Torts Outline Turley – Fall 2010
I.
II.
Background of Torts
a. Torts Law is constantly evolving and changing bc it is common law
b. Common Law
i. Blackstone’s commentaries became the foundation for English and American Law
1. He peeled back cases to establish precedents
2. Analogizes each case to one another so that each case is a foundation for another case
ii. Common law evolves and changes faster than civil code
1. Civil code is easy and predictable, but evolves much slower bc statutes must be passed
c. Law of Torts is a law of choices and it is up to the jury often times to make those choices
The Views on the Role of Courts
a. Madisonian Democratic Values and Political Questions
i. Wanted a tripartide government with checks and balances
ii. Judicial Deference – Legislature makes laws and make sure the courts aren’t imposing or
changing the law and instead just interpreting the law that is there
1. Majority makes the laws (legislative majority)
b. Formalism
i. System with a series of rules/canons to make law more predictable
1. If A happens then do B
ii. Have rules to avoid bias of judges
1. Judicial neutrality and deference
a. Courts shouldn’t decide what the law should be, leave it to legislature
c. Legal Realism
i. Rejected formalism; accepted indeterminacy of the law
1. Llewelyn found that there were discrepancies in the canons (hidden bias) and
depending on which canon was selected, that is what the outcome would be
ii. Allowed for judges to make decisions and court of appeals to review them
1. No one rule can be applied to a situation
d. Legisprudence
i. Harts and Sachs
1. Courts should leave it to the legislature to fill gaps/ambiguous legislation (Madisonian)
a. “Adherence to legal procedures to achieve institutional settlement through
regularized and peaceable methods of decisions
b. Majority knows what they are doing
ii. Pigou
1. Sometimes the market will fail and that is the only time when the legislature should step
in
e. Public Choice School
i. Mancur
1. Disagrees with Hart/Sachs and Madisonian and says congress produces countermajority
results all the time
2. Smaller groups with concentrated interest are more powerful than large diffuse groups
a. Large groups have a lot of free riders (people who don’t really care just follow)
ii. Easterbrook
1. Says judges should not fill gaps in the legislation
a. Dealism – gap could be a deal or just a mistake
i. Gaps are shady dealings sometimes b/w lobbyists
2. Courts should apply law exactly as written; limited judicial role
iii. Macey
1. Fill all the gaps in legislation with the public regarding purpose of the legislation
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a. Make the legislation fix their mistakes and bring their private deal making open
and deliberative to better the majority
III.
Schools of Thought
a. Lockean/Neo-Lockean
i. Locke’s Labor Theory
1. Property came from god and you developed your claim to property by taking what was
common and mixing your sweat and labor with it, making it your own private property
ii. Neo-Lockean use this to justify how wealthy they are and how much land they have
iii. Locke’s Proviso
1. One must leave enough common land for other people, you can’t take away from others
a. John Rawls used this to refute Neo-Lockeans bc they were not redistributing any
wealth
b. Normative
i. Determine what the norm of society is, what is morally right/wrong in society
c. Utilitarianism
i. Bentham
1. Government is there to achieve the greatest good for the greatest number of people
2. Ended the contractarian period
3. Government should make laws to benefit the majority of society (schools, welfare)
d. Critical Legal Studies
i. Favored wealth redistribution and the breaking down of class barriers
1. Courts should start ruling in favor of results that bring greater economic justice to
society; judicial activism
2. Courts should broaden and be forums for people who are marginalized by society
ii. Duncan Kennedy
1. Deconstructed Blackstone’s commentary to find that original rulings and laws were from
the church and therefore he was in favor of de-constructing “legal terms”
e. Feminism
i. Wanted gender neutral laws and judgments
ii. Wanted to eliminate the patriarchal bias that developed bc men made all the laws
iii. Jurispathic
1. Why did we have a system of legal combat where someone always loses and someone
wins? (Male Model)
iv. Jurisgenerative
1. We need a system where the judges evaluate the merit on both sides and shape an
equitable decision
v. Bender – we should have a duty to perform low cost rescues to better society
f. Hegelianism
i. Hegel
1. You must understand a person’s relationship with their property to understand property
a. Law doesn’t value things the way people do and the law should take this into
account
g. Socio-Biological
i. Beckstrom – says last of the line arguments should be allowed in court; judges are leery bc this
suggests that some children are worth more than adopted, but at the same time courts should
respect impulse of importance of replicating DNA
h. Law and Economics
i. Goal was to quit looking at morality and look solely at what is more economically efficient
ii. Posner
1. Morality is bad bc it is subjective; whereas, economic efficiency is more tangible
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IV.
V.
2. Negligence is the most effective system; strict liability forces cost-internalization, leaving
it to the market to dispose of inefficient activities
iii. Efficiencies
1. Pareto Efficiency
a. We need to produce at least one winner without making anyone worse off
b. Pareto Optimality – the point of optimal efficiency where we can’t make anyone
else a winner without making someone a loser (worse off)
2. Kaldor-Hicks Efficiency
a. Trying to wealth maximize; who cares about the losers as long as there is a net
gain. Losers should not be compensation
b. If you want efficiency then make sure as many people win as possible
iv. Costs
1. Cost Externalization
a. Company off loads results and places negative effects to third parties (pollution)
i. Costs society a great deal but the companies nothing
2. Cost Internalization
a. If a company has to make their product safer by spending more money to make
it, then they will raise their selling price to make up for this
v. Coase Theorem
1. Coase 1
a. In a perfect market (A market without transactional costs), the market
determines the outcome of conflicts bw two uses
i. The more valuable use/resource will prevail
2. Coase 2
a. There is no perfect market, there are transactional costs. These transactional
costs can flip the results
i. The less valuable activity/resource can continue because the
transactional cost of stopping the activity is much higher
b. Transactional costs – cost you spend reaching a result or agreement
i. The cost of getting things done
ii. The more people you have to talk to the higher your transactional cost
i. Market Based Analysis
i. Soft values (love, environmentalists) should only be brought when you’re looking for damages
1. You should quantify everything
ii. Markets take time to change values; they are slow to change
iii. In order to be heard in a court of law you have to show you have standing
1. Standing is a cause of action to represent something
a. Soft values are not good enough, but you could get user standing (hiker)
Tactics Against Court
a. Slippery Slope
i. You don’t want to do this because it will open up many other cases and there is no way you can
take other cases
1. Encourages the court to do nothing or that the court should adopt a bright line rule
b. Flood Gates
i. You will have tons of cases coming in and be overwhelmed if you rule in this way
c. Judicial Competence/Institutional Incompetence
i. Court should defer to the legislative branch because they don’t have the authority to make a
decision of such matter
1. It is too profound an issue that should be dealt with by the legislature
INTENTIONAL TORTS – defendant desired to bring about a particular result
a. Intent Defined
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i. Rest. 2nd §8A - An actor has an intent when the actor:
1. Desires to cause consequences of his act; OR
a. Has nothing to do with if he intended to harm, has to do with just his conduct
2. Knows or believes that the result is substantially certain to occur
a. A high likelihood is not good enough
b. Garratt v. Dailey – Kid pulls out chair and he was substantially certain she would
hit the ground
ii. Substitutions for Intent (Intent was unlawful)
1. If the intent was to do something unlawful or violate a rule then it is an intentional tort,
regardless of whether he intended to cause harm
a. Vosburg v. Putney – Boy kicks another boy during school hours breaking school
rules and is guilty of battery
iii. Transferred Intent
1. Between People: If D had intent to cause tort against one person he will have
intentional tort against any other person who happens to be injured
2. Between Torts: If D intended to assault P, but instead punches P – he will be liable for
intentional battery even though he only intended to commit assault
a. Does not apply to intentional infliction of emotional distress – but compare
inclusion of family members w/o physical contact and 3rd parties w/ physical
contact
iv. Insane individuals and children are liable for intentional torts
v. Intentional tortfeasors will be liable for virtually every result stemming directly or even
somewhat indirectly form his conduct, however unlikely it might have seemed at the time of his
act that the result would follow
b. BATTERY – an unpleasant touching of a person
i. Definition: Rest. 2nd §13
1. The intentional infliction of a harmful or offensive bodily contact
ii. What is necessary/Elements:
iii. Overview: (1)Act intending to cause harmful/offensive contact or imminent apprehension of
such contact, and (2) contact actually happened
1. Intentional
a. Actor intended to cause harmful or offensive contact
b. Actor intended to cause imminent apprehension of such a contact
i. Put P in fear of an imminent harmful or offensive contact
1. Intent to commit assault
2. Harmful or offensive contact:
a. Harmful: Causing physical pain or bodily damage
b. Offensive: Damaging to a reasonable sense of dignity
i. Would an ordinary person not unduly sensitive as to his dignity be
offended
1. Mohr v. Williams – P consented on surgery for right ear but D
operates on left ear instead bc he sees it is worse. This is
battery bc it was offensive
ii. However, if you know that a person is extra sensitive to something and
you do it you can get battery
3. Contact Results
a. Contact beyond level consented to
i. Can be implied consent from past experiences (practices, or words)
b. Extends to personal effects
i. Doesn’t have to actually touch person but could make contact with
anything so closely identified with her body (clothing, anything held)
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c. You yourself do not have to touch the P with a part of your body
i. Use arrows, mail bomb, gun
d. P does not have to be aware of conduct (could be sleeping)
iv. As long as D committed battery, he is liable for any consequence which ensue no matter how
unforeseeable
v. Insane people can form intent for battery and transferred intent applies
1. McGuire v. Almy c. ASSAULT
i. Definition: Rest. 2nd §21(1)
1. Intentional causing of an apprehension of harmful or offensive contact
ii. What is necessary/Elements:
iii. Overview: (1) Acts intending to cause harmful/offensive contact or imminent apprehension of
such contact, and (2) actually puts other person in imminent apprehension
1. Intent
a. Actor intended to harmful or offensive contact
b. Actor intended to cause imminent apprehension of such contact
i. Put P in fear of an imminent harmful or offensive contact
ii. It doesn’t matter whether they were hostile or not
2. Harmful or offensive contact:
a. Harmful: Causing physical pain or bodily damage
b. Offensive: Damaging to a reasonable sense of dignity
3. Imminent apprehension Results
a. P must either undergo an offensive contact or be put in apprehension of a
contact happening
i. If a person is super timid and you know it and scare him, it’s assault
b. The threat must be imminent
i. Future threats and threats without the present ability (from P’s point of
view) to commit harm do not constitute assault
c. Generally words alone do not constitute assault without an overt act
i. Conditional threats are assaults (give me your money or I’ll kill you)
1. Not true if it’s a police officer or someone with a legal right
d. P must be aware of the threatened contact
e. Threat to a 3rd party is not actionable
d. FALSE IMPRISONMENT
i. Definition: Rest. 2nd §35
1. Intentional infliction of confinement
ii. What is necessary/Elements:
iii. Overview: (1) Acts intending to confine person within fixed boundaries (2) actually does put
other person in boundaries (3) and the other person is conscious of the confinement or is
harmed by it
1. Intent
a. D intended to confine him within fixed boundaries (could be through substantial
certainty)
i. Maybe even if they are grossly negligent
2. D’s act directly or indirectly does confine him within fixed boundaries
a. There must be definite boundaries and that P is held within those boundaries
i. No walls can make a prison as long as the person is limited from
leavin/moving
ii. Bird v. Jones – P was forbidden to travel along a public highway bc it
was blocked off. Not false imprisonment bc he could was not confined
and was free to go in other directions
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b. If there is a means of escape, P must know about it and it must be reasonable
(safe)
c. Imminent threats can be used to constitute as false imprisonment
i. Includes threats to people or property
ii. Strictly verbal commands cannot lead to false imprisonment
iii. Asserting that you have a legal authority to confine someone can still
constitute as false imprisonment regardless of whether you do or not
1. If the party does have right to arrest it will be a defense
d. You can look at the amount of time, the place you’re held, and the manner in
which you are held and if any of these are unreasonable you have a good case
e. “Shopkeeper’s Privilege”
i. Shopkeepers can hold a suspected shoplifter for a reasonable time in a
reasonable place and manner. Suspicion must be reasonable
1. Coblyn v. Kennedy, Inc. – Old man was suspected of shoplifting
and employees demanded he stay in the store. This was false
imprisonment bc they restrained his movement without a
reasonable suspicion
3. P is conscious of confinement or is harmed by it
a. P is aware of confinement or if not aware was harmed (Baby locked starving)
e. Intentional Infliction of Emotional Distress
i. Definition: Rest. 2nd 46
1. Intentional or reckless infliction, by extreme or outrageous conduct, of severe
emotional or mental distress. Third party can recover if he intentionally or recklessly
causes severe emotional distress to a member of such person’s immediate family who is
present, whether or not such distress results in bodily harm, or to any other person who
is present, if such distress results in bodily harm.
