Kelly Gales 2nd Semester Torts

TORTS OUTLINE I. STRICT LIABILITY (SL) A. Traditional Strict Liability Elements: (*always plead both Neg. & Trad SL) 1. Activity giving rise to SL (some animals, non-natural use of land; and abnormally dangerous activities) 2. Cause in fact (but for causation or substantial factor) 3. Proximate cause of the type of harm that makes the thing or activity dangerous; 4. Damages B. Activities Giving Rise to Strict Liability: 1. Animals of some types (wild animals; determined by species) Two Categories: 1) Wild Animals 2) Domesticated Animals with known dangerous propensities 3) Trespassing Animals a. HYPO: Sea World captures a killer whale to train. Whale bites diver’s hand. Diver sues for loss of arm.  Why SL? Wild animals are volitional beings that cannot be easily controlled.  Minority  Exception to wild animals shown to public; Don’t apply SL to wild animals displayed to public. b. Trespassing Animals 1. SL for (domesticated) barnyard animals if they trample on neighbors’ property. 2. If Barnyard animal, SL applies 3. Ex. cow, sheep, pigs, horse, etc. 4. DOES NOT APPLY to cats & dogs. ??? c. Dangerous Animals 1. CL & Majority Rule  SL is imposed for Wild Animals Even if the wild animal is considered domesticated (ex. Shamu) 2. Minority Rule: If have a wild animal in captivity, the owner must use extreme caution std instead of SL std 3. The owner of a domestic animal such as a cat, dog, sheep or horse was subject to SL only if the owner knew or had reason to know that the animal had dangerous propensities. If do NOT know that the domestic animal has a dangerous propensity, then held to a Negligence std instead. 4. Classifications Problem  “Wild v. Domestic Animal” i. Customs of the community influence the determination (elephant in India v. England). 1 ii. If the owner knows or has reason to know that a domestic animal has dangerous propensities, this is sufficient to classify that animal with wild ones and SL is imposed. Otherwise P must prove negligence in order to recover. iii. Some animals could be classified as either; different jx handle it differently; ex. bees, rats, pet tarantulas, etc. iv. ASK: 1) Is it an Animal? 2) Is it a Wild or Domesticated Animal? 3) Does the Animal have a known dangerous propensity? 5. Liability for dog bites i. No “one bite” rule generally. One Bit Rule: BAD! An animal can have dangerous propensities even though it has never bitten anyone. E.g., train dog to attack humans. It does not distinguish b/w vicious vs. known dangerous propensity. An animal could be vicious, but it is not known yet ii. Some jx (ex. CA) have done away with the known dangerous propensity for DOGS only (treat dogs as wild animals instead) 2. Abnormally Dangerous Activities A. A person is liable for the results of bringing on his land something which (though harmless while it remains there) will naturally do mischief if it escapes out of his land. B. 6 Factors to Consider: Whether An Activity is Abnormally Dangerous 1. Inability to eliminate risk by using due care  Inability to eliminate the risk of the accident by the exercise of RX care.  “Super” due care as an alternative standard  Could not be prevented by the exercise of due care  Criticism  You are either RX or you are not. 2. Degree of risk in the activity  Likelihood that the harm that results from the activity will be great.  What is the Probability of harm?  If probability is great, more likely to be held SL 3. Gravity of the potential harm  Existence of a high degree of risk of some harm to the person, land, or chattels of others.  Greater the gravity, more likely SL 4. How common is the activity  Extent to which the activity is not a matter of common usage. (E.g., Of common usage includes automobile, transmission of electricity & natural gas).  Reflective of a collective judgment of its importance or utility.  Common activities are not ordinarily perceived as abnormally dangerous. (more common, less likely SL)  Ex. Driving: a common activity, even if it is very dangerous  Can NOT file SL Claim for Auto Accident, only a Neg. Claim 2 Often means that it is technologically impossible to render less dangerous. 5. Appropriateness  Inappropriateness of the activity with regard to the location in which it takes place.  If takes place in an inappropriate place, more likely SL  A hot air balloonist in a crowded city is not OK, but in New Mexico it may be an OK location.  Building one’s house between the runways of an airport. 6. Utility of the activity in relation to its risk(s)  Extent to which its value to the community is outweighed by its dangerous attributes.  If low social utility, may impose SL C. CAN PLEAD BOTH NEGLIGENCE & SL. D. Causing: Causation In Fact: Look at the harm resulting from that which makes the activity abnormally dangerous SL does NOT require Fault (unlike Negligence) *Proximate Cause: of the type of harm making the animal or activity Dangerous  Type of harm must be one of which is a known dangerous (ex vicious) propensity.  Ex. a large dog who jumps on someone with friendly intent or innocently knocks someone over vs. a dog who bites someone E. Damages F. Limitations on SL 1. Abnormally sensitive activity by P A. D will not be liable for his abnormally dangerous activities if the harm would not have occurred except for the fact that P conducts an “abnormally sensitive” activity. B. Harm must be of the type that makes the thing or activity dangerous 1. Blasting that causes mink to kill young  D not liable.  If D knew that blasting would cause mink to kill young, and D intentionally made a big blast, then may bring a negligence COA or trespass to chattel or nuisance. 2. Vicious dogs  Dog chases man. Man breaks his arm while trying to climb on his car. Arguable that this harm is foreseeable, sufficiently related to viciousness of a pit bull. Or, court could go the other way.  Pit bull is trotting down the street. Dog accidentally bumps into someone & injures them. Is the owner of the dog liable? NO, because this is not the kind of activity for which a pit bull is known to be dangerous. But what if the dog had a habit of  3 knocking people over? Yes, then the harm is what the dog is known for.  A big dog wants to lick everyone in the face. The dog jumps on someone and breaks the person’s hip. Is there SL? YES, a big dog jumping on someone’s chest is dangerous. The owner is on notice. C. Harm is foreseeable, but the manner in which harm occurs is not 1. Act of God  The intervention of an “Act of God” is often enough to relieve D of SL.  Example: D owned a hydroelectric plant. The water escaped onto & flooded P’s land in a hurricane. P pleads negligence & SL. The court denied SL because the flood was plainly beyond the capacity of anyone to anticipate.  Is the harm what you would fx expect that makes the activity dangerous? 2. Intervening natural acts and other intervening acts which are not reasonably foreseeable are a superceding cause and relieve D of liability including SL. G. Affirmative Defenses: 1. P’s Contributory Negligence: NO DEFENSE in SL cases A. Ordinary contributory negligence by P will usually not bar P from SL recovery.  Having both contributory negligence & SL does not make sense.  Contributory negligence says that both parties are negligent. B. Exception. 1. Assumption of risk  Court focuses on whether the incident is “highly foreseeable,” before assumption of risk. Two Elements: 1. P subjectively knew the risk & 2. P voluntarily encountered the risk &  Did P unreasonably subjected himself to the risk.  Traditionally a complete defense to SL  D claims that P assumed the risk  Rule: it must be a truly substantial risk; not just a background risk (i.e. sometimes airplanes or cars crash)  P can claim he is really stupid and did not realize and that is OK b/c P must subjectively assume the risk  Hypo: Can a person claim that you assume the risk of the possibility of danger when you are around a dog or a horse b/c they do sometimes bite  NO, b/c one must know the PROBABLE consequences of his act to have brought the injury upon himself 2. Comparative Negligence: applies to SL claims in most jx that apply it 4 II. PRODUCTS LIABILITY (PL) 3 Types of Causes of Action: 1) Negligence 2) Warranty 3) SL in Tort 3 Types of Defects: 1) Manufacturing: Oops case. Product that comes out differently than mfr planned (ex. planned to tighten nut on tire, but forgot) Only one of their products is defective. 2) Design: Product came out exactly the way mfr wanted, but mfr made a defective choice in the way they developed the product (“Conscious Design” made on how to design product) Ex. knew that they could put a rollover bar on car, but chose not to Entire product line is defective. 3) Warning: (a) Seller did NOT give a warning associated w/ product; OR (b) Seller gave a warning, but it was inadequate warning. One can plead all 3 causes of action at same time (9 possible) A. Elements of major products liability causes of action 1. Negligence  One who negligently manufactures a product is liable for any personal injuries proximately caused by his negligence. Focus on the reasonableness of the manufacturer’s actions. A. Duty: 1. Whether the product was “reasonably certain to place life and limb in peril when negligently made.” 2. Owed to any “foreseeable” P. May be brought even without privity. P can always sue the mfr even if no privity of K 3. Direct Privity: MC or RC (i.e. C bought product from M or R) 4. Vertical Privity: MRC (C has K with R; in chain) 5. Horizontal Privity: C  Friend (F does not have a K w/anyone; not in chain at all; 3rd parties) if hurt by product in a rx fx manner, can recover B. *Breach: must be a defect in the product 1. Manufacturing defects  Simple negligence test (reasonableness test)  Malfunction Theory: Basically Res ipsa loquitur (but courts do not call it that) against the manufacturer. If the error is usually something that does not occur w/o neg. ?? (defect). That in and of itself is circumstantial (indirect) evidence sufficient to prove a defect existed. Problem is proving exclusive custody or control. Used particularly in mfr. defect cases. 5 Dealer who buys from reputable supplier/manufacturer w/no reason to anticipate that the product is dangerous need make only a cursory inspection of the goods to avoid liability for manufacturing defects. 2. Design defects  Risk Utility  AKA Learned hand test. Balancing the burden of prevention w/the foreseeability of harm.  P must show that those designing the product knew or should have known of enough facts to put a “reasonable” manufacturer on notice about the dangers of marketing the product as designed.  Reasonableness of Seller’s actions (focus on Seller) 3. Warning defects  Risk utility C. Causation (CIF & proximate cause) D. Damages E. Affirmative Defenses: 1. Comparative Negligence 2. Contributory Negligence 3. Assumption of Risk 2. Warranty: 3 Types (Express, IWM, & IWFPP) A. Express warranty: 1. Express warranty i. Need not be formal document (e.g., advertisement) ii. May be oral or written communication (e.g., from retailer) iii. May be a picture or sample (e.g., picture of a man wearing a helmet while riding a motorcycle). iv. Can be any communication v. Distinguish between express warranty and mere “puffing”. If personal injury “puffing” is rarely considered a defense vi. If make a promise keep it & if make misrepresentation liable 2. Part of basis of bargain 3. Breach 4. Damages 5. Notice 6. Horizontal privity – Neighbors, bystanders, family, etc,. No direct OR vertical K privity required B. Implied Warranty of Merchantability  Only warranty COA that requires a defect. **ELEMENTS** 1. Seller as a “Merchant” i. Business person engaged in 1) regular sales of 2) that type of product ii. Regular pattern; not one time transaction; at least occasional iii. Includes every seller in the chain of distribution.  6 2. *Product unmerchantable at time of sale  NOT fit for its ordinary purposes.  Merchantable: fit for ordinary purpose for which good sold  Fit for ordinary Purpose: test used depends on type of defect being alleged: (1) it fulfills consumers rx expectation; OR (2) Risk/Utility  Even if you were as careful as you could be, still may be liable  Must be a defect in the product: i. Manufacturing defects: 1. Consumer expectations (Rest. 3d: differing from manufacturer’s intended design.  Look at expectations of a reasonable consumer (not specific consumer)  Factors: Other manufacturer’s products, price, compliance with gov’t regulations. (Hypo in Notes 1/18) ii. Design defects: 1. *Risk/Utility (trend, not nec the majority though) Focus on: Reasonableness of Product 2. Consumer expectations iii. Warning defects: 1. *Risk/Utility 2. Consumer expectations 3. Causation (CIF and PC) 4. Damages 5. Notice i. Requires that all parties claiming a breach of warranty must “within a reasonable time after he discovers or should have discovered the breach of warranty notify the seller or be barred from any remedy,” regardless of SOL. ii. Courts have largely ignored notice requirements b/c it makes it too difficult for Ps to recover; Sometimes say, “timely notice” = SOL. (Notice Not always required) iii. Waiver: limitation of remedies; limit Seller’s ability to use them RULE: Seller may have a property waiver, but it will be unconscionable if Seller tries to limit personal injuries in waiver iv. SOL: begins running when Seller sold product (Date of Sale) whereas, in Neg & SL in Tort: starts running at date of injury (so given more time than Warranty) Note: in CA get 1 yr from date of injury for all 3 6. Horizontal privity (extending warranties to certain 3rd parties) Three jurisdictional approaches: i. Alternative A  (Majority) Extends to any natural person who is in the family or household of the buyer or who is a guest in his home. (most restrictive approach) 7 ii. Alternative B  Any foreseeable P, but only for personal injury. iii. Alternative C  Any foreseeable P, for personal injury & property damage. C. Implied Warranty of Fitness for a Particular Purpose 1. Knowledge of Particular Purpose by Seller i. Seller must subjectively know of some particular use (planned) to be used by consumer for a particular (unusual) purpose. ii. Seller does not have to be a Merchant for this COA. 2. Reliance by Buyer on Seller’s Skill & Judgment i. Buyer subjectively relies on the seller’s skill and judgment in purchasing & using a product for a particular purpose. 