MBE Torts Flashcards
Intentional Torts: General
1) Tortious conduct: Must be a voluntary act. Defendant must have directed the physical muscular movement. (or conduct)
2) Requisite mental state: Established if Defendant acts intentionally (with purpose of causing the consequence of his act; or knowing that the consequence is substantially certain to result)
- children/mentally incompetent: May be liable if they act intentionally
- transferred intent: intent satisfied if intended to cause contact with a third party but instead caused contact with the plaintiff (same tort against a different person) OR intended to commit an assault on a plaintiff—but instead committed a battery (different tort against the same person).
- IIED — recklessness standard: knows of the risk of harm created by the conduct, and the slight burden relative to the magnitude of risk, failure to adopt precaution a demonstration of indifference to the risk
3) Causation: when the resulting harm was legally caused by the defendant’s conduct. Legal causation = factual cause + proximate cause
- Factual cause: factual cause of harm when the harm would not have occurred absent the conduct (i.e., the “but for” cause).
- Proximate cause: limits a defendant’s liability. not subject to liability for harm the risk of which was not increased by the defendant’s intentional or reckless conduct.
BONUS
Participation in an Intentional Tort:
- A defendant who knowingly and substantially instigates, encourages, or assists another person’s commission of an intentional tort involving personal injury is subject to liability for that tort, even if the actor’s conduct does not independently satisfy all elements of the underlying tort.
Intentional Torts > Battery
BATTERY: A defendant is subject to liability to the plaintiff for battery if:
- He intends to cause a contact with the plaintiff’s person;
- His affirmative conduct causes such a contact; and
- The contact causes bodily harm or is offensive to the plaintiff.
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transferred intent applies
- intended to cause contact with a third party but instead caused contact with the plaintiff (same tort against a different person) OR
- intended to commit an assault on a plaintiff—but instead committed a battery (different tort against the same person).
- transferred intent DOES NOT APPLY when the defendant’s intentional use of force is privileged. (self-defense)
Harmful or Offensive Contact
- Harmful when it causes physical injury, illness, disease, impairment of bodily function, or death
- Offensive when a reasonable person would find the contact offensive (objective test). If the victim is hypersensitive, and the defendant knows that about the victim, the defendant may still be liable, unless the court determines that imposing liability would violate public policy.
- The plaintiff need not be aware of the contact when it occurs to recover.
- Indirect contact: contact need not be with the defendant himself
Contact with Plaintiff’s Person
- Contact with anything connected to the plaintiff’s person qualifies as contact with the plaintiff’s person for the purposes of battery
Causation
- A defendant who sets in motion a chain of events that causes contact with the plaintiff, whether the contact is direct or indirect, is subject to liability
Damages
- No proof of actual harm is required; the plaintiff can recover nominal damages.
- The plaintiff can recover damages from physical harm flowing from the battery.
- “Eggshell plaintiff” rule—a defendant is liable for all harm that flows from a battery, even if it is much worse than the defendant expected it to be.
- Punitive damages: if the defendant acted: outrageously; or with malice.
The defense to an intentional tort is consent, while the defense to negligence and strict liability is assumption of the risk.
Intentional Torts > Assault
Assault—defendant engages in an act that:
- The defendant intends to cause apprehension of such contact or to cause such contact itself.
and - Causes reasonable apprehension of an imminent harmful or offensive bodily contact;
Bodily Contact—not required
Plaintiff’s Apprehension
- Must be reasonable
- Plaintiff must be aware of the defendant’s action
Imminent
- Must be without significant delay
- Threats of future harm or hypothetical harm are not sufficient.
Mere Words
- Generally, “mere words do not constitute an assault.”
- Words can suffice if the defendant is able to carry out the threat imminently and takes action designed to put the victim in a state of apprehension, then there may be an assault.
Intent
may be present in one of two ways: The defendant must intend to cause either:
- An apprehension of imminent harmful or offensive contact; or
- The contact itself.
Damages
- No proof of actual damages is required; the plaintiff can recover nominal damages.
- The plaintiff can also recover damages from physical harm flowing from the assault.
- In appropriate cases, punitive damages may be available.
The defense to an intentional tort is consent, while the defense to negligence and strict liability is assumption of the risk.
