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1L Spring > Torts final > Flashcards

Torts final Flashcards

1
Q

contributory negligence

negligence defenses

A

-older, minority approach
-any negligence by P results in total bar to recovery

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2
Q

comparative negligence

negligence defenses

A

-majority view
-negligence by P results in reduced recovery
- can be total bar to recovery in some cases

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3
Q

assumption of risk

negligence defenses

A

-mostly abandoned
-express v. implied
-total bar to recovery?

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4
Q

immunities

negligence defenses

A

-judicial proceedings
-employer
-families
-charities
-governments
-tribes
-public officers

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5
Q

Pure “full” comp. negligence

negligence defenses

A

-no threshold
-% of fault reduces

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6
Q

modified “Partial” comp. negligence

negligence defenses

A

-50% allowed rule (tie to p) (majority)
- “is not greater than” language
- South dakota’s doctrine
50% bar rule (tie to D) ( minority)
- “is less than” language

collective defendant’s (majority) & defendant-by-defendant (minority)

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7
Q

express assumption of risk

neglgience defenses

A
  • requires an explicit agreement in words (written or oral) assuming the risk
  • majority of jurisdictions still recognize, with limits
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8
Q

implied assumption of risk

negligence defenses

A
  • by conduct or actions, p shows assumed risk
  • majority of jurisdcitions no longer recognize
  • may be subsumed in comparative negligence, leading to primary/secondary implied AoR analyses
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9
Q

express assumption of risk issues

negligence defenses

A
  • whether jurisdiction considers exculpatory contracts unenforceable due to lack genuine voluntariness
  • most jurisdictions: public necessities = unenforceable waivers
  • other problem areas: products liability cases, employement injury cases
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10
Q

general elements of assumption of risk

negligence defenses

A

knowledge & voluntariness
-knowledge: P knows and appreicates the risk, including its nature and severity
-voluntariness: P takes on risk in an antirely voluntary way

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11
Q

do pre-injury release forms release liability

negligence defense

A

AoR through pre-injury release from liability will be enforced if the injury is within the scope of the terms of the release and the release is not in violation of public policy

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12
Q

what are the issues with implied assumption of risk

negligence defenses

A

-primary implied: no duty (treatment of “obvious and necessary” risks compared to “obscure and unobserved” ones when estbaloshing existence of duty = complete bar to recovery)
- secondary implied: finding of fault reduces or bars percentage of recovery [D created the risk through negligence but he P appreciated the risk and still assumed it = reduction in damages]

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13
Q

when does cause of action occure

negligence defenses

A

when the P discovered or should have discovered the negligently inflicted injury rather than at the itme of the injury

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14
Q

zellmer v. zellmer

negligence defenses

A

WA decides to retain parental immunity in a case arising out of negligent supervision by a stepparent after having previously abandoned it with respect with intentional torts and situations

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15
Q

describe charitable immunity doctrine

negligence defenses

A
  • the traditional common law doctrine of charitable immunity no longer is recognized in most jurisdictions
  • charitable immunity continues to exist in modified form in some jurisdictions
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16
Q

riss v. new york

negligence defenses

A

-no duty is imposed on the police that cna be enforced through the tort system to protect citizens from crime

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17
Q

Delong v. Erie

negligence defenses

A
  • tort liability against a municipal government unit for negligent conduct may be imposed where the governmental unit negligently provided the service and the P had personally relied on the government’s promises
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18
Q

describe how the federal government is immune from suits

negligence defenses

A
  • through FTCA, Congress waived sovereign immunity under certain circumstances
  • Discretionary Function Exception [DFE} shields the government from liability when the actions taken were (1) discretionary and 92) the jdugment involve “is of the kind that the DFE was designed to sheild” that is when the conduct is in social, economic, or political goals”
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19
Q

describe Congress immunity

negligence defenses

A
  • the FTCA through the Westfall Act, provides that the remedy against the US for negligent acts of its employees is exclusive of any remedy against the employee
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20
Q

What was the holding in Bundt v. Embro

joint tortfeasors

A

P may file as many suits against potnetial D’s as he chooses and may take as many to judgment as he chooses, but P may collect only one full satisfaction.

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21
Q

what was the holding in Cox v. Pearl Investment

joint tortfeasors

A

The release of one joint tortfeasor releases them all, but a covenant not to sue is not a release and affects the liability only of the parties to it

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22
Q

How does the court view Mary Carter agreements

joint tortfeasors

A

Mary Carter agreements [whereby one D limits his liability by settling with P but staying in the case] are void as against public policy even if they were disclosed to the court and the opposing party

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23
Q

what happens when a joint tortfeasor pays more than their share

joint tortfeasors

A
  • Knell v. Feltman
  • Any joint tortfeasor who pays more than their share ofthe P’s damages may seek contribution [partial reimbursement] from other joint tortfeasors.
  • this right of contribution is not affected by the P’s choice of D’s and may be enforced through a 3rd party claim or seperate contribution action if P doesn’t join all of the joint tortfeasors
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24
Q

can non-immune tortfeasors collect from immune tortfeasors?

