Torts – Cochran – Spring 2007 STRICT LIABILITY – applied in cases where negligence wouldn’t work – i.e. even if these accidents were guarded against, these damages would still occur  Animal Liability – o Barnyard animals  4 rules  (1) CL – strict liability (landowner oriented)  (2) “Open Range” – liability must be based on some fault of animal owner  (3) “Fencing Out” – no liability if land owner didn’t fence animals out  (4) “Fencing In” – SL unless owner fenced in his cattle  Most states today either use FI or FO statutes o Domestic Animals – [i.e. Dogs]  Largely statutory. Some states have the “One Bite Rule” – theory that the dog gets one bite, after that, the owner is liable. The owner can’t have knowledge of the dog’s particular viciousness.  Other states impose liability for the first bite, regardless of the animal’s history. o Wild Animals –  At CL – the owner of a non-domesticated animal is subject to liability if the animal injures anyone – assuming that the damage results from the dangerous propensity of the animal  “Wild” – unfamiliar to the customs of the community  elephant would be wild in Malibu, but not in India.  Dangerous Activities o Cairns Rule –  (1) Dangerous AND  (2) Non-natural use (Odd in the area) o 1st Rest. –  (1) Risk of serious harm which cannot be eliminated w/ utmost care AND  (2) Not common usage (generally) o 2nd Rest. – balancing of factors  (1) High risk of some harm  (2) Likelihood of great harm  (3) Unable to eliminate w/ reasonable care  (4) Not common usage  (5) Inappropriate to the area  (6) Does the value to the community outweigh the danger?  Proximate Cause & SL – o P must show   (1) That this is the type of loss that inspired courts to label this SL  (2) That the loss occurred in a foreseeable manner o This is a narrower rule than negligence, but this makes sense b/c of the culpability difference b/t the 2. 1  Defenses – o Mere negligence (“contributory”) is not a defense  P can still have full recovery o AOR – complete bar to P recovery  Even applies to reasonable AOR  Remember, that it must be a known risk o There is a trend toward Comparative Responsibility (CA applies this), but still minority PRODUCTS LIABILITY – there are 3 theories that P can potentially use – 1)Negligence, 2)Warranty, 3)Strict Liability in Tort  Further, there are 3 basic types of cases – o (1) Manufacturing – a problem w/ mfg. itself o (2) Design – inherent defect in the design itself (the entire product line) o (3) Warning – improperly / insufficiently labeled w/ warning Negligence – same as last semester  P must show (1) Duty (2) Breach (3) CIF (4) PC (5) Damages  This can be difficult w/ mis-mfg. cases  likely, negligence wasn’t the cause – Π has to show a failure to exercise reasonable care – this often happens, even in the face of such care  Good for warning defect  burden of safety is very low  Advantage - culpability Warranty – main advantage here – P can recover for economic damages  BREACH (3 types of warranties) o (1) Express o (2) Implied (warranty of merchantability) – fit for the purposes for which generally used o (3) Implied warranty of fitness for a particular use  CIF  PERSONS PROTECTED o (1) Those in privity (horizontal) AND (2) (different rules)  (a) PI to buyer’s family or guests in home (MAJORITY)  (b) PI to natural persons foreseeably injured  (c) Damages (of any sort) to those foreseeably injured  NOTICE – the UCC requires that notice be given to seller regarding a breach of warranty w/in a reasonable time after the injury. There is no exception for PI, and this is a potential trap for unwary P  DAMAGES (includes personal injury to P & his property, as well as economic damages)  DISCLAIMERS o Generally these are acceptable. Can be done through “As is” clauses, etc. Courts, however, do not honor clauses that disclaim liability for personal injury, based on public policy reasons. 2  Now that we are moving toward a more SPL society, does it make sense to keep warranty? YES  (advantages) o Based on a K SOL, instead of Tort SOL (which can run faster) o Some jx haven’t adopted SPL o Warranty is the only basis where you can bring a claim for economic damages Strict Liability in Tort  Rationale behind SL – o Consumer finds it difficult to prove negligence against Mfg. – this rule is similar to res ipsa and makes it easier for P to recover o An incentive for Mfg. to make their product as safe as possible o Mfg. is in better position to protect against this harm  Risk spreading  can spread the cost among it’s consumers, and thus won’t leave the huge cost to be borne by one injured P  DEFECT  (1) Manufacturing – Π must show that the product deviated from the standard of the Mfg. o This defect must have existed when it left the Mfg. o Do NOT have to show that Mfg. acted unreasonably / dangerously, only a deviation  (2) Design – o 4 main rules in existence  (1) KEETON – basically a risk / benefit analysis. Present knowledge of such risks / benefits is imputed to the Mfg. at the time of production. “State of the Art” evidence is not permitted by D to show the knowledge at the time of production.  (2) OCE – if the ordinary consumer would not expect the product to create the risk that caused harm to P when used in an ordinary & foreseeable manner  (3) CA RULE – takes above 2 and uses that which is most favorable to P  (4) NEGLIGENCE – Risks that the D knew of at the time of Mfg. (No imputed knowledge  essentially the difference b/t this & Keeton)   The trend these days is a move toward negligence o Limitations on Design Defect  Comment i – involves products that have an inherent danger (i.e. tobacco, alcohol, etc). P cannot claim that the whole product line is defective w/o proposing an alternative design  “State of the Art” – if P presents an alternative, that product must have been technologically & economically feasible at the time of mfg. 3   Comment k – involves health / safety products. Mfg. is held to a negligence standard. This does NOT apply to mfg. defect, only to design. (3) Warning – o (1) Imputed Knowledge Test – P must show that a reasonable Mfg. would have attached a warning or attached a better warning in light of the risks known at trial o (2) Knowable Risks (CA Rule)– P must show that a reasonable Mfg. would have attached a warning / better warning in light of the risks known/ knowable by scientists at time of mfg. – not necessarily what Mfg. knew  Here, D has the burden of showing state-of-the-art as to risk at that time o (3) Negligence Standard –(majority) P must show that a reasonable Mfg. would have attached a warning / better warning in light of what the Mfg. knew / should have known at the time of mfg. o Defense here  if the danger is obvious, D can claim that no warning was needed OTHER ELEMENTS  o Cause in Fact –  w/o the defect, no injury to P  Under warning, P must show that he would have heeded a better warning, but most jx give this presumption to P o Persons Protected –  Those foreseeably injured  This differs from Negligence, in which we have a duty to all the world, but this is explained by the culpability difference b/t the two standards o Proximate Cause –  Jx basically apply the same rules as w/ negligence o Damages –  Practically all jx allow for recovery for personal injury & for injury to property other than the product  A minority of jx allow for recovery of economic loss to the product itself, and to the inferior nature of the product  Consequential loss is not recoverable in any jx (at least w/ SPL in tort) and is better resolved through warranty  Defenses  Traditional Rule (minority) o Contributory Negligence  No bar, P gets full recovery o Negligent AOR  Complete bar, P gets no recovery o Reasonable AOR  SPLIT – some say full recovery, some say no recovery  Modern Rule (majority) o Comparative Fault if P is negligent  Misuse can be a defense for Mfg, but not if the misuse is foreseeable 4 Liability to those not Mfg.  Generally, SPL is imposed on Mfg., wholesalers, retailers, and commercial lessors (at least w/ NEW PRODUCTS)  These other parties can fight for contribution / indemnity from the original Mfg.  This hasn’t been applied to used products, at least not yet  Similarly, w/ service products, SPL has not been imposed. Most of these cases involve medical treatment, though, and thus there is a comment k argument to justify this. DEFAMATION  Defamatory – a statement which would damage the P’s reputation in the eyes of an important and respectable part of the community o “Communication to a 3 rd party which tends to hold P up to hatred, contempt, ridicule, or to cause him to be shunned or avoided” o Even if the statement is not defamatory on its face, the innuendo can still be considered defamatory (i.e. – “communist party allegations”)  False Statement of Fact o Historically, truth was a defense to defamation. Now, P must prove this as an element of his claim  Some jx do not require P to show falsity if the statement is NMPC. The D can raise the defense of truth, but has the burden of proving it o Minor variations b/t truth & falsity do not give rise to a claim. There must be a significant variation b/t what was said & the truth o A reasonable reader must assume that it states a fact about the P o Philly b. Hepps – confidential sources – USSC hasn’t ruled on this issue –  Many states protect the identity of confidential sources  Some states give them no protection  Many states adopt a rule that if the publisher doesn’t reveal the source, the jury can assume that there was no confidential source o Opinions –  Generally are not actionable  Opinions which could reasonably be inferred to be based on facts are actionable  But if you state the basis for your opinion – i.e. the underlying facts - & allow the reader to determine for himself, this generally isn’t actionable  “I think…” does not automatically make a statement of opinion  Of/Concerning P – “colloquium” o Would an ordinary individual think that the statement refers to the individual P in the