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					Torts II                                   STRICT LIABILITY                                 September 2, 2012


                                             TRADITIONAL

I. Introduction
       A. Definition
               1. Basis is that those who engage in certain kinds of activities do so at their own peril; and
               2. Must pay for any damage that foreseeably results,
               3. Even if activity has been carried out in the most careful possible manner.
       B. Distinguished from Negligence
               1. In strict liability, the person is strictly liable for anything he does even if it was done
                  with reasonable care under the circumstances.
               2. There is no duty or breach question. Straight to causation and damages.
II. Historical Background
       A. Broad Application
               1. Rylands v. Fletcher (Exchequer)
                       a) If you bring something onto your land which is likely to do mischief if it
                          escapes, you do so at your own peril.
                       b) You are liable for all natural consequences of escape.
               2. Rylands v. Fletcher (House of Lords)
                       a) You are liable for all non-natural use of your land that causes injury to
                          someone.
               3. Ultrahazardous Activity
                       a) 1st Restatement
                                (1) Risk of serious harm, which cannot be eliminated by exercise of utmost
                                    care.
                                (2) Activity is not a matter of common usage.
       B. Narrow Application
               1. Losee v. Buchanan & Sullivan v. Dunham
                       a) Rejects Rylands approach by narrowing the application.
                       b) Strict liability only for “pockets” of activity:
                                (1) Direct physical violence;
                                (2) Injury direct consequence; and
                                (3) Intentional (not accidental) violent activity.
                       c) Reasons that people should be able to do what they want with their land.
III. Theoretical Perspectives
       A. Enterprise Liability

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             1. Risk allocation where companies/enterprises can bear the risk because of their deep
                pockets and they have the means towards allocating damages.
       B. Goal Oriented Approaches
             1. Loss Spreading
                    a) A central goal of strict liability is to spread losses caused by accidental injuries
                       among a broad class of persons
                    b) This hinges partially on whether the actor engaging in the injurious activity is
                       an appropriate party to incur and then redistribute, or “spread,” a loss.
             2. Loss Avoidance
                    a) Second goal of strict liability. Aims at imposing liability in a way that reduces
                       the number and severity of accidents.
                    b) Requires appraisal of the actor’s ability to systematically evaluate the risks of
                       his activities and make sound cost-benefit decisions.
                    c) This should be given less consideration than Loss Spreading because it is:
                           (1) Contradictory
                           (2) Questions exist about the efficacy of general deterrence
                           (3) Threat of liability can frequently over-deter, producing negative results.
             3. Loss Allocation
                    a) Loss to be initially borne by the enterprise whose activities endangered it, and
                    b) Whose activities are sufficiently connected to the loss to make it appropriate to
                       reflect the loss in the cost of the enterprise’s services.
             4. Administrative Efficiency
                    a) To achieve an acceptable level of administrative costs.
             5. Fairness
                    a) Two paradigms:
                           (1) Reasonableness which animates fault-based liability
                           (2) Reciprocity focuses on the relative magnitude and quality of the risks
                               created by the activities of the Δ and those of the victim.
                                   (a) Between two innocent persons, the initiator who benefits from
                                       the ultimately injurious activity should be liable.
       C. Moral Theories
             1. Theory of non-reciprocal risks
                    a) A victim has a right to recover for injuries caused by a risk greater in degree,
                       and
                    b) Different in order from those created by the victim and imposed on the Δ – for
                       injuries resulting from nonreciprocal risks. (Like an airplane pilot subjects
                       people below nonreciprocal risks of harm).

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              2. Reasonableness Paradigm
                       a) Represents a rejection of non-instrumentalist values, and
                       b) A commitment to the community’s welfare as the criterion for determining both
                          who is entitled to receive and who ought to pay compensation.
       D. Economic Theories
              1. Basic negligence analysis using B<PL
IV. Current Doctrine
       A. Abnormally Dangerous Activity
              1. The Second Restatement moves from an ultrahazardous approach to an abnormally
                 dangerous approach.
              2. This is a more narrow approach compared to the ultrahazardous approach.
              3. Reasons
                       a) Threat of liability will encourage actors to forgo these risky activities entirely.
                       b) Strict liability encourages actors who conduct abnormally dangerous activities
                          to reduce the cost of accidents by taking extra precautions. (Indiana Harbor)
                       c) Economic view argues that losses should be placed on the party who can easily
                          spread the costs of the enterprise by adding the cost of compensation for
                          accidents resulting from the activity to the price of the product. (Chavez)
                       d) Private property principles (Rylands & Sullivan)
                       e) Evidence of negligence difficult to obtain (Indiana Harbor)
       B. Defining “Abnormally Dangerous”
              1. Restatement § 519(1)
                       a) One who carries on an abnormally dangerous activity is subject to strict liability
                          although he has exercised the utmost care to prevent the harm.
              2. Restatement (2nd) § 520: Factors for Consideration (a)-(f)
                       a) High Degree of Risk
                          Existence of a high degree of risk of harm to person, land or chattels of others;
                       b) Risk of Serious Harm
                          Likelihood that the harm that results from it will be great;
                       c) Cannot be Eliminated even by Due Care
                          Inability to eliminate the risk by the exercise of reasonable care;
                              (1) (a)–(c) are closely related. These emphasize that strict liability should
                                  apply to activities that pose unusual risks to the community.
                       d) Not Common Usage
                          Extent to which the activity is not a matter of common usage;




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                          (1) If an activity is extremely common (d), it is unlikely either that its
                              hazards are perceived as great; so that the case for strict liability is
                              weakened. (Indiana Harbor v. American Cyanamid)
                          (2) If you can’t find anything wrong with the conduct, but something wrong
                              with the activity, maybe you can push the Δ to take on that activity
                              somewhere else. (Refer to Adler’s “Jet Fuel” hypo / lecture on
                              1/28/03).
                 e) Appropriateness
                    Inappropriateness of the activity to the place where it is carried on; and
                          (1) The fact that the activity could have been carried on elsewhere with less
                              risk to the community will strengthen the case for liability, but
                          (2) Choosing an appropriate site will probably not, by itself, preclude
                              application of strict liability.
                 f) Value
                    Extent of value to the community is outweighed by its dangerous attributes.
                          (1) A particularly important local industry may escape strict liability, even
                              though it imposes great risk on the community.
                          (2) An actor would be strictly liable for the same activity in a location
                              where there are many industries but not in another where the community
                              depends heavily on the activity.
           3. Comment f
                 a) All of the factors are to be considered, and are all of importance.
                 b) Any one of them is not necessarily sufficient of itself in a particular case, and
                 c) Ordinarily, several of them will be required for strict liability.
                 d) It is not necessary that each of them be present, especially if others weigh
                    heavily.




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                                             INTRODUCTION
I. Introduction
       A. Products Liability defined
               1. Refers to the liability of a seller of a chattel which, because of a defect, causes injury
                  (usually personal) to its purchaser, user, or sometimes, a bystander.
               2. Types:
                         a) Manufacturing Defect
                         b) Design Defect
                         c) Warning Defect
       B. Four stages of development
               1. Contract / Privity
                         a) No recovery in absence of privity.
                         b) Contract governs liability (“buyer beware,” unless specified)
               2. Negligence
                         a) Can sue for negligence, without privity, if inherently dangerous. (Thomas v.
                            Winchester)
                         b) Can sue manufacturer, for negligence, without privity, for anything that could
                            foreseeably harm a third party, if negligently made. (MacPherson v. Buick)
               3. Warranty
                         a) Implied warranty of merchantability for immediate purchaser, can be
                            disclaimed
                                (1) Meets minimum standards of quality & safety
                         b) Implied warranty from manufacturer to ultimate purchaser & cannot be
                            disclaimed.
               4. Strict Liability
                         a) Types of Defects:
                                (1) Manufacturing
                                (2) Design
                                       (a) Consumer Expectation Test
                                       (b) Risk-Benefit / Utility
                                (3) Warning
II. Contract / Privity
       A. Winterbottom v. Wright
               1. If there’s no privity of contract between parties, then you can’t have any recovery in
                  the absence of privity for a defective product.

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III. Negligence
       A. Thomas v. Winchester
               1. Expands the liability of negligence by allowing the π to sue the manufacturer, even
                  without privity, when it is foreseeable that you will have some injury.