ii. What is necessary/Elements
iii. Overview: (1) By Extreme or outrageous conduct (2) Intentionally or Recklessly causes (3) actual
severe emotional distress to another
1. Intent
a. Desire to cause P emotional distress
b. Substantially certain that P will suffer emotional distress
c. Recklessly disregard the high probably that emotional distress will occur
d. Transferred Intent
i. Generally not available (You go to beat the hell out of someone, they
can’t get tort of IIED bc you didn’t have requisite intent)
ii. Exception: Applies to select third parties:
1. Immediate Family members who are present at the time of act
(no harm needed)
2. Non Family members who are present and suffer bodily harm
2. Conduct by D was Extreme and Outrageous
a. Wilkinson v. Downton – D lied and told P that her husband had been injured in a
car wreck. This was IIED bc it was extreme and outrageous reckless conduct.
b. Words are not enough (unless he knew how sensitive P was)
i. Has to be beyond mean or hurtful
3. P suffered severe emotional distress
a. Normally need to show that medical aid was required
b. D’s conduct must be such that a reasonable person would suffer such distress
c. Court can take into account relationship bw P and D
i. If D is aware that P is sensible it will definitely be IIED
d. Bodily harm is a good indicator of severe emotional distress
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4. For a 3rd person, the actor is subject to liability for emotion distress to:
a. Member of immediate family who is present
b. Any other person who is present, if such distress results in bodily harm
5. Dead bodies are often treated as a different standard than common law, specifically
mishandling of corpses
a. Often treated as obvious case for NIED, IIED
iv. Common Carriers and Public Utilities are held to a stricter standard
f. TRESPASS TO LAND
i. Definition:
1. One is subject to trespass, regardless of whether he causes harm to anything, if he
intentionally:
a. Enters land of another, or causes a thing or a 3rd person to enter the land; OR
i. Thing can be anything (particles, gases)
ii. Dougherty v. Stepp – D went on land to survey the land. This was
trespass bc he was on the land even though he didn’t damage or harm
anything
b. Remains on the land without right to be there; OR
c. Fails to Remove from the land a thing which he is under a duty to remove
2. Intent
a. You just have to voluntary be on the land, it doesn’t matter if you are just a
completely innocent person or were mistaken about anything
i. D cannot induce you on the land
ii. D is liable for all consequences of trespass no matter how foreseeable
iii. Only possessor or wrongful possessor of land can bring suit
g. TRESPASS TO CHATTELS
i. Definition
1. Committed when one Intentionally:
a. Disposses another of his chattel
i. Doesn’t matter how long or short the dispossession is
b. Uses or intermeddles with a chattel of another
i. Occurs only when harm is done to the chattel (unlike trespass to land)
ii. Harm must be done to a computer or data to get trespass to chattel
1. Intel Corp. v. Hamidi – D, former employee, sent emails
criticizing Intel to company through company emails. No
trespass to chattels bc did not damage or impair computers
ii. Mistake is not a defense to ownership
iii. Only possessor, wrongful possessor with reasonable claim, and owner can bring suit
h. CONVERSION
i. Definition: Rest. 2nd §222
1. Is an intentional exercise of dominion or control over a chattel that D so substantially
interferes with the P’s possession or ownership of property that it is fair to require the D
to pay the property’s full value.
a. Mistake is not an excuse
b. Use conversion when property has been substantially damaged, lost, or you are
seeking replacement bc object is no longer useful to u (toothbrush)
2. Factors used to determining seriousness of interference and justice of paying full value:
a. The extent and duration of D’s control
b. D’s intent to assert a right in fact inconsistent with P’s right to control
c. D’s good or bad faith
d. The extend and duration of the resulting interference with the other’s right of
control
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i.
j.
e. The harm done to the chattel
f. The inconvenience and expense caused by D to P
ii. Poggi v. Scott – D sold barrels of wine, which D did not know whose or what was in them, belong
to P to a 3rd party. It was conversion bc he sold P’s property, it doesn’t matter if it was innocent.
iii. Moore v. University of Cal. – P had spleen removed but had a unique blood so D took his blood
and got a valuable patent using the blood. No conversion bc you do not own organs that are
removed from you.
1. Turley wasn’t happy with this!
INTENTIONAL NUISANCE (Defamation is also a hybrid tort)
i. Definition: Rest. 2nd §822
1. You are guilty of private nuisance if you cause an invasion of another’s interest in the
private use and enjoyment of land, and the invasion is either:
a. Intentional and unreasonable; OR
i. Intentional here is (1) purpose of causing interference or (2) knows that
it will result with substantial certainty
b. Unintentional, but reckless or negligent
DEFENSES TO INTENTIONAL TORTS
i. Basics
1. Insanity is not a defense
2. Mistake of facts is normally not a defense; however, it might be able to get you into one
of the specific privilege defenses (self-defense)
ii. Consent
1. If the P gave D consent to an intentional interference with P’s person or property, D will
not be liable for that interference
a. Court can always override consent for public policy reasons
2. Types of consent
a. Express consent
b. Implied consent
i. Inferred from P’s conduct, custom (customary for P to consent to
certain actions by D), or circumstances
1. Test is whether a reasonable person in the position of the D
would believe that the P had consented to the invasion of
interests; Objective manifestion
ii. You can tell others that you consent without actually telling D
c. Informed Consent
i. Consent forms by doctors
1. These are only as good as their clarity and fairness… if
unconscionable they will be overturned
d. Invalid Consents
i. Mistake
1. If P consented but D knew he was mistaken about some fact of
the transaction
a. If D did not know about P’s mistake, this would be valid
consent
2. If D induced P’s mistake this would not be valid consent
ii. Criminal Acts
1. If D’s act against P is a criminal act, P’s consent is not valid
2. Legislature determines that even express consent is not valid for
a criminal act to protect a class of persons against their own
poor judgement
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a. Hudson v. Craft – P was hurt in a boxing match, put on
by D without a license. D was guilty of battery even
though P consented to fight bc fight was illegal
iii. Coercion/Fraud
1. Consent is invalid
iv. Lack of Capacity
1. If P is a child, intoxicated, or unconscious he can’t give consent
a. Exception is if P is :
i. Incapacitated
ii. Immediate action is necessary for his life
(emergency situation)
iii. No indication that he would not consent if able
to
iv. A reasonable person would consent
b. Substitute consent exception:
i. A guardian/parent of a minor/incompetent can
give consent on behalf of the minor/incompet.
ii. However, if a guardian/parent refuses to
consent to medical care to save the child, a
court order can be used to overrule parents
v. Inadequately informed of risks
1. If doctor(D) had failed purposely to tell you the probability or
existence of risks, P’s consent to surgery would be invalid
iii. Privilege of Self-Defense
1. Definition
a. A person is entitled to use reasonable force to prevent any threatened harmful
or offensive bodily contact, and any threatened confinement or imprisonment
2. Reasonable belief of threat
a. If you reasonably believe that there is a real threat of harm, even if you are
mistaken, you can use self-defense
i. You can’t just be a sensitive person
ii. Courvoisier v. Raymond – D shot at police thinking he was a rioter about
to shoot him. Belief just has to be reasonable, not correct that he is in
danger.
3. Imminent Harm
a. Harm must be imminent not future
b. You cannot retaliate and claim your self-defense the next day
4. Proportionate force
a. Can only use a degree of force necessary for protection and no more
b. Deadly force
i. You cannot use deadly force unless you reasonable belive you are in
danger of death or serious bodily harm
ii. Deadly force can be used to prevent most felonies
5. Retreating
a. Jurisdictions vary on whether you have to retreat if it is a safe option
i. General duty to retreat before using deadly force
rd
6. Injury to 3 party
a. If you have privilege of s-d, you can accidentally hurt an innocent bystander as
long as you were not negligent
iv. Privilege of Defense of Others
1. Definition
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a. You can use reasonable force to defend another person if you reasonably
believe that it is necessary to save that person and you reasonably believe that
person could use self-defense in their situation
2. Reasonableness
a. Belief just has to be reasonable, even if you are mistaken and the other person
was not in danger
3. Proportionate
a. Must be proportionate degree of force
v. Defense of Property
1. Definition
a. You can defend property if you reasonably believe it is necessary to protect your
property
2. Force
a. You can only use a degree of force that is necessary to protect property
i. Molliter manus imposuit (laying gentle hands upon)
b. You cannot use deadly force to protect property unless there is a statute
allowing it
3. Reasonable mistake
a. Reasonable mistake that force is necessary is ok
b. Reasonable mistake as to intruder’s privilege to be there is not ok
4. Mechanical devices/spring guns
a. You can use these only if you would be privileged to use a similar degree of
force if you were present and acting yourself
b. You cannot use devices designed to intentionally inflict injury to all w/o notice
i. Bird v. Holbrook – P was shot w/ spring gun installed in D’s garden when
P went to retrieve something for a lady. D was liable bc he did not give
warning and the gun can’t distinguish bw friend or foe
5. Force to recover property
a. More limited than defense of property, but you can use reasonable force to,
never deadly, to recapture your property if it was wrongfully recently taken
i. Must be reasonable time and manner to get it back
b. Reasonable mistakes are not an excuse
i. Kirby v. Foster – P kept money given to him by D bc he was owed
money, and D forcibly recovered it. You cannot recover property by
force if the other has a valid claim of right to the property
vi. Privilege of Necessity
1. Private Necessity
a. Any person can prevent injury to himself, to his property, or to person or
property of a 3rd person, by injuring private property if there is no other way to
prevent harm
i. If D damages the property, D must pay for the damages
ii. Owner of property has no right to use reasonable force to resist
1. Ploof v. Putnam – P moored his boat to D’s dock to avoid
damage from a storm, but D unmoored the boat and injuries to
P and his boat occurred. P had a privilege of necessity bc storm
2. Vincent v. Lake Erie Trans Co. – D moored his boat out of
necessity to P’s dock, but caused damage to dock. D must pay
for those damages caused
2. Public Necessity
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a. Exists wherever interference with the property of another is necessary, or
reasonably appears necessary, to prevent a disaster to the community or a lot
of people
i. D does not have to repay P, but normally govn’t is the D and they will
normally pay for damages
vii. Statutory Defense
1. Castle Doctrine
a. You can use deadly force inside your dwelling and there is no need to retreat
2. Make My Day Law
a. You can use deadly force on someone who enters your property/curtallage
3. Make My Day Better
a. You can use deadly force against someone who enters your car or business
VI.
NEGLIGENCE
a. Definition:
i. Conduct falling below the standard established by law for the protection of others against
unreasonable risk of harm
1. An objective test (reasonable)
2. Speech or other communication can be negligent if it is misrepresenting to P
b. History of Negligence and Strict Liability
i. England took a strict liability approach and U.S. took a negligence approach
ii. Rylands v. Fletcher (1868) – D built reservoir on his land unaware of P’s mind shafts below it. D’s
reservoir burst and flooded P’s mine shaft
1. A person who for his own purposes keeps on his land anything likely to do harm if it
escapes, must keep it in at his peril, and if he does not do so, is strictly liable for all the
damage which is the natural consequences of its escape
2. D must stop at the natural use of their land
3. Duncan Kennedy was trying to keep the classes separated and didn’t want new money
joining the upper class
iii. Posner says negligence is the best standard because Strict Liability
1. Forces cost internalization
2. Forces out those activities with greater costs than benefits
iv. Brown v. Collins (1873) U.S. case – horse startles and breaks lamppost
1. U.S. took negligence standard and said D not liable bc he took reasonable care
2. If U.S would have taken on strict liability the Industrial revolution wouldn’t have been as
successful and would have been drastically inhibited
a. Industries were very dangerous and workers/other people got hurt all the time
v. Powell v. Fall – sparks from steam engine cause fire on P’s property
1. This is where negligence per se was developed and meeting the statute requirements is
not a defense for liability. Sometimes you must go beyond that and do what is
reasonable
vi. Holmes, The Common Law – he talks about the necessity of an objective reasonableness
standard and why we need to adopt negligence
vii. Bolton v. Stone – P hit by cricket ball from cricket ground close to public road.
1. D not negligent bc the risk of harm was so slight and the expense of reducing risk was
great.
