Chapter 7: Affirmative Duties
I.
Introduction
1. Nonfeasance: failure to act
2. Traditional common law had two categories of guests:
a. Social guests (licensees)
b. Business guests (invitees) – higher duty owed to them
3. Many states reject this though.
4. Generally: no affirmative duty principle but there are exceptions:
a. If you start to help, you have to use reasonable care to carry through.
b. Landowner cases
c. Reliance
d. D being the government.
e. No privity of contract
f. Special relationships
II. The Duty to Rescue
A. No Affirmative Duty Principle
1. Buch v. Armory Manufacturing Co.
a. 8 yr old boy crushed his hand in a mill’s machine where he was trespassing.
Asked to leave, but he wasn’t forced to go. He didn’t understand English.
b. Must owe a duty to be liable. Very little duty owed to trespassers.
2. Hurley v. Eddington
a. Dr refused to help a person and then that person died.
b. Rule: Dr’s don’t have to treat someone if they don’t want to. No duty.
3. Yania v. Bigan
a. Person jumped into water on the D’s land and drowned. The D “taunted” the
person into jumping, but didn’t physically push.
b. No duty.
B. Discussion of the No Affirmative Duty Principle
1. Difference between legal and moral obligations, but often legal obligations stem from
moral obligations.
2. Arguments against no affirmative duty principle
a. Ames (Utilitarian argument) – the law is/should be utilitarian so there should be
some liability if someone could easily rescue another from emanate harm.
i. About pluses and minuses
ii. People are treated as a means to the end goal of utility.
b. Bender (Moral Argument) – we should be more connected.
i. The person’s drowning death will affect more than just the passer-by.
ii. About the respect we owe to other people.
iii. People are the end.
iv. Being rescued trumps the rescuer’s autonomy.
c. Ethical argument: any rule we apply should be able to apply universally. “Do unto
others…” – moral argument line of reasoning.
d. Posner argues that many people would make the contract that I would save you if I
easily could, if you would do the same for me. It would be hard to make that
without everyone because of transactional costs, so just make a statute.
3. Argument for the no duty rule
a. (Epstein) If we impose a duty, it will take away our autonomy and liberty. - It’s
hard to draw a line so it’s better to make a bright hard line of no duty.
b. In Stockberger v. US Posner ruled against an affirmative duty, but he was bound
by precedent.
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c. Also says that having a duty might reduce the # of rescues because it might
discourage people from learning rescues skills so they won’t be liable if they
don’t use them. (Posner)
d. Can’t give credit to people for being altruistic if it’s required. (Posner)
e. Over-riding value of stability – argument for precedent.
f. There are very few “non-rescues” – so leave well enough alone.
g. Circle of potentially liable non-rescuers would be difficult to draw (Posner)
4. Should the legislature change the common law rule of “no duty?”
a. Kansas statute precludes rescuer from liability but still held liable for gross
negligence (Vermont does this too).
b. Hypo: If you’re a Dr’s attorney – should he stop to help someone? Still liable for
gross negligence, so statute not a big comfort.
c. Other: if didn’t perform the duty, can be held liable for criminal misdemeanor. So
far there hasn’t been any tort liability.
5. Other:
a. Government and government officials can’t be sued on the affirmative duty theory.
Governments aren’t people and don’t have liberty or autonomy rights – therefore,
have to base no affirmative duty on a different argument.
C. Exception 1: Duty to Rescue
1. If D creates danger, even though not at fault, he must take reasonable steps to minimize the
danger to others. This is consistent with the rule to not make the world a more dangerous
place.
2. Montgomery v. National Convoy
a. Ds were stuck because of ice and the P couldn’t see them in time to stop and they
hit the Ds. The D had enough time to place a warning sign, but they didn’t.
b. Court said there is a duty because the defendant created the danger, so they have to
take reasonable steps to prevent harm.
c. One may be negligent by an act of omissions of a duty owed another if it is the
direct/proximate/efficient cause of the injury.
d. Needed to take precautions that would reasonably be calculated to prevent injury.
3. Newton v. Ellis
a. Man dug a hole in the road and didn’t put lights next to it at night and someone fell
in while driving.
b. Court says it’s a “complex act” and not nonfeasance because he created the risk
and he didn’t put lights next to it.
4. Louisville & Nashville RR v. Scruggs
a. Train was blocking a fire truck from getting to a burning building. Train refused to
move and the building was destroyed.
b. No duty to aid another man in helping someone else.
c. Argument in favor of liability: there’s no difficultly in drawing a line to see who
the D is here. So one of the reasons for having the no duty rule isn’t here, so we
can make an exception.
d. Ploof v. Putnam necessity rule could be useful to plaintiffs in Soldano and
Scruggs. Property in Ploof is like the D’s right of way in Scruggs. But in
Scruggs it was passive and Ploof the act was active.
5. Soldano v. O’Daniels
a. Man ran across the street to try to call 911 because at the bar he was at a man was
in danger of being shot. The bartender across the street refused to let him use the
phone and the man died.
b. He was liable because he didn’t have to do anything; he just had an obligation not
to interfere with the use of his phone.
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6. Zelenko v. Gimbel Bros.
a. P got sick in D’s store. D kept him in an infirmary without medical care. If he had
left him alone then someone would’ve called an ambulance.
b. He was liable because once you begin helping (even without an original duty),
then you have to exercise reasonable care.
c. This rule can deter people from helping. Some argue there should be an exception
when your motivation is to help (like Kansas statute).
d. Basis: there is a general rule not to harm other people
7. Hypo: defendant sees plaintiff drowning and he goes to help but then sees it’s his enemy
and so he swims back without saving him. He would only be liable if he increased the
harm.
8. Hypo: Defendant is driving without negligence and he hits the plaintiff. Then at that
point he has an obligation to the plaintiff to execute reasonable care.
a. Now the defendant has no cell phone and a passenger who is very badly injured.
b. May have good reason to leave the plaintiff and go to the hospital.
9. Hypo: Plaintiff knocked on defendant’s door to use the phone at night.
a. Depending on the facts he may have no duty to do anything.
10. Duty to act with reasonable care not inevitable to help
11. RST § 327 (Interference Rule) renders any person who “knows or has reason to know
that a 3rd person is giving or is ready to give another aid necessary to prevent physical
harm to an endangered person tortuously liable if he “negligently prevents or disables the
3rd person from giving such aid.”
a. Scruggs wouldn’t work here because the train had the right of way and so it
wasn’t interfering but nowadays, the fire truck would probably have the right of
way.
b. Soldano wouldn’t work here either because refusal to use phone didn’t interfere
as discussed by court in Eric J v. Betty M: “interference and refusal to allow
one’s property to be commandeered are simply two different things.”
12. RTT § 39: Duty Based on Prior Conduct Creating a Risk of Physical Harm
a. When an actor’s prior conduct, even though not tortious, creates a continuing risk
of physical harm of a type characteristic of the conduct, the actor has a duty to
exercise reasonable care to prevent or minimize the harm.
b. Hypo: Al driving with reasonable care, but hits Bob because Bob wanders
drunkenly into the street. Al has an obligation to take reasonable steps to help
Bob. Note, case distinct from Montgomery because here duty not about not
making world a more dangerous place but instead helping the injured individual
13. RST § 324: Duty of one who Takes Charge of Another Who is Helpless
a. One who, being under no duty to do so, takes charge of another who is helpless
adequately to aid or protect himself is subject to liability to the other for any
bodily harm caused to him by a) the failure of the actor to exercise reasonable
care to secure the safety of the other while within the actor’s charge, or b) the
actor’s discontinuing his aid or protection, if by so doing he leaves the other in a
worse positions than when the actor took charge of him.
b. Purpose: if didn’t hold intervening D liable if conduct negligent, complicate tort
ligation because would have to determine motive of D.
c. Note: If D makes situation worse (dissuade others from intervening), can be held
liable, but it no one else was going to help, possible to begin help and not
continue and not be held liable.
14. Duties to rescues for public entities
a. Riss v. City of NY: P blinded by former suitor, police failed to respond to Ps
reporting threats against him. Ct didn’t impose liability on the city.
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b. DeShaney v. Winnebago County Dept. of Social Services: state SS agent failed
to protect a small child who was permanently injured by father even though
employees had knowledge of the situation. Ct denied the P’s constitutional claim
(had to go that route b/c state limited tort recovery for public entities).
c. Policy:
i. “Need for discretion” – limited resources and courts shouldn’t interfere with
effectiveness of public entities in determining how to allocate resources. –
This argument varies based on the circumstances
ii. Government doesn’t have the autonomy argument because their job is to
help. So the argument must be different for them for no affirmative duty. It
is: limited resources and we can’t have special protection for everyone.
d. KH v. Morgan – Posner allowed action against state officials when child taken
into state custody and handed over to a person whom the state knows or suspects
to be a child abuser. Here similar to Montgomery because creating harm, so
affirmative duty imposed.
III. Duties of Owners and Occupiers
A. Introduction
1. Two approaches to landowner liability:
a. Traditional: status of the entrant is the key in deciding the duty owed (use on
exam, but make arguments for both b/c there’s a move to modern view)
b. Modern: the duty is reasonable care to all entrants and the status is something for
the jury to consider.
c. Compromise between the two approaches: have less duty to trespassers.
B. Robert Addie & Sons v. Dumbreck – Traditional Approach
1. 4 year old boy killed in defendant’s machine’s wheel. Defendant knew children played
there and that their warnings weren’t being listened to.
2. Plaintiff couldn’t recover because he was a trespasser.
C. Attractive Nuisance – Exception
1. Allows kids to recover when lured onto D’s premises by a tempting condition made and
maintained by D.
2. 1st argument for having special rules for kids: they’re especially vulnerable.
3. 2nd: It’s easier to justify a rule for children rather than for some rule for adults on a case
by case basis.
4. RST § 339: Artificial Conditions Highly Dangerous to Trespassing Children
a. Liable if: 1) the owner knows or has reason to know children are likely to
trespass; 2) knows or should know it will involve and unreasonable risk of death
or serious bodily harm to such children; 3) the children because of their youth
don’t discover the condition or realize the risk; 4) the utility to the possessor of
maintaining and the burden of eliminating the danger are slight compared to the
risk; and 5) the possessor fails to exercise reasonable care to eliminate the
danger.
5. It stated that the danger had to be the thing that hurt the child, but now the danger can be
something else. The attraction doesn’t have to be dangerous.
D. Traditional Approach
1. Trespasser:
a. Gould v. DeBeve
i. P was staying illegally with someone and he fell out of the window while
playing. P won because the screen was broken and the landlord should’ve
fixed it.
ii. Court held defendant was willful and wanton behavior for not fixing the
screen (if you know there is a big danger to someone and you ignore it?)
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iii. Child trespassing is different from regular trespasser because the child
didn’t know.
b. Hypo: Bob is a nature photographer and takes pictures all the time. Al could say
bob should appreciate the danger because he is outside all the time.
i. 1st question: what is his status? Invitee, licensee, or trespasser?
ii. Here, there is no express permission so he is a trespasser.
iii. 2nd question: what’s the duty to trespassers? No duty to take reasonable
care for his protection even to protect him from concealed danger.
iv. Can he ask Bob to leave? Yes, if he doesn’t he can push him off the land.
c. Excelsior Wire Rope Co. v. Callan
i. Kid trespassers’ hands were crushed in machinery next to a playground
that was always “swarming with children.”
ii. Ct found D liable because they acted with reckless disregard of the P’s
welfare.
iii. Willful and wanton exception.
