Torts outline 10 I. Strict Liability A. Rylands v. Fletcher (exchequer) 1. “likely to do mischief” a. Person who brings on land and keeps anything likely to do mischief if it escapes… is answerable for natural consequences of its escape. 1) He lawfully brings on his land something that was not naturally there 2) Thought harmless while it remains there 3) But will naturally do mischief if it escapes out of his land. 2. Exceptions: a. If escape if π’s own fault b. Vis major??? c. Act of God 3. Examples a. Escaping cow eats neighbors corn b. Reservoir flood neighbors property c. Home unhealthy by fumes and caopr of neighbor’s privy 4. Policy: no grounds for saying neighbor tool upon himself any risk arising from uses to which should choose to apply their land. B. Rylands v. Fletcher (house of lords) 1. Non-Natural use – will be liable for damages, however careful he may be a. liable for unnatural conditions (if flood caused by natural collection of water, then not liable. C. Sullivan v. Dunham 1. Whether one who 1)With lawful purpose, 2) w/o negligence, 3) explodes a blast on his own land, 4) causing wood to fall, 5) on person passing on public highway 2. Right to undisturbed possession of one’s property is superior to right to a particular use of one’s property. 3. Policy a. People feel more secure in enjoyment of proeprty b. Deterrence – encouarges landowner to not use land for dangerous purpose c. Fairness – liability on one who causes the accident D. Restatements 1. First Restatement a. uses only a-d below 2. Second Restatement a. High degree of risk b. Risk of serious harm c. Can’t eliminate by due care 1) activity cannot be carried on safely even with reasonable care – unavoidable danger d. Not common usage 1) by society in general e. Inappropriate to location f. Value vs. danger balance 1) Extent to which its value to the community is outweighed by its dangerous attributes 2) not dispositive. A greatly valued activity may still have to pay its own way if overly dangerous. E. Defenses 1. CNB a. Maj: 1) Knowing CBN – complete defense (ex: see warning and ignores it) 2) Unknowing – no defense at all b. Policy: this is no-fault liability, so by definition it is illogical and unfair to look at π’s fault . – allowing CBN really throws back into a negligence scheme. c. 3 ways to handle π’s CBN 1) traditional, total bar 2) fault is irrelevant in S/L – won’t look at CBN 3) cPn – allow apportionment for fault a) or, look at it for enhanced injuries only F. Policy 1. Spread the cost (econ efficiency) a. Big company in better position to internalize the cost b. Big company is cheapest cost avoider, in best positin to most cheaply avoid the injury Torts outline 11 2. Assumption of risk is defense a. if knowingly and unreasonable voluntarily assume risk (harder to meet than traditional assump) 3. Balance of Risk a. Equality – motorists impose risks on each other b. Non-reciprocal risks – blasters impose risk on the public. Seems fiar to impose s/L c. Negl. Not fair to π b/c π doesn’t really know what is going on, and res ipsa is only a presumption of negligence. 4. Deterrence a. Because under S/L it doesn’t matter if the mfrs was negligent, it may decrease his desire to use due care. If an activity can’t be safe, no matter how much care used, then why use care? Hut, perhaps use of care will lower the number of accidents and save money. If not, the mfr will have to determine if the activity is worth doing at all, or if it should be done in a different place. b. CONTRA: no deterrence effect – you are only going to undertake those precautions that equal the amount you’d pay if accident occurred. You aren’t going to spend more money than potential cost of recovery II. Products Liability A. Negligence 1. No longer need privity a. Winterbottom – defectively repaired coach – no recovery b/c no privity 2. Mcpherson --defective wheel causes wreck a. One who negligently manufactures a product is responsible for any personal injuries proximately caused by his negligence. 1) bystanders can recover is he is a foreseeable plaintiff. 