3. Product Not Fit for Particular Purpose: Particular = unusual use. i. It can be a one time transaction! ii. Could sell something fit for ordinary purpose (i.e. walking), BUT not fit for particular purpose (i.e. hiking in the Alps) iii. Usually D’s are Retailers; not Manufacturers 4. Causation (CIF and PC) 5. Damages 6. Notice 7. Horizontal privity HYPO: Shoe salesperson knows buyer plans to go mountain climbing. If boots are made for flat ground, but the seller says that they are good for mountain climbing, then COA is available, b/c P relies on D’s assessment that they are for the particular purpose of mountain climbing. D. Waivers of warranties are typically invalid if: 1. The product is a consumer good 2. The disclaimer goes toward waiving personal injury instead of property injury. b/c strong presumption of unconscionability; 3. Strict Liability (SL) in tort (402A) Focus on the dangerousness of the product.  Subsequent remedial measures: (D redesigning or repairing product after the accident occurred) are admissible as evidence in SL actions b/c not asking about the reasonableness of manufacturer.  Applies to all types of products  3 approches: 1. General Rule: in most jx P cannot enter evidence of subsequent remedial measures (product improvements) taken by D to prove product is defective. 2. Some Jx: If SL in tort will allow it as evid., but not for Neg. 3. CA Approach: will let evid in, in the 3 types of PL cases, but not in other cases. 8 A. “Seller” regularly engaged in business of selling that type of product 1. Engaged in the regular sales of that kind of goods. 2. SL is imposed only on one who supplies a product, not to one who is primarily performing a service. B. *Product in Defective Condition Unreasonably Dangerous  Must be a Defect in the product even if careful in making it  A product that is dangerous by its nature does NOT count (Beer) 1. Manufacturing defects  P must prove that the product deviated from the seller’s design or from the seller’s other products of the same design (not what specific conduct of the manufacturer led to the defect). i. Consumer Expectations Test (Rest. 3d: differing from intended design) ii. Possible defense: Defect was not present when it left the assembly line, but was introduced by someone else who later altered the product. 2. Design defects: conscious design-entire product line challenged Four (4) Jurisdictional Approaches: i. *Risk/Utility – Focus on: the reasonableness of the product (not the reasonableness of the manufacturer).  Balancing Test: risk/benefit or cost/benefit  If bad outweigh good, defective  Utility of product to the user and the public as a whole  Likelihood that the product will cause injury, and probable seriousness of the injury.  *Reasonable Alternative Design: most jxs require you give them a better way to design product  If rx alt. design, defective (ex. Is it a rx decision to make the car w/o a roll bar?: if no, defective)  Availability of a substitute product meeting the same needs.  Manufacturer’s ability to eliminate the unsafe character of the product w/o impairing its usefulness or making it too expensive to maintain its utility.  User’s ability to avoid danger by the exercise of care in use of the product.  User’s anticipated awareness of the dangers inherent in the product.  Feasibility of spreading the loss by adjusting the price of the product or carrying liability insurance. ii. Wade-Keeton Risk/Utility – Impute knowledge of the risk such that if it was known at the time of trial, then it was also known at time they sold the product, even if didn’t really know then.  Pretend S knew of all the risks when made product 9       For most cases, W-K won’t make a difference in the outcome of the case. Only time W-K approach makes a huge difference for Ps is with Prescription DRUGS, where P didn’t know of the adverse effects at the time of manufacture. Does not apply to durable goods (non-drugs or nonperishable goods). If W-K will make a difference it outcome of case, will not use it usually But if W-K will NOT make a difference, use it. 7 Factors (On Exam, list them, but do not apply them, rather just weigh the good and bad things about the product): iii. Consumer expectations – Criticized as too harsh in either direction.  Product Defective: if it is more dangerous than a rx person would expect wrt design → defective.  If a hidden danger (latent defect) more likely to violate CE  Were there any warnings on the product? iv. Alternative liability (Barker Test) – P prevails if either (1) the risks outweigh the utility (risk utility); OR (2) the design fails to meet consumer expectations.  In Calif., once P proves that the defect caused his injury, the burden of proof shifts to D on the risk vs. the utility.  P does not have to choose and can win on either theory. 3. Warning defects – Rebuttable presumption that if a warning is given, it will heeded. If a warning is missing → presumption P would have read warning, if one had been given. Rebuttable D can prove otherwise. - Relatively cheap to give a warning. - “But For” your failure to warn, I would not have injured myself. - If danger is really obvious in warning defect claim, then no CIF. i. *Risk/Utility – Different balancing test; Look at the reasonableness of the design. 1. Risk of giving warning (publicity, design, deflate sales, low cost) vs. utility of giving warning (warnings pollution). 2. If not a good warning more likely product defective. ii. Wade-Keeton risk/utility – RARE b/c how can you warn about something you do not know about. iii. Consumer expectations – RARE. Was the product warned about in a way that a reasonable consumer would expect given the level of danger of the product? Split in jxs: (1) maj: not used at all; (2) min: sometimes used 10 iv. Types of warning defects: 1. Procedural defect – Not effectively communicated to the consumer. Too few or too many warnings. Factors to look for: size, thickness, and color of letters. 2. Substantive defect – Not detailed enough. Didn’t include info in warning that was needed → substance to warning is missing. Ex. not clear from wording it’s dangerous. v. DEFENSES 1. Obviousness – Because there is no casual connection between failure to warn & injury. 2. Learned Intermediary Rule (Applies to prescription products - ex. drugs) – Manufacturer is not liable if intermediary (e.g., doctor) was adequately warned. It is for the intermediary to warn the consumers. C. No substantial change in condition of product since sold 1. “Substantial Change” – Material in terms of leading to injury. D. Causation: PC & CIF 1. “But For” …, I would not have injured myself. (PC or CIF??) E. Damages 1. Personal injury or property damage to ultimate user or consumer. 2. Allows recovery for damages to any foreseeable P, privity not required. 3. Note: easier to recover than in Negligence, but harder than absolute liability 4. Punitive Damages: can have punitive damages for any tort action. To prevent future misconduct & punish past misconduct. a. Guidelines for Constitutionality of punishment: i. Degree of Reprehensibility: only economic harm (not physical) ii. Ratio b/w compensatory and punitive damages: iii. Difference b/w award and civil and criminal penalties for comparable conduct. b. Due Process of Law: cannot give a grossly excessive award. c. Wealth of D is considered as a factor in awarding damages. B. Defenses to Products Liability Causes of Action 1. Substantive defenses (“No” didn’t meet prima facie elements) A. Warranty disclaimers B. “State of the art” (4th factor in Risk/Utility test listed in Wade) – The existing level of technological expertise and scientific knowledge relevant to a particular industry at the time a product is designed. There is no practical way to make the product better. 1. Two factors to defining state of the art:  Scientific feasibility 11 Economic feasibility (rough sense of how expensive is too expensive) 3. Majority: use “state of the art” as an absolute defense (i.e., product not defective).  Rationale: Can’t be defective b/c there is no reasonable alternative to balance against the decision the manufacturer made. It is the best design out there. 3. Minority: product still can be defective, even if state of the art, if the overall risk to society outweighs its utility. 4. If a product is not state of the art, it does not nec. mean that a product is defective → still do R/U analysis. There may be a consumer preference for items that are state of the art. 5. Custom – A manufacturer can be consistent with custom, but not state of the art. Look @ industry to see what other companies will or will not do. Custom ≠ state of the art. 6. Burden of Proof: D shows that the product is state of the art and this goes to the issue of defectiveness C. Inherent Characteristics Defense: Restatement 2d 402(A) – If a product is by its nature dangerous, it cannot be defective (e.g., tobacco, alcohol, butter). Comment i: unreasonably dangerous. D. Comment k – No SL for “unavoidably unsafe products” if an adequate warning is given. (Does not define what is an unavoidably unsafe product) i. Courts have limited its application to prescription products (drugs, vaccines, medical devices, pacemakers) – that is, you cannot get product w/o a prescription. ii. How to apply comment k: (Split) 1. Case-by-case approach – Courts decide as a legal question (weigh risk & utilities) whether comment k gives protection. 2. Minority (CA) – Gives protection to medical products across the board b/c too difficult for courts to determine. 3. Restatement 3d (Brand new approach) – Reasonable physician standard.  Look at what a reasonable physician would do if he/she knew evyeerything that manufacturer knows; If doctor would prescribe the drug to some class of people, then there is immunity from liability.  Only liable if no reasonable health care provider would prescribe it to any class of patients. 4. Applies to design, mfr, and warning defects. Warning defects → most common; insufficient labeling – treated same as products except “learned intermediary” rule will have greater effect with drugs.  12 5. Some jx allow a design claim under Negligence only (comment k); Other jxs say one cannot bring a design claim at all. iii. Rationales for giving special protection to prescription products: 1. High social utility (risk spreading will increase the price to cover increased protection) 2. Disproportionately impacts the poor (if raise the price of drugs) 3. No way to make prescription product safer 4. FDA approval process iv. If comment k provides protection from SL, negligence claims are: 1. Majority – Negligence is allowed. 2. Minority – Negligence NOT allowed (Exempt from liability). 2. Affirmative Defenses (“nay, nay, nay”)  D has the burden of proof A. Comparative liability: 1. Majority of jxs apply it and a strong minority does not 2. 3 Types: (1) “Pure” (even if D only 1% at fault P can recover 1%); (2) “less than” (if P<50% at fault can recover)-if tie P loses - 49% approach; (3) “not greater than” approach (no recovery if P>51%) - If tie P wins - 50% approach if 2 people. 3. Fewer jurisdictions apply comparative negligence in IWM than in SL. 4. Negligence: allows comp negligence if it is used in their jx 5. SL in Tort: (1) Majority: applies comp neg; (2) Minority: No 6. IWM: (1) Majority: applies comp neg; (2) Minority: No B. Contributory negligence (in a few jxs): all or nothing defense 1. Negligence: those few jx that do allow it will use it as a defense 2. SL in Tort: NOT EVER APPLIED. P’s failure to exercise reasonable care to discover the defect is NO defense in SL in Tort. 3. IWM: NOT EVER APPLIED. 4. If P discovers the danger and nevertheless proceeds, contributory negligence or assumption of risk may be asserted as a defense. C. Assumption of Risk: 1. Most courts allow it in Negligence, SL & IWM actions; No IWM case has rejected an assumption of risk. 2. Two elements: i. P Subjectively understood and appreciated the risk; and ii. P Voluntarily encounted the risk. 3. P can claim he is stupid → didn’t subjectively understand the risk 4. Traditionally, a complete defense (all or nothing), but 13 5. Trend: treat it as a comparative liability principle. D. Misuse: by P 1. Split in jurisdictions: as to whether this is an affirmative defense (BOP on D to show misuse) OR whether it should be part of P’s prima facie case (BOP on P to show no misuse). 2. Misuse ONLY bars a claim if the misuse was not reasonably foreseeable. Mfr not liable for P’s misuse unless it is a rx fx misuse. Is misuse rx fx? If yes, misuse is not an applicable defense. 