joint tortfeasors

A
  • yellow cab. v. dreslin
  • no they cannot collect contribution from immune tortfeasors
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25
Q

should settlement be encouraged?

joint tortfeasors

A
  • slocum v. donahue
  • allowing the settling D to buy its peace and not be subject to further liability for contribution v.
  • the fairness to nonsettling D
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26
Q

what happens when the defendant couldnt determine which were attributable to which accident

joint tortfeasors

A
  • Bruckman v. Pena
  • to assess all damages against the defendants if they could not determine which were attributable to which accident
  • shifted to the burden of P [BOP] to D’s to allocate P’s injuries beween the two accidents
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27
Q

what is the restatement [third[ of torts: liability for physical and emotional harm § 37

duty of care

A
  • general duty rule
  • “an actor whose conduct has not created a risk of physical harm to another has no duty of care to the other unless a court determines that [an] affirmative dut[y exists]
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28
Q

where does liability rest n privity of contract?

duty of care

A
  • winterbotton v. wright
  • liability rested soley in conctract which could not extend beyond those in privity
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29
Q

what is the duty of care in regards to manufacturers

duty of care

A
  • MacPherson v. Buick Motor
  • if the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made and there is added knoweldge that the thing will be used by persons other than the purchaser without new tests, then irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully
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30
Q

how does liability affect 3rd parties as monopolies or special relationships?

duty of care

A
  • HR Moch v. Rensselaer Water Co
  • independent duty must be found and this can arise from a public duty imposed by the status of the D as a monopoly provider or from a special relationship established resting upon the D’s assumption of responsibility and the P’s reliance to his detriment
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31
Q

what is the bridge to economic loss

duty of care

A
  • clagett v. dacy
  • the d attorney’s negligence caused P’s economic loss
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32
Q

what is duty of care under special relationships

duty of care

A
  • Commonwealth v. Peterson
  • a duty is imposed with regard to risk that arises within the scope of the relationship.
  • the court admits a duty may arise but asks whether it covers these risks. the degree of knowledge or foresign of the risk is cirtical for the court
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33
Q

act v. failure to act

duty of care

A
  • action is better seen as “conduct that creates a risk of harm”
  • No action i sbetter seen as “conduct that does not create a risk of harm”
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34
Q

what is the general rule for no duty

duty of care

A

an actor whose conduct has not created a risk of physical harm to another has no duty of care to the other unless a court determines that [an] affirmative dut[y exists]

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35
Q

what are special affirmative duty situations

duty of care

A
  • voluntarily undertaking a cuty of care
  • special relationships
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36
Q

what are the special relationships

duty of care

A
  • parent/child
  • employer/employee
  • common carrier/passenger
  • shopkeeper/patron
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37
Q

what is the duty of care of someone who voluntarily undertakes a duty

duty of care

A
  • subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking if (1) his failure to exercise such care increases the risk of such harm, or (2) the harm is suffered because the other’s reliance upon the undertaking”
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38
Q

what is the duty of care under special relationships (peril)

duty of care

A
  • the D may be liable for failure to act if the plaintiff is in peril
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39
Q

where is there a duty to rescue

duty of care

A
  • a duty to rescue may be owed i.e., a duty to take positive or affirmative steps- where D controls the instrumentality causing the injury. the duty went to aggravation and damages were limited to the aggravation
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40
Q

what is the duty of care of a doctor and patient

duty of care

A
  • a duty to exercise reasonable care to pritect a third persons will subsist once a therapist determines or should have determined that a patuent poses a serious danger of violence to those third persons.
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41
Q

when should a P be compensated for all damages

duty of care

A

-whether past, present, or prospective:
- includes compensation for economic damages; non-economic damages
- nominal damages are not available in negligence cases

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42
Q

what is pure economic loss for damages

duty of care

A
  • pure. economic losses that are not accompanied by physical damage to person or property are not compensable
  • common exceptions are accountants and attorneys
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43
Q

what is the economic loss owed from proximity

duty of care

A
  • Southern California Gas Leak Cases
  • economic losses caused by mere proximity to an industrial site damages by negligent actions, are not compensable in negligence. in such a case, the negligent actor does not owe a duty of care to avoid pure economic losses
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44
Q

elements of IIED

Duty of Care

A

(1) a volitional act
(2) Act is “extreme and outrageous conduct” [objective]
(3) intent or recklessness to cause severe emotional distress [subjective]
(4) substantial cause of actual damage

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45
Q

what test is used for duty of care under IIED cases

duty of care

A
  • Deley v. LaCroix
  • the court replaces the “physical impact” test with a “definite and obejctive physical injury” or “physical manifestation” test.
  • court adheres to the requirement that an ordinary person would have suffered such a reaction. P must prove causation, but a post hoc propter hoc nexus is tolerated when expert evidence would usually be indispensable
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46
Q

what test is required for IIED

duty of care

A
  • firm-bright-line-rule
  • (1) P establishes a close familial relationship
  • (2) P is present at the scene and is aware it is causing injury
  • (3) P, as a result, suffers “serious emotional distress. . . beyond that of disinterested witnesses and which is not abnormal”
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47
Q