2. Licensee
a. Hypo: Bob wanted to take pictures so he asked Al for permission then Al says
ok which makes Bob a licensee.
b. If you know people use your land and you do nothing about it, then it’s implied
permission
c. Duty: no duty to make premises safe, but bound not to allow concealed danger to
exist on premises, which is not apparent to the visitor but which is known/should
be known to the owner.
i. Most courts only hold liable if the owner was aware of the concealed
danger. Generally, landowner isn’t required to search the land for
dangers.
ii. Concealed: what a reasonable landowner would conclude about
knowledge of a particular licensee. Tell a city person about bees but not
a local.
iii. Duty to warn of a known dangerous condition, no duty to inspect, and
duty of care for active operations (barbari).
d. Active Operations: Bob taking pictures and hit by a baseball because Al is
playing a sport. Rule: courts distinguish between active operations on property
and conditions on property; duty of care owned to licensee for active operations.
e. Hypo: there is a rotten tree limb that falls on the licensee and the landowner
doesn’t know about the limb, then the licensee can’t recover.
f. Hypo: If Bob is from Atlanta and doesn’t understand the nature of bee hives and
he would be totally surprised by one being there. Al understands that Bob
doesn’t understand bees so Bob would have a good argument for the concealed
danger and maybe able to recover.
g. Knorpp v. Hale – cut down his girlfriend’s tree and injured himself. He was a
licensee.
3. Invitee
a. Hypo: Bob and Al are friends and Bob has been to Al’s property a couple times
and then Al decides he wants to sell the property and Bob is a professional real
estate agent so once Al invites Bob over to market or sell his land, he becomes an
invitee because now they have a joint interest. They’re saying that here Bob
could recover for the bees because there is a higher burden for invitees.
b. If Bob knew about the bees then Al may be able to win because although Bob
knew about the danger, he decided to do it anyway.
c. Ward v. K-Mart
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a. Man walked into a post (he’s an invitee so there’s a duty of reasonable
care).
b. Jury can find for plaintiff if he couldn’t see it.
c. Illustrates difficultly in winning on the assumption of risk category.
d. RST § 322: Invitee: either a public invitee or a business visitor, a public invitee
is a person who is invited to enter or remain on land as member of the public for
a purpose for which the land is held open to the public. A business visitor is a
person who is invited to enter or remain on land for a purpose directly/indirectly
connected with business dealings with the possessor of land.
e. Suppose a person slips on the shopping mall floor but he wasn’t there to shop, he
was there to work out by waling.
i. Still an invitee because in the RST there’s a category for public invitees.
f. Duty: taking reasonable care that the premises are safe. O must seek out and
correct dangerous conditions in a reasonable amount of time after their
occurrence.
4. Policy:
a. The distinctions provide predictability.
b. The equities are stronger for invitees/licensee.
E. Modern Approach
1. Rowland v. Christian
a. D invited P to her house and he hurt his hand in the bathroom on a crack. She
knew about it and had asked her landlord to fix it, but she didn’t warn the D.
b. Under traditional approach he’d probably have a good case as a licensee.
c. In Cali at the time, licensees had less protection than they did in most places.
d. New rule: do away with the categories. New test- whether the D has acted
reasonably in light of probability of injuries to others regardless of classification.
e. Reason:
i. Old rules are complex, confusing, and outdated.
ii. People don’t think in terms of the categories, so why should the courts.
2. Some courts follow Rowland, some don’t.
3. Mallet v. Pickens: only ½ of the states have changed approaches and only some have
completely followed Rowland. Here, they got rid of licensee/invitee, but kept trespasser.
4. Peterson v. Balach: takes a middle of the road approach.
a. Said foreseeability of harm is really similar between licensee and invitee. Get rid
of those distinctions, but keep trespasser.
5. Pridgen v. Boston
a. Boy in elevator case. Doesn’t believe anyone should be exempt from liability if
they could knowingly help/prevent.
b. Suppose your client had a store and a trespasser came in and injured himself.
You didn’t know he was there.
c. Trespasser cites Pridgen – distinguish by saying this is a last clear chance
argument or maybe an affirmative duty.
6. Generally there is no liability for natural conditions, but that’s changed recently.
a. Whitt v. Silverman- driver hit people because of overgrown foliage.
b. Sprecher v. Adamson – protect against mud slides.
7. Traditional v. modern
a. Generally, if you value juries then favor modern approach (gives them more
discretion).
b. Rules v. standards distinction. Traditional is more rule based (predictability and
stability). Modern is more standard based (reasonableness).
c. If legislature disagrees, can always change the law.
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IV. Gratuitous Undertakings
A. Coggs v. Bernard
1. D negligently broke some of the P’s casks of brandy when he moved them from one
cellar to the other.
2. This is about promissory estoppel. “Torts invading contracts.” – Wells.
3. Any man that undertakes to carry goods is liable to an action if through his neglect they
are damaged.
B. Reliance
1. Thorne v. Deas: P was captain of D’s ship. D told the P that he would insure the boat,
but he didn’t and it wrecked.
a. P couldn’t recover. Court distinguished between non-feasance and misfeasance.
b. Wells says this is rejected now.
2. RST § 323: Negligent Performance of Undertaking to Render Services
a. One who undertakes, gratuitously or for consideration, to render services to
another which he should recognize as necessary for the protection of the other’s
person or things, is subject to liability to the other for physical harm resulting
from his failure to exercise reasonable care if
b. His failure increases the risk of such harm, or the harm is suffered because of the
other’s reliance of the undertaking.
3. Hypo: Mom walked her son to school every day and she noticed that there was a cross
guard there. So she let him walk alone one day and that day the guard was gone and the
kid was hit.
a. Argument for mother: maintaining a school next to a large street + knowledge
that children will cross the street should be enough for the school to have to use a
reasonable care of duty.
b. They had a guard there before, so they relied on it.
c. You can maybe argue the mother was also negligent. Proximate cause – school
wasn’t the driver. Wells thinks that would be a bad argument.
4. Martin v. Twin Falls School
a. Kid struck by a truck while on a cross walk. Tried to sue the school and say they
should’ve had a guard since they did at other places.
b. Weren’t allowed to recover.
c. We need reliance but it doesn’t have to be the P’s reliance.
4. Erie RR v. Stewart
a. P was hit in a truck by a train. The RR’s watchman didn’t warn them about the
approaching train. They didn’t have to have a watchman.
b. Negligence as a matter of law because the plaintiff relied on the watchman, the
RR owed a duty.
c. Reliance matters so much because he is letting his guard down and making the
world a lot more dangerous.
d. If you have a guard there, but you want to get rid of them then you’d have to
notify the public and exercise reasonable care.
5. Marasalis v. LaSalle
a. About undertaking to do something.
b. Facts: P was scratched by D’s son’s cat. She asked D to keep the cat locked up
and he said he would but he didn’t take any additional steps to lock it up, and the
cat got out. P got rabies shots because they didn’t know if the cat had it or not
and then she got sick from the shots. The cat came back and it turned out it
didn’t have rabies so if they had kept the cat locked up, they would’ve found out
it didn’t have rabies and the R wouldn’t have had to have the shots that made her
sick.
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c. The P asked the D to contain the cat so they could find out if he had rabies,
which he said he would but then the cat got out.
d. Argument: Plaintiff has relied on defendant’s promise.
e. P. 614 says she could’ve done something else if he hadn’t said he’d keep the cat.
f. Without another course of action for her then she couldn’t have relief.
g. Her other course of action would be to keep the cat herself out of necessity.
h. Here, they didn’t take any steps to confine the cat.
i. Another possible argument: RST § 39: the scratch put the plaintiff in peril and
so he had a duty to help.
j. Another argument: duty to plaintiff because he was a business invitee.
k. Suppose the cat had rabies, what does the plaintiff win then? Nothing, because
she would’ve had to have the treatments anyway. – This was a causation case.
l. Rule: if you undertake to do something you must use reasonable care.
6. Privity
1. A has contractual duty to B and C wants to sue because C is affected.
2. Used to be that C couldn’t sue A because of lack of privity of contract.
3. That rule has been generally eroded
a. Sometimes it will be a barrier and sometimes it won't. Messy area.
4. Comes up in product liability.
5. Moch Co. v. Rensselaer Water Co.
a. Facts: K for water between company (A) and city (B). P’s (C) warehouse
burned down because not enough water quantity or pressure to extinguish the
fire.
b. Complaint dismissed, Cardozo agrees with demurrer (even if the plaintiff could
prove all their allegations, he would still lose).
c. P tries to argue that he was a 3rd party beneficiary but court say no jury could
find this K was intended to benefit the plaintiff.
i. Idea that D wouldn’t intend to undertake such a “crushing burden.”
d. No breach of K either and not a tort even though plaintiff tries to argue
undertaking theory of liability…even though there is an undertaking (supplying
water), the court restates the crushing burden argument again by saying allowing
tort liability here would mean that “liability would be unduly and indefinitely
extended by this enlargement of the zone of duty.”
i. Court never uses the term “reliance” and plaintiff just arguing
undertaking in general (not subset of reliance).
ii. For that theory to work, must be reasonable reliance and P must let his
guard down and have extra vulnerability.
iii. Probably couldn’t have done anything else, so no reliance (but if we
change facts to say P asked D for promise and assume he could have
gone elsewhere for water supply, then maybe reliance/promissory
estoppel claim).
iv. Court answers undertaking argument with “crushing burden” liability
argument here again.
e. *Note: RST not very supportive of Moch, but do not agree that the crushing
burden argument is the best justification for their position.
i. Some courts reject crushing burden argument.
ii. Possible alternative: Plaintiff can get payment from property insurance –
idea that fire insurance should pay rather than water co. because they are
a better source of funds for injured plaintiff. Then that maybe each
person can best decide how much their property is worth so could be
cheaper way than blanket obligation on water co.
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iii. *But Wells says if we are concerned about limiting fires in the first
place, then water co. is best positioned to insure there is enough pressure
in hydrants to prevent fires from spreading – if you want the right
incentives and precautions taken, hold the water co. liable! (Some courts
do).
iv. Weinberg v. Dinger – argument that the consumer pays twice for both
property insurance and in higher rates to water co. but Wells says this is
NOT accurate because the consumer will pay less for fire insurance
where the water co. is held liable.
- This case says if you do have property insurance, you cannot sue
water co. but if you don’t you can sue water co.
- Wells: this results in no incentive to buy property insurance (a bad
thing).
f. *In the end, no general principle about when privity matters (it never does in
products liability though).
V. Special Relationships
A. Introduction
1. RST § 315: No duty unless special relationship exists between actor and 3rd person
which imposes a duty upon the actor to control the other’s conduct (Tarasoff) or a SR
exists between the actor and the other which gives the other right to protection (Kline).
B. Kline v. 1500 Mass
1. Establishes a relationship between tenant and landlord.
2. P signed lease in 1959 and they had all these security measures but by 1966 many were
no longer being enforced. She was robbed in the common room.
3. Appellate court said (p. 627) that there is a duty to protect them from assailants.
4. Reasonable care was the level of security, not necessarily the same measures, as in 1959.
5. Don’t need reliance for a special relationship case.
6. They do have a contractual relationship
a. So, no privity problem (like in the cases on pg. 622)
7. The argument here is that there’s more than just a contractual duty.
8. Levine v. Katz (mentioned in the case)
a. This case dealt with a physical act.
b. Court ties the idea of keeping stairs safe to keeping people safe.
c. Wells thinks that’s a poor analogy.
9. They compare the landlord tenant relationship to ones that already owe a duty to one
another.
a. How to argue against it: one can, overtime, learn about the safety of one place v
another and then you can move. “People could leave.” - We should have an
assumption of the risk defense.
b. Argument against that: someone might be too poor to leave.
10. The consequence will be that the rent will increase.
a. Paternalistic: making people pay for safety.
11. The court doesn’t say that all places should have the same level of security. We don’t
actually know what’s reasonable for other places.
