GOALS OF TORTS

1. Compensation
2. Deterrence – OPTIMAL
3. Fairness/Justice
4. Economic (overlaps)
5. Judicial Administration
6. History/Precedent

Fletcher v. Rylands
Responsible to keeping something that is likely to cause mischief
Unless act of God or P interferes
Cattle is a known danger, reservoir is not
Traffic – P assumes risk when going into the world

Rylands v. Fletcher
Responsible for natural damages from non-traditional use – FOCUS ON USE

Losee v. Buchanan
No strict liability – development trumps

Abnormally Dangerous (p 519) – Restatements 2nd

1. existence of high degree of risk of some harm to the person, land or chattels of
others
2. Likelihood that the harm that results from it is great
3. Inability to eliminate the risk by exercise of reasonable harm
4. extent to which the activity is not a matter of common interest
5. Inappropriateness of the activity to the place where it is carried on
6. Extent to which its value to the community is outweighed by its dangerous
attributes

Indiana Harbor Belt v. American Cyanamid

Used above test – negligence does not work, can’t determine who was negligent
Shifting to strict scrutiny would not reduce the risk any more than negligence

Posner - different starting point than R2

Negligence unless Negligence can’t create reduced risk
NEGLIGENCE = DEFAULT
If negligence is sufficient, go no farther

SUMMARY
Negligence - liability when Avoidance < Accident
Strict Liability – liability even when Avoidance > Accident

6 factors boil down to danger and common

If danger is high and not common – Strict Liability
PRODUCTS LIABILITY
MacPherson v. Buick
Still had to have privity
More dangerous the more there is need for expanded liability

DUTY on manufacturer – manufacture carefully (optimal deterrence)

If dangerous must manufacture to avoid all probably danger
Had knowledge product would be used by others than purchaser
GOT RID OF PRIVITY REQUIREMENT

Escola v. Coca Cola Bottling of Fresno

Accident would not have occurred with due care by bottling company
RES IPSA CASE

Traynor – Not Res Ipsa – Strict liability

Negligence is not enough
Compensation, cost spreading, and DETERRENCE all better served with
Strict Liability
Force manufacturer to go beyond avoidance > accident (optimal
deterrence)
NOT FROM CASE
Strict liability – more cases because it is easier to prove (judicial administration)
Compensate innocent P easier
STILL HAVE CAUSATION ISSUE – not absolute liability

ELEMENTS OF PRODUCTS LIABILITY

1. Commercial Seller
2. Sells Product
3. That is Defective/Unreasonably Dangerous
4. And Causes Physical Harm
5. To Ultimate User or Consumer
6. With No Substantial Change in Condition of Product

2 Tests
1. Consumer Expectation
a. What an ordinary consumer expects when product used in a
foreseeable manner
2. Risk Utility – like BPL
a. Risk of design outweighs benefit
b. Barker Test
I. Gravity of the danger posed by the challenged design
 II. Likelihood that such danger would occur
III. Mechanical feasibility of safer alternative design
IV. Financial cost of improved design
V. Adverse consequences to the product and to the consumer
that would result from alternative design
Not many Jurisdictions use Consumer Expectation
Risk Utility – burden is on Defendant – P shows reasonable alt. design. – D has to prove
it is not

Comacho v. Honda
Crashworthiness doctrine – Reasonable care to minimize injurious effects of foreseeable
collision

ORTHO TEST FOR RISK UTILITY (looks at P’s action)

1. Usefulness and desirability of the product – its utility to the user and public as a
whole
2. Safety aspects of the product – likelihood that it will cause injury and the
probably seriousness of the injury
3. availability of a substitute product which would meet the same need and not be as
unsafe
4. Manufacturer’s ability to eliminate unsafe character of the product without
impairing its usefulness or making it too expensive to maintain its utility
5. User’s ability to avoid danger by exercise of care in the use of the product
6. User’s anticipated awareness of the dangers inherent in the product and their
avoidability because of general public knowledge of the obvious condition of the
product, or the existence of suitable warnings or instructions
7. Feasibility, on the part of the manufacturer, of spreading the loss by setting the
price of the product or carrying liability insurance