NIEF that causes physical harm

duty of care

A
  • there is a limited duty not to negligently inflict emotional distress where there is a foreseeable risk of physical injury to the P, PLUS
  • (1) the P is within the “zone of danger” and
  • (2) the P suffers physical symptoms from the distress
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48
Q

NIED that does NOT cause physical harm

duty of car

A
  • If the actor’s conduct is negligent as creating an unreasonable risk of causing either bodily harm or emotional disturbance to another, and it results in sich emotional disturbance alone, without bodily harm or other compensable damage, the acotr is not liable for such emotional disturbance
  • restatement (second) §436a
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49
Q

physical harm, but no actual danger

duty of care

A
  • if the actor negligently causes “fright or other emotional disturbance which the actor should recognize as involving an unreasonable risk of bodily harm, the fact that the harm results soelly through the internal operation of the fright or other meotional disturbance does not protect the actor from liability

restatement (second) §436(1)

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50
Q

restatement (second), §436

duty of care

A

(2) if the actor’s conduct is negligent as creating an unreasonable risk of causing bodily harm to another. . . , the fact that such harm results solely from the internal operatio of fright or other emotional disturbance does not protect the actor from liability
(3) the rule. . . [also] applie where the bodily harm to the other results from his shock or fright at harm or peril to a member of his immediate famiyl occurring in his presence

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51
Q

bystander moetional distress

duty of care

A
  • There is a limited duty to not inflict emotional distress on bystanders outside the “zone of danger” of physical
    injury who see the defendant negligently injuring another, as long as: (i) the plaintiff and the person injured by the defendant are closely related; (ii) the
    plaintiff was present at the scene of the injury; and, (iii) the plaintiff personally observed or perceived the event
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52
Q

what are the exceptions where emotional distress often allowed without observation

duty of care

A
  • negligent mishandling of a relative’s corpse
  • negligent mistaken report of a terminal diagnosis
  • negligent mistaken report of a relative’s death
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53
Q

what is the duty of care for child death

duty of care

A
  • Procanik by Procanik v. Cillo
  • a wrongful life action was available where the D’s negligence robs the mtoher of the choice to abort the child, thus obligating the child into a wrongful life.
  • the damages cover special damages for extraordinary medical expenses during infancy and during majority
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54
Q

what are the 5 areas of focus in damages

damages

A

(1) types of damages
(2) jury allocation of damages
(3) the “collateral-source rule”
(4) duty to mitigate damages
(5) punitive damage fairness isues involving due process of law

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55
Q

what are the types of damages

damages

A
  • nominal
  • compensatory damages economic losses
  • compensatory damages non-economic losses
  • punitive (exemplary) damages
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56
Q

how do states view medical monitoring

damages

A

a dozen states have recognized it and 2x as many reject it

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57
Q

the amount of the award to be reduced is what value when the court is determining future losses

damages

A

present value (plus interest will equal amount awarded)

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58
Q

courts take instruct juries to take into account what

A

future inflation

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59
Q

is federal income tax included from income compensation for personal injuries?

damages

A

P’s recieve a windfall for the portion of their damage award that is to compensate them for lost wages that would have been subject income tax

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60
Q

what are the non-economic losses

damages

A
  • loss of function or appearance
  • loss of enjoyment of life
  • per-diem argument
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61
Q

what are judicial control of amounts recovered

damages

A
  • remittitur
  • additur
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62
Q

define remittitur

damages

A

a grant for a motion for a new trial that is conditioned upon the refusal of the P to accept a lesser amount

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63
Q

define additur

A

when the verdict is inadequate, grant a motion for a new trial that is conditioned upon the refusal of the D to pay a larger sum set by the court

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64
Q

may tortfeasors benefit by paying less in damages by sources of collateral

damages

A
  • TF may not benefit from [pay less in damages b/c of] payments made to the P by sources collateral to the TF
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65
Q

motion in limine

damages

A
  • motion made before trial to prohibit one side from referring to or introducing evidence that the other side believes is inadmissible
  • also so prejudicial that the moving party would not get a fair trial if it were mentioned before the judge had a chance to rule on its admissibility during the trial at the point if was offered
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66
Q

common law collateral source rule

damages

A
  • applied when the P recieves compensation from any source other than the TF

3/4 of states have modified collateral source rule-half provide that information concerning collateral source is admissible

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67
Q

loss of concortium

damages

A
  • most states recognize a claim by the spouse of an injured person for loss of relations, society, companionship, etc

claim is derivative of the injured person’s and in most states must be joined in the cause of action of the injured person

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68
Q

what do the courts charge for physical harm to property

damages

A
  • market value
  • what the property could have been sold for on the open market at the time and place where the wrong occured ; the highest price that could have been realized, not the lowest price at which there reasonably could have been a sale

some cases consider personal value

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69
Q

are people compensated for pets?

damages

A
  • not usually compensated for sentimental value of pets
70
Q

what does the duty to mitigate damages say

damages

A
  • a rule that doesn’t allow recovery of those damages that P could have avoided by RSBL conduct on the part of the P after a legal wrong has been committed by the D

also called doctrine of avoidable consequences

71
Q

what are the 3 guideposts from BMW

damages

A

(1) degree of reprehensibility
(2) no bright-line ratios involved
(3) disparity between punies and authorized civil penalties

