JP's Torts OUTLINE

TORTS II OUTLINE Defamation -Defamation is here to protect the First Amendment while also protecting the counter-veiling interest of individual rights. 1. Libel v. Slander: -Libel Per Se: Generally written down. -No requirement of Special Damages. -We require a less stringent test for libel because written words seem to be more credible, so people will be more likely to believe them. Also, the defendant acted more deliberately when he wrote them down, so his actions seem worse. -Slander: generally spoken. -There is a requirement of Special Damages. -Exception: Slander Per Se: (no special Damages Requirement). 1. Imputation of Major Crimes. -The crime must involve “moral turpitude,” which is defined as “an inherent baseness or vileness of principle in the human heart.” 2. Loathsome Disease. -Something like a venereal disease will not be enough, but AIDS may be. 3. Business, Trade, Profession or Office. -Anything that is likely to affect one’s business or trade. -Basically making a statement which is incompatible with the proper workings of one’s business. 4. Serious Sexual Misconduct. -Imputations of unchastity were actionable by a woman, but not a man. -Calling a man a “faggot” or saying he was gay was actionable. -Modern Trend: moving away from this. -Libel v. Slander: -Restatement § 568: -The area of dissemination, the deliberate and premeditated character of its publication, and the persistence of the defamation are factors to be considered in determining whether a publication is a libel rather than a slander. -Broadcasts: most likely libel because they are somewhat deliberate, but are very persistent and reach a broad number of people. -Shor v. Billingsley: -The case where the defendant was on a live TV show and made defamatory remarks. 1 -Example of broadcasts being like libel. -Internet: California has ruled that defamation over the internet is libelous. 2. General Rule: 1. Defamatory Words; and -What words were spoken that may be defamatory? -Any publication which exposes a person to distrust, hatred, contempt, ridicule, or obloquy. -Belli v. Orlando Daily Newspaper, Inc: -The case where the attorney was accused of having run up his hotel bill. -Gives us the test for Libel Per se. -Modern Trend: any publication which diminishes respect, goodwill, confidence, or esteem; or excites adverse or unpleasant feelings about the Plaintiff. -Some Person Test: To see if this occurs we must determine if “some people” would hold the plaintiff up to distrust, hatred, etc..., or the Modern Trend. -We don’t want to use a reasonable person test because we don’t care who thinks the words are defamatory, all we care about is whether some people will think they are. -Grant v. Reader’s Digest Association: -A lawyer is alleged to be party of the Communist Party. -Example of the use of the “some person” test. -When there are quotations, there has to be a material change in the meaning of the words in order to find defamation. -Opinion v. Statement of Fact: -There is no such thing as a false idea, so if something seems to be an opinion, it will not be actionable. -If a statement seems to be one of an objectively verifiable fact, then it is the type of statement which is actionable. -Simply appending the words “in my opinion” will not change the matter. -Milkovich v. Lorain Journal Co.: -The case where an article said that a high school wrestling coach perjured himself. -It may have seemed like an opinion, but it was one which would have been based on objectively verifiable facts. 2 2. Publication to a Third Party; and -Must be some type of “publication” to a third person. -A requirement is that the person understand what is being said. -Economopoulous v. A.G. Pollard Co.: -The case where the guy said something in English, but none heard, then he said it in Greek, and others heard, but none understood. -Single Publication Rule: only the first publication of the defamatory words may be actionable. -Republications or rebroadcasts of it will not count because allowing them to would make the statute of limitations meaningless. -Ogden v. Association of the United States Army: -Example of a one year statute of limitations running and the court getting rid of the old rule. -The actions must be intentional or negligent: -If the words are spoken, and it is reasonable to believe that no one else was around, then there will be no defamation action. -Stenographers: -Majority Rule: this constitutes slander, and if it is written down, it constitutes libel. -Minority Rule: this is a tool and therefore there is no defamation. -Reports between Officers in Company: -This can constitute a publication, however it is fact sensitive. -A Republisher is also liable. -New editions will constitute a new cause of action. 3. Inducement; and -When the defamatory words are not so on their face, show other intrinsic facts which would indicate that the words were defamatory. -Circumstantial evidence. -Determine when were the words spoken? Some things that were defamatory 50 years ago may not be so today. 