Duty of Care • No duty to avoid pure economic loss, no recovery for such under negligence • Pure Emotional Loss (no recovery for except:) o Contemporaneous physical impact (but no physical harm really) then may recover for pure emotional loss o Physical mani if: normal disturb o Zone of danger rule P can recover if in it and see other injured o Dillon: if related, near, see, then recover o Thing: if related, present and know, severe emotional • Unborn Children o Majority stillborn can recover for wrongful death o Minority (co-law) must be born alive then die to recover for wrongful death o Wrongful birth, if defective child born b/c of negligence (no chance to abort) o Wrongful life, if born at all and are a mess can recover condition rela expens o Wrongful Preggers, if sterilization bad Owners and Occupiers of Land • Outside the Premises o Duty of reasonable care under the circumstances, consider: o Active use/Static/Natural o Rural/Urban • On the Premises o Trespassers: avoid willful/wanton o Licensees: social guest, duty to inform o Invitees: duty to use reas care (busine) o Children/Gov’t officials: even if tresp o Merging of categories: duty of care to all under the circumstances, look at: Closeness of inj to D’s condu Moral blame to d Policy of preven fut harm Prev and avail of ins • Lessor and Lessee o Majority: No duty of care to LL to ensure land leased is okay, 6 exceptions o Minority: Must exercise ordinary care to maintain property so no one injured o Crim acts: if foreseeable and LL in control of com areas then must reas protect Damages • Compensation Principles o Restore P to preinjury as much as can o All losses in a dollar amount o All damages in one lump sum o Review severely limited • Collateral benefits (don’t tell jury) • Avoidable consequences (mitigation), reason • Punitive Damages (how to prove need them) • Willful/wanton/careless/recklessness • Look for factors for such finding under Prod liab Defenses to Negligence (all D affirmatively proves) • P’s Conduct o Contributory Neg’l (last clear ch is limit to complete bar) o Comparative Negligence (divvy fault) Pure 90% P, 10% D, P gets Modified 50% or less P rec 49% or Less P recover find by look at fault + prox o Assumption of Risk Express (pub pol lim) Implied (Volun + known) • Not in contrib neg • S o’ limitations + Repose • Immunities Vicarious Liability • Respondeat Superior (look for direct neg’l too) o EE/ER relationship o Tort committed in scope of Employment Furtherance of duties Enterprise ER control over EE • Independent Contractors (no VL/sue for direct) o Who controls phys details? o How connected to comp? o Paid by hour or job? o Comp supply tools? • Joint Enterprise (yes if:) o Shared commercial or profit motive only • Bailments no VL, unless car Strict Liability in Tort • Animals: Wild/trespassing/domestics, if mean • Abnormally Dangerous activities call for SL o High degree/probability of injury to oth o Likely harm great o Inability to elim risk by reas care o Extent to which activity not common o Inappropriateness of activity o Extent to which activities outweigh dan • Limits on SL o Proximate cause: kind/type of harm same as abnormal danger o Unforeseeable events: FM or 3rd party acts o No contri neg’l defense o Assu of risk if knowingly and willingly o Comp neg’l states use to reduce (merge implied assu of risk) Products liability • Plain ol’ Negligence (privity gone), Warranty • Strict liability in Tort P must prove: o D made and sold prod o When left D was defective o Intended to and did get to cons w/o chge o Prox cause of P’s injury Defective: • 1)Manufacturing defects: a failure of q control • 2)Design Defect: whole line is bad 3 tests 1--Negligent design, did not use re care de 2--Consumer expectations, failed to perform as safely as the reas consumer would expect 3--Risk utility test o Social utility o Prob and mag of poten injury o Avail substi of safer prod o Ability to elim unsafe charac o Ability to avoid danger o User’s awareness of danger o Ability to spread the loss • Min says: if open and obvious danger P loses • P must show reas alternative design OR NO SOCIAL UTILITY • State of Art, if so D probably win o Min looks at tech feas o Maj looks at tech feas and cost o Min no care about state of art • 3) Warnings Defect o Did D fail to warn if knowable? o 3 req’s attn of user what hazard is show user how to avoid risk o induce suff safety • Proof—by prepon show D’s product was cause of harm to P, look for RIL—if no accident w/o • Defenses o Maj say assu of risk in comp neg’l o Min say no comp neg’l and volun + know assu of risk o Misuse if unforeseeable then def o Preemption by gov’t • Original distributors + sellers will be sued • Services no sue even if give prod incident to it Defamation • A defamatory imputation (false state of fact) o Tends to damage rep, dim conf in P, o If a substan and respect part of soc view state as derogatory then sue • Publication (another must hear it other than P) o Must ID P o Done intentionally or negligently • Truth a defense a co law, Now P may have to prove falsity • 2 kinds: Slander (speech) + Libel (written) • Slander must have special damages Pecun loss o Or imputes of major crime o Loathsome disease o Likely to affect bus, trade or office o Sexual miscon • Libel no need for spec damages (if written or durable or able to be comm’d to many) • Look at chart if see these situations: • Public Figure/Public concern • Private Figure/Public concern • Private Figure/Private concern • Opinion: if imply assertion of fact can still sue • Privileges: o Absolute for cts and legis and those rela o Cond’l for low pub offs, or if act in furtherance of some int of social import then priv o Cond’l lost if def is excessive, w/malice, improper purpose • Remedies: Primarily damages, but maybe dec’l relief, right of resp statutes Invasion of Privacy • Appropriation of P’s name or likeness for commercial advantage o Newspaper no problemo • Intrusion upon seclusion o Obtain info by improperly intrusive means (place, conversation, matter) where P has reas expect of priv o Highly off to a reas person • Public disc of priv facts o Pub disc o Priv facts (if in ct house not priv) o Highly off to a reas person o Not newsy, not a matter of pub con o Look for br of conf (if a close rela) • False light o D pub’d a matter on P to subst group or to public o Matter put P in false light o False light highly off to reas person o For punitives have to show actual malice • Pub figs and offs no sue for IISED in publications unless can show false state of fact w/NY Times malice Misrepresentation • 1)False statement of fact • 2)Scienter-intent/know/w/o bel/reckless • 3)Mat’l – if reas person want to know or P attached idio import and D knew • 4)Intended to induce reliance • 5)Induces reasonable reliance o if you can test it through due dili, no reas rely o must have actually relied • 6)Proximate cause of injury to P’s Damages • Non-disclosure no good, unless duty, Jenkins and rest. • Negligent misrep—2 rules int’l prod and rest 552, only out of pocket exp o 3rd parties, ultramares, neg’l foresee, rest • Innocent misrep NO, min says yes if sale, rental or exch, amt can get only resti • Opinion no good, unless fidu or bargain or implies facts • Law no good unless implies facts • Pred and intent-if promise never intend to keep