TORTS:WEEMS

One Call Thats All WRONGFUL DEATH

SPRING 2010

A. 2 Part Test 1. Interest protected? Interest of person not to be killed 2. Basis of liability any culpable conduct (negligence, intentional, SL) B. Common Law: 2 Rules 1. Tort action failed (abated) if either party died prior to final judgment -only applicable to torts (not Ks) 2. No action for wrongful death available -couldnt place value on life -this was changed by Lord Campbells Act which led to survival statutes C. Survival 1. Survival Statutes Cause of Action SurvivesAll states have statute that allows cause of action whether either party is living or dead (no abatement) a. Majority Party must be survived by statutory beneficiary who was financially dependent on deceased or no cause of action exists *also majority for wrongful death actions (Lord Camp. Acts) b. Minority (MS) Any time Ds wrongful act causes injury, the action is available by personal representative of estate 2. MS Survival Statutes a. Allow cause of action for personal injury suffered by deceased during his lifetime.but NOT for wrongful death! *wrongful death actions must be brought under that statute and the injuries must have actually caused the death.ex-smoking case *so. if any doubt as to causation, plaintiff should file action under BOTH survival statute and wrongful death (which allows more recovery) b. The action must be brought by the personal representative of the estate c. If either party dies before final judgment then the personal representatives of that party shall defend or prosecute such cause of action (after filed) d. Damages include all types of general damages (pain and suffering and disability up to point of death, loss of income, medical expenses) MS has SOL D. MS 11-7-13 Wrongful Death Statute 1. Allows recovery for ANY act that if it had merely injured plaintiff he would have had cause of action even though it caused wrongful death ex) negligence, intentional tort, strict liability, breach of warranty 2. Act must be both but-for and proximate cause of death to recover under this statute!! May recover under survival statute if not actual cause of death though?? 3. SOL begins to run at the date of death and correlate with the type of action being brought..ex) intentional conduct=1yr negligence=3yrs 2. Who can bring a wrongful death action?
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a. Group 1 Spouse and Children all in this group split damages if alive b. Group 2 Parents and Siblings and in some cases, nieces and nephews if their parents predeceased them if no one in group 1, then all in this group split damages If no one in group 1 or 2 then personal representative can maintain action and damages will go to estate c. Half sibling entitled to same share as full sibling d. Illegitimate and adopted children also share evenly f. Unborn Children suit can be brought provided it is viable at time of death (Quick with Child) g. Only one cause of action may be brought.all parties must be joined *Miss. wrongful death statute is NOT a Lord Campbells statute as it does NOT restrict recovery to designated beneficiaries who are financially dependent on decedent; Miss. statute allows personal representative of estate to bring wrongful death action on behalf of estate (no notecard) E. Damages Medical Expenses Pain and Suffering of Decedentonly if not killed instantly Loss of Society and Companionshipof each family member Property Damageif applicable Funeral Expenses Value of Decedents Work Expectancyreduced to PV by calculating inflation and discount rate NO recovery of Hedonic Damages allowed!! (enjoyment of life) F. Defenses 1. Wrongful death is a derivative cause of action any defense that could be raised in original cause of action can be brought in wrongful death action A has a survival action against B and A dies before going to trial. Bs wrongful act was not the cause of As death. If the SOL has not run, after As death, his person representative can bring the lawsuit or continue one A started. If successful then the personal representative can recover the damages A suffered caused by Bs wrongful death up to As death. The proceeds go into As estate. INTENTIONAL TORTS Introduction I. Two part test to identify a proper TYPE of tort Cause of Action: Ask for Each Tort What interest does this cause of action serve to protect? What kind of conduct does the cause of action serve to prevent? -Intentional conduct -Negligent conduct.....unintentional conduct -Strict liability II. Plaintiff must prove 2 things in ALL intentional tort cases: 1. That a protected interest has been violated 2. Violation of protected interest was done intentionally2 Ways below

Assaultcreated to protect the interest to be free from fear of an imminent, harmful or offensive contact. Batterycreated to protect the interest to be free from harmful or offensive touching of the person (contacts with the body). It protects this interest from intentional conduct. A question to ask is whether the violation was done intentionally? Negligence COA invented to protect the interest from personal harm. Designed to prevent negligent conduct. GENERAL A. Intent: May be Proven in 2 Ways 1. Defendants purpose of act was to cause invasion of protected interest, or 2. Defendant had knowledge that invasion of protected interest was substantially certain to occur following his act not absolute certainty Substantially certain= something is going to happen unless some intervening force stops it; more than a serious risk the event will occur Defendant must have actual knowledge that events will occur in order to have done it intentionally..opposed to negligence RPP/objective Mere knowledge and appreciation of a risk does NOT equal intentional conduct unless substantial certainty present Ultimately, the s conduct must have been unlawful or without legal justification but has no burden to prove this (D proves was lawful) Driving to Jackson 120 mph is not intent. It is reckless and negligent. The intent must be to invade the protected interest. *Note: a minor may possess intent and thereby be liable for an intentional tort but age will be material in regards to knowledge and experience of actor *Note: in MS employees may only sue employers for intentional torts ONLY if it was employers purpose to cause injury (sub. certainty is NOT enough) 3. Negligence v. SOL is 3 yrs. *proximate cause narrow employee cant sue employer *contr. negligence a defense *punitive damages harder no nominal damages Intentional Conduct SOL is 1yr. proximate cause broader can sue if purposeful conduct NO contr. negligence defense punitive damages more likely nominal damages awarded (ex-trespass)

*Negligence involves a foreseeable risk that can be either known or unknown to whereas intentional torts require actual knowledge of a known danger that is either intended or substantially certain to occur difference is a matter of degree 4. Mistake NOT A DEFENSE
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a. mistake as to ID of person or property does NOT negate intent b. Ex) trespass on land defendant thought he owned or cutting wrong timber 5. Insanity NOT A DEFESNSE a. Insane people are liable for their intentional actions (same as negligence) provided that plaintiff is able to prove requisite intent b. Policy reasons: Same as negligence - Encourage those with interest in estate to care for insane persons - Prevent fraud and difficulty in proving insanity c. Voluntary intoxication also does not vitiate intent 6. Transferred Intent 2 Part Test 1. D must have intended to invade interest of ONE party 2. D must have had no right to invade interests of ANY party; then D is liable to whomever interest he invaded. ONLY applies to 5 intentional torts in Trespass Writ of Common Law: 1. Battery 2. Assault 3. False Imprisonment 4. Trespass to Land 5. Trespass to Chattels *so Defendant must intend and accomplish one of 5 for doctrine to apply BATTERY A. 2 Part Test (Ps burden or proof) 1. Interest Protected? Protects right of person to be free from harmful or offensive contacts with the body or something attached to the body. 2. Basis of Liability? Intentional conduct B. In order to make out prima facie case, P must prove: 1. Ds act caused harmful or offensive contact 2. D acted intentionally: -purpose was to cause contact or done with a willful or unlawful purpose OR - Knowledge that such contact was substantially certain to occur 3. Act was the proximate cause of injuries..ALWAYS! Cause in fact Legal cause 4. Damages occurred C. Harmful or offensive conduct 1. Physical contact not required. Battery includes touching of anything attached to the body (ex- clothing, plate in hand, cane)(but words alone not enough) 2. Plaintiff does NOT have to be conscious of the act at the time! (unlike assault) 1. Absence of consent is required 2. Consent will be assumed if contact is customary or reasonable (ex-tap on arm) D. Ordinary Sensibilities Test 1. Unless the D has reason to believe otherwise, the test is would the contact be harmful or offensive to a person of ordinary sensibilities - NO hypersensitivity allowed..unless D has special knowledge of such E. Damages
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1. Eggshell Rule D is still liable for unforeseeable resulting injuries so long as the D intended the offensive contact 3. Emotional Distress P does NOT have to prove a physical injury as a result of emotional distress to recover; also can recover for pain and suffering. (See page 37 of the Fisher case). ASSAULT A. 2 Part Test Weems hasnt said anything about a 2 part test yet. 1. Interest Protected? Right of person to be free from reasonable fear of imminent harmful or offensive contact with the body (battery). Talk about future conduct is not enough. 2. Basis of Liability? Intentional conduct B. Prima Facie Case 1. Ds act caused P to be in reasonable fear of imminent harmful or offensive conduct 2. D acted intentionally Intended or Substantial Certainty that P. would be put in position 3. Act was the proximate cause of injuriescause in fact and legal cause 4. Damages occurred damages are purely emotional distress! C. Fear of Imminent Battery (See Western Union case on pp 38) 1. Consciousness Required P must be aware of the conduct for an assault 2. Imminent Fear must be imminent to RPP; future threats are NOT enough! 3. Reasonable Objective conduct must be such that an ordinary reasonable person would perceive fear of imminent contact (ordinary sensibility test) Question for jury usually 4. Words Alone Traditional Rule- words alone not enough.must be some overt act Modern Rule some courts do not require overt act and allow action 5. It is not required that the D has the actual ability to carry out the threatened contact so long as a RPP would think that he can (ex-pointing unloaded gun) 6. Assault and Battery in civil law are two separate actions (unlike criminal law) so you can have an assault without a battery and vice versa Damages recoverable for assault are emotional distress. The P. has to be conscious of the assault. Every battery does not include an assault, most do. If her back was turned and he hit her, there would be battery with no assault. Assault and battery are two separate causes of action. It is true that often times when you have battery, you also have assault. FALSE IMPRISONMENT A. 2 Part Test 1. Interest Protected? Right of person to be free from confinement against ones will. There is no precise definition of confinement. Even leaving town. 2. Basis of Liability? Intentional conduct B. Prima Facie Case (elements)
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1. Ds act caused P to be confined against his will 2. D acted intentionallyaccidental confinement is NOT enough Intended to confine or was Substantially Certain to confine 3. Act was the proximate cause of injuries 4. Damages occurred Mental Distress 5. The P. must know that they were confined to C. Confinement restricting a person from leaving a certain area at all (does NOT include preventing a person from going in a particular direction) *direct restraint of the physical liberty of another w/out justification 1. P must be aware of confinement.consciousness is required! -can be intoxicated and still conscious or not even remember confinement 2. Must be against persons will.P cannot voluntarily be confined Voluntary can change to involuntary if person is not allowed to leave Denying person of reasonable means to exit is False Imprisonment 3. P must have no reasonable means of escape in order for confinement 4. Must be a threat of force.implicit or explicit (but future threats not enough) 5. Can restrain someone physically, by threat of force, or by keeping his or her personal property (hard to prove) 6. False arrest term for false imprisonment by a police officer when one is taken into custody by a person who does not have legal authority to do so *Affirmative Defense/Privilege = having lawful reason to do so INTENTIONAL INFLICTION OF SEVERE EMOTIONAL DISTRESS A. 2 Part Test 1. Interest Protected? Right of person to be free from severe emotional distress 2. Basis of Liability? Intentional conduct Note: emotional distress have evolved into a separate cause of action itself B. Prima Facie Case 4 Elements P must prove: 1. Conduct must be intentional OR reckless Note: reckless is added here by Restatement but most courts disregard this as intentional and even sub. certainty requires higher culpability than reckless * If conduct IS directed at the P, then for conduct to be intentional: 1. Purpose is to cause severe emotional distress 2. Act was done with knowledge that severe emotional distress is substantially certain to follow *If conduct is NOT directed at the P, then for conduct to be intentional: 1. Conduct must be done with the plaintiff present (saw it or heard it) 2. must have knowledge that the plaintiff was present AND 3. P must suffer bodily injury themselves OR conduct must have been directed at their nuclear family 2. Conduct must be extreme and outrageous if conduct exceeds all bounds tolerated by a decent society Note: this ONLY applies to private s..public standard below if conduct involves a publication
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3. Causal connection between the wrongful conduct and emotional distress 4. Emotional distress must be SEVERE to even allow recovery at all -so severe that no reasonable person could be expected to endure it C. Distinguish: Intentional v. Negligent 1. Intentional emotional distress requires NO physical injuryjust must be severe -although E.D. damages for other intentional torts need not be severe 2. Negligent emotional distress requires a medically cognizable physical injury C. Plaintiffs subjective sensibilities are relevant and may be a factor; even if the plaintiff is hypersensitive.. Ds knowledge of such will also be a factor Note: If a public official brings an action for emotional distress and the conduct involves a publication of fact, then must prove the publication was done with knowledge of falsity or reckless disregard.opinions cannot be basis of action TRESPASS TO LAND A. 2 Part Test 1. Interest Protected? Right of person to exclusive possession of real property *unauthorized entry onto anothers landby person or some thing 2. Basis of Liability? Intentional conduct No such thing as negligence trespasssimply a negligence claim in which actual damages must be proven. Negligence requires damages *No actual damages required for trespass action nominal damages are recoverable so P can assert rights.to quiet title or action for ejectment B. Contrast: Nuisance v. Trespass Difference is the RIGHT that is being interfered with to determine which action lies; right to exclusive possession v. right to the use and enjoyment B. Trespass must be committed by a tangible mass coming onto landmust be a physical invasion of property (traditional rule that has become more flexible) 1. Airborne particles must accumulate on land and do not dissipate for trespass 2. Can only recover if actual damages are shown in regards to airborne particles 3. Nuisance if airborne particles quickly dissipate or simply pass through C. Change in status A person or things status on the land can change (go from non-trespass to trespass based on time, space, or purpose of invitation) -if person or thing exceeds the scope of the invitation -ex) continuing trespass of thing OR person stays past closing time D. Areas above and below land 1. Airspace Trespass protects airspace within the immediate reaches of the land .actual portion that plaintiff can be make use of 3. May have trespass below the surface as well E. Consent must common affirmative defense/privilege for intentional torts TRESPASS TO CHATTELS statutory cause of action A. 2 Part Test 1. Interests Protected?
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 Right of person not to have his personal property damaged Right of person not to be deprived of use of the chattel 2. Basis of Liability? Intentional conduct B. Prima Facie Case Defendant liable for trespass to chattels if: 1. Chattel is damaged impaired as to its condition or value 2. Possessor is deprived of his use of chattel for a substantial period of time 3. Bodily harm is caused to the possessor OR to a legally protected interest of the possessor (ex- his business) 4. Dispossesses other of the chattel.physical dispossession C. Other Elements 1. P must show actual damages harmless intermeddling is NOT enough!! *damages include actual damages to chattel or damages for loss of use 2. P authorized to use reasonable force to stop intermeddling 2. Trespass to chattels is survived today to allow recovery for unauthorized use of personal property not sufficient to establish conversion (higher damages) CONVERSION pp. p.85 The intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.pp. 82 A. Interest Protected? Freedom from another exercising dominion or control over personal property/ right to not have property substantially impaired / right to not have property deprived of its use for a substantial period of time Basis of Liability? Intentional conduct 1. Definition Exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that D may be required to pay the full value of the chattel An action for conversion asks the court to sell the property and the D. will have to pay for it (the FMP at the time of the conversion). 2. Factors: Seriousness of Interference must be SUBSTANTIAL Extent and duration of interference Extent and duration of exercise of control Actors intent to assert a right in chattelinconsistent w/owners Actors good faith Harm done to chattel Note: Where the intermeddling does not completely or substantially deprive owner of his possessory right the tort is merely trespass to chattels -act must be serious enough to warrant D paying full value 3. Damages Full market value of property at the time of the conversion *BUT! The defendant gets to keep the chattel upon payment! (buys it) 3. Intellectual Property can be converted so long as property (info. w/ $ value) 4. Ways in Which Conversion may Occur: Acquire possession (steal it) Damaging or altering it (intentionally run over animal and kill it) Using it (bailee seriously violates terms of bailment)
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 Receiving it (obtain possession after purchase from thief) Dispose of (bailee wrongfully sells chattel) Misdelivering it (deliver to wrong person by mistake) Refusing to surrender it (bailee refuses to return chattel) Note: innocent mistake is not a defense to conversion or trespass to land/chattels PRIVILEGES * Affirmative Defenses to Intentional Torts --to Plaintiffs Prima Facie Case * Defendant has the Burden of Proof on the preponderance of the evidence-A. Consent 1. Objective standard Would a RPP in the Ds position under the circumstances have thought that P consented? -considers surrounding circumstances to ascertain Ps consent In the vast majority of situations a person cannot consent to something and then sue somebody for what they consented to. Ex: Would a reasonable person in the place of the D. believe that she consented to the vaccination? 3. Consent obtained by misrepresentation or misinformation is not valid consent If the D. knows there is misapprehension by the P. or the D. contributed to a misapprehension of the facts, there is no consent. Ex: birth case with rando. 4. Physicians general rule is must get informed consent to operate (express) *Exception: Where consent is implieddoctor will use as defense: Elements 1. Patient is unable to give consent intoxicated, unconscious, ill 2. There is a risk of serious bodily harm if delayed emergency 3. A RPP would consent to treatment AND 4. Physician has no reason to believe this particular patient would refuse 5. Withdraw of Consent by Patient Before Surgery..physician must conduct new informed consent During Surgery..withdrawl must be clearly made in sound mind AND must be medically feasible to stop 6. Minor consent of parent needed for any medical procedure 7. Consent to illegal activity 2 views Maj. P cannot consent to illegal activity (can still maintain action) Min. P can consent to an illegal act (ex- prizefighting) Note: As a practical matter most non-consented to operations are brought under negligence instead of battery; but D might want to claim the act was intentional if the one year S.O.L. has run b/c negligence still has 3 yr. window Any consent obtained by fraud or misrepresentation is not consent at all..see De May v. Roberts p. 100. The fact that P consented to the presence of Scattergood supposing him to be a physician, does not preclude her from maintaining an action and recovering substantial damages upon afterwards ascertaining his true character.
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B. Self-Defense: Use of Force 1. When? Whenever it reasonably appears that force is necessary to protect oneself against imminent battery (RPP-objective) 2. How Much? As much force as reasonably appears necessary 3. How Long? As long as necessary, but no longer 2. Retaliation NOT privilege; privilege stops when threat to oneself stops (When can you use deadly force? When If person was initially aggressor and has retreated, he does have right to self-defense against person he initially threatened 3. Provocation - Insults, verbal threats alone do not justify use of force in self defense If abusive word are accompanied by actual threat of physical harm, then may be privileged to defend 4. Deadly Force Force that is calculated to kill or seriously injure person *may only use when it appears reasonably necessary to do so 5. Retreat Maj. may use whatever force necessary, even deadly force Min. Must retreat to wall rather than use deadly force 6. Defense of Others may use force reasonably necessary so long as person protecting family or close friend 6. Mistake Rule As long as the mistake was R/ (if R/ believed was in physical danger), D can assert self defense D. Defense of Property 1. Reasonable Force A person is privileged to use the force reasonably necessary to prevent the taking of property 2. One cannot use force when they are absent that they could not use it they were presentex) loaded spring gun or traps 3. Deadly Force General Rule--deadly force to protect property NOT allowed Exceptions: 1) someone breaking into your home and threatening you or family then may use deadly force (castle doctrine) (Defense of person not property) 2) MS allows to prevent commission of a felony 2. MS Castle Doctrine Statute (MS 97-3-15) -In self defense from being killed, killing is allowed. - in the commission of a felon -a person who has unlawfully entered a dwelling, car, kidnapping, etc. -allows deadly force in self-defense or defense of others -NO duty to retreat -person who used force is presumed to have reasonably feared death Recovery of Property repossessing taken chattels Case of Hodgeden v. Hubbard p. 114. a. General Rule = cant use force to recover property b/c its easy to file a writ of replevin
E.