4. Colloquium; and -Make sure the words were specifically spoken “of and concerning” the plaintiff. -We can take this through circumstantial evidence, just so long as it is readily apparent who is being spoken about. Description of someone may be enough. 3 -Where statements defame a group: -Small Group: (less than 25?) -If all are defamed, all can sue. -If only some are defamed: -Some courts say that there is no action. -Some courts say there is an action, and it depends on the circumstances. -Ex: Oklahoma football team. -Large Group: -None can ever sue. -Exceptions: if some fact indicates that one person may have definitely been defamed, that person will always have a suit for defamation. -Kilian v. Doubleday & Co., Inc.: -The case where a writing class was being given to WWII veterans. -Example of circumstantial evidence proving colloquium. -Neiman Marcus v. Lait: -The case where the people in Neiman Marcus were called whores and stuff, no good! -The group of people were too big so none could sue. 5. Innuendo; and -What did the words mean? -How we determine this: -Combine elements 1 & 3 and determine what someone could reasonably conclude from them. 6. Damages; and -Presumed Damages: -When there is libel, it is presumed that any damage to one’s reputation will also damage them financially. -Special Damages: -Must show that there are pecuniary damages because of loss of reputation in the community. -Can’t say that you were so distraught by comments that you couldn’t work. -Must be the actual harm to the reputation which is causing the loss. -Terwilliger v. Wands: 4 -Defendant said that the plaintiff was having an extra-marital affair and the plaintiff was subsequently “prostrated” in health. -Doesn’t meet the Special Damages requirement for slander. -Doctrine of Incremental Harm: -If someone’s reputation has already been harmed by a true statement then making a false one will not hurt his reputation anymore. *This is not followed anymore because it is an all or nothing approach. 7. Special Constitutional Requirements. -The first amendment to the constitution provides some protection to media defendants and issues of public concern. -What is a public official or person? -Public Person: Gertz Test: 1. What is the person’s access to the media? -The more access they have, the more public they are. 2. Has the person assumed any risk of defamation? -Someone who runs for office or inserts themselves or inserts themselves into an issue is considered to have assumed the risk. -This is the more important factor, but not dispositive. -Involuntary cases are few and far between. -Most situations are limited public person. -There are only certain things that can be said about them which will gain first amendment protection. -The statements at issue must concern the reason for the plaintiff’s public status. -If the statements do not concern this, the court will treat the plaintiff as a private person. -Public Official: -Those who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs. -There are few situations of Universal Public Figures. -Public v. Private Concern: -A public concern must be determined by the expressions, content, form, and context of the situation. -A private concern is one which is solely in the individual interest of the speaker and its specific business audience. 5 -Public Officials or Persons: -A public official is prohibited from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with “actual-malice.” -Actual Malice: -Knowledge that the statement is false or recklessly disregarding whether it was false or not. -Reckless Disregard: The Serious Doubt Test: -There must be sufficient evidence that the defendant, in fact, entertained serious doubt as the to truth of his publication. -Professions of Good faith will fail if the story is: 1. Fabricated; or 2. Based wholly on unverified anonymous information; or 3. Completely improbable. -Based on St. Amant v. Thomas. -Failure to check a story does not amount to recklessness, but rather negligence. -The burden of proof is on the plaintiff to show the falsity of the statements. -This provides extra 1 st Amendment protection. -Private Individual and Public Concern: -The plaintiff needs to demonstrate negligence on the part of the defendant in publishing the statement. -The burden of proof remains on the plaintiff to show the falsity of the statement. -It’s continued protection from the 1 st Amendment, but watered down. -Private Individual and Private Concern: -A type of strict liability: no fault on the part of the defendant is required. -The burden of proof shifts onto the defendant to prove the truth of the statement. -In this situation there is no 1 st Amendment protection, so we simply have to go through the original 6 elements of defamation, without actual malice or negligence. -The plaintiff may get Punitive damages without a showing of actual malice. 