       B. MacPherson v. Buick
               1. Established the general principle that once the π shows that the product will be
                  unreasonably dangerous, if defective, he may sue in negligence without privity.
               2. Every state has accepted the rule here.
               3. One who negligently manufactures a product is liable for any personal injuries
                  proximately caused by his negligence.
IV. Warranty
       A. Defined
               1. A quasi-contractual theory of liability which existed well before the development of
                  strict liability in tort for products.
       B. Express Warranty
               1. A seller, manufacturer, lessor, etc., can include, in the K itself, certain warranties about
                  the quality/performance of the product and if the product fails to perform as warranted,
                  the user can sue the warrantor under this theory.
       C. Implied Warranty
               1. Implied warranty can come into existence from the mere fact that seller has offered the
                  good for sale.
               2. Warranty of Merchantability
                      a) A warranty that goods shall be merchantable is implied in a contract for their
                         sale if the seller is a merchant with respect to goods of that kind. (UCC § 2-
                         314(1))
               3. Fitness for a Particular Purpose
                      a) Arises when:
                              (1) The seller knows that the buyer wants goods for a particular purpose;
                                  and
                              (2) The buyer relies on seller’s recommendation of a suitable product.
V. Strict Liability
       A. Introduction
               1. A Δ will be strictly liable in tort (and thus without regard to his/her/its unreasonable
                  conduct, if any) when the Δ places a defective product on the market whose
                  proximately causes injury. (Escola)
                      a) Escola v. Coca Cola justified the move to strict liability for product defects.

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                              (1) A manufacturer incurs an absolute liability when an article that he has
                                  placed on the market, knowing that it is to be used without inspection,
                                  proves to have a defect that causes injury to human beings.
              2. Justifications are:
                      a) Efficient deterrence
                      b) Compensation / Pass-on cost
                      c) Difficult to Prove
                      d) Responsibility to place safe products.
              3. Extends to bystanders because:
                      a) Foreseeability
                      b) Bystanders cannot inspect
                      c) No choice or culpability


                                       MANUFACTURING DEFECTS
I. Introduction
       A. Defined as where a particular item that injures the π is different from the other ones
          manufactured by the Δ, because something went wrong with the manufacturing process.
       B. A defect in the manufacture of a product exists if the product differs from the manufacturer’s
          intended result OR if the product differs from apparently identical products from the same
          manufacturer.
       C. Defects that are “aberrations” from the design.
       D. Example:
              1. MacPherson v. Buick where there were defective spokes in the Buick driven only by
                 the π
II. California Approach
       A. Manufacturer strictly liable in tort when:
              1. Places product on the market;
              2. Knows that it will be used without buyer’s inspection for defects; and
              3. Proves to have a defect that ends up injuring someone. (Greenman v. Yuba Power)
       B. Rejects § 402A and applies strict liability to any product even if it is not “unreasonably
          dangerous” because it burdens the π. (Cronin v. J.B.E. Olson Corp.)
       C. There is no “reasonableness” argument that can be brought in on a strict manufacturing defect
          claim.
III. Restatement § 402A
     Special Liability of Seller of Product for Physical Harm to User or Consumer
       A. Rule

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              1. One who sells any product in a defective condition unreasonably dangerous to the user
                 or consumer or to his property is subject to liability for physical harm thereby caused to
                 the ultimate user or consumer, or to his property, if
                        a) the seller is engaged in the business of selling such a product, and
                        b) it is expected to and does reach the user or consumer without substantial change
                           in the condition in which it is sold.
              2. The rule stated in Subsection (1) applies although
                        a) the seller has exercised all possible care in the preparation and sale of his
                           product, and
                        b) the user or consumer has not bought the product from or entered into any
                           contractual relation with the seller.
       B. Application
              1. A substantial majority of American jurisdictions have adopted, if not the precise rules,
                 at least the general theory of strict tort liability for defective products
              2. Applies to:
                        a) Product’s manufacturer
                        b) Retailer, and
                        c) Any other person in the distributive chain (e.g. a wholesaler) who is in the
                           business of selling “such a product”
IV. Restatement Third: Products Liability
       A. Rule § 1
              1. 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.
       B. Rule § 2(a)
              1. A product contains a manufacturing defect when the product departs from its intended
                 design even though all possible care was exercised in the preparation and marketing of
                 the product;
V. Situations for Consideration
       A. Contractual Disclaimers
              1. Contractual disclaimers were immaterial: regardless of the obligations it assumed by
                 contract, it is subject to strict liability in tort because it is in the business of selling
                 automobiles, one of which proved to be defective and caused injury to human beings.
                 (Vandermark v. Ford Motor Co.)
       B. Liability to Bystanders
              1. Bystanders were entitled to the same strict liability protections as those in the π’s car.




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              2. If anything bystanders should be entitled to greater protection than the consumer or
                 user where injury to bystanders from the defect is reasonably foreseeable. (Elmore v.
                 American Motors Corp.)
       C. Used Goods
              1. Most courts have declined to impose strict liability on sellers of used goods – even
                 when the claim is that the product has had the defect in question since it was first
                 marketed. (Tillman v. Vance Equipment)
       D. Franchisors / Franchisee
              1. Sometimes strict liability.
              2. Some courts have extended the doctrine to franchisors that impose quality control upon
                 their franchisees.
              3. Some courts do not extend because franchisor has no control over independent
                 purchases by the franchisee.
       E. Government Contractors
              1. Liability to design defects in military equipment cannot be imposed, pursuant to state
                 law when:
                     a) US approved reasonably precise specifications;
                     b) Equipment conformed to those specifications; and
                     c) Supplier warned US about the dangers in the use of the equipment that were
                        known to the supplier but not to the US.
       F. Successor Corporations
              1. Product Restatement § 12
                     a) Successor corporations are liable if the acquisition:
                             (1) Is accompanied by an agreement for the successor to assume such
                                 liability; or
                     b) Results from a fraudulent conveyance to escape liability for the debts or
                        liabilities of the predecessor; or
                     c) Constitutes a consolidation or merger with the predecessor; or
                     d) Results in the successor becoming a continuation of the predecessor.
              2. A successor corporation may be held liable for injuries caused by its predecessor’s
                 products where the totality of the transaction between the successor and the
                 predecessor demonstrates a basic continuity of the predecessor enterprise. (Savage
                 Arms v. Western Auto Supply)




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                                        DESIGN DEFECTS
I. Introduction
       A. Defined as all of the similar products manufactured by the Δ are the same, and they all bear a
          feature whose design is itself defective, and unreasonably dangerous.
       B. The π is attacking the entire line of product which plaintiff claims injured him/her.
II. California Approach
       A. Generally
              1. Approach gets rid of “unreasonably dangerous.” (Cronin v. J.B.E. Olson)
              2. Two prong test based on Barker v. Lull Engineering:
                      a) Consumer Expectation Test; OR
                      b) Excessive Preventable Danger Test
       B. Consumer Expectation Test
              1. A product may be found defective in design if the π demonstrates that the product
                 failed to perform as safely as an ordinary consumer would expect when used in an
                 intended or reasonably foreseeable manner.
              2. The use of the product does not have to be in an intended manner so long as it is
                 foreseeable.
                       You can foresee that you are using a screwdriver to pop open a paint lid but not
                        for use as a musical baton.
              3. Reserved for cases in which the everyday experience of the product’s users permits a
                 conclusion that the product’s design violated minimum safety assumptions, and is thus
                 defective regardless of expert opinion about the merits of the design. (Soule v. GM)
              4. Factors (burden on π):
                      a) Manufacturer’s product failed to perform as safely as an ordinary consumer
                         would expect,
                      b) Defect existed when the product left the manufacturer’s possession;
                      c) Defect was a “legal cause” of π’s enhanced injury; and
                      d) Product was used in a reasonably foreseeable manner.
       C. Excessive Preventable Danger Test (“EPDT”)
              1. If through hindsight the jury finds that the risk of danger inherent in the challenged
                 design outweighs the benefits of such design or if the product’s design embodies
                 “excessive preventable danger.”
              2. Only used when the design is so technical that experts need to testify to the jury to
                 explain the mechanics of the product and the defect involved.
              3. Factors (burden on Δ):
                      a) Gravity of danger posed by the challenged design


