie. A bill collector trying to collect a debt who is charged with assaultemployer will still be vicariously liable c. Going and Coming Rule i. Generally, employees daily commute to and from work is outside the scope of his employment-based on the assumption that during those times the employee is not rendering services to his employer. ii. Exception 1. When the employers negligence endangered the employee and the danger was a foreseeable occurrence. Bussard v. Minimed-- driving home after being negligently exposed to pesticides at work and getting into an accident

VI.

VII.

VIII. IX.

2. Foreseeability test. Punitive Damages a. Most courts have followed the R2d 909 in that the principal (whether an individual or corporation) is liable for punitive damages only if the principle authorized or ratified act, was reckless in employing or retaining the agent, or the agent was employed in a managerial capacity and was acting in the scope of employment. An employer can still be negligent in how he hired or retained the employee a. He could fail to do an adequate background check Independent Contractors a. Generally there is no liability on employer for independent contractor UNLESS: i. Non-delegable duties (maintaining roads) 1. Operates not as a substitute for liability based on negligence, but to assure that when a negligently caused harm occurs, the injured party will be compensated by the person whose activity caused the harm and who may therefore properly be held liable for the negligence of his agent. 2. Restatement of Torts 423: One who carries on an activity which threatens a grave risk of serious bodily harm or death unless the instrumentalities used are carefully maintained, and who employs an independent contractor to maintain such instrumentalities, is subject to the same liability for physical harm caused by the negligence of the contractor in maintaining such instrumentalities as though the employer had himself done the work of maintenance 3. Maloney v. Rathgot in an accident bc of brakes which were negligently repairedcant shift liability to ICOne who by statute or regulation is under a duty to provide specified safeguards or precautions for the safety of others is subject to liability for harm caused by the failure of a contractor employed by him to provide such safeguards. (4 reasons are hes the primary beneficiary, he gets to pick repairman, his insurance distributes the risk, high public importance that he maintain his car. 4. Other examples of non-delegable duties a. Work involved peculiar risk of physical harm b. Work is done in a public place like a road, sidewalk, park c. Person hiring IC is a landowner who owes P a duty to use reasonable care to keep the premises safe d. General contractor to construct a building safely ii. Apparent Authority: 1. One who expressly or impliedly represents that another party is his servant or agent may be held vicariously liable for the latters negligent acts to the extent of that representation. 2. Allows an injured party who reasonably relies on the representation to hold the party who made the misrepresentation liable. b. Collateral Negligence

X.

XI.

1. Inherently dangerous activity exception does not apply when the independent contractors negligence is deemed collateral to the risk. 2. In other words, not recognizable in advance as particularly likely to occur or as calling for special precaution. c. Contractor or Employee?? Murrell v. Goertzthe test is whether the person has the right to control the physical details of the work (here held IC) Joint enterprise/Venture a. Popejoycar trip to buy a calf for the daughter, held not to be JVelements i. An agreement, express or implied, among group members ii. Common purpose iii. Community of pecuniary interest in that purpose iv. An equal right to a voice in the direction of the enterprise which gives an equal control Bailments a. Malchose v. Kalfell- parents are liable under the family car doctrine. The head of the household need not own the vehicle, but must furnish it for the use, pleasure, and business of himself or another family member.

STRICT LIABILITY--- Liability is imposed irrespective of whether anyone was at fault. XII. Animals a. Trespassing Animals i. The possessor of livestock trespassing on the land or chattels of another is strictly liable for the trespass itself and any harm done by the trespass. R.2. 504 ii. Developed the rule that the owner of animals of a kind likely to roam and do damages are strictly liable for their trespasses. iii. In some states, animals are permitted to run at large unless a county adopts a fencing in or fencing out ordinance. b. Domestic Animals a person is not strictly liable for injuries caused by a domestic animal (e.g. dogs, cats) unless the defendant has knowledge of the dangerous propensities of the animal. i. Without knowledge of a domestic animals dangerous propensities an owner is not liable for injuries caused. 1. HOWEVER! After the first bite, such knowledge is presumed. a. Essentially every dog is entitled to one bite. 2. The standard is abnormally dangerous as compared to other dogs. ii. Strict Liability for physical harm done 1. The possessor is likable only for injuries attributable to the animals known dangerous propensity. 2. Compare normally dangerous domestic animals. a. The possessor of a domestic animal belonging to a class of animals that normally has dangerous propensities, is not

XIII.