6 2. Defenses and Privileges to Defamation: 1. Truth: -Truth of statements is an absolute defense to defamation because we want free speech of things that are true. -Defendant has to show that the statements made were “substantially true.” -If enough of what the defendant was trying to get across is true, then it is “substantially” true. -Burden: -The burden of proving that a statement is true is on the defendant because all statements which are defamatory are so regardless of their truth. -You have to show that all the comments made are “substantially true. -New York Times v. Sullivan:* -The Civil Rights case where the paper allegedly defamed an entire police department. -Example of something which was substantially true, and also the beginning of the 7th element for Defamation. 2. Fair Comment: -Common Law immunity for the honest expression of opinion on matters of legitimate public interest when based upon a true or privileged statement of fact. Privacy 1. Appropriation of Identity for Commercial Use: -This rule is based on the idea that a person has an interest in their own identity. -The Rule: -One cannot appropriate someone’s identity for commercial purposes without that person’s consent. -Commercial exploitation must be the primary reason for use of the identity -Absent a showing of malice, or continued exploitation, the plaintiff may only receive nominal damages. -The court has some discretion on when to apply this, and may refrain from doing so if the plaintiff is portrayed in a good light. -Also, a private person may have less of a case when it comes to Appropriation because this action is viewed as a quasi property action. Private citizens don’t have much of a property claim in their identity. 7 -The difference between this and other privacy action is that it has to do with “who” gets to publish the material, not “if” the material may be published at all. -Flake v. Greensboro News Co.: -The case where the wrong woman was put under a heading for the “Folies.” -It portrayed her in a good light, and there was no continued abuse, so she only got nominal damages. 2. Intrusion: -This is not based on the actual publication, rather, only on how the information is gained. -Don’t worry about whether it gets published or not. -The Rule: -If there is an intrusion, by physical trespass or not, into spheres from which an ordinary man in plaintiff’s position could reasonably expect that the particular defendant should be excluded. -This is the tort of Intrusion upon Exclusion. -The intrusion must be into a private place, conversation, or matter, and must be highly offensive to a reasonable person. -This is an objective test. -The subsequent publication of information gained by intrusion will not be actionable simply because of the intrusion. -We will have to go back to other privacy actions to determine if it was ok to publish. -Taking Pictures: -No liability if taken in a public place. -Possible liability if taken through someone’s home windows when a normal person would be unable to see in. -Pearson v. Dodd: -The case where the fired assistants got into the senator’s office and took out files which they copied and returned. -Example of an objectively reasonable expectation of privacy and something that would be highly offensive to a reasonable person. 3. Public Disclosure of Private Facts: -The Rule: 1. There is a public disclosure of private facts; and -Facts which are part of the public record cannot be private facts. -Breach of Confidence: Modern Trend 8 -If there is a situation where someone entrusts someone with confidential information, the second person may not be allowed to publish it. 2. The disclosure is highly offensive to a reasonable person. -Exception: If the plaintiff is a public figure or the information is newsworthy. -Cox Broadcasting Corp v. Cohn: -The case where the broadcasting company disclosed the identity of a rape victim. -Unfortunately, the identity was mistakenly part of the public record. 4. False-Light: -Very similar to defamation, except the requirements for this cause of action are not as stringent. -Basically, it is the gap filler between defamation and the other privacy torts. -It gives a “newsworthy” person some recourse when they are portrayed in a false light. -The Rule: 1. The plaintiff is portrayed in a false light; and 2. The falsity would be highly offensive to a reasonable person; and 3. The comments were made with actual malice. -This may not be required for a private individual -A complete defense would be, of course, the truth of the comments. -Cantrell v. Forest City Publishing Co.: -The case where the writer was doing a story on survivors of the Ohio river disaster. -Example of the plaintiff being portrayed in a false light, which was highly offensive, and the reporter knew the comments were not true. Strict Liability 1. Animals: -Trespassing Animals: -Different Views from around the nation: 1. Strict Liability: owners of animals of a kind likely to roam and do damage are strictly liable for their trespass. -Exceptions: dogs and cats. 2. Fencing Out: if the plaintiff fenced his land property there was strict liability when the animals broke through the fence. 