12. By submission to the control of the other, a duty should be imposed upon one possessing
control to take reasonable precautions to protect the other from reasonable foreseeable
dangers posed by 3rd parties.
C. Scope
1. Wassell v. Adams: open door and let in rapists. Not liable for failing to warn that motel
was in a dangerous area. (Proximate cause/Contributory Negligence)
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2. Suppose Al owns a house and he rents his house to some students. Is he obliged to
prevent intruders?
a. Maybe not because the landlord is 1000 miles away and he isn’t in the best
position for taking care of that, the tenants are.
3. Condominiums: court seems to reason the board owes a duty in common areas of
condos.
a. Argue against it: if the board members become liable then no one will want to be
that person.
4. Ann M v. Pacific Plaza Shopping Center: Court didn’t allow P who was raped at her
work at the mall to sue her employer’s landlord because it’s not foreseeable, not because
there’s no duty.
5. Off campus liability: no obligation to prevent attacks off the premises but here, its
eminent/on-going so then can be liable.
6. Duty owes depends on the relationship. It’s not a duty to do anything; it’s something
specific.
7. KFC v. Brown
a. Employee stalled to open register while P was held at gun point. Court
recognized a duty but put limits on it for public policy reasons. Here, no reason
to believe complying with threats would insure safety.
D. Tarasoff v. Regents of University of California
1. Facts: Poddar killed Tatiana Tarasoff and her parents are suing his psychologists, etc.
because Poddar had told Dr. Moore that he was planning on killing Tatiana and Dr Moore
didn’t warn Tatiana or her parents of the threat. They had Poddar briefly detained but
then released him.
2. Held that there could be liability.
3. Suppose the Dr. didn’t predict violence, so he doesn’t warn, can he still be liable?
a. If you can show he reasonably should’ve known, then yes.
4. Reason for holding:
a. Special relationship
b. A hospital must have reasonable control that their patient won't harm others, etc.
c. Public policy – “reasonable price to pay;” privacy v. public safety.
5. They say they’re in line with the general principles.
a. “Don’t think they’ve tied all the loose ends down. There is something unsound
in their logic.” – Wells
b. If the cost/benefit is the reasoning then: hypo: if a guy tells a bartender that he’s
going to hurt someone, then should the bartender have to tell?
c. If the cost/benefit is the reason, then the special relationship doesn’t even matter.
6. Do they make the cost/benefit correctly? It will lead to more disclosures, but a lot of
courts follow this.
7. Once a therapist does determine/should’ve determined that a patient poses a serious
danger of violence to other, he bears a duty to exercise reasonable care to protect the
foreseeable victim of that danger.
E. Scope
1. Morgan v. Fairfield - Morgan was schizophrenic and Dr. Brown didn’t have him
incarcerated and he killed his parents.
a. Has to be about failure to incarcerate.
b. So, courts might impose a duty to incarcerate, not just duty to warn.
c. Argue against: the cost of mistakenly have someone locked up is a higher cost
than mistakenly warning someone.
2. Lundgren v. Fultz: psychiatrist interceded on behalf of his patient to secure the return of
his guns that had been taken by the police.
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a. Wasn’t an affirmative duty case because he did something.
3. Long v. Broadlawns Medical Center: failed to warn a wife that her husband was getting
out of the center. He came home and killed her. Failing to warn her made the world
more dangerous. “Easy case.”
4. Tarasoff has been widely accepted.
5. Thompson v. County of Alameda: Kid released to his mother even though he said he
he’d kill a kid in the neighborhood. Court said no duty to warn because the kid wasn’t
specifically known.
Chapter 8: Traditional Strict Liability
I. Introduction
A. History
1. Negligence became the dominate rule because:
a. It was good for economic reasons - freedom of action limits growth.
2. In some places there was a movement to replace negligence with strict liability, but it
didn’t really succeed.
B. Vocabulary
1. Absolute liability: some people think there are no defenses for absolute liability, but that
doesn’t really exist. Some people use the term to mean strict liability. Wells says to
avoid it.
2. Strict liability: Plaintiff not required to prove fault.
a. Something other than fault and causation must trigger the liability.
b. Animals, nuisance, abnormally dangerous activities, and products liability trigger
the liability.
C. Restatements
1. § 522: Contributing Actions of 3rd Persons, Animals, and Forces of Nature
a. Liable for Ultrahazardous activity even if caused by unexpected 3rd person, animal,
or force of nature.
2. § 523 Assumption of Risk
a. The P’s AOR of harm from an abnormally dangerous activity bars his recovery.
3. § 524 Contributory Negligence
a. P’s contributory negligence in knowingly and unreasonably subjecting himself to
the risk of harm from the abnormally dangerous activity is a defense to SL.
4. § 524A – Plaintiff’s Abnormally Sensitive Activity
a. There is no SL for harm caused by an abnormally dangerous activity if the harm
wouldn’t have resulted but for the abnormally sensitive character of the P’s
activity.
II. Animals
A. Gehrts v. Batteen
1. Facts: Gehrts was bitten by Nielsen’s dog when it was restrained and Gehrts had asked to
pet the dog. The dog had never shown any signs of aggression.
2. The court said that negligence is the rule for domesticated animals, not SL
3. P argues that the dog owner was negligent because the plaintiff owned a dog and had that
dog’s scent on her, so the defendant should’ve known that the scent of her dog would
make the St. Bernard bite her. The court doesn’t think there’s enough evidence to show
that.
4. When wild animals are kept as pets the owner is liable for injuries it causes.
5. Owners of normal animals are liable if they know/should know that the animal has
abnormally dangerous propensities.
B. Scope
1. Suppose Bob is attacked by a wild mountain lion on Al’s farm. Is Al strictly liable?
Torts 11
a. No, see Woods v. Hyatt – if you didn’t know the animal was there then you’re
not strictly liable. Didn’t show that hotel possessed or owned the animal.
2. Suppose Al has seen the mountain lion before and knows he’s there. Is he strictly liable?
a. Wells doesn’t know. Does control mean it’s foreseeable or that they had to
exercise actual control over the animal?
3. RTT § 23: Abnormally Dangerous Animals
a. An owner/possessor of an animal that they know/reason to know has dangerous
tendencies abnormal for the animal’s category is subject to SL for physical harm
caused if it ensues from that dangerous tendency.
III. Ultrahazardous or Abnormally Dangers Activities
A. Spano v. Perini Corp.
1. Facts: The plaintiff’s garage was wrecked by defendant’s blasting when they were
contrasting a tunnel.
2. Have to overrule the Booth case (which calls for proof of negligence).
3. Court creates strict liability here.
4. Reasoning:
a. Who should bear the costs? The blaster, not the innocent neighbor.
b. Never really as simple as that. There has to be a trigger. Here, it’s the
abnormally dangerous activity.
5. What else is an abnormally dangerous activity?
a. Hauling gas; fumigation; aerial spraying of crops
b. Storing/using explosives
c. Pumping oil (sometimes)
d. Fireworks, pile driving, selling of handguns, etc.
e. There will be some disputes over these categories.
B. Scope
1. RST § 519: One who carries on an abnormally dangerous activity is subject to liability
for harm resulting from the activity, although he has exercised the utmost care to prevent
the harm. This is limited to the kind of harm, the possibility of which makes the activity
abnormally dangerous.
2. RST § 520: Abnormally Dangerous Activities
a. In determining whether an activity is abnormally dangerous the following factors
are to be considered:
b. High degree of risk; likelihood that the harm that results will be great; inability to
eliminate the risk by 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 the extent to which its value to the community is outweighed by
its dangerous attributes.
3. Generally requires: must create a foreseeable risk of serious harm even when reasonable
care is exercised and the activity isn’t a matter of common usage (Barbari).
4. There’s a small list of what is abnormally dangerous.
5. The harm has to result from what made the activity abnormally dangerous.
6. Suppose Al’s wolf tramples Bob’s rose garden. No strict liability because a regular dog
could’ve done that.
7. Restatement
a. Distinguish between knowing about a risk and encountering it anyway (partial
defense), and if you are oblivious to the danger even if you should’ve known
about it (no defense).
Chapter 9: Products Liability
I. Introduction
A. History
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1. Reasons why it’s new:
a. Traynor: in the old days products were simpler and people understood them better.
Then, they got more sophisticated. Additionally, modern advertising tells you
it’s safe.
b. Used to be a general rule that if A made a contract with B and C was injured, C
couldn’t sue because of lack of privity of contract.
i. But, if that’s the rule then no liability to sue the manufacturer.
ii. Became a growing problem because fewer manufacturers sold directly to
consumers.
iii. MacPherson v. Buick Motor – totally abolished the privity issue. – A
man bought a Buick and the wooden wheels rotted and he tried to sue
Buick but there was no privity. The court held that privity requirements
were no longer needed. Most courts have adopted this doctrine.
4. What’s the claim of action to use?
a. Warranties was one way: express (“this product will work a certain way”) and
implied (merchantability and fitness for a particular purpose).
b. Up until the 1960’s warranties theory was the most often used but there were
problems with it:
i. Could only recover for the cost of the product.
ii. Adhesion contracts would limit warranties or disclaim it altogether.
iii. In warranty law there are obligations to the consumer – like give notice of
defects to the company.
iv. SOL begins at time of purchase for warranties, so that doesn’t give you a lot
of time for personal injury cases.
v. If a bystander is injured – can’t sue because no K.
c. Then, courts began to move away from warranty theory and adopted Treynor’s view.
i. Wouldn’t enforce warranty disclaimers.
ii. Adopted provision in the UCC pg. 745 note 2
iii. Once all these rules of contracts were broken, they called it a torts
approach.
iv. Gribbon uses the tort approach.
5. People favored strict liability in tort theory.
a. RST – had products liability section and treated it as strict liability.
II. Exposition
A. Escola v. Coca Cola
1. Waitress had a coke exploded in her hand when putting them in fridge.
2. SL when a product has been placed on the market without inspection and it causes injury.
3. Manufacturers can anticipate the harm and guard against them better than the public.
4. Consumers can’t know the soundness of a product anymore.
5. SL will give manufacturers an incentive. Loss spreading.
6. Manufacturers aren’t absolutely liable. The consumer has to use the product reasonably.
III. The Restatements
A. Introduction
1. Main feature of PL is that the P must prove there’s a defect in the product and the defect
was the proximate cause of the harm.
2. Three categories of defects:
a. Manufacturing, design, and defects because of inadequate instructions or
warnings.
3. §402A Special Liability of Seller of Product for Physical Harm to User or Consumer
a. One who sells a product in a defective condition unreasonably dangerous to the
user or his property is subject to liability for physical harm if:
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i. The seller is engaged in the business of selling such a product, and
ii. It reaches the user without substantial change in the condition in which it is
sold.
iii. This applies although the seller has exercised all possible care in the
preparation and sale of the product and
iv. The user hasn’t bought the product from or entered into any contractual
relation with the seller.
B. Economic Loss Rule (Majority Rule)
1. Casa Clara Condo v. Charley Toppino: D supplied concrete to P’s condos and it cracked
and broke off.
a. Court doesn’t allow recovery under economic loss rule – in order to recover there
must be personal injury harm or harm to other property.
b. Can’t sue when the harm is just to the product itself.
c. Most courts follow, but not all.
d. If the concrete had fallen on someone’s head or car then they could’ve sued.
2. Purpose: draws line b/w when tort law or K law governs.
a. Purpose of torts is to protect society from harm.
b. Purpose of K law is the interest of performance of promises.
c. Generally P will do better under tort law.
d. In the Clara case, it was basically just K damage. It needs to be more than that
for torts.
e. Society shouldn’t bear the costs of economic losses created by those who failed
to bargain for adequate contract remedies.
3. EL = damages for inadequate value, costs of repair and replacement of the defective
product, or consequent loss of profits – without any claim of personal injury or damage to
other property.