strictly liable for injuries caused by that animals normal dangerous propensity. iii. Sandy v. Busheyhorse kicks P while on Ds landD is liable bc even though the CL rule is domestic animals are not liable for injuries done by those animals in places where they have a right to be, D IS liable if the animal has behaved viciously in the past. iv. So basically, the exception is that D is nott liable if the injury is not attributable to the animal, but rather to the injured partys unnecessarily and voluntarily putting himself in a position where he knew he risked being hurt, so that he fairly brought the injury on himself. c. Wild Animals A possessor of a wild animal is subject to liability to another for harm done by the animal to the other, his person, land or chattels. i. Knowledge of dangerous propensity is not necessary, provided that the harm results from the normal propensities. Abnormally Dangerous Activities a. General Rule One who maintains an abnormally dangerous condition or activity on his premises or engages in an activity that presents an unavoidable risk of harm to the person or property of others may be liable for the harm caused even if the defendant has exercised reasonable care to prevent the harm (519) b. Rylands v. Fletcher- reservoir that burst into the minesa person who for his own purpose brings on his lands, and collects and keeps there anything likely to do mischief if it exapes must keep it at his peril, and if he does not do so, is prima facie, answerable for all the damage which is the natural consequence of the escape. c. Foster v. Preston Mill- scared mink kills kittensthe harm must result from that which makes the activity ultra hazardous, similar to proximate cause. d. Golden v. Armory- hurricaneSL doesnt apply to acts of god *extraordinary events* e. Factors to determine whether an activity is ultra-hazardous under the first restatement. i. Existence of high degree of risk of some harm to the person, land, chattels of others. ii. Likelihood that the harm that results from it will be great. iii. Inability to eliminate the risk by the existence of reasonable care. iv. Extent to which the activity is not a matter of common usage. v. Inappropriateness of the activity to the place where it is carried on. vi. Extent to which its value to the community is outweighed. vii. Miller v. Civil Constructors- police range ricochetquestion is essentially whether the risk created is so unusual either because of its magnitude or bc of the circumstances surrounding it as to justify the imposition of strict liability. If something is ultra hazardous it's always ultra hazardous, whereas if something is abnormally dangerous depends on the nature of the location where the activity takes places. viii. Indiana Harbor Belttrain leaks toxins-- Strict liability is only imposed when the high degree of risk associated with an activity cannot be eliminated through due care.

XIV. Social utility is important in talking about strict liability a. If we are talking about something so dangerous and ultra-hazardous, that doing it at all would create loophole, then strict liability is appropriate. PRODUCTS LIBILITY XV. The law of products liability focuses on the liability of a supplier of a product for physical harm to person or property caused by defects in the product. a. If the product simply does not perform as well as expected, causing purely economic loss to the buyer, this is primarily a sales problem and is covered in detail in the Sale and lease of Goods Summary. XVI. General Principal A manufacturer or supplier who sells a chattel that he knows is defective or dangerous, without warning of the danger, may be held liable for battery to any person injured through use or consumption of the product. As long as the manufacturer or supplier believed the injuries were substantially certain to result from the use of the chattel, he will be held to have intended the consequences of his acts. XVII. Three theories of Product Liability a. Negligencewhere the M has failed to use reasonable care in designing, manufacturing, or labeling the product. i. Privity is not required P must simply be a foreseeable victim MacPherson v. Buick (cars) Also did away with requirement that P show the product is inherently dangerous. ii. BL Rule--- One who negligently manufactures a product is liable for any personal injuries proximately caused by his negligence. 1. If only economic harm, C are split on whether he can recover from a remote seller. 2. Bystanders can only recover if they can prove they were foreseeable (ie a pedestrian hit by a defective car) 3. Retailers are more likely to be charged under warranty, UNLESS they had reason to know the product was unreasonably dangerous and failed to warn of that danger. b. Warranty i. Express Baxter v. Fordnon-shatter glass-- Representations set forth by a manufacturer whose falsehood cannot be readily detected by a buyer may be relied on by the buyer regardless of an absence of privity of contract. ii. ImpliedHenningsen v. Bloomfield Motors- carobligations should be based on demands of social justice rather than contractual obligation, consider also unequal BP. RULE Automobile purchasers may recover for damages caused by defective parts under an implied warranty of merchantability, since automobile manufacturers and dealers may not limit the warranty to replacement of only defective parts as this violates fair dealing and public policy. This case is the MacPherson of warranties. The case also held that the disclaimer of warranty was void as an adhesion k.

1. Warranty of Merchantability- a merchant in goods of a particular type is help to automatically warrant that they are merchantable 2. Fitness for a particular purpose- arises when S knows that B wants the goods for a particular purpose and B relies on Ss recommendation of a particular product. iii. Noteas SL has increased there are less and less warranty cases. There are some situations though where its to Ps benefit to bring a warranty claim instead 1. Pure economic harmbc you cant recover for only economic harm with SL. 2. Warranty action usually fall under UCC warranty which is four years, Tort law SL SOL is 2 years. 3. Where there IS privity, P is better of suing under warranty. c. Strict Liability- a seller is liable without fault for personal injuries caused by the product if the product is sold i. In a defective condition that is ii. Unreasonably dangerous to the user of consumer iii. Greenman powertool case-- A manufacturer is SL in tort when an article he places on the market knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being. IF (from R2d) 1. The seller is engaged in the business of selling such a product, and 2. It is expected to and does reach the consumer without substantial change. 3. This applies even though the seller exercised all possible care and theres no privity iv. This case created SL because P hadnt notified of breach of warranty in the appropriate time, but the C still basically said that D HAD to be liable, so they made him SL People still use negligence over SL bc supposedly its easier to prove they screwed up than to prove theres something wrong with the product and juries are more likely to find liability and award more in negligence cases. Theres pretty much always negligence lingering behind SL. XVIII. Four Kinds of product liability a. Manufacturing-- A problem with one widget as opposed to the entire line. i. Rix v. General Motors Corp. problem with brake tube in car-1. A defectively manufactured product is flawed because it is misconstructed without regard to whether the intended design of the manufacturer was safe or not. 2. The product may be evaluated against the manufacturers own production standards, as manifested by that manufacturers other like products. 3. They result from some mishap in the manufacturing process itself or improper workmanship or because defective materials were used in construction

