Torts Outline

Thursday, October 27, 2011 9:28 PM

I. Intentionally Inflicted Harm: The Prima Facie Case and Defenses a. Strict Liability System i. Was the act volitional? ii. If yes, there may be no liability of P assumed the risk of harm iii. But if they assumed the risk, there is still liability of D intended to cause the harm iv. Unless D had an excuse (necessity, consent, self-defense, etc.) b. Intent: i. R2T 8A: actor desires to cause consequences of his act OR believes consequences are substantially certain to result from it 1) Consequences refer to harmful or offensive contact itself, not injuries that result from it. ii. Only have to intend the action, not the harm motive irrelevant (See Mohr v. Williams) iii. Transferred Intent: Intent is met if actor intends to commit battery on A and actually inflicts it on B iv. Sequence (T6-7): 1) D kicks P 2) P assumes the risk of injury from accidental contact and 3) D intended the harm 1) If 2 does not apply, then 1 by itself is enough. 2) If 2 does apply, either 3 is needed or D wins c. Physical Harms i. Trespass to Person, Land and Chattels 1) Vosburg v. Putney: Plaintiff must show, for assault & battery, that there was intended unlawful (offensive) contact or reasonable knowledge that act will result in offensive contact 2) Dougherty v. Stepp: All unauthorized entry to land of another is a trespass 3) Still applies if above or below surface of the ground 4) Intangible intrusions to land may be trespasses, but only if able to prove physical damage due to the intrusion (electromagnetic fields case); often, however, the benefits of the trespass outweigh the minor negative aspects 5) Trespass to Chattels: allows recovery for interferences of property (actual injury to chattel must result) a) Injunctive relief granted ONLY if defendant's wrongful actions threaten to cause irreparable injuries 6) Intel v. Hamidi: Electronic communications do not constitute trespass to chattels unless they damage or impair the functioning of anothers property a) Requirements for injunction: high likelihood of imminent, irreparable harm that cannot be adequately compensated by damages 7) Take the victim as you find them: (not intent to harm, intent to trespass) 8) Principles: non-interference & autonomy ii. Conversion 1) When P can show that D used P's property under a claim of title inconsistent with hers (i.e. D's claim to keep the goods in perpetuity or at least for some indefinite period of time) a) D must intend to claim ownership of the goods for himself 2) R2T: an 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 full value of the chattel" 222A 3) Limitations a) P's demand for return of her thing and D's refusal to honor it b) Cannot take place by simple neglect or indifference; it always requires some affirmative claim of ownership by D or some act inconsistent with P's title 4) Poggi v. Scott: a) Conversion is the unwarranted interference by D with the dominion of the property of P from which injury to the latter results b) Neither intent to commit a wrongful act nor knowledge that property is Ds is Outlines Page 1

b) Neither intent to commit a wrongful act nor knowledge that property is Ds is required for conversion; intent can modify the level of damages i) Exception: does require intent to exercise dominion or control over the property c) Unlike liability, damages depend on Ds mental state 5) Moore v. Regents of the University of California: Conversion requires an actual interference with a persons ownership or right of possession; does not exist in this case which involves use of cells that P would have discarded and thus did not own; ownership interest essential a) Conversion can exist with intangible property (such as domain names) b) Conversion does not exist with voluntary medical donations iii. Defenses to Intentional Torts 1) Consensual Defenses a) Volenti non fit injuria: to one who is willing, no wrong is done (consent = no liability) b) Plaintiff's words, gestures, or conduct reasonably manifest consent to it, even fi she was not actually willing to be touched (objective test) c) Misrepresentation makes consent invalid d) Where legislature bars conduct to protect a disadvantaged class, plaintiff's actual consent may not create a privilege (minor's consent) e) Can't consent to illegal act (Hudson v. Craft) f) May include one touching and not another (medical cases) (EE50*) i) Emergency privilege: can render such treatment IF One. The reasonable person would consent to it Two. There is no reason to believe that the particular patient would not AND Three. Delay would involve a risk of death or serious bodily harm to the patient g) Mohr v. Williams: Doctor & Ear; "Every person has a right to immunity of his person from the physical interference of others, and any unauthorized or unlawful touching of the person of another constitutes an assault and battery." i) Modern: less stringent but people still have right to refuse ii) Substituted consent in the case of minors, incompetents 2) Insanity a) McGuire v. Almy: Insane person is generally held liable for his torts 3) Self-Defense a) Authorizes use of force to prevent impending battery or stop one which is in progress b) Only reasonable force: reasonably believes is necessary to avert the threatened harm (EE45) c) Deadly force: intended or likely to cause death or serious bodily harm" i) R2T 65: only if she reasonably believes that she is threatened with deadly force "which can be prevented only by the immediate use of such [deadly] force" d) No duty to retreat e) Defense of others i) Act upon his reasonable perception* ii) Only has privilege if other person actually was privileged to defend himself f) Courvoisier v. Raymond: {man who shot cop, thought he was attacker}; mistake can be a defense if a reasonable man would think he was in danger i) Necessary conditions: situation is so immediate that traditional remedies would not suffice, responding to an ongoing risk, response must be proportional to the risk 4) Defense of Property a) Bird v. Holbrook: {spring gun protecting garden}; no notice of spring gun so it was to harm rather than to deter which made him liable i) Restatement says this is allowable to the extent that the person would be able to use that force if they were actually there b) Must be first met with request to leave unless danger is imminent i) After this D is privileged to make an ordinary assault and battery on P, but Outlines Page 2

i) After this D is privileged to make an ordinary assault and battery on P, but not to inflict serious bodily harm such as wounding. {force cannot ever be disproportionate} c) If P is causing damage to property, no request needs to be made & D can bodily remove P from his property. 5) Recapture of Chattels a) After property has been taken, D may take the property back, and if necessary, take after P in hot pursuit i) Force may be met with force {but not excessive force} b) D must show wrongful taking of his property AND his prompt response c) Only applies to chattels forcibly taken from possession 6) Necessity a) Applies when D is driven to trespass because of an act of God, wrongful (violent) act of a third party, etc. b) Limited to risks of death, serious bodily harm or loss of substantial property i) Property saved must be more valuable than the property lost c) Ploof v. Putman: {person tied boat to island to save himself during storm, D untied ship}; doctrine of necessity applies ESPECIALLY to preserve human life. i) Recoverable damages = damages - damages that would have occurred if ship had not been untied ii) Owner of land being trespassed on may not stop person from using land in necessity, but does not need to assist them d) Vincent v. Lake Erie Transportation: Boat tied to dock, stays there because of storm, boat damages dock, liability for boat owner i) Conditional/Incomplete privilege*: Public necessity may require the taking of private property for public purposes; but compensation must be made (pay for all damages caused) ii) Complete privilege: no compensation need be made e) Destruction of property to prevent the spread of fire or other cases of absolute necessity is allowable by public servants. Benefit of the community at large d. Emotional and Dignitary Harms i. Assault 1) Allows for recovery for interference with peace of mind even w/o physical invasion 2) Elements ( 21) a) Act with intent b) To place the victim in apprehension of a harmful or offensive contact OR to make such a contact AND c) The victim must reasonably be placed in apprehension of such a contact 3) Intent to batter can also suffice for assault 4) Apprehension: perception or expectation/anticipation of a blow, rather than a fright 5) Contact must be imminent: There will be no significant delay. (EE26) a) "apparent present ability" 6) Mere words alone cannot constitute assault (unless together with other acts or circumstances) 7) Conditional threats are usually not enough unless it's forcing one to abandon rights they have to avoid battery ii. Offensive Battery 1) Intentional infliction of a harmful or offensive contact with the person or the plaintiff 2) Harmful: 15: any physical impairment of the condition of another's body, or physical pain or illness 3) Offensive: 19: if it would offend a reasonable sense of personal dignity" a) i.e. a reasonable person in the circumstances of the victim would find the particular contact offensive b) Prior course of conduct between parties may indicate that they accept what would normally be found offensive 4) No contact requirement a) Ex: setting a wire out to trip A or hitting with a stick 5) Extended sphere of personal autonomy to include knocking off hat or pulling at coat lapels iii. False Imprisonment Outlines Page 3

iii. False Imprisonment 1) D must confine P to any particular place or location without her consent 2) Can be of any duration 3) P is not required to risk substantial injury in order to escape 4) P must have been actually physically or psychologically harmed 5) Deprogramming cases 6) Only for dignitary interests, not physical harms (can use liability or neg here) iv. The Intentional Infliction of Emotional Distress; Extreme and Outrageous Conduct II. Strict Liability and Negligence: Historic and Analytic Foundations a. Formative Cases i. Thorns Case (Orange v. Hull) 1) If a man (p) suffers damage, it is right that he be recompensed (i.e. compensated) by the defendant = defendant should make amends to the plaintiff. 2) When the principal thing is unlawful, then the thing which depends upon it is also unlawful. 3) Establishes strict liability as standard ii. Tithe Case 1) Points to strict liability (D held liable in damages for his failed effort to recuse P's goods in time of necessity) 2) Justification of trespass: either a thing necessary for public OR through condition recognized by law 3) Poses same asymmetrical incentive problem: why should anyone act to benefit a stranger if he must bear the risk of loss? iii. Weaver v. Ward ("friendly fire") 1) Rule: No man (defendant) shall be excused in an action for trespass, except where it may be judged that the trespass is utterly w/o the defendant's fault. (ex: someone else forced D to do it, contributory neg or inevitable accident/circumstance" 2) Inevitable accidents: "had been inevitable and that the defendant had committed no negligence to give occasion to the hurt" a) Not usually applied in modern law b. Strict Liability and Negligence in Modern Times i. The two main approaches: 1) Traditional strict liability: defendant is liable for any harm he causes to the plaintiff's person or property 2) Negligence: plaintiff can recover, only if, intentional harms aside, the defendant acted with insufficient care. ii. Stone v. Bolton (cricket case) 1) Highest court overturns "reasonable foreseeability = duty to prevent" a) Test to be applied is whether risk of damage was so small that a reasonable man in the position of D, from a safety point of view, would have thought it right to refrain from taking steps to prevent the danger i) Risk was very small = no liability iii. Hammontree v. Jenner (epileptic car crash) 1) Unconscious driver cases determined by negligence (not strict liability) 2) Also no liability to M.D. for failing to warn driver of the risk III. The Negligence Issue a. Duty -> Breach -> Causal connection b/t breach and damages -> Damages b. Assumes ordinary people know basic laws of nature; not to conduct an investigation when one appears needed is negligent; Ignorance is no excuse; in some cases of genuine confusion D will not be held responsible c. Beginners/Experts i. R2T: where the beginner has taken precautions consistent with his skill he is not negligent" ii. R3T:* requires beginners to adhere to ordinary standard of care, with exceptions made for consensual cases iii. Experts: Must act on superior knowledge and skill and not content oneself with precautions suitable to the ordinary person; take cost-justified precautions d. Other actors i. Once D knows that someone else has misbehaved, then he must alter his conduct to avoid excessive risk of injury ii. Must take evasive actions for her own self-protection Outlines Page 4

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ii. Must take evasive actions for her own self-protection iii. Cannot entrust dangerous instruments to people who are not competent to use them Infancy i. Lower standard of care: "reasonable, careful person of the same age, intelligence, and experience" (R2T & R3T) ii. Holds whether P or D (in practice usually as contributory negligence) iii. Exception: children engaging in adult activities (i.e. driving cars, snow mobiles, boats, dangerous equipment) 1) Not extend to hunting accidents (R3T) or in R3T, cycling. Old Age i. If driver is unable to respond, he should not drive at all ii. But if talking about contributory negligence, physical disabilities will usually be considered (here D didn't make the danger) Insanity i. Not a defense; Exceptions: epilepsy or a heart attack if it wasn't foreseeable at the time D beings the activity) Physical Disabilities i. Does make some allowance (R3T: conform to that of a reasonable person with the same disability) ii. Blindness, deafness, loss of motor function iii. High frequency of people using public streets makes public bodies take care of them iv. Contributory negligent only if law has not imposed a special duty of protection on D. v. Drunkenness: no dispensation from negligence but with contributory negligence, as long as he did what would be appropriate for the reasonable man, does not bar him from suing when common precautions are not taken. (Drunk man's entitlement to a safe street) Guest Statutes i. Subjective standard of care, relieves the owner-driver from liability for ordinary negligence for injuries to the guest passenger. Lower standard of care (gross or wanton negligence or recklessness) 1) Justified by 'gratuitous nature of enterprise' (social not commercial). Old tests asked if P was a guest/if P paid consideration for ride & whether d's conduct fell below established standard of care ii. Most states have repealed this Landowner's liability i. Invitees (pay to use the land or enter in commercial setting) ii. Licensees (social guests) iii. Trespassers (unauthorized entry) Unreasonable Risks i. Defendant is only responsible for the unreasonable risks created by his conduct ii. Modern tendency: resort to Hand formula (B<P*L: relates burden of precautions (B) to the expected loss should the accident occur, equal to the product of the probability of accident (P) and the anticipated severity of its consequences (L)) 1) Leaves risk of unavoidable accidents on Plaintiff 2) You can prove a different lesser precaution would have passed Hand formula and still not eliminate accident (doesn't guarantee but is at least an argument) iii. Astute D will look for evidence of an alternative hazard that would be created by following P's preferred strategy iv. P seeks to identify some specific untaken precaution by D that could have prevented accident Medical Care i. Differences respected only if the type of care provided varies with the training and specialization of the physician who provides it. The Reasonable Person i. Reasonable person under like circumstance (unless child) ii. Vaughn v. Menlove (haystack setting on fire because he would chance it) 1) P wanted to hold D to standard of reasonable man and D wanted "bona fide to the best of his judgment" (i.e. subjective). The court ruled that the objective standard wins since the subjective standard is indeterminate. Yet the RP standard also seems indeterminate? 2) Fire rule didn't apply to this case because fire with neither set by D nor improperly watched by him. Liability comes from the creation of a dangerous condition that results Outlines Page 5