2. We do not impose strict liability for sports teams bc they are afraid that it will
internalize costs and teams will go out of business bc tickets are so high
viii. Hammontree v. Jenner – D had an epileptic seizure while driving and crashed into a store
1. Negligence was applied and found D not negligent bc he took proper precautions w/
medicine to avoid this type of thing. This should not be strict liability
ix. Strict Liability
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1. Reduces litigation
2. Is a bright line rule
3. Gives the party the opportunity to avoid the risks
a. It is up to the produce or actor to decide if the risk is worth it
c. Elements of Negligence: Rest. 2nd 281
i. D owed P a legal duty to conduct himself to certain standards
ii. Failure by D to conform his conduct to this standard of duty
iii. D’s failure to act with reasonable care was the cause in fact in jury to P
1. “but for” causation (Factual Causation)
iv. There is a sufficiently close connection b/w D’s act of negligence and the harm suffered by P to
justify holding D liable. Proximate cause (Legal Cause)
v. P suffered actual damage
d. THE REASONABLE PERSON (Showing jury how a reasonable man under same circumstances would act)
i. Would a reasonable person under the circumstances behave the same way
1. Personal Circumstances
a. Physical characteristics of D are taken into account
i. A reasonable blind/amputee person
1. Fletcher v. City of Aberdeen – Blind man fell in hole
2. Robinson v. Pioche – drunken man entitled to a safe street too
b. Mental characteristics of D are not taken into account
i. D is stupid, hot-tempered, careless, or older than the reasonable person
1. Vaughan v. Menlove – D built haystack near P’s property and
said he would chance risk of fire despite P’s warnings. D is
negligent bc he didn’t do what a reasonable person would have
even though D is dumb
2. Roberts v. Ring – old man hit 7 yr old with car and was negligent
bc he didn’t meet the standard of car of a reasonable adult
c. Insanity or mental deficiency is not an exception to negligence unless it is
sudden and hasn’t been experienced before (Grey area if it has been in
remission for a long time)
i. Breunig v. American Family Ins. Co. – goes crazy while driving
d. Intoxicated people are held to standard of conduct of reasonable sober person
e. Children are held to a reasonable standard of a person with the same age,
intelligence, and experience (A child can be liable for intentional tort regardless
of age)
i. If activity characteristically undertaken by adults he will be held to
standard of a reasonable adult
1. Daniels v. Evans – kid driving car was held to same standard of
care as an adult when engaging in a dangerous adult activity
ii. < 4/7yr – incapable of negligence
iii. 4/7 – 11 yrs – presumed to not be negligent/capable
iv. 11 – 14 yrs – presumed to be negligent
v. > 14 yrs – are capable
vi. You can always rebuttal these ages
2. Knowledge of reasonable person
a. Ordinary experience of a reasonable person
i. Strangers are held to same standard as people living in community
ii. Held to same memory as ordinary person
b. Duty to investigate if a reasonable person would think something is wrong
3. Customs in trade or community can be looked at but are not conclusive
a. Medical Physicians
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i. Majority = reasonable person acts with customary practice of
reasonably well-qualified practitioners, licensed or not.
ii. Minority = reasonable person acts with customary practice of
reasonably well-qualified practitioner and according to the local
conditions (they might not have the best equipment possible)
4. An emergency circumstance will be taken into account and D will not be held to a high
standard of someone not in an emergency situation
a. You can’t cause the emergency though
5. You have to reasonably anticipate conduct of others (negligent children, etc)
a. You can assume that people will not commit crimes or intentional torts
i. An exception is when you have a special relationship (dr.,landlord)
e. CALCULUS OF RISK
i. D’s conduct imposed an unreasonable risk of harm to the P
1. D’s conduct must be viewed as of the time it occurred, without hindsight
a. Take a snapshot right before the accident
2. Tests used to determine if reasonable care was used
a. Cheapest Cost Avoider
i. Who can avoid the injury at the cheapest cost
1. Normally the person who has more knowledge of the type or
specific situations
b. Learned Hand Formula “ B > P*L”
i. B > P*L = Not negligent, B < P*L = negligent
1. B = burden/cost of D to take adequate precautions to avoid
injury
2. P = Probability of injury occurring (objectively, not what actor
thinks
3. L = Loss/Injury/Cost of Injury to P
ii. Criticism that it doesn’t take into account if Plaintiff was contributory
negligent, but it makes everything very economically efficient
iii. U.S. v. Carrol Towing Co. – D did not have an employee on board a
barge that was tied with other barges and rope broke and loose barge
caused damages. The B was low to keep someone on duty, and the P
and L were high; thus, negligent
3. Blyth v. Birmingham Water Works – D put in water pipes for 25 yrs w/o problems then 1
yr it is super cold and pipe freezes and causes damage. A reasonable man does not have
to consider extraordinary circumstances in planning his conduct to act w/o negligence
4. Eckert v. Long Island R.R. – P ran out on tracks to save child and was killed by train
instead. Voluntarily saving a child’s life, unless reckless, is not negligent bc a
reasonable person would try to save a life
a. To determine contributory negligence you do the same analysis just flip parties
5. Osborne v. Montgomery – D didn’t look and opened car door hitting a bicyclist. To
determine negligence, his conduct is measured against the actions taken by the
majority of individuals under the same or similar circumstances.
6. Cooley v. Public Service Co. – D’s phone wire snapped and P claims to suffer emotional
damage. If more than one group of people may be injured and no method exists to
protect both, the most severe risk needs to be protected
7. Andrews v. United Airlines – Bag falls from overhead compartment and injures P.
Common carriers are held to a higher standard of reasonable care and they have to
prove that measures to prevent injury were unavailable or cost-prohibitive
f. CUSTOMS AND STANDARD OF CARE
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i. Customs can be looked at but are not conclusive/controlling and be careful bc judge might
instruct jury that customs cannot prove reasonableness (never say the custom is)
1. Often presented by expert witness, but introducing custom often comes with a set of
jury instructions that downplay the persuasiveness of custom
2. TJ Hopper – tugboats lost cargo bc of storm and did not know of storm bc they didn’t
have new radios. Industry custom does not always establish reasonable conduct, when
new tech/methodologies are available and accessible.
a. Look to Hand Formula instead of custom!!!
3. Mayhew v. Sullivan Mining Co. – Man fell down warningless hole in mine. Conforming
to customary/average conduct of industry does not mean the conduct is not negligent
ii. Medical Malpractice with customs
1. Locality rule for doctors has almost entirely been eliminated except for equipment
standards at certain hospitals
2. Professionals must act with the level of skill and learning commonly possessed by
members of the profession in good standing.
i. Used to be able to argue that in this location this is how we always do it,
but this no longer applies due to National standards
b. Specialists will be held to a higher standard
c. Need expert testimony to show D’s negligence in the profession
3. Physicians have a duty to disclose to patients all information that a reasonable doctor
would disclose to enable patient to give informed consent
a. Exception is if patient is unconscious and procedure is necessary to save him
b. If severe injury/death may result, this must be disclosed
c. This duty includes making sure that patient understands information
i. Canterbury v. Spence – P had surgery fell off table and was paralyzed. D
was negligent bc he never told of risk of paralysis
ii. Lama v. Borras – prescribing treatment more radical than ordinarily is
advised by other doctors is a breach of duty of care.
d. Customs that are unreasonable should be disregarded
i. Helling v. Carey – Hand formula used to show that giving glaucoma test
was such a ridiculously low cost (B) that they were negligent
4. If you hold yourself to be a licensed profession, even though you don’t have a license,
you are still held at the reasonable professional’s standard of care Brown v. Shyne
g. NEGLIGENCE PER SE
i. Definition
1. When a safety statute that has close application to the facts of the case, an unexcused
violation of that statute is negligence per se; jury can skip calculus of risk
a. You don’t stop here this is just a bridge over reasonable person/calculus of risk
ii. Elements of negligence per se
1. D violated a statute
a. If you can’t prove the rest of elements this is still evidence of negligence
i. Martin v. Herzog – P driving w/o lights at night violating statute collides
w/ D , but P is killed. Merely violating a statute does not get negligence
2. The statute was designed to protect against the same type of accident that D’s conduct
caused
a. Gorris v. Scott – P’s sheep jump overboard when storm hits and statute says
sheep must be in cages. Purpose of statute was to prevent sheep from getting
disease; thus, not negligence per se
3. The victim (P) falls w/in the class of persons the statue was designed to protect
iii. Excuse of Violation
1. Excused bc of D’s disability
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2. D exercised reasonable care in attempting to comply w/ statute but was unsuccessful
3. Excused if he avoided a greater risk of harm to the actor
4. Contributory negligence of P
iv. A causal connection between negligence per se and the injury must be shown and a private of
action cannot be brought if it is prohibited by legislature in statute
1. Uhr v. East Greenbush Sch. – scoliosis girl can’t bring it bc statute forbids it
a. Fill gaps in legislation (Easterbrook(don’t fill it so nobody gets benefit of a deal
they didn’t make) and Macy(fill it make congress change it))
v. Dram Shop Statutes
1. All of these statutes have one thing in common: A bar who over serves a customer can
be liable for the customer’s actions if they should have known that the person was
intoxicated
a. These are mostly for the 3rd party that is injured to sue the bar
2. Debate as to whether this includes social hosts
a. Most of these are used for underage drinking
b. Use for being grossly negligent like putting keys in ignition for them
3. Most of these cases are just heard under regular negligence instead of dram shops
4. Business avoid dram shop liability by:
a. Limit how many drinks they can have
b. Transportation to and from
c. Cash bar
d. Bar that shuts down 2 hours before it ends
e. Have management present
vi. Feres Doctrine
1. Federal Torts Claims Act
a. US waives sovereign immunity with the exception that military personal cannot
sue for combat related things
2. Supreme Court interpreted this act (Judicial activism/gap filling) that military personal
cannot sue the government even in peace time bc for the military to work in combat it
should be regulated all the time, even in times of peace
a. The FTCA doesn’t say this, but it was interpreted this way be the courts
h. Judge and Jury
i. Torts is a jury driven field
1. Questions of fact decided by juries get significant deference by court of appeals
a. Court of appeals normally trusts the trial court’s rulings on fact
2. Findings of law by the judge are much easier to overturn – no deference
a. De novo
3. Mixed legal/factual questions
a. Most circuits will give de novo review, treating them solely as questions of law
i. Court of appeals will look at these
ii. Judge can restrict evidence that a jury may hear
1. Very controversial – socio-biological theory
2. Judges will not allow testimony that gives validation to prejudices (race/religion)
iii. Juries have the power of jury nullification (find him innocent regardless of guilty evidence)
1. You cannot make jury nullification argument
i. (RES IPSA LOQUITOR) Proof of Negligence
i. Definition:
1. The action speaks for itself, prove negligence when the evidence is not available
a. Res Ipsa Loquitor is NOT factual causation
b. It proves negligence in reasonableness and must do a separate causation
analysis
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j.
ii. Requirements for Res Ipsa Loquitor: Need all of them
1. Must be no direct evidence of D’s conduct in connection to the event
2. Event is the kind which ordinarily doesn’t occur without negligence
3. The instrument which caused injury was in D’s exclusive control unless nondelegable
a. Other responsible causes were eliminated by evidence
4. P must not have contributed to the injury at all
a. Act of D were the most probable cause of injury
5. Optional one where D is more accessible to the evidence
iii. Byrne v. Boadle – barrel of flour fell from D’s business and injured P. Even though there is no
evidence that D is negligent, it is probable that D was negligent and D has better access to
evidence concerning the issue so he can defend it.
iv. Grenade maker case – Court said it’s true the grenade wasn’t in your exclusive control, but the
firing mechanism was within your exclusive control bc it was concealed in your product
v. Colmenares Vivas v. Sun Alliance Ins. Co. – An escalator handrail stopped and P fell and was
injured. D contracted with 3rd party to service or maintain it.