4. Gunkel v. Renovations, Inc.: allowed recovery when D installed a stone and masonry
exterior to P’s preexisting home.
a. Property acquired separately from the defective good or service is “other
property” whether or not it is intended to be incorporated into the same physical
object.
5. Distinction between “other property” is arbitrary.
6. Dissenting/Concurrence
a. Some courts apply EL rule when both sides are sophisticated businessmen
instead of innocent 3rd parties.
b. Some distinguish between gradually falling (K) apart products v. suddenly
collapsing (tort)
C. Proper Defendants
1. Pretty broad range of possible defendants, but there are some limitations.
2. Retailers and distributors: PL applies to all ordinary product retailers and distributors
within initial chain of distribution.
a. Vandermark: Car dealer SL for product defects.
b. Reasons: retailer can put pressure on manufacturer for safety.
c. If manufacturer went out of business then it would be better to sue the retailer
than no one at all. Chain of distribution rule.
3. Beyond retailers:
a. Shaffer v. Victoria: applied § 402(a) to injuries caused by broken wine glass at
restaurant.
b. Al can be liable if he leases equipment to construction co. You don’t have to sell
it to be liable.
4. Limits to defendants:
Torts 14
a. Personal service (if used knowledge, skill, etc to accomplish task) can’t be liable
for PL. PL policies don’t apply to personal service.
b. Service people can be sued when the P can show the injury resulted from the
product he used.
c. Murphy v. Squibb: held pharmacist was providing a service (really it’s just b/c
prescription drugs get special treatment).
5. Carfazzo v. Central Medical Heath Services (764)
a. P sued 7 yrs after prosthesis procedure b/c it had been found out that it was
defective.
b. Ct held SL doesn’t apply because of sales/service distinction.
c. Wells thinks the court is using that test artificially and basically this is just about
the protection for Drs.
d. He could always just sue under malpractice.
6. Bob buys Al’s car. Steering wheel comes off and Bob tries to sue Al under SL. Can he?
No, because the RST doesn’t apply to casual sellers.
7. Al owns a used products business. He sells s/t to Bob. Bob is hurt. Liable?
a. Generally, no representation of safety with used products.
b. Tillman v. Vance – ct refused to apply SL when used equipment was bought on
“as is” basis.
8. Al can be sued if he puts used cars back together because he becomes the manufacturer.
9. Injured person might always have a suit against a manufacturer, but the older the product
gets and the more people who have done things to it; the more difficult it becomes to win
a suit.
IV. Product Defects
A. Introduction
1. RTT § 3: Circumstantial Evidence Supporting Inference of Product Defect
a. If may be inferred that the P’s harm was caused by a product defect without
proof of specific defect, when the incident a) was of the kind that ordinarily
occurs as a result of PD and b) was not solely the result of causes other than PD
existing at the time of sale or distribution.
2. § 2 Categories of Product Defects: a product is defective when at the time of
sale/distribution, it contains a manufacturing defect, is defective in design, or is defective
because of inadequate instructions of warning:
a. Manufacturing defect: when it departs from its intended design despite all
possible care was exercised. (SL).
b. Defective design: when the foreseeable risks of harm could have been reduced
or avoided by a reasonable alternative design.
c. Defective warnings/instructions: the foreseeable risks of harm posed by the
product could’ve been reduced or avoided by the provision of reasonable
instructions.
B. Manufacturing Defect
1. RST doesn’t define it b/c they thought it was self-evident.
2. RTT defines it as being different from the normal product.
3. To win, P must show the manufacturing defect caused the harm (general rule).
4. Speller v. Sears, Roebuck & Co.
a. Fire killed P and hurt her son. Dispute over whether it started from bad fridge
wiring or b/c stove was on.
b. Circumstantial evidence allowed to get pasted SJ stage.
c. Don’t have to show fault or that someone acted unreasonably.
Torts 15
d. Party injured as a result of a defective product may seek relief against the product
manufacturer or others in the distribution chain if the defect was a substantial
factor in causing injury.
5. RST
a. Consumer expectation test: manufacturer represented the product as safe and is
didn’t hold up.
C. Design Defect
1. Three tests:
a. Banks case (handout) – use for exam. Lots of different approaches you can
mention on the exam though. Risk utility test. Risks inherent in the product
design are weighed against the utility or benefit derived from the product.
Factors: usefulness, severity of danger, likelihood, efficacy of warnings, state of
the art at time of manufacture, feasibility of loss spreading, users ability to avoid
danger, etc.
b. RTT: foreseeable risk of harm could’ve been avoided by a reasonable alternative
design (RAD)
c. Banker v. Lull Engineering Co. (P was injured while using loader made by D. P
alleged injuries were caused by defective design).
i. Test: will win if P proves product failed to perform as safely as an
ordinary consumer would expect when used in an intended or reasonably
foreseeable way (consumer expectations test) OR will win if “the benefits
of the challenged design do not outweigh the risk of danger inherent in the
design” - the product design caused injury (risk utility test).
2. Messy area of law.
3. Consumer expectations test became less important because it’s artificial at times
(consumers don’t know what to expect with complex products); suppose we don’t expect
it to be safe, but there’s a cheap precaution; or if a 3rd person is injured that recovery
should depend on the buyer’s expectations.
4. Factors a jury may consider:
a. Gravity of the danger; likelihood of danger; feasibility of a safer alternative;
financial cost of improved design; adverse consequences to the product and to the
consumer that would result from alternative design.
b. Similar to Hand formula. Looks like negligence (maximize utility)
c. Jury decides calculations.
5. Azzarello v. Black Bros. Co. – rejected unreasonable dangerous limitation on product
defects. Broad statement – most courts reject it.
6. If danger is obvious then most courts say that’s just a factor to consider.
7. Wells & Banks case say this is a negligence test.
8. When evaluating pluses and minuses you can do it in terms of intended use or reasonably
foreseeable (majority use this).
9. State of the Art
a. Means what is economically feasible.
b. If you evaluate at time of trial – more SL. If you look at the time it was made
then it’s more negligence (majority).
c. RTT says “when it was sold”
d. In Banks, time of manufacture.
10. RTT § 2: factors for reasonable alternative design.
a. Broad range: magnitude & probability of the foreseeable risks of harm;
instructions and warnings with the product; nature and strength of consumer
expectations regarding the product; including expectations arising from product
portrayal and marketing.
Torts 16
11. Unrien v. Timesavors, Inc.: P’s expert said product was improperly designed. Ct said the
expert didn’t have enough information to show that a RAD would’ve worked. Makes it
harder for P to win.
12. O’Brien v. Muskin Corp.: Dove into above ground pool with vinyl lining. Argued with
rubber lining he would’ve been fine.
a. No evidence they could’ve used rubber, but found for P anyway.
b. RTT against it b/c there’s no RAD.
13. People who wrote the RTT were critics of risk utility test, so some mad that they put in
RAD.
14. Linegar v. Amour of America:
a. Cop died b/c shot in his side where his vest didn’t protect. Family sued people
that made the vest claiming it should’ve covered his sides.
b. Obvious that the vest didn’t cover the sides; so not defective.
c. Relies on the tradeoffs and the obvious factor. Generally for jury to decide.
15. RAD v. RUT
a. Both weight reasonable alt design as factor, but different emphasis on it.
b. Similarities:
i. Open and obvious not dispositive
ii. Evaluate product by its reasonably foreseeable uses including modification
iii. Both consider AOR and contributory negligence as defenses.
c. Differences:
i. Courts who adopt RUT have confidence in juries
D. Duty to Warn
1. Negligence. Pretty much general rule.
2. Even if product satisfies design test, can still be liable under warning defects. If there’s a
good warning, you can still win under design defect.
3. Hard to win under design defect with prescriptions drugs, so the P needs a separate
argument to win.
4. Three questions: what dangers need to be warned about; who do you warn; and how do
we know it’s adequate?
5. Who do you warn?
a. General rule: warn the user.
b. MacDonald v. Ortho Pharm Corp. (Pill warning didn’t say anything about
strokes). This case is an exception to the exception.
c. With the pill, you don’t see the Dr often and patients are active in deciding on
contraceptives.
d. Learned intermediary theory exception: warn Drs about prescription drugs.
e. Must warn Dr and patient. Dr must warn patient.
6. How do we know it’s adequate?
a. Adequacy: must be understandable to average person. Judge decides who needs
to be warned and jury how adequate it is.
b. Not enough for warning to be accurate but must be 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,” (Ortho)
c. Measured by what is said and how it is said.
d. Warning only needs to be reasonable under the circumstances. Need not warn
about every mishap or source of injury that the mind can imagine. – Hood.
7. Arguments:
a. If you give good instructions, people will be safer – argument for.
b. Autonomy: Give people info about risks so they can make up their mind.
Torts 17
c. Sometimes risks are too small to warn about, but a lot of courts require to warn
about smaller risks.
d. Cost of too much warning = overload of info.
8. No general duty of pharmacist to warn. But if they have the knowledge it would be
negligent not to provide it (Wal-Mart – maintained registry warning of possible adverse
drug interactions for their customers).
9. General rule you can’t sue the pharmacist for design or warning defects.
10. What do you have to warn about?
a. RST on 751 – abstract.
b. Hood case – whether benefits outweigh the costs of requiring the change.
c. “Common knowledge” rule.
d. Sounds objective but there are exceptions.
e. Ayers v. J&J: Baby inhaled baby oil. Verdict for P even though injury was
unlikely. They don’t seem to weigh the cost/benefit.
11. Vassallo v. Baxter Healthcare Corp.: (state of the art idea).
a. Injuries from boob job, didn’t know about the risks at the time of surgery.
b. Policy for SL rule: we can compensate people more.
c. Majority rule (time of manufacture) – can’t give incentives to people who don’t
know the problems. It’s not what you knew, it’s what you should have know *
Rule on Exam*
12. “Mistake and momentary inattention model” – people probably aren’t paying attention to
what they’re doing so if there’s a cheap precaution, manufacturers should take it.
13. Prescription drugs:
a. RTT says once it has FDA approval, can't be a design defect.
V. Plaintiff’s Conduct
A. Introduction
1. Be aware of possible defenses (last semester)
2. Can be a defense based on open and obvious with contributory negligence.
3. Majority position (& Gribbon): RST § 17 – Apportionment of Responsibility Between or
Among Plaintiff, Sellers, & Distributors of Defective Products, & Others
a. 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.
b. The manner and extent of the reduction under Subsection (a) and the
apportionment of Ps recovery among multiple Ds are governed by generally
applicable rules governing responsibility.
 I.e. apply ordinary rules re contributory negl and assumption of the risk.
B. Daly v. General Motors Corp.
1. Drunken P didn’t use door lock or seat belt and was killed. He alleged dock lock was
defectively designed.
2. Arguments for contributory negligence in PL
a. Fairness – P might also be blameworthy.
b. P might have cheapest precaution.
3. Arguments against:
a. Loss spreading and compensation are goals of PL and allowing defenses is
against that.
b. Want to hit the manufacturer hard and often.
c. P already has incentives because he doesn’t want to get hurt. Also, person who
isn’t persuaded by that won’t be persuaded by liability incentive, so it’s pointless.
4. Must decide which goal to take more seriously.
Torts 18
a. If loss spreading, no defenses should be allowed.
b. If fairness, should have defenses.
c. Incentives? If no defenses, products will cost more and have unnecessary safety
features.
C. Discussion
1. A tire is safe up to 80 MPH & they have a good warning. No defense available and to fix
it would cost 100$. Now the manufacturer has to make a $100 tire instead of a $50 one
to make it safe. So the safe driver has to pay $100 because some people drive too fast. –
Makes customer pay a lot.