72
Q

describe respondeat superior

vicarious liability

A
  • an employer will be vicariously liable for tortious acts committed by her employee if the tortious acts occur within the scope of the employment relationship
73
Q

describe vicarious liability

vicarious liability

A

one person commits a tortious acts against a 3rd party, and another person is liable to the 3rd party for this act

74
Q

can employee actions be imputed onto the employer?

vicarious liability

A
  • yes if the employee’s negligence was within the scope of employment at the time the negligent conduct occurs
75
Q

what is the slight deviation rule

vicarious liability

A

personal acts that are nto far removed in time, distance, or purpose from the employment are deemd to be incidental to employment and thu spart of the scope of employment

76
Q

frolic v. detour

vicarious liability

A
  • frolic is something the employer is not responsible for
  • detour is a slight deviation from employer’s purposes for convenience of employee for which employer is responsible
  • this is a question of fact that must be resolved by the jury
77
Q

do independent contractors have responsibility in vicarious liability claims?

vicarious liability

A

there is no responsibility for the actions of an independent contractor

78
Q

who is responsible for the independent contractor’s actions in nondelegable duties?

vicarious liability

A

the person upon whom the duty is imposed is responsible for the independent contractor’s actions in negligently performing the duty

79
Q

what are the duties for vicarious liability for independent contractors

vicarious liability

A
  • nondelegable duties
  • apparent authority
  • inherently dangerous activites or peculiar risk of harm
  • illegal activities
80
Q

can liability be imposed on joint ventures

vicarious liability

A
  • yes for those who engage
  • a joint venture is one where there is an agreement (express or implied) among the members of a group to act with a common purpose to enhance their pecuniary interest and in which they each have equal control over the direction of the enterprise
81
Q

in a majority juris, where does vicarious liability fall for owners of cars?

vicarious liability

A

on the owner of the car for the negligence of the driver

82
Q

what is the both ways theory?

vicarious liability

A

negligent conduct of a drive was attributed to the owner/passenger of the car to bar or reduce his recovery for his own injuries

83
Q

what are the policies for negligence

strict liability

A

(1) those who do not exercise reasonable care pay for injuries of those they injure by accident
(2) those injured by one who acts with reasonable care bear costs of theur own accidental injuries

84
Q

what are the policies for strict liability

strict liability

A

(1) those engaged in certain high-risk activities bear the cost for injuries caused by those activities even if reasonable care exercised

85
Q

what are the strict liability categories

strict liability

A

(1) animals
(2) abnormally dangerous activities
(3) products liability

86
Q

what is the prima facie for strict liability cases

strict liability

A

(1) the nature of the defendant’s activity imposes a strict duty to make it safe
(2) the dangerous aspect of the activity is the actual and proximate cause of the P’s injury
(3) the P suffered damage to person or property

87
Q

is an owner strictly liable for wild aniamls?

strict liability

A
  • yes, even if exercising utmost care
  • the keeper of a wild animal is requried to know the dagerous properties normal to the class to which it belongs
  • owner is subject to liability for harm resulting from a dangerous propensity that is characteristic of wild animals of that particular class
88
Q

what is the zookeeper exception

strict liability

A
  • most juris, subject zoos to negligence liability instead of strict liability b/c ofo their educational benefit to society
89
Q

what is the domestic animal rule

strict liability

A
  • owner of a domestic animal is not strictly liable for injuries it causes UNLESS owner has actual knowledge of that particular animal’s dangerous propensities
90
Q

what factors influence if an owner is strictly liable for domestic animals

strict liability

A
  • if keepers “know or have reason to know” a domestic animal i s”abnormaly dangerous”
  • applies even if owner acts with reasonable care to keep animal penned/leashed
  • contributory negligence is not a defense here
  • might also be able to asssert a theory of negligence
91
Q

can defendants be held liable for damage caused by “non-natural” use?

strict liability

A

yes, even if there is no negligence on their part causing the damage

92
Q

abnormally dangerous activity rule

strict liability

A

(1) one who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm
(2) this strict liability is limited to the kind of harm, the possibility of which mkaes the activity abnomrally dangerous

restatement (second) of torts § 519

93
Q

An activity is abnormally dangerous if: . . .

strict liability

A

(1) the activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors; and
(2) the activity is not one of the common useage

restatement (third) of torts: liability for physical and moetional harm § 20

94
Q

how does strict liability get imposed in regards to discharging firearms

strict liability

A
  • should not be imposed b/c the risk can be reduced by care, its common, and apparently has social utility
95
Q

strict liability in regards to transporting chemicals

strict liability

A
  • indiana harbor belt v. american cyanamid
  • the transportation of hazardous chemicals through a urban area is not one to which it is appropiate to apply strict liability
96
Q

what are the 6 restatement factors to identify adnomrally dangerous activities

strict liability

A

(1) existence of a high degree of risk of some harm to the person, land or chattels of others
(2) liklihood that resulting harm will be great
(3) inability to eliminate the risk by the exercise of reasonable care
(4) extent to which the activity is not a matter of common usage
(5) inappropiateness of the activity to the palce where it is carries on
(6) extent to which its value to the community is outweighed by its dangerous attributes