watched by him. Liability comes from the creation of a dangerous condition that results indirectly to harm. 3) If SL is rejected, it is imperative to select the test of negligence that best protects the stranger who suffers from decisions that she cannot control. 4) Essence of bad faith (even though not contractual obligation here) is the conscious decision not to treat another's property as your own. 5) You could have stayed out of harm's way in the first place (if you are below-average i.e. dumb); helps respond to the activity-level issue. iii. Roberts v. Ring (Child hit by car) 1) Beginners & Experts: Children aren't held to same standard as adults in contributory negligence 2) Harm causers = normal standard even if old or young a) Exception if harmed party assumes the risk (i.e. driver's ed teacher [but not pedestrian]) b) Exception if child is engaged in adult activity iv. Daniels v. Evans 1) Same standard for children if they are driving a car (because it is licensed?) 2) Stranger cases = no assumption of risk so classes of people are less important since all must take care to be the reasonable driver others assume them to be a) Highway cases = standards are totally uniform v. Breunig v. American Family Insurance (Woman crashes car after momentary insanity) 1) Not foreseeable; court ruled insanity can be a defense a) Effect of insanity must be such as to affect ability to understand duty which rests upon him to drive car with ordinary care, or must affect his ability to control car in prudent manner, and must be absence of notice that this could happen b) In institutional settings, craziness should be foreseeable to caretakers vi. Fletcher v. City of Aberdeen vii. Robinson v. Pioche, Bayerque & Co. viii. Denver & Rio Grande R.R. v. Peterson n. Calculus of Risk i. Blyth v. Birmingham Waterworks (pipes explode due to unusual cold) 1) "Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or something which a prudent and reasonable man would not do" 2) One must consider how often pipes would break at that depth and how much it would cost to put them at other depths 3) Timing of precaution is important. Risk of unusually severe frost was so small that installation could not be attacked as negligent. This timing depends on whether we're questioning at time of installation or time of inspection. ii. Eckert v. Long Island R.R. (man died trying to save child from oncoming train) 1) Child wasn't on dangerous track and man died; D pleaded contributory negligence but court said no. 2) "Law will not impute negligence in an effort to save life, unless made under such circumstances as to constitute rashness in the judgment of prudent persons" 3) P took large risk to benefit a third party/ P can recover as long as his actions are not rash iii. Osborne v. Montgomery (Car door opens, biker hits it & sues) 1) Liability is premised on balancing social interests; even if certain conduct may foreseeably result in harm, the risk may be justified in the circumstance iv. Cooley v. Public Service Co. (Storm knocked down power lines/ telephone lines) 1) Decision balances safety of those using the telephones on the street with those in their homes (who might be endangered by the alternative solution proposed) [court balanced interests] v. United States v. Carroll Towing Co. 1) Creation of hand formula: B < P L a) Burden of preventing harm < probability * injury b) If B is less than, (and B is not met) liability exists c) Difficult to apply because difficult to quantify all three elements vi. Lyons v. Midnight Sun Transportation Services, Inc. (traffic accident; D was speeding and driving neg) 1) Person was confronted with a sudden emergency which was not a result of their own Outlines Page 6

1) Person was confronted with a sudden emergency which was not a result of their own negligence. This person has more leeway exercising judgment and care but this is built into standard duty of care and does not need its own emergency doctrine in jury instructions. vii. Andrews v. United Airlines o. Custom i. Invoked to set standard of reasonable care (taken into account but not controlling where reasonable person will not follow them); provide shelter but not complete protection 1) Violation of custom can be used to establish negligence [very powerful] 2) Compliance with custom can be used to establish due care (deny negligence) 3) Exists uneasily with calculus of risk; idea that behavior which does not deviate from customary care levels is prima facie evidence of reasonable care. ii. Reasoning 1) Insufficiently grained to deal with unusual cases 2) Conclusive reliance allows any industry or trade to set itself above the law 3) Pro: Standards are chosen before the accident occurs, in a setting in which accident prevention (not loss redistribution) is paramount. iii. Private standards 1) D is not bound by its own higher standards iv. Titus v. Bradford, B. & K. R. Co. 1) Railroad cars didn't fit what they were carrying; things fell and killed someone 2) This was common practice and not done in an especially dangerous way, so there was no liability 3) "Reasonably safe means safe according to the usages, habits, and ordinary risks of the business" 4) Liable for consequences, not of danger, but of negligence (usage of the business) v. Mayhew v. Sullivan Mining Co. 1) Opposing above case; said jury can determine what is unreasonably dangerous even if it is the usual custom 2) Little following vi. The T.J. Hooper (1931) vii. The T.J. Hooper (1932) 1) Lack of radios on tugs; tugs and two barges were lost because of storm. Owner of the tug was negligent for not equipping the tug with an operating radio that would have provided a storm warning. 2) Judge Learned Hand: industry custom was not decisive even though it was nearly universal; even if custom was followed there still may be negligence since the whole industry may have lagged in adopting new devices 3) Hand formula favored over custom-deference {E thinks custom should be preferred} viii. Lama v. Borras (Medical Malpractice) 1) To establish medical malpractice case one must show that basic norms of knowledge and medical care were not followed and that this failure caused the injury 2) When no single custom governs, any (major) school of thought may be followed [custom receives great respect] a) Not necessarily established by Physician's Desk Reference or warning labels 3) Not negligent to pick wrong treatment unless he should have known ex ante that it was the wrong one 4) Slight variations of care allowed for less sophisticated hospitals (difference in resources), but regional disparities are no longer permitted (follows national standard) 5) Interns & Residents held to same standards as doctors 6) Strict liability is not imposed 7) Courts don't like to enforce a doctor's claim that a procedure will lead to a certain event & that event doesn't happen. ix. Canterbury v. Spence (Duty to Disclose/Informed Consent) 1) Duty to disclose allows patient to chose their own care. Risks potentially affecting the decision must be disclosed. RULE in this case: physicians must make all material and reasonable disclosures (not just customary ones) (objective standard) a) Exceptions: unconsciousness, disclosure poses such a threat to patient that it becomes unfeasible from medical point of view (psychological health.. In this case Outlines Page 7

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becomes unfeasible from medical point of view (psychological health.. In this case usually must disclose but through informed consent i.e. substituted judgment) i) Informed consent with relatives and friends is because they have greater knowledge of her personal prferences b) Which disclosures are material? Material to this patient, under her unique circumstances OR typical patient in P's position i) No duty to disclose conditions that are so obviously that the patient should already know them ii) No duty to disclose rare conditions and a reasonable patient would rightly disregard iii) Duty to disclose where risk is large enough to matter but not evident enough to be already known by patient iv) Duty even when patient is asked to take or forgo certain diagnostic tests Patient need not specifically request relevant information, for duty to disclose is general. Still must be causal relationship between failure to disclose and plaintiff's injury (reasonable cause or could have reasonable prevented; must fall "within the risk") a) What would a reasonably prudent person have decided in light of full disclosure Recently courts resist demands for full disclosure of full range of treatment alternatives in complex cases Undecided as to whether doctor must explain routine diagnostic tests to patients [cervical cancer death and doctor not suggesting a pap smear that would have detected it early] Dominant view today: requires P to present expert medical evidence on the question of what information should be disclosed (customary standards) a) D could still show P would have consented

p. Statutes and Regulations i. Failure to comply with statute that results in harm is negligence per se 1) Negligent if, without excuse, actor violates a statute that is designed to protect against the type of accident the actor's conduct causes, and if the accident victim is within the class of persons the statute is designed to protect" a) Some states alternately say that a violation counts only as prima facie evidence and can be rebutted by showing how additional evidence makes D's action reasonable under the circumstances b) Other states treat statutes on par with custom and as mere evidence of negligence. ii. Compliance doesn't necessarily mean no negligence (not an absolute defense) iii. Statues passed ex post don't govern case but can be used as evidence of negligence iv. Whether statutes allow common law to remain unimpaired explicitly is always an issue v. Osborne v. McMasters 1) Statutory breach = negligence; P must show they are part of the protected class AND injuries must be of character which statute was trying to prevent (R2T and R3T back this up) a) Can argue it is a subsidiary purpose that legislature would have embraced if the matter had been brought to its attention 2) SCOTUS has created four-part test to check for availability of federal relief due to breach of federal statute lacking explicit private right of action. a) P one of class for whose benefit the statute was enacted i) Health & safety = population at large ii) Warning labels = purchaser, family, user, guest, theif b) Is there any legislative intent one way or the other c) Consistent with underlying purpose of the legislative scheme d) Is area one traditionally handled by state law, in an area of concern primarily to the states vi. Martin v. Herzog 1) Person hit buggy without headlights on in violation of law 2) Violation of statute Is negligence in itself, not just mere evidence 3) D cannot introduce evidence to show statute was misguided or that alternative precautions of greater effect have been adopted in its place; wisdom of statute is not Outlines Page 8

precautions of greater effect have been adopted in its place; wisdom of statute is not open to dispute 4) Must be contributing cause of harm; if compliance with law would have created greater risk, not following it is not evidence of negligence. vii. Brown v. Shyne (but-for causation in breach of licensing statutes) 1) Injured by chiropractor who didn't have license a) Holding: not the cause of P's injuries so lack of license isn't evidence of negligence 2) Similar: unlicensed drivers who get into accidents viii. Failure to lock car, car is stolen and hits someone (conflicting cases); evidence of negligence? Modern courts say T's actions didn't break causal connection because it was the very type of act that the statute was intending to prevent ix. Dram Shop Statutes: Majority of courts hold bartenders responsible for people who get drunk and drive if it was foreseeable (some reject though and some statutes override) 1) Driver's actions are not an intervening cause, but harm within risk of statute 2) Differentiate between types of servers (usually not firms serving alcohol only on occasion or on social hosts) x. Uhr v. East Greenbush Central School District xi. Exceptions/Excuses 1) Class of permitted excuses allowed in negligence cases generally (i.e. epilepsy, incapacity, light blows out without warning 2) Also confusion in statutory text or reasonable lack of knowledge that statute governs situation at hand; narrowly construed 3) R3T: allows greater alternative hazard alone to displace statute without any connection to prior customary practice. (R2T needs prior customary practice) xii. Defenses: P's contributory negligence or assumption of risk 1) Exceptional statutes like protecting infants from handguns or alcohol do not allow defense based on P's conduct 2) No proximate cause q. Judge and Jury i. Judicial control: what jury instructions to give, ability to keep questions of fact from jury, directed and special verdicts 1) Directed verdict doesn't go to jury at all 2) Special verdict is presented to jury in a multiple-part question in complex cases or cases where they think jury will screw it up ii. 2 other problems with juries: ignorance of factual matters that lie outside ordinary experience AND need for uniformity across verdicts in similar cases iii. Presumptions [usually both on P to prove] 1) Burden of production [shifted to D in bailee cases] 2) Burden of persuasion iv. Baltimore & Ohio R.R. v. Goodman 1) Directed verdict requested and rejected (appealed, reversed) 2) When a track and sightline to check for train is blocked, getting out of your car to check is reasonable v. Pokora v. Wabash Ry. 1) Getting out of train to look for vehicle is uncommon, possibly futile and possibly dangerous 2) Criticizes Goodman for making a rule of law when there shouldn't have been (should have been question of fact for jury like trial court originally found) vi. Jewell v. CSX Transportation, Inc. r. Proof of Negligence/ Res Ipsa Loquitur i. "The thing that speaks for itself"; invoked to establish D's negligence when there is only circumstantial evidence ii. Comparative negligence doesn't necessarily bar but the traditional doctrine says if P is at all responsible, the D is not iii. Usual effect: shield P from summary judgment for D and allow but not compel a jury to find negligence iv. Elements 1) Nature of harm is that it does not occur in the absence of negligence 2) Must be caused by an agency or instrumentality within the exclusive control of D AND a) Who done it? For whose conduct is D responsible? Outlines Page 9

a) Who done it? For whose conduct is D responsible? b) Chain of custody 3) Must not have been due to any voluntary action or contribution on the part of the P or third person; must be reasonably eliminated v. Defenses: act of god vi. Vicarious liability: central to this doctrine or couldn't show D had exclusive possession a) Vicarious liability is very important; liable if responsible for all activities undertaken on premises by business or social guests (like traditional rules of liability for fire) b) D is 'charged with a nondelegable duty of care to maintain an instrumentality in safe condition' c) Hotel would only be liable to guest activity when hotel could stop behavior vii. Chain of Custody a) Limits to those cases where D or his servants had exclusive possession of dangerous instrumentalities at all relevant times BUT you can expand 'exclusive' to mean elimination of 'other responsible causes, including the conduct of the P and third parties and acts of God' (R2T, R3T) viii. Byrne v. Boadle (flour case establishing principle) a) Person passing along road has barrel of flour fall onto him, there is prima facie evidence of negligence i) Building he was passing was flour shop, so obvious that barrel was in control of the owner of building b) D must prove any facts inconsistent with negligence ix. Colmenares Vivas v. Sun Alliance Insurance Co. a) Escalator stopped, knocking old lady over b) Allowed Res Ipsa Loquitur but was D in exclusive control of escalator since he contracts maintenance to anotther company? x. Ybarra v. Spangard (medical malpractice) a) P woke up from operation with severe pain below neck (healthy and not operated on), likely caused by trauma applied between shoulder and neck; multiple parties and several instrumentalities working on him at time b) Ruled for P but courts are usually hesitant to use Res Ipsa Loquitur in medical malpractice cases i) Expert witnesses somewhat negated usefulness xi. Conditional Res Ipsa Loquitur if there is facts for jury to decide (if they decide one way they can implement the doctrine) a) P first offers direct evidence to rule out certain natural causes of the harm b) Then P uses res ipsa loquitur to complete chain of proof by showing that harms D caused ordinarily do not happen without negligence xii. Some courts allow this to be applied against multiple D's with the D's splitting the cost (but not all courts) xiii. Can be found if P is using object as intended , has done nothing abnormal, and is injured a) Show that P had only bare possession or was acting only as a mere conduit for moving the thing = good case b) Instruments known to be dangerous even when safely used (i.e. grenade)= weak case (boils down to deciding which is more likely: defect or momentary human error) xiv. Strict Liability = this doctrine no longer needed 1) Common carrier highest standard of care = first element asks whether an accident of this sort ordinarily occurs in the absence of the highest level of care xv. Medical Malpractice a) Surgeon as captain of his ship and responsible for whoever practices medicine on the premises b) Invoked to overcome conspiracy of silence IV. Plaintiff's Conduct a. Contributory Negligence (all or nothing doctrine) i. Basic Doctrine 1) Established when P has not taken reasonable care, and in consequence has suffered injury; bars any recovery by P when successful i) If P's negligence occurs before D's, she is barred from recovery even if D was the last wrongdoer in the chain 2) Burden of proof is on D to prove P's negligence Outlines Page 10