Intentional Torts > Intentional Infliction of Emotional Distress (IIED)
Intentional Infliction of Emotional Distress (IIED) – Defendant
- intentionally or recklessly
- engages in extreme and outrageous conduct
- that causes the Plaintiff severe emotional distress.
Extreme and outrageous conduct
- Conduct is extreme and outrageous if it exceeds the possible limits of human decency, so as to be entirely intolerable in a civilized society.
Hypersensitive Plaintiff
- defendant is liable if knew of the plaintiff’s hypersensitivity and deliberately exploited the plaintiff’s heightened susceptibility to emotional distress
Public Figure Plaintiff – Publication by a Defendant (TV station)
- Must additionally show that the defendant published a false statement of fact with actual malice
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3rd Party Plaintiffs – When D’s conduct is directed at a 3P and the (the bystander) suffers severe emotional distress, 3P must prove the same IIED elements (see above) with additional intent and causation requirements
Additional requirements:
- 3P was present and percieved the conduct;
- 3P was a close relative of P (OR) distress resulted in bodily harm; and
- D knew these facts (that 3P was present and closely related)
Note—P does NOT need to establish additional requirements if 3P proves D had a design or purpose to cause severe distress to 3P
Intentional Torts > False Imprisonment
False Imprisonment
- Defendant INTENDS to confine or restrain another within fixed boundaries;
- The actions directly or indirectly result in confinement; and
- Plaintiff is conscious of the confinement OR harmed by it
Confined Within Bounded Area
- Area can be large
- Area need not be stationary
Methods of Confinement
- Use of physical barriers, physical force, imminent threats, invalid invocation of legal authority, duress, or refusing to provide a safe means of escape
- The defendant’s use of moral pressure or future threats does not constitute confinement or restraint by duress, and a plaintiff is not imprisoned if she willingly submits to confinement.
- A court may find false imprisonment when the defendant has refused to perform a duty to help a person escape
Intent
- Defendant must act with the purpose of confining the plaintiff; or knowing that the plaintiff’s confinement is substantially certain to result.
- Negligent confinement—defendant not liable
- Transferred intent applies.
Shopkeeper’s privilege
A shopkeeper (or its employee) can, for a reasonable time and in a reasonable manner, detain a suspected shoplifter for the purpose of:
- (i) investigating,
- (ii) recapturing, or
- (iii) facilitating an arrest.
Merchant must have detained the plaintiff on or in the immediate vicinity of the merchant’s premises.
Defenses to Intentional Torts Involving Personal Injury > Consent
1) Consent
Express consent—the plaintiff, by words or actions, manifests the willingness to submit to the defendant’s conduct.
* The defendant’s conduct may not exceed the scope of the consent.
* Consent by mistake—a valid defense unless the defendant caused the mistake or knew of it and took advantage of it
* Consent by fraud—invalid if it goes to an essential matter. If the fraud only goes to a collateral matter, consent is still a valid defense.
Implied consent—the plaintiff is silent (or otherwise nonresponsive) where their silence and continued participation can reasonably be construed as consent
* Emergencies—it is fair to assume that someone in need of rescuing would allow a rescuer to touch him absent explicit consent
* Injuries arising from athletic contests—consent within the scope of the sport. A defendant could be liable if the conduct is reckless
* Mutual consent to combat
Capacity—Lack of capacity may undermine the validity of consent (e.g., youth, intoxication,
incompetency).
The defense to an intentional tort is consent, while the defense to negligence and strict liability is assumption of the risk.
Defenses to Intentional Torts Involving Personal Injury > Self-Defense (and Defense of Others)
Self-Defense
1) Use of Nondeadly Force
A defendant may use nondeadly force for the purpose of defending himself against another only if the defendant reasonably believes that:
- i) The other is intentionally inflicting or about to intentionally inflict unprivileged force on the defendant;
- ii) The force that the defendant is using is proportionate to the other’s use of force or threat of force; and
- iii) The defendant can prevent the other’s force or threat of force only by the immediate use of the force the defendant is employing.
Use of reasonable force
- force that is reasonable to defend against an offensive contact or bodily harm (i.e., not excessive).
No Duty to retreat
- need not retreat before using reasonable, proportionate force. Even if he can do so safely
Initial aggressor—NOT permitted to claim self-defense
- unless the other party has responded to nondeadly force with deadly force (they become the aggressor)
Injuries to bystanders—
- A person acting in self-defense is not liable for injury to bystanders as long as the injury was accidental and the actor was not negligent toward the bystander.