FAILURE TO WARN
Is there a duty to warn in the first place?
Hood v. Ryobi
Warning must be reasonable under the circumstances
Benefit of more detailed warning outweigh the cost of it
Impact on consumer – dilute other warnings

Pitman v. Upjohn
Warning must be
1. Adequate to warn of scope of danger
2. Reasonably communicate extent or seriousness of the harm that could result from
misuse
3. Have physical aspects adequate to alert a reasonable person to the danger
a. Simple directive warning may be inadequate when it when it fails to
indicate the consequences that might result from failure to follow
4. Adequate in terms of means to convey the warning
 1. Scope
2. Extent/Seriousness
3. Physical Aspects
4. Simple Enough (maybe)
5. Adequate Means

Moran v. Faberge
Warning must reach foreseeable user

Heeding presumption
To get around must show user would not have heeded an adequate warning – D
has burden of proof

Sometimes damages go beyond intended foreseeable users – liability not extended

indefinitely

If misuse is reasonably foreseeable – claim can proceed

Edwards v. Bagel Pharmaceuticals

LEARNED INTERMEDIARY LIABILITY – exception to duty to warn
GA uses this exception
P611

Vassallo v. Baxter Healthcare Corp.

Hindsight test v. State of Art test
State of Art – induce conduct capable of being performed
Lets industry set own standard

SUMMARY
Any warning needed at all?
Must be Reasonable Under the Circumstances
Reasonable Warning Standards
Causation needed
Product does not have to warn all users – just foreseeable ones
Misuse is not a complete defense
Failure to warn when risk unknown at time
Reasonable Standard – what was known at the time
Subsequent remedial evidence
Find risk – incentive to warn and not hide

GM v. Sanchez
No duty to discover and protect against product defect
Disclaimers don’t work well
Does not bar or reduce product liability
Avoids denying everything and that is that
Assumption of Risk – viable if P knew risk and was unreasonable to continue to use
product

Jones v. Ryobi
Manufacturer not liable if modification by 3rd party makes it unsafe even if unforeseeable

Liriano v. Hobart
Workers’ Comp does not cover pain and suffering – can’t sue employer so sue
manufacturer

Subsequent modification made it defective but D recovers

CT spit on assumption of Risk

Royer v. CMC
Manufacturer bankrupt so sues retailer
Retailer not seller – more reluctant to impose strict liability to retailers than to
manufacturers

East River Steamship v. Transamerica Delaval Inc.

SOL for torts shorter than for contracts
Torts – 3 years from injury

TRESPASS
Martin v. Reynolds
Harm does not matter – like strict liability but must have INTENT
No reasonable effort
Trespass more P friendly (nuisance more D friendly)
Longer SOL
Don’t have to prove harm

ELEMENTS
1. Voluntary Act
2. Intent
3. Causation
4. Result or Consequences

Modern view
1. Intentional
2. Unintentional
a. Resulting from reckless of negligent conduct or from abnormally
dangerous activities
i. Liability only if there is harm

PUBLIC NUISANCE
Most states – no more common law nuisance – no statutory
Unreasonable interference with a right common to the public
MUST PROVE
1. Unreasonable, substantial interference
2. D did not take reasonable measures to eliminate nuisance

Violations against state – state should enforce

Individual must show
1. Standing
2. Special Injury
a. Different in type not degree (amount)
b. Don’t have to be only one just has to be a small group
i. Goal – keep # P small

PRIVATE NUISANCE
Invasion of another person of land that is:
1. Intentional and unreasonable
a. Prove intent
i. Knowledge
ii. Substantial certainty
iii. INTENT TO DO THE ACT NOT TO BRING THE EFFECT
b. Substantial certainty
2. Gravity of harm v. utility of conduct
a. Gravity of harm (Section 827)
i. Extent of harm involved
ii. Character of the harm involved
iii. Social value that the law attached to the type of use or enjoyment
invaded
iv. Suitability of the particular use or enjoyment invaded to the
character of the locality
v. Burden on person harmed of invading the harm
b. Utility of the Conduct (Section 828)
i. Social value that law attaches to the primary purpose of the
conduct
ii. Suitability of the conduct to the character of the locality
iii. Impracticability of preventing or avoiding the intrusion
LARGE HARM and D can pay – have a claim