3. Misuse by children: i. Courts held bizarre uses by children as foreseeable ii. Why? Children are more creative/imaginative & have fewer life experiences to know that they might be hurt. iii. Just about anything will be seen as fx when kids involved. 4. Intentional misuses: NO recovery for that misuse i. Most misuses are intentional (e.g., stand on a chair, which is not meant to be stood on). ii. The label “intentional” inserts a moral judgment on the misuse (“jerk” label – morally reprehensible conduct) iii. NO liability for abnormal handling, preparation for use, or consumption.  EX: Child takes a beer bottle & throws the bottle against a telephone poll from 8 ft. Glass comes back & hits him in the eye. Child claims that the bottle was defective (glass not thick enough). Recovery barred b/c intentional misuse. E. Pre-emption: i. certain products will be exclusively regulated by federal gov’t and have exclusive control over a product. ii. State law cannot conflict with federal laws → fed law trumps. ii. Two Types: 1. Express: must be a federal statute 2. Implied: key issue: intent of Congress C. Defendants Other Than Principal Manufacturers 1. Status of retailers: A. Sellers regularly engaged in that type of product are SL. 1. Examples: Manufacturers, component part manufacturers., retailers, distributors, wholesalers. (M → W → R → C1) 2. Must have title to the product (NOT brokers) 3. Must be regularly engaged in sales of that type of product (NOT truck drivers moving the product) 4. Rationale: for SL throughout the chain i. Retailer can exert pressure on the manufacturer to enhance the safety of the product. ii. Helps spread the cost (good public policy) 14 iii. Helps P get liability (easier to prove causation as closer to chain; manufacturer goes bankrupt; jurisdiction problems – international; deeper products; or might not know who mfr is) iv. Market product & get into stream of commerce. Retailer is reaping the benefits from sale of product. 5. Used Product Sellers  Courts are split as to whether they will allow SL for sellers of used products. (C1→ Used S → C2) i. Restatement (3d)  OK to sue used product sellers in SL, but no SL if used sellers say that they are selling the product “as is” when P purchases it. ii. Used Product Seller: anyone who owns the product at some point and then sells it; mere possession is not enough. B. Liability in regard to vertical privity: 1. Negligence  Only liable if at fault; - look at each individual D; ex. if design defect only mfr is liable 2. SL  Every seller in the chain is liable (most jurisdictions). 3. IWM  Every seller in the chain is liable (most jurisdictions). 4. Express warranty  Only party making promise is liable. 5. IWFPP  Only liability for parties that satisfy the IWFPP elements. No liability up the chain. D. Real Property 1. Usually not considered a product, but in some instances it may be (e.g., tract housing built on a mass scale; cookie cutter → not unique). 2. Landlords: A. Majority  No SL B. Minority  SL on landlords b/c like product sellers. E. Services 1. NO SL for pure services; Only negligence. 2. Why no SL? A. No ability to spread risk b/c smaller customer base to spread costs. B. Service is directly from whom you are going to sue and not some distant manufacturer. 3. Hybrid (Sales/Service) Transaction: A. Use essence of the transaction test: 1. If essence is sale of product  SL (ex. blue collar job – hairdresser) 2. If essence is service  NO SL (ex. a doctor’s visit) 15 III. DEFAMATION A. Elements - 6: 1. “Defamatory” of P A. Communication that tends to harm the reputation of another as to lower him/her in the estimation of the community, OR to deter 3rd persons from associating with P. (i.e., damages or lowers one’s reputation) B. Significant section of the community  If an important AND respectable section of the community (not just “right thinking” people) would think badly of that person, then it is defamatory.  If there is a significant number of people who will lose respect for you (think badly of you) as a result of the defamatory statement, then that is enough.  Significant means: if it lowers their reputation in a important and respectable portion of the community, then defamatory.  One in ten people is probably enough. Ex. If in a law firm, 9 out of 10 lawyers think it is not defamatory, but one does and the one is your boss who fires you b/c of it then that is important and respectable portion probably.  Important=numerically significant  Criminals often are not considered “respectable” members of the community. Respectable = not criminal  Note: some cts require a disgrace element. Ex. being called a property prof when really a torts professor is not disgraceful. Being called a Republican is not disgraceful either.  If it can be inferred from the statement that P did something bad or the statement is something bad, then that is sufficient. C. Meaning not apparent from face  Only defamatory when certain extrinsic facts are known  Ex: Newspaper states that P has given birth to twins. Statement only defamatory if the recipient is aware that P has only been married for 3 months.  Pleading defamation: (Pg. 840 read – important) 1. Inducement – Make explicit what is implied in statement. Statement (language) is not defamatory on its face, so P has to plead additional facts to prove that the statement was defamatory (“P has only been married for 3 months”). Spelling out inferences from the statement (point out: what people will infer from that statement). Why is it defamatory and how will people react to it. ex. infer you are a Communist 2. Innuendo – P has to show how the extrinsic facts made the statement defamatory (“Because P has been married for only 3 months, the birth announcement created a false impression that P had been unchaste”). Connecting facts. The conclusions 16 people will make from the defamatory statement. You are a Communist (inference) and that is bad (conclusion). D. Who decides whether it is defamatory? If only one possible meaning, the judge decides. If two possible meanings, the jury decides. 2. False statement of fact A. To support an affirmative defense of truth, it is necessary to merely prove that it was “substantially” true. Key: look for “substantial truth”, not absolute truth. If not “substantially true”, then a false statement. 3 vs. 5 is substantially true whereas 5000 vs. 2 is not. B. At CL: Burden is on D to show that the statement is true. C. Society wants to protect speech & support truth. Don’t want to punish true statements that have value. D. Rule: At least where there is a media D and the speech is a matter of public concern, even a private person (P) must prove falsity of D’s statement. The Philadelphia Newspapers case does not say for sure whether D has to be in the media or not. In most jxs, P has the BOP to prove falsity. E. For Public Person: P is required to prove falsity by “clear and convincing evidence” F. Changes in statement by publisher 1. Has to be a material alteration.  EX: If it is written that P whipped 5 people, but actually P only whipped 4 people. What result? [Probably not a material alteration] 2. For quotes or quoted material  Supreme Court says that there has to be a substantial change. D. Opinion: not true or false 1. No constitutional protection for opinion; not actionable. But, if opinion includes an assertion of objective fact, then it is actionable. 2. Example: “Lyle is a fool” is a mere opinion and not an assertion of fact. “Lyle broke into my office today and stole $10.53” is an opinion that includes an assertion of fact that is obj verifiable. 3. Analysis to determine if opinion  Look to language to see if it is “loose, figurative or hyperbolic” and general tenure of the language. i. On March 4th 1999 at 6:26 am, X robbed a bank … in my opinion. [Detailed assertion of fact] ii. X doesn’t have his act together. [Loose/not a factual assertion] 3. Of & Concerning P A. A reasonable hearer would have interpreted the statement to mean P. “Colloquium”: stmt must be “of and concerning P.” 17 1. Explicit use of name or reference can only point to one person even though not explicitly named. 2. So it matters who your audience is. 3. When not using person’s name, but providing (special) personal characteristics of the person, then the more general the description, the less likely stmt is about P and the more specific the description, the more likely stmt is about P. B. Group defamation 1. Factors: (1) size of group; and (2) modifying (qualifying) lang. 2. When a large group is libeled, none of the individuals in the group can sue. Ex. if too broad a category and no qualifying language, such as “are”. 3. If group is small and each member is referred to, any individual member can sue. Ex. if small group and qualifying language, such as “most” is used. Ask would a majority of people lose respect if they knew …? 4. However, when a small group is libeled and not all members are included, some courts hold that no individual members have a COA, while other courts permit such a suit. Ex. if it says “some.” 4. “Publication”: (means a communication) A. Communication of the defamatory words must be to someone other than the person defamed (i.e., a third party). 1. Not necessarily in writing. 2. Publishing a false statement of fact (ex. Charles is a thief) B. 3rd party must understand the defamatory words to be actionable. C. Self-defamation: 1. No publication if P has control over situation; Pub by P; not D 2. Rule: D is not liable for any publication made by P, himself, to a 3rd person (i.e., not liable for communication by P to a 3rd person) . 3. Some jurisdictions allow - e.g., P is an employee at a store & is accused of being a thief. No one heard it. P is fired wrongfully. P tries to get a new job. In interview employer asks why he left his last job. Self-published, but control? P has 3 choices: (1) tell the truth (won’t get hired); (2) lie (& might get caught); (3) refuse to answer. Should employer be liable for a defamation claim? Yes, in most jxs, employee can claim defamation even if employer was very careful not to tell anyone about it 4. Hypo: what if husband comes home and tells his wife “I was called a thief today at work” and then his wife thinks he’s a thief. Not actionable. Wife does not have to be there at the time D spoke it, but cannot be communicated by the P himself to 3 rd party. Here P chose to publish it to a third party D. Multiple publications 1. CL  Each delivery gave rise to a new and separate COA. 18 2. Single Publication Rule  The publication of a book, newpaper, magazine, or periodical gives rise to but one COA. i. Each edition is a new publication; Every time there is an edition, that is a single publication regardless of number of copies sold or when copies sold. ii. Policy reasons – Unnecessary multiplicity of suits & SOL would be meaningless. 5. Basis of liability (actionable level of intent-degree of fault) A. Actual malice 1. Knowingly falsity OR reckless disregard for the truth [hard to prove D acted with knowing falsity] 2. Public Officials  Most elected officials, candidates running for office, police officers, judges, high ranking military positions, political employees, and heads of agencies, even if not elected. NYT Rule: Public officials can not recover damages unless P proves the false statement was made with “actual malice”. 3. Ill will is not malice: e.g., I hate Clinton & find out from a usually reliable source which is confirmed that he is having an affair and thought it was rx true. Have malice towards Clinton and decide to run the story. Story turns out to be false. No malice because ill will is not malice (not knowing falsity since reasonably believed it was true and checked source so not reckless disregard. The fact that he hates Clinton is irrelevant). Even if negligent, not enough to prove actual malice. 4. Public figures included in this actual malice standard i. Public figures intentionally grab spotlight. Reap benefits of being a public figure. In a position to clear name and defend self. People want to talk about public figures (want encourage people to express themselves). 5. “Reckless disregard” as malice i. Recklessness is not measured by the reasonable person standard, as mere negligence is never sufficient to show “actual malice”. ii. The Test is whether D in fact entertained “serious doubt” as to the truth of his publication.  Publishing with such doubts would be reckless disregard for truth or falsity and would demonstrate actual malice. iii. SUBJECTIVE STANDARD  As a matter of constitutional law, have reckless disregard if speaker has serious doubts as to the truth of the statement. Can use moron defense. Maybe I should have checked it out, but I didn’t seriously think it was false iv. Show evidence not verified; BOP on P; put D on the stand; show evidence about source that should give one serious 19 doubts; show circumstantial evidence. Did he verify his source to see if the statement was true? v. Reckless is between negligence & knowing falsity on a continuum scale. B. Altered “Quotes” 1. The deliberate alteration of words uttered by P only equates w/knowledge of falsity when the alteration results in a material change in the meaning conveyed by the statement. 2. An altered quotation is not protected even if it is a “rational interpretation” of an actual statement. (Do not have a claim) 3. OK to change grammatical & syntactical errors. 