2) Doesn’t have to be inherently dangerous item, but rather that it becomes dangerous when made defectively 3) Did away with need for privity in negligence 3. Manufacturers a. Design b. Manufacturing procedures c. Inspection and testing d. Packaging and shipping e. Assembly of parts (by non-manufacturer of parts) 4. Retailers – much less likely, since may not have had duty to inspect, or no chance of finding defect – so suits against retailers are generally brought on warranty or strict liability. B. Warranty 1. Still required privity until the 60’s 2. Express Warranty a. will be held liable for express false description of goods that leads to people relying on promise and getting hurt 3. Implied Warranties a. Escola – coke built reputation as safe and good product, and victim relied on that representation when bottle exploded in her hand. b. Warranty of merchantability: fit for ordinary purposes; sold by merchant c. Warranty of fitness for a particular purpose: when customer relies on retailer’s judgement d. 4. Warranties now extend to all foreseeable users C. Strict Liability 1. Restatement s402A Special liability of Seller of Product for Physical Harm to User or Consumer: a. One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property if 1) the seller is engaged in the business of selling such a product, and 2) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. b. (2) The Rule stated in Subsection (1) applies although 1) the seller has exercised all possible care in the preparation and sale of his product, and 2) the user or consumer has not bought the product from or entered into any contractual relation with the seller. 2. Elements a. : Seller—commercial—could pose some litigation problems 1) Issue: whether meets status of commercial seller Torts outline 12 b. Product as opposed to a service—often comes up in the medical field—transfused blood, dental work, hair dye reaction—the judge often decides a service/product as a matter of policy (no s/l for services) c. Sold in a defective (unreasonably dangerous) condition— 1) must be dangerous beyond a normal expectation of the danger in the mind of the ordinary consumer— a) if ordinary consumer knew dangers, would he still buy it? 2) the consumer expectation test technically applies to all three of these types of defects the question is whether this is an appropriate test since it more than likely applies to the manufacturing defect d. π: User or consumer—again could pose some litigation problems—do unforeseeable users count? e. Physical harm—what does that mean—the litigation is over whether economic harm is recoverable in the absence of physical harm f. Causation—but for-factual and foreseeable-proximate—the defective condition has to be what caused the injury in order to recover—intervening factor? g. No substantial change to the product after it left the manufacturer—the Tylenol tampering case—the prospect they could have been held liable led to a huge change in packaging requirements 3. Applies to anyone in distribution chain – mfr, retailer, wholesaler 4. Defective condition unreasonable dangerous a. dangerous to point beyond which ordinary consumer would contemplate 1) Consumer’s view; If reasonable consumer, knowing the dangers, would still use it, then it’s not unreasonably dangerous 2) Defendant’s View: if seller, if knew the dangers, would be negligent by selling 3) Deviations a) in Cali, only have to show product was defective and caused injury, not that unreasonably dangerous 5. Unavoidably unsafe products a. State of knowledge 1) if seller could not have known by state of human knowledge that product was defective when sold, then no liability (not defective) 2) Prescription drugs: believed safe at time sold, then later found to have caused harm. – courts usually apply fault-based negligence here. b. social utility 1) some products may be unavoidable unsafe but greatly beneficial – if balance in favor of benefit, then no strict liability 2) If product has little social value, then more likely to have S/L c. natural vs. unnatural danger 1) more likely to have S/L for piece of metal found in can of tuna than for bones. 6. Warning a. product may be unreasonably dangerous b/c of inadequate warnings (strong negligence implications) 7. Obvious Dangers a. if dangers are clearly obvious, may stop S/L 1) Π may be held to assume the risk or be contributory negligent 2) But obviousness not dispositive, if difficulty and cost of removing the danger is so slight 8. Proving the case a. Manufacture of sale by b. Existence of defect c. Causation d. Defect existed when in ’s hands D. Design Defects 1. aspects of negligence a. combined test 1) design’s dangers outweigh utility 2) design not as safe as reasonable consumer would expect when used for intended or foreseeable purpose b. R/U: negl. Or risk/utility analysis 1) relative need for product 2) likelihood product will cause injury 3) severity of injury Torts outline 13 4) availability of