97
Q

what are typically considered abnormally dangerous activities

strict liability

A
  • collecting water/explosives in unsuitable places
  • blasting or lots of inflammable liquids in a city
  • crop-dusting or poisonous fumigation
  • oil wells or refinerues in close communities
98
Q

can plaintiffs recover in unforeseeable event

strict liability

A
  • P will not be able to recover in a strict liability case if the harm was caused by an unforeseeable event
  • proximate cause is narrower in S/L than in negligence = easier for P to prove proximate causation in a negligence case than in S/L case
99
Q

can contributory negligence is used as a defense to strict liability?

strict liability

A

no in some jurisdictions

100
Q

is assumption of risk a defense to strict liability

strict liability

A
  • yes, if P knew of the danger and unreasonable conduct was cause of harm
101
Q

is unknowing contributory negligence a defense to strict liability?

strict liability

A

no

102
Q

does partial defense comparative negligence apply as a defense to strict liability?

strict liability

A
  • applies in most jurisdictions, apply the same comparative neglgience rules as neglgience cases
103
Q

bright line test v. factor balancing reasonable test for owners and occupiers of land

owners and occupiers of land

A
  • bright line would save the costly inquiry to particular circumstances
  • applies a test of whether D had, under the circumstances, taken reasonable care about the condition
  • factors of location, use of property, and customary practice were being weighed in gauging reasonableness
104
Q

static conduct v. active conduct

owners and occupiers of land

A
  • active: courts apply the usual reasonable foreseeability test = reasonable use of property
  • the more active the conduct in the creation of any kind of hazard, the more likely the court will find liability
105
Q

do property owners need to act in anticipation of trespassers?

owners and occupiers of land

A
  • no duty should be found, at least in the absense of any pre-existing relationship.
  • however, the presence of the trespasser is known, then a duty will arise to take reasonable care with knowledge
106
Q

minority v. majority view on landowner duty to trespassers

owners and occupiers of land

A
  • some states: the only duty owned is to not act in an intentional, willful, or wanton manner to cause physical harm
  • most jurisdictions: require a duty of “ordinary care” and to avoid injury to trespassers, but only once the trespasser is discovered
107
Q

what duty do propery owners owe to licensees

owners and occupiers of land

A
  • invitee: duty would be more intrusive, requiring RSBL positive steps on part of P (duty to protect against unusual dangers)
  • licensee: duty turns on the D’s occupier’s actual knowledge of the propensities (duty to warn of traps)
108
Q

is there a duty to a licensee to inspect for defects/repairs?

owners and occupiers of land

A

no, but there is a duty to exercise reasonable care in the condcut of “active operations” for the protection of the licensee whom he knows to be on the property

109
Q

is there a duty for an owner/occupier to use reasonable and ordinary care in keeping of the property?

owners and occupiers of land

A

yes this duty is owed plus a duty to make reasonable inspections to discover dangerous conditions and make them safe

110
Q

what are landlords liable for?

owners and occupiers of land

A

(1) undisclosed dangerous condition known to lessor and unknown to the lessee
(2) conditions dangerous to persons outside of the premises
(3) premises leased for admission of the public
(4) parts of land retained in lessor’s control which lesee is entiteld to use
(5) where the lessor contracts to repair
(6) negligence by lessor in making repairs

111
Q

what is coase theorem

owners and occupiers of land

A

landlord is a better position to access the risk and act, without the free rider problems associated with collective tenant action

112
Q

what is product liability

products liability

A
  • generic phrase used to describe the liability of a supplier of a product to one injured by the product
  • includes theories under both negligence and stric tliability as well as express and implied warranties
113
Q

what are the policy goals of products liability

products liability

A
  • social responsibility
  • loss-spreading
  • saftey incentives
114
Q

what are privity-based theories in contracts

products liability

A
  • express warranty
  • implied warranties
115
Q

express warranty

products liability

A

affirmatively states a fact or promise about the product’s functioning as a “basis of the bargain”

116
Q

implied warranties

products liability

A
  • may be UCC-types laws
  • merchantability or fitness for a particular purpose (think item sold is reasonably fit for its general purpose it is sold)
117
Q

product liability subjective v. objective test

products liability

A
  • sub: more states are no longer requiring reliance
  • obj: only that D made warranties that would create justifiable reliance
118
Q

what is strict liability law

products liability

A
  • breaks the ability of a manufacturer to disclaim any responsibility for personal injury; provides same rationale for strict liability to promote public acceptance
119
Q

warranty protection extends to ____ users

products liability

A

foreseeable users even if they are not in the chain of distribution and manufacturer may not limit its liability to exclude recovery for personal injury

Hennsingsen v. Bloomfield

120
Q

are negligence and breach of warranty adequate causes of action?

products liability

A
  • strict liability for defective products is adopted by California b/c of its view that they are NOT adequate to compensate P