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                     b) Likelihood that such danger would occur
                     c) Mechanical feasibility of a safer alternative design
                     d) Financial cost of an improved design
                     e) Adverse consequences to the product and consumer that would result from an
                        alternative design.
III. Restatement § 402A
       A. Balancing the attendant risks and benefits of a product to determine whether a product design
          is inherently dangerous.
       B. Ortho Factors listed in Camacho v. Honda (π bears burden):
              1. Utility of product to user and to the public as a whole;
              2. Likelihood and seriousness of injury;
              3. Availability of a substitute product that would be safe;
              4. Ability to eliminate unsafe character of the product without impairing its usefulness or
                 making it too expensive;
              5. User’s ability to avoid danger;
                     a) CO will not let manufacturer off the hook when the manufacturer could have
                        made an inexpensive safety mechanism to prevent the danger.
              6. User’s awareness of the danger; and
              7. Ability of manufacturer to spread the loss with price or insurance.
       C. In contrast with CA
              1. CO considers Factor 7. CA doesn’t.
              2. CO has, for the Δ, a defense (contributory or assumption of risk)
              3. CO is like Barker but adds more defense mechanisms for the Δ by holding the π liable
                 (see Factors 5 & 6).
              4. In CA, π has the option to choose whether he should go forward on a Consumer
                 Expectation or EPDT test. CO has one standard only.
                     a) This is advantageous for the π. If you were π, you’d rather be in CA.
                     b) In CA, shift of burden on the Δ.
IV. Restatement Third: Products Liability
       A. General Rule: § 2(b)
              1. A product is defective in design when the foreseeable risks of harm posed by the
                 product could have been reduced by the adoption of a reasonable alternative design by
                 the seller or a predecessor in the commercial chain of distribution and the omission of
                 the alternative design renders the product not reasonably safe.
       B. Reasonable Alternative Design (RAD) / Comment f to § 2(b)



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              1. π must prove that a reasonable alternative design would have reduced the foreseeable
                 risk of harm.
              2. Sometimes, the feasibility of a RAD is obvious and understandable to lay persons and
                 therefore expert testimony is unnecessary to support a finding that the product should
                 have been designed differently and more safely.
              3. Factors include:
                     a) Magnitude and probability of the foreseeable risks of harm;
                     b) Instructions and warnings accompanying the product; and
                     c) Nature and strength of consumer expectations regarding the product
                             (1) Including expectations arising from product portrayal and marketing.
V. Defenses
       A. Comment k to § 402A. Unavoidably Unsafe Products.
              1. There are some products which are quite incapable of being made safe for their
                 intended and ordinary use. These are especially common in the field of drugs.
                     a) Not limited to prescription drugs.
              2. The seller of such products, again with the qualification that they are:
                     a) Properly prepared;
                     b) Properly marketed; and
                     c) Proper warning is given,
              is not to be held to strict liability for unfortunate consequences attending their use,
              merely because he has undertaken to supply the public with an apparently useful and
              desirable product, attended with a known but apparently reasonable risk
       B. Unforeseeable Modification
              1. If there is an unforeseeable modification to the product, the Δ manufacturer may not be
                 held liable.
                     a) Where the injured party was fully aware of the hazard through general
                        knowledge, observation or common sense, or participated in the removal of the
                        safety device whose purpose is obvious, lack of warning about that danger may
                        well obviate the failure to warn as a legal cause of an injury resulting from that
                        danger. (Liriano v. Hobart Corp.)




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                                      WARNING DEFECTS

I. Introduction
       A. We are looking for the defects in the words – instructions and warnings – that accompany the
          product whether on the package, on the product, or in an insert that comes with the product.
       B. A product is defective if the use of the product in a manner that is reasonably foreseeable by
          the defendant involves a substantial danger that would not be readily recognized by the
          ordinary user of the product and the manufacturer knows or should have known of the danger,
          but fails to give adequate warning of such danger.
       C. Comment j to § 402A
              1. A product is defective because of inadequate instructions or warnings when the
                 foreseeable risks of harm posed by the product could have been reduced or avoided by
                 the provision of reasonable instructions or warnings.
              2. Omission of the instructions or warnings renders the product not reasonably safe.
II. Obvious Dangers
       A. There is no duty to warn when dangers were apparent and common knowledge dictates it as
          such.
              1. When drinking tequila and you over drink, no duty to warn since it is apparent that
                 tequila drunk heavily and rapidly. Brown Forman Corp. v. Brune
              2. No duty to warn about dangers of riding unrestrained in the cargo bed of a pickup
                 truck. Maneely v. GM
III. Words that Reduce Risk
       A. Introduction
              1. This deals with instructions regarding ways in which to use the product.
       B. General Rule
              1. A manufacturer has a duty to provide an adequate warning to the user on how to use
                 the product if a reasonably foreseeable use of the product involves a substantial danger
                 of which the manufacturer is either aware or should be aware, and that would not be
                 readily recognized by the ordinary user.
IV. Warnings of Intrinsic Risk
       A. Introduction
              1. Warnings whose main purpose is to alert potential users to some risks that inhere in the
                 product as made and that cannot be eliminated or reduced at a cost that equals or is
                 lower than the expected benefits.
       B. General Rule
              1. A manufacturer has a duty to provide an adequate warning to the consumer of a
                 product of potential risks or side effects which may follow the foreseeable use of the
                 product, and which are known or knowable in the light of the generally recognized and

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                 prevailing best scientific and medical knowledge at the time of manufacture and
                 distribution.
V. Inadequate Warnings
       A. General Rule (Hood v. Ryobi America Corporation)
             1. A manufacturer may be liable for placing a product on the market that bears inadequate
                instructions and warnings or that is defective in design.
             2. A warning need only be one that is reasonable under the circumstances.
       B. Determining Adequacy (Pittman v. Upjohn Co.)
             1. A reasonable warning not only conveys a fair indication of the dangers involved, but
                also warns with the degree of intensity required by the nature of the risk.
             2. Elements:
                    a) Warning must adequately indicate the scope of danger;
                            (1) Type of injury
                    b) Warning must reasonably communicate the extent or seriousness of the harm
                       that could result from misuse of the drug;
                            (1) How serious?
                    c) Physical aspects of the warning must be adequate to alert a reasonably prudent
                       person to the danger;
                            (1) Largeness of letters
                            (2) Are they in pictures? In bold?
                    d) Simple directive warning may be inadequate when it fails to indicate the
                       consequences that might result from failure to follow it, and
                            (1) Specific mechanism
                    e) Means to convey warning must be adequate.
                            (1) Prominence of such language being displayed.
                            (2) Warning must reach the person who is likely to use the product.
                            (3) Manual? Website? Warning on product itself?
       C. Lack of Warning for an Unknown Danger
             1. Implied Warranty of Merchantability (Vasallo v. Baxter Healthcare Corp.)
                    a) A Δ will not be liable under an implied warranty of merchantability for failure
                       to warn or provide instructions about risks that were not reasonably foreseeable
                       at the time of sale or could not have been discovered by way of reasonable
                       testing prior to marketing the product.
       D. Defective Warning
             1. The majority of courts hold that a manufacturer (Δ) will be strictly liable for failure to
                warn of dangers which the Δ was either aware of or should have been aware of at the
                time the product left Δ’s possession. (Carlin v. Superior Court)
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VI. Circumstances for Consideration
       A. What if Warning Complained of was Never Read?
              1. Most courts hold that the π’s failure to read the warning is not dispositive of liability.
              2. A π can still argue that had the warning been displayed more prominently, π might
                 have then paid attention.
                     a) Δ can argue that alteration of the warning would either draw attention away
                        from other more important warnings, and/or lead the user to disregard the
                        warning entirely.
       B. What if the Language is Most Explicit for People who don’t Speak English?
              1. Even the most explicit language may not suffice.
              2. In Campos v. Firestone, jury held that pictorial messages were required if the product
                 was likely to be used by migrant workers who did not speak English.
       C. Whom Should Warnings be Addressed To?
              1. Warning must reach the person who is likely to use the product.
              2. Sometimes may not feasible, like if children may be users.
       D. What if the Danger Either Inherent in the Product, or Arising from Forbidden Use is Obvious
          To Most People?
              1. The majority of courts today would simply include this fact in the mix of factors to be
                 assessed in determining the adequacy of the warning. While the jury may give this fact
                 (obviousness) whatever weight it chooses, obviousness alone would not exculpate the
                 defendant from liability.
       E. Is warning enough to cure design defect?
              1. Most courts say no since some courts want manufacturers to change the design of the
                 product.
              2. Policy: To say this would mean that manufacturers can just rubber stamp themselves
                 away from liability from design defects.
VII.   Defenses
       A. Learned Intermediary Doctrine
              1. Applies to prescription drugs only and if there is already a warning present.
              2. An exception to the manufacturer’s duty to warn the ultimate consumer, and
              3. Shields manufacturers of prescription drugs from liability if the manufacturer
                 adequately warns the prescribing physicians of the dangers of the drug.
                     a) Doctor acts as a learned intermediary between the patient and the manufacturer
                        by assessing the medical risks in light of the patient’s needs.
              4. Exceptions are:
                     a) Mass immunizations do not apply because there may be no physician-patient
                        relationship and the drug is not administered as a prescription drug; and

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                      b) When FDA mandates that a warning be given directly to the consumer.
                      c) Over the counter drugs.
       B. Unforeseeability of Use
              1. If the manufacturer could not have foreseen the misuse, then courts will usually not
                 hold liable the manufacturer.
       C. Causation
              1. Could be a defense on any product defect case.