2) Burden of proof is on D to prove P's negligence 3) Purpose: reduce burdens that careless actions impose on other individuals; avoid behavior that results in injury to one's self 4) Standard of care: except children and insane, reasonable person in like circumstances, where the care required of P is done on the assumption that D is exercising due care, at least where P has no reason to believe that D is negligent i) Makes sense in highway cases but what about when in asymmetrical positions (i.e. custodial care) ii) Worker decides to work when he knows needed safety devices, required by statute, are not supplied = no contributory negligence 5) Medical cases are hard to prove because there is a knowledge disparity between the doctor and patient i) Institutionalized patients doing an irresistible impulse do not sever causal connection and are not considered contributorily negligent 6) Emergency i) If he acts as reasonable person he is not contributorily negligent even if, ex post, his actions were suboptimal ii) Necessity is a defense as well (running across street to avoid gang violence and causing auto accident) 7) Causation issues are the same as in standard negligence i) Falling tree/speeding case 8) Butterfield v. Forrester i) Established Contributory Negligence; "one person being at fault will not dispense another's using ordinary care for himself" 9) Beems v. Chicago, Rock Island & Peoria R.R. i) Lacked contributory negligence. P signaled to co-workers to do something he would have reasonably expected them to do; they didn't and he was injured. i) Reason: He could expect them to perform their duties 10) Gyerman v. United States Lines Co. [falling fishmeal sacks] i) Fishmeal sacks stacked dangerously, P did not notify supervisor because he was out, P took them down and got hurt ii) Burden of proving P's negligence on D iii) P's only negligence was failing to report and this might not have fixed the situation anyway because there was no good way to fix it. This means he was not contributorily negligent iv) Sometimes courts refuse to use contributory negligence is P is protected by statute (like workplace safety law) v) Contributory Negligence would attach when there is a knowing and willful disregard of a prudent safety precaution 11) LeRoy Fibre Co. v. Chicago, Milwaukee & St. Paul Ry. [RR spark causes fire on property] i) Flax catches fire near R.R.; 100 feet away from RR on P's property i) No contributory negligence because no duty to guard own property against actions of D {property rights} ii) Other courts have found reciprocal duties in cases like this (likely majority today); assumes that accident prevention is not just a matter of physical causation but also depends on loss prevention efforts of both sides i) Pro: Farmer's cheaper precautions for railroad's expensive ones 12) Derheim v. N. Fiorito Co.[seatbelt] i) Highway cases: duty to wear seatbelt or helmet? i) Traditional "autonomy view" says only those actions which would make P liable to a stranger could constitute contributory negligence" = P has no duty to D = doesn't have to wear seat belt or helmet ii) Opposite argument said universal duty to take self-protective measures whenever the anticipated gains from the precautions exceed the anticipated costs ii) Statues usually regulate these now i) One approach is to reduce recovery by fixed portion but only for avoidable harms ii) Failure to use a set belt as required 'does not constitute negligence" One. Happens before and doesn't contribute to accident Outlines Page 11

One. Happens before and doesn't contribute to accident iii) Non-use of an available seatbelt should be strictly limited to the jury's determination of the plaintiff's damages and should not resolve issue of liability i) Must be causal connection between nonuse and injuries/damages ii) Objection: jury will be unable to segregate the injuries caused by the initial impact & from failure to use seatbelt ii. Last Clear Chance 1) Parties have responsibility to mitigate damages if possible even if the hazard is caused by another party's negligence 2) Implemented on plaintiff's behalf. defense raised by Plaintiff.. Claiming defendant could avoid w/e happened to him/her 3) Fuller v. Illinois Central R.R. i) Rule: The party who last has a clear opportunity of avoiding the accident, notwithstanding the negligence of his opponent, is considered solely responsible for it. ii) Reasoning: All that is required of Defendant, as to Plaintiff, a trespasser, is the abstention from wanton or willful injury or gross negligence. Contributory negligence is not a defense for an injury that is willfully, wantonly, or recklessly done. i) D's neglect was both subsequent to and greater than P's neglect 4) R2T: Helpless Plaintiff may recover if (despite plaintiff neg), preceding the harm i) Plaintiff is unable to avoid it by exercise of reasonable vigilance and care AND ii) Defendant is neg in failing to utilize his opportunity to avoid the harm when he i) Knows of the situations AND realizes (or should) the peril involved OR ii) Would discover the situation if he were to exercise vigilance (then his duty to plaintiff to exercise) 5) R2T: inattentive plaintiff (intent: implemented on plaintiff's behalf) i) Plaintiff who could discover in time to avoid can recover only if defendant i) Knows of plaintiff's situation AND ii) Realizes (or should) that the plaintiff is inattentive and unlikely to discover his peril in time to avoid AND iii) Is negligent in failing to utilize his opportunity to avoid the harm 6) Plaintiff can hardly count on this to protect him when deciding whether to be negligent 7) Plaintiff usually had to show that the defendant was guilt of something more than ordinary negligence b. Imputed Contributory Negligence i. Neg of one party is imputed or charged to the plaintiff where it acts to bar or diminish recovery as the case may be ii. Disfavored today iii. Negligence of a parent could be imputed to a child; 1) Rarely 2) Newer rulings say parent's act is not deemed to be act of the infant iv. Steady retreat: unwilling to impute X's negligence to P if they would not impute X's negligence to D in some vicarious liability context v. Mills v. Armstrong 1) Criticizes doctrine. Two common carrier ships collided because of mutual negligence 2) Rule: An innocent passenger of vehicle A is not barred from recovering against a negligent driver of vehicle B even if the driver of vehicle A is negligent. {rule against defendant} i) Passenger has no control over driver 3) Discussion: It is unacceptable to hold a passenger liable for a drivers negligence. It is only acceptable in those situations when the passenger actually is negligent; if he were to affect the driver in some way as to cause an accident. c. Assumption of Risk i. Asks whether P has deliberately and voluntarily encountered a known risk created by D's negligence and, if she has, holds that she should not be able to recover for the consequent harm 1) P takes a loss (or chance of loss) in exchange for a benefit, presumably of greater value ii. Lamson v. American Axe & Tool Co. Outlines Page 12

ii. Lamson v. American Axe & Tool Co. 1) Facts: Hatchet fell from rack at Ps work, they had been put on old racks, P complained to superintendent, he said too bad work or leave. Court ruled that P had assumed the risk 2) Differs from a contributory negligence case because he complained and was told that he would have to do it anyway, so he didnt negligently fail to complain, rather he assumed the risk of doing it iii. AoR generally deals with arrangements between people even if not a formal contract iv. Fellow servant rule: workers assumed the risks of their jobs, popular during the early 20th century 1) Doctrine evolved to encompass employees continued willingness to work in the face of known risks, often after complaints had been voiced and rejected 2) Vice Principal exception: certain duties are nondelegable: duty to supply the proper equipment, to furnish a safe work place 3) Ability to claim assumption of risk in industrial accidents was abolished by statute (Federal Employers Liability Act] in 1939 v. Murphy v. Steeplechase Amusement Co. 1) Fell on amusement ride; fall was foreseeable; fall was the very hazard that was invited and foreseen; P could not recover 2) Rule: If dangers are OPEN and OBVIOUS, use assumes risk i) Exception: if dangers inherent in sport were obscure or unobserved or so serious as to justify the belief that precautions of some kind must have been taken to avert them ii) Exception: if accidents had been so many as to show that the game in its inherent nature was too dangerous to be continued without change vi. Modern law: duty to warn has increased, limiting types of defenses vii. Spectator sports 1) AoR defense to deny recovery to spectators injured at sporting events i) All spectators share the common knowledge of injury ii) Particularized evidence tends to confirm that any individual plaintiff has this knowledge viii. Primary/Secondary AoR 1) Primary assumption of risk: alternative expression of the idea that D was not negligent 2) Secondary assumption of risk: affirmative defense to an established breach of duty i) Raises issues of implicit coercion (leave house and risk being bitten by boar or stay inside all day, deliver package up icy driveway or fail to deliver it and whatever consequences will come of that) i) Courts have had mixed responses 3) Fireman's Rule: When a public officer (cop, fire) responds to a fire alarm or request for assistance brought by negligent or criminal conduct of D, their recovery is barred for injuries incurred in fighting the fire or apprehending the suspect (they assumed the risk) i) Eroded by statute ix. Dalury v. S-K-I Ltd. 1) Held: exculpatory agreements which defendants require skiers to sign, releasing defendants from all liability resulting from negligence, are void as contrary to public policy 2) Tunkl Factors on invalidating exculpatory agreements i) Concerns a business suitable for public regulation ii) Essential public service iii) Practical necessity, great public importance iv) Decisive advantage of bargaining strength v) Superior bargaining power 3) Even if waiver of liability isn't contrary to public policy, must analyze procedure to see if it was fairly obtained i) Arbitration clause: Take-it-or-leave-it without affording consumer a realistic opportunity to bargain & no other way to obtain product = refused to enforce because "procedurally unconscionable" d. Comparative Negligence Outlines Page 13

d. Comparative Negligence i. Apportionment of fault based on negligence (proportionate) 1) Dominant system ii. Pure comparative negligence: assign % fault of plaintiff and defendant to determine amount of recovery for plaintiff and defendant (so plaintiff can recover damages if 99% at fault but it wouldn't only be 1% of damages) iii. Modified comparative negligence 50% rule: plaintiff fault must be < 50%.. If it's greater than or equal to 50%, plaintiff is barred from recovery (P can't recover if s/he is 50% or more at fault) iv. Modified comparative negligence 51% rule: plaintiff fault must be less than or equal to 50%; (P can't recover if s/he is 51% or more at fault) v. At Common Law 1) Li v. Yellow Cab Co. of California i) Overturned contributory negligence in CA; adopts pure comparative negligence ii) Assumption of risk should be merged into the 'general scheme of assessment of liability in proportion to fault in those particular cases where AoR is no more than a variant of contributory negligence' 2) Adoption of comparative negligence systems have forced courts to revisit things like last clear chance doctrine, intentional torts, strict liability, assumption of risk, etc. to decide how they should mesh with the system 3) Special verdicts are important because otherwise it's hard to know a jury's thought process (all the damages or is he only x% at fault?) 4) Pro rata system for dividing damages vi. By Legislation vii. Calculate damage apportionment V. Multiple Defendants: Joint, Several and Vicarious Liability a. Joint and Several Liability i. Joint liability: any person who bears an obligation can be responsible for a loss if others are unable to pay ii. Several liability: each person has an obligation to pay their share, and the default of others does not increase the non-defaulters share iii. Joint-and-several liability: Obligors are joint to the obligee, but bear several liability amongst themselves 1) First case = Merry-weather v. Nixan iv. Indemnity = you shift all to another party; Contribution = share responsibility on damages v. Union Stock Yards Co. of Omaha v. Chicago, Burlington, & Quincy R.R. 1) P paid his employee damages, then sought to recover it from other defendant; RR company and terminal company both failed to properly inspect to discover defective break, both equally culpable and P cannot recover indemnity OR contribution. 2) Wrongdoer , at this time, couldn't sue other responsible wrongdoer even though he paid whole share [couldn't collect indemnity from other wrongdoer] i) Exception: when the other D is the principal wrongdoer 3) CL: releasing one tortfeasor in a joint tortfeasor case released them all i) Gave a free ride to some vi. Modern view: no automatic release of joint tortfeasors, look at contract (R3T) vii. CA Civ. Pro. Code 1) Pro rata liability that allows each D to recover from co-Ds any amount above his share i) Only pay your share//divide entire judgment equally among all tortfeasors ii) Not available for intentional torts viii. American Motorcycle Association v. Superior Court 1) For joint & several liability; insolvent defendant's share shall be paid by other defendants. i) P's recover against other tortfeasors is diminished only by the amount the plaintiff has actually recovered ii) May seek partial indemnity from other concurrent tortfeasors on a comparative fault basis 2) Li (384) showed new rule on comp neg in its pure form = apportionment and there is no bar if Plaintiff is 50% or more at fault 3) Dissent: Marginally negligent D's will be responsible for loss of others; Plaintiff's recover shouldn't be diminished by amount received, but rather by an amount measured by the settling tortfeasor's proportionate responsibility for injury. Outlines Page 14