2) Use of Deadly Force
A defendant may use deadly force for the purpose of defending himself against the plaintiff only if the defendant reasonably believes that:
- i) The plaintiff is intentionally inflicting or about to intentionally inflict unprivileged force upon the defendant;
- ii) The defendant is thereby put in fear of either death, serious bodily harm, or rape by the use or threat of physical force or restraint; and
- iii) The defendant can safely prevent the peril only by the immediate use of deadly force.
No duty to retreat
- In most jurisdictions, when a defendant uses deadly force, the defendant has no duty to retreat even if he can do so safely (e.g., “stand your ground” laws).
Burglary exception
- permits a defendant to use deadly force to prevent a burglary of the defendant’s home, even if the defendant was in peril of bodily harm that does not constitute serious bodily harm, death, or rape
3) Defense of Others—may use reasonable force in defense of others, if the others would be entitled to use self-defense
Defenses to Intentional Torts Involving Personal Injury > Defense of Property
4) Defense of Property In defending against a plaintiff’s action to recover damages for an intentionally inflicted injury (e.g., battery claim), a defendant can argue that he/she was privileged to use force to prevent the plaintiff’s imminent intrusion on the defendant’s land or personal property. This privilege applies when:
- the plaintiff’s imminent intrusion is not privileged
- the defendant first asks the plaintiff to desist and the plaintiff disregards the request
- the defendant reasonably believes that the plaintiff is intruding or imminently will intrude upon the defendant’s property and that the intrusion can be prevented or terminated ONLY by the means used
- the means used are REASONABLY PROPORTIONATE to the value of the interest the defendant is protecting—i.e., the defendant cannot use excessive forceand
- the means used are not intended or likely to cause death or serious bodily injury.
Mechanical Devices – A mechanical device is a privileged means of protecting property when it is
- (1) reasonably necessary to protect the property from intrusion,
- (2) not unreasonably dangerous,
- (3) customarily used for this purpose or reasonable care is taken to make its use known, and
- (4) not intended or likely to cause death or serious bodily harm.
Deadly force
- A person may never use deadly force to defend property
- Use of mechanical device that inflicts deadly force (e.g., spring gun, electric fence, human-trap) may be privileged if it satisfies requirements for using deadly force in self-defense or defense or others.
Recapture of chattels (personal property)
- Reasonable force may be used to reclaim personal property that has been wrongfully taken, but only if you first request its return, unless that would be futile.
- If the original taking was lawful (like a bailment) then only peaceful means may be used.
Force to regain possession of land
- Common law—reasonable force permitted
- Modern rule—use of force is no longer permitted; only legal process
Defenses to Intentional Torts Involving Personal Injury > Parental Discipline
Parental Discipline—parents may use reasonable force as necessary to discipline children.
Defenses to Intentional Torts Involving Personal Injury > Privilege of Arrest
Privilege of Arrest
Private citizen Permitted to use reasonable force to make an arrest in the case of A FELONY IF the felony has actually been committed; and the arresting party has reasonable grounds to suspect that the person has committed the felony
- reasonable mistake as to the IDENTITY of the person is OK
- mistake as to whether the FELONY was actually committed is NOT Ok
Police Officers — Must reasonably believe that a felony has been committed and that the person arrested committed it (immune to tort liability)
- mistake as to felony OK - immune
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c. Misdemeanor
Police Officers
- An arrest by a police officer may only be made if the misdemeanor was committed in the officer’s presence
Private Person
- An arrest by a private person may only be made if there is a “breach of the peace.”
Harms to Personal Property and Land > 1) Trespass to Chattels 2) Conversion
1) Trespass to Chattels
When a defendant intentionally interferes with the plaintiff’s right of possesion by:
a) Dispossessing the plaintiff of the chattel (harm is inferred); OR
b) Using or intermeddling with the plaintiff’s chattel AND proof of actual damages:
- actual harm to the chattel
- substantial loss of use of the chattel or
- bodily harm to the plaintiff
Intent
- Only the intent to do the act; need not intend to interfere
Damages
- May recover actual damages, damages resulting from the loss of use, nominal damages, or the cost of repair
2) Conversion —intentionally committing an act depriving the plaintiff of possession of his chattel or interfering with the plaintiff’s chattel in a manner so serious as to deprive the plaintiff entirely of the use of the chattel.