affordable, safer alternative design c. C/E: consumer’s expectation test 1) defectiveness, determined by reasonable consumers’ expectation about safety 2) if product used in intended or foreseeable way 2. Alternative design must be practical 3. Types of Design defects a. structural defects 1) choice of materials 2) durability vs. cost balance 3) most durable design not required – just not unreasonably flimsy 4) Length of product life a) in relation to cost b. absence of safety features 1) compared to competition – not dispositive (similar to custom – industry may lag behind) 2) Obvious defects – even if danger was obvious, court may still hold liable if added safety cost little and didn’t impair product c. suitability for unusual purposes 1) Foreseeable misuse 2) Foreseeable by-product of intended use 3) Design permitting reckless use a. Manufacturer not responsible for foreseeable modification 1) the modifier breaks the causal chain, becoming the primary & sole tortfeasor. 2) (minority view) foreseeable modifications break the causal chain. Most jurisdictions will still have liability for foreseeable modifications(jury question). 3) All jurisdictions: unforeseeable modifications break causal chain for original manufacturer 4. Criteria for determining the adequacy of a warning a. adequately indicate the scope of the danger b. reasonably communicate the extent or seriousness of the harm that could result c. physically adequate to alert a reasonably prudent person to the danger d. a simple directive warning may be inadequate when it fails to indicate the consequences that might result from failure to follow it e. the means to convey the warning must be adequate E. Interests protected (econ harm) 1. Property damage a. Recovery allowed 1) generally, recovery allowed for property damage, if truly property damage and not intangible econ harm 2) Restatement 402A makes strict liability apply to damage to “consumer or his property” 3) Also so for nelg. Is lack of due care shown 4) Warranty: a plaintiff not in privity with might have trouble suing on implied warranty b. Property damage defined 1) Sudden destruction of plaintiff’s property apart from defective product itself qualifies. 2) Some states have allowed it for damage to the product itself, especially if it also endangered (without actual harm) other property or people 3) Supreme Court does not allow strict liability when damage is to the product itself (plaintiff may be able to use K or warranty theory) 2. Intangible economic harm a. Direct purchaser 1) if suing directly, best bet is implied or express warranty 2) plaintiff might want to try this is seller has UCC disclaimer of liability or other warranty defense. b. Remote purchaser 1) Warranty: plaintiff has good chance to recover on express warranty, less for implied 2) strict liability: 402-A of restatement limits recovery under strict products liability to cases of personal injury or property damage – profits and other intangible econ loss are not covered. 3) Non-purchaser F. Defenses 1. Contributory negligence a. Strict liability: only some types of CbN are a defense 1) Failure to discover danger: most courts say it is not a defense if plaintiff’s negl. was failure to find the danger Torts outline 14 2) Unreasonable exposure to risk: plaintiff’s failure to take precautions against a defect is usually not a defense 3) Abnormal use: may be a defense, if foreseeable 4) Independent negligence: if plaintiff’s concurring cause of harm is considered to be superseding, the can use as defense (probably not a defense if reasonably foreseeable) 5) Comparative Negligence statutes: Some (not all) states that allow CpN may allow proportionate reduced recovery, even if plaintiff’s negligence is th failure to inspect kind. b. Warranty claims 2. Assumption of risk a. If discovers the defect, knows the danger, and still unreasonably uses the product, he can’t recover for injury (in some states) b. Must be both voluntary and unreasonable 3. Abnormal use or misuse a. Restatement examples: abnormal handling ( knocking bottle on table to remove cap); Abnormal preparation (too must salt added to food); abnormal consumption (kid eats too much candy) b. Reasonably foreseeable: If the misuse was foreseeable, the mfr will usually be charged with anticipating it and making the product safe. c. Same result by duty or prox cause analysis: can tyr to say no duty to prevent particular harm, or that product wasn’t proximate cause of injury (not defective tires, but driving too