Boomer v. Atlantic Cement

Move from mandatory injunction to payment for permanent damages
Injunction until paid
Garratt v. Dailey
Motive does not matter, intent does
Harmful contact (Reasonable person standard)
Does not have to be direct or bodily

ASSAULT
ELEMENTS
Intentional act by force of threat of force that causes imminent fear or apprehension
1. Act by force or threat of force
2. Intent
3. Causation
4. Result
a. Imminent fear or apprehension in Reasonable person
i. Does not matter in size
ii. Does not have to be fear
Conditional threat is typically not enough unless you give up your legal rights
Can’t be asked to give up your legal rights

BATTERY
ELEMENTS
Intentional infliction of an offensive or harmful contact
1. Voluntary Act
2. Intent
3. Causation
4. Result in harmful conduct or offensive contact
Social ignorance is not an excuse
TRANSFERRED INTENT APPLIES

FALSE IMPRISONMENT
ELEMENTS
Intentional involuntary confinement
1. Involuntary confinement or restraint
2. Intent
3. Causation
Can be unaware but have physical evidence (some jurisdiction)
Conviction is a defense
False arrest claim + conviction = defense
Ok if confine for reasonable time, in a reasonable manner, with belief and no time to get
police

INTENTIONAL INFLICTION OF
EMOTIONAL DISTRESS
ELEMENTS
1. Reckless/Voluntary Act
a. Extreme and outrageous conduct
2. Intent – Objective Standard
3. Causation
 4. Consequence – Subjective Standard
a. Severe Emotional Distress
i. Goes to damages not liability

INTENTIONAL TORTS
Motive does not matter
Transferred Intent

SELF- DEFENSE
Can use when a reasonable person believe force is necessary to protect against battery
Can use reasonable force under the circumstances to protect against threatened
battery
Insults are not threats
DUTY TO RETREAT
Most jurisdictions – no duty to retreat
Restatements – duty to retreat if your force could cause serious injury

Defending Property – Katko v. Briney

Con use whatever non deadly force is reasonably necessary under the circumstances

DEFAMATION
Hustler v Falwell
Common law – no severe emotional distress
Public figures – different Standard
Must prove false statement of fact and malice
Wants to protect political debate
Fear Jury would side if they like or dislike the piece of speech
DEFENSES
2 types - Express and Implied
Hackbart v. Cincinnati Bengals
Consented to being hit
Scope limited – hits within the rules
Usually don’t get consent from unconscious person

Romaine v. Kallinger
Reasonable person of Ordinary intelligence

ELEMENTS
1. Defamatory
2. Statement of facts
3. Of and concerning P
a. Does not have to be aimed at P just reference
4. Published
 a. 3rd party receives and understands as defamatory
5. Damages/Harm

Look at size of group

Must be small, definable group (Neiman Marcus)
No precise number
If more of group sues, better chances

Was strict liability at common law

Reputation can’t be restored
No way to be made whole
Doesn’t make sense to prove harm/intent

Special – lost damages

General – loss to reputation (loss of relationships, etc)

CT can rule as matter of law when can only be interpreted one way

Libel
Don’t have to prove special damages
More permanent since it is in print
Special Damages Presumed
Slander
Must prove special damages unless
Slander per se
1. Loathsome disease
2. Charge P with Serious Crime
3. Harm to business or trade
4. Unchastity

PRIVILEGES
Absolute privilege - anything where people will have to monitor what they are saying
rather than advancing

Types of Qualified Privilege

Common interest – if both have interest in subject then qualified privilege in making
statement
Fair and accurate report – if fair and accurate report on an official government document
or proceedings even if defamatory
Reasons – public supervision, Public right to know what is going on
Overcome if not fair and accurate or published for sole reason to cause
harm

Can get around qualified privilege by proving malice

RETRACTION – depends on how timely
Size and manner are elements to see if it is a sufficient retraction
MIGHT mitigate damages – might avoid punitive
Might help prove absence of malice
Not a complete defense

Libel proof P – P with such low reputation can’t go any lower – some jurisdictions