2. Distinction b/w knowing and oblivious contributory negligence.
a. RTT § 17 doesn’t distinguish. States ordinary rules of Cont. neg. apply.
3. Contributory negligence related to defect v. unrelated to defect. (RTT rejects it –
emphasis on fairness).
4. Must be unreasonable use or alteration by the P to have a defense.
a. Question for the jury.
5. Assumption of the Risk
a. 2ndary AOR is contributory negligence. – Knowingly encountering a danger.
b. Primary AOR is where someone agrees (maybe implicitly) that no duty is owed.
c. Typical AOR in PL: buyer buys product knowing of danger.
d. Courts are reluctant to say there is primary AOR.
e. Argument that P AOR can still be available for jury.
f. You sign a sales contract when you buy a product that says you AOR. No
bargaining problem but courts reject that argument. They generally find that
people should be protected (as demonstrated by their actions).
g. Disclaimer can’t be used to show 100% that consumer AOR.
VI. Federal Preemption
A. Introduction
1. If FDA has approved a drug, it’s hard to win design defect. This isn’t federal pre., its
state courts borrowing a federal rule.
2. With federal preemption – they have to use it; can't borrow it.
3. Hierarchy of legal norms:
a. US Constitution – US Statutes – US Admin Regulations – US “federal” CL –
State Constitution – State Statutes – State Admin Regs – State CL.
4. Supremacy Clause – Article 6.
5. Once you find there is a conflict b/w the laws, then federal law wins.
6. Preemption is broad. 3 types:
a. Express – provision of federal statute that does away with state law.
b. Field – the idea is that the fed law is so expansive that it rules the whole field.
c. Conflict: a specific state rule might be in conflict with fed law, that it can’t be
enforced.
7. Some fed laws might expressly allow the conflict.
B. Geier v. American Honda:
1. Fed law required car makers to equip some but not all passive restraints. State law
required the car to have air bags.
2. Ct found preemption because it said the fed law set a floor and a ceiling.
3. Aims of fed law were in conflict with aims of state law.
C. Discussion
1. Sprietsma v. Mercury Marine:
a. Fed Boat safety act didn’t preempt a state tort action when a girl fell overboard
ski boat. Statute had saving clause like Geier.
Torts 19
b. Ct held that failure to make a rule doesn’t reflect a judgment not to make a rule
about it – leave it up to the states.
c. You can argue either way.
2. FDA approval doesn’t mean state laws about warnings are preempted.
3. Government contractor defense: Boyle v. United Technologies Corp.
a. No fed statute or regulation.
b. Army bought heli from United; it crashed into water, pilot dies because door
designed to open outward.
c. Family sues under VA product liability law regarding design defect.
d. Ct said as a matter of federal common law, D can use government contractor
defense: if sell to government and product meets the government’s standards,
including duty to warn then there is a defense to liability.
Loss Spreading
I. Introduction
A. Purpose
1. Compensation: see victim gains something by taking $ away from one to give to another.
What is gained?
B. Loss Spreading distinct from both economic incentives and fairness justifications for
compensation.
1. LS claims P should recover independent of economic incentives and fairness goals. The
argument is that compensation is a good thing by itself.
2. Associated with strict liability.
3. Known as zero sum gain.
4. Argument against: in the real world, it’s a negative sum gain because of attorney fees,
etc.
C. Theory: Loss spreading addresses both monetary and psychological losses
1. Increasing marginal disutility of loss (1st $ we receive is most valuable to us, each
subsequent 1$ has less utility. Max utility by taking away from rich and give to poor.
a. Or decreasing marginal utility of gain.
b. Utilitarian argument.
2. Loss spreading: that defendant has a way to insure against these big lawsuits.
3. Idea is that there’s a big fund that everyone pays into and the person with the loss gets
paid the money.
4. Courts generally don’t put loss spreading first.
D. Abolish Tort System?
1. Once you say loss spreading is the goal, then you’d get rid of torts and everything would
be strict liability.
2. Some believe all the money going to lawyers, etc should go to compensation.
3. If you think the incentive goal works then it’s better to avoid accidents first then spread
the loss later.
Chapter 10: Damages
I. Introduction
A. Elements of Damages
1. Compensatory: lost income, medical expenses, rehab, pain and suffering. P should get
damages to make him whole and where he would’ve been without the tort.
2. Unconventional damages:
a. Increased future risk: argument against (speculation at best); argument for (it’s a
real loss).
3. Argument for recovery of present fear.
4. Thin skull rule: P’s special vulnerability isn’t determinate, defendant takes the P as is
and is liable for all the damages.
Torts 20
5. Damages are meant to put the P in the positions he would’ve enjoyed if the tort had never
been committed.
II. Recoverable Elements of Damages
A. Pain and Suffering
1. Pecuniary (monetary) = lost wages, medical expenses. Non-pecuniary (nonmonetary) =
pain and suffering.
2. McDougald v. Garber: (P was comatose as result of D’s malpractice).
a. Focuses on non-pecuniary damages
b. P & S can be more than just P & S.
c. Ct decides pain and suffering is loss of enjoyment of life.
d. Comatose patient doesn’t recover for P&S.
e. Loss of enjoyment of life isn’t separate from P&S.
3. Includes not only physical pain, but also fright, nervousness, grief, anxiety, worry, shock,
embarrassment, terror, ordeal, apprehension, or mortification.
4. Reasons:
a. Justice/Fairness: make wrong-doer bear the pain.
b. Incentives
c. Some states limit it.
5. Problems:
a. Measuring & Discrepancies regarding awards
6. Unconscious person can’t recover for P&S.
a. Policy: Corrective justice – If P can’t use the money then it has no utility or
meaning to him. Therefore, no point in making D pay.
b. Policy 2: Incentives – whether aware or not, this is a real cost. We want more
incentives against D. D ought to feel more loss.
7. Increased Risk: DePass v. US
a. P had traumatic amputation, presented evidence regarding decreased life
expectancy as a result.
b. Should court allow recovery where a bad thing happen and increased the risk of
another bad thing happening (different from last semester where increased risk of
bad thing happening but bad thing hasn’t happened yet).
c. Ct rejected as speculative damages for this potential loss.
d. Posner’s dissent – the court’s decision under compensates.
8. The courts are divided. Some allow recovery for increased risk, and some don’t.
a. Real loss
b. Speculative
B. Economic Loss
1. What you would’ve expected to make in the future.
2. Imputed Income
a. Cummins v. Rachner (875) – woman does housework. You can recover even if
you didn’t actually get hurt.
b. Courts have to impute income from non-market activities, value of lost services
for persons not engaged in ordinary market activities.
c. If a housewife who practiced law before having kids, courts won't ask what she
made, but what she could’ve produced if she had gone back to law.
3. Present value: damages awarded relate to both past and future – how much to give P
today to make P whole for future. Periodic reviews damages (as in worker’s comp)
considered too costly.
a. Suppose P was injured at 25 years and has 40 yrs working life left. Assume he
would lose $10,000 a year. Assume no real increases in his salary (independent
of inflation). Assume no inflation. Lost wages = 40 x 10,000. Should he get
Torts 21
400K now? In principle, P should get less now, should get the present value of
the $400K he would have made over the next 40 years.
b. Idea that money you have today worth more than money you get in future
because can use it today so if make P whole and no more, he would get less than
$400K today.
c. Pragmatic argument to just pay $400K now and not engage in complex present
value calculations.
d. To figure out what the plaintiff gets: PV($1) = $1/(1+ i)n
i= interest rate (or discount rate)
- n = number of years before the sum would have been accrued.
- The higher the n the lower the PV, the higher the i, the lower the PV.
4. In real life, 3 components in interest rate: inflation (eliminated from analysis), risk of
loss (i doesn’t account for any risk of loss because P must be made whole, shouldn’t be
asked to take risks), and real cost of let you use my money now – real cost of letting you
use my money now is the real rate of interest. Real rate of interest can vary, generally
1.5-3%
5. Inflation: if take inflation into account in the numerator (inflated salary), must also take
inflation into account in denominator.
a. Exam won't include PV but inflation calculation must be consistent or it will
systematically under compensate P.
b. Or ignore inflation all together in both parties and will get same result as if you
put it in num or denom.
6. Argument shouldn’t do any discounting at all if ignore both discounting (interest rates,
inflation) and productivity. These terms all cancel out in the equation for calculating the
present value of the stream of losses. Will get same answer if accounted for both.
7. So far as damages go, no one thinks the risk of loss should be included.
8. Suppose there’s no inflation: the question becomes “what’s the real rate of interest?”
Historically, its 1.5-3%
9. Mitigating damages: obligation as P to take reasonable steps to mitigate.
a. Only have to act reasonably. If it’s really risky, don’t have to. Like when there’s
a risk to operate.
10. Taxation of damages:
a. Argument in subtracting taxes from damages: just want to make the P whole, so
you don’t want to give him extra damages.
b. Argument against: then you give the D that benefit. Wrong doer should pay for
all the harm because he caused it. Also, D should have costs because that leads
to higher incentives.
C. Scope of Judicial Review
1. Jury decisions are subject to judicial overview.
2. Example, if there’s a car wreck and D was negligent, then the P puts in evidence of
losses, etc. The D has hired a private investigator that followed the P around and showed
he wasn’t in any pain. Jury still awards $500,000 in P & S. Can be overturned.
3. Standards:
a. Does it “shock the conscience?”
b. If it deviates materially from what would be reasonable compensation.
c. If it’s beyond what a reasonable fact-finder would access.
d. Look at awards in comparable cases.
4. Court in Duncan v. Kansas found $8 mil excessive because they looked at awards in
comparable cases.
5. If the court finds the award too much:
a. The result varies from jurisdiction to jurisdiction.
Torts 22
b.
c.
d.
e.
Could have a new trial just on damages
New trial on everything
Could just reduce the damages
Give the P the option of having new trial on damages or accepted reduced
amount or larger amount (remittitur & additur) – lots of courts adopt these
because they’re cheaper and they interfere less with the jury than the Duncan
approach.
f. GA’s standard: preponderance of the evidence – do remittitur and additur.
6. Caps on damages:
a. States pass statues to cap non-pecuniary damages.
b. Problem with that is that the purpose of torts is to make people whole, and how
can you do that with a cap?
c. To argue for it, you must say there’s overcompensation in torts but that’s a hard
argument.
7. Structured settlements: damages paid overtime.
a. Hard on P’s lawyer because he can’t get paid all at once.
b. GA statute sets at the beginning definite amounts to be paid over time.
III. Contingency Fees, Fee-Shifting Devices, Sales of Tort Claims, and Litigation Insurance
A. Contingency Fees
1. P’s attorney agrees to take compensation for services rendered only out of the funds that
the P recovers from the D. If the action is lost, the P’s attorney receives nothing for time
and effort.
2. Provide a way for people with a good claim to economically provide to bring the suit.
IV. Wrongful Death and Loss of Consortium
A. Principals
1. Common law rule: D paid nothing if P died.
2. In every state there are 2 statutes dealing with peoples’ deaths.
a. Survival Statute – tort actions allowed to survive death. Damages: lost of
income, pain and suffering, medical expenses up to death. – Applies regardless
of cause of death.
b. Wrongful death: applies only if death was caused by tort. People allowed to
bring it are specified in the statute.
i. Measure of damages = loss to survivors. – The benefits they would’ve
received in the future from the dead guy.
ii. Some states follow a “loss to estate” idea under wrongful death. Estimate
person’s worth going forward (have in GA). – Whole value of deceased’s
life. Kind of a windfall.
B. Consortium
1. Element of damages avail when P still alive, but also in GA, can be part of the loss to
estate calculation.
2. Can have it if the person lives or dies.
3. Loss of relations (sexual, love, household, etc.).
4. Generally spouse can recover. However, most states don’t allow recovery for parents or
kids.
a. Varies, but generally they can’t.