fast) d. Negl. 4. Abnormal use or misuse by third person a. Not a defense: can’t claim CbN b/c only the plaintiff’s conduct can give that defense b. Use as defense: but can say third party was a superseding event, breaking chain of cause. III. Trespass and Nuisance A. Trespass to land 1. A trespass to land occurs when a defendant enters the plaintiff’s land or causes another person or thing to be there a. Wrongfully remains b. Failure to remove objects under a duty to remove 2. Intentional trespass a. History: C/l trespass was strict (but still had to be voluntary) b. Today, most states reject strict liability Trespass, 1) Restatement: where neither intentional nor negligent, defendant is liable only if trespass for an abnormally dangerous activity 3. Kind of intent required a. must only intend to enter the land, not to harm plaintiff b. Mistake doesn’t matter, if meant to be on land, it is trespass (even if thought it was his) (even if mistake is reasonable) 4. Damages: trespass w/o harm – nominal damages 5. Scope of recovery: Once trespass is established, defendant is liable for virtually all consequences 6. Only possessor has claim: tenant can sue, but if tenant sues, LL can’t 7. Indirect invasions a. If defendant causes a tangible object to enter plaintiff’s land, there is a trespass although defendant himself has not made an entry b. Also trespass if defendant doesn’t intend the entry, but knows it is substantially certain to occur. c. Blasting damage 1) at c/l, entry had to be direct, so plaintiff couldn’t sue in trespass for damages caused by vibrations 2) Modern view: rejects distinction b/w direct and indirect injury (but also no longer impose S/L for non-abnormally dangerous trespasses. 3) Particles and gases: most courts now hold defendant who causes particles, however fine, to enter plaintiff’s land has committed trespass. B. Nuisance generally a. Refers to the kind of injury plaintiff has sustained. (so think of what constitutes sufficiently great damage to be a nuisance) 2. Public Nuisance a. Definition: 1) An interference with a right common to the general public. a) sometimes, this means health hazards, brothels, casinos, etc. b. Factors: “ in any nuisance suit the court is going to balance competing interests” 1) courts look at type of neighborhood, nature of wrong complained of, frequency or duration, and resulting damage or annoyance Torts outline 15 2) harm to the public must be substantial 3) Must injure the public at large. (or have possibility if injuring public) c. Statutes and ordinances may specify certain things as public nuisances d. Nuisance need not be illegal (can be legal activity and still a nuisance) 3. Requires particular damage a. A private person may recover for his own damages stemming from a public nuisance, but only if his damages are a different kind that suffered by public generally b. Magnitude of pecuniary loss irrelevant: financial amount doesn’t matter c. Injunction: don’t necessarily need special harm to get injunction C. Private Nuisance a. Nuisance – invading the use and enjoyment of land 1) Elements: a) voluntary act b) intent c) cause d) invasion of rt to use and enjoyment of land 2) Rstmt 2: a) Intentional and unreas invasion of rt to use and enjoyment OR b) Unintentional and arising our of neg or reckless conduct 3) diff b/w trespass and nuis: a) trespass – can get punitive dmgs; more direct invasion of tangible phys things; no harm required b) nuis – more indirect; must have a harm IV. Intentional Torts A. Prima facie Case 1. Act by 2. Intent a. if goal of conduct is to bring about specific consequences b. Or, if knew with substantial certainty that these consequences would result from the act. c. Need not intend the injury, but just the consequences that are basis of injury d. Minors and incompetents can have relative intent 3. Causation A. Battery 1. Voluntary act 2. Intent or substantial certainty 3. Cause 4. Harmful or offensive contact with π’s person a. Any unpermitted contact, even if not harmful b. What average person would consider offensive c. Contact can be with anything connected w/π B. Assault 1. Prima Facie Case; a. Intentional Act by b. Creating reasonable apprehension in π c. Of immediate d. Harmful or offense contact to π e. Cause 2. Apprehension a. reasonable person test: courts generally won’t protect against exaggerated fears (unless knows of phobia and plays on it) b. Not the same as fear or intimidation, more of an expectation – so can reasonable apprehend contact even if you think