1. Areas where public is allowed are non-delegable and thus even though D did not have
exclusive control he was still resipsa negligent bc it was a non-delegable duty
a. Non-delegables include common carriers, immediate agents, public grounds
b. Independent contractors do not free employer liability
vi. Ybarra v. Spangard – P awoke from appendix surgery w/ pain in shoulder. P sued all doctors,
nurses, and hospital under Res Ipsa Loquitor
1. If D is unconscious he can invoke res ipsa loquitor on as many defendants as he wants
a. Will help eliminate the Conspiracy of Silence where a defendants stick up for
each other and nobody talks. This will make them talk
vii. Conditional Res Ipsa Loquitor – the jury first decides how the accident occurred and if it finds
that the accident occurred in a manner which fits into res ipsa, then it can consider res ipsa
CAUSATION
i. Introduction: Need Both Cause-in-Fact and Proximate Causation for Negligence
1. Cause-In-Fact/Factual Causation – “But for” Test
a. First must show that but for D’s negligent act, the injury wouldn’t have occurred
b. Sounds similar to res ipsa but is different
i. Can potentially be unreasonable claim under res ipsa but not under
causation (sponge left in stomach is not causation of cancer)
2. Proximate Cause (Legal Cause)
a. Second, must show that the injury is sufficiently closely related to D’s conduct
that liability should attach
b. Two different approaches
i. Forward Looking Approach (Wagon Mound)
1. Was chain of events reasonably foreseeable?
2. Judgment made from standpoint of D at time of act
3. Denies recovery of harms not w/in the risk
ii. Backward Looking Approach (Polemis)
1. Was there a superceding/intervening cause?
a. Looking for a 3rd party act to sever link between D and P
ii. Cause-in-Fact/Factual Causation
1. P’s injuries would not have resulted without a actual, factual result of D’s conduct
a. Injury would not have happened “but for” D’s conduct
b. Involves speculating about events that never happened
2. Plaintiff normally bears the burden of proof for actual cause (Except in double faults)
a. Speculative but for causation is not enough to show negligence
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i. N.Y. Central R.R. v. Grimstad – P falls off D’s boat and there are no
lifesavors on boat so P drowns. Court says its speculative to determine
what the outcome would have been with preservers on the boat
b. Have to show that it is probable (more likely than not) that the injury would not
have occurred without the defendant’s act (a substantial factor)
i. Expert witnesses can be used to show cause in fact
1. Zuchowicz v. U.S. – D instructed P to take twice the maximum
dosage she gets extremely sick and dies. Expert witnesses were
used to prove that overdose was a likely cause of sickness
ii. Scientific Evidence/witnesses can be scrutinized by the court
1. GE v. Joiner – a smoker sued GE for lung cancer bc during his
work he was exposed to PCBs which were responsible for
cancer
a. Two standard for scientific/expert evidence
b. Frye Standard – only generally accepted scientific
theories can be presented to the jury
c. Daubert Standard – doesn’t need to be generally
accepted but must be scientific knowledge, but judge
can use discretion to prevent “bad science” from being
heard
i. Court is gatekeeper and decides whether
evidence is relevant or not
ii. Pro-judge theory – giving him ability to kill
evidence
iii. This is what the court here used
d. 2 part test: (1) D’s negligence increased the chances of
injury, and (2) injury actually occurs  factual causation
iii. Prove causation in fact when you show that you(1) increased the risk of
the injury happening and(2) the injury happens – Some courts allow
recovery even without injury happening
1. Herskovits v. Group Health Cooperative – P diagnosed w/ cancer
late and chance of survival decreased. P died
a. Lost Chance Rule – ‘but for’ D’s act he would have had a
better survival chance, not ‘but for’ D’s act he would
have survived.
i. Majority is loss of any chance is good
ii. Minority is that if you are already below 50% it
doesn’t matter
3. Concurrent causes/ Joint Liability
a. Single indivisible harm from 2 different people
i. Each of two events is a cause of the injury if either one would have
been sufficient to cause the same injury without the other
1. If it was a substantial factor in bring about the harm it is a cause
in fact
2. Kingston v. Chicago – 2 fires one caused by D and one of
unknown origin combine to create one fire that destroys P’s
land. Chicago was liable for all damages
3. If you can only identify one tortfeasor he is liable for all
damages and if you can identify all tortfeasors, the damages are
apportioned appropriately
b. Divisible harms
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i. 2 parties acting simultaneously negligent can both be found liable even
though only one of them caused the harm bc they cannot prove who in
fact caused the harm between them. Purden of Proof shifts to Ds
1. Summers v. Tice – Both Ds shot in P’s direction and P was hurt.
Both parties are liable bc cannot determine who actually caused
the injury.
4. Market Share Liability
a. Where P can only identify product by type, not brand name the court may order
Ds to pay percentage of Ps injuries which the Ds sales of the product bore to the
total market sales of that type of product
i. In some states D can prove out in most he cannot
ii. Some states apply a regional/state market share liability and others
apply national market share
iii. No joint-and-several liability meaning that D will only pay what his
market share of damage was even if the other companies no longer
exist
b. Sindell – DES caused birth defects and most products were chemically identical
and it was impossible to find out which product mom used
i. All companies were held liable
c. Skipworth v. Lead Industries Association – P was exposed to lead-based paint
and was injured and the home was 120 yrs old and impossible to tell where the
paint came from. Ds were not guilty
i. Elements needed
1. All named Ds are potential tortfeasors
2. Harmful products are identical and share the same defective
qualities (Fungible products)
3. P is unable to identify which D caused her injury through no
fault of her own
4. Substantially all the manufacturers that made the product
during the relevant time are named as Ds
d. Enterprise Liability – similar but a sector of industry responsible through
cooperation for a tort is identified, and all neglected to mitigate injury
i. Joint-and-several liability applies
iii. Proximate Cause/ Legal Cause
1. In General
a. Proximate/Legal Cause determines whether someone who behaves negligently
should be liable for improbable or far-reaching consequences
i. Ryan v. N.Y. Central R.R. – D set fire to his property and houses 130
yards away burned down.
1. You are not liable when the resulting harm is too remote to be
an ordinary and natural result of D’s negligent act
b. This has become so much bigger than duty analysis
2. Two Types of Tests for Legal Cause
a. Forward looking narrow approach (Foreseeability) Wagon Mound
i. D is only liable for consequences which were reasonably foreseeable at
the time he acted
ii. Wagon Mound (Unforeseeable harm) – ship (D) spills oil, carried by tide
to P’s wharf, P was told it is not flammable, welding causes wharf to
burn down
1. D was not liable bc injury was not reasonably foreseeable in
that no one knew oil in water was flammable
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iii. Palsgraf v. Long Island R.R.(Unforeseeable plaintiffs) – Man tries to
board train, 2 employees help, and man drops package which explodes
injuring P standing far away
1. Cardozo Opinion - D is liable to all Ps “within the reasonably
foreseeable zone of danger
a. If P is not in zone of danger, he cannot recover bc he is
an unforeseeable plaintiff
b. Backward looking broad approach (Direct Causation) In Re Polemis
i. D is liable for all consequences, no matter how far-fetched or
unforeseeable, so long as they flowed directly from D’s act and not
from an independent new cause
ii. In Re Polemis Unforeseeable harm) – (P) charter boat hired negligent
workers (D) who dropped a board and caused boat to explode.
1. D was liable bc there was a direct link between the act of
negligence and the injury, even though unforeseeable
iii. Palsgraf v. Long Island R.R. .(Unforeseeable plaintiffs)
1. Andrews Dissent: D is liable to anyone who actually gets injured
from the negligent act regardless of whether they were in the
zone of danger
a. D has a duty of due care to protect society from
unnecessary danger and is liable if he played a
substantial causal connection to injury
3. Exceptions to foreseeability approach and direct causation approach
a. Egg-Shell Skull
i. Once P suffers a foreseeable injury, D is liable for any additional
unforeseen physical consequences (providing no intervening causes)
b. Rescuers
i. If D negligently injures someone, he is also liable for a negligence
against the victim’s rescuer
1. Wagner v. International Ry. – P and cousin were on train and
cousin fell out. P tried to rescue his cousin but was injured
a. It is reasonably foreseeable someone would come to aid
an endangered person; thus D liable for legal cause
ii. Firefighter’s rule is an exception bc it limits liability while in the line of
duty
c. Courts can expand and contract foreseeability
i. Remotely foreseeable or foreseeable but highly unlikely sometimes ok
1. Virden v. Betts – D negligently installed ceiling, P fell from
ladder while repairing it
a. P’s own acts can be superseding if his acts are not w/in
the scope of the hazard created by D
2. Herbert v. Enos – D negligently leaves toilet leaking, P uses hose
to water plants and is shocked
a. Injury was not foreseeable
b. Foreseeability is where you should have anticipated this
and probability has to do with reasonableness test
ii. Continuum from loosest to strictest Herbert VirdenPolemis
d. Harm suffered by P was of the same general sort that made the D’s conduct
negligent, it is irrelevant that this harm occurred in an unusual manner
i. If risk of explosion is foreseeable, it doesn’t matter how it explodes
e. Plaintiff just has to be a part of the foreseeable class
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i. Similar to above: If risk of hitting coworkers on the head is foreseeable,
it doesn’t matter that P got hit on the head and was not a coworker
4. Intervening/Superceeding Causes
a. Intervening cause is a force which takes effect after D’s negligence, and which
contributes to that negligence in producing P’s injury
i. Superseding causes are intervening causes that cancel D’s liability
b. Rule: if D should have foreseen the possibility that the intervening cause might
occur, or if the kind of harm suffered by P was foreseeable, D will be legal cause
i. If intervening cause and injury were not foreseeable, the intervening
cause will be superseding and D will not be liable
ii. The Risk of harm due to the intervening cause was increased by the D’s
conduct
iii. Marshall v. Nugent – A truck and P almost collided but swerved aside. P
got out to warn oncoming traffic and a car came and swerved around
the truck and hit P
1. P’s injury was not remote, either in time or place from D’s
negligence, and D is liable
2. A negligent act can give rise to situations that create additional
risks and render the wrongdoer liable for injuries that could not
be foreseen (intervening cause was foreseeable)
c. Acts of God
i. Intervening acts of God are normally superseding unless the act of god
merely produces the same result as was threatened by D’s negligence
1. General rule is that D is liable for cases of “unforeseen
intervening causes but foreseeable results”
a. Berry v. Sugar Notch Borough – P was speeding and a
tree of D’s fell on him
i. P’s speeding was not the cause of the accident
injury, it was D’s negligence was foreseeable
even though wind blew tree over
rd
d. Negligence of 3 persons can be foreseeable sometimes
i. Dram Shop Acts – Statutes that make commercial sellers of liquor liable
for accidents of 3rd parties that occur if they have served a person who
they should have realized was already intoxicated
1. Sometimes statute isn’t even needed
e. Criminal or intentionally tortious conduct of 3rd party is normally determined to
be a superseding cause
i. Brower v. New York Central – D’s train collided w/ P’s wagon, thieves
stole all P’s goods
1. Criminal acts are presumptively superseding causes but if you
leave someone disabled, you are responsible for foreseeable
consequence
f. If intervening causes were normal consequences of D’s conduct, whether
foreseeable or not they are not superseding
i. Rescue, Escape from harm, Aggravation of harm by responses such as
attempted medical treatment, and actions taken under emotional
disturbance
5. Negligent Infliction of Emotional Distress
a. It must always be reasonably foreseeable that the act may cause emotional
distress for the P (Parasitic Tort-occurs bc of another tort)
b. Old Rules : Impact/Danger Zone Rule
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i. Impact Rule: No NIED if there no impact resulting in physical injury
ii. Zone of Danger Rule: If you weren’t physically injured you could
recover, if you were in the zone of danger
1. Mitchell v. Rochester Railway – pregnant woman miscarries
after horse scares her on sidewalk
c. Dillon Rule
i. To get NIED you must
1. Contemporaneously perceive accident
a. Witness accident and distress results from this
witnessing
2. Be a close family member
a. 3rd party may recover if physical contact/impact
3. (some courts require emotional distress to lead to physical
injury)
ii. Dillon v. Legg – Mom and daughter see sister killed by car. Both prevail
1. Eliminated the impact rule and zone of danger rule
k. AFFIRMATIVE DUTIES
i. Definition
1. Duty of behaving towards P with the degree of care that a reasonable person would
exercise in like circumstances.