4. Easier to prove that a design defect, which has different tests in different jx. Have to prove that it deviated from the design not the specific conduct that led to the defect. So I think this is easier than using negligence, but negligence might be easier than proving a design defect. 5. ** theres almost always a design defect claim lurking within a manufacturing defect claim. b. Design-- This is essentially a problem with the whole apple tree, not just a single apple. i. Prentis v. Yaleforklift casefour ways to define defect in this context 1. Picks--Negligence risk-utility analysis focuses upon whether the manufacturer would be judged negligent if it had known of the products dangerous condition at the time it was marketed. 2. Compares the risk utility of the product at the time of the trial. a. Most courts like this 3. Consumer expectations about the product. 4. Combines the risk-utility and consumer expectation test ii. Prentis v. Yale Mfg. Co. (743) had operated fork lift case 1. MUST show that the product is unreasonably safe. 2. When a jury decides that the risk of harm outweighs the utility of a particular design and cost tradeoffs, the manufacturer exposed the consumer to greater risk of danger than he should have iii. Also liable for foreseeable misuse, even if product is perfectly safe for intended uses. Barker v. Lull iv. Remember, defect is a conclusion, not a test! v. Employs Model Uniform Product Liability Act (UPLA) (N standard) BC 1. Unlike manufacturing defects, design defects result from deliberate and documentable decisions on the part of the manufacturers, and plaintiffs should be able to learn the facts surrounding these decisions through liberalized modern delivery. 2. N std rewards careful Ms and penalizes careless ones. 3. Intense consequences so P should have to pass higher negligence std. vi. STATE OF THE ART DEFENSEOBrienabove ground pool-- Based on risk utility analysis, D may be liable for a design defect even if his product complied with the existing level of technological advances at the time of design. 1. NB: State-of-the-art evidence is relevant to, but not necessarily dispositive of, risk-utility analysis. A product may embody the state-of-the-art and still fail to satisfy the risk-utility equation. vii. Cant overcome a defective design by putting on a warning label viii. Risk Utility Factors (752) 1. The usefulness and desirability of the product its utility to the user and to the public as a whole 2. The safety aspects of the product the likelihood that it will cause injury, and the probable seriousness of the injury.

3. The availability of a substitute product which would meet the same need and not be as unsafe. 4. The manufacturers ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility. 5. The users ability to avoid danger by the exercise of care in the use of the product. 6. The users anticipated awareness c. Warnings i. Anderson v. Owens-Corning Fiberglasproduct with asbestos knowledge or knowability is a component of SL for failure to warn. This is bc FTW is a lot like negligence, and u cant warn of something you dont know about. ii. State of the art-- The fact that a manufacturer acted as a reasonably prudent manufacturer in deciding not to warn, while perhaps absolving the manufacturer of liability under the negligence theory, will not preclude liability under strict liability principles if the trier of fact concludes that, based on the information scientifically available to the manufacturer, the manufacturers failure to warn rendered the product unsafe to its users. iii. Restatement 3rd of Torts: Products Liability 2 comment j recognizing that requiring warnings of obvious or generally known risks could reduce efficacy of warnings generally. (so not necessary) iv. Learned Intermediary Rule when someone tells you the risks when you get the product (a doctor for example) 1. Most courts hold that warnings and instructions should be provided to the physician, who is a learned intermediary between the drug company and the patient and the best person to understand the patients needs and assess the risks benefits of a particular course of treatment. 2. Many jurisdictions do not apply the learned intermediary rule in situations where the manufacturer is aware that there will be no medical provider to provide learned advice or where the patient is expected to take an active role in the selection of the product. 3. There is no general rule whether manufacturer must warn users directly or can rely on intermediary to relay warning. a. Standard: reasonableness under the circumstances. v. Duty to warn of ingredients a substantial number of people are allergic to. vi. Adequacy is a jury question. XIX. PROOF a. Friedman v. GMC- car started in wrong geara defect may be proven by circumstantial evidence, where a preponderance of that evidence establishes that the accident was caused by a defect and not other possibilities, although not all other possibilities need be eliminated. i. Notesnot liable for counterfeit products ii. Similar to res ipsa iii. Most states dont allow evidence of subsequent improvements.