settling tortfeasor's proportionate responsibility for injury. 4) Another CA case said insolvent Defendant's share is split in proportion to % of comparative responsibility originally assigned between remaining defendants and plaintiff . i) R3T has same approach but with Exceptions: persons acting in concert, vicarious liability, persons who fail to protect plaintiff form the specific risk of an intentional tort ix. Legislative reform to protect marginal D from paying large amounts 1) Can create incentives to settle or not settle x. McDermott, Inc. v. AmClyde and River Don Castings, Ltd. 1) Issue: whether nonsettling Ds should be calculated with reference to jury's allocation of proportionate responsibility OR by giving D credit for the dollar amount of the settlement. Holding: proportionate. 2) Pro Tanto: recognition of a right of contribution against a settling defendant in the first but not the second (examples on 421, 426): leads to inequitable apportionment of liability xi. Credit Rule: if you settle the other D can still potentially owe the rest of the original suit (could be way more than they originally would have owed if settlement is small), creates incentive to settle xii. Carve-out rule: P gives up everything they dont get from 1st D in multi-party suits with a settlement. If its 80/20, settling with 80 guy means only 20 is left, regardless of settlement size xiii. Can't settle and then sue other D who didn't settle; YOU pay your settlement xiv. Total damages to determine fault, then split according to negligence. Find out who is entitled to what. Find out who is responsible for what. Subtract responsible from entitled to. ***(417) xv. Comparative fault in TN = McIntyre v. Balentine 1) Car accident where both parties consumed alcohol 2) Upshot: modified comp. fault made doctrine of joint & several liability obsolete. Did it for equitable reasons. b. Vicarious Liability i. Vicarious liability (aka repsondeat superior): where employers are held liable for the wrongdoings of their servants/employees 1) Covers actions within course of duties (and small but not large deviations) as an employee 2) Intentional torts can be considered but must fall within scope of employment 3) Emphasizes loss prevention & places loss initially on superior riskbearer ii. Ira S. Bushley & Sons Inc. v. United States 1) Drunk employee damages dry dock. 2) Even if an employees conduct is not motivated by his employers interests, an employer is still vicariously liable for an employees negligent acts if the employees conduct was reasonably foreseeable and within the scope of his employment. i) It was characteristic of job's activities {court said it was foreseeable/sailors coming and going from drydock has potential to damage it} ii) Also would be liable if w/in scope of employment iii. Employers can be held liable for negligent hiring or supervision 1) Criminal histories iv. Sexual harassment is usually not unless employer created hostile environment 1) Defenses i) Employer exercised reasonable care to prevent and correct (promptly) ii) Could not be imposed for benefit of employee who failed to take advantage of preventative or corrective opportunities provided by employer (form of contributory negligence) v. If an employee works at multiple jobs, often both employers are liable if they both have the right to control the employee [jointly liable] vi. Employers may sometimes indemnify their employees, but employees are often unable to answer for the loss or the employer has taken out insurance for such losses, so such indemnification is rare vii. Even when D does not employ wrongdoer, may be liable under owner-consent statutes allowing suit of driver of the vehicle and its owner even if driver is not engaged in owners business (example: rental car) viii. Joint enterprise: For commercial partnerships, vicarious liability can exist for each partner for Outlines Page 15

viii. Joint enterprise: For commercial partnerships, vicarious liability can exist for each partner for the wrongs of another partner ix. Employers generally not responsible for the conduct of independent contractors 1) Exception if the independent contractor works on the employers premises and if independent contractor does work involving a special danger to others for the contractors failure to take reasonable precautions against such danger x. Petrovich v. Share Health Plan of IL, Inc. [employee v. independent contractor] 1) How much autonomy physicians in HMO had (could HMO control them? Who was making medical decisions? Did they have a right to refuse to pay for health care that HMO perceives inappropriate or outside the scope of policy?) 2) To establish apparent authority against an HMO for physician malpractice, the patient must prove (page 442): i) that the HMO held itself out as the provider for health care, without informing the patient that the care is given by independent contractors; and ii) that the patient justifiably relied upon the conduct of the HMO by looking to the HMO to provide health care services, rather than a specific physician. Apparent authority is a question of fact, and thus an appropriate determination to be made by a jury. 3) The main consideration for determining the existence of implied authority is whether the alleged agent retains the right to control the manner of doing the work. (page 444) i) When an HMO effectively controls a physicians exercise of medical judgment, there is implied authority. In this case, Plaintiff argues that the facts and circumstances show that Defendant exerted sufficient control over Doctor so as to negate their status as independent contractors. ii) The facts and circumstances presented are properly left to a jury to determine the issue of implied authority. 4) HMO exerted sufficient control of physicians to hold them vicariously liable; cost containment role of HMO does not entitle them to special consideration VI. Causation a. Cause in Fact i. Necessary condition for the harm to take place ii. "But for" X, harm Y would not have happened iii. New York Central R. R. v. Grimstad 1) Lack of life preservers on boat, guy drowned 2) Nothing to show that but for the lack of a life preserver, he would have survived, so no cause in fact, so no liability 3) More modern cases confer upon the jury broad powers of decision in cases of rescue at sea iv. Zuchowicz v. United States 1) Death from (alleged) overdose on prescribed drug due to too high prescription 2) Trier of fact needed to find not only that drug had caused death, but that the negligent over-prescription of it had (in other words, that absent the negligent over-prescription i.e. a regular dose she would not have suffered the harm) 3) Proof is not required, however 4) If 1) a negligent act was deemed wrongful because that act increased the chances that a particular type of accident would occur, and 2) a mishap of that very sort did happen, this was enough to support a finding by the trier of fact that the negligent behavior caused the harm v. In strict liability cases there is typically a more stringent standard and the P must show some push/pull type of causal connection between Ds actions and Ps harm vi. Similarly, in slip-and-falls where Ds actions greatly increase chances of something happening the chance that it might happen anyway is not sufficient to break the chain of causation between the negligence and the injury vii. General Electric Co. v. Joiner {agent orange} 1) Frye Standard: Court is gatekeeper in allowing or disallowing expert testimony (abuse of discretion is the standard for appellate review) i) Can only be introduced as a deduction from "generally accepted" principles in the field 2) Daubert Standard: (not in this case; TN law) Federal Rules of Evidence did not incorporate the "general acceptance" test as a basis for assessing the inadmissibility of Outlines Page 16

incorporate the "general acceptance" test as a basis for assessing the inadmissibility of scientific expert testimony i) Relaxes the barriers of Frye ii) Reliability & Relevance (Daubert v. Merrel Dow Pharm.) 3) Facts: P alleged exposure to PCB's promoted his lung cancer. No studies on animals demonstrated this. The study the expert used was so dissimilar it was not allowed; no abuse of discretion by trial court judge. 4) Agent Orange litigation shows 3 levels of causation relevant to toxic torts cases i) Substance (for which D is responsible can cause P's injury) ii) Source (D was actually the source of the substance) iii) Exposure Causation (P was exposed to the substance in a way that caused his injury) viii. Herskovits v. Group Health Cooperative [lost chance doctrine] 1) Lung cancer diagnosed late, lawsuit. Less than 50% chance of survival, can P bring suit anyway? This case says issue can go to jury even if chances of survival absent negligence are under 50%. 2) R3T: endorses (missed diagnosis & tardy/inappropriate treatment) 3) Most courts avoid allowing awards if person still lives 4) Lost Chance Doctrine: P claims that the Ds conduct has not caused the Ps injury itself, but the P is saying that Ds conduct has created an increased risk or hazard of injury that is itself compensable. i) Can only recover damages for the premature death, not ALL damages from death ii) Must have lest a blanket release for liability on hospitals 5) TN, with the minority, rejects Lost Chance Doctrine; must show P would not have suffered injury but for D's negligence ix. Kingston v. Chicago & NW RR [two fires, one unknown] 1) Two fires came together and destroyed property; proximate cause of one was D, other is unknown (probably human). Either fire would have accomplished the same result on its own i) Exceptions: other fire was of natural origin OR of much greater proportions (If D's fire was small and might not have destroyed but was swallowed by other fire, it might be intervening cause) 2) Any one of multiple joint tortfeasors whose concurring acts of negligence result in injury are each individually responsible for the entire damages resulting from the concurrent/joint act. i) Same with over-determined harm 3) Apportionment of harm is allowable when there is a reasonable basis to do so 4) Persons who receive successive injuries in unrelated incidents are treated the same if the injuries resulting from them are indivisible x. Summers v. Tice [two guns, one injury] 1) Man shot by shotgun; each P shot separately and only one was responsible but dont' know who. Court said both were negligent (apportionment was incapable of proof and innocent wronged party shouldn't be deprived of right to redress) and found joint liability xi. Skipworth v. Lead Industries Assoc. [market share liability] 1) Lead poisoning, impossible to determine which manufacturer was responsible. 2) Court declines to apply market share liability. Lead paints not fungible because different lead content. 3) Factors that must be applied i) All named Ds are potential tortfeasors ii) Products are identical and share same defective qualities (fungible) iii) Lack of ability to identify which D caused injuries (P cannot be at fault) iv) All manufacturers that were creating during relevant time are named 4) Usually several liability so that small manufacturers aren't responsible for insolvent big manufacturers. b. Proximate Cause (herein of Duty) i. Assumes cause in fact. Whether D's conduct can be regarded as a 'substantial factor' in brining about P's harm? Substantial Factor Test 1) Defendants negligence was a but for cause of the injury Outlines Page 17

1) Defendants negligence was a but for cause of the injury 2) The negligence was causally linked to the injury 3) The defendants negligence was proximate to the injury ii. Was harm forseeable? (foresight perspective) or was there an intervening cause that severed the causal connection (directness perspective)? iii. Physical Injury 1) Medical malpractice occurring after negligent conduct that has put P in the hospital is not an intervening cause breaking the chain of causation; original D still liable 2) Ryan v. NY Central RR i) D set accidental fire to own woodshed, spread to house 130 feet away. Ds are responsible for proximate but not remote damages. Damages were deemed to be remote here. i) Some cases extended this liability to owner's guests as well ii) Ordinary & Natural result of D's negligence i) Intervening natural & human causes iii) If a D makes P reasonably fear for her own safety, an injury received during reasonable escape as a right to action iv) If P acts in good faith to minimize risks from a dangerous situation of D's making, those actions do not sever causal claim 3) Berry v. Sugar Notch Borough [speeding, tree falls on car] i) Ps conduct is not casually connected to his injuries if they do not increase the risk of being injured i) To impose liability based on the violation of a statute, the violation must be the cause of the injury sustained, and not some mere coincidence. ii) When a carrier has reason to anticipate an assault upon one of its passengers it rests under the duty of protecting such passenger iii) Independent/Dependent Causes: If each of two successive acts is sufficient to harm P, but second situation only happens because of the prior negligence of the first, the second is dependent on the first so that the second is normally responsible only for the incremental damages, if any iv) Apparent Condition of Safety: Dynamite cap case, negligent to leave cap on ground but parents being aware of it was an intervening cause so no liability 4) Brower v. NY Central & HRR [Third party criminal acts] i) Theft from train after it crashed ii) The acts of a third party do not affect the liability of the original wrongdoer if the act should have been reasonably foreseen. (only the last wrongdoer was responsible/criminal conduct severed causation; old rule) iii) Current test (dissent in this case): if the likelihood that a third party may act in a certain way is one of the factors that made a party negligent, such an act does not prevent the actor from being liable for harms caused thereby [if intervention is something D should realize would be created by the situation, it does not sever causation] iv) R2T: D should be liable because the third party did exploit the dangerous condition created by D (substantial factor test) v) R3T: liability is limited to those harms that result from the risk that made the actor's conduct tortious 5) Wagner v. International RR [Rescue Status] i) Rescue case; reasonable attempts at rescue do not break chain of causation i) Unreasonable efforts should be covered by comparative negligence, not superseding cause ii) Rescue Status Elements: i) D was negligent to the person rescued AND negligence caused the peril OR appearance of peril to person rescued ii) Peril was imminent iii) A reasonable prudent person would have concluded such peril existed AND iv) The rescue acted with reasonable care in the rescue 6) In re Polemis & Furness, Withy & Co. i) Ship with exploding cargo ii) Rule: D is responsible for all acts stemming from a negligent act, even if not foreseeable Outlines Page 18