Intent
- Defendant must only intend to commit the act
- Mistake of law or fact is not a defense.
Damages
- plaintiff can recover the chattel’s full value at the time of conversion
Trespass to Chattels vs. Conversion—The more EXTREME the interference, the more likely the court will find CONVERSION.
Courts consider the following factors:
- The duration and extent of the interference;
- Defendant’s intent to assert a right inconsistent with the rightful possessor;
- Defendant’s good faith;
- Expense or inconvenience to the plaintiff; and
- Extent of the harm
Harms to Personal Property and Land > Trespass to Land
Trespass to Land—
- Defendant’s intentional act causes a physical invasion of the land of another
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Intent
- Defendant need only have the intent to enter the land or cause the physical invasion.
- Intent to commit a wrongful trespass is NOT required.
- Mistake of fact is not a defense.
Defendant need not enter land
- intentionally flooding the plaintiff’s land, throwing an object (e.g., a rock) onto it, or intentionally emitting particulates into the air over the land will each suffice
No Requirement of Damages
- As with most other intentional torts, damage is presumed; i.e., actual injury to the land is not an essential element of the cause of action.
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NECESSITY DEFENSE
In general
Private necessity Defense — available to a person who enters onto the land of another or interferes with that individual’s personal property to prevent an injury or other severe harm
- Even though trespass is excused, The defendant is LIABLE for actual damages they have caused, (but not nominal damages)
- The landowner may not use force to exclude the person.
Public Necessity Defense
When necessary to protect a large number of people from public calamities.
- NOT liable for damages to the property
Harms to Personal Property and Land >
Nuisance: Private v. Public
1) Private Nuisance:
Substantial and Unreasonable interference with the USE and ENJOYMENT of someone’s property
- Objective Standard: must be unreasonable to an objective person, even if the plaintiff is not personally bothered by it. – someone’s special allergies, etc. not considered
- An interference is unreasonable if the severity of the plaintiff’s harm outweighs the utility of the defendant’s conduct
2) Public Nuisance:
An UNREASONABLE interference with RIGHTS common to the general public (e.g., health, safety, peace, property) that affects the entire community at large.
- USUALLY brought by a public official or entity. (e.g., a state)
- However, A private citizen can sue for public nuisance only if they suffer UNIQUE harm in kind from that suffered by members of the general public
- unlike a private nuisance, a public nuisance does not require that the plaintiff have possessory rights in real property
examples
- air pollution, pollution of navigable waterways, interference with the use of public highways, and interference with the public’s use of parks or other public property.
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“Coming to the Nuisance” - Generally NOT a Defense
- However, it may be considered by the jury in determining whether the plaintiff can recover for the nuisance. Damages may be decreased.
- The thought is: the purchaser is still entitled to reasonable use or enjoyment of his land to the same extent as any other owner as long as he buys in good faith and not for the sole purpose of a harassing lawsuit.
Negligence > 3 Types of Negligence
1) Common Law Negligence
2) Negligence Per Se
3) Res Ipsa Loquitur
The defense to an intentional tort is consent, while the defense to negligence and strict liability is assumption of the risk.
Negligence > Elements
1) Duty: An obligation toward another party
2) Breach: Failure to meet that obligation
3) Causation: Cause in fact (actual cause) and Proximate Cause (legal cause)
4) Damages: The loss suffered. Physical Harm required
The defense to an intentional tort is consent, while the defense to negligence and strict liability is assumption of the risk.
CL Negligence: Duty >
(1) owed to who? (2) standard of care?
1) Forseeable Plaintiffs (zone of danger)
2) Reasonably Prudent Person under the circumstances
- Objective standard - D Is presumed to have average mental abilities and knowledge
Modified standard for
- physical charachteristics: blindess, deafness, etc.
- children
Intoxicated persons
- objective standard (reasonable sober person) unless involuntary intoxication (reasonable intoxicated person)
CL Negligence: Duty > Standard of care for professionals?
Like other similar professionals with same background and training in that community
CL Negligence: Duty > Standard of care for a child?
like a reasonable child of similar age, intelligence, and experince
Exception:
- Adult activities - child who is engaged in adult activities is held to the objective standard for adults
CL Negligence: Duty > Parent’s Duty to prevent their child from committing harm?