case? o Neiman-Marcus – the sales girls are prostitutes – the group is too big to individually affect any individual. Size of the group matters 5    The group could be small enough so that the defamation of the class would affect the individual o Fictional works that kind of portray an actual individual  A disclaimer is not an absolute defense  P could have a claim if the work would be “reasonably understood” as applying to him o You can’t defame a dead person – but implying facts about a dead person may inadvertently defame a living person – (deceased mother didn’t marry his father) Publication – the statement must be intentionally OR negligently communicated to a 3rd person who understood it o Repeating statements can constitute publication o If D is in charge of an area, failure to remove defamatory material w/in a reasonable time can constitute publication o Multiple copies of the same publication only gives rise to 1 COA – but different publishers can give rise to multiple – i.e. NY Times, Boston Globe Special Damages/Exception – P must either prove special damages (loss of financial benefit b/c someone thinks less of him), or that he fits into one of the exception categories – o English Rule  Slander per se  Imputation of Major Crime  Imputation of loathsome disease  Imputation of lack of qualification in profession  Imputation of lack of chastity of woman  Libel (written) o American Rule  Slander per se – same categories as above  Libel per se – (on its face)  Libel per quod (requiring extrinsic facts) that fits into category Sufficient Culpability Re: Falsity o We need to know two things first:  Is P a Public Figure (PUF), or a Private Figure (PRF)  PUF – can be all-purpose PUF (e.g. Prez), or a limited purpose PUF (Joe Montana)  PUF is typically identified by 2 things: o Access to the media o Assumption of the risk  Some notion of involuntary PUF – a person who has pursued a course of conduct from which it was reasonably foreseeable, at the time of conduct, that public interest would arise. Must have been a central figure in that controversy  Is statement a matter of public concern (MPC), or not (NMPC)?  Does it deal with the public at large 6   o If PUF or MPC, P must show constitutional malice – knowledge of falsity, or reckless disregard of the truth  To show reckless disregard, P has to show that D entertained serious doubts as to the statement’s validity  This is somewhat of a subjective standard, but there are some clear indicators  If the story if fabricated  If based wholly on an unverified, anonymous telephone call  Quotations – Masson – material change in meaning rule. I.e. grammatical corrections, reconstruction are likely okay. Strict interpretation is rejected o If PRC & MPC  States are split. The SC has said can’t be SL –  Most states only require P to show negligence  Some states require P to show Const. Malice o If the statement is NMPC, courts have not identified the requisite intent as to falsity  It is likely that the intent must be higher for PUF than for PRF – it could be negligence, or SL Damages & Remedies o Compensatory Damages are recoverable if EITHER:  They are proven to exist – i.e. P shows actual damages, OR  Const. Malice (jury may presume damages), OR  Statement was NMPC (jury may presume damages) o Punitive Damages are recoverable if BOTH:  P shows CL Malice (Actual Malice); AND  Const. Malice, or  NMPC DEFAMATION PRIVILEGES  Absolute Privileges – these give more protection that the Constitution gives. These cannot be defeated even if the P made a deliberate falsehood. The burden of proof here is on D. o Statements in the course of judicial proceedings (all participants) – but the statement must be relatively pertinent o Legislative Proceedings –  Legislator – no limitation (doesn’t need to be pertinent)  Witness – must be pertinent o Executive Officials – statements made in the discharge of their official duties  Major officials (cabinet) – state & fed – absolute privilege  Lower officials (e.g. policemen) –  Fed & ½ states – absolute privilege  Other states – qualified privilege – (below)  Qualified privilege – these can be defeated by P in several ways – thus you have to know when it arises, and how it can be defeated – 7 o How does this arise – burden of proof on D – judge determines if applies  Protection of publisher’s interest – e.g. to protect his own interest  Protection of 3rd party interest – if getting involved is w/in generally accepted standards of conduct  E.g. Employee theft situation in limited circumstances  Common interest if D & persons to whom conveyed  E.g. w/in religious community if relevant to community  Protecting Public Interest  E.g. report to a public official of a suspected crime o How can this be defeated – burden on P – question of fact for jury to determine  Beyond the group necessary to protect the interest  D primary motive is other than to meet the need for which privilege is give  D culpability as to falsity – SPLIT –  ½ require negligence  ½ require Const. Malice PRIVACY TORTS  Appropriation o Elements  Appropriation of P name/likeliness  Value based on P fame (some Jx Require, some don’t)  Primarily for D commercial benefit – flipside is not newsworthy  This has been slightly broadened & some courts include political purposes  Causation  Damages o This COA protects 2 distinct rights:  Right to privacy – P doesn’t want to be used in commercial sense b/c doesn’t want to be perceived in such light  Right to exploit – P wants to be the one to choose how to appropriate  Some Jx treat this as a separate COA (Right to Publicity)  Intrusion o Elements  Intrusion into the solitude, seclusion or private affairs of P  Beyond the expectations of a reasonable person o Sanders v. ABC – privacy is a relative concept o The discovered facts do not need to be of an offensive nature o This tort is violated upon the intrusion – there is not requirement of publication o There is no reasonable expectation of privacy in illegal activities  Public Disclosure of Private Facts o Elements  Public Disclosure 8    Of facts in private life of P  Highly offensive to a rx person (in shoes of P)  Not of a legitimate concern to the public o This COA – unlike intrusion – only protects private facts regarding P o The court tries to delineate b/t legitimately newsworthy & otherwise –  When the publicity ceases to be info to which the public is entitled, and becomes a morbid prying into private lives for his own sake – w/which a rx person w/ decent standards would say he had no concern  This excludes info which is a matter of public record o “Public Disclosure” – seems to mean more than publication to one person – if this person were the town gossip, however, such disclosure could be sufficient o Truth is not a defense here False Light – basically protects the P right to convey a true, personal image of himself o Elements  Public disclosure of info  Probably requires broader spread than publication  Placing P in a false light  Offensive to a rx person  Less burdensome than damaging to rep (defamatory)  Made w/ Const. Malice  No different standards of intent  Some jx (CA) – special damages/exception IIED – you can recover this in addition with these claims. The relevant issue here is that if it is a PUF, you have to show Const. Malice INTERFERENCE W/ ADVANTAGEOUS RELATIONSHIPS  Injurious Falsehood – this often overlaps w/defamation o Elements:  1) A false Statement of fact  2) Intended to damage a pecuniary interest of P  3) Publication to a 3 rd party  4) Sufficient culpability regarding falsity  5) Special damages – here these are the only damages allowed o Some jx require specific proof of expert testimony, other allow general expert testimony to that effect o This tends to protect more business interests – also, most courts won’t allow a defamation COA unless the statement directly involved P himself (i.e., not for his business) o Where Const. Malice is involved – must be shown by C & C Evidence – all claims? o A false statement of fact does not include statements comparing a product to others, so long as they are general, and do imply specific knowledge on which comparisons are based 9   o Do the same Const. protections apply? Scope here –  Bates – 1st Amend protection to lawyer advertising  Ohralik – no protection to commercial solicitation  ACLU – 1st Amend protection to political solicitation o Since a court would say that IF cases involve more financial matters, rather than political (as w/ most defamation) that they are entitled to less Const. protection  Thus, need to determine if speech is commercial/political Interference w/ K Relations (Prospective Economic Relations) o Elements  1) Improper – hardest element  Malicious Intent  Illegal Activity  2) Interference w/ K Relations (Prospective Econ.)  3) Intent to Interfere  Either a) purpose or b) knowledge to substantial certainty  4) Causing  5) Pecuniary loss (& punitive allowed) o This COA allows a contracting party, or prospective contracting party, to bring suit against a 3rd party who interferes w/ or prevents that K o Competition is okay – but if the sole motivation is malicious intent, this is improper o A reasonable & disinterested motive for the protection of other individuals is OK  For the protection of 3rd party – King Wu Tut Tut Revue Interference w/ Family Relations – most jx have abolished these COA, but they still exist in a few jx o Alienation of Affections  1)Intentionally  2)Depriving P of affections from P spouse  A few rare states will allow this COA to be brought by a child o Criminal Conversation –  Basically same elements as alienation, but P must prove intercourse o Loss of Consortium  Can be negligent. Both spouses can bring this – damages for loss of companionship & sexual relations DEFENSES GENERALLY APPLICABLE TO ALL TORTS IMMUNITIES – the policy question here is whether protecting the independence of the protected entity is worth the potential injustice to potential plaintiffs – raise this in cases where the law is undecided.  