SUMMARY OF R2d RULES A product is defective when at the time of sale or distribution it contains a manufacturing defect, is defective in design, or is defective bc of inadequate instructions of warnings. A product a) Contains a MD when the product departs from its intended design even though all possible care was exercised. So SL std, NOT negligence.. under R2 it did have to be unreasonably dangerous too. b) Is defective in design when the foreseeable risk of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller, etc. and the omissions of the alterntive design renders the product not reasonably safe. c) Is defective bc of inadequate instructions or warning when the foreseeable reisks of harm posed by the product could have been reduced or avoided by the provision of reasonable instruction or warning by seller/distributor or predecessor, and the omission of the instructions/warnings renders the product not reasonably safe. XX. Defenses a. Comparative negligenceDaly v. GMC- YUP, and Ps negligence is a complete defense when it comprises AOR. b. Misuse i. Torts 402A: A product is not in a defective condition when it is safe for normal handling and consumption. If the injury results from abnormal handling the seller is not liable. ii. Ford Motor Co. v. Matthews: The manufacturer is not liable for injuries resulting from abnormal or unintended use of his product if such use was not reasonably foreseeable. The issue is one of foreseeability and misuse may be foreseeable. iii. Exam: Make sure to talk about how misuse doesnt bar recovery, but it still can if the misuse is extensive. XXI. OTHER SUPPLIERS a. Peterson- used car issue-- Rule: Strict products liability will not be applied to the seller of previously used products. i. FN 2: Jxs are split on whether a seller of a used product can avoid strict liability by selling it as is or with all faults. ii. FN 4: Restatement 20 includes all sellers in the chain of distribution, including retailers and wholesalers, in the same category as product manufacturers. iii. FN 5: An occasional seller who does not hold himself out as having any knowledge or skill in the commercial sense will not be subject to strict liability. iv. FN 8: When one company acquires another, the successor corporation is liable for defective products only if it agreed to assume liability, the transfer was a fraudulent one, the two corporations merged, the successor is essentially a continuation of the original company, or the successor continued the product line. XXII. SERVICES

a. Hector v. Cedars-Sinai Medical Ctr. -- Bottom line is if the purchase of the good was incidental to the service then there's no SL. If the service was incidental to the purchase then you can

NUISANCE XXIII. Two Kinds: Private and Public a. Public Nuisance An unreasonable interference with right common to the general public R2d 821B i. Circumstances that may sustain a holding that an interference with a public right is unreasonable include the following: 1. (a) whether the conduct involves a substantial interference with the public health, the public safety, the public peace, the public comfort or the public convenience; or 2. (b) whether the conduct is proscribed by a statute, ordinance or administrative regulation, or 3. (c) whether the conduct is of a continuing nature of has produced a permanent or long-lasting effect and to the actors knowledge, has a substantial detrimental effect upon the public right. ii. Usually brought by the DA or another official person. iii. Individual claims on a public nuisance: 1. In order to recover damages in an individual action for a public nuisance, one must have suffered harm of a kind different from that suffered by other members of the public exercising the right common to the general public that was the subject of interference. R2d. 821C(1) 2. Philadelphiasubsequent purchaser tries to sue previous owner for damage done to land--- P cannot claim a tort action for public nuisance against D unless P can claim particular damages suffered due to an interference with a public right. Also held that One who sells real property is not liable to the purchaser in nuisance for defects present on the property at the time of transfer b. Kind or Degree? i. D obstructs a public highway forcing travelers to detour. P, on his way to work, has to travel of the freeway twice a day---- degree ii. Same, but P drives into the unguarded and unlighted obstruction and sustains personal--- Degree, but mainly would be a negligence issue. iii. Same except the obstructed highway cuts off ingress and egress to Ps land. kind, but should discuss private and public nuisance issues. iv. Noise and smoke from Ds factory amounting to public nuisance also interfere with Ps use and enjoyment of his land --- in some jx this is a special circumstance where public nuisance suits are allowed. 1. So the question in iv isnt is there a nuisance, merely can P bring suit. c. Private Nuisance Am unreasonable and substantial interference with Ps use and enjoyment of land

i. Requires P show 1. That he has an interest in the land that has been substantially and unreasonably interfered with and 2. That D behaved in a negligent, abnormally dangerous, or intentional manner a. Negligence requires a showing that the utility was outweighed by the harm that the conduct was unreasonable. b. Morgan v. High Penn Oil nauseating fumes and gases from Ds oil refinery-- The invasion of anothers interests in the use and enjoyment of their land is intentional when the party acts for the purpose of causing it or knows that it is resulting from his conduct, or knows that it is substantially certain to result from his conduct. 3. Even if it is intentional must also prove that it is unreasonable. This is where the balancing test comes in. a. R rejects Carpenter rule w regards to utility and says basically that its unreasonable if it is greater than the P should be required to bear without compensation which is basically what the C dissent says. b. Winget grocery store--- one factor in determining whether Ds interference is unreasonable is to look at the kind of area or neighborhood ii. Distinguishable from trespass in that it did not require a physical entry upon the plaintiffs premises, although it might accompany a trespass. iii. Contributory nuisance arising out of negligence 1. An intentional private nuisance will not allow a contributory negligence defense. XXIV. Analysis a. The balancing test does not always take in the burden held by individual people into account. b. Carpenterfeedlot--- basically held that utility is an important factor in determining whether something should be considered a nuisance, whereas the R says that when the gravity of harm is outweighed by the utility you should use damages not an injunction, but still consider it a nuisance. c. Dissent in Carpenter v. The Double R Cattle Company, Inc i. Majority rule applied by courts ii. Refuses to join the majority in not compensating the plaintiff just because of the extreme social value of cattle iii. Courts reject this in situations where the harm is substantial and the use is intentional. d. Zoning can help to establish whether an action in a particular area is a nuisance i. Just because an area is zoned for a particular purpose does not mean that it cannot be run in such a way that establishes a nuisance.