4. OK to reconstruct the speaker’s statement. 5. OK to make minor changes to a quote that do not change the meaning (focus: meaning of words). 6. Look at tone and context; words in one context can mean one thing and another in a different context 7. Repetition of Defamation: republication of a defamatory statement is actionable whether you report the allegation yourself or someone else reports the allegation of another. 8. Reporter’s privilege: [Reports of public events; repetition of a charge] i. Constitutional requirement of fault in failing to make report fair & accurate; Accurately portraying the charge made. ii. Only have to get someone else’s accusation right (verbatim or fair and accurate summary), and can repeat that allegation and exempt from liability of defamatory stmt. iii. “I heard that Cupp is a thief” can be defamatory even though it is attributed to someone else. EXCEPTION: Common interest privilege. C. Private Plaintiffs: 1. Different rule for private individuals as opposed to public figures i. A private individual does not have the access to the media that is available to public officials & public figures to contradict the libel & minimize its impact. ii. Public officials & public figures by their involvement in public affairs, accept the risk of close public scrutiny. Private individuals who are defamed are thus more deserving of recovery. iii. Can use a negligence standard for a private person iv. States have the discretion to create a higher standard of proof for private Ps if they want to. Court only sets up minimal levels of proof to satisfy the Constitution. States may make it even stricter; Higher standard of protection. 20 D. Public Figures: 1. 2 categories of public figures: i. General purpose public figures – Fame is so pervasive that we care as a public about all aspects of their life/opinions. E.g., Madonna, Jordan – put themselves in the spotlight.  Actual malice required  Strict liability not available 1. SL is not allowed 2. States have deference to set whatever standard they want as long as they do not impose liability w/o fault.  Actual Malice required to get presumed and punitive damages. ii. Limited purpose public figures – Entered public area on particular issue for purposes of a particular incident only. What is the speech about?: If speech tied in w/ ltd public figure status → ltd public figure If speech not tied w/ status → not ltd public figure Where speech is of public concern?  Actual malice: required to get presumed & punitive damages  SL not available (see above)  Held to higher std of constitutional protection b/c care  Treated same as public officials and gen. pub. figures Where there is no public concern (private speech)?  Actual malice: not required to get presumed and punitive damages; Rather it is left up to the states to decide whether negligence or actual malice applies.  SL has not been decided by the Supreme Court 2. The constitutional protections granted by the 1st Amendment apply when there are matters of public concern. 3. Must show actual malice with proof made by “clear and convincing evidence”. [Between preponderance of the evidence & reasonable doubt; more than “more likely than not”] E. Media defendants: 1. No special privileges constitutionally for media defendants. 2. Media defendants usually talk about public officials, public figures or matters of public concern (more protective categories). 3. If the matter is one of public concern against a private P, P has the burden of proof on falsity element. F. How to attack these problems? 1. Ask who is P? [Private or public individual; public less protection] 2. Ask what kind of speech? [Subject addresses public concern or private concern; public concern more protection]. 21 Public Officials or General Public Figure Actual Malice Required? YES (NY Times) Limited Public Figure where Public Concern Yes SL available? No No Presumed Damages OK w/o Actual Malice? Punitive Damages OK w/o Actual Malice No No Limited Public Figure where NO Public Concern No, up to states whether negligence , actual malice, or SL(?) ?? (Not decided by the Supreme Court) Yes Private Persons Where Public Concern No, up to states whether negligence , actual malice, or SL(?) No Private Persons where No Public Concern No, up to states whether negligence , actual malice, or SL(?) ?? No Yes No No Yes No Yes 6. Damages & Remedies: A. Presumed damages: in some jxs 1. Without proof of harm 2. Presumed that: when defamed, you have been damaged. 3. No evidence of harm to reputation need be presented. 4. Concerns: Heightened damages by juries b/c there is no objective standard for the jury. They could give the maximum. 5. Actual malice required for public concern speech [Knowledge of falsity or reckless disregard for the truth]. 6. Actual malice not required if speech is not a matter of public concern. 7. States cannot apply presumed damages at least where a negligence standard is used. ??? 22 B. Actual damages: 1. Requires proof of damages. 2. Proof differs 3. Ultimately, damages are really the same, whether presumed or actual. Only difference is evidentiary: with presumed damages, presume you were hurt and do not have to prove it whereas with actual damages you must prove you were hurt. C. Punitive damages: 1. Damages meant to punish 2. Actual malice must be shown for there to be presumed or punitive damages when the damages are subject to constitutional concerns. 3. For constitutional concerns, cannot have presumed or punitive damages on a pure negligence standard. 4. Private concern: Damages may be allowed w/o a showing of actual malice, b/c it is not a matter of public concern. 5. Public concern: Damages has to be based on a showing of actual malice [knowledge of falsity or reckless disregard for the truth]. 6. Private Plaintiffs: states have the discretion to use a “actual malice” standard if they want to, but not constitutionally required to 7. If a Private Plaintiff does prove “actual malice”, they may be able to recover punitive or presumed damages. D. Strict Liability 1. Not decided by Supreme Court 2. Dunn & Bradstreet  The reasoning that presumed damages OK w/o actual malice where no public concern suggests that SL might be available. E. Special damages 1. Generally  Externally imposed  Not externally imposed if P got sick and didn’t go to work (P’s choice)  Has to be direct rather than internally imposed. Ex: Fired from job due to slander, loss of customers, banned from a sport.  Defined more narrowly than in other instances (out of pocket damages)  Compensatory  Only distinction b/w libel and slander: proof of damages 2. Libel: i. Special damages not required 23 ii. Easier to win damages in a libel action than a slander action, so P would always prefer libel to slander. iii. libel: a more permanent physical form, so could cause more damage (ex. video tape: t.v. and radio broadcast, but in many states, statutes say it is slander, not libel) AND more widely disseminated (often written). Often libel is printed or written defamation. iv. Libel per quod: 1. Publication not defamatory on its face, but becomes defamatory when linked up with certain extrinsic facts; need additional facts for it to be libel. 2. Treat as if slander; P must prove special damages 3. Example: Cupp could benefit from learning a little about Torts. Nothing wrong with it on its face, but added with the fact that he is a Torts professor, then could be construed as defamatory (not a competent teacher). Not everyone that reads though will think less of Cupp. 4. Example: birth announcement – paper congratulates Mary on her new baby, but Mary never had a baby and is not married and is celibate. 5. Exception to Libel Per Quod: If both LPQ+SPS=Libel 3. Slander: (often oral defamation) i. Have to prove special damages (pecuniary loss) to recover. ii. Must prove special damages exist before can get general iii. Special damages: “externally imposed specials”; cannot recover unless a 3rd parties reaction to the slander, not P’s own reaction, caused P harm; does not matter whether rx or not; ex. lost wages are special damages, but not externally imposed → own reaction internally iv. Hypo: if Susan’s husband hears a lie from a 3rd person that P had an affair with his wife Susan and Susan’s husband beats P up → externally imposed v. EXCEPTION  Slander per se (Actionable w/o proof of special damages – treated like libel, so easier to recover) 1. Crimes of Moral Turpitude – Where D charges that P has committed a serious, morally reprehensible crime, or that P has been incarcerated for such a crime; goes to one’s character; if crime has an evil nature to it (ex. murder; embezzlement; shoplifting). 2. Loathsome disease – Where D imputes to P a presently existing, loathsome communicable disease (ex. aids). 3. Conduct or Condition incompatible with one’s profession – Where D imputes to P conduct, characteristics, etc, incompatible w/the proper performance of P’s business, 24 trade, office, or profession (e.g., law professor that cannot read – goes toward his ability to conduct his job). 4. Sexual Unchastity – Where D imputes unchastity to a female P.  Traditionally only applied to women  Today, it would probably violate equal protection, so the distinction may be outdated. 5. Rationale  Likelier that one will hurt or serious damaged by the slander. 4. How to decide whether a publication is libel or slander? 3 factors i. Permanency – The more permanent, the more likely considered libel. (written more permanent than oral) ii. Breadth of dissemination – More broad, more likely considered libel. (size of audience) iii. Deliberate or premeditated character of defamation – Deliberately false, more likely libel. (weakest factor) iv. The greater the permanency and possible area of dissemination, and the more willful the publication, the more likely the courts are to call it libel. v. An ad-libbed oral statement over TV is libel. But if same statement made to a crowd, the same statement is slander.  TV broadcasts are libel even though oral. Permanency as in VCR tapes. vi. Utterance of defamatory remarks, read from a script, into a microphone & broadcast constitutes libel vii. A few states have statutes making such TV broadcasted material slander. 5. Retraction Statutes: i. Limits damages to special damages ii. In several states iii. The named D cannot be held liable for general damages resulting from a defamatory publication unless it has failed to fairly and promptly make a retraction of such defamation, after demand upon it by the injured party. iv. If retract libelous statement, then mitigate (lower) damages OR in other jxs, then treat the libelous matter as slander, so P must prove special damages now to recover. F. General damages: ($) 1. Pain & suffering, emotional harm, intangible losses 2. Compensatory: 2 types i. General: emotional distress; pain & suffering ii. Special: out of pocket expenses – medical; lost wages 25 G. Nominal damages: 1. The Supreme Court has not ruled whether one can bring an action for the purpose of recovering only nominal damages and thus vindicating one’s name. 2. It seems that this action ought to be allowed. H. Declaratory (equity) relief: 1. Its purpose is to obtain a judicial determination that the statement about P is false, and thus to vindicate P’s reputation. 2. No damages given, but declaring there was defamation 3. No requirement of finding of fault in a declaratory relief action b/c there is no constitutional concern about chilling of speech b/c defamer does not have to pay any damages. I. Injunctive relief: 1. No injunctions. 2. Courts have traditionally refused to permit defamatory speech to be enjoined. 3. Prior restraint of a publication, restricting speech before it is made, is unconstitutional (against 1st Amendment). 4. Remedy is to sue them after they say it. 5. Concern for protection of speech. 7. Privileges [To protect speech; Want people to have thick skins; P has no claim for defamation if communication is privileged.] A. Types: 1. Absolute: defense to defamation– Always a privilege i. Judicial Proceedings - Any statement by a judge, attorney or in judicial proceeding if it is related to the case. Also, applies to all documents, depositions, and anything within proceedings, not just oral statements. ii. Legislative proceedings – Statement need not be relevant to the issue at hand; related & unrelated stmt. (State & federal). iii. Executive Proceedings – Communications; Serious policy making officers are absolutely protected when speaking in their official capacities as long as relevant to his official capacity (State & federal). 2. Conditional [Qualified/limited]: i. Good Faith Test: protected against unrx falsehoods, but not reckless; purpose: create good faith defense ii. Only a privilege (defense) in certain circumstances. Ex. a limited public policy interest. iii. Common interest  Between publisher & person receiving publication.  Share common interest in the subject matter.  Usually comes up in business relations where mgmt talking about personnel; any hierarchy situation; ex. school 26 Privileged if subjective good faith belief in the truth of the statement even if unreasonable as long as not reckless.  EX: Store clerk tells manager that Z stole an item. Privileged if subjective good faith belief that Z stole the item (employer & employees) – related to business in preventing shoplifting.  Church members suing other church members – need to discuss certain things.  