                                              CAUSATION
I. Introduction
       A. Cause-in-Fact & Proximate Cause and Damages must be proven in a strict liability case just as
          in negligence.
II. Cause-in-Fact Analysis
       A. “But For” causation / Cause-In-Fact
              1. Actual cause.
              2. Seeks to tie the Δ’s conduct to the π’s harm in an almost physical or scientific way.
              3. The action or omission constituted a substantial factor in producing the injury.
              4. Example: But for the Δ’s negligence, the harm would not occur.
       B. Substantial Factor
              1. If the cause of the Δ’s negligence is a material or substantial element towards the injury
                 of the π, then no other cause need be shown.
              2. Example is the fire. Two fires set at the same time burn the house at the same time. Δ
                 is a substantial factor in the negligence.
       C. Joint & Several Liability
              1. If more than one person is a proximate cause of the π’s harm, and the harm is
                 indivisible, each Δ is liable for the entire harm.
                      a) For damages, π chooses which Δ should pay. The Δ in turn charges whatever
                         % to the other Δ.
              2. If π can show that each of two or more Δs was at fault, but only one could have caused
                 the injury, the burden shifts to each Δ to show that the other caused the harm.
              3. Must be acting in concert.
                      a) If not acting in concert nor contribute concurrently to the same wrong, they are
                         not joint tort-feasors; rather their wrongs are independent and successive.
       D. Crashworthiness Doctrine


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Torts II                              DEFECTIVE PRODUCTS                                  September 2, 2012


              1. A motor vehicle manufacturer may be liable in negligence or strict liability for injuries
                 sustained in a motor vehicle accident where a manufacturing or design defect, though
                 not the cause of the accident, caused or enhanced the injuries.
III. Proximate Cause Analysis
       A. Andrews in Palsgraf said that “there are no fixed rules to govern our judgment. There are
          simply matters of which we may take account.” These factors are:
              1. EXTENT: Was the extent of π’s harm foreseeable or unforeseeable?
                      a) In either event, Δ is liable for the full extent of harm (eggshell π rule)
              2. TYPE: Was the type of harm which occurred foreseeable from Δ’s negligence or did
                 Δ’s negligence increase the risk that π would suffer the type of harm which occurred?
                      a) Courts tend to be more willing to hold Δ liable if the type of harm that occurred
                         is foreseeable even if the manner is unforeseeable.
              3. MANNER: Was the manner in which the harm occurred foreseeable or did Δ’s
                 negligence increase the risk that π would suffer the harm in the manner which the harm
                 occurred?
                      a) If the harm occurred in an indirect manner, was there an intervening force that
                         supersedes and cuts off Δ’s liability?
              4. TIME & SPACE: How near in time and space was Δ’s negligence to π’s harm?
                      a) The greater the distance either in time or space, the more likely that other
                         causes have intervened to affect the result.
              5. FAIRNESS / PUBLIC POLICY: Is it fair as a matter of public policy to hold Δ
                 liable for π’s harm?
                      a) To quote Justice Andrews, “it is all a question of fair judgment, always keeping
                         in mind the fact that we endeavor to make a rule in each case that will be
                         practical and in keeping with the general understanding of mankind.”


                                               DAMAGES
I. Types of Damages
       A. $pecial
              1. Medical expenses (past & future)
                      a) Future medical expenses aren’t quantifiable. They have to guess.
                      a) They do some future discounting.
              2. Loss Income
                      a) Days missed calculated based on her work days. Calculated by:
                      b) What she can do (Δ income) – What she used to be able to do x number of
                         working days she has (until the age of 65).


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Torts II                              DEFECTIVE PRODUCTS                                 September 2, 2012


             3. Easily quantifiable.
       B. General
             1. Pain and suffering (past & future)
             2. The only way appellate court will overrule an award provided that it shocks the
                conscience and that there’s passion, prejudice, or corruption on the part of the jury.
       C. Punitive
II. Punitive Damages
       A. Purpose
             1. Awarded to penalize the Δ, and deter similar wrongdoers, where the Δ’s conduct is
                particularly outrageous.
       B. Statutory Approach
             1. Recovery of punitive damages in noncontract cases allowed where the Δ has been
                guilty of oppression, fraud, or malice, express or implied. (Cal. Civ. Code § 3294)
                       a) Malice: means conduct which is intended by a Δ to cause injury to the π or
                          despicable conduct which is carried on by the Δ with a willful and conscious
                          disregard of the rights or safety of others.
                       b) Oppression: means despicable conduct that subjects a person to cruel and unjust
                          hardship in conscious disregard of that person’s rights.
                       c) Fraud: means an intentional misrepresentation, deceit, or concealment of a
                          material fact known to the Δ with the intention on the part of the Δ of thereby
                          depriving a person of property or legal rights or otherwise causing injury.
       C. Limits
             1. Generally
                       a) Only used when it is certain that the wrongdoer being punished because of his
                          conduct actually caused the π’s injuries. (Collings v. Eli Lilly)
             2. Product Liability
                       a) If all that the π shows is that the product was defective, and he does not
                          demonstrate negligence, punitive damages are highly unlikely.
                       b) If Δ is the manufacturer, and the π shows that the defendant knew of the defect,
                          and made the product anyway, an award of punitive damages will often be
                          likely.
             3. Constitutionality
                       a) Three part test in determining whether the punitive damage award is grossly
                          excessive from BMW v. Gore:
                              (1) Degree of reprehensibility of the nondisclosure;
                                      (a) Punitive damages may not be grossly out of proportion to the
                                          severity of the offense.


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Torts II          DEFECTIVE PRODUCTS                               September 2, 2012


           (2) Disparity between the harm or potential harm suffered by π and his
               punitive damages award; and
                  (a) Whether there is a reasonable relationship between the punitive
                      damages award and the harm likely to result from the Δ’s
                      conduct as well as the harm that actually has occurred.
           (3) Difference between remedy and the civil penalties authorized or
               imposed in comparable cases.
                  (a) Reviewing court should accord substantial deference to
                      legislative judgments concerning appropriate sanctions for the
                      conduct at issue.




                                                                                       19
Torts II                                INTENTIONAL TORTS                                 September 2, 2012


                                                 INTENT
I. Definition
       A. Requires that the actor desires to cause consequences of his act, or that he believes that the
          consequences are substantially certain to result from it.
       B. Intent must be at least to bring about some sort of physical or mental effect upon another
          person, but does not need to include a desire to harm that person.
II. Generally
       A. All intentional torts must show INTENT and that the Δ knew with SUBSTANTIAL
          CERTAINTY that the tort will occur.
III. Substantial Certainty (Restatement 2nd § 8A)
       A. If the actor knew with substantial certainty that it would occur as a result of an action.
       B. Requires that the actor desires to cause consequences of his act, or that he believes that the
          consequences are substantially certain to result from it. (Garratt)
       C. We speak of “desire” to bring about consequences, or belief that such consequences are
          “substantially certain” to occur.
IV. Elements (Restatement 2nd, § 18)
       A. Purpose/Desire
       B. Knowledge or belief that it is substantially likely to result.


                                               BATTERY
I. Definition
       A. An act that was intended to cause, and in fact did cause, "an offensive contact with or
          unconsented touching of or trauma upon the body of another, thereby generally resulting in the
          consummation of the assault.”
       B. Intentional infliction of a harmful bodily contact upon another.
II. Prima Facie Case
       A. Act;
       B. Intent;
       C. Causing harmful or offensive touching or immediate apprehension of contact;
                1. A bodily contact is offensive if it offends a reasonable sense of personal dignity.
                2. The contact need not be "directly caused by some act of the actor," and
                       a) "the essence of the plaintiff's grievance consists in the offense to the dignity
                          involved in the unpermitted and intentional invasion of the inviolability of his
                          person and not in any physical harm done to his body."
       D. Harmful or offensive contact results; and
       E. Happens on the person of another.
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Torts II                                 INTENTIONAL TORTS                               September 2, 2012


                1. Could also include the person’s clothes or things attached to the person.


                                                ASSAULT
I. Definition
       A. The intentional causing of an apprehension of harmful or offensive contact. (Restatement 2nd
          § 21)
       B. Requires that the actor desires to cause consequences of his act, or that he believes that the
          consequences are substantially certain to result from it.
       C. We speak of “desire” to bring about consequences, or belief that such consequences are
          “substantially certain” to occur.
II. Prima Facie Case
       A. Act;
                1. Must act towards harming the individual
       B. Intended to Act; and
                1. Knowledge or belief that its substantially likely to result; or
                2. Offensive touching.
       C. Intent placed π in fear/apprehension of imminent harmful or violence.
III. Damages Recoverable
       A. The damages recoverable for [assault] are those for the plaintiff's mental disturbance,
          including fright, humiliation and the like, as well as any physical illness which may result from
          them.