foreseeable i) Many jurisdictions follow this ii) Neg? Whether reasonable person would foresee this act would cause damage 7) Palsgraf v. Long Island RR i) Exploding package of fireworks in train station; Court said explosiong was not a reasonably probable result of D's neg so no liability. Dissent said each person owes an absolute duty of care not to injure ii) Duty is defined in these cases by the risk reasonably perceived i) Limited to harms that result form the conduct that made the act tortious 8) Marshall v. Nugent i) Collision on highway. Rule: D's culpable act must have been the proximate cause of Plaintiff's harm and under proximate causation, the liability of the D is confined to those harmful consequences which result form the operation of the risk or of a risk, the foreseeability of which rendered the D's conduct neg. 9) Overseas Tankship v. Morts Dock & Engineering i) Ships released oil into harbor, days later there was a fire (were told oil couldn't burn) ii) Opposes Polemis and says foreseeability is more important than directness. Rule: it is the foresight of the reasonable man which alone can determine responsibility iii) D takes P as he finds him iv) Majority agree with Polemis. 10) Virden v. Betts and Beer Construction Co. [ceiling iron falls] i) Ceiling iron falls from ceiling; court says damages for harms outside the context of those negligence would naturally cause are not recoverable (here P knew of possible dangers) ii) Rule: to prove proximate cause p must prove: 1. The damages would not have occurred but for the D's neg AND 2. D's neg was a substantial factor in bringing out p's injury 11) Herbert v. Enos [garden faucet shock] i) P received shock from the garden faucet (P did not know of possible danger); Court said injury was not of the type that would be foreseeably caused by the negligence; D not liable because this was highly extraordinary and unforeseeable iv. Emotional Distress 1) Dismissed by per se rule or go to jury? 2) Defenses: 1) no causation [some other event] and 2) conduct not the proximate cause 3) Mitchell v. Rochester RR i) Fight from horses, P has miscarriage; no recovery for fright in this case because not proximate cause and no 'immediate personal injury' ii) Courts later develop impact rule: must be contact for recovery for emotional damages iii) Zone of danger rule: impact or P being in the zone of danger meant P could recover; "bright line" to limit recovery 4) Dillon v. Legg i) 3 factors the courts will take into account when determining whether the D owes the P a duty to care (i.e., whether the D should reasonable foresee injury to P) are: 1. Whether the P was located near the scene of the accident (not a distance away from it) 2. Whether the shock resulted from a direct emotional impact upon the P from the sensory and contemporaneous observance of the accident (not learning of the accident from others after the accident) 3. Whether the P and the victim were closely related (not the absence of any relationship or the presence of only a distant relationship) (page 555) ii) Majority follow this view but limit it to immediate family & spouses iii) Courts also impose liability for undertakings or relationships that are likely to cause emotional distress if done incorrectly (hospitals, funeral homes, telegraph companies) iv) No contributory negligence allowed if P is to recover 5) Rules in TN: when one witnesses another experience serious injury or death as the Outlines Page 19

5) Rules in TN: when one witnesses another experience serious injury or death as the result of the neg of another, recovery is permitted i) ** Ramsey v. Beavers: TN 1996 1. Doesn't matter if hew as physically injured or placed in immediate danger of being injured 2. Sub-elements or cause of action require: ii) ** Eskin v. Bartee 1. One who does not witness can still recover 2. Elements for NIED action in TN (when plaintiff does not witness accident): VII. Affirmative Duties a. General Info i. Liability for Misfeasance = misdeeds 1) Basic duty is for all individuals to abstain from hurting other persons, both strangers & persons with whom the Defendant has some special relationship ii. Liability for Nonfeasance = failure to act 1) Gen rule: duty to render material aid or support to other persons = Duty of Affirmative Care i) Strangers ii) Special relationship iii. Good Samaritan Law: Defendant was not responsible for creating the dangerous condition or situation that brought for the need to rescue the P in the first place, but where the defendant does attempt to rescue the plaintiff iv. Duties of Landowner/occupier 1) Trespasser takes the risk of purely accidental injuries, but it is entitled to recover for deliberate and/or recklessly inflicted injuries 2) Landowner does owe some duty of care to persons lawfully on the landowner's premises 3) Under traditional common law, social guests (i.e. licensees) were owed a duty to be warned by the landowner of known latent (i.e., hidden) defects, whereas business visitors (i.e. invitees) were owed a duty from the landowner to discover danger and to keep the premises safe. 4) Most states today reject this distinction and impose a uniform duty of reasonable care for licensees and invitees b. The Duty to Rescue i. Buch v. Amory Manufacturing [child trespasser in mill loses hand] 1) Trespass in mill, hand is crushed; child plaintiff who was incapable of appreciating danger and acting as a reasonable person. Court said still not entitled to recovery 2) Rule: An infant is liable in law for trespassing i) Exception: Where there is enticement, allurement or invitation of infants to their injury, setting traps, exposure to machinery attractive and dangerous to children (attractive nuisance) 3) Rule: Owners are not bound to warn trespassers against hidden or secret dangers or to protect them against any injury arising from their actions or those of others ii. Hurley v. Eddingfield 1) P sent for doctor but he did not come and P died as a result. Court said no affirmative duty to perform. 2) The act regulating the practice of medicine is a preventive measure 3) State does not require and the licensee doctor does not engage that he will practice medicine at all or on other terms than he may choose to accept i) Usually does not put affirmative duty on public entities, either ii) Exception: if you were responsible, even in part, for putting P in perilous position 4) Legislative response to the Good Samaritan problem, wherein statutes have been designed to induce rescue by either: i) Insulating the rescuer against liability for ordinary negligence OR ii) Imposing affirmative duties to rescue, subject to the payment of fines 1. Difficult to enforce latter and impedes autonomy 2. In both cases, rescuer is liable for willful misconduct! 5) TN GS law: not liable for acts of omission or comission except Gross negligence i) Medical faculty not liable Outlines Page 20

i) Medical faculty not liable ii) Volunteer fire squad can be liable iii. Montgomery v. National Convoy & Trucking Co. [failure to neutralize dangerous condition] 1) Truck stalled without fault of P; P failed to put marker out and truck was hit by a car. Liability. 2) One may be negligent by acts of omission as well as commission and liability will attach if the act is the direct, proximate, and efficient cause of the injury 3) R2T: When actor's prior conduct creates a continuing risk of physical harm, actor has duty to exercise reasonable care to prevent or minimize the harm. 4) If D undertakes rescue and doesn't have to, but then harms P, D is liable for lack or reasonable care (comission or omission) or discontinuation if he left P worse off than when he started c. Duties of Owners and Occupiers i. Robert Addie & Sons v. Dumbrek [dangerous wheel in field, child trespassed and died] 1) For invitees (i.e. those present by either the expressed or implied invitation of the occupier; business-related; public officials visiting private property), the occupier of the premises owes the highest duty and that duty is to take reasonable care to ensure that the premises are safe. 2) For licensees (i.e. those present by leave and license of the occupier), the occupier of the premises has no duty to ensure that the premises are safe, BUT is bound not to create a trap or allow a concealed danger to exist upon said premises, which is not apparent to the visitor, but which is known or ought to be known to the occupier. 3) For trespassers (i.e. those present w/o the occupier's consent), the occupier of the premises has no duty to take reasonable are for the trespasser's protection or even to protect him from a concealed danger. i) The occupier is liable only for injuries due to some willful act/wanton conduct = some act done w/ deliberate intention of doing harm to the trespasser or done with reckless disregard of the presence of the trespasser. 1. Breach of statutory duty suffices as willful & wanton ii. Attractive Nuisance: allows infant trespassers to recover when lured onto land by a tempting condition created and maintained by D (railway turntables, explosives, electrical conduits, smoldering fires & rickety structures) 1) Elements needed: i) knows or should know that children are likely to trespass, ii) knows or should know that would be unreasonably dangerous, utility of maintaining condition and burden of eliminating it are slight compared to risk, AND iii) fails to exercise reasonable care to protect kids 2) What is relevant is nuisance itself, not what attracts child; natural parts of land do not qualify 3) R2T re: artificial conditions i) Liability only applies to artificial conditions on the land ii) Liability that applies when the owner "knows or has reason to know that children are likely to trespass" iii) Assumption of the risk by children bars many claims iv) Excludes: rivers, creeks, ponds, wagons, axes, plows, woodpiles & haystack {limits D's liability} iii. Slip & Fall Cases & Duties of Owners/Occupiers 1) licensees, a licensor typically has no knowledge of these conditions and no duty to inspect for them. 2) invitees, the invitee's host has the explicit duty to seek out and correct these conditions w/in a reasonable time after their occurrence. 3) RULE: whether a dangerous conditions has existed long enough for a reasonably prudent person to have discovered it is a question for the jury and the cases do not impose exact time limitations iv. Rowland v. Christian 1) Crack in faucet caused nerve damage. Threw out three-type distinction here and institutes reasonableness test: has owner acted as a reasonable person would in view of the probability of injury to others? For lower than invitee, as long as owner didn't know and it wasn't willful it's okay. If owner knew it is considered a concealed trap Outlines Page 21

and it wasn't willful it's okay. If owner knew it is considered a concealed trap v. Premises liability in TN 1) Person in charge of upkeep can be held liable for injuries suffered on that property due to negligent maintenance (Market slip & falls; Apt owner failing to equip smoke detector/fire alarms; city fails to maintain sidewalks) - TN has similar definitions of Invitee (make sure property is safe), Licensee (duty to forewarn), Trespasser (can't willfully hurt) vi. Landlord now owes general duty of care to all persons on his premises (barring trespassers) d. Gratuitous Undertakings i. Coggs v. Bernard [bailee/bailor] 1) Gratuitious undertaking of brandy which was spilled made an affirmative duty. Liable if negligently destroyed, even if there was no enforceable contract between them 2) Any man that undertakes to carry goods is liable, be ha a common carrier or whatever he is, if through his neg the goods are lost or come to any damages, and if he receives a premium (i.e. consideration) there is no question he is liable 3) An owner's trusting him w/ the goods is sufficient consideration to oblige the D to a careful management. ii. Erie RR Co. v. Stewart 1) Where a practice is known to a traveler upon a hwy and such traveler has been educated into reliance upon it, some positive duty rests upon the railway. 2) A practice cannot be discontinued w/o exercising reasonable care in giving warning of such discontinuance, although the company may thereafter do all that would otherwise be reasonable necessary iii. Marsailles [cat bit P and D let it out again 'accidently'] 1) One who voluntarily undertakes to care for, or to afford relief or assistance to, an ill, injured, or helpless person is under a legal obligation to use reasonable care and prudence in what he does. iv. Moch v. Rensselaer Water Co. 1) Water company failed to supply sufficient water pressure to stop spread of fire; no liability. 2) No action under contract because individual doesn't have contract with water company 3) No action under tort because neither city nor water company had duty to individual to supply adequate water pressure. It is a negligent omission- a denial of a benefit, not a commission of a wrong; nonfeasance rather than misfeasance 4) Some courts have gone the other way on this, saying it's a foreseeable risk of harm e. Special Relationships i. No duty to control conduct of third parties unless special relation between actor and the third person which imposes a duty to control the third partys conduct or special relation between actor and the other which gives the other a right to protection ii. Meant to apply to nonfeasance, not misfeasance iii. Kline v. 1500 Massachusetts Ave. Apartment Co. [landlord's duty to protect residents] 1) There is a duty on landlords to take steps to protect tenants from foreseeable criminal acts committed by third parties. 2) The landlord's duty is to take measure of protection which are w/in his exclusive power & capacity to take & which can reasonably be expected to mitigate the risk of intruders assaulting and robbing tenants. 3) No liability is normally imposed upon D landlords (or innkeepers, school districts, hospitals, etc.) if the violence is SUDDEN and UNEXPECTED, proved that the source of the violence is not the Defendant's employee. 4) P can be contributorily negligent if he fails to exercise reasonable caution 5) Expanded to colleges for their students, common carriers and their passengers, condo association, & off-premises liability [to respond, not prevent] (633); beyond this courts hesitate to expand duty i) Need high degree of foreseeability iv. Tarasoff v. Regents of University of California [psych patient kills P] 1) Guy told psychiatrist he was going to kill P and then killed P; psychiatrist was liable. There was a serious danger to a specific person (must exercise reasonable care to protect foreseeable victim) 2) In general, a person owes no duty to control the conduct of another, except where the defendant stands in a special relationship to either the person whose conduct needs to Outlines Page 22

defendant stands in a special relationship to either the person whose conduct needs to be controlled or in a relationship to the foreseeable victim of that conduct a. Issue within this rule is what constitutes a "foreseeable victim" 3) Once a therapist determines or reasonably should have determined that a patient poses a serious danger of violence to others, the therapist bears a duty to exercise reasonable care to protect the foreseeable victim. 4) Widely accepted 5) Generalized danger = no duty because it's impossible to stop 6) Limit to protection given in professional relationship; if steps in treatment facilitate attacks by person in their care, they are liable VIII. Traditional Strict Liability a. General Info i. Defendant is liable for any harm he causes to the plaintiff's person or property ii. Liability for harms caused by inherently dangerous animals and animals from non-inherentlydangerous classes who have acted dangerously in the past iii. R3T: activity is abnormally dangerous if it creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors and it is not one of common usage iv. Courts split over airplane liability b. Animals i. Gehrts v. Batteen (645) 1) When wild animals are kept as pets, an owner is liable for injuries caused by the animal, despite the owner not having prior knowledge of the animal's propensity to cause harm and even if the owner exercised the utmost care in preventing harm (e.g. bear, wolf, lions, tigers, elephants, monkeys & camels) 2) Owners of domesticated animals are liable for harm caused by their pet if the owner knows or has reason to know of their animal's abnormally dangerous propensities, despite the amount of care exercised by the owner. 3) However, the defenses of contributory negligence and assumption of risk are allowed 4) Knowledge of an animal's abnormally dangerous propensities is imputed to the owner when there is evidence of at least one attack by the animal 5) For dogs, evidence of the owner's knowledge that the dog constantly barked, bared its teeth and strained at its leash is sufficient to establish dangerous propensities, absent an actual attack 6) When an owner does not know of an animal's dangerous propensities, the ordinary negligence standard of foreseeability applies = plaintiff must establish that as an ordinary, prudent person the owner should have foreseen the even that cause the injury and taken stops to prevent the injury ii. SL applies when owner should have known (doesn't have to bite, just demonstrate tendency to bite) iii. SL improper to apply to animals kept in zoos or animals in national parks (but can still argue negligence iv. Legislation addressing special breeds i.e. pit bulls (insurance or SL, etc.) v. TN dog bit statute 1) Duty to keep dog under reasonable control and keep from running at large otherwise civil liability for damages to people in a public place or lawfully in private property 2) Liable regardless of dog showing any dangerous propensities 3) Exceptions: a. Police/military dog on duty & person was suspect b. If injured person was trespassing on dog owner's yard c. If dog was protecting owner or innocent party or another dog owned by owner d. If dog was confined in a kennel e. If injury happened because person was enticing, disturbing, alarming, harassing or otherwise provoking the dog 4) If on private property that is your own or permission to be on someone else's then P has to establish reason to know of dangerous propensity c. Ultrahazardous or Abnormally Dangerous Activities i. Spano v. Perini Corp. 1) One who engages in blasting must assume responsibility and is liable without fault, for Outlines Page 23