Greenman v. Yuba Power Products

121
Q

restatement (second) of torts s. 402A

products liability

A
  1. one who sells any products in a defective condition unreasonably dangerous. . . is subject to liability . . . if
    -> the seller is engaged in the biz of selling
    -> it is expected to & does reach the user without substantial change in which it is sold
  2. the tule state in subsection (1) applies through. . .
    -> the seller has exercised all possible care &
    -> the user has not. . . entered into any contractual relation with the seller
122
Q

what are the major types of products liability

products liability

A
  1. manufacturing defects
  2. design defects
  3. defects in marketing
123
Q

what are manufacturing defects

products liability

A
  • occur in production of the item and impact some of the overal production line
  • proof: product must be dangerous beyond the expectation of the ordinary consumer because of a departure from its intended design
124
Q

what are design defects

A
  • inherent flaws exist before the manufacturing, causing unreasonable dangerousness
  • proof: must be defective at time it leaves control of the manfactuer; there is a reasonable alterntive design
125
Q

what is defects in marketing

products liability

A

improper instruction or failure to warn the consumer of latent dangers

126
Q

what are risk-utility factors to assess designs

products liability

A
  1. usefulness and desireability of product to the public, weighted against liklihood and seriousness of harm
  2. availability of safer alternative products that would meet the smae needs and not be too expensive
  3. ability ti eliminate danger while meeting the same needs and not making the product too expensie
  4. obviousness of inherent danger to user, and avoidability with knowledge and suitable warnings
  5. expectations of danger by the ordinary consumer
127
Q

what are warning defects

products liability

A
  • product fails to provide adequate warnings of dangers that were known (or should have been known) and that are not apparent to users
  • proof: must show warnings are inadequate
128
Q

restatement (third) of torts, products liability s. 2(c)

products liability

A

a product is decfective b/c of inadequate warnings when the foreseeable risk of harm posed by the product could have been reduced or avoided by the provision of reasonable. . .warnings. . . and the omission of the instructions or warnings renders the product not reasonably safe

129
Q

plaintiff must demonstrate _ in California in order to for the court to impose strict liability

products liability

A
  • D has actual or constructive knowledge of the potential risk or danger

Anderson v. Owens-Corning Fiberglass Corp.

130
Q

can defect be proved by res ipsa loquitur?

products liability

A

-yes, defect may be proved by circumstantial evidence

131
Q

restatement (third) of torts, products liability s. 3

products liability

A

it may be inferred that the harm sustained by the P was caused by a product defect existing at the itme of sale or distribution, without proof of a specific defect, when the incident . . .
1. was a kind that ordinarily occurs as a result of product defect; and,
2. was not, in the particular cae, solely the result of causes other than product defect existing at the time of sale or distribution

132
Q

does comparative negligence principles apply to S/L?

products liability

A

-yes, they apply to products liability causes of action based on strict liability

Dely v. General Motors Corp.

133
Q

if a product is deemed not defective, but was a an extensive misuse, what is the misuse called?

products liability

A
  • other times, they say the misuse was “foreseeable” and the product is defective but damages may be reduced based on P’s fault
  • P’s misuse of a product will not prevent recovery under a strict liability theory of recovery if the P’s abnormal or unintended use of the product was or should have been foreseeable to the defendant
134
Q

should sellers of used cars and other used products be subject to S/L?

products liability

A
  • not applicable to those who sell used products where there is no showing that hte defect existed at the time the product left the manufacturer’s control or that the defect was creted by the used product seller

majority imposes S/L on retailers & wholesalers of new products

Peterson v. Lou Bachrodt Chevrolet Co

135
Q

Do companies such as Amazon classify as a seller?

A
  • no
  • when it proides a website for use by other sellers of products and facilities those sales under its fulfillment program, it is not a seller, and it does not have the liability of a seller

Erie Ins. Co. v. Amazon.com

136
Q

T.H. Novartis Pharmaceuticals Corp.

products liability

A

-Brand-name drug manufacturer may
be held liable for failure to warn of adverse
side effects based on injury caused by
plaintiffs’ exposure to a drug manufactured
by a generic drug manufacturer even though plaintiffs had not been exposed to any of the drug made by the brand-name manufacturer itself and defendant brand-name manufacturer had sold its rights to the drug to another drug manufacturer before plaintiffs were exposed to the generic version.