ii. Duty to Rescue
1. General Rule is that unless you have a special relationship with P, you don’t have to
rescue him; exception if you cause the risk/injury
a. Criticism
i. Feminists (Bender) – this rule is impact of male dominated society
1. Rejects an individual’s collective responsibility
ii. Posner (economics) – should have duty to rescue
1. Rule is inefficient as it causes huge social loss and prevents
people from using info/ability to gain wealth especially from low
cost rescues. (People could pay a lot to be saved)
2. Requiring rescue would be efficient for society
b. Hurley v. Eddingfield – (D) a physician refused to treat patient (P) who died
i. A Dr. has no legal duty to rescue/provide treatment to all who request it
c. Yania v. Bigan – D dared P to jump into water and once in water P could not get
out and D did nothing
i. D had no duty to rescue P who jumped in water bc of a dare
ii. If he was the cause of him falling in there he would have to rescue
2. D will have a duty to warn and assist if the danger/injury is due to her own conduct
regardless if it is tortious or not, or to an instrument under her control
a. Montgomery v. Nat’l Convoy & Trucking Co. – D’s truck stalled blocking road at
bottom of icy hill, P’s care collided w/ truck and P was injured
i. D had a duty to warn P in a manner reasonably calculated to prevent
harm or neutralize danger he created
3. Good Samaritan Rules:
a. If D voluntarily begins to render assistance, she must proceed with reasonable
care and she may not discontinue her aid, leaving P worse off than if left alone
i. Courts give some protection to people who come to other’s aid, but
they will not extend this protection to gross negligence
iii. Owners and Occupiers
1. General Rule
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a. Owner should exercise reasonable care to prevent an unreasonable risk of
harm, this includes preventing the activities of any person on her property if
they know there is a danger to outsiders
b. Normally only have to warn about artificial conditions not natural conditions of
land
2. Trespassers
a. General Rule: Owner owes no duty to a trespasser, including duty to warn of
artificial dangerous conditions
i. People invited can become trespassers if they fail to stay within the
scope of the area
b. Exceptions:
i. Discovered/Anticipated Trespassers
1. Owner has a duty to warn them of any known artificial
dangerous conditions of the land that could potentially cause
death or serious bodily harm
a. Do not have to warn of natural conditions
ii. Attractive Nuisance
1. Owner has a complete duty to warn and prevent child
trespassers if:
a. Owner know children are likely to trespass
b. Owner know artificial condition poses an unreasonable
risk of serious injury or death to children
c. Bc of youth, child cannot realize the danger posed
d. Benefit to owner is slight vs. risk to child
e. Owner failed to use reasonable care to eliminate the
danger to protect the children
iii. Adverse Possession
1. If you fail to exclude others from your property for many years,
they can claim ownership by adverse possession (right to own)
iv. Easement
1. If you let people use your property, they can develop a legal
claim to the use (Right to walk through path)
c. Robert Addie v. Dumbreck – child trespassed and was injured even though D put
up signs saying not to trespass. D was not liable
i. Implicit permission to stay may negate trespass status
3. Licensees
a. Licensee – a person who has the owner’s consent to be on the property, but
who does not have a business purpose for being there, or anything else entitling
him to be on the land apart from owner’s consent (Social Guest)
b. General Rule: Must exercise reasonable care toward licensee and
i. Duty to warn of known hidden dangers, including natural conditions
1. If danger is open and obvious he does not have to warn
2. He does not have to fix defective condition just warn
ii. No duty to inspect premises for dangers, just warn of known dangers
c. Firemen’s Rule: Firemen/Police are mostly treated as licensees; therefore, you
have a duty to warn of known dangers if you are there bc u didn’t invite them
i. Some states treat them as invitees
ii. Some you can recover negligence if it was misrepresentation of the
owner that caused firefighters injury
iii. Some only allow lawsuits for negligence
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d. Rowland v. Christian – P a social guest was injured on broken faucet when she
was not warned of its dangerous conditions
i. D was liable bc P was a licensee and D did not warn of known concealed
dangers
4. Invitees
a. Invitee is generally defined as a public invitee or a business visitor
i. Public invitee – person who is invited to enter or remain on land as a
member of the public for a purpose for which the land is held open to
the public
ii. Business visitor – person who is invited to enter or remain on land for a
purpose directly or indirectly connected with business dealings with the
possessor of the land
b. General Rule: Must exercise reasonable care toward invitee and
i. Duty to inspect premises for hidden dangers and make reasonably safe
ii. Duty to remedy these dangers or to warn and make sure injury does not
occur
1. Must even inspect, warn, or fix natural conditions
iii. Duty to take reasonable exercise of control over 3rd persons on premises
1. Security measures to prevent attacks or theft
iv. Areas open to the public generally constitute non-delegable duties
(duties that owner cannot discharge through an indep. Contractor)
1. Owner is liable to others for harm caused by a failure of one of
their agents to perform a duty. (contractor)
c. Nonemergency public employees are normally treated as invitees
iv. Gratuitous Undertakings
1. A promise/action undertaken, even if done w/o consideration, gives rise to a duty to
perform the promise/action w/o negligence especially if P relied on that undertaking
a. Coggs v. Bernard – D w/o being paid moved P’s brandy and negligently spilt it. D
was liable because he started the undertaking
b. Erie R.R. v. Stewart – D normally kept a watchmen at the R.R. crossing, but there
was no one there today and P was struck by train
i. D was liable bc since he voluntarily undertook safety precautions that
were relied upon, he has a duty to continue those or to give notice that
they stop
c. Marsalis v. LaSalle – D kept cat for P but rabied cat escaped. D was liable bc she
started to perform it and P relied on it
2. If D fails to perform a contract and a tort ensues, he will not be liable, unless person is a
common carrier or the original promise was a deceit
a. If D starts to perform his contract and fails to complete it, there is a better
chance of him being liable
b. Moch Co. v. Rensselaer Water – D agreed to supply water to a city, but failed to
provide the water to a fire fight and P’s house burned down
i. D was not liable bc it was nonfeasance not misfeasance of contract
3. Non-parties to a contract cannot recover if one party of the contract did not perform
a. They might have a shot if they performed badly (misfeasance)
v. Special Relationships – you have a duty to act if you have a special relationship
1. General Principle:
a. There is no duty to control the conduct of a 3rd person as to prevent him from
causing physical harm to another unless:
i. A special relation exists b/w actor and 3rd person which imposes a duty
on actor to control the third person’s conduct
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ii. A special relation exists b/w actor and the other (person 3rd person is
harming) which gives the other a right to protection
2. Examples
a. Employer-Employee and Business Responsibility
i. Respondeat Superior: Employer is liable for employees actions when
employee was:
1. On duty; AND
2. Acting w/in the scope of his employment
a. Not liable when on frolic or detour
ii. Weirum v. RKO General – DJ Real Don encouraged teens to be the 1st to
find him to win a prize. Kids sped to the spot and got in an accident
1. Radio station should have reasonable known that they were
creating a foreseeable danger by running this promo targeted at
Teens; thus, RKO was liable
iii. Filenes Basement Wedding Dress Sale
1. If it is foreseeable that people are going to run around like
crazy, creating danger, but you still want it. What do you do?
a. You take steps to mitigate risks of danger
i. Larger aisles, cameras, security, get rid of glass
displays and other hazards in store
b. Landlord (Lessors and Lessees)
i. Landlord/Lessor
1. Landlords/lessors are responsible for making sure that there is a
reasonable standard of protection for their tenants in common
areas and from foreseeable crimes
2. Kline v. 1500 Mass. Avenue – D owner of apt. building failed to
provide security in the building, and P was injured when she
was mugged
a. Landlord must take steps to protect tenants from
foreseeable criminal acts especially when they have
exclusive control of the building  D is liable
3. Controversy if landlord needs to provide protection beyond
what the municipal code says
a. Decision is better left for the legislature
i. Mancur Olson – landlords have more legislative
pull bc wealthier so court should intervene to
protect less wealthy
ii. Macey – court should rule on it and force
legislature to change it if they don’t likeit
b. Pigou: leave it to market?
i. Pareto Efficiency:No, Landlord lost
ii. Kaldor/Hicks Eff: Yes, society benefitted
ii. Lessees/Tenant
1. Whatever a tenant takes over is his property and owner’s
liability applies
c. Doctor Patient
i. The doctor patient confidentiality privilege must be broken if it is going
to save people from danger
1. Many Drs. Have problems with this bc they say it takes away
from the therapy if they cannot keep everything confidential
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a. How do you tell a dangerous threat from the usual “I
want to kill her threat”
ii. Tarasoff v. Regents of University of California – P was murdered by a
patient who had confided his intentions to kill her to a therapist D, who
did not warn P of danger. D liable
1. A therapist has a duty to warn foreseeable victims if the
therapist diagnoses a patient as presenting a serious likelihood
of violence
2. This can be extended to doctors, media, lawyers, but not
religious figures
d. Bailments
i. Bailments - when you handover goods to someone else’s possession,
though you retain ownership
1. Gratuitous bailment – lowest duty of care
2. Bailment for hire – highest duty
a. Valets, dry cleaners, parking garages
ii. General Rule – imposes a duty of reasonable care by the party who
takes temporary possesion
e. Privileges
i. Attorney-Client
1. Exceptions:
a. if you are withholding info about a crime or fraud
b. If you know your client is lying guilty you cannot put him
on the stand
ii. Doctor-Patient
iii. Journalist-Informant
1. Journalists normally have shield laws that protect them from
revealing their sources
2. They mostly lose and are put in jail by grand jury
iv. Husband-Wife
v. Priest-Worshiper (first amendment)
1. Can’t ever pierce this privilege
f. Dram Shop Liability
i. *Def: Liability for those who sever alcohol to, or encourage
consumption of alcohol by others
ii. *Purpose: Allows for:
1. The Injured Person (Plaintiff) to sue the Bar
2. Drunk Driver to sue the Bar (in a few states)
iii. *Person Bringing Suit Must prove negligence on behalf of the bar
because it was clear the individual was not fit to drive
1. -“I saw him talking to the bartender before he left”
2. -“The waitress came over and took their order a dozen times”
iv. *Traditionally, confined to bars, restaurants but has been expanded…
1. -Sports Stadiums
a. -Liable for people drunk driving after sporting events
b. -Servers are required to know exactly who is getting
each beerThey cannot use the excuse of “I work an
entire section, how would I know who got the drink”
c. -Stadium Defense—Hard to tell how drunk someone is
when he is sitting in a seat
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l.
2. Company Parties (Usually simple Negligence…sometimes
Dramshop)
a. -Car Services, Cash Bars, Hotel Rooms, Drink Tickets,
Stop Serving
Early, Have Food, Have the Boss there
the whole time
3. Social Hosts (party at your house; groom/bride at a wedding)
a. Usually held negligent, but Dramshop will not be
applicable
b. But, they will be held negligent per se for serving
underage drinkers
4. Fraternities and Sororities
a. Forcing overindulgence—particularly with pledges—can
lead to Dramshop
DEFENSES IN NEGLIGENCE ACTIONS/PLAINTIFF’S CONDUCT
i. Contributory Negligence (Minority approach)
1. Any plaintiff who is negligent, and whose negligence contributes proximately to his
injuries is barred from recovery. No recovery if plaintiff is contributory negligence
a. Plaintiff will not recover whether he is 1% at fault or 99% at fault
b. Plaintiff is held to the same standard of a “reasonable person under like
circumstances”
i. All elements of negligence must be met
c. Only a defense to intentional or reckless torts if the P’s negligence was gross
2. Exception: “Last Clear Chance” doctrine
a. Just before accident, D had an opportunity(one last chance) to prevent the
harm, and P does not have this opportunity, this wipes away any effect of P’s
contributory negligence and D is liable to P even if P was negligent
i. If D acted negligently before the accident then the doctrine won’t apply
b. Two Types:
i. Helpless Peril – even if P is contributory negligent, D is still responsible
bc he should have known or actually knew of P’s helpless state
1. P must actually be in a state where he is absolutely helpless
ii. Inattentive Plaintiff- even if P contributory negligent, D is still liable bc
he had actual knowledge that the plaintiff was in actual peril.
1. P could have extricated himself if he had been attentive
ii. Comparative Negligence (Majority approach)
1. Two types here
a. Modified/Partial Comparative Negligence (Majority)
i. If P is more than 50% at fault
1. No Recovery
ii. If P is less than 50% at fault
1. Recovery permitted
b. Pure Comparative Negligence (Minority)
i. Recovery is allowed for the percentage of negligence attributed to the D
1. If P is 80% at fault, and D is 20%  P can recover 20% damages
2. Last Clear Chance Doctrine generally not applicable but it could be found in some
jurisdictions
iii. Assumption of the Risk
1. Definition
a. P is said to have assumed the risk of a certain harm f she has voluntarily
consented to take her chances that the harm will occur
2. Express Assumption of Risk
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a. P has explicitly agreed with D, in advance of any harm, that P will not hold D
liable for certain harm
b. This is a Complete Defense in all jurisdictions (both comparative and
contributory negligence jurisdictions)
c. Exceptions: Courts carefully look at agreements to determine if they are
unconsciousable contract or agreements against public policy
i. If D intentionally causes the harm, or brings it by acting grossly negligent
ii. If the bargaining power of D is grossly greater than that of P
1. Overriding public interest not to enforce expressed assumption
3. Implied Assumption of Risk
a. P never makes actual agreement w/ D, P can be held to have assumed certain
risks by her conduct
i. P knew the risk in question (Must know not out to have been known)
ii. P voluntarily consented to bear that risk herself
b. This a Complete Defense in contributory jurisdictions
c. Abolished in most comparative jurisdictions (Both “Partial” and “Pure”)
i. Comparative courts will use either an assumption of duty analysis or will
treat assumption questions as issues going to balancing negligence and
figuring what % the P is at fault
m. JOINT AND SEVERAL LIABILITY
i. Being a Joint Tortfeasor
1. This is what is needed (acting in common or breach a joint duty)
a. (1) Have a concert of action
b. (2) Have a unity of purpose or design
c. (3) Two or more defendants working separately but to a common purpose
2. Concurrent Tortfeasor
a. Defendants act separately but cause an indivisible injury
3. Successive Tortfeasor
a. People act independently but cause separate and identifiable harms
i. These people are not candidates for joint-and-several liability (you must
have indivisible harm)
ii. Joint-and-Several Liability
1. If more than one person is a proximate cause of the plaintiff’s harm, and the harm is
indivisible, each D is liable for the entire harm
a. You only need to find one of the D and you can get 100% recovery from just him
i. Idea was that the P shouldn’t have to go find everybody
b. Seen in environmental, medical malpractice, and product liability in some cases
iii. No Joint-and-Several Liability
1. It does not apply if the harms are divisible, where each D knows exactly which harm he
caused to P. Thus, each D is only liable for the harms that he himself caused
iv. Vicarious Liability
1. Doctrine where one person is made liable for the acts of another
a. Respondeat Superior – employer liable if employee was (1) on duty and (2)
acting within the scope of his employment
b. Independent contractors
i. A person who engages an independent contractor is not liable for torts
committed by the contractor
ii. Exception:
1. The duty was non-delegable (A public place, apartment)
2. The work is unusually dangerous by the contractor
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c. Joint enterprise – when two or more people engage in an activity in concert,
each can be held liable for the other’s torts
d. Parents are often directly responsible for their children
VII.