Saxer hears terrible things about Cupp’s teaching and discusses it w/Dean – Saxer and Dean have a common interest so can’t recover unless show saxer was recklesss iv. Reports of public proceedings & matter of public interest  Must be a fair and accurate report for privilege to apply  Applies to judicial, executive proceedings, to any statement made in a public proceeding, & to any matter of public interest  Applies even if the person (e.g., press) knows that the speaker is lying, so long as the false statement is accurately reported. v. Irrelevant when dealing with actual malice (only applies where actual malice is not a req’t to win).  IV. PRIVACY A. Appropriation 1. Unauthorized use of P’s name or likeness for money: A. Rule: in order for there to be liability, plaintiff’s name or likeness must not be newsworthy. If it is not newsworthy, then must be for commercial gain. “Commercial gain” = advertisement; Newsworthy = no liability unless “commercial gain” B. Use of a person’s name – No appropriation COA if the use is newsworthy and is not used for advertising. Rationale  Concern with restrictions on speech; do not want to punish or chill truthful speech. C. The unauthorized use of one’s photograph in connection with an advertisement or other commercial enterprise gives rise to a COA. Must be a commercial use. If in media, usually an advertisement. D. Analogous to intellectual property (property that cannot be touched, ex. of the mind) or copyright. E. In a media context, photo is newsworthy and not appropriated due to a 1st amendment concern unless it is in an advertisement. F. HYPOs:  Nephew of the Kennedy’s on trial for rape. Shown on TV. Alleged rape victim testified, blue dot over her face on TV. Suppose National Inquirer printed a photo of her face. 27 Suggested that this would be OK (not an appropriation) b/c not part of an advertisement. Newsworthy; not an ad so no privacy action here. However, newspapers are a commercial business.  6-year old shoots his classmate. National Inquirer prints a story that sells millions. Commercial appropriation action? Probably not because 1st Amendment news issue rights. Would probably be an appropriation if it was an advertisement. *Point: always looking at possibility of money advantage. G. Zacchini Exception: 1. In cases of media showing a performer’s act. 2. If entire performance is shown, then the newsworthy defense does not apply. Allow him to recover even though newsworthy b/c if people can see it on the news then might not go watch his show. H. Two types of appropriation claims: (1) Right of Publicity → focus on commercial value; (2) Right of Privacy → focus on dignity -humiliation (right to have control over use of your picture) (3) Both 1 and 2  Remedies: (1) commercial value; (2) emotional distress damages; and (3) nominal damages. HYPO: Nike Ad Campaign  1st photo is of a hoop game at the field house featuring P getting his shot rejected. 2nd photo is of a pro hoops player. Neither gave permission to have photo used.  Value in picture of pro hoops player (Face recognition) – lose commercial benefit. Right of publicity – Value inherently in his image. Commercial value? Find comparable K’s and see what they get or look at how much he got for endorsements in the past.  P has damages that pro player doesn’t – Humiliation Right of privacy – Where damages other than commercial value. Dignatory sense that picture should not be used w/o permission. Embarrassed to have a national magazine show how bad a basketball player he is. I. Parody of an advertisement is not an appropriation, even if on the front page. A parody is not for commercial purposes. 2. Causation: (CIF & PC) 3. Damages: 3 types A. Nominal damages (monetary → right of publicity action) 1. Not enough in right of publicity claim b/c likeness has already been appropriated & want value of image back. 2. Mitigates damages in right of privacy claim. 28 3. EX: D appropriates P’s likeness by accident (mistake). Discovers and apologizes. Only nominal damages allowed. 4. Usually can recover more than just nominal damages. B. Injunctive relief: 1. Allowed in appropriation cases; must stop using my name or likeness without my permission. 2. Not mutually exclusive w/ dollar damages 3. EX: Prohibit Nike from distributing advertisements. C. Other types → Privacy Action 1. Ex. humiliation; emotional distress D. Split in type of $ damages: (1) If commercial value to likeness (ex. someone famous or attractive) → out of pocket damages; OR (2) humiliating or embarrassing, but not necessarily commercial value though. E. HYPO: Suppose a car dealer hires an actor to do an ad w/a Jimmy Stewart voice. During the ad, he never says “this is Jimmy Stewart.” Assuming Jimmy Stewart is still alive does he have a claim? Depends on the circumstances. Does not have to be a physical likeness → can be a voice likeness. But, there is no claim if there is a disclaimer stating that the voice is an impersonator. B. Intrusion [upon the seclusion of another - natural right to be left alone] 1. Elements: A. Unreasonable intrusion on the seclusion of another: 1. Sphere of seclusion/privacy – Where a “reasonable” person would expect the area to be protected (broad standard) expectation of privacy is intruded upon. Ask: whether a sphere where person has a objective reasonable expectation of privacy that has been invaded? 2. Occurs when D obtains info about P by improperly intrusive means. 3. Publication can also be an invasion of privacy.  Defense: Publication of matters of general public interest.  Publication is not an issue in an intrusion action.  Do not need to have a publication of anything for an intrusion action (unlike other 3 types of privacy actions);  Focuses on act that is intrusive → “sphere of privacy” invaded  Often types of privacy claims may over lap, such as appropriation and Intrusion (ex. taking nude pictures of someone in the shower and selling them) 4. HYPOs  Suppose you go home and find Cupp in your living room. [Intrusion on the seclusion]  Suppose you lend Cupp a dollar. A few weeks go by, you keep calling Cupp 25 times a day in an attempt to get the 29 money. [Intrusion on the seclusion – Not a physical sphere, but have a reasonable expectation that won’t be harmed by constant ringing of telephone; Offensive in regard to $1]; unrx harassing telephone conversation → invasion of privacy b/c have a rx expectation to be left alone.  Suppose the calls are more spread out (once a week). [Not an unreasonable intrusion]  Photographer takes a picture of Cindy Crawford walking down a busy street. [NOT intrusion on the seclusion b/c one does not have a reasonable expectation of privacy on a busy, public street.]  Suppose photographer takes a picture of Cindy in a remote, public place in Montana? [Intrusion on the seclusion b/c one has a rx expectation of privacy in a remote public area.]  Note this privacy tort overlaps the least with the other ones. B. Highly offensive to a reasonable person: C. Causation (CIF + PC) D. Damages C. Public Disclosure of Private Facts: 1. Elements: A. Public disclosure of private facts: 1. “Facts” – dealing with the truth. Statements must be true. 2. Facts must be private (private matter only). 3. Info in public records are not private facts. 4. If have a publication go to → PDPF or appropriation B. Highly offensive to reasonable person: 1. Public figure – Can a public figure bring an action for something that is true even if highly offensive? The court leaves this question open. Constitutionality of this COA is subject to challenge. Supreme Ct. may later rule that it is never unconstitutional b/c we are dealing with true facts (protected by 1st Amendment rights).  HYPO: Dog sitting for Cupp. Notice a collection of Milli Vinilli & New Kids on the Block CDs. Share this info to classmates. Public disclosure of private facts? Although embarrassing, it is not highly offensive to a reasonable person. C. Not a matter of public concern D. Causation: (CIF + PC) E. Damages Note: actual malice standard never applies b/c dealing with true facts, so P could not prove they were false. 30 D. False Light [Publicity which unreasonably places another in a false light before the public] 1. Elements: A. Placing P before the public in a false light:  Where P is a public figure, actual malice standard is applied.  Calling someone poor is not a disparaging statement.  Parodies – Does not place someone in a false light b/c communication is making fun (a joke). Obvious parodies do not even imply an assertion of fact.  Note: false light is similar to defamation, so anytime talking about one almost always talk about the other one too!  HYPO: Biff is a war hero & is distinguished for his valor. D makes a movie about Biff’s life & includes a false romance to spice up the movie. False light? Yes, b/c there is a misrepresentation of one’s life. No defamation b/c there is no disgrace.  HYPO: Picture of honest taxi-driver in a paper next to story about dishonest taxi-drivers. There is false light b/c there is a false impression given that he is dishonest. No appropriation b/c although likeness is used it is associated with a news story & not an advertisement. No PDPF b/c not actually disclosing facts about him. Also, a possible defamation action here b/c probably most people will conclude he is ripping people off. *Point: can usually plead (win) both defamation and false light. B. The false light would be highly offensive to a reasonable person:  HYPO: Suppose movie includes some factual inaccuracies (says that P was enlisted for 3 years when it actually was 5 years.) There is no false light, b/c it is not highly offensive to a reasonable person. Relatively minor discrepancies here.  Cantrell case: P was falsely called poor in a magazine article. Falsely being called “poor” is highly offensive → false light.  Note: It is not defamatory to call someone poor or to be poor b/c it is not disparaging (not disgraceful). C. Actual malice or possibly negligence in some cases:  If public official or figure → actual malice required  Possibly negligence – If client is a private figure, should not have to show actual malice. No public interest & not a public figure.  Should not be a higher standard than in defamation.  Probably all the Constitutional protections that exist for defamation will apply to false light too, but it has not been determined by the Supreme Court yet. However, there is a solid theory that Ct. will deal w/constitutional framework for false light in the same way as defamation. (*Take defamation chart and lay it onto false light claim under the 3rd element).  “Knowing falsity” can also be shown 31  Note: some jxs do not allow false light claims at all. D. Causation: (CIF + PC) E. Damages 2. Coupled Tort (False light & defamation): A. False light seems easier to prove. B. Disparaging comments: usually can plead both C. False light: Highly offensive is enough (even if stmt is nondisparaging) → Need not be disparaging. D. Problem is constitutional concerns E. False light has practical importance for statements that are not disparaging, but still highly offensive. F. Most false-light cases will involve disparaging cases, so there is overlap with defamation. 3. False light scenarios (Four situations where non-disparaging & highly offensive): A. False claims about one’s private life (e.g., involved in a romance)  Not disparaging, but offensive.  Ex. of false stmt: what if Prof said Facchetti had an affair with Cindy Crawford, but he didn’t really. Is it highly offensive?  It may not be defamatory on its face, but to have something so intimate of your life manufactured might be. B. False claims about deeply personal thoughts and emotions (e.g., passionate about field mice)  Highly offensive if false. May not be def. on its face, but may be highly offensive for people to know about your personal thoughts C. False claim portraying P as a victim.  May not be defamatory, but may be highly offensive. D. Falsely describing to others virtues that P has not earned.  Fear that hearers will think that P has inflated his attributes.  May not be disparaging, but may be highly offensive. V. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS A. Elements: 1. Extreme & outrageous conduct causing P severe emotional distress. 2. Does not have to involve speech: a. Actual malice is required for public officials or public figures and when there are speech concerns. So ask: (1) Who is involved; and (2) What kind of speech is involved? (Note: NYT framework handout applies to IIED cases involving speech as well as to defamation & false light) b. Can have an IIED claim that involves speech. Speech- threat c. Practical impact on IIED claims involving speech: A lot of IIED involve communication so potential to have broad implications. Subject to constitutional framework. 3. If see defamation & truth is unclear, then it could be PDPF or IIED too. 32 VI. BUSINESS TORTS: economic loss A. Interference with Contract: 1. A valid contract between P and a 3rd party: a. Does not apply if just a contract between P & D. b. Contracts terminable at will also included. c. P must be in an existing contractual relationship w/ a third party. 2. Knowledge of the valid contract by D a. Knew or should have known b. HYPOs  Laker scout wants to sign Cupp. He doesn’t know that Cupp has already signed with Kings. NO interference with contract b/c Lakers did not know Cupp had a K with Kings and had no reason to know b/c Cupp is not known in basketball field.  