V. Collateral Benefits
A. Introduction
1. Collateral source rule- you don’t deduct the amount the P got from another source (Basic
rule).
2. Distinguish between collateral sources that are paid for and those that aren’t.
a. Most are paid for.
Torts 23
3. 3 types of collateral sources:
a. Health/property insurance – paid for
b. Paid sick days at work – paid for in labor
c. Social insurance – not a voluntary agreement, but it’s still paid for.
B. Goals
1. Loss spreading and compensation – goal is to have as much money as possible available
for compensation.
a. If you support this goal, you won’t support collateral sources.
b. Because you want to maximize the amount of people you can compensate, so you
don’t want them to recover more than once.
2. Tort law puts obstacles in the P’s way.
3. Incentives
a. The cost of the accident is there, whether it’s paid by a collateral source or not
and we want the defendant to be aware of all the costs when calculating
incentives.
4. Fairness: if the collateral source is gratuitous (which most aren’t) then the plaintiff gets
to win a lot.
a. But obviously the defendant shouldn’t get it.
5. Statutes
a. Some requires jury and judge to make deductions from collateral sources, while
others allow the jury to consider evidence of collateral sources.
b. They get enacted because some people think that torts is about compensation and
they shouldn’t get compensated twice. Wells thinks it’s about special interest in
politics.
6. Subrogation
a. Assignment of right.
b. Grants the collateral source the power to participate in, or even control, the
tort litigation, and to recover its expenses directly from the tort claimant.
c. When Al buys insurance, the K will have a clause that says if Al has a good
suit against Bob; the Co. is subrogated to Al’s right as far as it’s paid. So Bob
would pay Co. what it owes Al if it’s already paid Al.
d. Both sides get benefits.
e. Some states allow it, some don’t.
f. Suppose Al sues Bob. Al has insurance and we have subrogation. Al
recovers $1200 from insurance. Al asks for $1800 from Bob, but only gets
$1500.
i. Normal rule – Al has proved $600 in pain and suffering so he gets that
and insurance only gets $900.
VI. Punitive Damages
A. Introduction
1. Early on large verdicts were justified by the egregiousness of conduct. Rationalized into
allowing for punitive damages.
B. Purpose/Policy/Justification
1. Kemezy v. Peters (Case about excessive force of cop)
a. Jury gave more punitive damages than compensatory.
b. Posner gives 7 reasons for punitive damages
c. Compensatory damages don’t always compensate fully.
d. Punitive damages are necessary in such cases to make sure that tortious conduct
isn’t under deterred.
e. Punitive damages are necessary sometimes to make sure that people channel
transactions through the market when the costs of voluntary transactions are low.
Torts 24
f.
2.
3.
4.
5.
6.
7.
8.
9.
When a tortious act is concealable, a judgment equal to the harm done by the act
will under deter.
g. An award of punitive damages expresses the community’s abhorrence at the
defendant’s act.
h. Punitive damages relieve the pressures on the criminal justice system.
i. If we assume the criminal justice system couldn’t take up the slack if punitive
damages were abolished, then they have the additional function of heading off
breaches of the peace by giving individuals injured by relatively minor outrages a
judicial remedy in lieu of self-help.
Reasons 1, 2, and 4:
a. Fairness, compensatory damages might not always make the P whole.
b. If they aren’t fully compensated, then there will be under deterrence.
c. Compensatory damages don’t always fully compensate when damages are
illusive. The problem with that: that’s what the pain and suffering is for. Wells
thinks that’s an arguable problem.
d. Argue that 1/3 of plaintiff’s award goes to lawyer – so, he’s not getting fully
compensated. – That’s the argument for reason # 1.
e. Answer to that argument: 1) the relation between the person who gets punitive
and compensation is capricious – not an effective way to deal with insufficient
compensation 2) everyone has to be their own lawyer – winning plaintiff is
subsidizing losing plaintiffs.
f. # 4: Problem anytime you’re bringing a lawsuit. Isn’t just the concealment.
Suppose a product will make the user cut his finger. It’s a $1 loss for 1 million
people. There will be situations where the loss is so small that no one brings suit
and defendant doesn’t feel the “L.”
No requirement for egregiousness in reasons 1, 2, and 4.
a. So maybe we should call it an extra-compensatory award instead of punitive,
because it’s not about bad behavior.
Reasons 3,5, 6, & 7
a. Courts say the aim of punitive is to punish people.
b. We punish people because we want: deterrence and to express what we think
about their actions – whether it is going to deter anyone or not.
c. Deterrence: why doesn’t the compensatory award (given that it’s adequate) give
an appropriate amount of deterrence? Suppose that Bill doesn’t like Al and he
thinks it worth $10,000 to spit on Al (that’s how much the compensatory award
would be for spitting on Al). – Reason we don’t want him to act that way even if
he can pay for it: society just isn’t going to allow some things.
d. Why don’t we leave this up to criminal law?
i. Relieves pressure on criminal justice system.
ii. Some things we don’t like won't be appropriate for criminal law.
We shouldn’t have a ceiling on punitive damage – doesn’t fit with torts aims.
Plaintiff allowed to put in evidence of defendant’s wealth.
In recent years, tort reform, punitive damages in products liability.
a. Plaintiff argues that defendant knew about the dangers of the product.
b. Would punitive damages be appropriate?
c. Many courts have ruled that punitives are allowed in that situation.
Best reason for them: maybe the tort is concealed, or injury too small, etc. so punitive
makes them pay.
Absolute deterrence:
a. In negligence we give a choice: we tell him if he acts a certain way, he’ll be
liable. But he can make that choice.
Torts 25
b. But here, we don’t want to give him that choice.
c. Products liability: product is defective and plaintiff argues he should also get
punitive because the defendant knew the dangers because he did a risk-utility test.
Some courts say that’s enough for punitive damages.
C. Statutory Reform
1. Statutory modification theme
a. New Hampshire says no punitive unless statute authorizes.
b. Some states require “clear and convincing evidence” for punitive.
c. Some have judges determine the amount.
d. Georgia statute distinguishes between three types:
i. Products liability: no ceiling, but there can only be one punitive award
per product. 75% of the award goes to the state. – Gives plaintiff big
incentive to settle so it won't go to the state.
ii. If the defendant didn’t intend the harm: ceiling of $250,000.
iii. Where there’s intent: no ceiling.
D. Constitutional Stuff
1. 8th amendment is about cruel and unusual punishment & excessive fines.
2. Browning Ferris v. Kelco – says 8th amendment only applies to criminal law, so you can’t
bring 8th amendment argument for punitive damages.
3. 5th & 14th – some people argue punitive damages violate due process.
a. Honda Motor v. Oberg – need to have standards for the jury. Here, the state said
there can’t be appellant review – ct said that violated due process.
4. State Farm v. Campbell
a. TC gave them $145 mil in punitive.
b. Due process requires notice and wants to limit excessive.
c. Even if you have notice, award might be too big. “Due process has teeth here.”
d. Test for what’s excessive:
i. Degree of reprehensibility of D’s misconduct.
ii. Disparity between actual or potential harm and the punitive damage.
iii. Difference b/w punitive damages and the civil penalties in comparable
cases. – Really isn’t talked about in most cases.
e. Factors of reprehensibility: physical or economic harm, reckless disregard of
safety of others, financial vulnerability of target, isolated incident or repeated,
intentional malice, or accident.
5. Phillip Morris v. Williams – wrongful death case.
a. Judge told jury they could award punitive damages based on wrong to her
husband and smokers in general.
b. Ct held you can’t punish for harms done to others.
c. But you can show evidence to jury when it demonstrates the deliberate and
culpability of the D’s conduct – must have connection to P’s harm.
Chapter 5: Multiple Defendants: Joint, Several, & Vicarious Liability
I. Introduction
A. Joint Tortfeasors
1. 2 or more actors at fault and their combined actions cause an indivisible harm.
2. Smith v. J.C. Penny (flammable coat case).
a. Ct said it was hard to make the apportionment (practically indivisible) so treat
like joint tortfeasors.
3. Common Law rule: joint tortfeasors are jointly and severally liable.
4. Jointly liable means joint tortfeasors are each liable for the whole harm. The P can
collect the entire amount from one or the other or split between the 2.
Torts 26
5. Severally liable: each liable for a share.
6. In the case of an indivisible harm, each wrongdoer is liable for a whole and a share.
B. Collateral Source Rule
1. Doesn’t count against recovery.
2. It’s a separate and independent recovery.
II. Joint and Several Liability
A. Introduction
1. Rights and obligations of the tortfeasors between themselves.
2. Two Ds each at fault make an indivisible harm. Jury awards P $10,000.
3. Contribution is a device whereby responsibility is apportioned among those who are at
fault.
4. Does the D who paid have any rights against the other D?
a. Common law: no rights of contribution – so the D is out of luck.
b. Many states now allow for contribution.
5. Fairness: damages should correspond to fault.
B. Contribution Statutes (2 types)
1. Divide costs by number of Ds (pro rata statute)
a. If P takes it all from one D, then he can sue to recover half.
b. GA is pro rata, so is Cali.
2. Proportionate shares approach
a. D can recover from the other D the share he was responsible for.
b. American Motorcycles Association v. Superior Ct.
i. Call it “indemnity (means s/t different to other courts)” so they can use
proportionate share.
ii. Shows switch to contribution.
C. Indemnity
1. Indemnity is appropriate when 1 burden has a higher or primary liability which justifies
making him pay for it all.
2. Describes the situation where 1 D should bare all the cost.
3. Vicarious liability – when employer is liable for employee. Then later, employer can
indemnify employee.
4. Sometimes happens when manufacturer has a contract with retailer that says
manufacturer will reimburse retailer if sued.
5. Another time: where one person is actively negligent and one is passively negligent
a. Union Stock Yards v. Chicago – both parties negligent but it was “like negligent”
so one couldn’t indemnify the other.
D. Abolish Joint Liability?
1. Just because we can assign a %, doesn’t mean we have to. Just because the P is at fault,
we don’t need to limit because the P’s culpability isn’t equal to the Ds.
2. Cali statute: non-economic damages should be several.
3. GA statute: if P is at fault, no joint liability. If P isn’t at fault, then there is JL.
4. If we abolish it, then there are 2 ways to get to a D.
a. RST Approach: If A is 60% liable but he isn’t present. B is 10% liable and the
plaintiff is 30% at fault. So B becomes responsible for ¼ of the 60% of A’s
liability. So the plaintiff gets 10% + 60%. The plaintiff and other defendant chip
in in relation to their respective faults. If plaintiff is faultless then plaintiff gets
100% from B.
b. 2nd approach: If no present D, P swallows the loss. This would be liability
follows his fault???
5. McDermott v. AmClyde & River Don Castings: settlement and joint liability. 3
approaches
Torts 27
a. Claim against non-settling D is reduced, and no settling D has a right of
contribution against settling. (GA rule).
i. Ex: A - P settles for $50. Jury awards for $200. If using proportional
approach, and 50% each, the A should have paid 100 so right of 50?
ii. Strong disincentive to settle.
b. Claim against non-settling D is reduced and no right to contribution. A: P pays
50. B pays $150.
i. Strong possibility that more liable D wants to settle at the beginning.
ii. Try to have “good faith” hearings, however in practice those don’t really
work well.
c. P’s claim isn’t reduced by $50, but it reduced by determination of settling D’s
share of fault.
i. P only gets $150. However, P agreed to the settlement, sometimes he will
get less or more, depends on his bargaining power.
III. Vicarious Liability
A. Introduction
1. Respondent superior is one type of vicarious liability.
2. Parent isn’t vicariously liable for the torts of kids.
3. Doesn’t apply to independent contractors:
a. Employee is under the control of the employer, independent contractors aren’t.