                                      FALSE IMPRISONMENT
I. Definition
       A. Unlawful restraint of an individual’s personal liberty or freedom of locomotion.
       B. Has to be done without the consent of the individual allegedly claiming confinement.
II. Prima Facie Case
                1. Act;
                       a) Confinement
                2. Intent;
                       a) Purpose/Desire
                       b) Knowledge/Belief
                3. Unlawful confinement or restraint of person’s liberty or freedom; and
                       a) Actual or apparent physical barriers;


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Torts II                                INTENTIONAL TORTS                                 September 2, 2012


                               (1) Not enough for a person to be compelled to do something for the
                                   evidence must establish a restraint against the π’s will as where she
                                   yields to force to the threat of force or the assertion of authority.
                       b) Overpowering physical force, or by submission to physical force;
                       c) Threats of physical force;
                               (1) Threats of physical force can be effected by words alone, by acts alone,
                                   or by both. Actual force is unnecessary to an action in false
                                   imprisonment.
                       d) Other duress; and
                       e) Asserted legal authority.
                4. Confinement must be involuntary or against the person’s will.


                INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
I. Definition
       A. One who by extreme and outrageous conduct intentionally or recklessly causes severe
          emotional distress to another is subject to liability for such emotional distress, and if bodily
          harm to the other results from it, for such bodily harm. (Restatement 2nd § 46).
       B. Also covers a situation where the actor knows that distress is certain, or substantially certain,
          to result from his conduct. (Comment i to Restatement § 46)
II. Prima Facie Case
       A. Wrongdoer’s conduct was intentional or reckless.
                1. Satisfied where wrongdoer had the specific purpose of inflicting emotional distress; or
                2. Where he intended his specific conduct and knew or should have known that emotional
                   distress would likely result.
       B. Conduct was outrageous and intolerable in that it offends against the generally accepted
          standards of decency and morality.
                1. Requirement is aimed at limiting frivolous suits and avoiding litigation in situations
                   where only bad manners and mere hurt feelings are involved.
                2. Has to be in the eyes of a respectable segment of community.
       C. There was a causal connection between the wrongdoer’s conduct and the emotional distress.
                1. Cause-in-Fact; and
                2. Proximate cause.
       D. The emotional distress was severe.




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Torts II                                INTENTIONAL TORTS                               September 2, 2012


III. Applied to Free Speech (Falwell v. Hustler)
       A. Balancing Test
               1. Court weighs the value of free speech vs. the injury produced by the speech;
               2. Speech is considered more “valuable” if it spurs debate on public issues;
               3. Speech is considered ‘less valuable” if they are fighting words or statements of false
                  fact;
               4. Ill motive is irrelevant;
               5. Court will have same constitutional standards for Intentional Infliction of Emotional
                  Distress as for defamation.
       B. Considerations
               1. Context of injury;
                       a) Time, place, and manner
               2. Level of outrageousness
               3. Act or speech?
                       a) Does speech attack an immutable characteristic?
       C. General Conditions to Recovery
               1. A public figure may recover for libel and defamation only when they can prove both:
                       a) Statement was false; and
                       b) Statement was made with the requisite level of culpability.
       D. Applied to Public Figures and Officials
               1. May not recover for the tort of intentional infliction of emotional distress by reason of
                  publications without showing elements above in addition that the publication contains
                  a false statement of fact which was made with actual malice, i.e. with knowledge that
                  the statement was false or with reckless disregard as to whether or not it was true.
IV. Statutory Limits
       A. If a statute bars recovery for adultery, one may not disguise their lawsuit for emotional distress
          if it involves adultery. (McDermott v. Reynolds).


                                              DEFENSES
I. Types
       A. Consent
       B. Self-Defense
       C. Defense of Property
       D. Necessity



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Torts II                               INTENTIONAL TORTS                                September 2, 2012


II. Consent
       A. General
               1. If π has consented to an intentional interference with his person or property, Δ will not
                  be liable for that interference.
               2. Consent may be express or implied.
       B. Context of Criminal Acts
               1. Majority Rule
                      a) Where the parties engage in mutual combat in anger, each is civilly liable to the
                         other for any physical injury inflicted by him during the fight.
                      b) The fact that the parties voluntarily engaged in the combat is no defense to an
                         action by either of them to recover damages for personal injuries upon him by
                         the other.
               2. Minority Rule (preferred in Hart v. Geysel)
                      a) Where parties engage in a mutual combat in anger, the act of each is unlawful
                         and relief will be denied them in a civil action; at least in the absence of a
                         showing of excessive force or malicious intent to do serious injury upon the
                         part of the Δ.
III. Self-Defense
       A. General
               1. A person is entitled to use reasonable force to prevent any threatened harmful or
                  offensive bodily contact, any threatened confinement, or imprisonment.
               2. If you reasonably believe that you are the target of an unwarranted attack, then you
                  have a privilege to protect yourself.
                      a) You have the privilege to use the same amount of force a reasonable person
                         would use under the circumstances.
       B. Elements
               1. Fear must be reasonable under the circumstances; and
               2. The means of self-defense is reasonable.
IV. Defense of Property
       A. General
               1. A person may generally use reasonable force to defend his property
               2. There is no privilege to use any force calculated to cause death or serious bodily injury
                  to repel the threat to land or chattels, unless there is also such a threat to the Δ’s
                  personal safety as to justify a self-defense.
                      a) Use of a spring gun in an abandoned shack is not a valid defense of property.
                         (Katko v. Briney)
       B. Punitive Damages Possible

                                                                                                         24
Torts II                               INTENTIONAL TORTS                                September 2, 2012


               1. When malice is shown or when a Δ acted with wanton and reckless disregard of the
                  rights of others, punitive damages may be allowed as punishment to the Δ, and as a
                  deterrent to others.
V. Necessity
       A. General
               1. Person has a privilege to harm the property interests of π where this is necessary to
                  prevent great harm to 3rd persons or self.
               2. One cannot save his own property in the expense of another, if their conduct shows that
                  is their intention, unless the conditions were beyond their control or they were acts of
                  God. (Vincent v. Lake Erie Transportation Co.)




                                                                                                          25
Torts II                         DEFAMATION – COMMON LAW                                   September 2, 2012


                               COMMON LAW DEFAMATION
I. Introduction
       A. A statement that is false and injurious to the reputation of another or exposes another person to
          hatred, contempt, or ridicule or subjects another person to a loss of good will and confidence
          in which he or she is held by others.
       B. The making of a statement to a third party that injures a person’s reputation.
       C. The threshold issue in any defamation case is whether the statement(s) at issue is reasonably
          susceptible of a defamatory meaning.
       D. No intent required. (Matherson v. Marchello)
II. Elements
       A. Publication
               1. Factors
                      a) Needs to be communicated to a 3rd person
                              (1) Making a phone call doesn’t count as a “publication” of the
                                  incriminatory statement.
                              (2) No liability exists if a third person unexpectedly overhears a private
                                  conversation between π and Δ.
                      b) Needs to be heard and understood by another person who understands that there
                         is a defamatory thrust to the statement.
                      c) Need only be said to one other person.
                      d) Court doesn’t require that one believe it.
                      e) A communicating of the defamatory statement to a person other than the π.
               2. Types of Publication
                      a) Slander: Spoken
                      b) Libel: Written
                              (1) This is a more “permanent” form of defamation.
                              (2) Also includes TV or Radio broadcasts. (Romaine v. Kallinger)
       B. Defamatory Statement
               1. § 559. Definition
                      a) Commentary that would hurt π in the eyes of a substantial and respectable
                         minority (as opposed to an anti-social group) of the community or deter others
                         from associating with him.
               2. Standards
                      a) “Injure reputation;”
                      b) “Expose to hatred, contempt, ridicule;” or


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Torts II                       DEFAMATION - COMMON LAW                                 September 2, 2012


                    c) “Subject to loss of good will, confidence of others.”
             3. Interpretation requires two steps:
                    a) Determine whether the words can bear the “spin” that π is alleging:
                            (1) If negative, there is nothing further to do; or
                            (2) If positive, then address second question.
                    b) Determine whether the statement is a defamatory statement someone would
                       say:
                            (1) Court must seek the “fair and natural meaning which will be given it by
                                reasonable persons of ordinary intelligence.”
                            (2) In considering language, court considers all of the accoutrements of
                                language, such as punctuation and paragraphing.
                            (3) Court views the publication as a WHOLE.
             4. Audience
                    a) Hurt in eyes of a substantial and respectable minority of the community?
             5. Role of Judge & Jury
                    a) If the statement is clearly defamatory in its only reasonable reading (or in all its
                       reasonable readings), the court will declare it so.
                    b) If it is clearly not defamatory in any reasonable reading, the court will dismiss
                       the case.
                    c) If there are two or more reasonable meanings that might be attached to the
                       statement, with one being defamatory and the other not, then the trier of fact is
                       to decide which meaning would be taken.
       C. Of / Concerning Plaintiff
             1. Must be able to prove that statement is concerning of, or about π.
                    a) π must prove that reasonable reader, listener, or viewer would understand that
                       the defamatory statement referred to the π.
             2. Corporations
                    a) Corporations can sue if character has been attacked.
             3. Group Libel
                    a) If the group is small enough, then a cloud can be cast over all of them.
                    b) Look at how identifiable a particular person is.
       D. Statement Must be Asserted Fact, Not Insult or Opinion
             1. Test is whether the statement can be verified. Ask, “Can the statement be proved
                false?”
                    a) If statement is verifiably false, then there is no constitutional protection.