1) One who engages in blasting must assume responsibility and is liable without fault, for any injury he causes to neighboring property = absolute liability in blasting cases ii. TN relies on R2T 519 & 520 (p 660) 1) 519: a. "one who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although eh has exercised the utmost care to prevent the harm b. examples of UH activity giving rise to SL are "the carrying out of blasting operations, the storage or explosives or harmful chemicals and harboring of wild animals" 2) 520: same elements. Must balance all relevant factors to determine if something is an UH activity (no single factor is dispositive) a. Existence of a high degree of risk or some harm to the person, land or chattels of others; likelihood that the harm that results from it will be great; inability to eliminate the risk by the exercise of reasonable care; extent to which the activity is not a matter of common usage; inappropriateness of the activity to the place where it is carried on AND; extent to which its value to the community is outweighed by its dangerous attributes. b. Not limited to Defendant's land iii. Indiana Harbor Belt RR v. American Cyanamid Co. 1) Rule: Shipper of hazardous chemical is held to negligence, not SL, standard for the consequences of a spill during shipment (i.e. transport) 2) Still must prove proximate cause iv. R2T 522: when carrying out ultrahazardous activity one is liable even if harm is caused by an innocent, negligent or reckless third person, an action of an animal, or a force of nature v. Three affirmative defenses: 1) Assumption of the risk 2) Contributory Negligence (knowingly and unreasonably subjecting himself to the risk of harm) 3) Plaintiff's abnormally sensitive activity (harm would have resulted but for the abnormally sensitive character of plaintiff's activity vi. Hazardous in TN: Blasting, Storage/transport of chemicals or explosives, Wild animals d. Nuisance i. Private Nuisance 1) Generally, the defendant's conduct unreasonably interferes with the use and enjoyment of property by another person (i.e. by the individual plaintiff) a. Unreasonable if (R2T) 1. The gravity of harm outweighs the utility of the actor's conduct OR 2. The harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible b. Today: generally actionable if the invasion is 1) intentional and unreasonable, 2) negligent or reckless, OR 3) actionable under the rules governing liability for abnormally dangerous conditions or activities 2) Vogel v. Grant-Lafayette Electric Co. a. Could defendant's stray voltage constitute a private nuisance? Rule: A private nuisance is a nontrespassory invasion of anothers interest in the private use and enjoyment of the land b. Does Defendants stray voltage constitute an intentional invasion nuisance? Rule: Defendant may be liable for an intentional invasion under the continuing invasion rationale if it continued to impose excessive levels of stray voltage onto the plaintiff's farm and might endanger their cows after defendant had knowledge of the problem 3) Michalson v. Nutting [tree roots cause damage to neighbor's property] a. The owner of land is a liberty to use his land, and all of it, to grow trees b. Their growth naturally and reasonably will be accompanied by the extension of boughs and the penetration of roots over and into the adjoining property of others c. The neighbor, if harm results to him, as the right to cut off the intruding boughs Outlines Page 24

c. The neighbor, if harm results to him, as the right to cut off the intruding boughs and roots d. Reasoning: landowner had right to self-help (cutting tree roots) even if it would kill the tree and harms in question are typically reciprocal (each landowner is likely to have trees that encroach on that of a neighbor) [live and let live rule] 4) Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc.[free flow of light & air] a. There is no legal right to the free flow of light and air from an adjoining land b. It is universally held that where a structure serves a useful and beneficial purpose, it does not give rise to a cuase of action, either for damages or for an injunction, even through it causes injury to another by cutting of the light and air and interfering with the view that would otherwise be available over adjoining land in its natural state, regardless of the fact that the structure may have been erected partly for spite c. Spite Fences: fence erected maliciously with no other purpose is a nuisance 5) Rogers v. Elliott [church bell/sick person] a. In such cases where property rights are called into question, the inquiry is what is reasonable under the circumstances b. The right to make a noise for a proper purpose must be measured in reference to the degree of annoyance which others may reasonably be required to submit to. c. Upon the question whether one can lawfully ring his factory bell or run his noisy machinery or whether the noise will be a private nuisance to the occupant of a house nearby, it is necessary to ascertain the natural and probable effect of the sound upon ordinary persons in that house, not how it will affect a particular person. d. Extra-sensitive plaintiffs: will not generally recover; only liability to those to whom it causes significant harm of a kind that would be suffered by a normal person in the community or by property in the normal condition and used for a normal purpose 6) Ensign v. Walls [dog breeder was there first] a. A circumstance that the parties seeking relief had established residences near the business, the operation of which is sought to be enjoined, may be properly considered in determining whether equitable relief should be granted, but is not necessarily controlling. b. Coming to a nuisance: Owner that was there first cannot necessarily continue in same place 7) Boomer v Atlantic Cement Co. a. Where a nuisance has been found and where there has been any substantial damage shown by the complaining party, an injunction will be granted b. The rule in NY has been that such a nuisance will be enjoined, although marked disparity be shown in economic consequences between the effect of the injunction and the effect of the nuisance c. The theory of damage is the "servitude on land" of plaintiff imposed by defendant's nuisance d. The judgment, by allowance of permanent damages imposing a servitude on land, precludes future recovery by plaintiff of their grantees e. Injunctions for threatened harms: ordinarily allowed against both ongoing and imminent harms. Usually denied for future harm because relief will still be there in future if needed and damages serve as a deterrent. ii. Public Nuisance 1) Generally, the defendant's conduct unreasonably or substantially interferes with a common right of the public (i.e. interferes with the use by the public of a public place; injures a large number of people = the general public/community at large; or a private person suffers special injury beyond that suffered by the community at large) a. Controlled by administrative regulation or criminal prosecution b. Private action is maintainable only for "special," "peculiar," or "disproportionate" harms to the individual plaintiff 1. Total loss of access to private land 2. Personal injuries 2) Anonymous Case (710) a. Rule: where one man has suffered greater hurt, inconvenience or greater Outlines Page 25

a. Rule: where one man has suffered greater hurt, inconvenience or greater displeasure than the generality have, can have an action to recover the damage which he has special hurt. 3) 532 Madison Ave. Gourmet Foods, Inc. v. Finlandia Center, Inc. a. Public nuisance is actionable by a private person only if it is shown that the person suffered special injury beyond that suffered by the community at large b. Unlawful obstruction of a public street is a public nuisance and a person who as a consequence sustains a special loss may maintain an action for public nuisance c. Plaintiff can recover if they can establish that their injuries were special AND different in kind, not merely different in degree (plaintiff must show a loss of livelihood which is not suffered by every person in the area) 4) Camden County Board of Chosen Freeholders v. Beretta, USA Corp. [handgun manufacturer] a. A public nuisance is an unreasonable interference with a right common to the general public b. For the interference to be actionable, the defendant must exert a certain degree of control over the source of the interference. c. No NJ court has ever allowed a public nuisance claim to proceed against manufactures for lawful products that are lawfully placed in the stream of commerce d. Courts split e. Gun cases: retailers and actual users of guns are liable (retailer must background check) IX. Products Liability a. General Info i. Products liability law governs the activities of defendants (i.e. manufacturers, distributors and sellers) who have placed a product in the stream of commerce and therefore are no longer in possession of it at the time that it causes damages ii. Divided into 4 periods: 1) Privity limitation {consumer could only sue immediate vendor, bystander could only sue party in possession} 2) Rejected privity limitation by imposing liability for negligence on a remote seller (no direct contractual relationship with the injured party) 3) Stricty liability, not negligence, should govern the manufacturer's liability (R2T 402) 4) Modern law deals with defective design and duty to warn cases and now there is the R3T. iii. History: 1) First period ran from mid-nineteenth century to early twentieth, when major debate was whether to allow any suits at all against product manufacturers or sellers 2) Last half of nineteenth century witnessed a steady but limited erosion of privity limitation which stopped consumers from suing anyone other than whoever directly sold them the product 3) Second period began with MacPherson, allowing for negligence against a manufacturer with whom the buyer had no contractual relationship 4) Third stage began with Escola, applying strict liability principles to products liability cases 5) Fourth and final stage dealt with defective design and duty to warn cases b. Product Defects i. Manufacturing Defects 1) Product has manufacturing defect when it departs from its intended design even though all possible care was exercised 2) Proof of specific defect is not required if the incident that harmed P is of the kind that ordinarily occurs as a result of product defect and was not solely the result of causes other than the defect existing at the time of sale or distribution 3) Speller v. Sears, Roebuck and Co. [Fire: fridge or stove?] a. New York has long recognized the viability of the circumstantial approach in products liability cases and adopts R3T 3. b. In order to proceed in the absence of evidence identifying a specific flaw/defect (i.e. by using circumstantial evidence), a plaintiff must prove that the product did not perform as intended and exclude all other causes for the product's failure Outlines Page 26

not perform as intended and exclude all other causes for the product's failure that are not attributable to defendant. c. Food Cases: "reasonable expectations" test is used; no natural/foreign substances distinction; what do consumers have a right to expect? ii. Design Defects 1) Product is defective in design when foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design and the omission of the alternative design renders the product unreasonably unsafe 2) Campo v. Scofield a. A manufacturer is under no duty to make a machine accident proof or foolproof. b. A manufacturer is under no obligation to furnish a machine that will not wear out. c. A manufacturer is under no duty to guard against injury from a patent (i.e. obvious) peril or from a source manifestly dangerous (such as an axe, buzz saw, or an airplane with an exposed propeller). d. Used to be majority but modern law uses the consumer expectations test 3) Wade on whether product is unreasonably dangerous (factors) a. Usefulness and desirability of the product (to user and to public as whole) b. Safety aspects of product & likelihood it will injury/probable seriousness of injury c. Availability of a substitute product which would meet need and not be as unsafe d. Ability to eliminate the unsafe character without impairing usefulness & making it too expensive e. User's ability to avoid danger by exercising care f. User's anticipated awareness of dangers inherent in product (because of general public knowledge or existence of suitable warnings or instructions g. Feasibility for Manufacturer of spreading loss by setting price of product or carrying liability insurance 4) Volkswagen of America v. Young [crashworthy/second collision case] a. AM are liable for a defect in design which the manufacturer could have reasonably foreseen would cause or enhance injuries on impact, which is not patent or obvious to the user, and which in fact leads to or enhances/aggravates the injuries in an automobile collision b. An AM is not required to design an "accident-proof" or "Injury proof" vehicle nor is the manufacturer an insurer. c. The standard to be applied is the traditional negligence principles = one of reasonableness d. No recovery if the danger inherent in the particular design was obvious or patent to the user of the vehicle. e. Open & Obvious test 1. Cost-benefit test to determine applicable design standard f. R3T takes the view that D is liable for the full loss if proof does not support a determination of the harm that would have resulted in the absence of the product defect even though a D is only liable for the 'increased harm' under the theory of proximate causation 1. Majority g. R2T: The fact that a danger is open and obvious is relevant to the issue of defectiveness, but does not necessarily preclude P from establishing that a reasonable alternative design should have been adopted that would have reduced or prevented injury to P h. Crashworthy Case: D is not responsible unless there is enhanced or aggravated injury by defective design 5) Barker v. Lull Engineering Co. a. A court may instruct a jury that the product is defective in design either; 1. If the Plaintiff proves that the product has failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner OR 2. If the P proves that the products design proximately caused injury and the defendant fails to prove, in light of the relevant factors, that the benefits of the challenged design outweigh the risk of danger inherent in such design. b. "A manufacturer who seeks to escape liability for an injury proximately caused by Outlines Page 27