Interspousal Immunity o Majority – this is abolished o Minority – Partially abrogated in certain aspects – 10      When parties are divorced  Intentional torts  Automobile negligence  If liability insurance would cover the injury Parental Immunity o CA (& others) – completely abolished – parents can be liable in all situations, including where they fail to act as a “reasonable parent” o NY (& others) – abolished in cases where an ordinary citizen would owe a duty to another; parents cannot be held liable for violating a duty arising strictly from the parental relationship o Other states have partially abrogated the duty if –  Parent / child relationship has been terminated by death / emancipation  Intentional Torts  Automobile negligence  If liability insurance would cover the injury o The parent still maintains a right to administer reasonable discipline Charitable Immunity o Largely abolished; a small minority of jx retain Employer Immunity o An employer is immune from traditional liability for torts arising out of employment o Instead, the employer is subject to SL for torts arising out of employment, but damages are strictly limited for permanent injury to amounts designated by statute & actual lost wages – no pain & suffering o If employee can show recklessness, they might be able to recover more. Religious Immunity o Sherbert/Yoder rule – Many jx are of the general rule that a D is immune if he is acting w/in his religious beliefs. This immunity can be overcome if P can show that  A) Imposing liability protects a compelling state interest, AND  B) Liability is the least restrictive (to D religious practice) of protecting that state interests o Shunning/Public Disclosure of Private Facts  SPLIT  A) The church’s activity is protected – ED is not compelling interest  B) The church’s interest ends when member withdraws o There is generally no claim for clergy malpractice  there would b eno way to evaluate common standard & would discourage voluntary behavior o Sexual exploitation / Negligent supervision – obviously the individual member is subject to liability; the more difficult question is whether the church is also  Some jx do not allow  Others allow, based on the idea that supervision is not much different than other forms 11  o There is no immunity for negligent failure to provide medical care (Christian Science)  Many states have statutes that protect such parents from criminal liability Government Immunity o Different Functions:  Proprietary – generally on the city level – making decisions as a business would – generally liability (no immunity)  Ministerial – carrying out policy – generally liability (no immunity)  Discretionary – IMMUNITY here – 2 step judgment:  1) must be a situation where the individual has discretion  2) Must be making a policy judgment based on economic, social, or political factors o Sovereign Immunity:  City  Immune from discretionary Gov functions  Liable for Proprietary Functions, Ministerial Functions, and under §1983  State  Immune from Discretionary  Liable for Ministerial  United States – Governed by Federal Tort Claims Act (FTCA)  Immune from: o Discretionary o SL & Intentional Torts & Misrepresentation o Punitive Damages  Liable for other torts committed while performing ministerial o Public Officer Immunity:  Judges & Legislators – immune from all actions w/in the scope of office  Fed & ½ States public officers  Immune from Discretionary  Liable for BF Discretionary, Ministerial, & §1983 claims o Some Cases:  42 U.S.C. §1983 – “Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory [under cover of state law], subjects, or causes to be subjected, any citizen of the U.S. or other person w/in the jx thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”  Bivens – claim is the fed equivalent of §1983 12    Riss – no tort liability to protect individual members of the public. Could be liability, if they affirmatively took steps to protect, and then did not Delong – 911 call – operator wrote down wrong address – liability Deuser – Guy taken from carnival and dropped off, then later ran over – no liability VICARIOUS LIABILITY/RESPONDEAT SUPERIOR – The basic rule here is that employers are liable for their employees wrongs that are committed w/in the scope of their employment  Generally o There are 2 main theoretical bases for imposing liability here –  1) The idea of control by the employer over the employee  2) Enterprise Liability o In addition to the employer being VL – he may also be subject to a separate COA for his own wrongs. Coach’s hypos – 2 potential sources of liability – VL, independent employer  Employer hires drunk drive – Accident –  VL & independent negligence in hiring  Employer fails to train driver – Accident –  VL & independent negligence for failure to train  Employer trains driver, he disobeys – Accident –  VL, but likely no independent liability  Non-negligent driver – accident –  Neither – employee needs to commit