e. Most courts do not take a categorical position on whether an injunction should be granted in general, but instead they engage in a process designated as balancing the equities. i. Harm must be of a kind that would be suffered by the normal person, not a hypersensitive one. ii. Same idea if someone is using the land for some hypersensitive use. XXV. Important Cases a. Boomer v. Atlantic Cement Co (816) i. This case does involve serious nuisance for an individual but also provides employment for 300+ people. Got damages. ii. Where nuisance is of such a permanent and unabatable character that a single recovery can be had, including the whole damage past and future resulting there from, there can be but one recovery iii. Court held that even though there was a nuisance, the inequity of the cost is so unbalanced that an injunction would not be fair. iv. Where the benefit of an injuction against a nuisance is greatly outweighed by its costs, a court may allow payment of permanent damages to P in lieu of injuctive relief. b. Spurcattle feed lot/Sun City--- got an injunction in the end, but had to indemnify D this is the coming to the nuisance defense. XXVI. Remedies a. Injuntion i. Balancing of the Equities Test 1. Courts will engage in balancing certain concerns in determining if an injunction is appropriate. Some of the factors include: a. Character and extent of the damage inflicted or threatened b. The good faith or intentional misconduct of the defendant or his efforts to avoid injury to the plaintiff c. The financial investment of each party and the relative economic hardship that will result to either from granting or denying the injunction. b. Self Help to Abate Nuisance (827) i. The privilege of self-help to abate nuisance is analogous to the privilege of using reasonable force to protect the possession of land against trespass. 1. It is open only to those to whom the condition is a nuisance. 2. A public nuisance may be abated by a private individual only when it causes or threatens special damage to himself, apart from that to the general public. ii. It is commonly held that the privilege of abating conditions outside the actors premises upon the actual existence of a nuisance, and that an honest but mistaken belief will not justify the action. iii. The privilege extends to reasonable force according to the necessities of the situation and may extend to the destruction of valuable property. iv. It does not extend to unnecessary damage or to damage unreasonable in extent.

1. The actor may not burn down the adjoining house because it is used for prostitution. v. The abatement of a nuisance does not justify the infliction of personal injury or a breach of the peace. vi. Unless the wrongdoer is already aware and the demand would be futile, the actor, if time permits, must notify the wrongdoer of the existence of the nuisance and demand removal of the condition.

DEFAMATION c. (common law) the publication to some third person of a statement that harmed the reputation of the plaintiff, thereby causing the plaintiff to suffer damages. d. Modern communication to a third party that tends to damage the plaintiffs reputation. 1. Defamation is rather a communication that tends to damage the plaintiffs reputation more or less in the popular sense that is, to diminish the respect, good will, confidence or esteem in which he is held, or to excite adverse or unpleasant feelings about him. And this is the case even though decent citizens would regard him with pity ii. Make sure to indicate that the law has changed to become broader e. Depends a great deal on time and placeGrant v. Readers Digest--communist f. A statement does not have to be absolutely true, but at least substantially true. Killianto be justified the words need be only substantially true XXVII. Prima Facie Case a. False and defamatory statement 1. Belli v. Orlando-- It is for the court to decide whether the words are reasonably capable of a particular interpretation; it is for the jury to decide whether they were in fact understood to be defamatory. They should be read and construed as they would be by the readers to whom the publication is addressed. b. Publicationcommunicating of that statement to a person other than the P i. Economopoulos- publication in a defamation suit is a term of art that means communication of the defamatory words to someone other than the person defamed. ii. In employment law context publication by plaintiff i.e. compelled self defamation is still defamation according to Hall, not really so according to the editors of the book c. Faultamounting at least to negligence, and in some instances a greater degree of fault d. Special harm of a pecuniary nature, or actionability of the statement regardless of the existence of special harm i. To be actionable a statement must have the potential to harm a Ps reputation. XXVIII. P must plead a. Defamatory words