137
Q

what is the general basis for providing services

products liability

A
  • whether professional or non-professional is negligenc e
  • S/L does not apply the providing of services or to the sale of products if the product sale is incidental to the providing of a service
138
Q

what are the elements for defamation

defamation

A
  1. a false and defamatory statement (libel or slander) concerning an identifiable, living person
  2. that is published to a third person (withotu privilege)
  3. that damages the person’s reputation, and
  4. that satisfies first amendment requirements regarding falsity and level of fault
139
Q

defamatory words must expose the plaintiff to _

defamation

A
  • tend to “expose the plainitff to distrust, hatred, contempt, ridicule, or obloquy
  • not the hurtfulness of the words, but rather the effect of those words on a person’s ability to engage in normal social intercourse

Belli v. Orlando Daily Newspapers, Inc

140
Q

judge v. jury in deciding defamatory meaning

A
  • judge has task of deciding whether the pleaded material is capable of having a defamaotyr meaning
  • the jury has the task of deciding whether the material should be regarded as defamatory

Belli v. Orlando Daily Newspaper, Inc

141
Q

what is the standard for determining whether the meaning of a statement is libelous

defamation

A
  • Learned Hand concluded that a statement is libelous if some peopel find it to be libelous, even if that group is the “wrong thinking” or minority group

Grant v. Reader’s Digest Ass’n

142
Q

restatement (second) of torts §559 (1977)

defamation

A

“To be defamatory, it is not necessary that the communication actually cause harm to another’s reputation or deter third persons
from associating or dealing with him. Its character depends upon its general tendency to have such an effect. … It is enough that the communication would tend to prejudice him in the eyes of a substantial and respectable minority of the [community].”

143
Q

what is the affirmative defense to an action to libel (defamation)

defamation

A
  • truth
  • in order to support a defense of trith, it is necessary to prove merely that the statement was substantially true. specific charged, however, cannot be proven as truth merely by showing the P’s genereal bad character

  • truth is probably a constitutionally requried defense, but its force has not always been recognized
  • Kilian v. Doubleday & Co.
144
Q

can defamation be aimed at a particular class?

defamtion

A
  • no/maybe
  • to state a claim of liability, a P must plead that the statement refers to some ascertained person. statements about a class must have some particular circusmtances which point to the P as a person defamed

Neiman-Marcus v. Lait

145
Q

restatement (second), sec. 564(A)

defamtion

A

“as a general rule no action lies for the publication of defamatory words concerning a large group or class of persons”

146
Q

how many people need to identify the P that the defamation is about to bring a suit?

defamtion

A
  • 1+
  • P must show that a reasonable person who read the publication could identify it as a statement about the P. In addition, it is enough for even one person to identify the statement to be about the P

Bindrim v. Mitchell

147
Q

slander must show __

defamtion

A
  • must show the words caused special damage. the dmage must flow from the diminution of reputation rendered by the slander
  • if the slanderous statement is not actional per se (facially damaging to the P), it is necessary that the P should allege that some particular damage has happened. IN addition, the statement must be disparaging to the character of the P, and the special damage must “flow” from the damage to character

Terwilliger v. Wands

148
Q

What are the requirements for defamation through publication

defamtion

A
  • communication to third persons is essential
  • in order for there to be publication of a slanderous statement, the words must be spoken in the presnece of others, and
  • they must understand it

Economopoulos v. A.G. Pollar Co.

149
Q

where does the risk fall from print to online publication

defamtion

A
  • Internet reiceves favorable treatment in contrast to the print media
  • A commerical internet dating service is immune from liability under 47 USC 230 (c)(1) for a personal profile of plaintiff posted by an imposter

Carafano v. Metrosplash.com, Inc

150
Q

what is the single publication rule

defamtion

A
  • modern american law of libel
  • the publication of a book, periodicalm or newspaper containing defamatory matter gives rise to but one cause of action for libel which begins at the time of the original publication.
  • the statute of limitations runs from that date

Ogden v. Assoc. of the US Army

151
Q

the federal constitution prohibits officials from recovering damges for defamation unless they can prove _

defamtion

A
  • that the statement was made with actual malice
  • when the speaker had knowledge that the statement was false or acts with reckless disregard to whether it was false or not

NY Times v. Sullivan

152
Q

what is the standard for establishing actual malice

defamation

A
  • whether the speaker in fact entertained serious doubts to the truth of their publications
  • publisher however, cannot rely solely on his belief that the statemetn was true
  • finder of fact must determine whether the publication was indeed made in good faith

St, Amant v. Thompson

153
Q

what is the threshold of proof to show actual malice

defamtion

A
  • proof must be clean and convincing evidence of actual malice
  • failure to investigate will alone not support a finding of actual malice, but purposeful avoidance of the truth may
  • court must exercise independent judgment to ensure compliance with constitutional standard

  • departure from professional standards are not sufficient to establish actual malice, but they are strong start to proving the requisit actual malice
  • Harte-Hanks Communications, Inc v. Connaughton
154
Q

how far should the first amendment concerns control go if the P wasn’t a public official or public figure

defamation

A
  • public/private distinction turn on 2 matters that diminish the reputational intersts & advance the free speech interests:
    1. the marketplace of ideas and the advantages that a public person has in accessing that marketplace,
    1. the voluntary assumption of risk that public person may be said to take on

Gertz v. Welch

155
Q

what are the requirements for first amendment controls

defamation

A
  1. cannot impose liability without fault (must be negligence burden on P)
  2. no presumed or punitive damges (where no actual malice is shown)
    - shifts risk to P who must show the ingredients of fault or negligence
156
Q

what is the “actual malice” standard

defamation

A
  • the bruden of proof is on the plaintiff when the plaintiff is a “public figure” to prove the actual falsity of the statement
  • the plaintiff also must prove y clear and convincing evidence that the false statement was made knowingly or with reckless disregard of its falsity
157
Q

states may permit recovery of punitive damages in defamation cases without actual malice so long as _

defamation

A
  • so long as the defamatory statements do not involve matters of public concern