a tort to impose liability on employer  Unrelated Driver – Accident – obviously neither o “Going & Coming Rule” – employer is not liable when the employee is on his way to/from work. There are exceptions to this exception – i.e. the special errand rule. o “Foreseeability test” – Bussard – if an employee endangers others w/ a risk arising from or related to work – can impute liability. Not every jx accepts this. o “Slight Deviation” – there is not abandonment of responsibility & service to an employer, unless the very character of the diversion severs the employment relationship –  Factors to show a substantial deviation:  Employee’s intent  Nature, time & place of deviation  Time consumed in deviation  Type of work for which the employee was hired  Incident acts reasonably expected by the employer  The freedom allowed the employee in performing his responsibilities  The court likely draws very technical lines here – O’Shea – employee was pulling into a service station to get an estimate on 13    his car – since still on main road, probably hadn’t deviated from his employment  Some jx still use the Frolic / Detour test – if the employee is going away from employment, to his own venture, then employer is immune. If employee is returning to employment, employer is liable. o Employers are also subject to liability for their employee’s intentional torts committed w/in the scope of their employment – if their reason for acting seems to be in furtherance of the employer’s general purpose. An intentional tort for purely personal motives does not impute liability to the employer Independent Contractors – there is no simple definition here, but an IC is one who is mainly assigned a result and left unsupervised as to his work/methods to achieve that goal o General Rule – Employers are not liable for the torts of IC o Exceptions:  Non-delegable duties – main e.g.:  Duty of Gen. Contractor to construct building safely  Duty to exercise due care when an IC is employed to do work that the employer should recognize as creating a dangerous condition if special precautions aren’t taken – (repairing brakes)  Duty of landowners to maintain the property in a safe condition  Complying w/ local safety ordinances  Apparent Authority – one who expressly/impliedly represents that another party is his agent can be held VL  Biggest e.g. is franchise system  Inherently / Intrinsically dangerous activity – if the activity involves a peculiar risk of harm that calls for more than ordinary precaution  Illegal activities Joint Enterprise – a theory that 2 or more people are in essence in a p’ship. One can be liable for the others actions assuming that certain elements are met – o An agreement, express or implied, among the members of the group o A common purpose to be carried out by the group o A common commercial interest o Equal right to control the direction of the enterprise Bailments – generally do NOT give rise to VL o Exceptions – most of which involve automobiles  Automobile consent statute – if you consent to someone using your car, it gives rise to responsibility for their actions (about ¼ states)  Family purpose – liability for family member’s use (about ½ states)  If the owner is in the car (about ½ states) 14 JOINT & SEVERABLE LIABILITY – when there is more than one individual responsible for a loss that’s been suffered, then each one is subject to liability for the entire loss. P is only entitled to one compensation, however – he can’t get double recovery  4 situations in which this can arise – o 1) 2 parties in concerted activity  E.g. street racing o 2) Violation of a common duty  E.g. repondeat superior, products liability o 3) Successive tortfeasors – where there is no basis for apportionment  You can’t tell which accident caused the loss, or the specific losses  Not all jx impose J/S liability here – traditionally, P would be out of luck b/c he couldn’t show CIF o 4) Concurrent tortfeasors – 2 people acting separately, but their negligence comes together to cause the loss that was suffered  Multiple Party Division of Damages – here’s the process: o 1) Who caused the injury? Can you separate? Apportion fault? Was P negligent? o 2) How much are your total damages? o 3) Apply comparative fault (if applicable) o 4) Take the remaining amount & apply one of these rules:  A) J/S liability – pro rata  B) J/S liability – comparative contribution  C) Uniform Comparative Fault Act (UCFA)  Basically the same as (B), until one can’t pay –  Take the amount that D2 can’t pay and apportion it b/t D1 & P – relative to their comparative fault  D) Abolish J/S – liability as to their fault alone  E) Prop 51 (CA)  J/S liability as to the sum of D fault based share of economic damages  Each D bears own fault-based share of non-economic damages  Indemnity – 1 D can be completely reimbursed by another. 