b. Publication c. Extrinsic facts d. Colloquium-- Formal allegation that the words were spoken of & concerning P i. Neiman Marcusmost courts hold that size is not determinative, rather it is a factor in determining whether the intensity of suspicion cast upon P was sufficient to give him a right to maintain person action. ii. Bindrim-nude marathons-- the test is simply whether a reasonable person reading the book would understand that the fictional character therein pictured was in actual fact the P. e. An allegation of the particular defamatory meaning f. Special damages when necessary XXIX. Libel and Slander a. R2d 568 i. (1) Libel consists of the publication of defamatory matter by written or printed words, or by its embodiment in physical form, or by any other form of communication which has the potentially harmful qualities characteristic of written or printed works. ii. (2) Slander consists of the publication of defamatory matter by spoken words, transitory gestures, or by any form of communication other than those stated in subsection (1). iii. (3) The area of dissemination, the deliberate and premeditated character of its publication, and the persistence of the defamation are factors to be considered in determining whether a publication is a libel rather than a slander. iv. Defamation by radio is actionable per seusually regulated by statute b. Libel i. Originally applied to the written word ii. Where the group or class libeled is large, none can sue even though the language used is inclusive. (Neiman Marcus) iii. Where the group or class is small, and each and very member of the group or class is referred to, then any individual member can sue. 1. R2d 564A, comment b noting that groups that are generally successful in pursuing group libel actions number 25 or less. 2. A minority of jx have begun to question the numerical approach iv. Libel Test: Would a reasonable person, reading a book, be able to understand that the fictional character therein pictured was, in actual fact, the plaintiff acting as described? v. Libel Per Se and Libel Per Quod 1. All libel is libel per se bc you dont need special damages. 2. Libel per quod- if the statement was not defamatory on its face and it was necessary to be aware of certain extrinsic (or unstated) fact in order to appreciate its defamatory implications in which case you may need to show special damages c. Slander i. Originally applied to oral admissions

ii. Requires a showing of special damages unless the words fall into the category of slander per se 1. Imputations of a Major Crime a. moral turpitude 2. Loathsome Disease a. Disease that carries a social stigmaAIDS could go either way 3. Business, Trade, Profession or Office a. If the spoken words are likely to affect the plaintiff in his business, trade, profession or office, the probability of some temporal damage is sufficiently obvious. b. Exception limited to defamation of a kind incompatible with proper conduct of the business, trade, profession or office itself. c. The person must be employed in the profession at the time that the statement was made. 4. Serious Sexual Misconduct a. Pretty much eliminated now b. Assumption that accusing women of unchastity is worse than accusing a man. c. Accusations of being gay or acting in a gay manner is possibly slanderous. d. A corporation has no reputation in the personal sense and therefore cannot be defamed, for example, but being accused of unchaste. i. A corporation can have an action for defamation that casts an aspersion upon its honest, credit, efficiency, or other business or moral character. e. An expression of opinion is defamatory only if: i. Specific facts, and ii. Express allegation of fact. f. Special damages--- Terwilligereven though he got sick from the slander this is insufficient bc its not a natural ordinary consequence special damages include i. Loss of marriage ii. Loss of hospitable gratuitous entertainment iii. Prevent a servant from getting a place iv. Loss of customers v. BASICALLY, where the person is prevented by the slander from receiving that which would otherwise be conferred to him, though gratuitously. XXX. Publication a. Legal term of art meaning mere communication of the defamatory words to someone other than the person defamed. i. It is not enough that the words are spoken to the plaintiff himself, or even in the presence of others, if no one else overhears them. b. It is a communication to a third party there has to be an understanding of the party c. The communication must be done negligently or intentionally.

i. There is no publication when the words are spoken by the defendant directly to plaintiff, with no reason to suppose that anyone can overhear, but they are in fact overheard by a concealed listener. ii. No publication if the defamatory statement is sent in a sealed letter with no reason to think that anyone else will open it or read it. 1. Unless you know that the persons wife or secretary opens their mail. d. 74 USC 230(c)(1): no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. Carafano e. Single Publication Rule you only have a cause of action for each edition of a defamatory remark. Ogden i. You cant sue for every defamatory NY Times when there is only one article, but you can sue when there are multiple editions of the same remark. ii. The number of copies of a particular edition can help to analyze damages. XXXI. Basis of Liability a. New York Times Co. v. Sullivan i. A public figure has to show that the false statement was made with actual malice 1. Whether a person is a public official is a question of federal law, not state law. ii. Actual Malice knowledge that it was false or with reckless disregard of whether it was false or not. 1. Not about maliciousness or evil intent 2. The defendant acted with reckless disregard b. St. Amant. (also a public official, televised political speech) There must be some sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. i. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice. ii. recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports. iii. The stake of the people in public business and the conduct of public officials is so great that neither the defense of truth nor the standard of ordinary care would protect against self-censorship and thus adequately implement 1st Amendment policies. iv. To insure the ascertainment and publication of the truth about public affairs, it is essential that the 1st Amendment protect some erroneous publications as well as true ones. c. Harte Hanksbroadened standard to cover public figures as well. i. In addition, this case expands reckless disregard to include purposeful ignorance i.e. intentionally not investigating b/c you dont want to know the truth d. Gertzestablishes standard for private defamation P, which is less demanding than NY standard. It allows for actual damages without a showing of actual

e.

f.