Can be a hard distinction.
b. Exception: if someone appears to be an employee from an outside party then
they have “apparent authority” – can be basis of liability.
4. Negligent hiring: if Bob had an accident in his work truck but it didn’t have to do with
work Al as his boss can be liable. Separate from respondent superior.
5. If Bob had gotten in a wreck in the scope/course of employment, then Al would be
strictly liable under respondent superior.
B. Scope
1. Most courts use a motive test – within scope if actuated by a purpose to serve the master.
2. Frolic and detour: varies – no hard and fast rule.
a. Riley – 4 blocks wasn’t too much of a detour.
b. If someone’s job was to travel the whole country, a detour to Athens on the way
to Atl might not be too much.
3. Bushey & Sons v. US (minority) – drunken sailor sank dry dock/part of ship.
a. Argues it wasn’t within scope of employment but the court disagrees and rejects
the motive test.
b. Says the purposes of respondent superior are: efficient allocation of resources
(most courts disagree); loss-spreading (worker doesn’t have much money).
c. Says men’s personal qualities are characteristic of the enterprise so reject motive
test.
d. Their test: sufficiently connected to work and sufficiently foreseeable.
4. Restatement of Agency § 228(1): conduct of a servant is within the scope of employment
if it is actuated, at least in part by a purpose to serve the master.
PART TWO: TORTS AGAINST NONPHYSICAL INTERESTS
Chapter 13: Defamation
I. Introduction
A. The Doctrine
1. Dead people can’t be defamed. Generally, defamation suits won’t survive death either.
2. Must harm reputation.
Torts 28
3. Libel is written defamation and slander is spoken. Blurry lines now have more to do with
permanence of the form.
4. Damages are more severe generally in libel because it has more potential for harm.
5. Elements:
a. D has published a statement with defamatory meaning concerning the P.
b. Mental requirements change with each element.
6. Truth is absolute defense.
II. Publication – 1st element
A. Introduction
1. Communication to some 3rd person.
2. § 577: what constitutes publication
a. Publication of defamatory matter is its communication intentionally or by a
negligent act to one other than the person defamed.
b. One who 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
is subject to liability for its continued publication.
B. Scope
1. “For good time call Maylynn” in bar – if you let it remain after you’re asked to take it
down, then you can be liable.
2. Al sends Bob a letter calling him a liar. Bob’s wife reads it.
a. Might be negligent publication. If Al knows she opens the mail, then probably.
b. If it’s a fax, easier case, no envelope.
3. Generally, if P publishes, then D can’t be liable.
4. If Al sends the letter but he knows Bob can't read (someone will have to read it to him),
could be negligent publication.
5. Compelled republication
a. Where publication is inevitable or necessary
b. Fired employee having to explain reasons to prospective employer; employee has
duty to mitigate. (Lewis –Minority).
c. DeLeon v. St Joes: says it would open floodgates to any employee who is
rejected for job; employers couldn’t deal with personnel matters effectively.
C. Single Publication Rule
1. When 10,000 books went out – only counts as one publication.
2. § 577(a) – any one edition of a book, newspaper, radio, TV broadcast, movie, etc is a
single publication.
3. Policy: prevents excessive liability; can get all your damages in one place.
4. Firth v. State of NY:
a. P tries to bring a case about a website publication. Argues that it’s a new
publication every time the post is updated. Court disagrees
b. Wells thinks it’s a good point though.
D. 3d Parties
1. Defamatory book about Al. Can he sue the library or bookstore?
2. Common law rule: an exception for those places so long as they didn’t know or
shouldn’t have known that it was defamatory.
3. Apply to the internet?
a. ISP has a stronger privilege because it’s a federal statute.
b. Zeran v. AOL general rule): P tells AOL about the defamatory statements and
AOL didn’t take them down. AOL not liable.
i. ISPs aren’t publishers, basically.
c. Carafano v. Metrosplash: argued Match Maker contributed to the content so they
should be liable. Ct disagrees.
Torts 29
d. Once websites start editing, they become responsible for the content.
III. False or Defamatory Statements (2nd element)
A. Introduction
1. Publication, without justification or lawful excuse, which is calculated to injure the
reputation of another, by exposing him to hatred, contempt, or ridicule, is a libel. –
Parmiter v. Coupland
2. RST § 559: a communication is defamatory if it tends so to harm the reputation of
another as to lower him in the estimation of the community or to deter 3rd persons from
associating or dealing with him.
B. Scope
1. List of defamatory things per se:
a. Commission of a criminal offense.
b. Infection of VD (might not be considered defam anymore).
c. Inability to perform or want of integrity in the discharge of duties of public
office.
d. Adultery or fornication
e. Words that prejudice a party in her trade, profession, or business. Varies by
profession.
2. Not every statement that injures reputation is defamation.
c. Ex: that a person is dead, fragile, pays union dues, lived an eventful life.
3. Traditional view allows the P to prevail if he can point to any subgroup of the population
that would find the statement defamatory.
4. RST: defamatory only if it prejudices the P in the “eyes of a substantial and respectable
minority” of the members of the community, but not if it simply offends some individual
or individuals with views sufficiently peculiar to regard as derogatory what the vast
majority of persons regard as innocent.
5. If the statement could be defamatory or not, if it’s equally capable to be the innocent
view then the P is going to lose.
6. Wilkow v. Forbes: Forbes ran a column about a case Wilkow was in. They said that he
was claiming poverty and robbed his creditors.
a. Ct says that calling a person greedy in our market isn’t defamatory. Context
specific.
7. Headlines:
a. Headline of the R&B says professors are liable but the story says the lost their
motion to dismiss. Can be defamation based on headlines even if the article
clarifies.
IV. Of and Concerning the Plaintiff – 3rd Element
A. Scope
1. Muzikowski v. Paramount Pictures: Movie based off non-fiction book. Changes the
character’s name and gives him worse qualities. Movie says its fiction.
a. If people can reasonably construe it was about that person, then it can be
defamatory.
2. Not enough to say “this is a work of fiction” to get out of defamation.
3. It’s not what you’re doing or intended to do. It’s how others perceive it.
4. Sometimes can be “of and concerning the P” even when there are differences between P
and fictional character.
5. Strict standard: “produce evidence showing that there is in fact no reasonable
interpretation of the movie that would support an innocent construction.”
6. Easier standard: Need to show that reasonable people interpret it to be the P.
(Majority).
Torts 30
E. Hulton v. Jones: Column said Artemus Jones was with a mistress. P’s name was Thomas
Aretmus Jones and he argued people thought the story was about him. P wrote sometimes for the
paper
a. Paper said the name was made up.
b. Doesn’t matter the writer’s intention. SL for this element.
V. Libel and Slander
A. Introduction
1. Generally libel and slander per se have presumed damages – no need for evidence of
actual damages. We don’t know the harm but we presume it happened.
2. Generally libel and slander per quad have special damages: have to put in evidence.
3. § 568(3): the area of dissemination, the deliberate and premeditated character of its
publication and the persistence of defamation are factors to be considered in determining
whether a publication is a libel rather than a slander.
B. Slander
1. Per se (4 categories)
a. Loathsome diseases
b. Criminal conduct
c. Imputation of unchasity
d. Slander of a person’s trade or profession.
2. Other slanders would be slander per quad.
3. Some cases where slander falls into one of those categories and you still need to put in
evidence of damages.
C. Libel
1. Libel per se is a statement where the fact that it’s defamatory is manifest.
2. Libel per quad is a statement where you need extrinsic evidence to show it’s defamatory.
3. Even if libel per quad but defendant knows about special circumstances then you can
have presumed damages.
4. Group Libel: when all or nearly all the members of a group are defamed.
a. If the group is too big then you won't be liable.
b. Statement must be about the group in general.
VI. Damages
A. Special Damages
1. Terwilliger v. Wands
a. P showed that the D has said the P was having sex with a married woman.
b. Wasn’t slander per se because sexual conduct wasn’t considered slander per se at
this time.
c. Had to show special damages. Needs to be a relational harm. Has to a material
component.
2. Can be the loss of an opportunity. Don’t have to be entitled to it.
3. Can’t win special damages unless you can show relational harm. – Zeran.
4. Ellsworth v. Martindale-Hubbel Law Directory:
a. Not per se libel even though the code is in the book.
b. Here, because he doesn’t have regular clients, he can show general evidence that
he lost money in his business.
5. Defendant can put in evidence that lost profits were caused by something else like
economy crashing.
6. Have to show a casual connection between losing business and defamation.
B. General Damages
1. AKA Presumed damages
2. No need for evidence.
Torts 31
3. Elements of general damage: injury to reputation; loss of business; and wounded feelings
& bodily suffering resulting therefrom.
4. If P puts in evidence, then it will be examined and jury could cut it down.
5. Fault v. Aware: called him a communist.
a. Libel per se.
b. Put in evidence (even though he didn’t have to) that he was going to be a big
radio star but the court disagreed because he wasn’t making that much money at
the time.
6. NY Times v. Sullivan
a. Ad put in paper by a civil rights group accused the police chief of Montgomery
b. Didn’t put in any evidence and he won a lot of money.
7. Policy:
a. We can be more confident that harm has happened when on the face it was
defamatory.
b. In slander, we can be more confident that harm occurred when it was one of
those categories because they are “so bad” – Wells thinks this is a little shaky.
VII.
Nonconstitutional Defenses
A. Introduction
1. List of defenses:
a. Truth
b. Consent
c. Absolute Privilege
i. Judicial, legislative, executive proceedings
ii. Compelled Broadcast or Publication (Barbari)
iii. Communication Between Spouses (Barbari)
d. Qualified Privilege
i. Reports of public proceedings (doesn’t excuse inaccuracies in reporting of
statements)
ii. Etc
B. Truth
1. Truth is absolute defense.
2. Today, only need substantial truth.
a. Paper said guy was convicted of stalking, but really it was harassment. Ct said it
was substantially true.
3. Avil v. CBS 60 Minutes: (actually a product disparagement case. Burden is on P, in
defamation burden is usually on D).
a. P failed to dispute evidence on the animal studies which were the basis of
assuming apple chemical was harmful to people and kids.
b. Tried to also argue that the show sent a false message Court said you have to
show specific facts are false – Wells things this argument might win sometimes.
c. If burden on D, might have come out differently.
4. If a parody, etc. then it’s not defamatory. Could still sue for outrage.
a. To be defamatory, needs to make an accretion of fact.
b. Reasonable people need to be able to believe it was supposed to be true.
C. Privileges in the Private Sphere
1. Watt v. Longsdon: 3 different accounts of defamation.
a. 1st: D sent letter to chairman of the board of directors of their company telling
him he was a thief, having an affair, etc.
b. 2nd: D wrote letter to person who originally defamed P agreeing with him.
c. 3rd: Showed the letter to P’s wife.
d. For privilege you need:
Torts 32
a. A public or private duty to communicate; whether legal or moral
b. The communication should be “fairly warranted by any reasonable
occasion or exigency”
c. Or a statement in the conduct of his own affairs where his interest is
concerned.
e. Information to wife wasn’t privileged. Generally, don’t interfere with other
people’s marriages.
2. Policy:
a. Socially useful communication. Even if they turn out to be false, it’s still socially
useful to say them.
3. Doe v. Gonzaga University: student teacher sued because rumors of sexual assault.
a. All intra-office communication but they found it wasn’t privileged because the
comments weren’t made in the course of their work, so there was no interest.
4. Qualified privilege – means you can lose it.
5. Whether there is a request for the information and who made the request matters as to
whether it was privileged.
6. Consent creates a qualified privilege.
a. § 583: one who agrees to submit his conduct to investigation, knowing that its
results will be published, consents to the publication of honest findings.