When the parent knew or should have known their child was likely to commit harm
Parents have a duty to exercise reasonable care in the supervision of their minor children
CL Negligence: Affirmative Duty to Act (Special Relationships)
Generally, there is NO DUTY to aid, assist, or rescue. However–once you begin, must administer reasonable care.
Exceptions
- Special Relationships
- or If you create the risk which endangers the person, then you must act
Rescue Doctrine
- Under the rescue doctrine, persons who negligently endanger themselves or others are liable for injuries sustained by RESCUERS.
- Limited by the firefighter rule.
SPECIAL RELATIONSHIPS create an AFFIRMATIVE DUTY of regular reasonable care (regular standard) to aid or assist those persons and prevent reasonably foreseeable injuries. (Not a superman duty)
- Parent/child
- Hospital/patient
- Employer/employees
- Shopkeeper/business invitees
- Common carrier/passengers
- Custodian/person in custody
- Innkeeper/guests
The higher standard we place on the special relationship does not change the reasonable care standard, but rather it places the AFFIRMATIVE duty to act, where usually there is no affirmative duty to do anything
Rescue Doctrine (Firefighter/Police Rule)
Rescue Doctrine – Under the general rescue doctrine, persons who negligently endanger themselves or others are liable for injuries sustained by rescuers.
- But the firefighter’s rule is a limitation on the rescue doctrine that applies to all professional rescuers (eg, police officers, lifeguards, firefighters).
- RULE: This rule BARS professional rescuers from recovering for harm that resulted from the special dangers of their jobs—eg, the negligent conduct that created the need for their professional intervention.
Special Relationships > Standard of Care
By authority—a person with the ability and actual authority to control another has a duty to exercise reasonable control.
- Example: A warden’s control over a prisoner; a parent’s control over a child
By relationship—defendant has a special relationship with the plaintiff
- Example 28: Common carrier-passenger; innkeeper-guest
These affirmative duties are not a Superman duty. It is a duty of reasonable care to aid or assist those persons and prevent reasonably foreseeable injuries.
CL Negligence: Duty > Landowner’s standard of care owed to:
- Unknown Trespasser
- Known Trespasser or Licensee (social guests, friends)
- Invitee (BUSINESS invitee, economic purpose)
1) Unknown or Unanticipated Trespasser – NO DUTY of care (LOWEST)
2) Known or Anticipated Trespasser or Licensee – DUTY to warn of KNOWN, hidden dangers to the landowner (social guests, friends)
3) Invitee – Duty to INSPECT, WARN, CLEAN UP / MAKE SAFE (BUSINESS invitee, economic purpose)
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NOTES
- LOOK FOR invitee who becomes a trespasser if they exceed the permission given to them or enter somewhere where landowner expressly does not give them permission to go.
Modern Approach
Under the modern approach to land-possessor liability, land possessors owe a duty of reasonable care to all land entrants (except flagrant trespassers).
Under the modern approach to land-possessor liability, land possessors owe a duty of reasonable care to all land entrants (except flagrant trespassers).
CL Negligence: Duty > Landowner’s standard of care> Attractive Nuisance
ATTRACTIVE NUISANCE– (Landowner NEGLIGENCE theory)
Land possessors have the duty to protect child trespassers from artificial conditions on their land when:
- 1) the condition exists where the land possessor knows or should know that children are likely to trespass
- 2) the land possessor knows or should know that the condition poses an unreasonable risk of serious bodily harm or death to children
- 3) children of the trespasser’s age cannot reasonably discover or appreciate the risk and
- 4) the risk outweighs the condition’s utility and the burden of eliminating the risk.
A land possessor who breaches this duty and causes the child trespasser physical harm is liable for NEGLIGENCE.
Breach > Evidence of Custom
1. Generally
2. Professionals
3. Physicians (+ infomed consent)
BREACH—EVIDENCE OF CUSTOM
Generally
- evidence of custom is admissable, but not dispositive
Professionals
- Evidence of custom is admissible AND dispositive of breach of duty
- Compliance with custom is a shield = no breach
- Deviation from custom is a sword = breach
Physicians
Modern trend—national standard
Traditional rule—physician in the “same or similar” locality
Informed consent:
Doctors must explain risks of medical procedures and Patients must give informed consent
Doctors are not required to inform the patient if:
- The risks are commonly known;
- The patient is unconscious or otherwise unable to consent (incompetent)
- The patient waives/refuses the information;
- The patient would be harmed by disclosure (e.g., it would cause a heart attack).