3. Fencing In: defendant is required to fence in animals or otherwise restrain them, and he will be strictly liable if he does not do so. 9 4. Common Law Rule: there was an exception to strict liability for animals which strayed from a highway on which they were lawfully being driven. -Wild Animals: -Owners of non-domesticated animals are strictly liable if the animal injures someone. -Domesticated Animals: -Common Law: One Bite Rule -Strict liability for an injury caused by a domesticated animal is applicable only if the owner knew, or had reason to know, that the animal had vicious propensities. -Modern Trend: -Same as above, but knowledge is not required through a bit, anything will do. -The basis for strict liability here is because the owner of the animal may be acting with due care, but the animal may still injure someone, and someone needs to bear the loss. -It is a risk versus economic benefit analysis, and we put the burden on the person that takes the risk. 2. Policies: -The concern of strict liability is based around damages that occur without any real negligent act. -In a circumstance we need to determine who should bear the loss (who occasioned the injury) and who is in the best position to bear the loss (usually who has insurance or who can spread the cost of the loss). -These two factors usually point to the person who created the dangerous situation. Unfortunately, we cannot always go to this because in most circumstances there is social utility in the action. -Strict Liability is also important because it lowers the burden of proof on the plaintiff to demonstrate that there was negligence. 3. Abnormally Dangerous Activity: -The Tests: 1. Restatement First: Ultra Hazardous Test 1. There is an ultra-hazardous activity; and -This is a question of the act being ultra-hazardous to others, not the actual actor. 2. The risk cannot be eliminated through due care; and -This is the distinction between strict liability and negligence. 10 3. It is not a matter of common usage. -This is here to prevent the floodgates from opening. -This is also not an industry standard question. -Determine if allowing a cause of action would lead to many causes of action. -These are elements, if one fails, then the test fails. 2. Restatement Second: Abnormally Dangerous: 1. A high degree of risk in the activity; and 2. A high degree of harm; and 3. Can’t eliminate the risk with due care; and 4. Not a matter of common usage; and 5. Not appropriate to the location in which it is being used; and 6. The value to the community is not enough to outweigh the risk. -This is a narrower test than Restatement First, however these are just factors to consider, so if one fails, the entire test does not necessarily fail. -Rylands v. Fletcher: -The case where the people were building the reservoir. -Example of something which is abnormally dangerous. 4. Limits to Strict Liability: 1. Proximate Cause: -If there is a superceding cause for the injury then the defendant will not be held liable. -Factors to determine a superceding cause: 1. Was there any affirmative act by a third party? 2. Was there contemporaneous damage to the inhabitants and property of an area which was likely to be damaged by the act? -Bridges v. Kentucky Stone Co.: -The case where the dynamite storage facility was robbed and the robbers blew up a house weeks later in a difficult area. -Example of a superceding cause. 2. What is Abnormally Dangerous: -If the cause of the injury is not based on what we are describing as the abnormally dangerous activity, then we cannot apply strict liability. -This will be very apparent if there is some negligent act involved, therefore moving the case away from strict liability and into negligence. -Indiana Harbor Belt R.R. v. American Cyanide Co.: -Case where defendant was shipping some dangerous chemical through a city. 11 -The abnormally dangerous activity was the creation of the dangerous chemical, not the shipping of it (the shipping would involve issues of negligence). 3. That Which Makes the Activity Dangerous: -If the reason for why an activity is dangerous is not the cause of the injury, then there will be no strict liability. -This is a question of foreseeable injury. -If the abnormally dangerous activity causes an injury which is completely unforeseeable, then there is no strict liability. -Foster v. Preston Mill Co.: -The case where the blasting caused mink to kill their young. -Example of blasting being dangerous because rocks could hit people, not because it creates vibrations and mink might kill each other. 