STRICT LIABILITY
a. Definition
i. Liability regardless of D’s intent and regardless of whether D was negligent because even if
reasonable care was exercised, the risk still remains high
ii. Are activities where (1) the risk is great, (2) the likelihood of risk creating injury is high, and (3)
the use of reasonable care doesn’t negate or diminish the risk
iii. Purpose
1. Encourages people to stop high risk activities or to make sure that your benefits far
outweigh the high associated risks
2. Encourages those who continue high risk activities to take precautionary measures and
try to develop a safer way to go about the activity
3. Forces the cheapest cost avoider (who can best spread the costs) to absorb the cost of
the abnormally high risk
a. Internalization of costs allows price to reflect the true cost of the activity
iv. Theories
1. First thoughts of strict liability
a. Rylands v. Fletcher (1868) – D built reservoir on his land unaware of P’s mind
shafts below it. D’s reservoir burst and flooded P’s mine shaft
i. A person who for his own purposes keeps on his land anything likely to
do harm if it escapes, must keep it in at his peril, and if he does not do
so, is strictly liable for all the damage which is the natural consequences
of its escape
ii. D must stop at the natural use of their land
b. Categories
i. Animals
1. Trespassing Animals
a. Owner of livestock/other animals is liable for property damage caused by them
if they trespass upon another’s land
i. This excludes household animals, but applies to cow,horse,sheep,goat
ii. Distress Damage Feasant - You can normally hold someone’s animal
until they pay for damages
b. Exception: Western States haven’t adopted a broad rule of strict liability
i. “Fencing in” statutes – owner is not strictly liable if he attempts to fence
in his animals, but he is strictly liable if he does not
ii. “Fencing out” statutes – if P properly fences his land, he has a strict
liability claim against one whose animals break in
2. Non-tresspassing Animals
a. Wild/Dangerous Animals (wolves, certain breeds of dogs, monkeys)
i. Person who possesses a wild animal is strictly liable for all damage done
by it, unless damage had nothing to do with its wild and dangerous
characteristics (breaks a pot or bumps into you)
1. Possession is “dominion and control”
ii. A wild animal is normally does not have “Animus Revertendi” (habit of
returning/coming back to owner)
1. Wild animal will not come back if you let it go
iii. Exception is animals at zoos and national parks are normally dealt with
by negligence instead of strict liability bc of public policy
iv. Oil/natural gas is often considered a wild animal
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b. Domestic Animals
i. Person who possesses a domestic animal is not strictly liable for injuries,
except where the owner knows or has reason to know of the animal’s
dangerous characteristics
1. “Not Really 1 Free Bite Rule”
ii. Gehrts v. Batteen – P was seriously hurt when D’s dog bit her when D
gave her permission to pet the dog.
1. D was not liable bc D did not know or have reason o know of the
dog’s dangerous propensities
ii. Ultrahazardous or Abnormally Dangerous Activities
1. Factors that an activity is abnormally dangerous
a. High degree of risk of some harm, likelihood that injury that results from harm
will be great, risk cannot be eliminated by the exercise of reasonable care, the
activity is not a matter of common usage, inappropriateness of the activity to
the place where it is carried on, extent its value to the community is outweighed
by its dangerous attributes (Still have to prove activity caused damage)
i. Important: 3rd Rest. – (1) foreseeable and highly significant risk of
physical harm (2) even when reasonable care is exercised by all actors
and (3) the activity is not one of common usage
ii. Old Rule was Rylands – S.L. if non-natural use of land w/ escaping threat
iii. New Rule:
1. Spano v. Perini – D was blasting at construction site and blast
damaged P’s a garage.
a. D was liable bc blasting is a dangerous activity and
directly caused neighboring property
2. Indiana Harbor RR v. American Cyanamid Co. – D loaded
chemicals in a railroad car and the chemicals leaked onto P’s
railroad switching line
a. D is not strictly liable bc D’s reasonable due care could
have prevented this accident
b. Homes near railroad were not cheapest cost avoider
here, bc RR could charge more and make lines safer
c. Shipping hazardous chemicals is not an ultrahazardous
activity
2. D is strictly liable only for the aspect of the activity that makes it ultrahazardous
a. Blasting Co. not strictly liable for loud noises which caused minks at mink farm
to eat their young
c. Defenses to Strict Liability
i. Contributory negligence is NOT a defense to strict liability
ii. Contributory Fault
1. Sometimes a defense when:
a. Court will sometimes recognize contributory fault where P knew of a danger,
and voluntarily and unreasonably subjected herself to the danger
i. Knowledge of risk/danger is important here
ii. Overlaps with assumption of the risk so see it
iii. Assumption of risk implied/expressed is a complete bar to recovery in Strict Liability cases
1. This is similar to contributory fault for finding this
2. It is much easier to show voluntary assumption of a known risk in express cases of strict
liability
3. Product Liability:
a. For a defense in product liability D must show that:
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i. P understood the danger assumed; AND
ii. P acted unreasonably in using the product
VIII.
NUISANCE
a. Generally (Think of it as what constitutes sufficiently great damage to the P that he can sue)
i. Nuisance is a kind of injury not a type of tort
1. Injury was an unreasonable interference/invasion w/ right common to public or with P’s
use of land
2. Good example of Coase theorem
3. Always judged on a reasonable standard
a. Noise, smoke, ---sirens in big city aren’t
4. Vogle v. Grant-Lafayette Electric Coop. – D, the electricity provider caused stray electric
voltage to shock P’s cows. D was liable under law of nuisance
a. Nuisance may be either physical or non-trespassory interference
ii. You bring a suit if you can show that D
1. Caused an interference/invasion; AND
2. D did it intentionally, negligently, or through an abnormally dangerous activity (S.L.)
b. Two Types of Nuisances
i. Private Nuisance
1. An unreasonable and substantial interference with P’s use and enjoyment of his land
a. P must have an interest in the land to bring suit
2. Elements:
a. P’s use and enjoyment of his land was interfered with in a substantial way
b. D’s conduct was either negligent, abnormally dangerous, or intentional
i. If D’s conduct was intentional it must also be unreasonable
3. Whether substantial interference exists you look at nature of location, but not at the
sensitivity of the plaintiff
a. Rogers v. Elliot – P would suffered convulsions when D would ring church bell
i. Measurement of nuisance considers use of land on ordinary person I
vicinity, not specific persons with particular conditions or temperaments
1. Normally can’t stop churches from ringing bells, just lower vol.
4. Aesthetics cannot be a nuisance (a hot pink house)
5. Spite Fences – An action of little or no benefit to the defendant, and done for the
purpose of annoying or injuring the plaintiff, is especially going to be found
unreasonable and thus a nuisance
6. Fontainbleau Hotel Corporation v. 45-25 – D built a building addition which casted a
shadow over neighboring hotel’s beach area. D not liable
a. There is no legal right to light and air; and thus no claim of action for nuisance
b. An exception would be if it was done in spite
7. Coming to the nuisance is generally not a defense
a. Ensign v. Walls – D was a dog breeder and the town began to start building
around him. P sued bc it smelled bad and loud barking. D was liable
i. It doesn’t matter how long D has been there as long as it is still a
nuisance. Coming to the nuisance is not a defense
8. Damages/Remedies (Normally looks at Cheapest Cost Avoider)
a. Permanent Damages – damages for past, present, and future in one lump sum
i. Normally get this if the factory will stay in business
ii. Jurisgenerative – D will pay damages to P but keep factory open
1. Boomer v. Atlantic Cement Co. – P, neighbor, sued D bc D’s
factory produced dirt, smoke, and vibration constituting a Nui.
a. Court does not have to grant injunctive relief and
instead D can pay permanent damages
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i. This is especially true in cases where the
technology is not available for D to improve his
operations to eliminate his nuisance
iii. Problem is that permanent damages bars future homeowners from
seeking different redress or the same homeowner for that matter
1. Ultimate Coase problem
b. Compensatory Damages – giving P money for the harm that has already
occurred
i. P can bring suit again if necessary
c. Injunction – Telling D that they must stop their activity
i. Only get injunction when compensatory damages aren’t adequate
ii. Also, injunction for finite period that is vacated upon receipt of
permanent damages
iii. Problem is than an injunction may cause people to lose jobs, towns to
lose taxes, no longer get cheap cement and other business hurt
d. Takings Clause
i. 5th Amendment says government cannot take/restrict the use of your
property without compensation. (normally has to do with zoning laws
that diminish property values)
1. Rehnquist’s “Takings Revolution” – you cannot force somebody
to give up value on their property and are limiting people from
reaping the full value of their land; thus massive zoning laws
were being struck down and people were building to the edge
of their property
a. O’Connor gets cold feet and quits taking these types of
cases to end the revolution (or slow it down)
2. Scalia – the framers knew of nuisance but didn’t mention it
when writing takings clause
ii. Essentially, public nuisance is the bounds of the takings clause; you can
keep building until it is a nuisance
1. Environmentalists are horrified bc many ecosystems were
destroyed
ii. Public Nuisance
1. An unreasonable and substantial interference with a right common to the general public
a. Health hazards, whorehouses, gambling parlors, obstruction of public streets
2. Factors to consider a public nuisance
a. Type of neighbor hood
b. Must injure the public at large
3. A private citizen can recover for damages from public nuisance if he sustained damage:
a. Of a greater degree than the general public; AND
b. Of a different kind than the general public
i. Anonymous – P’s road was blocked; thus, his harm wasn’t greater
ii. 532 Madison Gourmet Foods v. Finlandia – D’s work caused a partial
collapse of N.Y. building and people could therefore not get to P’s deli
so P sued for economic losses
1. D could not recover when the city shuts down a public street bc
it affected everyone around the same
4. Public nuisance does not apply to products distributed lawfully (even if they have illegal
ends)
a. Camden v. Beretta – P sued D for public Nui. associated w/ the manufacturing/
distribution of handguns that were ultimately used for criminal acts
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i. D was not liable bc he exercised no control over the interference
(criminal acts). He just lawfully sold the guns
5. To bring a public nuisance for destroying wildlife you have to actually show that you are
personally been injured
IX.
PRODUCT LIABILITY
a. Basics: Claim for injuries caused by products
i. Product must be:
1. A good, not a service
a. Food is a good
b. Blood is a service according to courts
2. Sold by a commercial supplier/manufacturer/retailer, not by a casual seller (yard sale)
3. No substantial alterations of the defective aspect of the product
a. Does P know about these substantial alterations
4. Exception: foreseeable misuse – if D should reasonably foresee their product being used
in another matter, they must build it to withstand such use
ii. Benefits/Purpose
1. Incentivizes manufacturers to assure the safety of their products
2. Incentive to innovative/product modification
a. Make the safest product for cheaper you’re very profitable
b. IF you must internalize your costs you could be forced out of business
3. Burden put on manufacturers (Cheapest Cost Avoiders)
4. Increased sophistication of products has made it impossible for us to assess risks involve
iii. Negatives
1. Product release is much slower – other countries normally get it first
2. Raises the cost of our products
3. Slow down development and innovativeness
iv. Goal: Improve product safety until the point where the cost of the accident is less than the cost
of improving the product
v. Defenses
1. Substantial modifications
2. Unforeseeable misuse
3. Open and Obvious
a. Only a defense if the danger cannot be avoided/designed out (a knife)
b. Historical Development
i. Negligence and Privity
1. Winterbottom v. Wright – P, a mail coach driver hired by Atkinson, was injured by a
defect in a coach provided to the Postmaster general and maintained under a contract
by D
a. an injured consumer, bystander, or user of a defective product can sue only the
immediate vendor of the product for negligence. They must be a direct contract
with them to sue
ii. Negligence without Privity
1. MacPherson v. Buick – P was injured from a defective wheel in an automobile
manufacturered by D and sold to P through a dealer.
a. When a product will knowingly be used by persons other than the original
purchaser and is known to be unreasonably dangerous if defective, a
manufacturer is liable for negligence without privity.