Physicians unconsented physical contact
- A physician’s failure to secure a patient’s consent to the nature, type, or extent of physical contact that the physician intentionally causes as a battery
Negligent Infliction of Emotional Distress (NIED)
Negligent Infliction of Emotional Distress (NIED)
- 3 Scenarios
- Physical manifestation—most jurisdictions require some physical manifestation of distress (such as nausea, insomnia, or miscarriage).
1) Zone of danger (Strangers or relatives)—a plaintiff can recover for NIED if:
- The plaintiff was within the “zone of danger” of the threatened physical impact; and
- The threat of physical impact caused emotional distress
- Physical manifestation
2) Bystander recovery (Close relatives ONLY) – A bystander can recover for NIED if the bystander:
- Is CLOSELY RELATED to the person injured by the defendant;
- Was present at the scene of the injury; and personally observed the injury.
- Physical manifestation
3) Special relationship scenarios – when the plaintiff suffers serious emotional distress because the defendant negligently
- delivered medical information (e.g., a negligent misdiagnosis),
- mishandled a loved one’s corpse or bodily remains, or
- contaminated food with a repulsive foreign object.
- Physical manifestation
Strict Liability: 2 Scenarios
1) Wild Animals — Defendant is strictly liable for injury resulting from their animal’s dangerous propensities.
- Wild Animal - SL
- Domestic Pets - NO SL unless that particular pet has known dangerous propensities
a) Scope of Risk:
- Defendant is liable only to foreseeable plaintiffs
- Injury must flow from the dangerous propensity
b) Superceding Causes Cut off Liability
- Defendant’s liability can be cut off by unforeseeable intervening forces (superceding cause)
c) Plaintiffs
- Licensees and invitees- Strictly Liable
- Trespassers - NO SL, must prove negligence
d) Trespassing Animals (commonly livestock)
- Owner of animal is strictly liable for damage caused by his animals while trespassing on another’s land as long as it was reasonably forseeable.
- Animals on PUBLIC Roads - Negligence Standard
e) Trespassing Pets
- Not SL unless owner knows or has reason to know the pet is trespassing on another’s property in a harmful way
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2) Abnormally Dangerous Activity — strictly liable for personal injuries and property damage proximately caused by abnormally dangerous activity, regardless of precautions taken to prevent the harm
a) Definition: Abnormally Dangerous Activity
- (i) The activity must create a foreseeable risk of serious harm even when reasonable care is exercised;
- (ii) The activity is not commonly engaged in.
- Explosives, Hazardous chemicals, etc.
b) Scope of Risk:
- Defendant is liable only to foreseeable plaintiffs
- Injury must flow from the dangerous propensity
c) Superceding Causes Cut off Liability
- Defendant’s liability can be cut off by unforeseeable intervening forces (superceding cause)
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DEFENSES - Assumption of the risk
DEFENSES - Unforeseeable Intervening Cause (Superceding Causes) - Cut off Liability
- Defendant’s liability can be cut off by unforeseeable intervening forces.
Contributory negligence is NOT a defense to Strict Liability
The defense to an intentional tort is consent, while the defense to negligence and strict liability is assumption of the risk.
Products Liability: 4 theories to sue
Bought something broken/defective. . .
1) Strict Product Liability (connected)
2) Inadequate warning (connected)
3) Negligence
4) Warranty
Products Liability > Strict Product Liability theory
(and Inadequate Warning)
STRICT PRODUCT LIABILITY (for defective products) To prevail in an action based on strict products liability, the plaintiff must prove that the defendant is a commercial supplier—one engaged in the business of manufacturing, distributing, or selling products—who produced or sold a defective product that caused the plaintiff harm. A product is defective if a manufacturing error caused the product to deviate from its intended design despite the manufacturer’s exercise of all possible care.
Elements:
- The product was defective (in manufacture, design, or warning)
- The defect existed when the product left the defendant’s control; and
- The product was used in a reasonably FORESEEABLE way
- The defect caused the plaintiff’s injury
Foreseeable Use of Product
- User negligence is foreseeable (does not bar claim; reduces)
- Using product to perpetrate a felony is NOT forseeable (misuse).