4. Force Majeur: -If an act of god occasions the injury then there can be no strict liability. -Golden v. Armory: -The case where a flood caused a hydro-electric power plant to break and flood a city. -Example of an act of god. 5. Assumption of Risk: -If a person, with full knowledge of the risk, voluntarily and unnecessarily assumes the risk, he will break the chain of liability. -This is a complete defense to strict liability, there is no contributory negligence with strict liability. -Sandy v. Bushey: -The case where the guy entered a field with a dangerous horse and got kicked. -He knew the horse was dangerous, and thus assumed the risk when he entered the field. Products Liability 1. Theory of Recovery: -Originally the requirement to sue a manufacturer was based on privity of contract. -However, this requirement was extinguished and the means of recovery for the consumer were expanded in subsequent cases: 1. Negligence: -If manufacturer is on notice that a negligently manufactured product may be abnormally dangerous, then it is foreseeable that it may cause harm. 12 -Therefore, we can bring in a Learned Hand Analysis. -MacPherson v. Buick Motor Co.: -Privity of contract is not necessary to sue a manufacturer. -This was mainly a negligence case, but it brought in the idea of being able to sue a manufacturer. 2. Warranties: -Expressed Warranties: Restatement § 402B (not quotation). -One engaged in the business of selling who makes a public misrepresentation of a material fact concerning the character or quality of a chattel sold by him is subject to liability for physical harm to a consumer of the chattel caused by the justifiable reliance upon the misrepresentation. -It needs to be a material fact which is represented, not mere puffery. -Some courts require some sort of reliance on the part of the buyer: -Common law: did this plaintiff rely on the representation? -Modern Trend: would a reasonable person rely on the representation? -Some courts require that the absence of the representation be not readily discoverable. -Baxter v. Ford Motor Co.: -The case where Ford advertised their car’s window as “shatterproof.” -There was a representation, there was probable reliance on it, there was an injury, and it wasn’t readily discoverable. -Implied Warranties: -Implied Warranty of Merchantability: -When a manufacturer puts a product out into the stream of commerce and promotes its purchase by the public, an implied warranty that it is reasonably suitable for use as such accompanies it into the hands of the ultimate purchaser. -The protection runs with the good, so that it reaches all who are likely to be hurt by the use of the unfit commodity through uses ordinarily to be expected. -A consumer is implied to mean anyone who is expected to use the product. -Implied Warrant of Fitness for a Particular Purpose: -If a buyer, expressly or implicitly, makes known to the seller the particular purpose for which the article is required and it appears that he 13 has relied on the seller’s skill or judgment, an implied warranty for that use will arise. -The courts may limit recovery in situations where the loss is only monetary. -Courts will not limit recovery when doing so would be unconscionable. -Basically, anytime there is serious bodily harm the courts will not limit recovery. -Henningsen v. Bloomfield Motors, Inc.: -The case where the woman was badly injured when something “went wrong” with the steering on her car. -Example of an Implied Warranty of Merchantability. 2. Strict Liability: -The courts began to apply a strict liability standard to manufacturing cases for a few reasons: 1. The manufacturers are able to spread the costs of the injury across all their products. 2. The manufacturer is in the business of making profit off the good, therefore, since they have occasioned the injury they should be held liable for it. 3. We want to keep the burden of proof lower for the plaintiff. -The Rule: Restatement Second § 402(a) 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 products; and b. It is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. -This rule will apply regardless of whether the manufacturer has exercised due care or whether the consumer is in privity of contract with the manufacturer. -Greenman v. Yuba Power Products, Inc.: -The guy who was using the wood lathe when a piece broke off and injured him. -The court lays the groundwork for the creation of the Restatement rule. 1. Manufacturing Defect: -A defectively manufactured product does not conform in some significant aspect to the intended design. -Whenever there is a defect in manufacturing the manufacturer will be held strictly liable. -This is regardless of whether the manufacturer has exercised due care, or perfect care, with respects to quality control. 14 -Basically, between the innocent consumer, and the innocent manufacturer, we put the blame on the manufacturer because they benefited from the loss. -Burden on Plaintiff: to show that the product deviated from the design. -Affirmative Defense: to show that the product was altered after the sale. -Rix v. General Motors Corp.: -The case where the man was hit by a two ton truck when the truck’s brakes failed. -Example of a manufacturer being held strictly liable. 