2. Allowed recovery for property as well as personal damage
3. Bystanders could recover as long as they were a foreseeable plaintiff of the defect
iii. Strict Liability Development
1. Escola v. Coca Cola – P was injured when a coke bottle exploded in her hand
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a. Manufacturer is strictly liable when a product it puts on the market, knowing it
will be used without inspection, has a defect that causes injury
c. Strict Product Liability for Product Defects
i. Restatement 2nd §402A MAJORITY RULE – Ordinary Consumer Expectations
1. (1) One who sells any product in a defective condition unreasonably dangerous to the
user or consumer or to his property is subject to liability for physical harm thereby
caused to the ultimate user or consumer, or to his property if:
a. (a) the seller is engaged in the business of selling such a product, AND
b. (b) it is expected to and does reach the user or consumer without substantial
change in the condition in which it is sold.
2. (2) The Rule stated in Subsection (1) applies although:
a. (a) the seller has exercised all possible care in the preparation and sale of his
product, AND
b. (b) the user or consumer has not bought the product from or entered into any
contractual relation with the seller. (You don’t need privity)
3. Requirements to meet this test
a. Applies only to products, not services
i. Food = product: Blood = service
ii. Transportation = service, plane = product
b. The product must have a defective condition unreasonably dangerous
i. Must be unreasonably dangerous to the ordinary consumer’s
expectations
c. Must be a commercial supplier, not casual seller
i. Manufacturers, retailers, assemblers, owners of restaurants, etc.
ii. Casual seller is lady at garage sale
d. Product cannot be substantially altered
i. There might be other alterations that have nothing to do with the
defective thing that caused the injury; thus, these alterations do not
relieve strict liability
ii. Exceptions?
e. Comment K: Exemptions to this 2nd rest.
i. Some products are unavoidably unsafe products, yet they are a
necessity and often used in society that they will be held not as strict
liability, but negligence
1. Applies mainly to pharmaceuticals (prescriptions, vaccines)
a. They are ok even though they have bad side effects
ii. Procedure for Comment K
1. Mini-Trial Jurisdictions – If D believes they qualify for comment
K, a mini trial is held to determine whether D will be tried for
strict liability or negligence
2. Absolute Jurisdictions (Minority) – all pharmaceuticals fit under
comment K and should be treated as negligence cases
iii. Rest 3rd – Says negligence should be used whenever a reasonable doctor
would prescribe a drug to any patient
1. Thus, all pharmaceutical cases are negligence bc some doctor
can prescribe any drug for any purpose
4. Potential Risk Utility Test of 2nd Rest.
a. In situations where the ordinary consumer would not know what to expect from
a product, a defective design can be found if the risk of danger inherent in
design outweighs the benefits of design
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ii. Restatement 3rd §2 (Minority Approach)
1. A product is defective when, at the time of sale or distribution, it contains a
manufacturing defect, is defective in design, or is defective bc of inadequate instructions
or warnings. A product:
a. (a) contains a manufacturing defect when the product departs from its intended
design even though all possible care was exercised in the preparation and
marketing of the product;
b. (b) is defective in design when the foreseeable risks of harm posed by the
product could have been reduced or avoided by the adoption of a reasonable
alternative design by the seller or other distributor, or a predecessor in the
commercial chain of distribution, and the omission of the alternative design
renders the product not reasonably safe;
c. (c) is defective bc of inadequate instructions or warnings when the foreseeable
risks of harm posed by the product could have been reduced or avoided by the
provision of reasonable instructions or warnings by the seller or other
distributor, or a predecessor in the commercial chain of distribution, and the
omission of the instructions or warnings render the product reasonably safe
2. §2b shifts attention and now you’re looking at it from the eyes of the maker
a. Plaintiff is now forced to come up with a reasonable alternative design when
there is a design defect and this could be extremely expensive
i. This is much harsher than 2nd Rest bc all P had to do there was say that
it the defective condition is unreasonably dangerous
3. Pharmaceutical/Drug exceptions
a. If there is even a single group of patients for whom the drug or device could be
prescribed by a reasonable doctor, then no patient can bring a design-defect
claim against the maker for strict liability
i. All pharmaceuticals should be brought under negligence
iii. Proving the case you must show
1. The item was made or sold by D;
2. The product was defective;
3. The defect caused the P’s injuries; AND
4. The defect existed when the product left the defendant’s hands
iv. Manufacturing Defects – something went wrong with the manufacturing process
1. Rest. 3rd
a. Proof of a specific defect is not required when the injury
i. Is the kind that ordinary occurs bc of a defect; AND
ii. When some portion of the injury can be traced back to the defect
b. Res Ipsa loquitor is for negligence cases and strict liability applies and res ipsa
loquitor is substituted with “circumstantial evidence”
2. Speller v. Sears, Roebuck and Co. – D’s refrigerator was accused of starting a fire in P’s
home, but all evidence was destroyed
a. Circumstantial evidence can be used in order for P to prove that it was the
manufacturer’s defect and that all other possible causes of the fire can be
eliminated
3. Food takes a consumer’s expectation approach, instead of determining whether it was a
foreign object in the food or a natural one
v. Design Defects – all manufactured products are the same and they have a feature whose design
is itself defective, and unreasonably dangerous
1. A manufacturer is not liable for product dangers that are open and obvious
2. Must take into account people’s foreseeable uses of product when designing
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3. 2nd Rest. §402A (Majority Approach)
a. Consumer expectation test
i. A product is defective if it fails to perform as safely as an ordinary
consumer would expect (it is unreasonably dangerous)
ii. The product must be safe for its intended use and for a reasonably
foreseeable use
b. Examples of consumer expectation test
i. Linegar v. Armour of America – P got shot in a part of his body not
protected by bullet proof vest. D not liable
1. You cannot subject D to strict liability when the limits of product
design are obvious and design tradeoffs are reasonable. Plus, P
had a choice as to what vest he wanted for what reasons
ii. Halliday v. Sturm, Ruger & Co. – Kid found dads gun and killed himself
1. Consumer expectation test found that the gun was used and
worked exactly how one would expect it to work and there is no
liability, even though additional childproofing was available.
nd
4. 2 Rest. (Hybrid Approach) Risk-Utility (Only used if norms of consumer exps. unknown)
a. Expansion of consumer expectation
b. In situations where the ordinary consumer would not know what to expect from
a product, a defective design can be found if the risk of danger inherent in
design outweighs the benefits of design
c. Only applied if the jury doesn’t know what the consumer expectations of the
product would be and then you ask questions of:
i. How useful is the product?
ii. How risky is it to use?
iii. Is it common? How many people use it?
iv. Are there any reasonable or not very expensive alternative designs?
d. Examples of this hybrid approach applied
i. Barker v. Lull Engr. Co. – P was injured when his front end loader tipped
over. D was liable
1. In situations where the ordinary consumer would not know
what to expect from a product, a defective design can be found
if the risk of danger inherent in design outweighs the benefits of
design
5. 3rd Rest §2(b) – More of a negligence standard, harder to prove
a. Looking from manufacturer’s perspective, a product is defective when the
foreseeable risks of harm posed by the product could have been avoided by the
adoption of a reasonable design
i. Take into account
1. Production costs of new design
2. Effect of maintenance, repair, and aesthetic
3. Risks vs. added benefits
4. Consumer choices added
b. Examples of 3rd Restatement Liability
i. Volkswagen of America, Inc. v. Young – P was killed in a car crash when
his seat broke apart and he flew in the back (Second Collision)
1. It is foreseeable that cars will be in accidents, thus a
manufacturer has a duty to use reasonable care in designing his
cars to avoid unreasonable risk of injury in the event of a crash
6. Rule 407 – you cannot use evidence that a company changed their design against them
a. The only way to get around this is to impeach the witness
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vi. Warning Defects
1. If a product is defectively manufactured or defectively designed, no warning will save D
from liability
2. If a product is properly designed and manufactured, a non-obvious risk of personal in
jury must be warned of
3. If a reasonable consumer might misuses the product in a foreseeable way, instructions
concerning correct use must be given
a. Must be a high rate of misuse not just the occasional misuse
4. Don’t think of it as a strict liability bc it is if the warning was reasonable or not
5. Primary warnings (big concerns) must be up front and be prominent
a. And sometimes you need to have pictorials to show the prominence of the risks
6. Scientifically unknowable risks at the time the product was produced are free from
liability
a. Only used if you did not know and that you could not have found those risks
7. Third restatement treats this as a negligence rule
a. D is liable for an inadequate instruction/warning when foreseeable risks of harm
imposed by the product could have been avoided by the provision of reasonable
instructions or warnings . . . and the omission of the instructions or warnings
renders the product not reasonably safe
8. Factors to consider if there is a duty to warn
a. Extent and likelihood of risk
b. Users likely understanding of the danger
c. Means available to convey a warning
d. Likelihood that too many warning will costly/ decrease sales
e. Special need consumers
i. Multiple languages
ii. Pictorial warnings to account for the illiterate
9. Drug Cases/ Pharmacists/Physicians
a. Generally, a learned intermediary (a doctor) has a duty to warn about the
dangers of a drug, not the manufacturer
i. This holds for things you get straight from the doctor
(injection/implant), not those things you get in a box
ii. Sometimes if a certain medication prescribed by a doctor has very
complex side affects that are on an insert, the physician has the
responsibility of warning the patients of what these risks are/mean
iii. Learned intermediary can be lost if you advertised directly to the public
b. Over the counter drugs that have sizeable side effects need to use a warning on
the box and bottle
c. All primary warnings need to be up front and prominent
i. Products need to have words that people understand
d. Exception:
i. When a company markets directly to the consumer, the manufacturer
must warn
ii. If a physician has a minimal/no effect in the decision process, the
manufacturer must warn (normally birth control)
e. MacDonald v. Ortho Pharma. – P suffered stroke from birth control pills made
by D
i. Court said that prescribed items where the patient has a larger role in
deciding to use and doctor plays a minimal part, it is the duty of the
manufacturer to warn the consumer of the potential risks
1. Manufacturer didn’t tell Dr. of all potential risks
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ii. Warning has to be written in a way that the foreseeable consumer will
understand (Spanish/younger)
f. Once again there is a difference bw the 2nd and 3rd Rest.
i. 2nd Rest. – Commen K
1. Provides such a great social benefit, so we should look at
negligence in those cases
2. If no great social benefit, it is strictly liable
ii. 3rd Rest. – Drug not defective if a reasonable doctor would prescribe it
for any class of patients; thus, pretty much always use negligence
10. Vasallo v. Baxter – P’s silicone breast exploded and she was injured
a. Manufacturer’s are not liable to warn about risks that are (1) not reasonably
foreseeable and (2) not discoverable by reasonable testing at the time of sale
i. D is liable bc it was discoverable risk by testing
ii. Look at if reasonable efforts were made to find risks
b. If a danger comes up after you put a product out to warn if new defects or risk
come about after the product is already on the market
11. Mass tort areas – asbestos, breast implants, lead, DES
a. Asbestos manufacturers argue that it was scientifically unknowable
i. People have lung cancer not asbestosis
ii. Back then there was no way to see if asbestos is dangerous to the body
iii. It was found to be scientifically knowable bc of seeing people working
with asbestos in WW2 and at other places
b. Lead was always viewed as culprit for other problems
i. Lead industry lost in what level was harmful for the person
1. Lead industry standard was many times over the dangerous
level of lead (Not scientifically unknowable)
c. DES – person who took drug was fine but their offspring were at risk
i. They have a duty to warn the unborn, and court rejected this
ii. There is no way of knowing how it affects future generations
12. Hood v. Ryobi – P took off saw guards despite warnings. D not liable
a. Adequacy of a warning depends on whether the benefits of a more detailed
warning outweigh the costs of requiring the change
i. Warnings need to be sufficient to warn a reasonable person of risk
involved
ii. Only issue here is if everyone is removing guards, then you have to
make it impossible to remove guards (foreseeable misuse)
1. If removing guards has a functional ability
13. Be careful of smart guns or blades that detect flesh
a. At what point does it become necessary that all products have this
14. You do have a duty to warn of dangerous products made by others even if your product
is safe if you know during natural use it will come into conduct w/ 3rd party’s product to
make it unsafe
vii. Plaintiff’s Conduct Defenses to Strict Liability
1. Contributory Negligence is not a defense to strict liability
2. Contributory Fault/Assumption of the Risk
a. A complete bar to recovery especially in assumption of risk cases
b. Courts will recognize contributory fault where P knew of a danger and his
contributory negligence was the cause of his injury
c. Product Liability Defenses
i. Courts will generally in product cases require a D to show that:
1. The plaintiff understood the danger assumed; AND
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2. The plaintiff acted unreasonably in using the product
3. Daly v. GM – P was not wearing a seat belt and his door was locked and he was killed
when he ran into a highway divider. Court applied comparative fault on part of the P
and reduced liability of GM (minority approach)
a. Dissent – strongly rejects this (many judges agree with this) and do not want to
see comparative fault in product liability. Negligence undermines the effect of
strict product liability
viii. Federal Preemption
1. Tort law comes from common law and state law
a. Relatively few acts that preempt torts
2. The federal government makes statutory laws that are applied to the states; thus, if a
federal law is in conflict with a state law/common law, the state tort claim can be
“preempted” by federal laws
a. Examples:
i. Feres Doctrine – military men cannot sue U.S. government for torts
ii. Immunity Bills – some industries are immune from law suits
iii. Geier v. American Honda – P was injured in car not equipped with air
bags or other passive restraints
1. D not having airbags complied with a federal statute and
therefore the Tort claim was preempted
3. Is there an express preemption by congress? (such as medical device)
a. Congress expressly says that no state law can contradict or alter statute
4. Is there an implied preemption?
a. Government argues that a field is so saturated with federal law that there is no
room for state law (Immigration laws)
5. Constitution can limit state court actions (mostly in punitive damages)
a. Gore v. BMW – man’s bmw was repainted and trial court gave him 5,000 in
compensatory damages and a million in punitive damages
i. Supreme Court said that punitive damages can be so high that it violates
the due process clause of the constitution
1. Must look at the ratio bw compensatory and punitive damages
(ratio is mostly 1 to 10), but can be higher for personal injuries
b. McDonalds Coffee Cup – cup broke in woman’s leg causing horrible groin burns
bc coffee cup was very poor quality (reduced quality over the years) and the
coffee was extremely hot
i. McDonald’s expert witness basically admitted that something that hot
should have adequate protection in a lab
1. Got punitive damages less than a million
X.