XXXII. a.

b.

c. d. e.

f. g.

h. i.

j.

malice, and allows for presumed/punitive damages if there is actual malice. (This seems to have been considered as a matter of public concern/private P case) Dun & Bradstreet- where there is no public interest that the state interest adequately supports awards of presumed and punitive damages, even absent a showing of actual malice. Hepps- (like Gertz this is private figure/public concern) a private P cannot recover damages without also showing that the statements at issue are false. The BOP is on them. Private vs. Public Two Rationales for imposing a greater burden on public figures i. Their access to the media ii. Their assumption of risk you must accept the heat in the kitchen if you want to enter. Public Figures can become public if: i. Pervasive fame or notoriety, or ii. They thrust themselves into a public discussion and only for that limited discussion. iii. Gertz standard-- 'commonly those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues. Active in community and professional affairs served as an officer of local civic groups published several books HOWEVER he had achieved no general fame or notoriety. So this case creates a boundary on NY Times. New York Times applies to a public figure bc of Harte Hanks NY standard is also applied to any matter of public or general interest It would not be fair to apply this same standard to a private individual because the burden would be difficult to show in the case of a private person compared to a public person. i. And a private person does not put themselves forward in the public. Just because a person is public in some aspects of their life does not mean that they are public in all of them. Public officialsthe test is whether the position in government has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it beyond he general public interest in the qualifications and performance of all governmental employees. Whether speech addresses a matter of public concern must be determined by the expressions content, form and context, as revealed by the whole record. Two forces that may reshape the common law landscape to conform to the Fourth Amendment i. Whether the plaintiff is a public official or figure, or is instead a private figure. ii. Whether the speech at issue is of public concern. The common-law presumption that defamatory speech is false cannot stand when a plaintiff seeks damages against a media defendant for speech of public concern.

XXXIII. a.

b.

XXXIV. a. b. XXXV. a.

b. XXXVI. a. b. c.

i. A private figure must bear the burden of showing that the speech at issue is false before recovering damages for defamation from a media defendant. ii. Evidence offered by plaintiffs on the publishers fault in adequately investigating the truth of the published statements will generally encompass evidence of the falsity of the matters asserted. If not a clear public figure, must decide if P is a limited public figure Step 1: must decide whether a public controversy exists. i. Public interest is not enough. The issues must be publicly debated with foreseeable and substantial ramifications for nonparticipants. ii. Also requires a division of opinion. Step 2: Whether the plaintiffs role was such that it is a limited public figure in the context of the controversy. i. To determine if P is a voluntary PF must consider whether 1. P has access to channels of effective communication 2. P voluntarily assumed a role of special prominence in a PC 3. P sought to influence the resolution or outcome 4. Controversy existed prior to publication 5. P retained PF status at the time of the alleged info. ii. Voluntary assumption of the risk is not essential. iii. Involuntary Public Figure: a person who has pursued a course of conduct from which there was reasonably foreseeable, at the time of the conduct, that public interest would arise. iv. Public officials are those who have or appear to the public to have substantial responsibility for or control over the conduct of governmental affairs. Remedies Self help Nominal damages Random Opinionpure opinion cannot be defamatory, but a statement that implies an assertion of an underlying fact can trigger defamation liabilityMilkovich implied HS coach had lied under oath Headline has to be a "fair index" of the story. --- headline has to be analyzed independently. Defenses Consent Truth substantial truth, not absolute i. Doesnt mean false light cant be brought. Privilege i. If the purpose of the communication is outside the purpose of the privilege, the defense is lost. ii. Is the privilege absolute or limited? iii. Absolute Privilege 1. A judge has absolute immunity for defamatory words settled in the course of judicial proceedings.

a. Cant sue a judge for things in his opinion. b. An attorneys statement may also be privileged if its is relevant and pertinent to issues of litigation. i. Even a judges comments must be relevant and pertinent. c. This does NOT extend outside the court i. A lawyer explaining the case to the press does not count ii. You have already left the confines of the court. 2. Privilege also applies to witnesses 3. Many state courts hold that minor officials are entitled only to a qualified privilege. iv. Conditional or Qualified Privilege 1. A publication is conditionally privileged when it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. 2. A defamatory publication is conditionally privileged when the occasion shows that the communicating party and the recipient have a mutual interest in the subject matter, or some duty with respect thereto. 3. Privilege can be lost if: a. The person making the statement has reason to believe that the statements are false or does not believe them to be true.

Even if there is no negligence, however, public policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market. It is evident that the manufacturer can anticipate some hazards and guard against the recurrence of others, as the public cannot. Those who suffer injury from defective products are unprepared to meet its consequences. The cost of an injury and the loss of time or health may be an overwhelming misfortune to the person injured, and a needless one, for the risk of injury can be insured by the manufacturer and distributed among the public as a cost of doing business. It is to the public interest to discourage the marketing of products having defects that are a menace to the public. If such products nevertheless find their way into the market it is to the public interest to place the responsibility for whatever injury they may cause upon the manufacturer, who, even if he is not negligent in the manufacture of the product, is responsible for its reaching the market. However intermittently such injuries may occur and however haphazardly they may strike, the risk of their occurrence is a constant risk and a general one. Against such a risk there should be general and constant protection and the manufacturer is best situated to afford such protection