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TYPES OF DEFECTS
1) Manufacturing Defect - The product deviated from its intended design
2) Design Defect – the product conformed wiith its intended design
Two tests. The more technical the product is, the more likely it is that the risk-utility test will apply. Product is defective in design if:
- Consumer expectation test: it is less safe than the ordinary consumer would expect.
- Risk-Utility Test: the risks outweigh its benefits; must show that there is a reasonable alternative design
3) Inadequate Warning (type of design defect) a failure to provide reasonable warnings or instructions regarding any nonobvious, foreseeable risk posed by its product if doing so will reduce that risk.
- Includes duty to warn of foreseeable dangers from misuse
- Requirements—P must show that the product failed to have clear and complete warnings of any dangers that would not have been ordinarily apparent to consumers
Unavoidably unsafe products—if a product cannot be made safe for its ordinary use (e.g., chain saw, firearms), manufacturer must give:
- Proper instructions for use; and
- Adequate warnings of known dangers
Learned-intermediary rule
- a manufacturer of a prescription drug or medical device will NOT be held strictly liable for inadequate warnings or instructions if the manufacturer warned the prescribing physician about the risk of harm associated with that product.
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PLAINTIFFS/DEFENDANTS
Plaintiffs – No privity requirement.
- ANYONE foreseeably injured by a defective product, including purchasers, other users, rescuers, and bystanders
Defendants – Any commercial supplier in chain of supply who sells the defective product, regardless of whether they were negligent (2nd element).
- Commercial suppliers—one engaged in the business of manufacturing, distributing, or selling products—who produced or sold a defective product that caused the plaintiff harm.
- No casual sellers, Service providers (ex: dentist implanting defective synthetic tooth)
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DEFENSES BARRING recovery
a) assumption of the risk - BARS RECOVERY
- if the risk is one that the plaintiff knew about and voluntarily chose, then the plaintiff will not be allowed to recover.
b) Substantial alterartion of the product - BARS recovery
- Product must be same as when the product left the defendant’s control.
- foreseeable alteration does not bar recovery - may allow limited liability
c) Pure economic loss – no recovery
- No recovery if the defect in a product causes damage only to the product itself.
NOT a Defense
b) comparative/contributory negligence - reduces recovery
- plaintiff’s own negligence reduces his recovery. Courts hesitate to allow the plaintiff’s negligence to completely bar the plaintiff’s recovery in contributory jurisdictions.
- negligence is foreseeable
c) Foreseeable product misuse, modification, alteration
- foseeable misuse, modification, alteration – still strictly liable, viewed as examples of comparative negligence.
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EVIDENCE speaking to defect - never dispositive
a) Compliance with governmental standards
- EVIDENCE that product is not defective, but not dispositive evidence
- Exception: federal preemption—when Congress has preempted regulation in a particular area (expressly by statute or impliedly by regulating the field)
b) “State of the art” defense
- In some jurisdictions, the relevant state of the art at the time of MANUFACTURE or WARNING is evidence that the product is not defective.
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DISCLAIMERS, LIMITATIONS, WAIVERS DO NOT BAR CLAIMS FOR STRICT PRODUCT LIABILITY
There are 3 types of product defects: manufacturing defects, design defects, and warning defects. (Motorcycle example)
1) Manufacture: The motorcycle has plastic bolts where there are supposed to be metal bolts; the motorcycle was defectively manufactured.
2) Design: The motorcycle was built as designed, but it is unstable when carrying a passenger or heavy rider; the motorcycle’s design is defective.
3) Warning: The manufacturer should have warned riders that the motorcycle cannot accommodate passengers.
Defamation
(+ 2 Types of Defamation and Damages)
In a defamation action, a plaintiff must prove that the defendant:
* Made a defamatory statement;
* That is concerning of the plaintiff;
* The statement was published to a third party who understood its defamatory nature; and
* damage to the plaintiff’s reputation results.
1) Defamatory Language — Language that diminishes respect, esteem, or goodwill toward the plaintiff, or deters others from associating with the plaintiff
- Falsity—defamatory statements must be false
- An opinion is not actionable as defamation.