2. Design Defect: -The determination for whether there is a design defect is based on different tests: -If the determination is that the design is defective, then the manufacturer will be held strictly liable. 1. Risk-Utility Analysis Test: Majority Rule -This is a test where we look at the risks the manufacturer was taking in creating a product, what alternatives they had in manufacturing it, and whether they acted with reasonable care in designing the product. -Factors to consider: 1. The utility of the product to society as a whole. 2. The likelihood that the product will cause injury. 3. The seriousness of any possible injury. 4. The ability of the manufacturer to eliminate the unsafe qualities of the product. -The Most Important Factor within this is whether there were Reasonable Alternative Designs in existence which the manufacturer could have used. -We can’t eliminate all risk or the product will be too expensive to be useful. -Within this the manufacturer may introduce evidence of “state-of-the-art” to determine if they exercised all possibilities to avoid the danger. -The manufacturer may also introduce evidence of the Industry custom to prove that the design was not defective. 5. The user’s ability to avoid injury with the exercise of due care. 15 6. The feasibility of the manufacturer of spreading the loss through price increases or insurance. -This is just another policy goal. -Look at all these factors and weight them to determine if the product is safe, or safe enough, to be placed in the stream of commerce. -Minority within Risk-Utility Analysis: -There are some products which are so inherently dangerous, with so little utility, that if they cause injury, the manufacturer will be held strictly liable. -This is true regardless of whether there were any good alternatives. -Inherently Dangerous Products: There are some products whose inherent characteristics make them dangerous and were therefore not to be considered unreasonably dangerous. -Ex: alcohol, tobacco, butter. 2. Consumer Expectation Test: Minority View -What are the consumer’s expectations for the product? -Prentis v. Yale Mfg. Co.: -The case with the standing forklift with no seat which injured a man. -Laid out the different tests for design defect. -O’Brien v. Muskin Corp.: -The case with the above ground pool and the kid diving in. -The court allowed introduction of “state-of-the-art” as factors to show that the design was not defective. 3. Warning Defect: -When a product is defective due to inadequate instructions or warnings when foreseeable risks could have been reduced or avoided by reasonable instructions. -This is again a negligence analysis: did the manufacturer act with due care in not putting a warning? -There are usually two problems with warnings: 1. Substantive Problems: the warning did not provide enough information as to the hazard. 2. Procedural Problems: the warning was not big enough to notice or grab attention. 16 -These two combined provide for a Catch-22 because the more information you provide the smaller you have the make the warning. -The Test: -The plaintiff must prove that the manufacturer did not adequately warn of a particular risk that was known, or knowable, in light of the generally recognized and prevailing scientific or medical knowledge available at the time of manufacturing and distribution. -Knowledge of the risk is necessary to properly warn. -The test to be used is a Risk/Utility analysis (same as above). -Warnings will absolve a manufacturer because courts assume that people will heed warnings. -However, we can’t just give general warnings, or so many that they become ineffective. -Courts will not require manufacturers to warn of obvious risks. -The obviousness of a risk is based on whether the manufacturer has extra information concerning the product. If it doesn’t, then no warning is necessary. -Post-Sale Duty to Warn: -Many courts will impose a duty on a manufacturer to provide post-sale warnings about risks discovered after the sale. -Post-Sale Duty to Recall: -Few courts require a manufacturer to recall. This is generally a product of federal administrations rather than of the tort system. -Anderson v. Owens-Corning Fiberglass Corp.: -An asbestos case. -The court found that knowledge of the risk was a requirement in a defect in warning case. 3. Proof: -The plaintiff has the burden of proving three things: 1. That the defendant manufactured the product; and 2. That the product was defective and the injury was caused by the defect; and 3. That the defect existed at the time the product was sold. -Evidence: -Usually all of this must be proven through circumstantial evidence. -The Rule: -A defect may be proven through circumstantial evidence, where a preponderance of that evidence establishes that the accident was caused by a 17 defect and not other possibilities, although not all other possibilities need be eliminated. -Methods for providing evidence: 1. Expert testimony that the product was defective. 2. Actual evidence of the defect on the product. 3. The existing condition of the product after the accident. 