b. "A manufacturer who seeks to escape liability for an injury proximately caused by its products design on a risk-benefit theory should bear the burden of persuading the trier of fact that its product should not be judged defective, the Ds burden is one affecting the burden of proof, rather than simply the burden of producing evidence" c. Factors considered in this case: gravity of danger posed by challenged design, likelihood that such danger would occur, the mechanical feasibility of a safer alternative, the financial cost of an improved design, AND the adverse consequences to the product and to the consumer that would result from an alternative design d. This two part test is dominate today; consumer expectations and cost/benefit e. Since it is negligence, it focuses on the manufacturer rather than the product, which the focus of strict liability system f. Older products are held to a less stringent test that new products if safety standards and expectations have changed over time g. Evidence of subsequent design changes cannot be introduced so as not to discourage improvements in design, even under strict liability h. Product alteration by the consumer can defeat or diminish Ds responsibility for subsequent injuries 6) Linegar v. Armour of America [bullet-proof vest case] a. Although not conclusive, the obviousness of a defect or danger is material to the issue of whether a product is unreasonably dangerous b. Manufacturer is not obligated to market only one version of a product, that being the very safest design possible. c. R3T: requires that P show a reasonable alternative design even though P alleges that the category of product sold by D is so dangerous that it should not be marketed at all 1. But many states reject this as overly burdensome on P 7) Halliday v. Sturn, Ruger & Co. a. Applying the Consumer Expectation test, a manufacturer is not liable for a design defect on a RU analysis unless the gun malfunctions. (over risk-utility test) 8) TN Products Liability Act of 1978 a. Design of product 1. Not required that product be perfect (Curtis Through Curits v. Universal Match Corp. Inc. 2. Whether the actual product designed and produced is unreasonably dangerous iii. The Duty to Warn 1) Product is defective due to inadequate instructions when the foreseeable risks of harm posed by the product could have been reduced/avoided by the provision of reasonable instructions or warnings 2) Applies most often to pharmaceutical and chemical products that cannot be made very safe 3) MacDonald v. Ortho Pharm. Corp. [duty to warn: oral contraceptives] a. The extent of the manufacturer's duty to warn in cases involving prescription drugs is that the prescribing physician acts as a "learned intermediary" between the manufacturer and the patient and the duty of the ethical drug manufacturer is to warn the doctor, rather than the patient, although the manufacturer is directly liable to the patient for a breach of such duty b. However, oral contraceptives bear peculiar characteristics which arrant the imposition of a common law duty on the manufacturer to warn users directly of associated risks c. The manufacturer's duty is to provide the consume written warnings conveying reasonable notice of the nature, gravity, and likelihood of known or knowable side effects, and advising the consumer to seek fuller explanation from the prescribing physician or other doctor of any such information of concern to the consumer. d. The prescribing physician's duty is to disclose in a reasonable manner all significant medical information that the physician possesses or reasonably should possess that is material to an intelligent decision by the patient whether to take Outlines Page 28

possess that is material to an intelligent decision by the patient whether to take 'the pill' e. A manufacturer's compliance with FDA requirements, while admissible, is not conclusive on the issue of negligence f. The manufacturer's common law duty to warn necessitates a warning comprehensible to the average user and conveying a fair indication of the nature and extent of the danger to the mind of a reasonably prudent person g. :: this can also apply to vaccines. h. Refused to subject a pharmacist to the duties to warn (best left with physician) EXCEPT 1. Prescribing drugs that, to his personal knowledge were contraindicated for this particular patient (alcoholism?) OR 2. Dispensing drugs without a label indicating the maximum safe dosage, given the standard practice to the contrary 4) Vassallo v. Baxter Healthcare Corp. a. With regard to a plaintiff's breach of implied warranty of merchantability claim, the "state of the art" (at the time of the sale) standard should be used that conditions a manufacturer's liability on actual or constructive knowledge of the risks associated with a product. b. A product is effective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings and the omission of the instructions or warnings renders the product not reasonably safe c. The manufacturer's duty is to performance reasonable testing prior to marketing a product and to discover risks and risk-avoidance measures that such testing would reveal. d. Unavoidably dangerous products [duty to warn] 1. Hepatitis 2. Asbestos 3. DES 4. AIDS 5) Hood v. Ryobi America Corp. [bladesaw man] a. A warning need only be one that is reasonable under the circumstances b. A clear and specific warning will normally be sufficient c. The manfacturer need not warn of every mishap or source of injury that the mind can imagine flowing from the product d. In deciding whether a warning is adequate, Marlyand law asks whether the benefits of a more detailed warning outweight the costs of requiring the change e. Plaintiff's defective design claim fails on the ground that the prodcut has been altered and such product alteration defeats the defendant's liability f. Warning for latent defects: generally must be given g. Warning for patent defects: (known to cause harm) no duty to warn of risks that are common knowledge 1. Warning label must be attached to alcohol (consumption over a period of time) h. Duty to warn of appliance made by others in selling its own product 1. Yes despite lack of manufacturing it or owning it or lack of knowledge of particular instance of hazard c. Plaintiff's Conduct i. Daly v. General Motors Corp. [comparative neg to products liability] 1) Plaintiffs will continue to be relieved of proving the manufacturer or distributor was neg in the production, design or dissemination of the article in question 2) Defendant's liability for injuries caused by a defective product remains strict 3) Plaintiff's recovery will be reduced only to the extent that his own lack of reasonable care contributed to his injury 4) Concur/Dissent: will be an unfair reduction in total damages suffered based on jury's guesswork 5) Dissent: assumption of risk should be a total defense to products liability; we are injecting neg here. 6) In many settings assumption of risk is a defense to product liability, but sellers generally Outlines Page 29

6) In many settings assumption of risk is a defense to product liability, but sellers generally cannot contract out of liability ii. R3T (majority view): Ps recovery of damages for harm caused by a product defect may be reduced if the conduct of P combines with the product defect to cause the harm and Ps conduct fails to conform to generally applicable rules establishing appropriate standards of care. 1) Will not treat independent defenses product misuse, alteration or AoR when it operates under contributory neg; instead use comparative fault rule X. Damages a. General Info i. 3 critical elements of damages: 1) Pain & suffering 2) Medical expenses; and 3) Lost earnings ii. Ideally, damages are meant to place the Plaintiff in the position she would have enjoyed if the tort had never been committed iii. Damages set the "prices" defendants must pay for engaging in their chosen activities (deterrence) iv. In the typical tort action today, especially PI cases, the plaintiff's lawyer receives compensation in the form of a contingency fee taken out of the plaintiff's awarded, either by settlement of judgment v. There are special rules that govern the loss of consortium, wrongful death and punitive damages b. Recoverable Elements of Damage i. Pain and Suffering 1) McDougald v. Garber a. Nonpecuniary damages: compensate for the physical and emotional consequences of the injury such as pain and suffering and loss of ability to engage in certain activities b. Pecuniary damages: compensate for the economic consequences of the injury, such as medical expenses, lost earnings, and the cost of custodial care c. Award is to compensate victim, not to punish wrongdoer d. Goal is to restore injured party to the position s/he would have occupied had the wrong not occurred e. Purely punitive damages are prohibited unless the conduct is intentional, malicious, outrageous, or otherwise aggravated beyond mere negligence f. Cognitive awareness is required for recovery for loss of enjoyment of life g. Loss of enjoyment of life is a permissible factor for assessing pain and suffering h. Although pain and suffering and loss of enjoyment of life can be distinguished, they should not be treated separately for the plaintiff to be fully compensated for each distinct injury suffered. i. Dissent: no problem with the court authorizing separate awards would permit award of loss of enjoyment of life, even if plaintiff is unaware of that loss. 2) Elements for Pain & Suffering: worry, anguish and grief 3) Hedonic Damages: physical pain, loss of societal opportunities, and social stigma are major contributors; NOT anything inherent in the disability itself. ii. Economic Losses 1) O'Shea v. Riverway Towing Co. [computing inflation in lost wages damages] a. Previous wages do not cap an awarded of lost future wages b. Tort vitcims are entitled to damages based on what they would have earned in the future, not on what they may or may not have earned in the past c. Lost future wages should be discounted to their present value d. There are at least two ways to deal with inflation and either way is acceptable 2) Pre-judgment interest & punitive income is taxable; PI compensation is not taxable 3) Discounting to present value: PV$1.00= $1.00 (1 + i)n a. Future value = FV$1.00= $1.00 x (1 + i)n 4) Inflation (takes more dollars tomorrow than it takes today) is usually accounted for in damages 5) Economic damages are taken looking forward, not back 6) Mitigation of damages: P has a duty to minimize the loss Outlines Page 30

6) Mitigation of damages: P has a duty to minimize the loss a. Most courts give P the benefit of the doubt so long as P acts in good faith in deciding whether to accept or reject treatment {risky treatment/medical interventions} 7) Duncan v. Kansas City Southern Rwy a. General damages are those which may not be fixed with pecuniary exactitude and include mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or life-style that cannot be definitely measured in monetary terms b. An appellate courts' determination is not guided by awards for similar injuries; rather, whether the instant ward is beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular P under the particular circumstances c. Future medical expenses must be established with some degree of certainty (i.e. medical expert testimony) 8) Remittitur and additur: a. remittitur gives P option to avoid cost of new trial by accepting reduction in size of jury award b. Additur: D can avoid cost of new trial by consenting to a larger verdict 9) Structured Settlements: Pay P's damages in periodic installments (large verdicts); Reduces need for inflation estimates; may be used if both parties agree even if CL only provides for lump sum damages c. Wrongful Death and Loss of Consortium i. Both WD and LoC claims vindicate the relational interest of the P to the person injured or killed. ii. Relational interests = individuals have obligations of duty and support to other persons: 1) Husband to wife 2) Wife to husband 3) Parent to child 4) Servant to employer iii. CL limitations (historically; since been 'overcome') 1) The action for loss of services could not be brought by a wife or child 2) The action for loss of services did not cover cases of wrongful death iv. Wrongful Death 1) History a. Baker v. Bolton 1. A husband suffered no damage when his wife was not merely injured, bu killed by the Ds wrongful conduct 2. P was denied damages for loss of his wifes services and consortium after her death. 3. Response: Lord Campbell's act of 1846 One. "whenever the death of a person is caused by the wrongful act, neglect or default of another, such as would (if death had not ensued) have entitled the Two. Classes entitled to bring action: Husband, wife, parent, child, grandparent, grandchild Three. Defenses: Contributory negligence, AoR b. Later, the American courts through statutes allowed wrongful death actions in limited circumstances, such as to families of deceased railway passengers and seaman c. Moragne v. States Marine Lines, Inc. (1970) 1. Allowed the first non-statutory cause of action for wrongful death, but only in cases of breach of maritime duty of seaworthiness. 2) Measure of Damages a. Each state statute sets its own measure of damages for wrongful death actions 1. No state has a hard dollar cap on damages in wrongful death actions, but some have special limitations for certain types of cases. b. Wrongful death action measure of damages: 1. Loss-to-survivors (majority): D must pay damages only if some beneficiary depends upon the decedent for support Outlines Page 31

depends upon the decedent for support 2. Loss-to-estate: damages will be awarded against D, even if the decedent has no dependents at the time of death c. Medical expenses are not part of a wrongful death action per se. d. The pure wrongful death action awards nothing ($0) for the decedents pain and suffering or medical expenses. v. Survival of Personal Injury Actions 1) CL: a personal action dies with the person provided that any tort action, including one for personal injuries or property damages, was extinguished by the death of either P or D 2) Modern law changes this; survival of actions is universal a. Exceptions: Deceit or defamation (only some let this survive) 3) Typical survivor statute allows compensation for pain & suffering of decedent before her death. vi. Actions for Loss of Consortium 1) English courts only allowed LoC actions to husband (not wife) for loss of services of partner; LoC completely abolished in 1982 2) American cases universally allow LoC for wives as well as husbands a. Children are allowed to file wrongful death actions when their parents are killed b. BUT courts are split on whether children/parents can bring an LoC action 1. Some states allow recovery for loss of companionship of adult child c. Most courts don't extent LoC for unmarried cohabitating couples. d. Punitive Damages i. Kemezy v. Peters [cop beat with nightstick] 1) In punitive damage awards, Plaintiff is not required to (but can choose to) present evidence of Ds wealth 2) Purpose of punitive damages is that it is to punish the defendant for reprehensible conduct and to deter him and others form engaging in similar conduct. ii. Purpose: deterrence iii. Statutory laws (some) have capped punitive damages or declined to award except in certain types of cases (or have to show specific intent to harm) iv. State Farm Mutual Automobile Insurance Co. v. Campbell 1) Courts reviewing punitive damages consider three guideposts: a. The degree of reprehensibility of the defendants misconduct; b. The disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award AND c. The difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases. 2) Compensatory damages are intended to redress the concrete loss that the plaintiff has suffered by reason of the defendants wrongful conduct. Punitive damages serve a broader function; they are aimed at deterrence and retribution. Punitive damages may properly be imposed to further a states legitimate interests in punishing unlawful conduct and deterring its repetition. 3) The Due Process Clause of the Fourteenth Amendment prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor. If the award is excessive, it does not serve a legitimate purpose and is considered arbitrary deprivation of property. 4) Wealth of D cannot justify excessive damage awards 5) The State has no legitimate concern in imposing punitive damages to punish a defendant for unlawful acts committed outside of the states jurisdiction. In this case, the court awarded punitive damages to punish and deter conduct, which bore no relation to Plaintiffs harm. 6) Dissents: a. Scalia: The Due Process Clause provides no substantive protections against excessive or unreasonable awards of punitive damages. b. Thomas: The Constitution does not constrain the size of punitive damages awards. c. Ginsburg: The trial court should be granted great discretion in awarding punitive damages. In this case, the trial court did not abuse its discretion. XI. Defamation Outlines Page 32