Raptor scout wants to sign Kobe Bryant. Bryant (in the middle of 4-year K with Lakers). Scout doesn’t know that Bryant plays for someone else. Bryant agrees. There is interference with K b/c the scout should have known that he had a pre-existing K w/ Lakers b/c he’s established in basketball and well-known. 3. Intent by D to unjustifiably interfere with the contract: 2 issues: (1) Did D intend to interfere?; and if so (2) Was that intent justified? a. What constitutes sufficient intent? 1. Originally (CL), intent = ill will (desire to hurt P - malicious) 2. Modernly, Intent = desire or substantial certainty to interfere; and that the interference is improper or unjustified. 3. Distinguish from ill will:  Could desire interference & wish nothing; focus: helping self.  Analogous to intent for battery where it’s desire or substantial certainty to cause a contact that ends up being harmful or offensive that matters, rather than desire or substantial certainty to cause harm [desire to hit kid, but no desire to harm kid]  It is the Intent to interfere (not the intent to harm) that matters (even if the D does not know it is unjustified) not the consequences of interfering. 4. Interference with existing contract – Doesn’t just mean causing a breach of contract; interfere with ability to perform; delay performance of contract. [The interference must cause P to lose a right under a contract or make contract rights more costly or less valuable.] 5. Hindering performance is sufficient: the intent (and consequence) may be to hinder the performance of contracts rather than to directly encourage breach under interference with contract (interfere with K OR hinder performance of K). 33 6. HYPO: Suppose D is vegetarian. D’s brother owns a butcher shop. D falsely tells others that biz is closed. D should have known that he would interfere with his biz (here, NOT enough for substantial certainty). But, D had the desire to interfere, but no desire to harm. P has a interference with K claim. 7. In most jx BOP on P to prove D (acted with intent). But in some jxs, the burden is put on D instead to prove an affirmative defense that interference was justified. b. When is an interference justified? 1. When D is looking out for public interest. 2. EX: D induced various theater owners to cancel their contracts with P, b/c the low wages that P paid the female troupe members forced them into prostitution. D is justified. 3. If there is an objective basis for a good faith belief that one’s interests must be protected. i. Attorney advice does not equal good faith. ii. There has to be an objective basis beyond mere reliance on an attorney’s counsel. 4. Ex: illegal K’s, loan sharking, hitmen, marriage K’s, boycotting, etc 5. On Exam: do “justification” in intent element (3) and in element (4) just say “in above element determined or did not determine it was justified.” c. Commercial speech – NOT protected if it frustrates rather than advances people’s informed & reliable decision making (i.e., state can regulate commercial speech). Ex. solicitation. d. BOP on justification: split in jxs 1. Modern Trend: require P to prove as part of her prima facie case that the interference was not justified (BOP on P); P must prove by the POE that the interference was unjustified. 2. Other Approach: assume initially that all interferences are unjustified, but allow D to prove as an affirmative defense that interference was justified. Shifts BOP to D. [Some jurisdictions] 4. Unjustifiable interference caused by D [Causation Analysis] 5. Damages: a. Actual & punitive damages available if malice or ill will is involved. b. Easier to prove than in IPEA cases. 6. Restatement 2nd §767 – Factors for determining when interference is justified (i.e., whether an actor’s conduct in intentionally interfering with an existing K OR prospective contractual relation of another is improper or not. Apply to both torts, but applied more stringently to P’s claims in IPEA. [“Rules of the Game” – socially accepted conduct which the law regards as privileged]: a. Nature of the actor’s conduct; 34 b. c. d. e. f. g. 1. Even if a party is justified in trying to interfere with another’s contract or prospective economic advantage, the means by which the interference takes place can make it unjustified. 2. In performing this appropriate motive of competing, if improper means are used (e.g., improper solicitation), this is an important factor. Actor’s motive; 1. Particularly difficult/messy. May put an evil or noble spin on motive. 2. Short term motive  Hurting the competitor 3. Long term motive  Helping themselves (e.g., financially). Interests of the other with which the actor’s conduct interferes; 1. How badly is P going to be interfered with Interests sought to be advanced by the actor; 1. Ex: in Brimelow, the judge was appalled that a young girl was forced by underpayment to continue in a sexual rel w/ an abnormal man. Illegal element: prostitution. Fighting for social justice does not usually violate Rules of the Game. Social interests in protecting the freedom of action of the actor and the contractual interests of the others; Proximity or remoteness of the actor’s conduct to the interference; 1. Hypo: Halle Berry complains about high heels and then high heel industry goes into a tailspin and they try and sue Berry → Will not win b/c too remote. Relations between the parties: 1. Does person have a personal stake in the matter? 2. Is it more of a personal relationship or a business relationship? B. Interference with “prospective” economic advantage: [IPEA] 1. Elements: a. A valid expectancy of prospective economic advantage between the P & a 3rd party; 1. interference w/ a “potential” or hope of economic advantage. 2. Ex. Two business owners. As people walk into competitors store, the other store owner had hired thugs to shoot slings at people as they enter the competitor’s business. b. Knowledge of the prospective economic advantage by D; 1. Know or Should Have Known c. Intent by D to unjustifiably interfere with the prospective economic advantage; 1. requires desire or substantial certainty to interfere; and that the interference is improper or unjustified. 2. it is the intent to interfere; even if the D does not know it is unjustified. 35 3. Analogous to battery rule where it is the desire or substantial certainty to cause a contact that ends up being harmful or offensive that matters, rather than desire or substantial certainty to harm or offend. 4. Here, do justification analysis: i. Majority: Rules of the Game - 7 Factors (unjustifiable interference). ii. Minority (CA): Need 7 Factors PLUS “wrongful” conduct (P must prove that D both knowingly interfered with P’s expectancy AND D engaged in “wrongful” conduct by some other legal measure than the fact of interference itself). Ex. something criminal is wrongful (ct doesn’t define wrongful) 5. Hypo: D leased space to a P (a Furniture Store) D wanted to get furniture store to leave the space, so he can lease to someone else for more money. D harasses P’s customers and demanded they do inventory during their busiest season. Held: D violated Rules of the Game. D’s goal is OK (to make more money), but the way he went about it is wrong. 6. BOP on justification: split in jxs i. Modern Trend: require P to prove as part of her prima facie case that the interference was not justified (BOP on P). ii. Other Approach: assume initially that all interferences are unjustified, but allow D to prove as an affirmative defense that the interference was justified. Shifts BOP to D. [Some Jxs] d. Unjustifiable interference with prospective economic advantage caused by D; [Causation Analysis] e. Damages: 1. Often more speculative in IPEA than interference with K. 2. However, the more serious the misconduct that is proven, the more uncertainty courts are likely to allow regarding future damages. Do not want to reward a wrongdoer by not allowing recovery. 3. Prospective – speculative; ex. future earnings, gifts, etc. 4. Harmon case: Whether the expectancy of receiving money in a will is something which the law would protect? Not certain he would get the money from the will b/c mother could change her mind. Held: claim allowed if in all likelihood he would have received something (more likely than not). 2. Majority approach applies same 7 factors (Rules of the Game) as for interference with K, but apply it more critically to IPEA. 3. Future economic advantage 4. Where there is not yet an existing contract, but there is a prospect (hope) of economic advantage; Extent of excuses available to D is broader than in interference w/K. 36 C. Breach of the Implied Covenant of Good Faith & Fair Dealing (“BICGFFD”) 1. Existence of a valid K of an appropriate type (usually limited to insurance contracts) between P and D; a. Usually Limited to Insureds (not the Insurer) in Insurance Contracts: b/c such K’s often entail unequal bargaining power, a fiduciary relationship, and a motivation for financial protection rather than financial gain. Some courts have experimented with applying the tort to contracts entailing “special relationships”, employment contracts, and third party insurance claims (claims against another party’s insurer), but most courts have rejected these efforts. b. BICGFFD tort recovery is only available in Insurance K’s and a surety K is not an insurance K. And in Ins. K’s only Insured can bring it. If Insured breaches → NO BICGFFD claim by Insurer. c. BICGFFD can only be brought in Ins K’s b/w Insured and Insurer (1 st party). A third party cannot bring a bad faith breach of K action. 2. Breach of the contract’s implied covenant of good faith and fair dealing; a. Pure Breach of K claim in which allowed tort recovery. b. Rule: all K’s have an implied duty of good faith and fair dealing (whether stated expressly in K or not) 3. Causation (CIF and PC); a. Must show emotional distress caused by the breach of K. 4. Damage: a. P may recover their K damages, plus emotional distress and punitive damages. b. If bad faith, can sue for emotional distress; pain and suffering. c. Hypo: Cupp promises he will have Shasta give a speech at 12 p.m. and then Cupp smashes the clock so cannot tell what time it is. This is bad faith; Cupp breached duty of GFFD. d. Uninsured motorist hits my car and I have uninsured motorist insurance and do not get the money for a long time. Unrx delay in payment to Insured b/c then I might settle for less if I’m desperate for money right away b/c need to pay bills right away. Bad Faith delay in payment by Insurer. e. Majority Rule: Cannot bring a BICGFFD claim if someone in bad faith denies the existence of a K, regardless if a special relationship (ex. fiduciary) existed. f. Cannot bring BICGFFD claim for an employee K . D. Fraud: 1. Must show subjective intent to defraud →you know it was not true 2. Actual reliance on Fraud 3. If successful damages are huge (punitive available) a. Ex. Representational warning often coupled with fraud claim (ex. 37 market cigarettes as “light” when in fact no healthier). VII. WRONGFUL DEATH & SURVIVAL A. Wrongful death: (loss of benefits of the survivors – family members claim) 1. *Parasitic tort (must be attached to some other tort, such as a negligence claim or an intentional tort) 2. Survivor’s claim (i.e., close relatives) for their own loss of a loved one. Most states have statutes wrt (1) who can bring a wrongful death action; and (2) types of damages allowed. 3. Beneficiaries: A. Include: 1. Spouse, parent, child  HYPO: Suppose there is a person who gets married & spouse dies wrongfully. The surviving spouse remarries. Is this evidence admissible in wrongful death action? Majority  do not like to allow this evidence (idea of replacing one person with another & don’t want to discourage remarriage). 2. illegitimate child (otherwise denial of equal protection of the laws) can bring wrongful death action for loss of a parent b/c do not want to punish an innocent child. But A father who denied he had a child may not be able to bring a wrongful death action if their illegitimate child dies. B. Typically exclude: 1. Stepchildren i. California: statute now includes stepchildren (who are not adopted, if were financially dependent on them). Note: adopted children are covered under most statutes. 2. Unborn children i. Majority  Allow recovery for the death of a fetus (in womb) ii. Minority  Do not allow recovery b/c of the uncertainty of pecuniary damages. Can only recover if fetus born alive. 3. Unmarried co-habitants – Financially & spiritually codependent. Should the survivor be able to bring wrongful death action? Problems of interpretation, policy to encourage marriage, unmarried cohabitants had a choice, whereas homosexuals do not have a choice to get married. i. Majority  Allows recovery only to spouses; not unmarried cohabitants. 3. At Common Law  One could not maintain an action for the wrongful death of a person. 4. Criticism of wrongful death  putting value on human life 5. Damages: A. Can recover for: 1. Loss of support 38 2. 3. 4. 5. 6. B. C. D. E. Loss of services Loss of contribution Loss of Comfort Other damages of a pecuniary nature Loss of consortium (if applicable): any kind of comfort; not just sexual services CANNOT recover for: 1. Decedent’s pain & suffering 2. Beneficiary’s mental anguish How damages should be measured? 