Three Theories of Recovery There are three theories of recovery that are generally recognized in product liability. These are negligence, warranty, and strict liability in tort. Negligence A defendant will be liable under a negligence theory where they failed to take reasonable care in designing, manufacturing, or labeling a product, regardless of whether there is privity between the parties. (MacPherson). MacPherson was the negligence standard, but due to the increasing complexity of product it became more and more difficult to establish SOC, breach, and causation. By 1963 courts had established that even in the absence of proof of negligence, recovery may be possible under a theory of strict liability. (Greenman) SL In the next few years the standard was further extended to apply SL to all parties involved in the manufacturing, distribution, and sale of defective products (Vandermark). It was even extended to cover innocent bystanders in 1969. (Elmore v. American Motor Corp. ) The second restatement states that one who sells any product in a defective condition unreasonably dangerous to any user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if a. The seller is engaged in the business of selling such a product, and b. It is expected to and does reach the user or consumer without substantial change in the condition in which it is sold (2) this applies although a) the seller has exercised all possible care in the preparation and sale of his product, and b) the user or consumer has not brought the product from or entered into any contractual relationship with the seller Warranty Plaintiffs may also recover under a warranty theory based on either an express or implied warranty. An express warranty is created by representations by the manufacturer whose falsehood cannot be readily detected by a buyer who relies on those representations. (Baxter v. Ford). Even in the absence of an express warranty, courts have held that where a manufacturer puts a car into the stream of commerce there is an implied warranty that it is reasonably suitable for use as such by the ultimate consumer. (Henningsen v. Bloomfield Motors). Like MacPherson, this case established the fact that no privity is necessary between manufacturer and consumer. Since the advent of strict liability less warranty cases are brought however it is in Ps benefit to bring a claim on a warranty theory where there is purely economic harm, it is past the two year tort law statute of limitations, and where there actually is privity. Which of these standards applies is based largely on the type of defect. There are three types of product defects: manufacturing, design, and warning, each of which is discussed separately in Restatement (Third). A manufacturing defect exists when the product is flawed because it is miscontructed as compared to the rest of the product line, without regard to whether the intended design was safe and all possible care was exercised. (Rix). This is a strict liability standard, which is used by the majority of courts. (Rix). A design defect exists where the entire product line is defective. There are four tests to determine whether a defect rises to the

level of being a design defect: (1) a negligence risk-utility analysis based on the manufacturers knowledge at the time the product was marketed, (2) the same test based on knowledge at the time of trial, (3) a test based on consumer expectations, and (4) a combined risk-utility and consumer expectation test. (Prentis). The model Uniform Product Liability Act imposes a negligence standard to design defects. (Prentis). The Restatement (third) states that a design defect exists where the foreseeable risk of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design and the omission of the alternative design renders the product not reasonably safe. Thus courts appear to be leaning towards applying a risk-utility negligence standard to design defects. Courts consider 7 factors in determining whether a design is defective under the risk-utility test 1) Usefulness and desirability of the product 2) Likelihood of injury 3) Availability of a substitute 4) Ability to eliminate the unsafe character without impairing usefulness 5) Users ability to avoid danger through exercise of due care 6) Users anticipated awareness of the inherent danger A warning defect exists where there is inadequate warning. Courts generally apply a strict liability to warning defects, however there is an added requirement that the risk of harm was either known or knowable. (Anderson v. Owens-Corning). A defective design cannot be overcome by including a warning label. BOP is generally on the plaintiff to prove knowledge. The third restatement does away with the unreasonably dangerous requirement and states that one engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect. However, most courts still hold that there is a requirement that plaintiff show that the product is unreasonably dangerous in cases of design defects. Proof A defect may be proven by circumstantial evidence, where a preponderance of that evidence establishes that the accident was caused by a defect and not other possibilities, although not all other possibilities need be eliminated. (Friedman v. GMC) Defenses state of the art evidence is evidence that the product complied with the xisting level of technical advances at the time of design, and may be relevant to, but not necessarily dispositive of a riskutility analysis. (OBrien) Comparative negligence applies to SL just like with negligence. (Daly) Some jx hold AOR is a complete bar to recovery HOWEVER P may also be liable for misuse if that misuse is foreseeable (Ford Motor v. Matthews) Third Parties

Used car dealers arent responsible for defects bc the losses should be borne by those who have created the risk. (Peterson) Further, many courts decline to impose SL on sellers of used products. Occasional sellers arent subject to SL Owner of a product may be liable in negligence but not in SL. Services If purchase is incidental to the service then there is no strict liability. (Hector v.Cedars- Sinai Medical Center.

Products whose inherent characteristics made them dangerous were not to be considered unreasonably dangerus Allergic reactions stuff Natural-foreign test Rx drugs No duty to warn of obvious dangers or risks that are generally known Presumption that the warning will be read and heeded

Balancing test for nuisance. Courts look at: (A PIT ME) 1. Extent of the interference one occurrence will usually will not be a nuisance 2. Amt of damage 3. Type of damage (physical; emotional) 4. Interests of the community 5. Motive 6. Precautions that are available to the parties