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1.

Fresh pursuit rule Owner can use some reasonable force to retake property which has been obtained by force or fraud and pursuit is fresh Fresh Pursuit = prompt discovery of dispossession and persistent efforts to recover...if any undue lapse of time owner must use replevin (legal remedy Reasonably Force = NOT deadly; may only be used after request for property has been made and denied

Conditional Sale of Good: The retaking of possession by a seller under a conditional sale, on default by the buyer, is now controlled by ss 9-503 of UCC: Unless otherwise agreed a secured party has on default the right to take possession of the collateral. In taking possession a secured party may proceed without judicial process if this can be done without breach of the peace. Self-Help If the owner can locate the taken property, he may retake the property if the can do so without breaching the peace (repossession) -if peace will be breached, owner must use replevin action 3. Shopkeepers Privilege - merchants have privilege to detain suspects for a reasonable investigation if there are reasonable grounds to believe suspect has shoplifted (RPP standard) - this doctrine is used as a defense to lawsuits by accused shoplifters - extends to people who have left premises but in vicinity - reasonable mistakes are a defense! - Shopkeeper will not be liable if jury finds two things: 1. The shopkeeper had reasonable (RPP) grounds to search 2. Investigation that proceeded was reasonable. If D reasonably believed the P had unlawfully taken goods held for sale in the defendants store, then he enjoyed a privilege to detain her for a reasonable investigation of the facts.
2.
SEC. 97-23-95. Shoplifting; detention of suspect for questioning without incurring civil liability. If any person shall commit or attempt to commit the offense of shoplifting, or if any person shall wilfully conceal upon his person or otherwise any unpurchased goods, wares or merchandise held or owned by any store or mercantile establishment, the merchant or any employee thereof or any peace or police officer, acting in good faith and upon probable cause based upon reasonable grounds therefor, may question such person in a reasonable manner for the purpose of ascertaining whether or not such person is guilty of shoplifting as defined herein. Such questioning of a person by a merchant, merchant's employee or peace or police officer shall not render such merchant, merchant's employee or peace or police officer civilly liable for slander, false arrest, false imprisonment, malicious prosecution, unlawful detention or otherwise in any case where such merchant, merchant's employee or peace or police officer acts in good faith and upon reasonable grounds to believe that the person questioned is committing or attempting to commit the crime of shoplifting.

F. Necessity may be a defense to taking property of another 1. Public If it is for the benefit of the public, an intentional tort may be committed if necessity exits.ex) destruction of property/conversion *Plaintiff may still have takings claim though under 5th Amendment 2. Private If D intended their actions to protect their private property at the expense of anothers property, the D will be liable Note: action must be intended.NOT act of God, but ship/dock case
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G. Authority of Law If D is duly commanded or authorized by law to do what he does, he is not liable for doing it if done in scope of employment 1. Discretionary D will not be liable 2. Ministerial (not a matter of choice) Agent will not be liable but govt will be Note: employee must be in scope of employment, if not will be personally liable H. Discipline 1. Corporal punishment by teachers Must be reasonable and procedural guidelines followed 2. Parent corporal punishment In jurisdictions where parent child immunity has been abolished, the child may have a COA against parent (not in MS) MS full parent-child immunity unless in car accident I. Justification 1. NOT a privilege in many jurisdictions! 2. Where it is a privilege, it effectively allows D to defeat Ps cause of action by proving that D did what a RPP would have done under the circumstances 3. Burden of proof shifts to D 3. Vast Majority - If defendant is going to claim a privilege, then must assert one of the named defenses above (self-defense, defense of others, necessity, etc.) 1. Responding to name calling is not a defensecouldnt even introduce evidence. **If you are going to bring an intentional tort, your cause of action must be a recognized one. If D wanted to say Ok I did that but I had a privilege to do it. The ct asks what privilege? D then might say self-defense, recovery of property etc. but it has to be a recognized privilege in particular. Currently, you cannot just say what I did was reasonable J. Mitigating Circumstances 1. Most jurisdictions (MS) allow D to introduce evidence to mitigate damages Ex) while verbal provocation is not a defense it may allow D to mitigate STRICT LIABILITYno fault necessary for liability A. Trespassing Animals The CL rule: Owners of animals of a kind likely to roam and do damage is strictly liable for their trespasses. Restatement of Tort (3rd): It notes that animals cannot trespass (because they are incapable of intent) and suggests instead intrusion 1. Majority Rule There is strict liability for trespassing animals (includes MS) a. P must prove only that: 1) Animal belonged to OR in possession of defendanteither liable

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2) Animal caused the type of damage a trespassing animal would normally cause to Ps property b. Rule not applicable to dogs and cats MS follows the CL strict liability: there is strict liability for trespassing animals 2. MS 69-13-111 If animal gets on state or fed. hwy, & causes injury, then owner is presumed negligent. BOP shifts to D to prove not negligent. a. First rule deals with fed. or state highwaysif animal causes accident, there is no SL, but when P. brings lawsuit it will be a negligence suit, but negligence on the part of the owner will be presumed. b. If on any other road, county highway, city street, etc.then it is a straight negligence case. The P. will have to prove the owner was negligent in letting it get loose. *Action here is for negligence!basically becomes res ispa case If animal on any other road, no presumption of negligence and BOP on CL B. Dangerous/Wild Animals 1. Wild Animals Owner/Keeper of wild animal is strictly liable for damage caused by the animal 2. Dangerous Domestic Animals Strict liability will be imposed if P can prove the owner knows or has reason to know domestic animal has vicious propensities. *Knowledge that animal has dangerous propensity abnormal to its class *If P cannot prove owners knowledge of this then must prove negligence (Strict liability will not apply). 3. Note: If people are on the premises then classification system would apply too 4. Per say, no dog is a wild animal (but vicious propensities could create strict liability) C. Strict Liability for Abnormally Dangerous/Ultrahazardous Activities 1. Rylands v. Fletcher (know this case as associated with this COA) Developed new cause of action imposing strict liability for unnatural uses of land/abnormally dangerous activities Synopsis of the Rule: when a non-natural use of land is made, the D is absolutely liable for all of the damages occurring to others due to the non-natural use. Reasoning was that D introduced the element that caused the harm to the land, so D should be liable....owner must keep them at his peril 2. 1st Restatement ultrahazardous activity Case of Miller v. Civil Constructors, Inc. a. 2 Part Test (question of law) (MS following this approach) Activity involves a risk of serious harm which cannot be eliminated by the exercise of utmost (reasonable) care. Activity is not a matter of common usage (i.e. blasting Fails or passes?
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b. Minority view now 3. 2nd Restatement Abnormally dangerous activity Rule: Owners and users of land who conduct abnormally dangerous activities or conditions are strictly liable for harm to person, land, or chattel even though the utmost care was exercised a. 6 Factors: For Judge (always for Judge) to Weigh (question of law) High risk of some harm (page 727) Likelihood resulting harm would be great Inability to eliminate risk by exercise of due care Extent activity is not of common usage Inappropriateness of activity to place Social value v. Dangerousness (balancing test for public policy) b. Factors depend on circumstances and nature of location!!! c. Mainly applicable to USES of land activities not substances Strict liability is always a question for the judge. It is not for the jury to decide. 4. Types of activities held to be abnormally dangerous a. Toxic Chemicals c. Crop Dusting j. Fumigation k. Blasting - most common 5. Question of whether activity is abnormally dangerous or not is always a question of law for the JUDGE only! D. Limitations on Strict Liability 1. Scope of liability Strict liability is limited to liability for harm resulting from that which makes the activity abnormally dangerous..the kind of risk which makes activity dangerous in the first place Judge Asks: What risks of harm make this activity so abnormally dangerous? Was the type of harm that resulted the reason courts decided the activity was dangerous in the first place? If not, then not liable under strict liability count. i. Comparison w/ scope of liability from other causes of action a. Scope is smaller than negligence which is smaller than intentional torts b. Why? because no fault is required. Gotta get all this straight. 2. Acts of God if injury results from act of God which owner had no reason to anticipatemust be unforeseeable act of God 3. Assumption of Riskif plaintiff voluntarily encounters the known risk with full appreciation of its magnitude a. most states now merge this with contributory negligence but assumption of risk requires a higher degree of contributory negligence!......be careful b. applicable to both wild animals and abnormally dangerous activities ex) P with full knowledge of vicious propensities of animal encounters it -fault will be subtracted from 100% since D strictly liable

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Note: Contributory negligence is still NOT a defense to intentional torts but IS a defense to products liability. Contributory negligence is not a defense to a strict liability case. It is only a defense to negligence action. PRODUCTS LIABILITY ** Area of tort law allowing recovery for injuries to a person or property caused by a manufactured product from manufacturer, seller, or other supplier of goods McPherson v. Buick Synopsis of the rule: 1) if a product is reasonably expected to be dangerous when negligently made and 2) the product is known to be used by those other than the original purchaser, in the normal course of business, a duty of care exist. A. Development of Theories of Recovery/Ways to Assert Liability 1. Early law requirement of privity could only recover if you purchased product directly from the manufacture..no longer required for any theory! 2. Negligence P may sue for injuries caused by defective products a. Manufacturers have a DUTY to make products carefully IF there is a foreseeable risk of harm involved if product is not made properly b. Imposed usual negligence requirements Did the manufacturer act as a reasonable prudent manufacturer under the circumstances? c. 4 Elements: Go Through on Exam!!! 1) Duty above 3) Causation but for/legal 2) Breach of Duty RP manufacture UTC 4) Damages d. Applies to ALL sellers of chattels.even if they only manufactured part e. Ways manufacturer can be negligent Faulty design Mis-manufacturing product Failure to inspect parts.most common Failure to warn Instruction of the use of the product *What a Reasonable Prudent Manufacturer would not have done UTC 3. Breach of Express Warranty a. NOT puffing (statement of opinion)must be unequivocal representation about product which seller relied on that later turned out to be false b. P must prove: warranty both existed and was breached Manufacturer made misrepresentation of material fact about product *must be engaged in the business of selling chattels to public P does not have to proof the product was negligently made P relied on the misrepresentation (cause in fact) -falsity cannot be detected by RPP P was injured as a result of misrepresentation (legal cause)
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c. Strict Liability cause of action because do not have to prove fault OR even that product was defective (only elements above) d. Doesnt matter if innocent representation.privity of K not required e. Focus on what was said or written about product; not product itself
4.