1. Pecuniary loss  Formula=Monetary value of services child could rx have expected to receive during his minority age – rx expense of maintaining and educating child. (amount $$ parent spends on children) 2. Majority  rejects this pecuniary loss calculation & instead looks at pecuniary loss + value of loss of society, comfort & companionship that child gives. (In most states, pecuniary loss is measured by: determining monetary contribution that decedent would have made during his lifetime to the P beneficiary) 3. Criticism of non-pecuniary damages: Can’t agree on damages. However, courts do it all the time in other types of cases.  HYPO: Jury says value loss of companionship at $200K. (Cost of raising child is $145K). Problem? Comparing concrete dollars with made-up number for value of life. Instead, some courts say the pecuniary value of a child is $0. (Won’t subtract costs). Types of damages: 1. Pecuniary damages – lost income, money out of pocket. ALL COURTS ALLOW. 2. Consortium/companion damages – loss of companionship. NOT ALL COURTS ALLOW THIS TYPE, THOUGH THE TREND IS TOWARD ALLOWING MORE CONSORTIUM DAMAGES. i. Can be brought by children who lose opportunity to have a relationship with parents. ii. Broader than just a sexual relationship. iii. Loss of companionship allowed, but no emotional distress. iv. The younger the decedent → the lower the judgment award tends to be (up to a certain age). Pets: 1. Most jxs: get market value (cost) of dog if dog dies. 2. Trend/Some jxs: will not limit pet owners to market value of their pet. 3. Can a person sue for wrongful death of a pet? Only in TN 39 B. Survival (Decedent’s claim: injuries, conscious pain & suffering, expenses & loss of earnings of the decedents b/w time of injury and date of death) 1. Generally:  Allowed statutorily in some jxs.  All damages which the decedent could have recovered had he lived are recoverable, except that punitive damages against the estate of the tortfeasor are not recoverable under the general rule, and many jurisdictions do not permit recovery for pain & suffering of the decedent.  Tort Claim survives the decedent’s death and it goes to his estate when he dies. Then his beneficiaries can bring the claim for him.  Works with the P OR D dying; suit survives. If D dies P’s tort claim will live on and will be against D’s estate. Same if P dies, claim survives his death and goes to his estate. Estate≠Will  P does not have to be killed by the injury caused by D. ???  Claim exists at the time of death; claim does not have to have been already brought when P dies.  As long as decedent is conscious of whatever suffering (physical pain or terror), that is enough to get damages, if shown by preponderance of the evidence.  HYPO: o Fred’s foot is negligently hurt by Wilma. He dies later of an unrelated COA. (1) Does it matter how Fred dies? NO, damages are only for the time between Fred getting hurt & death; (2) What if Wilma dies? Fred has a claim against her estate, transfer Wilma’s claim to her estate. o Who should get the survivor action: wife or son or parents (depends on the will or intestate laws; goes to the estate)  Financial dependents  wrongful death  Someone’s estate  survivor claims – by will or intestate succession; look @ tort as property. 2. Parasitic tort (must have another claim to attach it to). 3. Contemporaneous actions (most of the time in survival actions, there is also a wrongful death action) A. EX: Wife of Murphy has both wrongful death action (financially dependant) & survivor action (she is the only one in the will).  File one lawsuit w/both parasitic actions OR two separate actions?? Double recovery problems.  Many jurisdictions say cannot double recover (either party has the right to consolidate in CA).  Income will only be counted one time. 4. Survival v. Wrongful death HYPOs: A. Value of husband’s clothing: S b/c his clothing (not her benefit) 40 B. Funeral expenses: WD (strange b/c everyone dies eventually & must pay for expenses). C. Murphy is 40 years old when he dies (has about 15 work years left). Both WD & survival. Problem: Not all of one’s income goes to a person’s dependants. 5. Calculating survival & wrongful death damages: A. Future earnings – family maintenance = survival action B. Amount of family maintenance = wrongful death ex. food, clothing, etc; money to support your family 6. Tort claims: A. Damages to personal property – allowed to survive in most jurisdictions. B. Personal injury – Most states will allow. C. Intangible interests of personality – Most jurisdictions will not allow these claims to survive.  EX: defamations, IIED, privacy torts, dignity torts, the more intimate & intangible, the less likely jurisdictions will allow it. D. If decedent settles claim prior to death, then it is binding such that a survival action cannot be brought after he dies unless duress, coercion, or lacked capacity. E. A settlement of survival action by victim prior to their death usually precludes loved ones from bringing a wrongful death action after decedent dies AND precludes a survival action from being brought as well. 7. Defenses: A. All affirmative defenses apply: 1. Contributory negligence; 2. Assumption of risk; 3. Comparative negligence: the fact that claimant is dead does not affect ability to claim comp neg B. HYPOs 1. Homer lives 1 month after accident (Burns negligently caused). Homer settles for $10,000 (worth actually $100K). Can estate bring a survival action? No, otherwise strong incentive NOT to settle. 2. Marge brings wrongful death action: loss of support, companionship loss. If Homer settled his survival claim before his death, then a majority of jurisdictions say that this precludes wrongful death action as well. Decedent took into account the need to provide for action when he decided to settle survival action. 41 VIII. DEFENSES GENERALLY APPLICABLE TO ALL TORTS A. Statute of Limitations (look at statute of particular state for particular tort & location): 1. Must bring an action within a certain period of time. SOL begins running from the time that the tort occurs (at time of injury). 2. Tolling  Jurisdiction extends SOL for fraud to when P knew or should have known of the injury.  HYPO: Fast Eddie sells car to Ira & changes the # of miles on the odometer. Should Ira have a COA for fraud even though 4 years have passed since the sale? Eddie should NOT be able to avoid liability by hiding the existence of a tort. 3. Discovery Rule: A. The SOL is tolled until P knows OR should have known of both (1) the existence of the tort or injury and (2) the identity of D. B/c sometimes do not know you are injured right away or do not know who the D is (ex. in medical or mechanic cases) B. The reasonable knowledge issue is litigated often. B. Statute of Repose: 1. Similar to SOL 2. Bottom-line date (no tolling) for bringing lawsuit period. No excuses. Usually longer time period for statute of repose though. 3. Rationale: A. Evidence ages as time goes on B. D needs certainty that he won’t be sued 4. Typically run 8-12 years. 5. Legislative (subject to lobbying by special interest groups) A. Exemptions for asbestos litigation B. Manufacturers often push for statutes of repose to be enacted. Part of tort reform C. Immunities (public policy dictates certain people are immune from liability even if committed a tort; generally shrinking – much less common today; trend increasing exceptions to immunities) 1. Types (weakest to strongest) A. Spousal: 1. Rejection of CL origin (abolition of inter-spousal immunity) - trend Rationales for CL inter-spousal immunity: i. Supposed unity of husband & wife; so cannot sue each other ii. Peace & tranquility of the home (husband & wife will fight knowing that they can sue) iii. Encourage fraudulent liability insurance [hypo car accident: if wife sues husband’s ins. co., insurance co. hires attorney, but conflict b/c defending negligent person (husband) who might want to recover for his wife]. Human interests best served otherwise. 42 2. Partial abrogation (abolition) of CL rule in some jx: i. Courts which still recognize immunity limit it, but claims are permitted where: (i.e., no immunity???) 1. After divorce or martial dissolution 2. One or both of spouses are dead at time action is brought 3. Torts occurred prior to marriage 4. Tort is intentional ii. possible defense: assumption of risk when live with someone day to day B. Parental: 1. CL  Children could not sue their parents and vice versa 2. Majority of jxs retain immunity, but trend is abrogating immunity 3. California Reasonable Prudent Parent Standard  What would an ordinarily reasonable and prudent parent have done in a similar situation? i. Rationale – takes into account various factors of parenting ii. Child can sue parent iii. CA abrogates (does away with) immunity C. Governmental: (federal v. state immunity) 1. Rationale for allowing governmental immunity: i. Fear of infinity of actions (floodgate of litigation) ii. Absence of public funds to pay lawsuits 2. Rationale for not allowing: i. Not fair to person injured ii. No deterrent effect, so more people may be hurt iii. Gov’t can get insurance 3. CL Rule wrt gov’t: absolute immunity; cannot sue the gov’t 4. Early approach: for jx to partially eliminate gov’t immunity Distinguish b/w: i. Proprietary functions – functions which are closely analogous to non-gov’t. functions (not unique). NO IMMUNITY. Ex: Snack shop run by govt. acts more like a regular business ii. Govt. functions – functions that are relatively unique to govt. EX: police force. IMMUNITY ALLOWED iii. Criticism  Difficult to distinguish b/w the two. EX: Generating power plant operated by the gov’t for police dept. only. Proprietary (electric plant) or Govt. (use of police force). iv. Today, early approach is largely discarded. v. At state level immunity is still given more respect than at municipal level. 43 5. Modern approach: new trend - discretionary v. ministerial i. Discretionary functions – IMMUNITY shall apply. Functions where gov’t employee is called upon to use personal judgment to decide how to act.  EX: Police officer must decide which of 2 actions to respond to; or is a threat serious enough to act on it.  Immunity applies if acting in good faith.  Concern: Flood of litigation; disrupt discretionary function ii. Ministerial functions – NO IMMUNITY. Officer has little choice of his own.  A clear right or wrong way to do something (e.g., writing an address down wrong); acting in a technical capacity w/o much discretion.  Higher level – tends to be discretionary;  Lower level –tends to be ministerial function.  De Long situation: once undertook a duty to rescue, had a ministerial duty to act “reasonably” to rescue her. NO immunity if make a mistake in this type of situation. iii. HYPO: City officials fail to prevent vicious dog from roaming the streets. Discretionary or ministerial? Ct. held this is a ministerial act , though somewhat ambiguous. Too dangerous a situation here for police to have discretion. If have vicious dogs on the street police must remove them. iv. “Special Duty” situation  If official undertakes a duty, then he has to do it reasonably. (e.g., 911 call, address written wrong, lady stabbed & died after 20 minutes. Once Police undertook help, which P relied on, they were under a duty not to worsen her situation). 6. Federal Immunity: (federal, state, county, municipalities – strongest to weakest in terms of protection) i. Eroded only by federal statute (legislatively can remove immunity). ii. State v. Federal Immunity: Immunity remains stronger in fed gov’t than state gov’t; more common to keep immunity at state level??? iii. Can only be taken away by consent of the federal govt. iv. Federal Torts Claims Act 1. No immunity for fed govt.; opened up liability 2. Exceptions (3): (where immunity still applies) a. Discretionary functions by federal employees & conduct engaged in pursuant to federal law, even if law is unconstitutional. 44 b. Many intentional torts (e.g., assault, battery, malicious prosecution, defamation, interference with K) c. Interference w/military personnel: Feres Doctrine - if in the military and military does something you don’t like → too bad. v. Fed and state gov’t have laws that you must bring claim to a gov’t agency before file a claim in court and agency must deny it first. Also, limited time to bring the claim. vi. Attorney contingency fees are limited by statute to 25%. It is a crime to do otherwise. vii. Public Officers- Personal liability of govt. employees or officials 1. Higher-level ranking officers: a. Treated the same whether state or federal officers b. Absolute (pers.) immunity as long as act is committed in the scope of their duties (even if acted maliciously) 2. Lower-level officer: a. State: 1. Discretionary fns – immune if acting in good faith 2. Ministerial functions – not immune 3. Intentional torts – not immune b. Federal – immune from negligence, but not intentional torts (even if in scope of duty). IX. MULTIPLE RESPONSIBLE PARTIES A. Vicarious liability: (responsibility for the torts of others) 1. Based on idea of “respondeat superior” which means “look to the person higher up” 2. RULE: Employers are liable for all of their employees’ conduct (negligent OR intentional) committed in the course & scope of employment (courts have a fairly open approach to course & scope). A. Limited to work-hour activities (generally) 3. Rationale for respondeat superior: A. Employer is a deep pocket B. Fair to make employer pay for all costs of its enterprise (i.e., can adjust the price of products). Can also distribute the burden among those benefited by the enterprise. 