XI. Defamation a. General Info i. New York Times v. Sullivan: first time invoked first amendment freedom of speech to limit common law of defamation 1) Public officials can maintain actions in defamation only upon proof that the D's statement was made with "actual malice" a. Actual Malice: 1. Knowledge that the statement was false OR 2. Reckless disregard of whether statement was false or not 2) Actual malice involving spite or ill will is constitutionally irrelevant for suits brought by public officials against media defendants ii. Curtis Publishing Co. v. Butts 1) Extended actual malice rule from New York Times v. Sullivan to public figures iii. Gertz v. Robert Welch, Inc. 1) Private Plaintiff who brings a defamation lawsuit against a media Defendant cannot recover without showing that the media defendant was at fault in the publishing of the statement. 2) Constitutionalized much of the law of defamation that relates to private Ps against Media Ds 3) Common law rules now must be scrutinized under the First Amendment's freedom of speech and press iv. Necessary to determine (public officials suing media Ds): 1) Whether the statements made were actually defamatory 2) Whether they were true 3) Whether they caused damage to P v. CL set initial presumption in favor of reputation; Supreme Court tipped this to favor freedom of speech vi. Most cases go in favor of the D b. Publication i. Doe v. Gonzaga University 1) Elements of defamation: a. Falsity b. An unprivileged communication c. Fault AND d. Damages 2) There must be publication of the defamation: defamation must be communicated to someone other than the plaintiff 3) Intra-corporate communications are not absolutely privileged 4) There is a qualified privilege for communications made between co-employees, but that privilege may be lost if the employees are not acting in the ordinary course of their work. 5) Privilege may also be lost by showing that the defendant made the statement with actual malice ii. Without publication requirement, defamation would be indistinguishable from insult or deceit iii. Protects only the interest in reputation iv. R2T: what constitutes publication 1) Communicated intentionally or by a negligent act to third party 2) Intentionally and unreasonably fails to remove defamatory matter that he knows to be exhibited on land or chattels in his possession or under his control (liable for its continued publication) v. Publication by Default: Knowingly permitting matter to remain after a reasonable opportunity to remove it made owner guilty of a republication [tavern owner responsible for message written on bathroom wall] vi. Republication by Plaintiff: Employment recommendations; {employees allege false statements for reasons of dismissal by employers} 1) Doctrine: reuses to give employer but makes it a qualified privilege for statements made by employers to employees concerning reasons for discharge (published or not) 2) Also imposed duty on P to mitigate damages: if P must repeat defamatory statement, he must 'take reasonable steps' to explain true nature of situation and contradict the Outlines Page 33

must 'take reasonable steps' to explain true nature of situation and contradict the defamatory statement vii. Firth v. State of New York 1) The single publication rule means that a defamatory statement in a single issue of a magazine, even though there are thousands of copies distributed, is one publication which gives rise to one cause of action and the applicable statute of limitations runs from the date of that publication (1029). 2) Republication occurs upon a separate aggregate publication from the original, on a different occasion, which is not merely "a delayed circulation of the original edition" a. Defamatory statement in a later edition of a book, etc. may give rise to a new cause of action b. R: intended to and actually reaches a new audience (1030). 3) Mere addition of unrelated information to a website cannot be equated with the repetition of defamatory matter in a separately published edition of a book or newspaper (1031). viii. Keeton v. Hustler Magazine 1) Mass Publication Rule: R2T: any one edition of a book or newspaper, or any one radio or television broadcast, exhibition of a motion picture, or similar aggregate communication is a single publication 2) Minimum 'contacts' necessary to allow a state court to assert jurisdiction; Court held since Hustler sold x amount of copies in NH, P could sue in NH even though she was an OH resident and the company is based in CA ix. Republication by a Third Party: Communications Decency Act "no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider" 1) Matchmaker.com blocked profile that someone else posted (upon request) and then removed it. Selection of content was left exclusively to the user so matchmaker cannot be considered an 'information content provider' because no profile has any content until a user actively creates it 2) Policy reasons: 1) promote free exchange of information and ideas over the internet and 2) to encourage voluntary monitoring for offensive or obscene material c. False or Defamatory Statements i. Parmiter v. Coupland 1) A publication, without justifcation or lawful excuse, which is calculated to injure the reputation of another, by exposing him to hatred, contempt or ridicule = libel. ii. Muzikowski v. Paramount Picture Corp. 1) Defamation per se: a. Commission of a criminal offense b. Infection with a venerial disease c. Inability to perform or want of integrity in the discharge of duties of public office d. Fornication or adultery OR e. Words that prejudice a party in her trade, profession, or business 2) A defamatory statement is one that tends to cause such harm to the reputation of another that it lowers that person in the eyes of the community or deters third persons from associating with him. A defamation action may state a claim either for: a. Defamation per se (statements so harmful to reputation that damages are presumed) OR b. Defamation per quod (statements requiring extrinsic facts to show their defamatory meaning). 3) It will not be actionable per se if the statement "may reasonably be innocently interprested or reasonably be interpreted as reffering to someone other than the plaintiff 4) If a statement is capable of two reasonable constructions, one defamatory and one innocent, the innocent one will prevail 5) For a per quad claim, plaintiff must itemize her losses or plead specific damages of actual financial injury iii. Supreme court refused to apply any rule of innocent construction, and instead read word's ordinary meaning. iv. A newspaper headline may be libelous even though the full story sufficient explains it v. P must show that she is the target of a defamatory utterance ("of and concerning the plaintiff. Outlines Page 34

v. P must show that she is the target of a defamatory utterance ("of and concerning the plaintiff. vi. Wilkow v. Forbes, Inc. 1) If it is plain that the speaker is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in possession of objectively verifiable facts, the statement is not actionable. 2) Not completely shielded, though, just by prefacing the words with "in my opinion" vii. Repudiation: P can win if she can point to any subgroup of the population that would find the statement defamatory. Not a question of majority vote if 'important and respectable part of community' would find it hurtful. 1) Practical harm: that it will be known by a large number and will lead to an appreciable fraction of that number to regard the P with contempt is enough viii. Group Libel: Defamatory statements made about a group of which P is a member 1) P can demonstrate of and concerning him? Depends on size of group and whether the defamatory comment speaks of all members of the group or merely of some 2) Recovery usually limited to cases in which statement is made of all members of a small group d. Libel and Slander i. Libel: D's statement is in some permanent form, such as a book, picture, wax sculpture or broadcasting of defamatory statements by radio or television, whether or not read from a manuscript 1) Generally actionable per se without proof of special damages 2) Libel per se = reference to plaintiff is derived from the statement itself a. Mentioning a name can be libel per se; generic statements need extrinsic evidence (if you say 'person who stole my money is in the house next door') 3) Libel per quod = some reference to extrinsic evidence ii. Slander: False spoke words. Gestures such as a nod of a head, a wave of the hand, or a sign of the figures is slander, not libel 1) Generally actionable only upon proof of special damages with exceptions: 2) Exceptions: a. Loathsome disease b. Criminal conduct c. Imputation of chastity OR d. Slander of a person's trade of business iii. Basis of Strict Liability: Intention, Negligence and Strict Liability in Defamation 1) E. Hulton & Co. v. Jones [newspaper ran article with 'fictitious name'] a. The intent of the writer is immaterial in considering whether the matter written is defamatory b. It is not what the writer intended but how the statement would be understood c. Followed today as long as governed by CL rules. Acutal malice (sense of spite or ill will) is presumed and need to be proved if the words are defamatory on their face [hurting P's rep in the eyes of the general community] d. Widely agreed that the D will be liable only if the publication was intentional or at least negligent 1. R2T: excuses D for 'accidental publications' e. Damages i. Special Damages 1) Terwilliger v. Wands [physical illness is not a special damage/only covers non-physical interests] 1) When the words spoken by the defendant are not slanderous words actionable per se (i.e. the words do not apparently and upon the face of them import defamation that will of course be injurious), in order to maintain a defamation action, P must prove that the words occasioned (i.e. caused) special damages to the P 2) The special damages must have been the natural, immediate, and legal consequences of the words. 3) Examples of what is sufficient to constitute special damages include: a) Loss of marriage b) Loss of hospitable gratuitous entertainment c) Prevent a servant or bailiff from getting a place d) The loss of customers by a tradesman; AND Outlines Page 35

d) The loss of customers by a tradesman; AND e) Whenever a person is prevented by the slander from receiving that which would otherwise be conferred upon him, although gratuitously 4) The words must be defamatory in their nature, must in fact disparage the character, AND this disparagement must be evidenced by some positive loss arising therefrom directly and legitimately as a fair and natural result 5) Words that do not degrade the character do not injure it and cannot cause loss 6) Look at the common and usual effects and not those that are accidental and occasional= plaintiff lost 2) Ellsworth v. Martindale-Hubbell Law Directory, Inc.[lawyer's rating in directory is wrong] a) Where defendant publishes a statement about a plaintiff's business, which is intended or reasonably calculated to produce, AND in the ordinary course of things does produce, a general loss of business (a.k.a. diminution of business), evidence of such loss of business is admissible to support a special damages claim. b) Rule 1 is true even if the words are not actionable per se, and although there is no specific evidence given at trial of the loss of any particular customer or order by reason of the publication c) Business losses support special damages claim i) D can argue that loss was caused by some independent event ii. General Damages 1) When special damages do not have to be shown, general damages may be recovered 2) General damages are presumed and do not have to be proved by the plaintiff. 3) General damages elements: a. Injury to reputation b. Loss of business AND c. Wounded feelings and bodily suffering resulting therefrom 4) Faulk v. Aware, Inc. (1962 )[communism allegations to entertainment career] a. The court should not substitute its judgment for that of the jury unless the amouts awarded are insupprtable under any fair-minded view of the facts b. The award of damages is in the 'sound discretion' of a jury, but that discretion must be exercised in accordance with the applicable views of law and the evidence in the case and is subject to court review c. 2 items of damages are recoverable for a libel 1. Compensatory damages and 2. Punitive damages d. A person wrongfully injured is entitled to recover for the deprivation of future earning capacity without limitation to his actual earnings preceding the injury; and that opinion testimony with regard to this potential earnings in that field by experts familiar with his capacities is admissible 5) Faulk v. Aware, Inc. (1963) a. P's prior earnings are an important factor in assessing the damages suffered when his earnings are cut off b. P's damage is not limited to the level of his actual earnings at the time of the libel c. P's potential earnings may be taken into consideration when there is a evidence to enable a juary to assess those potential earnings 6) Proof of general damages does not preclude proof of special damages as well iii. Other Remedies 1) Injunction a. Courts have refused to enjoin (i.e. grant injunctive relief) for either slander or libel 1. Because it would infringe upon freedom of speech by denying speaker the option of getting his message to public at large 2. This prohibition is absolute! 2) Retraction a. Law can require D to retract defamatory utterance 1. Usually done by D publishing a withdrawal of the libel in the same newspaper or broadcast that originally published it Outlines Page 36

newspaper or broadcast that originally published it b. CL: retraction was not a complete defense (mitigated damages) 1. Statutes have been made; some say if retraction is honored plaintiff can only get general damages (blocks suits for punitive damages) and general damages are denied if plaintiff can show he made an honest mistake in publishing the facts c. Retractions must be full and complete 3) Reply Statutes a. Right of reply (aka right-of-access) statutes are held unconstitutional as it applies to political candidates right to demand that newspapers print, free of charge, any reply a candidate wishes to make to a newspaper's charge f. Nonconstitutional Defenses i. Truth 1) Anvil v. CBS 60 Minutes [apple grower chemicals aired on 60 minutes] a. For a product disparagement claim to be actionable, plaintiff must prove the falsity of the disparaging statements 1. Individual statements, not overall message b. Defamation and Truth: conventional view holds that the prima facie case in defamation does not require a showing that the statement published is false 1. Enough that D published defamatory material "of and concerning" (about) the P that 'tends to lower the estimation of P in the eyes of third parties to whom it is directed' (1072) c. "Truth" is an absolute defense ii. Privileges in the Private Sphere 1) Watt v. Longsdon [give wife info he thinks is true but is false] 1. Privileged communications are those in which a person may make defamatory statements about another which are untrue /o incurring any legal liability for his statements 2. This privilege is based upon either 1. A duty or 2. An interest to publish 3. Privilege may be lost if: 1. The communications exceed the privilege by going beyond the limits of the duty or interest OR 2. Communications are published with express malice 4. Communications are privileged if: 1. There is a duty to communicate info believed to be true to a person who has a material interest in receiving the information; 2. An interest in the speaker to be protected by communicating information, if true, relevant to that interest, to a person honestly believed to have a duty to protct that interest OR 3. A common interest and reciprocal duty in respect of the subject matter of the communication between the speaker and recipient 2) Qualified privilege when it comes to former employees giving references of 'character' in reply to inquiry (not volunteered); not absolute privilege 3) Qualified privilege for credit reports (commercial credit agencies) 4) Conditional privilege when 'person making the publication reasonably believes that his interest in his own reputation has been unlawfully invaded by another person and that the defamatory matter that he publishes about the other is reasonably necessary to defend himself' -- 'included the statement that his accuser is an unmitigated liar' (R2T) g. Constitutional Privileges i. Public Officials and Public Figures 1) NY Times Co. v. Sullivan** 1. A public official is not entitled to be awarded damages in a defamation action against critics of his official conduct, unless he proves that the d's statement was made with 'actual malice' ii. Private Parties 1) Philadelphia Newspapers v. Hepps ** a) In Gertz, the US Sup. Ct held that a private P who brings a defamation lawfuit Outlines Page 37

a) In Gertz, the US Sup. Ct held that a private P who brings a defamation lawfuit against a media D cannot recover without showing that the media D was at fault in the publishign the statemetn of public concern b) In NY Times, US Sup held that a public figure P who brings a def lawsuit against a media D cannot recover WITHOUT showing the falsity of the published statement c) Holding: where newspaper publishes speech of public concern, a private-figure P who brings a def lawsuit against a media D cannot recover without also showing that the published statements are false XII. Privacy a. History b. Intrusion upon Seclusion c. Public disclosure of embarrassing private facts d. False Light e. Commercial Appropriation of Plaintiff's name or likings, or the Right of publicity

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