Breach of Implied Warranty of Merchantability implied by law 2 Types a. Implied Warranty of Merchantability Implies that product is reasonably fit for its intended usemost common * runs with the good no matter who owns it (unlike express warranty) b. Implied Warranty of Fitness for a Particular Purpose implies that product is reasonably fit for the purpose for which it is sold *if buyer expressly or implicitly makes known to seller his purpose for the chattel and relies on sellers skill or judgment in purchasing product c. Manufacturers cannot disclaim implied warranties! d. Ps burden of proof 2 Elements 1. Product was not fit for its intended purpose 2. Plaintiff was injured as a result e. Strict Liability because P does not have to prove fault e. BIG: This action has been engulfed by strict liability in tort actions because implied warranties often had many contractual defenses by manufacturers (ex-notice requirement for opportunity to cure product) that cannot be raised in strict liability in tort action (b/c lies solely in tort) Strict Liability in Tort NOT absolute liability!! (must be defect) a. Difference from implied warranty is mere terminology (unfit v. defective) and fact this action lies solely in tort Note: strict liability in tort is the name of the cause of action! b. Plaintiff must prove: 1. Manufacturer made product 2. Product reached consumer without any substantial change in condition 3. Product was defective (manufacture, design, failure to warn) 4. Defect caused plaintiffs injuries c. Restatement 402A Special Liability for Sellers of Defective Products 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: p. 763-4 i. The seller is engaged in the business of selling such products AND ii. The product reaches the user without substantial change in the condition in which it was sold Does NOT matter if: i. Seller exercised all possible care.negligence not required ii. No privity of K iii. Consumer didnt buy directly from seller d. EXAM: Use the 3rd Restatements definitions for defects applied to 402A!!! Not defective condition unreasonably dangerous!!!
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5.

e. Strict Liability if defect caused injury no fault is required f. Majority of jurisdictions do NOT apply strict liability to prescription drugs or medical devices.only negligence cause of action available f. Again.strict liability in tort has engulfed implied warranty actions: 3 Actions Available Today: 1) Negligence 2) Breach of Express Warranty 3) Strict Liability in Tort/Breach of IW *In a negligence action and strict liability in tort action (but not express warranty) the plaintiff must show a DEFECT in the product the manufacturer is not the insurer of the users safety! (absolute liab) Ex) not good enough if P simply injured by product must be defect Strict liability is never supposed to be Absolute Liability B. Product Defects 3rd Restatement (2nd used catchall unreasonably dangerous) 1. Mismanufactured Defect Exists if there is a flaw not found in the general product line isolated failure in quality control *product departs from its intended design despite all possible care a. subject to strict liability if defect is proximate cause to injury b. product is evaluated against the manufacturers own standards c. Ps burden of proof (Preponderance of the Evidence-POE) 1. manufactured and sold product which at the time has a defective condition unreasonably dangerous 2. Product reached consumer without substantial change in condition (P. does not have to prove negligence in the factory. Another thing P can do is call an expert). 3. Defective condition was the proximate cause of Ps injury Manufacturer will not be held liable under a negligent standard if he can show that it had the best quality control procedures in the entire industry. That would show he took reasonable care. Under strict liability standard, he will be held liable. *MS assumption of risk is a complete defense which bars recovery In Rix v. General Motors Corp. When a manufacturer sends a products into commerce, he will be held liable for any harm caused to the ultimate user EXCEPTION: IF the product is altered after it leaves the care of the manufacturer. d. KNOW: This is really the only defect subject to strict liability because the others involve some form of negligence by manufacturer!!
2.

Design Defects failure in design; challenges entire product line

*when foreseeable risk of harm posed by a product could have been avoided by a reasonably alternative design by the seller or distributor Involves Balancing Test: 2 Views a. Consumer Expectation Test (Minority) Was the design more dangerous than an ordinary consumer would expect it to be?
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Problems Ordinary consumer knows nothing about design of products Patent danger rule If danger was open and obvious, then the product could not be more dangerous than the ordinary consumer would expect it to be.failed to encourage safe products b. Risk Utility Analysis MS and Majority Weighs utility of product vs. risks and alternativesif risk outweighs utility, then product is defective (much like Hands formula) 7 Factors: to determine whether defective: KNOW 1. Products utility to consumer and public 2. Likelihood that product will cause injury and seriousness of injury if it does 3. Availability of a safe alternative 4. Manufacturers ability to eliminate the danger without impairing product or making too expensive 5. Users ability to avoid danger by the exercise of care in using the product 6. Users anticipated awareness of dangers inherent to product because of public knowledge or warnings 7. Feasibility of spreading the loss by setting the price or carrying liability insurance Note 4. P 783. Reasonable Alternative Design. Unlike the principal case, most jurisdictions require that the P prove an alternative feasible design in order to prove design defect. The OBrien case is a minority view. This makes design defects cases in MS and the majority of jurisdictions a negligence cause of action. Question ends up being Would a reasonable prudent manufacturer, considering the 7 factors, have used a safer or alternative design? State of the Art Evidence: what was the state of the scientific and technical knowledge at the time this particular product was manufactured?The issue of whether D can avoid liability by showing compliance with the state of the art--considers products design in light of technology and expertise of trade at the time; evidence is admissible **Plaintiff must prove there is an alternative feasible design for the product to win design defect case!!!(majority and MS; factor in others) Inherent Characteristic Rule a product is NOT defective if injury is caused by an inherent characteristic of product that cannot be eliminated without hindering products usefulness AND is known to general public (ex- alcohol, tobacco) MS Product Liability Statute: Design Defects i. Follows inherent characteristic rule ii. P must prove: 1) manufacturer or seller had actual or constructive knowledge of defect when product left their control AND 2) reasonably alternative design was feasible iii. Assumption of risk completely bars recovery (all defects) Prentis v. Yale Mfg. Co.
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In a design defect against the manufacturer, the breach of implied warranty and negligence require proof of the same elements and use of identical evidence. P must prove something is wrong with the Product itself that makes it dangerous.

Summary:
That the test which is preferred by the big majority of the jurisdiction is the RISK UTILITY ANALYSIS. A few states use the Consumer expectation test Feasible alternative design Note 3 @ p 777. Crash-proof cars Note 4. Category Liability and Products such as Whiskey, Tobacco, and Butter Note 8. Applicability to prescription drugs and medical devices: Most jurisdictions have declined to apply true strict liability to the design of prescription drugs, following comment K to section 402A Note 9. Because the test of design defect is risk utility analysis, and risk utility test is a negligent case. How can a strict liability cause of action be a negligence case? 3. Warning Defect claim that the product did not contain adequate warnings or instructions; failure to warn or instruct of products foreseeable risks of harm a. Negligence standard Is the warning or instruction as good as what would have been given by a reasonable prudent manufacturer? *inadequate warning must be the proximate cause of Ps injuries!!! b. P must prove D knew or should have known of the danger. If D did not know of the danger, not liable for failure to warn -but may put up state of the art defense that risk was not knowable in light of the best scientific knowledge at the time of manufacture *risks must be reasonable foreseeable at time of manufacture ANDERSON V. OWENS-CORNING FIBERGLAS CORP. 786 Knowledge or knowability is a component of strict liability for failure to warm. ***A manufacturer defendant cannot effectively warn against something that is unknowable. Ct. says there is a difference between negligence failure to warm and strict liability failure to warm. According to Weems, there are situations where a product can have a defect and the D doesnt know of it although acted reasonably negligent case It is very difficult to know the characteristics of a particular product knowable. If it is knowable then the D should have known about it and the P can recover for any injury.
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Two kinds of warning problems: No warming at all: would a reasonably prudent manufacture have given a warning to what the defect was? Most jurisdiction would treat this as a negligent case. 2. There is a warning but the P says it was inadequate warning: Would a reasonably prudent manufacture have given better instructions/warning than this manufacturer gave.
1.

Is the warning or inadequate warning as Strict liability in Tort: 3 of them A. Mismanufacturing defect strict liability B. Design defect strict liability C. Warning/instruction strict liability The mismanufacturing defect is strict liability. The test is a negligence standard. Read notes 4, 5 @ p. 790 c. Cannot avoid liability by simply warning Warnings are not a substitute for a reasonably safe design (ex-warning that product is badly designed) d. NO DUTY to warn of obvious dangers! (patent danger rule) e. Allergic Reactions and hypersensitivity warnings are required f. Determination of whether warning is adequate is usually left to the JURY h. Learned Intermediary Rule when product passes from intermediary (i.e. doctor) to consumer (i.e. patient), the warning must be adequate as to the reasonably prudent intermediary i. Read and Heeded P entitled to presumption that the user would have read and heeded an adequate warning (can be overcome) j. Warnings defect cases are a negligence cause of action NOT S.L.! MS Statute: Warnings Defect Cases i. Adequacy of warning = duty to provide same warning a reasonable prudent manufacturer would have provided under the circumstances ii. Learned intermediary rule in effect iii. P must prove seller knew or should have known of danger and that danger was not realizable by ordinary consumer iv. Patent Danger Rule - no duty to warn of open and obvious dangers

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v. cases)
vi.

Assumption of risk is a complete defense (all defect

MS S.C. says a person cannot rely on an owners manual that was never read

Assumption of risk is a complete bar to recovery in products liability cases in MS. C. Proof (This was skipped in class. Weems is not teaching it) 1. Plaintiff has BOP by POE in strict liability tort cases 2. Expert testimony usually required 3. Subsequent Remedial Measures Rule Rule of Evidence that says P cannot introduce evidence that D has improved product or condition since the accident occurred in ANY tort action a. Rationale courts want manufacturer to improve products w/o worrying about P bringing it up as proof of culpable conduct 4. Violation of Safety Statute or Regulation - violation of a product safety regulation or statute makes the product defective as a matter of law (defective per se) D.

Defenses
Sec 11-1-63

p.799 807-810, 815-829, copy of MS Products Liability Act. MS

Daly V. General Motors Corp. Synopsis of the Rule: The principle of contributory negligence can be applied to strict liability cases to reduce a plaintiffs recovery. 1. Contributory negligence a. Note: Contributory negligence is NOT a defense to intentional torts! Also, mere contributory negligence is NOT a defense to non-products liability strict liability torts (ex- wild animals).but assumption of risk IS a defense to these b. Majority Contributory negligence is a partial defense to strict liability in tort cause of action. Comparative negligence rules apply. (MS as well) -so, Ds fault will be subtracted by % P was at fault Minority does not recognize contributory negligence at all or has limited it to cases where P has assumption of risk MS recognizes contributory negligence as a partial defense up until the point where Ps fault becomes an assumption of risk, which will be a complete defense and bar recovery The Supreme Court adapts the Risk Utility analysis (in design defect) c. Ps negligence in failing to discover a defect or guarding against the possibility of a defect is not a defense.no duty to inspect Daly v. General Motors p. 799. The question is whether or not contributory negligence is a defense?

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The answer to this question is based on a predicate of fairness. It wouldnt be fair to make the manufacturer pay in full an accident that the user of the product brought upon himself. For the most part strict liability in tort is a negligent tort of action. In this case we are not talking about apples and oranges. We are talking about apples and apples. Reason: The test is whether or not RPP would have If its a mismanufacturing defect, then its a strict liability case. No negligence involved. Assumption of Risk most courts allow assumption of risk as a complete defense to products liability action (not merged with contributory negligence) a. Voluntarily encountering a known danger with full appreciation of its magnitude MS: assumption of risk overlaps with contributory negligence. In a products liability case, when the P assumes risk in a products liability case, it is a total bar to recovery. 3. Misuse of Product use of product in a manner other than it was intended for a. Manufacturer is NOT liable for unforeseeable misuses of a product that cause injury..is a complete defense b. Manufacturer IS liable for the foreseeable misuses of their product c. Misuse of product is typically brought under cont. negligence today
2.

Questions: Was this product misused? It puts a strain on the product when it is used for purposes other than intended. The Defense is that the product was not defective for its intended use. Even if the user misuses the product, that still is not a defense unless the misuse was unforeseeable. 4. Statute of Limitations 3 yrs. in MS for negligence and products liability. 5. Federal Preemption p. 807 Where congress has completely regulated an area, the states are preempted from imposing liability for product defects a. Congress must clearly intend to preempt the field (legislative history); if not clear, the courts decide if federal law preempts state law Ex. Congress specified exact warning to be placed on cigarettes; hence cant bring lawsuit against manufacturer for not providing adequate warning if it complied with governments regulations E. Defendants Other than Principal Manufacturer 1. Original Chain of Distribution - 402A provides that any seller who is in the business of selling such products and in the original chain of distribution is subject to strict liability (ex- retailer, wholesaler, distributor, ect.) a. Original chain is from manufacturer to 1st consumer b. A retailer or seller is entitled to indemnity from the manufacturer though c. *MS is in minority and does NOT allow seller other than manufacturer to be liable unless they were also partially at fault!!!

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2.