4. HYPOS: A. What if employer has a specific rule against conduct that the employee is doing? Still vicariously liable b/c employee is acting within the scope of employment. Ex. what if trash has to be taken to the dump instead of burned and it causes a fire; objective here is to take out the trash and acting in furtherance of your job. B. Is bank liable where bank officer breaks P’s fingers when late (intentional tort)? Yes, Even though intentional tort, it is considered 45 in the course & scope of employment if method of performing job. C. Tenant is sexually assaulted by manager of apartment complex. Is apt. complex liable? No, b/c manager is not acting within course & scope of employment. D. Apt. manager hires a man who has been previously convicted 3 times of sexual assault occurring when he was an apt. manager; the man has a criminal record & the stories are in the newspapers. Apt. manager doesn’t look into it and hires him [look at seriousness of harm & how easy to check]. Respondeat Superior? No, b/c employer was directly negligent . Independent liability for negligence b/c where the act is not in the scope of employment, want to plead negligence as much as possible in order to get at insurance. E. Bar tender gives a customer a hot foot and injures them. Course & scope? Maybe. Utility for the employer b/c entertains customers. F. Gas station attendant shoots customer who refuses to pay w/cash. Course & scope? Maybe (not what the employer wants – need not be effective, only ask: is the employee trying to fulfill a job objective). 5. Independent contractors: A. To determine if one is liable for an independent contractor use the Test of: “The Right To Control The Physical Details Of The Work” i. If standards rise to the level of supervision & control necessary that D becomes an agent of employer, then employer is liable. ii. Otherwise, no liability iii. Factors - do they: have set hours, provide a work space for them B. Non-delegable duties: i. There are some duties that cannot be delegated to another. ii. Creates vicarious liability if delegated. iii. Restatement 423: if dangerous instrumentalities are not properly maintained  cannot delegate. Ex. failing brakes. iv. There is a standard of “super due care” when something is super dangerous. 6. Independent contractor v. Employee: (based on control or discretion) A. Factors to analyze: i. Does the person use their own tools; ii. Are they told when to be at work; iii. Are they provided with desk or telephone (or do they work out of their home); iv. Are they told how to do the details of their job (professionals or skills v. unskilled). 46 B. Joint Tortfeasors: 1. Joint liability: (joinder) A. If indivisible injury & 2 Ds, P can sue both Ds in the same lawsuit. B. Joinder: i. 2 or more parties may be joined in the same lawsuit. ii. If injury occurs within the same transaction or occurrence. ii. Promotes judicial efficiency. iii. Courts are more liberal in allowing joinder when they arise from the same set of facts. C. Joint Enterprise (Theory): 4 factors (Restmt 491) i. Express or implied agreement among members of a group. ii. Common purpose to be carried out by the group. iii. A community of pecuniary interest in that purpose among the members. (Working together to make money) iv. Must be an equal right of control in the direction of the enterprise. 2. Several liability: A. If multiple Ds create the same or indivisible injury to P, P can recover each Ds share (%) of liability from them. (But not a 100% from just one D, rather just the amt they are at fault???) 3. Joint & Several liability: P can joinder all parties responsible for injuries and can recover for those injuries that both D’s are responsible for from either one of the D’s alone (or both) regardless if one D is not 100% at fault. P can recover 100% of the damages from either D even if one is only 1% at fault. A. P can sue multiple parties in the same lawsuit & can recover 100% of damages from any one of the Ds. B. Each of several tortfeasors is liable jointly with the others for the amount of the judgment against them, and that each is also individually liable for the full amount. C. Double recovery is NOT allowed. D. Rationale: i. Between one D & injured P, the D (negligent one) should bear the loss caused by the joint tortfeasor’s absence or inability to pay. ii. With insurance, the risk is spread (STRONGEST RATIONALE) E. Comparative negligence (liability): i. A joint tortfeasor is liable only for that portion of the total damages attributable to his own neg., in some comp neg jx. However, in other comp neg jxs, P can still recover 100% from either D (i.e., J & S allowed, even if comp neg??). (Note: if D1 has to pay 100% to P, then D1 can sue D2 for the % D2 is at fault). *Thus, in a comp neg jx either: (1) J & S liability is allowed; OR (2) J & S liability is not allowed. 47 ii. If J & S liability is allowed there are 2 possible ways to calculate P’s damages. See example 2 below.* iii. Not required to pay the full damages when other joint tortfeasors cannot pay their share in some jxs (i.e., if J & S not allowed). iv. Pure comparative negligence  allocate fault by % (b/w P and Ds - Is J & S allowed???) v. California: 1. Prop 51 changed the rule that joint & several liability applied even if there was comparative negligence. a. J & S liability shall still apply for economic loss (special damages). b. J & S liability does not apply for non-economic loss (general: pain & suffering). c. P can only recover each D’s share of liability for noneconomic loss. vi. Example: 1. What if P is partially at fault? D1 – 25%, D2 – 25% (poor), P – 50%. How much can P get from D1 in a pure comparative negligence jurisdiction? 50% (D1 + D2) [T352] check this out (But is this only if J & S is allowed??) 2. What if D1 – 70% and D2 – 20% at fault and P 10% at fault? Then most P can recover is 90% in all comp neg jxs. What if D1 is judgment proof? P can get 90% from D2 in some jxs, and in other jxs P can only recover [20% + (2/3)of 70%] from D2 (note 4 p. 264). B/c P and D2 are together 30% at fault and of that 30 %, P is 1/3 at fault and D2 is 2/3 at fault. vii. Uniform Comparative Fault Act: Continues J & S liability, but provides for the termination of each party’s share of the obligation in accordance with his % of fault. ??? in bk so each D is only responsible for his % of fault?? 4. Satisfaction: A. Where P has enforced a judgment (100% of damages) against a D, P loses all potential claims against all other Ds or potential Ds. Once P recovers 100% of her damages the case is over. B. Partial satisfaction: Where part of the claim (judgment) is satisfied & cannot longer be required. i. HYPOs 1. Suppose hospital bills are paid by X before trial. P then sues D2 & D3, who will be allowed to subtract X’s contribution from the judgment that D2 & D3 receive. 2. P’s insurance pay P’s medical bills – will not be subtracted from D2 & D3’s judgment. No partial satisfaction if benefit (payment) is conferred to P is by someone other than Ds 48 unless payment is made by D or someone on behalf of D. See collateral source rule C. Collateral source rule – Payments made to the injured party which were not made by, or on behalf of, the tortfeasor are not credited to the benefit of the tortfeasors, even though this means P may receive double compensation for some losses. D. HYPO: Suppose P settles with D1 for $2,500 and P later gets a full judgment against D2 & D3 for $10,000 at trial. There is partial satisfaction and D2 & D3 need only pay $7,500. 5. Release – A voluntary surrendering of P’s claim. Not necessarily where claim has been paid, but P has released the claim for some reason, typically, in settlement. A. Needed for settlement: i. The policy of preventing excess recovery is best handled by having the court credit the amount of the settlement against the amount of the verdict. B. At CL  A release of one joint tortfeasor (D1) operated to release all tortfeasors (D2, D3, …), even if the parties did not intend to do that (i.e., even if the release expressly reserved the right to sue others) . i. “Covenant not to sue”  (a contract) exchanged for $$$; still have the legal right to sue, but if one did sue, then that person could be sued on the contract. Was an alternative to a release. C. Modern trend  Rejects the CL rule. i. Release of one tortfeasor, with the express reservation of the right to sue others, does not release the other tortfeasors. D. Note 5: p. 372 – In some jx they say that a release of one D does not release the other D’s, even if there is no express reservation of rights. 6. Contribution – Each jointly and severally liable D, may require the other Ds to pay money to him if he has to pay the (whole) judgment. D uses contribution against another D. A. CL – No contribution allowed between joint tortfeasors. B. Modernly – Contribution is allowed between joint tortfeasors for negligence actions, but contribution is not allowed for intentional torts. i. Rationale  Intentional torts are more blameworthy (“jerk”). C. HYPO: Assume in a jurisdiction that does not use comparative negligence. G is driving his car at 2X the speed limit and is swerving b/c he has never driven before and is drunk. S is also driving too fast by 10 miles per hour. Cars collide and strike pedestrian Mary. Suppose Mary sues both under negligence & has $100,000 in damages. Mary collects entire amount from G. 49 Should G be able to get contribution from S? Older rule: equal pro rata percentage must be paid by each D (equal share for each party of total damages) → $50,000 [if 3 D’s: (1/3) of $100k]. Basically, add up # of Ds and divide equally the total amt b/w them. ii. W/O comparative neg. jurisdiction, it would be difficult to determine % of liability since the jury would not decide each Ds % of fault. Otherwise, courts would typically divide the judgment pro rata (50-50) or (100-0 in extreme cases). iii. In comparative neg. jurisdictions trend is to apply % of liability to % of contribution. G – 90% at fault and S – 10% at fault then G only gets to get contribution of 10% from S. Contribution is limited to that D’s % of fault. 7. Indemnity – D1 gets all of the money that she has to pay from a judgment to be paid by another D (D2). Unlike contribution, D1 says to D2 give me all of what I have to pay to P (not just a share of what I have to pay to P). Often it is the case where the D seeking indemnity is much less at fault than the other D. A. Good faith settlements: i. California’s approach  Motion for good faith settlements: Analyze whether settlements are made in good faith. If so, no contribution is available against the settling parties. 1. Must get a judge to declare the settlement was in good faith. 2. Use factual arguments to come up with a ballpark figure of what settlement should be. If right on, then in good faith. B. HYPOs i. Suppose P settles with D1 & then goes on to get much more against remaining Ds. Should D2, D3, …. be able to get contribution against D1 who settled cheap? ii. P settles with G for $30K & signs a full release w/express reservation to go after S. S (much less at fault) & P go to trial. Judgment for $100K. Under partial satisfaction P can recover $70k from S [$100k - $30k]. Is this fair? Can S get contribution from G? See Good faith settlements C. Three solutions (approaches): to above hypo (Note 2 p. 386) i. Permit contribution. Even if one D does settle, the other D’s can still come after you for contribution. ii. G is discharged from liability for contribution, so long as he acts in “good faith” [Good faith settlement: if so, S cannot get contribution form G]. iii. Settlement w/G means that selling of half of the COA to him, with a resulting pro-rata reduction in P’s claim against S. [$100k/2=$50k]? 50 i. D. When can recover indemnity? i. Vicarious liability ii. Where the one seeking indemnity has incurred liability 1. by action at the direction, in the interest of, and in reliance upon the one sought to be charged; 2. b/c of a breach of duty owed to him by the one sought to be charged; 3. merely b/c of failure, even though negligent, to discover or prevent the misconduct of the one sought to be charged. iii. Where there is an express K between the parties containing an explicit undertaking to reimburse for liability of the character involved. E. Comparative negligence: (has changed contribution & indemnity rules significantly) [primarily and secondarily negligent] i. Example: D2 gets 90% of indemnity [if D1 – 90% and D2 – 10%] ii. “Indemnity” = all or nothing iii. California (Equitable indemnity  partial indemnity based on % of liability of each D that is determined by the jury> 1. Pure comparative neg. jurisdiction. iv. History: 1. Contribution allowed based on statutes. 2. No allowance for partial contribution in statutes though. 3. Courts are not supposed to change statutes, which do not account for comparative liability principles. Thus  4. Courts used equitable powers to modify indemnity to achieve fairness (%-based contribution) → Equitable Indemnity. Contribution is attached to % that each party is at fault. Contribution=equitable indemnity based on a % of fault juries found each D to be. Rather than doing the traditional pro rate share rule of contribution where each D pays half (if 2 Ds or 1/3 if 3Ds etc.) of P’s damages. Exam: Rd Directions! Let the question lead you; this is a year long class Know causation Know Negligence Know IIED 51