4. Third Party testimony of what happened. 5. Look at other products to see if there is any evidence of defect. -Another factor to consider may be the age of the product, which is a very important factor (for the plaintiff if it is fairly new, for the defendant if it is old). -Friedman v. General Motors Corp.: -The court indicates that circumstantial evidence will be used. 4. Defenses: 1. Comparative Negligence: -Originally was not allowed because: 1. Strict Negligence reduces the burden of proof for the plaintiff; and 2. It protects those who are powerless to prevent harm. -However, some courts have gone against this and have allowed comparative negligence because: 1. It does not go against either of the policy concerns; and 2. It has the added benefit of allowing someone who has “assumed” the risk to bring a claim, something which originally constituted a bar to a claim. -Majority View: allow comparative negligence principles -Minority View: do not allow it, or only allow assumption of risk (which would bar the claim. -Assumption of Risk: if the plaintiff has confronted a known hazard: -Majority View: the claim will still be barred. -Minority View: based on the reasoning above, will only apply comparative negligence and the claim will not be barred. -Interesting Exception: -Watch out for situations where there is an obvious danger and the person injures themselves. This is not an assumption of risk situation, there is simply no defect in the product. -Ex: a snow-blower. -Daly v. General Motors Corp.: -It allowed comparative negligence for strict liability cases. 18 2. Misuse: -A product is not in a defective condition when it is safe for normal handling or consumption. If the injury results from abnormal handling, the seller will not be liable as long as the misuse was not foreseeable. -This is an issue of foreseeable. Basically, if the action is foreseeable, regardless of whether it is misuse or not, then there will be no defense. If the action is unforeseeable, it is probably also a misuse, and therefore is a defense. -As long as the general type of injury is foreseeable, the actual manner of the injury need not be foreseeable. -Ford Motor Corp. v. Matthews: -The case where the guy was standing outside the tractor when he was cranking it to start it. -The court ruled that misuse which is foreseeable will not bar a claim for strict liability. 3. Preemption: -To determine whether a federal statute preempts state or common strict liability for product liability law, we will look to the intent of Congress. -We will usually find that it does not preempt state or common law. -Medtronic, Inc. v. Lohr: -The case where the guy’s pace-maker didn’t work properly. -Example of the court saying that Congress was not trying to preempt state/common law, they were simply trying to preempt confusion. 5. Third Party Suits for Products Liability: -The general rule for liability of downstream defendants (subsequent to the manufacturing of the product) is: -Those who have assumed the risk and reaped the profit of placing the product into the stream of commerce will be held strictly liable for damage it causes. -The reasoning behind this is those who have assumed some risk or have gained profit may be able to exert pressure on the manufacturer to create a safer product. -Therefore, a wholesaler/retailer who neither assumes the risk or reaps any benefit will not be held liable. -Many courts decline to impose strict liability on sellers of used goods. -An occasional seller who does not hold himself out as having any knowledge or skill in the commercial sense will not be subjected to strict liability. 19 -Peterson v. Lou Bachrodt Chevrolet Co.: -The case where the used car dealer sold a car that had defective brakes. -Example of one view which does not hold sellers of used goods liable. 6. Services: -Remember, this is product liability, not service liability. -Services are usually about human conduct, which is a basis of negligence, not strict liability. -A transaction which is predominantly a service, with incidental product sale involved, will not incorporate strict liability. -An animal is a product. -A chart and map is a product. -A book is usually not a product. -Usually just ideas, and an idea is not a product. -Hector v. Cedars-Sinai Medical Ctr.: -The case where the doctors installed a pace-maker which did not work properly. -Example of the hospital providing a service, and therefore not being strict liable for the pace-maker’s defects. 6. Damages: -Economic Damage: - The product didn’t work and you want a remedy that will make the product work or will provide a replacement product. -Some courts: if there is no injury involved, the court will limit the recovery to your economic loss. -Punitive Damages: -Will be awarded if there is reprehensible conduct by the defendant and you are able to show that the defendant has a certain amount of wealth that needs to be taken away in order to force them to change their way. 20