you can defend yourself or otherwise avoid it. c. π must be aware of act at that time, but don’t have to know who is doing it d. must have apparent ability to cause result (even if actually couldn’t; ex: unloaded gun) e. Effect of words 1) Overt act required: Words alone generally not enough because not reasonable to cause apprehension of immediate harm 2) Words and clenched fist might be enough 3) Or conditional words may be enough with act (pointing gun and saying “your money or your life”) Torts outline 16 C. False imprisonment 1. Prima Facie Case a. Voluntary Act or omission by b. Intent to confine or restrain 1) substantially certain c. cause d. That confines or retrains π to a bounded area 1) Sufficient methods a) actual or apparent physical barriers b) Physical force against π, π’s family, or π’s property c) Direct threats of force d) Failure to provide means of escape e) asserted legal authority 2) No reasonable means of escape π knows of a) Crawling through sewer not reasonable b) Hidden passage not known D. Intentional Infliction of Emotional Distress 1. Old Rule: no recovery for intellectual infliction of emotional distress w/o physical harm 2. New Rule: a. Intentional or reckless conduct (specific purpose to inflict emotional distress – or should have known severe emotional distress would result.) b. Conduct outrageous and intolerable – not frivolous suit c. Conduct caused emotional distress d. Emotional distress was severe. 3. Scott’s rule: Intentional infliction of ED + outrageous conduct a. voluntary act – extreme and outrageous conduct b. intent (or reckless – more than mere negligence) outrageous c. cause d. Severe Emotional distress 1) Proof: medical records, on prozac, ect. 4. for public figures: a. prima facie case plus actual malice E. Defenses to Intentional torts 1. Defenses (all complete bar to pf case, except private necessity is only partial) 1) Consent a) May be express or implied b) May be vitiated by misrepresentation if: i. vitiated when there is a mistake to some material, underlying fact – substantial mistake for transaction. c) Young children and mentally ill can’t consent d) must have stayed within the boundaries of the consent 2) self defense a) of harm happening or about to happen (can’t have already occurred – then retaliation) b) must have reasonable belief that defending from a tort c) defense of others: must be right about needed to defend the person (not just reasonable) 3) protection of property: never reasonable to use deadly force to defend property a) except: Posner says to balance with value of property 4) Private necessity a) Act of God b) No direct intervention by c) Property is damages and is not liable i. Ex; tie boat to dock during storm – no trespass or other tort, but still have to reimburse for damage ii. Necessity prevails over defense of property 5) Public necessity 6) Crime? Depends on jurisdiction a) courts will not assist a participant in an illegal act. (mistake might obliterate defense, or fraud and duress) Public interest protected by criminal statutes, and does not require criminals get compensation i. ex: woman sues man for battery in transferring AIDS – but unmarried at time, so affair was crime, so court will not hold man liable Torts outline 17 b) for public policy of safety and deterrence, not allow crime as defense, but instead should impose liability. 7) (insanity – not recognized by the majority; most jurisdictions say as long as can form intent to cause harm, then can be held to intentional tort 8) NOT CBN --no defense to an intentional tort. Torts outline 18 II. Defamation A. Defamation: pfodd 1. defamatory statement a. most tradition: subjects the ∏ to the hatred, contempt or ridicule of others. b. Tends to deter 3rd parties from associating with, lowers in esteem of community )restatement view) c. Loss of goodwill and confidence (reflects causing 3rd parties to be deterred. 2. statement of fact: could it be understood to be fact/can it be proven true or false? 3. publication 4. Of and concerning the ∏ 5. Damage to reputation of ∏ --Do you need proof of actual injury in a defamation case? (don’t know yet) Special damages General damages When about public figure, add: 1. Falsity and 2) Fault B. Defamatory language 1. Statement may be defamatory or not defamatory as a matter of law, but when it has more than one meaning, π must show extrinsic facts as inducement and establish the defamatory meaning by innuendo. 