Used dealers no strict liability under 402A because outside the original chain of distribution..can sue for negligence though

Occasional seller who does not hold himself to have any knowledge or skill in the commercial sense will not be subject to strict liability (ex-garage sale) 4. Lessors and Bailors of Chattels are liable for strict liability in tort (rental car). If there is a defect on the car rented from Hetz, you can sue both Hetz and the manufacturer of the car. The point here is that such companies get the cars new and really own them. They get to check them thoroughly. Occasional sellers are not liable. 5. A manufacturer of Component Parts or Raw Materials is subject to strict liability in tort because he is in the original chain of distribution 6. Builders of Real Property is also considered a seller and will be liable for product defects injuring someone for defects in how home was built (IWH) o Subject to Statute of Repose Defense 6 yrs. A. Other Suppliers of Chattels Peterson v. Lou Bachrodt Chevrolet Co. Summary: Ps children were injured (one died and other severely injured) when they were struck by a used 1965 Chevrolet. P (father of the kids) sued the driver, owner of the vehicle and the D (Lou Bachrodt Chevrolet Co.) TC dismissed two counts of the complaint. Each count alleged that D sold the 1965 on June 11, 1971 in the ordinary course of business and that the time the automobile left the Ds control it was defective and not reasonably safe for driving and operation. That the injuries and the death were the direct and proximate result of the defective conditions.
3.

A MUNIFACTURER IS LIABLE UNDER A THEORY OF STRICT LIABILITY IF THE P PROVE THAT THEIR INJURY OR DAMAGE RESULTED FROM A CONDITION OF THE PRODUCT THAT THE CONDITION WAS AN UNREASONABLY DANGEROUS ONE AND, THAT THE CONDITION EXISTED AT THE TIME IT LEFT THE MANUFACTURES CONTROL. Strict liability of a retailer arises from his integral role in the overall producing and marketing enterprise and affords an additional incentive to safety. Basic grounds supporting imposition of strict liability upon manufacturers: losses should be borne by those who have created the risk and reaped the profit by placing the product in the stream of commerce. P. 818 Basic grounds supporting imposition of strict liability upon retailers and wholesalers: their position in the marketing process enables them to exert pressure on the manufacturer to enhance the safety of the product.

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In this case there was no allegation that the defects existed when the product left the control of the manufacturer. There is no allegation that the defects were created by the used car dealer. Thus imposing liability would in effect make the car dealer became insurer against defects which has come into existence after the chance of distribution was completed and the product was in the control of one or more consumers. Wal-mart has a right to indemnity from any company that makes a defective product that Wal-mart sold and it hurt somebody. Whenever someone has to pay for the wrongful act of another party, they have the right to indemnity from the party that committed the wrongful act. (The employer and employee scenario applies here. The employer has the right to be indemnify by the employee who is the wrong doer) Walmart is considered to be in the original chain of distribution. Such entities can be sued. Reason: Walmart knows a whole lot about things they sell. For ex. Blenders. Walmart is in the position to put pressure on the manufacture to make the product safe. The manufacturer may be outside the jurisdiction of the court or might have gone bankrupt.

D.

Services NO strict liability against a provider of services rather than the seller

of a product Strict liability applies to conduits of distribution. Service providers such as a healer of illness are not subject to strict liability. The essence of the relationship is a service. The items used are simply instruments to accomplish the objective of treatment. 1. Predominate Nature Test if a case involves a mix of services and products (ex-mark up of parts) then court will only apply S.L. if the transaction predominately involves a product Courts will NOT apply strict liability if the transaction is predominantly a service, with only an incidental transfer of goods (ex- pharmacy, hospital) 2. Blood, Blood Products and human tissues in most jurisdictions there is no strict liability (by statute) ..unavoidably unsafe product [protection extends not only to physicians or other healthcare providers but also to commercial suppliers. 3. Doctors or pharmacists proscribing drugs that are FDA approved are ONLY liable for negligence not S.L. The Doctrine of Strict Liability does not extend to words or pictures. Who makes the decision whether something is a product for strict liability purpose? Statutes Common law It is the judge rather than the jury who decides whether the situation fits within the statutory definition or is one to which strict liability should apply. The question is what is the essence of the situationservice or product.
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E. Harm Other than Personal Injury/Economic Loss

1. 2. Economic loss resulting from personal injury: a. Lost wages are recoverable from personal injuries b. Loss of consortium recoverable for personal injury in products liability cases Economic Loss without Personal Injury or Property damage: a. An action does not lie when a product simply did not perform as expected. b. Product liability laws were developed largely to provide compensation to P who suffered personal injury or property damage,

Statute of limitation in MS is 3 years.

P can recover for personal injuries (pain and suffering, medical expenses, disability, lost wages, ect.) and traumatic property damage (under 402) *if economic loss is a result of personal injury, then recoverable P CANNOT recover for pure pecuniary losses w/out personal injury In cases where product itself is destroyed due to defect (e.g., burns up, etc.), there is split of authority over whether P can recover value of product.

F. Miss. Code Ann. 11-1-63 Products Liability Suits Subject to section 11-1-63 In any action for damage caused by product (personal injury or traumatic damage) except commercial products, the manufacturer or the seller is not liable if the P doesnt prove on the preponderance of the evidence 1. Applies to any action for damages caused by a product no matter what name you give action (no recovery for damage to product itself) b. Manufacture is liable if P proves by Preponderance of Evidence that at time product left control of manufacturer: (i) 1 Deviated in material way from the manufacturers specs (mismanufacture), or 2 Failed to contain adequate warnings/instructions, or 3 Designed in defective manner, or 4 Breached an express warranty, AND (ii) Defective condition rendered the product unreasonably dangerous to the consumer AND (iii)Unreasonably dangerous condition proximately caused injury c. Product not defective if harm caused by inherent characteristic of product d. In ANY action alleging that a product is defective, the manufacturer will NOT be liable if the P assumed the risk e. Inadequate Warnings manufacturer not liable if P does not prove by POE that manufacturer knew or should have known about the danger that caused the injury

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(i) An adequate warning is one that a RPP in similar circumstances would have provided. (ii) Manufacturer not liable if danger is open and obvious f. Design Defects manufacturer not liable if P does not prove by POE that at time product left manufacturer: (i) Manufacturer knew or should have known about danger that caused injury AND (ii) There existed a feasible alternative design for product g. A manufacturer who is found liable for defective product shall indemnify a seller who is not at fault.but this is obsolete because statute also provides that sellers who are not at fault are NOT liable!! -this is the minority view though..402A holds sellers liable

h. (h) In any action alleging that a product is defective pursuant to paragraph (a) of this section, the seller of a product other than the manufacturer shall not be liable unless the seller exercised substantial control over that aspect of the design, testing, manufacture, packaging or labeling of the product that caused the harm for which recovery of damages is sought; or the seller altered or modified the product, and the alteration or modification was a substantial factor in causing the harm for which recovery of damages is sought; or the seller had actual or constructive knowledge of the defective condition of the product at the time he supplied the product. It is the intent of this section to immunize innocent sellers who are not actively negligent, but instead are mere conduits of a product.
i. This section does not eliminate any common law defenses Assumption of risk will be a complete defense. The statute doesnt say anything expressly about contributory negligence. Contributory negligence remains a defense. The statute doesnt say anything about what the test is about design defects. With regards to a warning defect, it says the test for a warning defect is a negligence standard. Preemption: NUISANCE Literal meaning: harm, annoyance, or inconvenience.
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It is a king of interest invaded by the D. It is a field of liability not a particular tort. A. Public Nuisance A substantial and unreasonable interference with a right common to the general public (health, safety, or welfare of public) 1. Unreasonable means more than the public should have to put up with 2. Factors (most states have statutes enumerating specific public nuisances) a. Does the conduct substantially interfere with the public health, safety, or welfare? b. Is the conduct prohibited by statute, ordinance, or regulation? c. Is the conduct of a continuing nature or has it produced a permanent or long lasting detrimental effect on a public right (to the actors knowledge)? 3. Recovery for Public Nuisance In order for a private person to recover personal damages or get injunction for a public nuisance, the person must show they suffered harm of a different KIND from that suffered by the general public while exercising the right common to the public that was interfered with *harm must be different in kind not necessarily degree 4. Remedy is always an injunction if brought by the public 5. A private citizen bringing a public nuisance suit must show that they suffered damages difference in kind from the general public. Ex: fisherman and clam diggers could recover during oil spill. B. Private Nuisance An unreasonable and substantial interference with the use and enjoyment of a property interest in land *does NOT require a physical invasion (unlike trespass). The Restatement [Restatement (Second) of Torts, 821D] defines a private nuisance as "a nontrespassory invasion of another's interest in the private use and enjoyment of land 1. Interest Protected? Right of individual to the use and enjoyment of their land (distinguish trespass where interest is exclusive possession) The right to not have the use or enjoyment of their land substantially and/or unreasonable infringed. 2. Who can bring the action? Restricted to contemporaneous neighbors j. Private nuisance action cannot be brought by purchases or real property against the sellercaveat emptor applies (should have inspected)
3.

Basis of Liability A private nuisance action must have a BASIS of liability *distinguish trespass which must be intentional.no negligent trespass Philadelphia Electric Company v. Hercules, Inc. The Property in question is the CHESTER SITE It was formerly owned by Pennsylvania Industrial Chemical Corporation (PICCO). It operated a hydrocarbon resin manufacturing plant. PICCO sold to Gould in 1971. Gould sold to PECO in 1974. PECO had owned the adjoining site and had full opportunity to inspect and investigate the condition of the property. Hercules became the successor of PICCO, assuming all debts, obligations and liabilities.
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This action is brought against Hercules by PECO for damages and injunction requiring D to abate any further pollution. In 1880 DER discovered that resinous materials similar to those once produced by PICCO were seeping into the Delaware River and directed PECO to develop and act on a plan to eliminate the situation. Whether the condition created by Hercules on the Chester site amounted to nuisance, and whether Hercules remains liable for the nuisance even after vacating the land. To whom Hercules may be liable? Whether the purchaser of a real property can recover from the seller on a private nuisance theory for conditions existing on the very land transferred, and thereby to circumvent limitations on vendor liability inherent in the rule of caveat emptor. Rule of Law: A subsequent bona fide purchaser of land cannot claim private nuisance against a previous owner for damage done to the land. A Plaintiff cannot claim a tort action for public nuisance against a Defendant unless the Plaintiff can claim particular damages suffered due to an interference with a public right. The Restatement [Restatement (Second) of Torts, 821D] defines a private nuisance as "a nontrespassory invasion of another's interest in the private use and enjoyment of land." For this case, the court assumes that Defendant is liable for a private nuisance, with the crucial question being to whom they are liable. To recover on a private nuisance theory, plaintiff must show there was a breach of duty. In this case, the duty Defendant owed was to neighbors, not the Plaintiff purchaser. To allow Plaintiff to recover on a private nuisance theory would circumvent the rule of caveat emptor. Neighbors unlike purchasers of land upon which nuisance exists, have no opportunity to protect themselves through inspection and negotiation. Rest. Section 821C(2): In order to recover damages in an individual action for a public nuisance, one must have suffered harm of a kind different from that suffered

28

by other members of the public exercising the right common to the general public that was the subject of interference. The Restatement [Restatement (Second) of Torts, 821B(1)] defines a public nuisance as "an unreasonable interference with a right common to the general public." A public nuisance is a criminal offense, consisting of an interference with the rights of the community at large. However, courts have allowed tort actions for a public nuisance when the plaintiff suffers a particular damage. Plaintiff argues that the expense it incurred in cleaning up the pollutants is a particular damage. However, the harm common to the general public in this case was the public right to clean water. Therefore, Plaintiff lacks standing to claim indemnity or injunctive relief for a public nuisance.

Morgan v. High Penn Oil-Important An intentional private nuisance occurs when a person either acts for the purpose of unreasonably interfering with anothers enjoyment of their land or knows that such interference is resulting from his conduct. A nuisance in fact may be created or maintained without negligence. Intentional: A person may be subject to liability for an intentional invasion of ones use and enjoyment of their land if his conduct is unreasonable under the circumstances. It occurs when the person knows that the nuisance is resulting from his conduct o Regardless of the care and skill exercised to prevent the injury. Unintentional: A person may be liable for an unintentional invasion when his conduct is negligent, reckless or ultrahazardous.

Carpenter v. The Double R Cattle Company, Inc.

Synopsis of Rule of Law. Idaho law does not follow subsection b of the Restatement allowing for the payment of damages when the gravity of the harm is outweighed by the utility of the conduct, yet the harm is serious and the payment is feasible without forcing discontinuation of the business. The jury and trial court made findings, concluding that the feedlot did not constitute a nuisance.
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The Court of Appeals reversed, based on a new subsection of the Restatement [Restatement (Second) of Torts, Section 826(b)] allowing for a nuisance even when the gravity of harm is outweighed by the utility of the conduct, so long as the harm is serious and the payment of damages is feasible, without forcing the business to discontinue. Issue. Did the trial court err by not giving a jury instruction based on the new subsection of the Restatement? Held. No. Judgment of the District Court is affirmed. The new subsection of the Restatement does not represent the law in Idaho. The Appellate Court's decision was based on language in our decision in Koseris v. J.R. Simplot Co., 82 Idaho 263, 352 P.2d 235 (1960). However, this language was clearly dictum. Idaho's economy depends on the benefits of agriculture, lumber, mining, and industrial development. To do away with the utility of conduct and other factors would place an unreasonable burden on these industries.

Boomer v. Atlantic Cement Co., Inc.

Synopsis of Rule of Law. This court balances the equities between the two parties, refusing to close down a large cement plant even though it creates a nuisance, but allowing neighbors to recover present and future damages created by the nuisance. Facts. Defendant operated a large cement plant. Plaintiffs brought an action for an injunction and damages, alleging injury to their property from dirt, smoke, and vibrations created by the plant. At trial a nuisance was found, temporary damages were allowed, but an injunction was denied. Issue. Was the trial court correct in denying Plaintiffs an injunction when Defendant's activities are found to create a nuisance, but the value of Defendant's operation exceeds the nuisance created? One alternative would be to issue an injunction, but postpone it until a future date, allowing Defendant the opportunity to develop technical advance to eliminate the nuisance. However, the rate of research is beyond the control of the Defendant and a court would be hard pressed based on equitable principles to close this plant based if it is unable to develop such technology.

Spur Industries, Inc. v. Del E. Webb Development Co.