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Torts II                         DEFAMATION - COMMON LAW                                 September 2, 2012


               2. A statement generally characterized as an opinion may be defamatory if it can be
                  reasonably interpreted by the audience as being based on underlying defamatory facts.
               3. Courts are more likely to find that a statement is an opinion rather than a fact.
                      a) When in doubt, the court will most likely decide that the statement is hyperbole
                         not a statement of verifiable fact.
III. Damages
       A. Generally
               1. Damages are dependent on whether the defamatory statement is libel or slander.
               2. Defamation generally, but not always, permits π who can show that they have been
                  defamed to recover proven damages.
                      a) These may include lost wages and similar losses, as well as proven damages for
                         broad reputation loss.
       B. Types of Damages
               1. $pecial
                      a) These may include specific identifiable pecuniary losses that the π can prove he
                         or she sustained and can trace to the Δ’s defamatory statement.
                      b) These damages must flow directly from the injury to reputation caused by the
                         defamation; not from the emotional effects of defamation.
                      c) These must be fully and accurately identified with sufficient particularity to
                         identify actual losses.
                      d) “Round Figure” or a general allegation of a dollar amount as special damages
                         do not suffice.
               2. General
                      a) Includes damages to reputation that the π has suffered in ways that cannot be
                         easily correlated with dollars and cents.
               3. Nominal
                      a) Small amount, often $1.
                      b) Sometimes the π needs special damages in order to get general or punitive
                         damages so the jury will award nominal damages as special damages when the
                         π has not actually suffered or suffered little out of pocket loss.
               4. Punitive
                      a) Punish the wrongdoer, make an example of.
                      b) π must show some type of malice, either common law malice or actual malice,.
       C. Libel
               1. General Rule
                      a) No need to plead and prove $pecial damages.


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Torts II                          DEFAMATION - COMMON LAW                                  September 2, 2012


                               (1) It is assumed that the libelous statement has injured the person’s
                                   reputation.
                        b) A π may rely on General Damages (damages not easily calculable) or Punitive
                           Damages (punishment damages).
                               (1) This is also referred to as “Presumed General Damages.”
        D. Slander
                1. $pecial Damages Required
                        a) A π suing in slander must plead $pecial Damages.
                2. Slander Per Se Exception to General Rule
                        a) Slander per se categories are:
                               (1) Accusing the π of committing a major crime;
                               (2) Having a sexually transmitted or other “loathsome” disease;
                               (3) Conducting himself in a way that made him unsuited for his business or
                                   profession; or
                               (4) Imputing unchastity to a woman
                        b) If it’s slander per se, you do not need to prove $pecial Damages.
                        c) You can recover General and Punitive Damages if you prove slander per se.
IV. Strict Liability
        A. Publishers
                1. A publisher was held to be strictly liable for defamatory statements.
                        a) If there’s a commentator, and the publisher publishes the views of someone
                           else, then the publisher will be held strictly liable.
        B. Disseminators
                1. Disseminators, like bookstores, are generally not held to be strictly liable unless they
                   knew or had reason to know about the defamatory remarks being sold or loaned.




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Torts II                      DEFAMATION – CONSTITUTIONAL                                 September 2, 2012


                            CONSTITUTIONAL DEFAMATION

                                            Actual Damages

 Type of Plaintiff                                    Type of Concern
                                            Public                                        Private
Public Figure /                   NY Times – Actual Malice                                    ?
Public Official         π must prove actual malice with convincing
                         clarity.
                        Hepps – π has burden of proof to show statement
                         was false.
                                        Gertz + Hepps                               Dunn & Bradstreet
Private                 State Choice so long as it is fault standard              State Choice
                         (negligence).                                                  o More likely State
                                o No strict liability. No libel per se.                    Common Law
                                o Hepps – π has burden of proof to
                                    show statement was false.
                        Restatement has factors to show negligence
                         (Note 9, pg. 1040)

                                          Presumed Damages

                                                      Type of Concern
 Type of Plaintiff                       Public                                        Private
Public Figure /               NY Times – Actual Malice                                    ?
Public Official         π must prove actual malice with
                         convincing clarity.
                                o Hepps – π has burden of proof
                                   to show statement was false.
                            Gertz (must show both elements)                      Dunn & Bradstreet
Private                 Actual Malice (N.Y. Times)                          State common law applies
                        Hepps – π has burden of proof to show                (negligence).
                         statement was false.




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Torts II                        DEFAMATION – CONSTITUTIONAL                                September 2, 2012


I. Type of Plaintiff
       A. Public Figures - Wells v. Liddy
              1. Introduction
                       a) Classifies public figures into three categories listed below.
              2. Factors for Consideration From Gertz (No need to march down factors)
                       a) Notoriety of achievement;
                       b) Success at seeking public attention;
                       c) Voluntary nature or because of public office?
                       d) General prominence?
                       e) Thrust themselves to the forefront of a particular issue?
                       f) Pervasive v. Specific fame
                              (1) If pervasive, you are an All Purpose Public Figure.
                              (2) If specific, you are a public figure at certain times only.
              3. General Purpose Public Figures
                       a) A well-known celebrity, his name a household word.
              4. All-Purpose Public Figure
                       a) Public figures who achieve such pervasive fame or notoriety that they become
                          public figures for all purposes and in all contexts.
              5. Involuntary Public Figure
                       a) Becomes public figures through no purposeful action of their own.
                              (1) Not because of “sheer bad luck” because this class of plaintiffs must be
                                  rare.
                              (2) Richard Jewel from the Atlanta Olympics bombing controversy is an
                                  example
                       b) Person has pursued a course of conduct from which it was reasonably
                          foreseeable, at the time of the conduct, that public interest would arise.
                       c) Must be mindful of the underpinnings from Gertz:
                              (1) Public figure can take better advantage of the free press and has an
                                  easier time resorting to self-help because notoriety guarantees better
                                  access to the media and channels of communication.
                              (2) Public figure has taken actions through which he has voluntarily
                                  assumed the risk of publicity.
              6. Limited-Purpose Public Figure
                       a) Public figures who voluntarily inject themselves into a particular controversy
                          and thereby become public figures for a limited range of issues.


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Torts II                     DEFAMATION – CONSTITUTIONAL                                September 2, 2012


                     b) Consider whether a pre-existing public controversy gave rise to the defamation
                        not whether the defamatory statement gave rise to the public controversy.
                            (1) Public controversy is a dispute that in fact has received public attention
                                and the ramifications will be felt by persons who were not direct
                                participants in the dispute.
                     c) Δ must prove 5 element test. Court looks at the nature and extent of an
                        individual’s participation in the particular controversy giving rise to the
                        defamation:
                            (1) π has access to channels of effective communication;
                            (2) π voluntarily assumed a role of special prominence in the public
                                controversy;
                            (3) π sought to influence the resolution or outcome of the controversy;
                            (4) Controversy existed prior to the publication of the defamatory
                                statement; and
                            (5) π retained public-figure status at the time of the alleged defamation.
       B. Public Official
              1. Definition (Rosenblatt)  Supreme Court Interpretation
                     a) Where a position in government has such apparent importance that the public
                        has an independent interest in the qualification and performance of the person
                        who holds it.
                     b) It has to be beyond the general public interest in the qualifications and
                        performance of all government employees.
              2. Factors
                     a) Does π have policy influence? (Rosenblatt)
                     b) Three-Legged Stool from Kassel  1st Circuit Interpretation
                            (1) Is π a policy maker?
                                    (a) Persons in the upper level niches of apparent importance
                                        sufficient to give the public an independent interest in the
                                        qualifications and performances of the persons who hold them.
                            (2) Access to media.
                                    (a) Entails the π access to media to counteract the impact of false
                                        and injurious statements.
                                    (b) Government workers who, by virtue of their employment, may
                                        easily defuse erroneous or misleading reports without judicial
                                        assistance should more likely be ranked as “public officials” for
                                        libel law purposes.
                            (3) Assume risk of scrutiny?