2. Picture, satire, or drama may also be defamation 3. Facts may always be actionable, but opinions only when appears based on defamatory facts. (more specific the statement, the more likely it will be considered a fact.) 4. An individual or a corporation or business may be defamed (remarks about honesty and integrity) 5. Traditionally: subjected to hatred, contempt, causes others to avoid C. “Of or Concerning the π” 1. π must show a reasonable person would understand defamation to refer to π 2. Colloquium: even if π not named, he may show with intrinsic evidence that reasonable people would think it meant him 3. Innuendo: using extrinsic facts (inducement) to show defamatory meaning (innuendo) 4. Group defamation: specific rules govern when defamation refers to members of group, without identifying who a. Refers to All members of small group: each member may establish defamation b. Refers to All members of a large group: No members may establish defamation c. Refers to Some members of a small group: π can recover if reasonable person could think it refered to π D. Publication: communication to a third person who understood it, either intentionally or negligently 1. Only have to intend to publish – not intend to defame 2. Each repetition of defamatory statement is a separate cause of action; but with multiply copies of same publication (books, newspapers) only one cause of action exists. 3. Who may be liable? a. Primary publisher b. Republisher (one who repeats a defamatory statement) c. Secondary – vendors, distributors – only liable if know or have reason to know (close to actual knowledge) of defamatory content 1) notice to them may give them reason to know --liability E. Damage to π’s reputation a. General and special damages 1) general damages presumed by law and need not be proven (general damage to rep) (w/exceptions below) 2) Special Damages: π must show pecuniary loss ---loss of job, inheritance, customers, or even a gratuity. . b. Libel 1) Libel is a defamatory statement in writing or other permanent form (radio and tv sometimes) 2) Damages: a) general damages presumed b) libel pers se: presumed damages: c. Slander: spoken defamation 1) if original is written, the oral repetition is still libel 2) to determine, look at: a) how permanent it s, how broad an area of dissemination Torts outline 19 b) how premeditated (scripted material is libel) 3) At c/l, had to show special damages before could get general damages 4) Slander per se (special damages presumed) a) criminal activity b) unchastity in woman c) Harm to trade or business (can’t be general statement, must specifically slander ability to do his trade or business well) d) Loathsome disease d. Traditionally, 1) Slander – spoken defamation a) must have special damages unless per se 2) Libel – written defamation (historical distinction) a) no special damages required b) now, includes radio and TC broadcast b/c of far reaching B. Falsity a. normally, even if true, statement may have c/a for intentional infliction of emotional distress, unless a public figure. C. Fault on ’s part: must show actual malice if public figure Torts outline 20 D. Defenses to Defamation 1. Truth – absolute defense 1) Does gist of it has to be true? Yes 2. Consent a. How? Can happen easily – when defamatory e-mail sent to someone and π shows to someone else “can you believe he said this about me?” b. Employment references – give former employer as reference, when employer says stealing money. 3. Conditional or qualified privilege a. Difference b/w absolute 1) Qualified privilege can be overcome by showing of malice (hatred, il-will, spite; motivation important 2) Absolute privilege – cannot be overcome, even by showing malice – motivation doesn’t matter b. Qualified: 1) Common interest: communication b/w people with same interest – recommendations, hiring committees, ect. 2) Public interest (rare and very limited) a) Police officer in duty – conditioned upon showing of absence of malice c. Fair and accurate report (qualified by showing of malice) : d. Fair Comment: criticism of literary, art, or matters of public concern and facts honestly but mistakenly believed to be true 4. Other absolute privileges a. Officials, judges, judicial proceedings, b. legislative, --public debate 1) H: in middle of debate, senator accuses another senator of being drug addict and liar under oath. AP b/c want to encourage legislators to say what they want. Constitutional matter – speech and debate clause says no member of either house shall be caused to be questioned in any other place for his speech and debate in the houses – covers any wok of leg. Office --does not cover newsletter sent out. c. Executive 1) Which get it? President, cabinet, high level federal officers, police? 