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a. Negligence D failed to exercise reasonable care to avoid the interference b. Strict Liability The activity poses extreme danger to Ps use and enjoyment of his property..abnormally dangerous activities c. Intentional Ds conduct is intentional if: o D meant to invade the protected interest, purpose (rare) o D knew it was substantially certain that the protected interest would be invaded (knew of probability) o Does NOT matter if D exercised all possible care if intentional! d. *Must ALWAYS be some basis for liability.nuisance action does not lie if no basis even if conduct substantial and unreasonable interference 4. Balancing Test Balancing the Equities 1. Weighs gravity of harm v. utility of Ds conduct for competing uses 2. Locality of the conduct is important factor 3. Character and extent of harm considered (ex-severe, physical harm bad) 5. Nuisance per se = nuisance at all times regardless of location Nuisance per accidens = in fact; depends on circumstances 6. Value of the Ds activity to the community a. Majority/Restatement allows a finding of a nuisance even when the utility outweighs the harm if: o Harm is serious AND o Payment of damages is feasible w/out shutting down business b. Minority view NO nuisance found if utility outweighs harm 7. Hypersensitivity NOT allowed; objective measure for harm suffered o (already know this but review) 8. Interference with support of Land strict liability if land subsides in its natural condition.negligent standard if subsides b/c of artificial condition 9. Zoning If an area is zoned for an activity then conducting that activity cannot be a nuisance solely b/c of its location (b/c deemed suitable) -but still may be a nuisance if operated in an unreasonable manner 10. Coming to the Nuisance Majority rule P is not barred from recovery for public or private nuisance simply b/c he comes to the nuisance - only a factor to consider but may heavily influence outcome - minority says that coming to nuisance does bar recovery *Right to Farm Laws codify coming to nuisance claims (all 50 states) MS if Ag. Op. has operated for at least 1 yr. and adheres to regulations and laws then right to farm is a complete defense to P coming to nuisance 11. Note: a person can obtain the right to pollute by prescription (10 yrs. in MS) 12. Contributory Negligence IS a defense if basis of liability is negligence, but NOT if basis is intentional 13. Damages a. Injunction court order commanding or preventing an action o Old rule If P could show that Ds conduct caused a private nuisance and substantial damage, an injunction was granted.

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Boomer Rule An injunction will not be granted if the economic benefit of the business outweighs the damage (will award permanent $$ damages)..conditions injunction upon payment of damages o Modern trend balancing the equities most courts today do not take a categorical position on whether to grant an injunction, instead, they look to an equitable solution b. Money Damages o Normal If court determines P has suffered substantial damages, will award damages for decreased enjoyment of property up to present time Damage is substantial if: 1. Offensive to a person of ordinary sensibilities 2. Any property damage is substantial o Permanent damages Damage for decreased value of property, both present and future, when injunction is not awarded b/c utility outweighs harm (Boomer Rule) i. Essentially gives the D a right of inverse condemnation in property by creating an easement paying after-the-fact i. The Boomer cement company has the right to take private property for their use (eminent domain). The taking must be for public use? Toyota? Inverse condemnation is putting down the plant first, and then getting the court to allow them to buy the property.
o

Right to Farm Statute:p.847 Interference with the support of the land: p862 You can acquire the right to pollute property through adverse possession. Feedlot case. DEFAMATIONtwo torts Libel (written) and Slander (oral) A. 2 Part Test 1. Interest Protected? Right of individual not to have their reputation damaged by false publications or false statements. a. No cause of action if telling truth 2. Basis of Liability? a. Private Plaintiffs intentional or negligent conduct b. Public Plaintiffs malicious conduct defined by Supreme Court Prima Facie Case (what P must prove) Publication of false and defamatory statements of fact that damaged his reputation.made people think less of individual Test: Whether publication is defamatory when read and construed in the sense in which to whom it was addressed would ordinarily understand it. Question of FACT: Unambiguous/1 Meaning = Court decides in SJ if reasonable minds cannot differ Ambiguous/ 2 or more Meanings = Jury decides if one could be defamatory

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*It is enough if the communication could be defamatory to SOME people (not necessarily right-minded people) Libel per seany publication which exposes a person to distrust, hatred, contempt, ridicule, obloguy. It can mean that the cause of action the P can bring does not require proving special damages. Truth is an absolute defense to defamation action. Statements must be substantially true. Jurisdictions are split on who has the burden of proof to prove the truth of statements if private plaintiff; public plaintiffs always have burden of proving falsity. Character of the P is NOT relevant. Truth of other misconduct does not matter. Must prove truth of that particular statement alleged. OK if minor falsities in Ds statement.

Burden of proof: 1. At common law, there was a presumption of falsity regarding the defamatory statements. Burden was on D to plead and prove truth as an affirmative defense. Jurisdictions are now split on whether private P has burden of proving falsity. 2. U.S. Supreme Court put burden on P to prove falsity of the statements in action against a media defendant for speech of public concern. 3. In Mississippi, burden is on P to prove falsity of the statements regardless 4. The truth can be pleaded as an affirmative defense and then the P. would have the burden of proof to show the claim was true/false? 5. Sometimes the P. can have the burden of proof to prove that the claim was false (what is the situation when this happen?) Who can be defamed? (note 2 pg 878) Any living person (defamation actions are NOT protected by survival statutes) Defamed Groups: a) Very Large NO action for any member (ex- all lawyers) b) Small ANY member has action so long as ALL were referred to (the jury) *courts split on whether individual in small group may bring action when not all were referred to (ex- some of the call girls are whores and 10 call girls) Corporation Cannot bring action in personal sense of reputation but CAN bring action if publication damages its business character. For instance defamation action can be brought for honesty, credit efficiency or other business or moral character. Governmental institution should not enjoy a right to sue in libel. They should be open to uninhibited public criticism.

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Colloquium: Defamatory statement does not have to indicate P by name to be actionable. All that is required is that statement be phrased in such a way that people could reasonably infer who was being defamed (e.g., language could refer to P by title, etc.). NOTE: Defamatory statement must be a false statement of fact, not of opinion. Restatement of Tort Section 564A: One who publishes defamatory matter concerning a group or class of persons is subject to liability to an individual member of I, if, but only if: a. The group or class is so small that the matter can reasonably be under stood to refer to the member, or b. The circumstances of publication reasonably give rise to the conclusion that there is particular reference to the member. The numerical approach to group libel: The group generally successful in pursuing group libel actions number 25 or less. Libel vs. Slander: The difference is that in slander (NOT slander per se) P has to prove the damage done to his reputation caused him to sustain special damages pecuniary damages.. Something of monetary value

Libel per se 2 Meanings 1) printed or written comment that is without question defamatory; reasonable minds cant differ. If not, goes to jury. OR 2) P does NOT have to prove special damages *hence.ALL libel is libel per se!!! No need to differentiate. Liber per quod: Statement not defamatory on its face and requiring extrinsic facts in order to appreciate its defamatory implication Plaintiff must allege and proof the extrinsic facts in order to have a cause of action. Restatement of Tort Section 568: Libel: consists of publication of defamatory matter by written or printed words or by its embodiment in physical form, or by any other form of communication which has the potentially harmful qualities characteristic of written or printed words. Slander: consists of the publication of defamatory matter by spoken words, transitory gestures, or by any form of communication other than those stated in Subsection (1).

Slander per se a cause that is actionable w/o proof of special damages: 4 Types 1. Imputations of Major Crime crime of moral turpitude 2. Loathsome Disease little recognized. Advancement of science and the current social perception about such slander has made it not sufficient to be actionable without proof of special damage. 3. Business, Trade, Profession saying person is unfit for business
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4. Serious Sexual Misconduct applicable to women Elements: Libel AND Slander per se 1. Publication transmission to a 3rd party 2. False statement of fact (not opinion) NOT substantially true 3. Defamatory damages Ps reputation 4. About P explicitly or colloquium/innuendo (reasonably inferred) Plain Slander spoken defamation which does NOT fall into previous 4 categories Elements: * P must prove special damages!! Publicationa communication of the defamatory material to another person False statement of fact (not opinion) Defamatory About P Special Damages pecuniary loss.something of monetary value If they can prove special damages, they can then recover for those and also for other things such as damages to reputation or emotional distress. a. The special damages must have been the natural, immediate, and legal consequence of the words.

1. 2. 3. 4.
5.

6.

7. What constitute Special Damages? a. Whenever a person is prevented by the slander from receiving that which would otherwise be conferred upon him, though gratuitously, it is sufficient i. Loss of marriage, loss of hospitable gratuitous entertainment, preventing a servant or bailiff from getting a place, the loss of customers by a tradesman NOTE: Ps recovery not limited to special damages in slander. Additional damages may be awarded for mental distress, wounded feelings and humiliation. *So.really there are only 2 causes of action for defamation: 1. Libel/Slander per se no specials damages necessary 2. Slander special damages must be proven Broadcast defamation libel or slander? a. Courts have treated as libel b/c of potential to reach so many people b. Many states have statutes that make this sort of defamation slander NOTE: In determining whether particular communication is libel or slander, courts will ask how many people did it reach? Libel will reach more people. Publicationcommunication of defamatory statement to a 3rd Party i. may either be done intentionally OR negligently
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ii. providing means for which comment was published iii. respondeat superior applies for employers

Publication: a word of art in defamation cases. It does not mean printing, writing or even publicity.
It means communication of the defamatory words to someone other than the person defamed. It is not enough that the words are spoken to the plaintiff himself even in the presence of others if no one else overhears them. Communication to a 3rd party is considered publication if it is done intentionally or by a negligent act. Restatement of Tort 577. o No publication when words are spoken directly to a plaintiff with no reason to suppose that anyone can overhear, but they are in fact overheard by a concealed listener. o There is publication when Defendant speaks so loud that the Defendant can expect that someone may overhear. o There is no publication when a defendant sent defamatory matter in a sealed letter and it is unexpectedly opened and read by a third person o

Repetition of defamatory statements: A party need NOT create publication Party who repeats defamatory statements is also liable for defamation (if reasonably anticipated) even if (1) they credit the original source OR (2) they disclaim the statements by saying they do not believe them to be true. Internet Privilege: Internet service providers are protected by Congressional Act so long as they did not provide the defamatory information (create it). b/c courts want to promote commerce Statute of Limitations with regard to defamation (1 year including MS): Single publication rule cause of action accrues at the time of original publication from which the S.O.L. begins to run (generally one year) i. Discovery rule applies when P knew or could have discovered with reasonable care (MS has this rule) ii. Common Law allowed cause of action to accrue with every sale or delivery of publication.made S.O.L. obsolete Miss. retraction statute: If P is going to sue a newspaper or TV station then P must give them at least a 10 day notice before filing the lawsuit to retract the publication; if D makes a full and fair retraction, P can still bring suit after 10 days but gives D opportunity to demonstrate good faith; i.e. cannot get punitive damages (P can still get special and general damages) Primary vs. Secondary Publisher Primary publisher: original publisher of defamatory statement OR any party repeating the publication; primary publishers ARE liable for libel and slander

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Secondary publisher: vendor or distributor of a newspaper, magazine, or book, that contain defamatory statements; secondary publishers are NOT liable (exception: can be liable under negligence framework in some situations) NOTE: At common law, libel and slander were strict liability causes of action b/c did not have to prove fault, i.e. didnt have to prove publisher knew about the defamatory statements (no negligence or intent required). So Ds had to raise affirmative defenses/privileges. U.S. Supreme Court has changed this. Privileges
The CL developed a number of defenses in order to protect the interest of free speech and political and public debate. The defense of Fair Comment has not been constitutionalized. o It could not be judicially reviewed Other speech attracted a qualified or conditional privilege o This speech was not actionable although defamatory, if it was communicated by the publisher to the recipient where both parties had a reciprocal duty and interest to communicate and receive it. Example Letter of Reference If the purpose of the communication is outside the purpose of the privilege, the defense is lost. If the communication was transmitted to a person who has no duty or interest of receiving it, there is no privilege.

Privileges (affirmative defenses for defamation suits) 2 Types: 1. Absolute Privilege complete immunity from defamation action i. Does NOT matter what the intent of the D was ii. Social interest outweighs the private interest to not allow would diminish peoples ability to do their jobs and subject to lawsuits iii. 3 Types: 1) Judicial immune so long as remotely relevant to case 2) Legislative anything conducted on the floor immune 3) Executive: i. Federal immune if in scope of employment because of FTCA (Fed torts ii. State high rank officials are immune; low? NOTE: Absolute privileges CANNOT be lost by abuse. 2. Conditional or Qualified privilege CAN be lost by abuse *1st NO IMMUNITY if D knows the publication is false! This privilege only applies if the D believed the statement was true. 2 Types if P did not know of falsity of statement: Whether the D. was operating under a qualified privilege is a question of law for the judge. 1. D was acting in the discharge of a public or private duty 2. D had a good reason for publishing defamatory information i. ex-reference letter or inquiry by employer; not casual conversation ii. Volunteering statements is not as good as being asked about it
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claims)

Test: Would a RPP have said the same thing? Yes = immunity No = abuse *If D did NOT have a good reason to publish defamation then has abused their privilege and NO immunity applies. The term used is malice. That the person said it maliciously. Abuse: affirmative defense will be lost upon abuse which requires P to prove that the D abused the privilege; test for abuse: whether a reasonable person would have acted in same manner Weems: Qualified privilege exists when the communicating party and the recipient have a mutual interest in the subject matter or some duty ex) fair reporting, fair comment, privilege to provide means of pub. Procedure: 1. JUDGE decides if privileged immunity exists B.O.P. on 2. If qualified immunity found, P must prove the D lost the privilege by abusing it..comment made with malice i. Common Law Malice reckless disregard, knowledge it was false (always malice), OR negligent RPP standard above *Supreme Court has changed this for some Ps *The SC has now abolished common law strict liability for defamation. 1. Public plaintiffs must prove actual malice as an element so * qualified privileges are no longer existent!!! 2. Private plaintiffs now required to prove some fault (usually negligence) as an element anyways so.. * qualified privileges can now only be overcome by proving knowledge of falsity or reckless disregard *MS P must prove publication made with ill will or malice (not Times malice) to overcome - Weems hates this rule so use previous one Conditional or Qualified Privilege Sindorf v. Jacron Sales Co.
Whether the D was operating under qualified privilege is a question of law for the judge. TC says yes. There is qualified privilege. Brief Fact Summary. Sindorf (Plaintiff) brought suit against his former employer, Defendant, for defamation, after he learned that Defendant had made derogatory remarks about him to his new employer. Synopsis of Rule of Law. While a conditional privilege may exist, when two parties are discussing another party they have in common, and there is truth to the discussion, the 38

question of whether the communication was made out of malice is still a proper question for a jury. Facts. Plaintiff, Defendant's former employee, resigned after a dispute as to his sales practice. After Plaintiff sought employment with a competitor, Defendant's Vice President called Plaintiff's new employer and made derogatory insinuations regarding Plaintiff's honesty. Plaintiff brought suit for defamation. The trial court held that the conversation between Plaintiff's current and former employers was privileged, and directed verdict for Defendant. Plaintiff appealed. Issue. This case considers whether a conditional privilege exists in defamation suits where the Plaintiff is a former employee of the Defendant. Held. Reversed. The court reversed the judgment, holding that a privilege may exist where the truth is in question. The question of malice must be for a jury, and Plaintiff may be afforded the opportunity to bring suit. Discussion. When considering whether a communication was made with malice, the question will be presented to a jury for determination. There is no qualified privilege where the speaker knows it is untrue. A speaker is deemed to have a qualified privilege whenever he has a good reason for making that defamatory comment. Two questions under the CL: 1. Was D entitled to qualified privilege? 2. Was the privilege abused? II. What must be shown that the D abused it? a. Some states requires that the P shows that the D has acted in reckless disregard b. Some (Probably majority) says that it was a matter of reasonable conduct. P must show that a RPR would not have done what the D did.