Most of the time ISP have immunity under CDA (Carafano v. Metrosplash.com)
Still in question when we pull away veil of anonymity

NY Times v. Sullivan
Public official can’t get damages for civil libel without “actual malice”
Actual malice - “Knowledge of reckless disregard”
Common Law Malice – ill will

Actual Malice
1. Actual malice
2. convincing clarity – standard to prove actual malice
Puts huge premium on freedom of speech and freedom of the press

DEFENSES
CONTEXT IS IMPORTANT
Consent – No implied consent because effects are beneficial
Scope of consent is limited – don’t consent to all torts

Self-defense – Reasonable force to defend against threatened battery

What appears to be necessary
Verbal insults not enough to trigger
Not necessary to retreat – but is in some jurisdictions and MPC

Defense of Property – non-lethal force reasonable to defend

Privilege to Repossess – Owner dispossessed of property can use reasonable force to

recover property immediately after dispossession of property

Necessity
Public – public official act to avoid greater harm
Private – can take reasonable steps to avoid damages but must pay to make P
whole
Big in trespass – no trespass claim but must pay for damages

Truth – defense for defamation – minor discrepancies ok

Common Interest Privilege - – if both have interest in subject then qualified privilege in
making statement
Fair Comment – if honestly and accurately describes the facts (ex. movie critic)

Fair and Accurate Report – if fair and accurate report on an official government
document or proceedings even if defamatory

Government Liability
Section 1983 against State and Local
Bivens against Fed
Gov liable for intentional torts
MUST PROVE:
1. Person subject P to conduct under color of (state) law
2. Conduct deprived P of rights under Fed law or Constitution
a. Not every Fed law establishes a Fed right
b. Must establish violation of a Fed right

Immunity
Absolute – State legislature engaged in legislative functions, judges in judicial function,
witnesses, etc
Qualified – most state and local officials that don’t have absolute immunity have
qualified immunity
Usually really broad – takes a lot to deny qualified immunity
Standard = arguable reasonable suspicion

Alien Tort Claim Act

Covers tort committed in violation of law of nations or treaty of US
Revived in late 1970s
Used for individuals suing state officials from crimes in their home country (p
898)

Public Officials
Public official – nature and extent of individual’s involvement in controversy giving rise
to defamation

Public officials – actual malice – actual and punitive – clear and convincing

Public figure – actual malice – actual and punitive – clear and convincing

Private person w Media D – Negligence – actual, punitive (if actual malice) –

Preponderance of evidence

Private person w Private D – Not answered – Common law of libel and slander –
Jurisdictional
 Three Tests
1. Actual malice for all
2. Negligence for all
3. Rosenbloom – Private person in matters of public concern – actual malice;
Private person in private matter – negligence

There is an involuntary public figure

Public Official – must be about fitness for job or official capacity for the standard

PRESS DEFENSES
Commentator – Like fair comment
Opinion v. Fact
1. Look at specific language
2. Verifiability
3. Full context
4. Broader Social Context (type of magazine, etc)
Repeater – like fair and accurate
Some jurisdictions – not privilege – goes to fault

Don’t want to open floodgates – no protection for opinion

Protection already exists – Hepps (p1069)

PRIVACY TORTS
1. Public Disclosure of Private Fact
a. Publicity
b. Private Facts
i. Look for intimate details
c. Highly Offensive to Reasonable Person
i. Not just embarrassing, must be deeply shocking
d. Not of Legitimate Public Interest
2. Breach of Confidence
a. Straight forward
b. Identify who has right to confidentiality
3. False Light
a. Publication
b. False Facts
c. Reasonable Person would object to
i. Highly offensive to reasonable person
d. Actual Malice (public figures/officials)
i. Still question if private individuals need to establish actual malice
4. Intrusion
a. Intrusion into a private place, conversation or matter that a reasonable
person would find offensive
5. Appropriation
a. Invasion of Privacy for own use or benefit
 i. Celebrities controlling name
DAMAGES FOR INVASION OF PRIVACY
Punitive
Mental Distress/Anguish
Harm to Privacy Interest/Reputational Harm
Special Damages you can prove

Privileges
Consent
Fair and accurate
Fair comment
Absolute privileges