2) Federal law enforcement – FBI agents. (a federal officer who is speaking w/in the orbit of his duties) 3) State officers? Absolute if higher state officials only, (only qualified for police) d. H: judge peers over bench and says to prosecutor, “witness is liar and drug addict and can’t be believed” no defamation . What if he does it b/c hated guy since childhood? Still no suit, b/c absolute privilege. Is it that important to allow judges free reign? Yes. What if lawyer says about co-counsel? No defamation, promoting adversarial system – judge has other means to control lawyers, and can control judge thru mistrial or impeachment. All parties to the action are entitled to absolute privilege (public policy) 5. Statutory – retraction 6. Libel-proof π --reputation already so bad that it couldn’t be injured anymore. (some jurisdictions allow, others don’t) E. Chart Fault Fault Damages B of proof Public officials A/m Can get presumed and punitives (b/c A/M already shown) π Must prove A/M with clear and convincing evidence (de novo) (high burden) Public figures A/m Can get presumed and punitives (b/c A/M already shown) π proves A/m C/C Private π, public matter Negl. Negl: no presumed or punis, must show actual injury ?? don’t know if C/c Hepps, new burden on π to prove falsity Private π, private matter C/l s/l?? don’t know Can get presumed and punis (greenmoss) w/o A/M ? proves true C/l No fault Depends on libel/slander Π alleges falsity/of truth Torts outline 21 III. Invasion of Privacy A. Types 1. Appropriation of π’s picture or name for ’s commercial advantage 2. Intrusion by upon π’s affairs or seclusion 3. Publication by of facts placing the π in a false light 4. Public disclosure of private facts about π by B. Appropriation 1. Prima Facie Case: unauthorized use by of π’s picture of name for ’s commercial advantage 2. Limited to advertising or promotion of product or services a. Using for own personal profit may not be sufficient – magazine story C. Intrusion on π’s affairs or seclusion 1. Prima Facie Case: a. Act or prying or intruding on the affairs or seclusion of π by 1) Must be private --puts microphone in bedroom b. Intrusion is something that would be objectionable to a reasonable person c. Intruding or prying into something private 1) W/in π’s private domain – not something done in public d. Does NOT require publication D. False Light 1. Prima Facie Case a. Publication of facts about π by placing π in false light 1) Must be publicity --requires more than publication in defamation sense (one is not enough – got to tell everybody ) b. False light is something objectionable to the reasonable person 1) Views that he does not hold 2) Actions he did not take a) This element involves falsity and may also involve defamation if falsity affects reputation 3) Objectionable to reasonable person Under the circumstances (highly offensive) c. Malice on ’s part where matter is in the public interest 1) Prohibits recovery for false light invasion for public figures on matters of public interest unless done with malice E. Public disclosure of private facts 1. Prima facie case a. Publication or public disclosure of private info about π (publicity) 1) No liability for matters of public record since these are not private 2) Liability may attach even if the facts are true b. Matter made public would be objectionable to a reasonable person 1) Highly offensive to the reasonable person 2. Constitutional privilege a. If info is legitimate public interest the publication is privileged if without malice b. Mere passage of time doesn’t end the public interest (one formerly in public eye has become public property, even if no longer in public eye) c. Absolute privilege for info from public record F. Causation – invasion must have been proximately caused by ’s conduct G. π need not prove special damages – if elements of prima facie case are present – emotional distress and mental anguish are sufficient damages. H. Basis for liability: intentional or negligent invasion – and perhaps strict liability I. Defenses to Invasion of Privacy 1. Consent: if π consented, that is a defense, but use may not exceed consent, and mistake about consent is no defense 2. Defamation defenses: absolute and qualified privileges for defamation apply to false light and public disclosure of private facts 3. Truth is not a good defense, neither are inadvertence, good faith, or lack of malice J. Right of privacy – misc. 1. Right is personal: does not extend to family members, does not survive death, and is not assignable. 