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

158
Q

what is the protection for private persons

defamation

A
  • defaming statements about private figured on “matters of public concern” cannot be penalized unless they were made knowingly or negligently with regard to their falsity
  • defaming statements about private persons and regarding purely private conduct recieve no special procedural protections under US Constitution (although state law may require some heightened proof standard)
159
Q

where does the burden to prove fall when the person defaming is posting speech of private concern?

defamation

A
  • a private -figure plaintiff cannot recover damages without also showing that the statements at issue are false
  • the burden is on the plaintiff

Philadelphia Newspaper, Inc. v. Hepps

160
Q

how does the court view opinions?

defamation

A
  • does not recieve additional absolute constitutional protection than other statements
  • statement on matters of public concern must be provable as false before there can be liability under state defamation law here a media defendant is involved
  • statements cannot reasonably be interpreted as stating actual facts about a person ARE PROTECTED
  • where a statement of opinion matters of public concern reasonably implies false and defamaotry facts regarding a public figure, that individual must show that the statements were made with knowledge of their false implications or with reckless disregard of their truth

Milkovich v. Lorain Journal

161
Q

factors to distinguish fact from opinion

defamation

A
  1. the type of language used;
  2. the meaning of the statement in context
  3. whether the allegely implied fact can be verified;
  4. the circumstances in which statement was made;
  5. whether a factual basis of the opinion was disclosed
162
Q

what are the core limitations on defamation liability for opinion

defamation

A
  1. A statement of opinion relating to matters of public concern which does not contain a
    provably false factual connotation will receive full constitution protection. (Often inherently unprovable such as “stupid,” a “real pain,” a “butt-head,” a “bastard.)”
  2. Constitution mandates “protection for statements that cannot RSBLy be interpreted as stating actual facts (parody cases).
  3. Constitutional limits on the type of speech which may be the subject of defamation actions, which protects statements consisting of rhetorical hyperbole, a vigorous epithet, or imaginative expression.
  4. Statements of opinion are not actionable unless they state or imply undisclosed, unassumed, or unknown defamatory facts. An opinion either evaluative or deductive
    is protected if it neither states nor implies new (“undisclosed”) defamatory facts. Protected opinions include comments on information already known, understood, or assumed by the recipient, comments on or implying true or non-defamatory facts or
    facts the defendant is privileged to communicate, or pure conjecturing which is understood as nothing more, and thus doesn’t imply reliance on any new or “undisclosed” defamatory facts

Professor Joseph King

163
Q

defenses and priviledges to defamation

A
  • truth
  • consent
  • certain governmental actors (judge, witness, juror, legislator, prosecutor)
  • spouses to each other
  • first amendment
164
Q

who has absolute privilege

defamation

A
  • judicial privilege
  • legislative proceedings
  • public officials (federal)
  • public officials (state)
165
Q

to determine privilege _

defamation

A
  • defamatory statement made by someone in discharge of public/private duty
  • any reasonable and appropiate method of publication may be adopted which fits the purpose of protecting particular interest
  • up to the D to prove that there was a proper interest or duty that justified publishing the statement
  • BUT privilege may be lost if the statement is improper

Sindorf v. Jacron Sales Co

166
Q

protection of publisher’s own interests

defamation

A

A person has a qualified privilege to
make defamatory statements in a RSBL effort to recover goods stolen from him, to collect money due him or prevent others from collecting it; to protect against the mismanagement of a concern in which he has a financial interest; to protect his own business against unfair competition; to protect his own personal safety; to protect his reputation from defamation on the part of others; or to defend any
other legitimate interest.

167
Q

protection of interests of a third person

defamation

A

when the publisher RSBLy believes that
there is information that affects a sufficiently important interest of the third party & that he publishes the information under a legal duty or IAW “generally accepted standards of decent conduct.”

168
Q

common interest

defamation

A

existence of common interest between the publisher and the recipient gives rise to a privilege to speak regarding the common interest

169
Q

D might successfully rely on the privilege even though he was aware of the fact that the statement was false with:

defamation

A
  • fair reporting
  • privilege to provide means of publication
  • fair comment

common law privileges

170
Q

fair reporting

defamation

A

privilege to report publi proceedings, public records, and official acts. restriction -> the report must be accurate and fair or disinterested

C/L privileges

171
Q

privilege to provide means of publication

defamation

A

when the author of the defamatory utterance is privileged to publish it, those who provide him with the appropiate means of publication are likwise privieged to do so

C/L privileges

172
Q

fair comment

defamation

A

Allows the publisher to offer criticism on matters of public
concern including activities of public officials & figures & on subjects scientific, artistic, literary, & dramatic. The criticism must be comment or opinion, not misstatement of fact. It must be fair=must be based upon true facts & express what an honest-minded person might conclude. (Need not be RSBL.) (No privilege if not actual opinion or made solely for purposes of causing harm.)

C/L privileges

1L Spring (8 decks)

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