Constitutional Privilege (New York Times v. Sullivan)

1.

Situation at common law prior to New York Times case: no distinction made between public and private plaintiffs New York Times case: SC created a new qualified privilege with regard to publications made about a public official or figure in regards to their job. Codified common law fair comment privilege..now called constitutional privilege *Constitutional privilege can be lost by abuse (not an absolute privilege). When a person is writing or speaking about a public office about the official duties of the official, the writer or the speaker enjoys a qualified privilege. To prove abuse of constitutional privilege, P must prove Actual Malice (sometimes referred to as Times Malice): Weems says for the purpose of this class we must describe is a N.F./R.D. He doesnt want us to use the term actual malice or times malice. P. must prove one of two things: 1. Knowledge of Falsity always malice OR 2. Reckless Disregard -- for whether publication was true or not Subjective Test Issue for fact finder; must be sufficient evidence that:
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2.

i. false publication was made with a high degree of awareness of probable falsity OR ii. If IN FACT entertained serious doubts as to the truth of his publication - not probably entertained.in fact DID entertain - merely not verifying facts or investigating is NOT enough *this Times Malice is constitutionally requiredWeems doesnt want us to use the term malice or Times malice at all.
3.

SC created constitutional privilege to give media and others publishing about public officials/figures breathing room so as to prevent selfcensorship (First Amendment concerns) -1A requires that some falsehood be protected in order to protect speech that matters......some degree of abuse is inseparable to protect press

Two fundamental questions that had to be decided after the case was decided: I. Who does this new privilege apply to? II. What does reckless disregard mean? It means there was a high probability of falsity and they ignored it.

This conditional privilege was also extended beyond 1) public officials and 2) public figures to apply to 3) any matter of legitimate public interest see n. 5 @ 915 Actual Malice, Burdens of Proof, and the Press St. Amant v. Thompson Reckless disregard requires a showing that: the D publication was made with high degree of awareness of probable falsity There must be sufficient evidence to permit the conclusion that the D in fact entertained serious doubts as to the truth of his publication. If a P is required to prove k N R D then their task is not impossible but extremely difficult to do.
4. The Supreme Court accepts the Louisiana courts determinations that the material published was false and that the Plaintiff was a public official for the purpose of this case. Therefore, the actual malice standard is applicable. It is clear that the Defendant had no personal knowledge of the Plaintiff's activities, but rather relied only on the union member's affidavit. He failed to verify the information, mistakenly believing that he had no responsibility for the broadcast because he was quoting someone else's words. In order to meet the actual malice standard, the Defendant must have a high degree of awareness of the statements probable falsity. This standard is not measured by whether a reasonably prudent man would have published the material or would have investigated before publishing. Rather, there must be sufficient evidence to show that the Defendant entertained serious doubts as to the truth of his publication. A defendant cannot insure a favorable verdict by simply stating that he published with a belief that the statement was true. The jury must instead determine if the publication was made in good faith. However, in this case the evidence against the Defendant was insufficient to meet the reckless disregard requirement for actual malice. In class 3-9-12

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Harte-Hanks Communications v. Connaughton Gertz v. Robert Welch Does the constitution of the US require that he proves knowledge of falsity or reckless disregard on the part of the publisher? Two competing interests: 1. The public has a right to know about public officials and public office. 2. Right of a person not to have his or her reputation damaged by false publication. Qns: How to balance the two. Ct says with regards to public people it got it right. Because public officials by voluntarily getting involved in public offices, they give up some of their protection The most important question in any libel or slander action: Was the P a private or public person? If the answer is Public official, then that person is required to prove that the D published with KF RD If the person is a private, then it depends on the law of the particular state. Usually negligent standard applies.

5.

Private individuals Gertz; did NOT extend constitutional privilege 1. Why? Private plaintiffs have not voluntarily exposed themselves to defamatory falsehood like public plaintiffs have 2. Knowledge of falsity or reckless disregard is not required 3. States must require some type of fault (no longer S.L.) for defamation of private individuals Constitutionally required i. Majority require negligence (MS as well) - RPP would not have published UTC ii. Minority knowledge of falsity or reckless disregard *So.common law strict liability is NO longer the case as P must prove some fault in ALL libel and slander actions!!!

6.

Public/Private Dichotomy (from Gertz case) - Key question: Whether or not the person is a public or private person? This is a question of LAW. a. If P to be held a private person, then must prove some fault b. If P to be held a public person, then must prove knowledge of falsity or reckless disregard The private P. has to prove some kind of fault. The 1st A. wont permit strict liability. The kind of fault that they have to prove is left up to the states. The Supreme Court also said we are not going to have anymore presumed damages. The jury will decide if the P. suffered actual damages due to the defamatory statement.

Public or Private Figure? Question of LAW for the JUDGE The way it is approached is this:
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Public official holds or is candidate for some public office, affects public policy b. Public Figure: 2 Types i. Universal public figure: extremely well known or famous person; involuntary public figure; not many of these people (ex-Falwell) ii. Vortex/limited public figures: (drawn into the vortex of the public issue) voluntarily involved in a public controversy (matter of legitimate public concern), becomes public figure only w/regard to the particular issue. 2 Part Test: 2 Inquires 1. Is there an existing public controversy? -mere public interest is not enough 2. Did the P voluntarily get involved in the controversy? (in the vast majority of situation, the getting involved must be voluntary) iii. Court will consider the following to determine if public figure: - voluntariness of publicity - public access of the P - Ps assumption of risk Everybody else is considered Private persons.
a.

If you become a public figure, the court is basically saying that you probably wont win a libel suit. Damages: (See Notes) Presumed damages At common law, P didnt have to prove actual damage to reputation, jury could award presumed damages to reputation and could also recover for emotional distress, pain and suffering, punitive damages, etc. -Rule now changed depending on who P is and what publication is about... Malice: Ill will or hatred. The kind of conduct that will lose qualified privilege. At CL, if the D had qualified privilege then the P had to prove malice. WE NEVER TALKED ABOUT ANY OF THIS ACTUAL MALICE BIT! 1. Public Plaintiffs- Must prove actual malice to recover damages AT ALL.actual malice is element to lawsuit i. If actual malice proven then can recover punitive or presumed 2. Private Plaintiffs Legitimate Public Concern (cannot recover presumed or punitive damages unless prove knowledge of falsity or reckless disregardthis is the Gertz case. relating to publication i. P must prove actual malice in order to recover punitive or presumed damages.if not proven; only actual damages allowed - damage to reputation (proven, not presumed) - actual damage: emotional distress, humiliation, pain/suffering, ect.
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3. Private Plaintiffs NO Legitimate Public Interest (can recover presumed damagesmake sure of this!!) relating to publication. But if all they prove is negligence they cant recover. i. Punitive or presumed damages ARE recoverable without proving actual malice.but still must prove some fault ii. Also can recover actual damages iii. Note: P must prove more than negligence though for punitive Procedure: A reviewing court (trial or appellate) must make an independent review of the evidence when malice is proved. The question of whether actual malice is proven with sufficient evidence is a matter of LAW for the JUDGE to conduct an independent de novo review of. (not for negligence) Gertz involved Private person and matter of legitimate public concern Dun involved private person and Not matter of legitimate public concern Burden of proof of falsity a. Common Law presumed falsity and had B.O.P. for proving truth b. Modern BOTH private and public plaintiffs have B.O.P. of proving falsity by clear and convincing evidence IF the publication involves a matter of legitimate or general public interest (the private P. is going to have to prove that it was false) (I dont think what this outline says is right!) the standard is a preponderance of the evidence. c. If you are suing someone for a matter of legitimate public interest, whether or not you are a private or public person, you must prove that the matter was false. d. If publication is NOT a matter of legitimate public interest then regardless of whether plaintiff is public or private the B.O.P. is up to the states *MS requires EVERY plaintiff to prove falsity!!! Common Law Qualified Privilege For Public P, if he proves KF RD For Private P, there still can be a place for CL qualified privilege. P has to prove negligence in order to recover anything from the D. If the D was in a situation that under CL he would have had qualified privilege, most writers think the Court will require the P to prove KF RD A reporters privilege: Ordinarily speaking a person who repeats a defamatory statement is liable for that. If a reporter covers a public meeting, he or she has privilege to the publication of the things said there. As long as the report is accurate there is no liability. Retraction Statute: MS has one.

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At least 10 days prior to filing a liable or slander action, the person who is going to sue the publisher is required to give them notice that he or she is going to sue or to ask them to retract. The point is for them to give opportunity for the publisher to give an apology or retract. Purpose is to show good faith. It does not mean the P cant sue. Slander (not per se) requires prove of special damages. Stmt of Fact v. Opinion difficult to distinguish many times If a reasonable person could conclude that the publication implies an assertion of fact then an action may be brought. Basically, if it can be proven then it is not an opinion 1A protects ideas not false statements of fact. You leave it up to the jury to decide whether it was an opinion or notsee pg. 956 highlighting. Back to Privileges for a moment: if someone calls me and asks me about what I think of a public official. Is there any privilege? Will it do any good to assert this privilege? No. The public figure will have to prove knowledge of falsity or reckless disregard. So it wont do any good to raise any qualified or CL privilege. With regard to public figures, the CL privileges dont apply anymore. What if they call me and ask me about a private person? Unlike in the other situation, the person is going to have to prove that I was negligent. That is part of their prima facie case. Then I raise as part of my defense that I was operating under a CL qualified privilege to discuss the reputation of a person they were thinking about hiring. Will this help my defense? It depends on the state Im in. Most states are saying that the P. has to prove negligence, but if I am found to be operating under a CL qualified privilege, the P will have to prove moreknowledge of falsity or reckless disregard. This is what MS does.*** Overall Framework for Defamation Analysis: Digression (Not notecarded, make chart)
1.

Libel & Slander Per Se Private Plaintiff a. Plaintiff must prove: i. Publication to a 3rd party that could be understood by the third party ii. False not substantially true iii. Statement of Fact or statements that imply assertion of fact iv. Defamatory make people think less of P after hearing v. About P explicitly or colloquium/innuendo vi. Fault and Damages NO Special Damages necessary to recover! b. Fault i. NOT matter of Legitimate Public Interest: P must prove some fault (Majority require that publication was at least negligent) 1. Damages: Presumed and punitive damages recoverable dont have to prove actual malice! Also recover actual damages
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Privileges: absolute privilege defeats suit; qualified privilege to overcome, P must prove knowledge of falsity of reckless disregard (because P has to prove some fault even if there is no privilege so must have higher standard here) 3. State vary as to whether P has B.O.P. to prove falsity (MS always puts burden on P)
2.

Matter of Legitimate Public Interest: 1. Burden of proof on P to prove falsity of statements 2. Damages: P must prove actual malice ( knowledge of falsity or reckless disregard) to recover presumed or punitive damages 3. Even if P cannot prove actual malice, P can still recover actual damages in most states if P can prove negligent publication 4. Absolute privilege defeats suit; qualified privilege can be overcome only by proving knowledge of falsity or reckless disregard 2. Libel & Slander Per Se Public Plaintiff a. Public official: holds or is candidate for office b. Public figure: i. Universal figure: prominent, well-known; constitutional privilege applies to any statements about this P ii. Vortex figure: voluntarily involved in a public controversy; constitutional privilege applies only to statements made relative to the subject of the controversy c. Plaintiff must prove: i. Publication to a 3rd party that could be understood by the third party ii. False not substantially true iii. Statement of Fact or statements that imply assertion of fact iv. Defamatory make people think less of P after hearing v. About P explicitly or colloquium/innuendo vi. Fault and Damages NO Special Damages necessary to recover! d. Fault: i. Burden of proof is on P to prove falsity ii. Must prove actual malice to recover at all (knowledge of falsity or reckless disregard).then, P can recover presumed and punitive damages iii. Absolute privilege defeats suit iv. Qualified privilege do NOT exist if P is public official or figure because P must prove actual malice in the prima facie case
ii.

Speech of Private Concern Dun & Bradstreetv. Greenmoss Builders

Private person could not recover presumed damages without showing Knowledge of falsity or reckless disregard Constitution does not require a private person to prove KF RD to prove a libel case where the libel was not made by a public media/ 45

Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.