4 situations: o 1) Express indemnity clause – e.g. b/t mfg. & retailer o 2) VL – (employee is subject to liability to employer for full amount of the loss) o 3) Products liability – e.g. if retailer paid full amount, he can be indemnified by mfg. o 4) In malfeasance / nonfeasance situation – the actively negligent party should indemnify the passively negligent party o The current trend is strongly away from indemnity, and is moving towards comparative responsibility DAMAGES 15   Nominal damages – a very small amount of damages which allows a party to say that they won the lawsuit. Can have implications elsewhere, particularly allowing them to recover court costs. Compensatory Damages – the goal here is to make the P whole – or at least as whole as possible w/ $$ o Attempts to be the equivalent of the loss or harm suffered by P – to put P in the position he was in before the tort occurred o Tort damages are not subject to Federal Income Tax o Personal Injuries  Different elements recoverable   (a) Past physical & mental pain  (b) Past medical expenses  (c) Future physical & mental pain  (d) Future medical expenses  (e) Loss of earning capacity  (f) Lost wages  (g) Permanent disability & disfigurement  (h) Hedonic damages – (loss of pleasure, etc.)  W/ future earnings, take into account costs for inflation, and reduction to present value to calculate payments. JX do different things  Some jx go through the whole calculation  Others combine & come up w/ one “interest rate”  Still others just disregard 2 categories b/c they set each other off  Collateral Source Rule – basically says that it doesn’t matter if P is recovering from another source (i.e. insurance company) – this is not to be considered by the jury when calculating the amount the D owes.  In some cases, this winds up being a “double recovery” for P – however, many insurance companies include subrogation clauses which allow them to recover part of P’s judgment  Duty to Mitigate – once P has suffered damages, he must exercise reasonable care to avoid future damages  What if P has to get an operation to mitigate? – the test is whether a reasonable person would have had the operation o Personal Property  3 basic situations –  (1) Property is destroyed, or converted – Π can recover the entire value of the property at the time of the tort  (2) Property is damaged – Π can recover the difference b/t FMV before the tort, and FMV after 16  (3) Deprivation of use – Π is entitled to recover the reasonable rental value of the property for the deprivation period  Typically, FMV is calculated on an objective basis. Occasionally, if the property has extreme sentimental value to Π he may be able to recover it’s subjective worth to him. Punitive Damages (recognized in 40 jx) o Intentional torts –  Generally permitted – assuming torts that are committed w/ “malice”  There are situations where absence of ill will bars recovery of punitives – e.g. inadvertent trespass to land o Negligence / SL Torts  Generally, punitives are not allowed here –  Could be allowed if the conduct involves a “reckless disregard for the rights of others,” or “willful misconduct” or “wantonness”  W/defects  show actual knowledge of the defect, and a conscious disregard for the foreseeable harm which could result o The USSC tried to protect against outrageous punitive awards, by invoking a violation of the due process clause in State Farm v. Campbell – laid out three factors to be used by judges in reviewing punitive awards   1) Degree of reprehensibility of D’s misconduct  2) Disparity b/t actual & potential harm suffered by P & award  3) Difference b/t award & civil penalties authorized/imposed in similar cases o While a judgment for compensatory damages in dischargeable through bankruptcy proceedings, a punitive judgment is not  DAMAGE STATUTES –  Wrongful Death Statute – this compensates the dependants of the decedent o Brought by – Decedent’s personal representative (i.e. executor of will o Who gets paid?  Dependents listed in statute – pretty much always spouse & children  Most jx allow siblings & parents –  Parent’s damages are the monetary value that parents could expect to receive from children, minus the cost of supporting them  usually nothing  A few jx allow for stepchildren o Damages –  Expected financial benefit, value of expected services  Companionship (in some) and Grief (in a few) o The creditors of decedent CANNOT recover here o D can raise defenses of fault of decedent & of dependents o SOL begins to run at the time of death 17  Survival Statute – this compensates for the decedent himself – allows for claims brought by decedent, or his estate – also now allows claims to be brought against a deceased D estate  “I think…” does not automatically make a statement an opinion o Brought by – decedent’s personal representative o Who gets paid  the estate  Through the will, if there is one  Those listed in statute, if there is no will o Damages  same as in ordinary torts suits o Creditors of decedent CAN recover o The only defense that D can raise is the fault of decedent – NOT dependents o SOL begins to run at the time of the injury 18