DEFAMATION
a. Definition
i. A communication is defamatory if it tends 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 w/ him.
ii. Elements: (1) false defamatory statement, (2) Publication of statement, (3) Fault on part of D,
and (4) in certain types of slander “special harm”
b. Requirements and Elements
i. Statement must be false and defamatory (reputation-damaging)
1. Truth is an absolute defense
2. Opinion is protected when based on known or stated facts; however, it can be
actionable when based on undisclosed or personal known facts.
a. Parody and humor are protected as a form of opinion
b. Wilkow v. Forbes – D published article about man who filches bank’s money
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i. An author’s opinion about a person’s business ethics is not defamatory
ii. Most people would say they want that guy who cuts those corners and
it isn’t really a bad thing
c. Stating that something is an opinion does not necessarily mean that it is a
defense
ii. Requires Publication of statement to person other than P
1. Publication of defamatory matter is its communication intentionally or by a negligent
act to one other than the person defamed
a. One who intentionally or 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
2. It would be enough that it is communicated to a single individual other than P
3. Single Publication Rule: statute of limitations begins running when the 1st copy is
published AND every copy printed is treated as one publication
4. Someone who repeats or republishes a defamation is liable as if he or she is the original
publisher
5. Someone who merely delivers or transmits defamatory matter is not liable so long as
they did not know or have reason to know of defamatory content; thus, a newspaper
delivery service or library are not liable
a. Federal law protects Internet service providers
6. Intra-corporate communications are often not treated as publications as long as (1) it is
within the scope of employment and (2) is without malice
a. Doe v. Gonzaga – If there is a showing of actual malice, you can lose the intracorporate privilege
iii. Who rule applies to:
1. Does not apply to deceased individuals
a. Turley hates this
2. Some people are libel proof
a. They cannot be defamed bc nothing can make their reputation worse
3. Corporations and business can be defamed
a. You can potential defame a product (Product Disparagement)
4. Large groups are generally not able to maintain defamation actions but small groups
may be successful
a. (Neiman Marcus) – court rejected the claim that 30 out of 400 people are too
big of a number, but a group of 15 out of 25 is enough (400 is too big)
c. Slander versus Libel
i. Some states have eliminated the distinction between each
ii. Libel
1. Definition
a. Consists of defamatory matter by written or printed words, by its embodiment
in physical form or by any other form of communication that has the potentially
harmful qualities characteristic of written or printed words
2. Radio and television broadcasts are generally treated as libel bc of permanency
3. Under CL, libel was actionable per se and thus did not require a showing of special form
4. Libel per quod refers to a libel that is not defamatory until the hearer of the statement is
aware of certain extrinsic facts tied to the libel.
a. Some jurisdictions require special harm in libel per quod cases
b. Other jurisdictions use the term to show that a statement was not libelous on its
face but in combination with extrinsic facts
iii. Slander
1. Definition
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a. Consists of defamatory matter by spoken words, transitory gestures or by any
form of communication other than those of libel
2. Generally establish slander by showing P sustained some “special harm”
a. Special harm is required to be of a pecuniary nature
b. Cases where no special harm is necessary are slander per se (Muzikowski)
i. Criminal conduct
ii. Loathsome or communicable disease
iii. Imputing a plaintiff’s business or professional reputation
iv. Imputing lack of chastity to a woman – very sexist argument
1. Not really referenced any more in states
2. Courts look and see if there person really showed a
commitment to not being sexually active
v. Claiming sexual misconduct or moral turpitude
vi. Questionable?
1. Gay – normally only defaming religious or married people
3. When do words lose their bite
a. Roby v. Bryson – look at slut in today’s meaning not what it once was
b. How bad is trash talking? You have experts talking about it?
iv. Fault
1. Constitutional Privileges
a. Defamation Directed at Public Officials or Public Figure
i. Must show that somebody said something about you with actual malice
to create liability for defamation of public figures
ii. New York Times v. Sullivan
1. Actual Malice = knowledge of falsity or reckless disregard of
falsity
a. Showed knowledge of actual malice that it was false or
that you showed reckless disregard about falsity
2. Before this torts was still open for public officials to destroy
people from saying things about them
iii. Limited Public Figures
1. People who have thrust themselves to the forefront of
particular public controversies in order to influence the
resolution of the issues involved.
2. Must prove actual malice for defamation arising out of that
controversy
2. Defamation Directed at Private Parties
a. Some fault on the part of D must be shown in negligence
i. The media cannot be held to a strict liability standard
b. You cannot recover presumed or punitive damages for defamation against a
private individual based on negligence unless you show (1) D had knowledge
that it was false or (2) recklessly disregarded if it was true or not
i. Actual Malice = knowledge of falsity or reckless disregard of falsity
ii. Gertz v. Robert Welch
v. Privileges – D might have a privilege to make defamatory statement
1. Common Law privileges include both absolute privileges and qualified/conditional
privileges
a. Absolute Privileges – applies regardless of D’s intentions (malice)
i. Judicial Proceedings
ii. Legislative Proceedings
iii. Executive Communications (Government Officials)
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b.
c.
d.
e.
XI.
iv. Communications that the P has consented to
v. Communications between husband and wife
vi. Communications required by law to be published
1. Media broadcasts of Political statements
Conditional Privileges – this protects only a person who reasonably believes that
the defamatory statement is true
i. Some jurisdictions exclude recklessness, maliciousness, or unreasonable
acts as covered by such privileges
ii. Used for:
1. The protection of publisher’s interest
2. Protection of recipient’s or 3rd person’s interests
3. Protection of a common interest (such as partners or business
associates or members of groups)
4. Family relationships (for immediate family members)
5. Public Interest (such as reporting a crime)
6. Inferior or low level public officials performing their duties, but
not subject to the absolute privilege
Fair Reporting Privilege
i. Publication of defamatory matter concerning another in a report of an
official action or proceeding or of a meeting open to the public that
deals with a matter of public concern is privileged if the report is
accurate and complete or a fair abridgement of the occurrence reported
1. Even rumor can be privileged if reported fairly
a. Newspaper can publish a fact of rumor and an
employee can report a rumor to an employer
Privilege of Self-Defense
i. When the person making the publication reasonably believes that his
interest in his own reputation has been unlawfully invaded by another
person and that the defamatory matter that he publishes about the
other is reasonably necessary to defend himself
1. D may publish in an appropriate manner anything that he
reasonably believes to be necessary to defend his own
reputation against the defamation of another, including the
statement that his accuser is an unmitigated liar
Privilege about former employees
i. Employers can give comments about a former employee’s performance
to a potential employer as long as it is not knowingly false, malicious, or
deliberately misleading
PRIVACY
a. 4 common law privacy torts
i. Intrusion Upon Seclusion
1. Definition
a. Occurs where D invades P’s private space in a manner which would be highly
offensive to a reasonable person in P’s position
i. The place that is invaded must be a private place, but public place is fine
sometimes if what their doing in public is private
1. Nader v. GM – P followed D to harass him
a. Court largely rejects a privacy claim for most of the
things GM did, but they looked over his shoulder to find
out how much money he withdrew
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ii. You could be open to public but it takes something special to see it, a
special camera or other technology
1. Desnick – ABC investigation of various eye doctors ordering
surgeries that were not necessary
a. Even though the camera was brought into his doctors
office, this was still considered public bc any public
member could see the same thing
2. Food Lion – someone filmed workers relabeling goods putting
new expiration dates and people selling old meat after being
bleached and Food lion sued.
a. Court said this was intrusion and trespass bc they were
given access on false pretense
b. Once they commit trespass they have no more rights
than other citizens
c. However, court did not allow damages for publication,
the media still won’t go out bc they don’t want to
engage in trespass liability
d. Nowadays it is all whistleblowers
iii. Use of wiretaps or electronic surveillance is an intrusion of private place
iv. No egg shell privacy plaintiff, it must be a reasonable person
v. Highly offensive – kind of shocks the jury
vi. You do not have to publish this, just have to show invasion
vii. Being newsworthy is not an exception to privacy
viii. The injury is just the fact that you feel invaded
ii. Public Disclosure of Embarrassing Private Facts
1. Definition
a. Occurs where D publicly discloses a non-public detail of P’s private life, where
the effect would be highly offensive to a reasonable person in P’s position and is
not a legitimate concern to the public
i. Details disclosed must be truly private ones that are not contained
anywhere on public record
1. Cox Broadcasting Corp. v. Cohn – D was not liable bc he
published info about rapist that was in public court records
ii. If the private facts disclosed are newsworthy and of legitimate public
interest, they will not be a violation
1. Haynes v. Knopf, Inc. – D was not liable for publishing a book
about P’s personal misconduct bc it was newsworthy and a
public interest
iii. The injury here is taking something private and showing it to someone
else; disclosure of private information of D to 3rd party
iv. There is no truth defense to this privacy
v. Newsworthy can be a defense
iii. False Light
1. Definition
a. Occurs where D knowingly or recklessly publishes false statements about P
which, although not defamatory, would be highly offensive to a reasonable
person in P’s position
i. False light is weird because the event actually happened but the context
that they are trying to make of the event is way different
1. Picture taken of him looking at breast, but really was just
turning his head
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ii. Public Official
1. D must have known of falsity or acted in reckless disregard of
the issue
iii. Private Person
1. D acted negligence will suffice for a private person
iv. Info must be false and there is no exception for newsworthy matters
obviously
1. Could be a photo or written word
a. Said guy was laughing when he was terrified really
b. If the headline says something and the paper explains
on that, it can still be false light
v. Not exactly the same as defamation
1. But some courts have gotten rid of this
vi. This one does have a truth defense
vii. Obviously is no newsworthy D
viii. Some states don’t use this
iv. Misappropriation of Identity/name and likeness
1. Definition
a. Occurs where P’s name or likeness has been used by D for D’s financial benefit,
without P’s consent
i. Can be brought by estate of deceased
ii. You have to show that D used it for financial benefit
iii. Public domain pictures are fine to use, but if you use it in the sense of
endorsement it is misappropriation
1. How public does it have to be is really do you have consent for
that picture
iv. White v. Samsung - Samsung had a blonde robot that turned cards and
Vanna White sued
1. Court said she could recover but Turley hates this answer
v. Court says parody is fine
vi. Impersonators are fine as long as you say you’re an impersonator
vii. Cannon ball guy – he wins when he sues news program for showing him
shot out of a cannon. That’s all he’s got and when they showed it
people will not go see him any more
viii. Newsworthy photos are fine
b. NOTES ON Privacy
i. Katz Test
1. 4th Amendment protects people not places
2. Government needs a warrant to spy on citizens wherever citizens have a reasonable
expectation of privacy
a. As your expectations fall, the government spies on you more and more
ii. The greatest right is the right to be left alone
1. The right for everyone to leave you alone and the right to be alone
2. Common law and constitution protects this right
iii. Defamation
1. We don’t want people to self censer the things that are newsworthy
iv. Chilling effect
1. People act differently when they are being watched/taped
A tort is the imposition of risks or costs on another individual without either legal consent or proper cause in violation
of a socially defined and evolving standard of conduct.
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


Deals with asymmetrical spikes of risks
o Society’s way of balancing out the risks
We see that consent normally vitiates liability – sometimes they refuse to recognize consent or assumption
Socially defined and evolving standard of conduct
o There is no code or system of laws
o It is jury driven and designed to change to society
o If you change torts you change society
o We have the shaping of societal value without any single decision being made
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