Brief Fact Summary. Dun & Bradstreet, Inc. (Petitioner) sent a report to five subscribers, regarding the credit rating of Greenmoss Builders, Inc. (Respondent). The report was proven false, and Defendant brought suit for libel, based on the harm it incurred as a result of the erroneous report. Synopsis of Rule of Law. The First Amendment does not protect the speech of a nonmedia party, when its actions create slander and/or libel against another private party. Facts. Petitioner sent a credit report to five subscribers, indicating that Respondent had filed a voluntary petition for bankruptcy. The report was false, the result of the Petitioner's use of a 17-year-old high school student to review the bankruptcy proceedings. Respondent was actually in good credit standing, but one of its employees had, indeed, filed bankruptcy. When respondent learned of the error, it called Petitioner, explained the error, and asked for a correction. Petitioner sent out a notice of the mistake, but refused to disclose its subscribers, and Respondent brought suit for liable. Respondent was awarded $50,000.00 in damages, and $300,000.00 in punitive damages. The trial court granted a new trial, but Respondent appealed to the Supreme Court of Vermont, which reinstated the verdict, maintaining that the constitutional requirements for a suit for libel did not apply to a non-media defendant. The Supreme Court of the United States granted certiorari. Issue. Whether the first amendment rights of the maker of an expression, concerning public issue, preclude it from being sued for libel, when it is not a media defendant? Held. Affirmed. In reaching its conclusion, the Court focused on content, form, and context, in considering whether the Defendant's speech was protected by the First Amendment. In this case, the Court found that the Defendant, a private subscription service, was not reporting on an issue of public concern when it made its report regarding the Plaintiff, and as such, it could not seek protection under the First Amendment. Dissent. Justice Brennan dissented, noting that although this type of speech is not central to the meaning of the First Amendment, punitive damage awards should be restrained. Discussion. While the First Amendment affords media defendants great protection, when they are reporting on issues of "public concern", non-media defendants cannot use that same protection when their actions cause damages to private parties.

Falsity Philadelphia Newpapers v. Hepps Does the US constitution require a private P to prove that a media publication is false? Majority: Yes, provided the article is one of general public interest. Whether there is a different standard for a media and all else? The Hepps case makes it certain that it applies to media.

Philadelphia Newspapers, Inc. v. Hepps

Brief Fact Summary. Hepps (Plaintiff) brought suit against Philadelphia Newspapers, Inc. (Defendant), after it published a series of articles alleging that Plaintiff had links to organized crime, and had used their position to exercise influence over the government. Synopsis of Rule of Law. A private party cannot bring suit against a newspaper for slander or libel, without bearing the burden of showing falsity and fault, before recovering damages. Facts. Plaintiff was the principal stockholder of General Programming, Inc. (GPI), a corporation engaged in franchising convenience stores. Defendant published a series of articles, alleging that Plaintiff had exercised undue influence over the governmental using its ties to organized crime. Plaintiff brought suit based on slander. At the jury trial of the matter, a verdict was found for the Defendant. The Supreme Court of Pennsylvania remanded the case, holding that it was not unconstitutional to hold that the Defendant must bear the burden of showing the truth of the statements. The Supreme Court granted 46

certiorari. Issue. This case considers whether a media defendant must bear the burden of proving the truth of statements it publishes, when they are attacked as libel by a private Plaintiff. Held. Reversed. The court held that the Plaintiff must prove the truth or, actually, the falsity of the statements alleged as slanderous, to recover damages. While the Plaintiff is a private figure, the Defendant is protected by its First Amendment freedom of press rights against a suit for slander, Dhen a plaintiff cannot prove that it published false statements and, thereby showing that it was at fault. Dissent. The dissent held that a private-party plaintiff should not have to bear the burden of showing certain statements to be false, in order to recover damages based in slander. According to Justice Stevens, "deliberate, malicious character assassination is not protected by the First Amendment to the United States Constitution." The First Amendment does not require the target of defamation to prove his assailant was at fault. Discussion. The First Amendment affords a newspaper great leniency in what it publishes. In this case, the Plaintiff could not prove that the Defendant had knowingly printed false statements, and thus, the Defendant could not be held liable for slander.

Opinion

Milkovich v. Lorain Journal Co.

Brief Fact Summary. Milkovich (Petitioner) brought suit against Lorain Journal Co. (Respondent), when it published an article, which implied Petitioner had lied under oath in a judicial proceeding. Synopsis of Rule of Law. The First Amendment does not preclude a newspaper from being sued for libel, when a plaintiff can show that statements published were an attack on reputation. Facts. Milkovich was the wrestling coach at Maple Heights High School in Ohio. During the 1974 season, the team was involved in an altercation at a home match, during which several people were injured. After the altercation, the Ohio High School Athletic Association (OSHAA) placed the team on probation. Then, several parents and students sued the OSHAA, in the Court of Common Pleas, seeking a restraining order of the probation, on the grounds that due process had not been afforded to the members of the team. The court overturned the conviction and, the next day, Respondent published an article alleging that Petitioner had lied so the probation would be overturned. Petitioner brought suit, alleging defamation. Issue. Whether a newspaper can be held liable for defamation, when it publishes an article about a private figure which, albeit opinion, was designed as a character attack? Held. Reversed. The Court reversed the lower court ruling that the article constituted a constitutionally protected opinion, and held that while the First Amendment does guarantee uninhibited speech, the important social values underlying the law of defamation recognize a strong interest in preventing and redressing character attacks. Discussion. The First Amendment gives great leniency to newspapers and their journalists; however, the constitution also recognizes that defamation can exist, when an article is published specifically to attack another's character. The question is whether or not a reasonable person after reading the article would have concluded that the person had committed perjury or not? The US Constitution does not require any more than that.

Remedies
Damages: The prime remedy for defamation is damages. For Libel and Slader per se, it was presumed at CL that there were general damages, damages were at large, and thus the jury were permitted to estimate the harm to Ps reputation that they thought the defamation has caused, without the need for evidence to support the conclusion. Gertz however, confined damages to compensation for actual injury unless P establishes actual malice. To the extent that damages cover pecuniary, or out of pocket loss, an award of money damages is entirely appropriate as it purports to make the P whole. 47

If slander is not actionable per se, then special damages must be proven Actual injury may include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering, so long as there is adequate proof of these matters.

INVASIONS OF PRIVACY (4 separate causes of action) (for the purposes of this class do not use invasion of privacy term. Because there are four separate causes of action) Note: These causes of actions below are NOT called invasions of privacy! A. Appropriation of Name or Likeness (Appropriation cause of action) Elements: 1. The used the Ps name or likeness (without II consent) 2. Use of s name or likeness was for the s own purpose or benefit commercially or otherwise - more than mere publication or mentioning 3. P. suffered damages 4. s use of s name or likeness caused the damages Damages: ALL jurisdictions allow damages for any personal injury (Emotion D.) and also damage to a persons right to publicitytheir name or likeness could be valuable (endorsing products, etc.) i. Minority view name or likeness as a property right * to recover for pecuniary loss P. must prove name or likeness had a commercial value ii. Majority NO proof of commercial value necessary to recover pecuniary damages Restatement 652C: Privilege under 1st Amendment If D has privilege under 1st amendment, s claim will not succeed. Affirmative Defenses: 1. Consent no liability if consent for appropriation given 2. Legitimate Public Interest if appropriation is of legitimate public interest then protected under the 1A so long as NOT commercial speech i. Speech cannot propose a commercial transaction ii. Does NOT matter if had a profit motive so long as not commercial speech.this is a question of law for JUDGE Commercial Speech: speech that proposes a commercial transaction It is in the content of the speech not the motivation of the speaker, which determines whether particular speech is commercial. A profit motive does not transform a publication regarding a legitimate matter of public concern into commercial speech. B. Intrusion upon Solitude or Seclusion must be intentional; not negligent Elements: 1. Intrusion into a private place, conversation, or matter
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i. NOT public! Ex) photo of P in public park ii. must have had a reasonable expectation of privacy in intrusion *tort does NOT require complete or absolute privacy against intrusion...just reasonable 2. In a manner highly offensive to a reasonable person (objective) i. depends on the nature of intrusion and ID of intruder ex) reporter bringing camera into home or office C. Public Disclosure of Private Facts TRUE facts Elements: 1. Public Disclosure more than just a few people 2. Private Facts public cannot know about (i.e.- not of public record) 3. That is highly offensive to a reasonable person (objective) i. ordinary sensibilities unless D knew about hypersensitivity 4. NOT of legitimate public concern i. 1A affirmative defense is there is a good reason for doing so ii. Becomes more likely the more well known a plaintiff is * Facts disclosed here are TRUE distinguish defamation where false 1. Constitutional Issue Many states do NOT recognize this cause of action (MS) Why? 1A free speech conflicts because publicity is true S.C. had not addressed whether true publication can be CofA 2. Breach of Confidence person entrusted with confidential information may have obligation not to disclose information to 3rd parties i. Based on the relationship between the parties (form of malpractice) ii. Disclosure here need NOT be public.may only be to one person iii. Common law tort which some courts still recognize while others label it as invasion of privacy (have not notecarded) Dont think we talked about this breach of confidence bit. This whole cause of action is constitutionally suspect. The SC has not said anything definitive about it. D. False Light only recognized by 20 statesleast important of the four Elements: 1. Publication 2. False 3. Statements of fact or inferences of facts.NOT opinions! 4. That cause mental distress i. Only difference between false light and defamation is damages. False light actions do NOT involve damages to ones reputation. Merely mental distress. ii. Same rules as defamation apply: 1. Public Official/Figure? Yes = must prove knowledge of falsity or reckless disregard (actual malice, but dont use actual malice language on test!!) to recover ANY damages
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No = private s must prove negligence for publication *Actions for infliction of emotional distress cannot be brought by a public figure for opinions about them (People v. Larry Flint) * EVERY publication about a public figure requires to prove knowledge of falsity or reckless disregard.even if action is for emotional distress so long as conduct was a publication and public official (did not note card) (Libel exists to protect reputation from false statement of fact) MISUSE OF LEGAL PROCESS A. Malicious Criminal Prosecution Note: D.A.s are immune from this tort 5 Elements: 1. D instituted criminal proceedings against P o Not merely reporting events to police 2. Termination of the proceedings in favor of P o Cannot bring action until proceeding have ended in Ps favor o Ex. - acquittal, abandonment of proceedings by prosecution, ect. 3. Absence of probable cause for proceeding against P o Negligence question Would a RPP in defendants shoes have thought that the committed the crime? o Question for the JUDGEstatute will be key in determining o Weems says if reasonable minds could differ, it is a question for the jury. 4. Malice o The only proper motive for D is to bring a criminal to justice o Malice = improper purpose for prosecuting; so ANY other motive than bringing a criminal to justice will be malice! Ex) to collect debt, negotiating to drop charges if _______ o Absence of probable cause may raise a presumption of malice for jury to consider..this does not apply to malicious civil prosecution 5. Damages ( o Law presumes some damages took place; usually will be a lot Affirmative Defense proving actually committed the crime charged by the preponderance of the evidence....often works b/c B.O.P. is lower in civil actions B. Malicious Civil Prosecution Wrongful Civil Proceedings Elements: (same as malicious criminal prosecution) 1. initially instigated civil proceedings against 2. Prior civil proceedings terminated in favor of (accused) 3. Absence of probable cause for original proceedings i. NOT enough that P merely prevailed in the original proceedings ii. Much more difficult to prove than in criminal malicious prosecutions 4. Malice
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i. Improper purpose for bringing action....ulterior motive than adjudication ii. Absence of probable cause does NOT infer malice (unlike criminal) 5. Damages must be proved! Not presumed! (like criminal) i. Minority must prove special injury to even bring action (element) - special damages to (1)property, (2) liberty, (3) reputation ii. Majority NO special damages required to recover (MS) Attorneys- owe NO duty of reasonable care to adversaries; would create conflict of interest. *ONLY way lawyer may be sued for malicious civil prosecution is if he knows his client has improper purpose in bringing lawsuit AND lawyer knows the case has no merits (kind of like conspiracy) C. Abuse of Process Criminal OR Civil Process (make sure we did this) Elements: 1. Ulterior Purpose in bringing action (see p.1050) 2. An act in the use of process which is improper in regular proceedings i. Ex) arrest warrant for blackmail, service to harass ii. Note: termination of proceedings in favor of not required! *Focus on what did AFTER process for this tort (opposed to malicious prosecution which focuses on s actions BEFORE process) In terms of proving lack of probable cause- the P. would have to show that a reasonable prudent lawyer in the D.s position would not think that the claim could succeed. It is much harder to prove civil lack of probable cause. Spoliation of Evidence failure to preserve evidence; most states and MS do not recognize this tort due to the numerous other remedies available for such The typical abuse of process situation is when someone gets another person arrested and then goes to them and says if you do such and such for me, Ill dismiss this whole thing. MISREPRESENTATIONS A. In General 1. 2 Causes of Action: a. Fraud/Deceit intentional misrepresentation allows benefit of the bargain damages b. Negligent Misrepresentation 2. Interest Protected ones right not to be cheated in a business transaction 3. Many times plaintiff will be able to bring several other causes of action (breach of K, restitution, rescind K, ect.) but want to bring tort actual because it allows a better chance of recovery and possibly more recovery

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4.

Main reason for misrepresentation action is that it allows recovery for pure pecuniary loss in a business transaction where may be no personal injury

In class notes: 3-29-2012 Tort causes of action where the wrongful act of the D has caused pecuniary loss to the P. Fraud / Deceit A. Concealment and Nondisclosure 1. Not separate causes of action; they are ways in which fraud can be committed 2. Active Concealment defendant will be liable if concealment is material *Material = likely to affect decision of a reasonable person 3. Bare Non-Disclosure (termite case) general rule is NO liability as long as do not actively conceal OR no intentionally false statement OR no fiduciary duty i. Depends on jurisdiction becoming more lenient towards allowing ii. Special Relationship D may have a duty to disclose if special relationship which party would reasonably expect disclosure iii. Distinguish active concealment of something and bare non-disclosure! 4. MS no liability for non-disclosure; plaintiff must prove 1) P and D were in a fiduciary relationship 2) D did something to actively conceal the issue B. Basis of Liability Fraud/Deceit *If P can prove fraud, he is entitled to the benefit of the bargain Elements: P must prove: 1. Misrepresentation - must have led to believe something was true that was not.must have been misleading i. Must be active concealment here....NOT bare non-disclosure! 2. Scienter (a lack of an honest belief in the truth) D did not honestly believe what he said was true (subjective standard, NOT RPP standard) *Jury must find: that the D did not honestly believe what he said was true * Hardest element to prove and most important element i. Prosser that the intended to deceive (see note 5 1071). ii. Has immoral component - intended to cheat iii. B.O.P. on is clear and convincing evidence of such iv. Once established, Ds motive does NOT matter Restatement (Scienter): Misrepresentation is Fraudulent IF: - maker knows representation is not true - maker does not have confidence in the accuracy of representation - maker knows he does not have basis for his representation 3. Reliance must prove that they reasonably relied on misrepresentation i. This is the proximate cause of fraud AND negligent misrep. ii. Cause in Fact + Legal Cause iii. See coverage of reasonable reliance below along w/ limitations 4. Damages if can prove fraud, entitled to benefit of the bargain damages
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must PROVE benefit of the bargain damages to recover!! If D. has a car they want to sell, the actual mileage is 145,000. Odometer turned back to 45,000. Assume actual value of car is $8,000. But with the fraudulent mileage it is valued at $15,000. The owner offers to sell the car to the P. for $10,000. P. thinks they are going to get a bargain. If P. proves frauddamages. The general rule of damages is to put the P. in the position they should have been in. Here they are out $2,000. But most js allow the P. to recover the benefit of the bargainwhich is the represented value (15,000) actual value (8,000) = $7,000. The jury may also award punitive damages in this case. So a P. may want to bring a benefit of the bargain COA instead of a rescission of the K action. And P. gets to keep the car.