2) “Of or Concerning” the Plaintiff — A reasonable person must believe that the defamatory language referred to this particular plaintiff
- Statements referring to a group—a member of the group can bring an action only if the group is so small or the context is such that the matter can reasonably be understood to refer to that member.
- A deceased individual cannot be defamed.
3) Publication to a Third Party — The statement must be communicated to a third party.
- A person who repeats a defamatory statement may be liable for defamation.
- Internet service providers and platforms are not publishers for the purposes of defamation. (they are means. think comcast or facebook)
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Types of Defamation and Damages
1) Libel—a written, printed, or recorded statement (including TV/radio broadcasts, e-mail, and electronic communications)
Damages: P may recover general damages
- (i.e., recovery without proof of measurable harm)
2) Slander—a statement that is spoken
Damages: P must prove special damages
- (requires a showing of economic loss);
Unless statements communicate slander per se:
- Commission of a serious crime
- Unfitness for a trade or profession
- Having a loathsome disease
- Severe sexual misconduct
Defamation > Constitutional Requirements
Constitutional limitations will depend on the type of plaintiff.
1) Type of Plaintiff
a) Public official
- a person who has substantial responsibility or control over a government office, including a political candidate
b) Public figure
- i. General purpose public figure—a person of persuasive power and influence in society (celebreties)
- ii. Limited purpose public figure—a person who thrusts himself into a particular controversy (social activist)
c) Private individuals
- Most plaintiffs. Neither a public official/figure
2) Constitutional Limitations — P Must prove certain things in addition to regular defamation elements
Public official/figure (RECKLESS STANDARD)
- Plaintiff must prove that the person who made the statement acted with actual malice: either KNEW that it was false or acted with RECKLESS disregard (conscious disregard) for the truth
- (harder to prove defamation, more protection and rights given for statements regarding public officials/figures)
Private individuals (NEGLIGENT STANDARD)
- P must prove that D knew the statement was false or acted with NEGLIGENT disregard for its falsity (should have known the statement was false)
Invasion of Privacy
Invasion of Privacy
- applies to people, not corporations
- right terminates upon death of P
1) Intrusion Upon Seclusion —Highly offensive and intentional intrusion on plaintiffs solitude, seclusion, or private affairs
- ex: phone tapping, hacking medical records, peeping toms
- highly offensive to a reasonable person.
2) False Light —publicity given to false information about plaintiff with actual malice that places them in highly offensive and false light and results in damages
- ex: Writing a story about one person and including a mug shot of someone else.
- Qualified and absolute privilege defense apply
3) Appropriation of the Right to Publicity — unauthorized use of plaintiffs name or likeness for personal benefit (eg, Commercial advantage)
- ex: Utilizing someone’s voice in a commercial
4) Public Disclosure of Private Facts — publicity given to highly offensive and private matter concerning plaintiff that is not of legitimate public concern and results in damages
- Qualified and absolute privilege defense apply
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Damages
- Emotional or mental distress
- special damages NOT NEEDED
Defenses
Consent - VALID defense to privacy torts
Truth—NOT VALID defense to privacy torts, as opposed to defamation
BUSINESS TORTS > Intentional Interference with Business Relations
1) Intentional Interference with a Contract
2) Interference with a Prospective Economic Advantage
3) Misappropriation of Trade Secrets
1) Intentional Interference with a Contract
Elements
- A valid contract existed between the plaintiff and a third party;
- Defendant knew of the contractual relationship;
- Defendant intentionally interfered with the contract, resulting in a breach; and
- The breach caused damages to the plaintiff
Nature of the contract
- Must be a valid contract
- Cannot be terminable at will
Interference with performance other than inducing breach
Defendant may be liable when he prevents a party from fulfilling its contractual obligations or substantially adds to the burden of performance
Defendant’s conduct must exceed the bounds of fair competition and free expression (flagrant)
2) Interference with a Prospective Economic Advantage
- Defendant intentionally interferes with a prospective business relationship or benefit between the plaintiff and a third party, in the absence of a contract
- The elements are the same as for intentional interference with a contract (without the contract), but the conduct must be wrongful.
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3) Misappropriation of Trade Secrets
- Plaintiff owns information that is not generally known (a valid trade secret);
- Plaintiff has taken reasonable precautions to protect it; and
- Defendant acquires the secret by improper means