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Torts II                        DEFAMATION – CONSTITUTIONAL                                September 2, 2012


                                      (a) Involves the degree to which the π has assumed the risk of
                                          exposure to criticism by the media.
               3. Examples
                       a) Candidates for office are also considered public officials.
                       b) Police officers and firefighters are public officials.
                       c) Courts are split on whether public school teachers are public officials.
                       d) Social workers are public officials.
                       e) Former officials remain public officials for purposes of commentary on their
                          past performance.
        C. Private Plaintiff
               1. Person who did not assume any role of special prominence in the affairs of society.
               2. Person did not thrust himself to the forefront of any particular public controversy in
                  order to influence the resolution of the issues involved in it.
II.   Type of Controversy or Concern
        A. Public Controversy / Concern
               1. Definition
                       a) A dispute that in fact has received public attention and the ramifications will be
                          felt by persons who were not direct participants in the dispute.
                       b) Ask: Will the matter affect the public?
                       c) Relates to political, social, or other concerns
               2. Illustration (Flamm)
                       a) Directory put out to the public to provide public information:
                               (1) Larger audience for directory
                               (2) Common Law recognizes that persons who present themselves or there
                                   services or goods to the public are matters of public concern.
        B. Private Controversy / Concern
               1. Mere gossip and prurient interest.
               2. Directed at a limited private audience.
                       a) Private communication to a private audience. (Dunn & Bradstreet)
III. Identify the Allegedly Defamatory Statement
        A. Once you figure out which box you are in, identify the defamatory statement(s) and analyze
           them accordingly.
        B. Classify the statement (libel or slander) and mention what damages are applicable for.
               1. Once you classify statement, define and state what kind of damages the π is entitled to,
                  along with whether the π can prove such damages.


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Torts II                       DEFAMATION – CONSTITUTIONAL                                   September 2, 2012


IV. Prima Facie Case for Defamation
       A. Apply the Prima Facie Case for defamation
              1. Publication
              2. Defamatory Statement
              3. Of / Concerning π
              4. Statement Must be Asserted Fact, Not Insult or Opinion
V. Damages
       A. Procedure
              1. Under this analysis, you march down each of the elements listed in the box.
              2. You apply the common law in most of them plus any modifications made because of
                 NY Times and its progeny.
       B. Actual Damages
              1. Public Figure/Official & Public Concern
                      a) Apply NY Times Actual Malice Standard
                            (1) Public Figure/Official suing for damages must prove that the statement
                                was made with “actual malice” which is:
                                      (a) Knowledge that the statement made was false, or
                                      (b) Statement was made with reckless disregard of whether it was
                                          false or not.
                                             (i) Reckless disregard is shown if Δ in fact entertained
                                                 serious doubts as to the truth of his publication. (St.
                                                 Amant)
                                      (c) Contrast with “ill will malice” where the reporter just hates the
                                          individual. Focus on the statement not the subjective
                                          thoughts of the reporter.
                            (2) π must prove Actual Malice with clear and convincing evidence.
                                      (a) Implicit references that the π is defamed in the statement made is
                                          not enough. The more express it is, the better.
              2. Private Plaintiff & Public Concern
                      a) Apply Common Law with Gertz Constitutional Overlay
                            (1) π has burden of proof (Hepps) to show, dependent on what the State
                                chooses, either:
                                      (a) That Δ knew his statement was false; or
                                      (b) Δ was negligent in not ascertaining its falsity.
                                             (i) π must prove negligence of Δ by taking into account the
                                                 following factors listed in § 508B, comment h:


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Torts II                   DEFAMATION – CONSTITUTIONAL                              September 2, 2012


                                        (ii) Time Element
                                                  (a) Investigations may be shorter for topical news
                                                      than for a story that has no time pressure.
                                        (iii)Nature of the interest promoted by publication
                                                  (a) A story informing the public of matters important
                                                      in a democracy may warrant a quicker publication
                                                      than a story involving mere gossip.
                                        (iv) Potential damage to π if the communication proves to be
                                             false
                                                  (a) Whether the statement is defamatory on its face;
                                                  (b) How many readers will understand the
                                                      defamation?
                                                  (c) How harmful is the charge?
                                        (v) Nature and reliability of the source of the information
                                        (vi) Reasonableness in checking the veracity of the
                                             information, considering its cost in terms of money, time,
                                             personnel, urgency of publication, nature of news and
                                             any other pertinent element.
            3. Private Figure & Private Concern
                   a) Negligence Standard applied in Dunn & Bradstreet
                          (1) π must prove negligence of Δ by taking into account the following
                              factors listed in § 508B, comment h:
                                 (a) Time Element
                                        (i) Investigations may be shorter for topical news than for a
                                            story that has no time pressure.
                                 (b) Nature of the interest promoted by publication
                                        (i) A story informing the public of matters important in a
                                            democracy may warrant a quicker publication than a
                                            story involving mere gossip.
                                 (c) Potential damage to π if the communication proves to be false
                                        (i) Whether the statement is defamatory on its face;
                                        (ii) How many readers will understand the defamation?
                                        (iii)How harmful is the charge?
                                 (d) Nature and reliability of the source of the information
                                 (a) Reasonableness in checking the veracity of the information,
                                     considering its cost in terms of money, time, personnel, urgency
                                     of publication, nature of news and any other pertinent element.
       C. Presumed Damages
                                                                                                       35
Torts II                     DEFAMATION – CONSTITUTIONAL                               September 2, 2012


             1. Public Figure/Official & Public Concern
                    a) Once you have shown in the Actual Damages section that you have met the
                       standards, then you are entitled to Presumed/Punitive Damages as well.
             2. Private Plaintiff & Public Concern
                    a) Apply NY Times Actual Malice Standard; and
                            (1) Public Figure/Official suing for damages must prove that the statement
                                was made with “actual malice” which is:
                                   (a) Knowledge that the statement made was false, or
                                   (b) Statement was made with reckless disregard of whether it was
                                       false or not.
                                           (i) Did the Δ have serious doubts as to the truth of the
                                               publication so that recklessness is found? (St. Amant)
                            (2) π must prove Actual Malice with clear and convincing evidence.
                    b) Apply Common Law Malice Standard
                            (1) Is there spite, ill will, contempt, or hatred in the defamatory statement?
             3. Public Figure/Official & Private Concern
                    a) Application unknown.
             4. Private Plaintiff & Private Concern
                    a) Apply State Common Law
                    b) Strict Liability may apply. (Snead)
VI. Punitive Damages
       A. Malice Required
             1. To show punitive damages, you must show that the person who made the defamatory
                statement showed malice, ill will, or oppression in making the statement.




                                                                                                         36
Torts II                                DEFAMATION – DEFENSES                              September 2, 2012


                                          GENERAL DEFENSES
I. Truth
       A. At common law, if the Δ can show that the statement they made was true, then this will
          extinguish the defamation claim.
                  1. The truth must be substantial.
                  2. False accusation must be close to the true facts.
       B. This is an absolute privilege.
       C. Test is whether what was published would have had a different effect upon the mind of the
          reader from that which the pleaded truth would have produced.
II. Consent
       A. When the π allows defamatory information to be published, or caused it to be published. May
          include:
                  1. Employment references;
                  2. Credit checks; and
                  3. Medical records to insurance company.
III. Privileges
       A. Generally
                  1. These are statements that are afforded some leeway in a defamation suit.
                  2. Two types:
                         a) Absolute
                                  (1) These are statements that may never be the subject of a defamation suit.
                         b) Conditional / Qualified
                                  (1) These are statements that protect the maker of the defamatory statement
                                      from liability only if the statement was made without common or actual
                                      malice.
       B. Absolute
                  1. Legislator on Floor of the Legislature
                         a) Enables legislator to go into debate to prevent them from being timorous.
                         b) Important that public issues are debated, with the outcome being a bill, so that
                            they can be discussed.
                  2. Statements in an Arresting Officers’ Report.
                         a) Allows the police officer to just throw in “everything” they know about the
                            incident without censoring themselves.
                         b) Filing a Civil Complaint



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Torts II                           DEFAMATION – DEFENSES                                     September 2, 2012


                             (1) Some states do not allow announcement of complaint with certain
                                 remarks that are defamatory.
                      c) Attorney in the Courtroom
                             (1) Same reason as legislators.
       C. Conditional
              1. Usually, these are statements made in order for ordinary business and important family
                 matters to be conducted.
              2. Examples include:
                      a) Letters of Recommendation
                      b) Reports to proper authorities about the commission of crimes
                      c) Communications to family members about the character of people with whom
                         they are dealing or had personal relationships.
                      d) Some lower governmental officials as part of the conduct of their office.
                      e) Fair comment such as reviews and critiques.
       D. Losing Conditional Privilege
              1. Malice (Common Law)
                      a) Spite or ill will towards making the statement.
                             (1) If a person has ill will but still believes they’re telling the truth, ill will
                                 is relevant but not determinative.
                      b) Malice must be sole purpose for the publication.
                      c) Excessive Publication: Published too widely.
              2. Actual Malice (NY Times)
                      a) Knowledge that it was false; or
                      b) Reckless disregard for the truth.
IV. Fair and Accurate Report
       A. Generally
              1. Given to the press to publish accounts of official proceedings or reports even when
                 these contain defamatory statements, so long as the account presents a fair and accurate
                 summary of the proceedings.
              2. Restatement (2nd) § 611. Report of Official Proceeding or Public Meeting.
                      a) The publication of defamatory matter concerning another in a report of an
                         official action or proceeding or of a meeting open to the public that deals with a
                         matter of public concern is privileged if the report is accurate and complete or a
                         fair abridgement of the occurrence reported.