Negligent Misrepresentation (a negligence COA) P CAN recover for pure pecuniary loss in a negligent misrepresentation case, unlike other negligence cases. *The key issue in a negligent misrepresentation case is whether or not the D had a DUTY to use reasonable care in providing P w/ information. Elements of negligent misrepresentation: Duty (to use reasonable care when speaking or writing) 4 Part Test to establish: 4 Elements i. Knowledge by the that the information was desired for a serious purpose ii. Knowledge by that P intends to rely on information iii. Knowledge by that if the representation is false, the P will suffer some damages iv. Existence of some special relationship between P and that warrants a duty to use reasonable care and establishes a right to rely on information (could be a business relationship, but not buyer and seller of a house). *Majority says that any business transaction establishes duty 2) Breach of duty just because duty exists does not mean breach! i. RPP in s position must not have done same thing 3) Proximate Cause - reasonable reliance i. Cause and Fact and Legal Cause..see below 4) Damages usually pecuniary damages but may be more i. NO benefit of the bargain damages only fraud ii. Damages recoverable include out-of-pocket Ds *Burden of proof in a negligent misrepresentation is by a preponderance of the evidence.
1)

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Weems example of him walking around the square and negligently giving a guy directions to the federal courthouse (accidentally sends him to country courthouse). Is he liable? Depends on whether he owes the guy a legal duty. (see 4 elements of duty) NOTE: Trouble in fraud C/A is proving scienter; trouble in negligent misrepresentation C/A is establishing duty. (these are the most important elements of each) Publishers: Publishers of books have NO DUTY to investigate the accuracy of the text. Personal Injuries: 311 says that parties have a duty if, in furtherance of their own interests, give information to another AND knew or should have known that the safety of others depends on the accuracy of information (did not notecard these) Check out Note 1 pg 1077 on Restatement where you could hold the authors of the mushroom book liable. Rule--Generally to be actionable a misstatement must be one of fact and not opinion. Liability to Third Parties Negligent misrepresentation: *Remember- anyone who is within privity of K is NOT a 3rd party *Most negligent misrepresentation cases involve accountants; however these two rules below apply to other professionals who give advice to 3rd parties as well 1. Majority accountant only liable to those who are in privity of K UNLESS: a. 3 Elements: i. Accountant aware reports used for a particular purpose ii. Accountant knows a party is relying on reports iii. Must be some conduct by accountant which shows an understanding of this knowledge b. Knowledge of accountant is required hereforeseeability NOT enough i. Mere negligent standard would hold them to indeterminate liability 2. Minority NO privity of K required and mere negligent standard applies i. Liable to any foreseeable partyNO knowledge required! Fraud/Deceit: (has a very high burden of proof-the general rule is that the P. must prove the fraud by clear and convincing evidence, NOT by a preponderancemore than 50%) Must also give a detailed notice One who makes a fraudulent misrepresentation or concealment is subject to liability for pecuniary loss to the persons or class of persons whom he intends or has reason to expect to act or to refrain from action in reliance upon the misrepresentation. Doctrine of transferred intent does NOT apply to fraud actions as it is in other intentional tort causes of action. Therefore, fraud liability has less of a scope than negligent misrepresentation.
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Fraud Liability: is liable to anyone who.531 1. intends to defraud OR 2. Belongs to class of persons which P has special reason to know will act in reliance upon the misrepresentation i. Was in class of persons trying to defraud ii. Foreseeability alone is NOT enough!...knowledge is The Doctrine of transferred intent only applies to 5 intentional torts, fraud is NOT one of them. (I think the 5 are assault, battery, .) Reliance Reliance is an essential element of both fraud/deceit AND negligent misrepresentation causes of action. P must prove both: 1. Relied on the misrepresentation (Reliance) * this is the cause-in-fact of misrepresentations and fraud actions a. Must prove but for the misrepresentation, P would not have acted and suffered injury b. It has to be something material that would affect the P c. Question of fact for JURY 2. Reliance must have been shown to be reasonable/justifiable *this is the legal cause of misrepresentations and fraud actions a. Must prove that a RPP would have relied on misrepresentation b. Question of law for JUDGE Corollaries: used by courts to help determine legal cause Generally Cannot Rely On: 1. False Statements cannot reasonably rely on obviously false statements (something that could be shown to be false by an ordinary observation) i. Majority has NO DUTY to investigate the truth of an apparently reliable statementeven if it could be done easily 2. Opinion general rule is cannot reasonably rely on statement of opinions; must be a misrepresentation of an existing FACT i. Cannot be basis for either fraud OR negligent misrepresentation ii. 3 Exceptions: 1) If maker has superior knowledge 2) RPP would have relied on opinion 3) If opinion implies certain facts material 3. Puffing usually treated as statement of opinion; cannot rely on puffing i. Puffing is what owners of property say about it which we would expect them to say (even if they dont believe it) 4. Predictions cannot reasonably rely on what is going to happen in the future i. ex) price changes, stock market going to go up ii. Exception: if prediction contains an implied statement of an existing, present intention or state of mind at the time (that is a fact)
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- P would have to prove D did not intend to do what he said 5. Law cannot rely on what a layman says about the law. Can rely on lawyer. Generally CAN Rely On: 6. State of Mind/Intentions person can rely on representation as to ones state of mind or intentions (statements of present intention are facts) can be basis of a fraud action. i. State of mind is a statement of FACTdistinguish predictions ii. ex) I intend to pay off my mortgage this could be a fraudulent statement if he never intended to do it. A cause of action could lie. 7. Statements of Value can rely on any statement regarding value of something Damages Reasons why P would bring fraud action instead of breach of contract C/A: *B of B Damages are NOT available to negligent misrepresentations!! P can get benefit of the bargain damages in fraud actions (whereas breach of K action may only warrant rescission/reliance damages) i. Benefit of the bargain (example): represented value of house = $50,000 > P pays $42,000 > actual value = $39,000 (b/c of defects); regular compensatory tort damages = $3,000 (amt. paid less actual value); benefit of the bargain damages = $11,000 (represented value less actual value) 2) P can typically get punitive damages in fraud action
1)

Benefit-of-the-bargain damages = represented value minus actual value i. must prove benefit of bargain damages!! Element! Out-of-pocket loss = amount paid minus actual value ($3,000) v. Normal tort remedy and negligent misrepresentation damages vi. Sometimes a tort lawsuit carries with it a particular kind of damages to go with it, and if you dont inform the jury of the particular way to award the damages, you will likely lose the case. XVIIII. INTERFERENCE WITH ADVANTAGEOUS RELATIONSHIPS

1. Trade Libel (a.k.a. Injurious Falsehood OR Slander of Title OR Disparagement) Publication of false statements about another persons property, real or personal, or his or her title thereto or the persons business in general, of a kind which is calculated to prevent others from dealing with the person when the publication is done maliciously and causes pecuniary loss.

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This is the third cause of action arising from publication of false statements (along with defamation and false light). Trade libel is similar to defamation except the damage is to the plaintiffs business. Therefore, must prove special damages. Damage is pecuniary loss caused by people not doing business w/ the P, including P that have done or could in the future do business w/ the P. (ex- making false statement about products testing results) Plaintiff Must Prove: Elements a. --motivated by a spite motive, b.a person who had no business making the statement, c.if the D. knows what he is saying is false. 1. Publication to a 3rd party 2. False Statement of Fact NOT puffing! i. Opinions NO cause of action for trade libel ii. Unfavorable comparison of products rule NO cause of action IF amounts to an opinionif can be proven; actionable*** cant just say our product is better. 3. Malice must prove D made false statement about business with malice i. May be done by showing D knew it was false or acted with sole purpose to harm Ps business 4. Special Damages P must prove pecuniary loss to even recover to trade libel
2.

Intentional Interference With Existing Contract Only applies to contracts for a term; Ks terminable at-will = prospective advantage P must prove interference was: Weemss Utah/Oregon Analysis *Must be an existing Contract!!!! (try and remember this)follows analysis of is it intentional, was it improper, improper by motive or means. P. must prove the interference was Intentional AND i. Must have been aware of an existing K with 3rd person.no cause of action for negligent interference with K relations ii. D intended the person to breach the K or it was substantially certain that the K was going to be breached iii. If it is a K terminable at will, then this would not be treated as an existing K, rather interference with prospective advantage II. ImproperP. must prove Interference was also improper i. Improper motive OR 1. *Competition is an improper motive for existing Ks!!!! i. distinguish prospective advantage 2. Ill will or malice are improper motives 3. Proper motive may be to exercise ones rights or protecting the public interest (political) ii. Improper means 1. Any act that would constitute a crime (ex-blackmail)
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2. 3.

Any act that would constitute an independent tort (ex- fraud) Anything that violates a statute, regulation, or code of ethics

There is another way to decide improper instead of the restatement position on pg. 1149, about half the courts recognize this other method. LOOK UP 7 FACTORS 1149!!! NOTE: Intentional interference with existing OR prospective Ks will make the liable for pecuniary loss. Lawyers cannot solicit clients. There are times when a person can intentionally interfere with an existing contract (check on this) There is no interference with existing K by negligent interference!
3.

Intentional Interference With Prospective Advantage (more important) Note: This COA is evolving, the elements are not fully established More common cause of action, but the analysis is the same. The interference must have been intentional or substantially certain it would have occurred, and improper means or motivesome wrongful act *At-will contracts ARE subject to this cause of action, unlike intentional interference with contract. But this cause of action does not require a K. No existing Ks here P must prove interference was: Intentional AND i. Again, although no K is necessary here, the must have been aware of the prospective advantage.....no negligent interference II. Improper i. Improper motive OR * Competition IS a proper motive distinguish existing Ks Exception if s sole purpose is to drive his competitor out of business that is NOT a proper motive (a motive just to hurt somebody is improperprevailing view) ii. Improper means - same as above III. Plaintiff must prove a substantial likelihood of recovery
I.

NOTE: Prima facie tort - CL COA that allowed P to recover if D did something to harm P intentionally; shifted burden to D to prove it was justified. This concept does not apply here because of need to maintain competitive marketplace. Now, P must prove improper means OR motive.wrongful act NOTE: Most actions for intentional interference w/prospective advantage involve future K relations. However, this action also protects some non-commercial interests (ex- interfering w/will or gift). Must show that in all likelihood they would have received the gift. See notes 3 and 4 pg 1160.
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Oregon/Utah***Weems theory applies to this tort as well: intentional and improper (motive or means). Half of Js have adopted this type of theory. The main difference b/t this tort and interference with existing K is that competition IS a proper motive with respect to intentional interference with prospective advantage. A K at will is classified as interference with prospective advantage. There is a huge overlap between the first and third of these COAs Intentional Interference with Family Relations 4. Loss of Consortium Cause of action available to either spouse for injury to their spouse by D. Not available in wrongful death cause of action, rather would be loss of society and companionship. i) Available for negligent, intentional, and strict liability causes of action. ii) Loss of consortium is the loss of sex, companionship, conjugal rights due to conduct of the D iii) Typically brought at same time as personal injury claim, but is also a separate cause of action that can be brought later by a spouse iv) Derivative cause of action (derived from the primary suit) - any defenses that could be raised in the personal injury claim can be raised in the loss of consortium claim (i.e. contributory negligence will be deducted from amount awarded) v) Loss of consortium in a negligence action-It depends on whether you view the marriage as a K terminable at will or a K for a term (i.e. life). One would be an interference with an existing K and one interference with prospective advantage. 5. Intentional Interference w/ Family Relations (2 Causes of Action):
I.

Criminal Conversations only have to prove someone had sex w/ your spouse, but this CoA has been abolished.

II. Alienation of Affection Common law cause of action that still exists in minority of states including MS Spouse Must Prove: 1. Allienation of affection for them occurred 2. 3rd Party caused this alienation i. But for the 3rd party alienation would not have occurred
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ii. Causation is a JURY question *This cause of action is ONLY available to spouses (NOT children of marriage or fiances) Another COA--criminal conversationsuing someone for having sex with your spouse, but this COA has been abolished in most js including MS. 6. Bad Faith Refusal to Pay an Insurance Claim (Bad Faith)(MS) Note: This cause of action is an exception to the rule that a party cannot be liable in tort for interference with his OWN contract unless his conduct amounts to an independent tort (tortuous breach of K) Old Rule = if insurance company did not have legitimate or arguable reason to not pay claim, the plaintiff could recover punitive damages i. Led to large verdicts for negligence so courts adopted new standard New Rule = must prove gross negligence, reckless disregard, or malice to recover punitive damages i. Negligent Conduct may still recover actual damages ex) emotional distress, anxiety, ect. ii. Delaying payment alone might be enough to award punitive damages if the conduct reaches the point of reckless disregard Before the jury can consider punitive damages, the P. must prove that they acted with malice or gross negligence. You dont get punitive damages in a civil lawsuit for mere negligence. There must be some kind of egregious conduct. Civil verdicts in MS do not have to be unanimous. Note: A plaintiff CANNOT bring a negligence cause of action for conduct that intentionally done would not have a cause of action. So, if can do it intentionally, can do it negligently. EXAM: JUST ANSWER THE QUESTION ASKED!!!! (whatever that means)

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