7. Self-defense is really just a factor for interest.
8. Ways the privilege can be lost:
a. Excessive publication: Al gets Bob’s credit score from Charlie and then Charlie
sends it to everyone instead of just Al.
b. If you know it’s false or you act with disregard of whether or not it’s true.
c. Motive: Al wants to destroy Bob’s career but he’s also motivated for the
company. Dominate motive is what matters.
d. Suppose there’s an inter-business thing but the speaker believes its true but a
reasonable person wouldn’t. It’s for the jury to decide. If you were giving into
your bad feelings then you loss the privilege by bad motive, but not just by
negligence (majority rule).
D. Privileges in the Public Sphere
1. Legal proceedings are an absolute defense. Includes judges, witnesses, etc. If it’s in a
complaint, or something then still protected because within the scope of proceedings.
2. Kennedy v. Cannon:
a. Lawyer told a reporter that the P consented to sex with the D, after the P’s
counsel had told the reporter other things. Lawyer argues he was protecting his
client from a lynching.
b. 3 reasons why it’s an absolute defense:
a. Exceptionally important to have no inhibitions in legal proceedings.
b. We can generally expect them to act reasonably.
c. Other sanctions available, perjury, etc.
c. No privilege when discussing the case to the press.
3. Qualified privilege if Al is making the statement calling Dave a liar to a potential witness
and that witness tells Dave.
4. Government bodies
a. Always qualified privilege when talking to cops.
b. General rule: info given to cops about criminal stuff is absolute privilege
because you could be a witness and then subject to perjury.
5. Get absolute privilege (not bright line rule) when you have a number of factors present:
like the availability of sanctions.
6. Quasi-Legal Proceedings
Torts 33
a. Meeting of tenants association = quasi judicial = qualified privilege.
b. Make argument based on particular contexts.
c. Some courts say weigh interest in reputation against affirming stability of
proceedings and others say look at gravity of the proceeding.
d. Ezekiel: statement made before joint management union grievance board, court
didn’t find absolute privilege because no protections in place for situation at
hand.
e. Tobkin: absolute privilege applied to complaints clients lodged against their
attorneys with FL bar, so long as complaint stayed within grievance system.
f. Park Knoll: president of tenant’s association didn’t enjoy absolute privilege from
liability; he wasn’t a party in a judicial or quasi-judicial proceeding.
7. Reports of Public Proceedings or Meetings:
a. Brown & Williamson Tobacco v. Jacobson: reporter does a story saying
Tobacco Company was advertising to kids. Info based on old document FTC
document.
a. An unfair summary is one that amplifies the libelous effect that publication
of the government report verbatim would have on a reader who read it
carefully – that carries a “greater sting.”
b. Here, the difference between kids and young adults and because it was
giving the impression they were doing those ads now, when the document
was from a while ago.
b. § 611: you can’t report the derogatory parts and leave out facts vindicating the P.
8. What if reporter thought he gave an accurate summary?
a. Common law: reasonableness didn’t matter.
b. Now, you have a privilege so long as you reasonably believe it’s a fair summary.
c. Fair summary rule: if even the reporter knows the information is false but reports
them accurately he won't be liable provided statements give a fair summary.
a. This privilege is stronger than the Constitutional privilege because if it’s
false you don’t get const. priv.
d. Policy: strong interest in transparency of any public proceeding or report.
9. If government public document has false information but the reporter knows it’s false.
There is a privilege because it came from the government.
10. Can’t sue government officials because of sovereign immunity.
11. Fair comment rule:
a. Doesn’t have to be “fair” as long as it’s an opinion.
b. Exaggerated & hyperbole = protected.
c. IQ of 82 v. he’s a blockhead.
d. Test: whether ordinary people would likely find it an opinion or fact.
e. If state facts accurately (or facts available) can make any evaluation you like as
statement opinion.
VIII. Constitutional Privileges
A. Introduction
1. Exam: could be Con law issue or CL or both.
2. CL defenses still have value because they allow lying sometimes
3. If speech involves public concern, there will be limits on defamation.
B. Public Officials and Public Figures
1. New York Times Co. v. Sullivan
a. Sullivan was a Commissioner of Montgomery and he claimed he was defamed in
the article because he was responsible for the police. It didn’t mention him
specifically.
Torts 34
2.
3.
4.
5.
6.
7.
8.
9.
10.
b. Some parts of the article were true, some weren’t, but the false parts weren’t that
off.
c. He was awarded $500 k (like 3.5 mil today).
d. New rule: prohibits a public official from recovering damages for a defamatory
falsehood relating to his official conduct unless he proves that the statement was
made with “actual malice” – with knowledge that it was false or with reckless
disregard of whether it was false or not.
e. Policy:
a. Debate on public issues should be uninhibited, robust, and wide-open, and
that it may well include vehement, caustic, and sometimes unpleasantly
sharp attacks on government and public officials. (Even when costly, it
should be allowed).
b. In our system, people are supposed to run things.
c. Sometimes you had to protect the bad speech so that the good speech can
have “breathing space.”
f. Here, P loses because there was no actual malice.
No absolute privilege here because of the costs to reputation.
P has burden to show it’s false.
The recklessness test has to be met by the particular employee who accepted the ad.
Public officials include:
a. Not everyone who works for government
b. Hierarchy of employees who have control or seem to have control or
responsibility of public affairs.
c. Ordinary cops are generally but not firemen or school teachers (but sometimes
high school principles).
d. Candidates for political officer are generally considered PO.
What parts of their life are governed?
a. Always charges of misconduct.
b. Cases are few and far between where their private life isn’t governed.
Curtis Publishing v. Butts
a. Butts (UGA athletic director) was said to have given Coach Bryant of AL crucial
information to fix the game.
b. He won $60 k in general and 3 mil in punitive at the TC.
c. Court extends the NY Times test to public figures.
d. Reasons:
a. They have influential role in society
b. They can defend themselves using the press, etc.
c. They thrust themselves into the public.
e. Result: Butts will win, but NY Times test will apply to public figures.
a. Different justices want different things
f. To win: a PF has to prove actual malice and that the statement is false.
Walton: not a public figure because he didn’t thrust himself into the public.
Khawar v. Globe International:
a. Standing next to Robert Kennedy when he was shot.
b. Not a PF because he didn’t thrust himself. Wrong place, wrong time.
Who is a PF?
a. Time v. Firestone
a. CEO’s wife wasn’t a PF, even though she had a press conference about her
very public and messy divorce.
b. Hutchinson v. Proxmire:
Torts 35
a. Scientist given a fake award by a senator wasn’t a PF, even though he had
gotten a federal grant.
c. Meeropol v. Nizer:
a. Rosenberg kids were PFs when children but got older, changed their last
name, and still concerned PFs.
d. Lohrenz v. Donnelly
a. One of the 1st female combat pilots.
b. Held she was a PF because she knew she’d be in the center of controversy.
c. Thrust happens when they make themselves the target of debate or when
you enter the debate.
11. Thrust: purposefully trying to influence outcome or where you’re reasonably expected to
influence outcome.
12. Limited purpose public figure:
a. Public figure for public part of your life, but not private life.
13. Actual malice applies both to PF and PO.
a. P has to show that state of mind.
14. Burden of proof: clear and convincing evidence.
a. Herbert v. Lando: you get evidence of mental state – internal memos, etc.
15. Reckless disregard:
a. St. Amant v. Thompson: Suppose D should’ve known it was false (subjective
standard) – been criticized.
b. Need free speech.
16. Suppose Al makes a false statement against Bob, who he’s running against. A reporter
hears it, knows it’s false, and says “Al said this…”
a. Bob can sue the reporter and can win.
b. Some jurisdictions have CL, but no constitutional defense.
17. Outrage Tort: Hustler Mag v. Falwell:
a. Not defamation because clear falsity.
b. Falwell won on outrage tort because the S Ct. overturned verdict because free
speech constraint from defamation also applies to outrage tort.
c. But, if mom still alive, could sue and not be required to meet NY Times because
not public figure.
d. Doesn’t mean PF can’t ever win on outrage, just not when suing on account of
speech.
C. Private Parties
1. Gertz v. Robert Welch, Inc.
a. Attorney sued when an article claimed he was a communist.
b. Issue: whether a newspaper or broadcaster that publishes defamatory falsehoods
about an individual who is neither a PF nor PO may claim a constitutional
privilege against liability.
c. So long as they don’t impose liability without fault, the States may define for
themselves the appropriate standard of liability for a publisher or broadcaster of
defamatory falsehood injurious to a private individual.
i. Test can’t be SL, must at least be negligence.
d. Policy:
i. They don’t have access to media and they don’t thrust themselves into the
public.
ii. Interest in communication and free speech overrides the distinctions (Ct
rejects this).
iii. Free speech v. reputation
e. If Gertz applies, no SL to any element.
Torts 36
Damages limited to “actual injury”
i. Not defined, but isn’t limited to out of pocket loss.
ii. There must be competent evidence of “actual” injury, although no need for
evidence that assigns an actual $ value to the injury.
2. How it works:
a. Use of professional standards. RST § 580: situations in which professional
standards govern negligence standard.
i. No professional board of journalism, so more likely to be evidence for jury.
Not likely to be “the norm.”
b. More likely to find defamation if its gossip rather than about government.
c. Amount of harm it would do
d. Reporter who relies on a source who is known to be reliable v. an anonymous
source.
3. Suppose private P can show negligence
a. Can’t get presumed damages under Gertz
b. But, doesn’t have to be a relational harm.
4. If you can prove actual malice:
a. You can get presumed damages.
b. You can get punitive damages
5. Dun & Bradstreet, Inc. v. Greenmoss
a. Credit report put together by 17 year old had the wrong information
b. Allowed presumed damages because the state interest called for it.
c. Domain of privilege speech – no going to apply Gertz rule because not a media
defendant, so still within the CL.
d. When the defamation matter involves public concerns, the presumed damages
may be restricted (Barbari).
6. Public v. Private:
a. Credit score = private
b. Watt v. Longsdon = private
c. Wilkow (article about bankruptcy) = public
d. Move and book = public.
7. Gertz makes it seem like it only applies to media Ds, but Wells thinks technology means
there won't be a distinction anymore.
8. If it’s in the media, you generally get constitutional protections.
9. Hepps:
a. When defamatory statement is of public concern, the private P must bear burden
of proof regarding falsity.
b. Standards
i. Public P: clear and convincing evidence
ii. Private P/Public concern: S Ct hasn’t answered. Possible preponderance
of evidence.
10. There are no Constitutional limits on private plaintiffs of purely private concern. So,
presumed & punitive damages might be recoverable even without malice.
D. Fact or Opinion
1. Milkovich v. Lorain Journal Co.
a. Reporter wrote about the hearing (which he didn’t attend) about the wrestling
meet (which he did attend) and called Milk a liar.
b. CL fair comment rule: general test for whether it is fact or opinion – reasonable
person.
c. Court holds that Gertz didn’t mean to create a wholesale exemption for anything
labeled at opinion.
f.
Torts 37
d. Omen v. Evans – overruled by Milk which said to look at common usage, full
statement, broader context, etc.
i. Context no longer dispositive.
e. Saying “In my opinion” won't save you.
f. Make it clear that it is your opinion.
g. Ct said they are enough protections already:
i. Hepps: P must establish falsity
ii. Falwell: rhetorical hyperbole
iii. Enhanced appellate review
2. Flamm v. AAUW
a. Sent out a directory and the only negative comment was calling the lawyer an
ambulance chaser.
b. The Ds argue they were using figurative language.
c. The context of the publication shows it could’ve been taken as fact.
d. Test: whether a reasonable person could understand statement as fact.
3. Statement of opinion is actionable only if it appears to be based on specific facts and an
express allegation of those facts would be defamatory (Barbari)
Torts 38