2. Not applicable to corporations K. NOTE: if can’t get any of these – TRY for IIED IV. Misrepresentation A. Requires affirmative misrepresentation 1. No duty to disclose, unless Torts outline 22 a. actively concealed or prevented investigation --will be considered the equivalent of an affirmative misrepresentation b. told a half-truth or made an ambiguous statement c. fiduciary relationship b/w the parties (act, lawyer, doctor – in a position of trust) 1) doctor doesn’t tell you that sued for malpractice – duty to disclose – would a reasonable person attach significance to it? historically no duty to disclose, but for this fiduciary relationship b/w doctor and patient. d. where facts are peculiarly and exclusively within the knowledge of one party to the transaction and the other party is not in a position to discover the facts for himself. B. material fact C. Intent – 1. Scienter: A/M 2. Induce reliance D. Reliance 1. Actual 2. Justifiable E. Damages 1. Actual damages 2. Punitive damages – depending on jurisdiction I. Interference w/K Relationships (current or prospective economic relationships) A. Ct considers the line b/w Legal and Legitimate means of interfering w/someone else’s int (advertising) vs. Wrongful Interference (illegal) B. Elements: 1. Affirmative act 2. Intent to induce a br of k (must have knowledge of the k) 3. Improper – a. some cts deal w/their own intuition b. improper if 3rd party seeks out to interfere w/k c. not improper if k-ed pty approaches 3rd party C. Same prima facie case for each – only difference is 1. With current K – intent to induce breach 2. With prospective K – must be a high probability that π would have obtained the K but for your interference. D. Burden on P to show intent to induce an interference and improper means of doing so E. Policy: 1. For the tort: encourage k stability and to deter 3rd parties from providing incentives to D (contracted parties) 2. Against this tort: to protect and encourage competition 3. Don’t want to deter D from using her talents to their highest and best use F. Balance b/w societal int in promoting k stability and int in mkt capitalism 1. (if EE, not really a settled party expectation b/c EE’s are terminable at will) Torts outline 23 II. Owners and Occupiers of Land A. Off the Premises 1. Owner has a duty to exercise reasonable care in the use of its land so as to prevent injury to travelers lawfully using the highways adjacent thereto a. Includes things that come from inside D’s property onto the public areas (baseballs flying out of a ballpark) b. When D knows about the risk – show that D made adequate precautions to abate the risk of injury to others 1) Would a reasonable owner know about the risk? Boring into trees to see if they’re decayed is not what a reasonable owner usually does, especially if they own vast acreage adjacent to highways. c. Difference between things occurring naturally or things that are not natural to the land (a branch overhanging the sidewalk v. baseballs flying out of a ballpark) 1) Did D install a fence to keep the balls in? Does the public’s right to use the adjacent sidewalk outweigh the utility of the ballpark with a low fence? – e.g. artificial conditions v. naturally occurring conditions: duty is higher when it is to artificial conditions B. On the Premises 1. Trespassers: a. Duty to warn of a known danger b. Duty arises when trespasser is discovered c. In some jurisdictions owner only liable if injury is due to wanton or willful conduct (failure to use reasonable care after discovery of the trespasser) 2. Licensees a. Social guests who enter premises for companionship, diversion or entertainment b. Duty to inform of hidden dangers and refrain from wanton or willful injury c. Will depend upon if P entered a private area in a business – the back area which is private to the business owner for a private non-business related reason makes them a licensee 3. Invitees a. Those who enter to further the business interests of the owner of the premises b. Reasonable care in keeping safe premises, including protection from attacks from 3rd parties c. Often when the owner of the property operates a public business, the patrons are invitees (even if they aren’t buying anything @the time of the injury – went into the back room for a box/use the bathroom & fell into a hole)