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Torts II                            DEFAMATION – DEFENSES                               September 2, 2012


       B. Exception
              1. This can be defeated by a showing that the publisher acted for the sole purpose of
                 harming the person defamed.
       C. Once the libel Δ establishes the existence of a “privileged occasion,” the burden returns to the
          π to prove abuse. Abuses are:
              1. Account of an official report may fail to be fair and accurate, or
              2. Defamatory material may be published for the sole purpose of causing harm to the
                 person defamed. (Time)
V. Retraction
       A. This is primarily used as a mitigating device for damages.
              1. These limit damages because it is an admission of the publisher’s fault.
       B. Restatement (2nd) § 48a
              1. Any action for libel against a newspaper or slander in a broadcast, the π shall recover
                 no more than special damages unless a correction be demanded and be not published or
                 broadcast, as hereinafter provided.


                        SPECIFIC CONSTITUTIONAL DEFENSES
I. Verifiability
       A. Where statement of "opinion" on matter of public concern reasonably implies false and
          defamatory facts regarding public figures or officials, those individuals must show that such
          statements were made with knowledge of their false implications or with reckless disregard of
          truth in order to recover
       B. Four factors are considered to ascertain whether, under the "totality of circumstances," a
          statement is fact or opinion. These factors are:
              1. Specific language used;
              2. Whether the statement is verifiable;
              3. General context of the statement; and
              4. Broader context in which the statement appeared.
II. Neutral Report of an Accusation (In Context of News Story)
       A. When a responsible, prominent organization makes serious charges against a public figure, the
          1st Amendment protects the accurate and disinterested reporting of those charges, regardless of
          the reporter’s private views regarding their validity. (Edwards v. National Audubon)
III. Press as Repeater (Actual Headline)
       A. If the accusation is the news story, then reporting the fact that an accusation has been made is
          not defamation. (Globe)
       B. The press is not reporting the underlying event, but the accusation.


                                                                                                         39
Torts II                                      PRIVACY                                    September 2, 2012


                                              PRIVACY
I. Introduction
       A. Main difference between privacy and defamation type claims is that privacy claims are often
          based on true statements. Defamation usually involves false statements.
       B. Three types discussed:
              1. Public Disclosure of Truth
              2. False-Light Privacy
              3. Intrusion
II. Public Disclosure of Truth
       A. Defined
              1. The disclosure of true statements that an individual would rather not have publicly
                 disseminated.
              2. Regardless of the precise point at which the line is drawn, the right to be free from
                 offensive public disclosures of private facts must at some point yield to the public’s
                 right to know about matters of public interest.
              3. Whether a disclosure is actionable will tend to be a highly context-dependent decision,
                 taking into account the extent to which:
                      a) π has or has not voluntarily subjected himself to publicity in the past,
                      b) Character of the information disclosed,
                      c) Manner in which Δ came into possession of information, and
                      d) Legitimacy of private interest in the information disclosed.
       B. State Tort Analysis
              1. The core of the branch of privacy law with which we deal in this case is the protection
                 of those intimate physical details the publicizing of which would be not merely
                 embarrassing and painful but deeply shocking to the average person subjected to such
                 exposure. (Haynes v. Knopf, Inc.)
              2. Restatement 2nd § 652D
                      a) One who gives publicity to a matter concerning the private life of another is
                         subject to liability to the other for invasion of his privacy, if the matter
                         publicized is of a kind that:
                             (1) Would be highly offensive to a reasonable person, and
                             (2) Is not of legitimate concern to the public.
       C. Constitutional Privilege
              1. If a newspaper lawfully obtains truthful information about a matter of public
                 significance then state officials may not constitutionally punish publication of the
                 information, absent a need to further a state interest of the highest order. (Florida Star)


                                                                                                          40
Torts II                                         PRIVACY                                    September 2, 2012


                2. The statute regulating this must be narrowly tailored to accomplish this goal. (Florida
                   Star)
III. False Light Privacy
       A. Definition
                1. Publishing a false feature story about someone and thereby making them the objects of
                   pity and ridicule.
       B. Rule
                1. It is an invasion of the π’s privacy to portray him in a false light if that is done with
                   actual malice and the portrayal is highly offensive.
       C. Standard of Proof
                1. π must prove by clear and convincing evidence that Δ knew of the statement's falsity or
                   acted in reckless disregard of its truth or falsity.
       D. Elements
                1. Δ must make a public disclosure of a fact, not opinion;
                2. Fact is false and portrays π in a false light
                       a) Fact does not have to be false (literally untrue)
                3. False light in which the π is portrayed is highly offensive to a reasonable person
                4. Δ’s knowledge of falsity – actual malice (public π) or negligence (private π)
                5. Damages
IV. Intrusion
       A. Definition
                1. Nader Standard:
                       a) Instances of intrusion by physical trespass or otherwise into spheres from which
                          an ordinary man in a plaintiff’s position could reasonably expect that the
                          particular Δ should be excluded. (Nader)
                2. IL Standard:
                       a) Intrusion must be offensive or objectionable to a reasonable person;
                       b) Information has to be private;
                               (1) If information is bad but public knowledge then there is no claim for
                                   gathering the information because the information itself is not private.
                       c) Unauthorized intrusion or prying into π’s seclusion;
                               (1) Intrusion has to be offensive or objectionable to a reasonable person.
                       d) Intrusion must cause anguish/suffering (subjective); and
                       e) Unauthorized intrusion,
                               (1) Was there consent? (Desnick)


                                                                                                               41
Torts II                                     PRIVACY                                   September 2, 2012


       B. Elements (CA in Miller)
             1. Intrusion into a private place, conversation, or matter, and
             2. Intrusion is in a manner highly offensive to a reasonable person.
       C. Wiretapping
             1. The NY Court of Appeals in Nader says that wiretapping/eavesdropping is actionable
                for a tort of intrusion.
             2. Privacy is invaded only if the information sought is of a confidential nature and the Δ’s
                conduct was unreasonably intrusive.
       D. Harassment
             1. The First Amendment does not establish a wall of immunity which protects newsmen
                from any liability for their conduct while gathering news; crimes and torts committed
                in news gathering are not protected by the First Amendment. (Gallella v. Onassis)
       E. Consent
             1. There can be no implied consent in any nonfictitious sense of the term when express
                consent is procured by a misrepresentation or a misleading omission.
             2. Investigative Reporting
                     a) If the broadcast itself does not contain actionable defamation, and no
                        established rights are invaded in the process of creating it (for the media have
                        no general immunity from tort or contract liability), then the target has no legal
                        remedy even if the investigatory tactics used by the network are surreptitious,
                        confrontational, unscrupulous, and ungentlemanly. (Desnick)
       F. Stalking
             1. π must show that Δ:
                     a) Engaged in a pattern of conduct the intent of which was follow, alarm, or harass
                        the π;
                     b) As a result of which the π reasonably feared for his or her safety, or the safety
                        of an immediate family member;
                     c) Δ either violated a restraining order, or made a credible threat with intent to
                        place the π in a reasonable fear for his or her safety or the safety of another
                        immediate family member, and, on at least one occasssion, π clearaly and
                        definitively demanded that the Δ cease and abate the pattern of conduct and that
                        the Δ persisted in his or pattern of conduct.
       G. News Broadcasting (Shulman)
             1. The state may not intrude into the proper sphere of the news media to dictate what they
                should publish and broadcast, but neither may the media play tyrant to the people by
                unlawfully spying on them in the name of newsgathering.




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