Torts II

Question 1

Joint and severable liability - Definition

Answer 1

Each of several tortfeasors is liable jointly with the others for the amount of the judgment against them, and each is also individually liable for the full amount. The plaintiff can collect from any one or any group of them
1. There can only be one recovery

Question 2

3 Situations where joint and severable liability is applied

Answer 2

1. Defendants act in concert
2. Defendants fail to perform a common duty to the plaintiff
3. Defendants act independently to cause indivisible harm (no coordination, but each act together causes injury)

Question 3

Joint and severable liability - Exception

Answer 3

Unknown defendant (Bartlett v. New Mexico Welding Supply)

a. no way to seek contribution from unknown defendant
b. Erosion of joint and severable liability in the rise of comparative negligence
i. Decreases the injured plaintiff’s ability to recover
ii. Response by deep pocketed insurance companies

Question 4

Subsequent liability - Definition and factors

Answer 4

1. Second injury caused by weakened condition resulting from first injury
   a. Factors
   i. FIND AND FILL IN

Question 5

Concurrent Tortfeasors

Answer 5

1. Where separate acts of negligence combine to produce directly a single injury, each tortfeasor is responsible for the entire result, even though his act alone might not have cased it
   a. Jx Split: Some states allow you to pick only one D to sue (that D can then, in turn, implead the others) VS. being required to name all D in the initial cause of action
   b. Concurrent causes: present when the negligence of one party alone wouldn’t have been enough to cause the incident
   i. But-for test does not apply here

Question 6

Satisfaction

Answer 6

there can be only one satisfaction; occurs when judgment is actually paid out

i. Restatement § 886 (Bundt v. Embro)
ii. Collateral Source Rule – Payments not made by any of the defendants, such as gifts or free services, are not credited against D’s judgment. D is still liable for the free market value of services rendered.
iii. Partial Satisfaction – If P receives a partial satisfaction but it is not denoted as such, cannot recover the rest of judgment

Question 7

Release

Answer 7

i. A valid release of one tortfeasor from liability, given by the injured person, generally discharges others liable for the same harm
ii. Courts will look to the intent of the parties
iii. Some Jurisdictions allow a release to be set aside if the plaintiff thought there was no injury, and there turned out to be one
1. NOT if they knew they were injured but the injury turned out to be worse than they thought
2. In CA a sore neck is considered knowledge of an injury

Question 8

Covenant not to sue

Answer 8

i. A covenant not to sue one tortfeasor or not to proceed further against him does not discharge liability from any other tortfeasor
ii. Is NOT a release

Question 9

Mary Carter Agreements

Answer 9

i. P enters into a settlement agreement with D1, and then D1 assists P in going to trial and seeking damages from the remaining Ds. The Settling D, who remains a party to the case, guarantees P a minimum payment which may be offset by an excess judgment recovered at trial
1. Jx split: some jurisdictions allow some don’t

Question 10

Contribution

Answer 10

(Knell v. Feltman & Yellow Cab v. Dreslin)

i. Contribution - When one defendant is held liable and he later attempts goes after other defendants for their share of the liability
ii. When the parties are not intentional and willful wrongdoers, but are made so by legal inference or intendment, contribution may be enforced
iii. Negligent tortfeasors can seek contribution from parties not involved in the judgment
iv. Intentional tortfeasors – CANNOT receive contribution from someone not involved in the judgment

Question 11

Duties owed to persons outside the premises

Answer 11

reasonable care to prevent unreasonable risk of harm (Taylor v. Olsen, Salevan v. Wilmington Park)

a. D is liable if D knew or should have known of the hazard and did not take sufficient precautions to remedy the situation
b. Knew or Should have known:
i. Chance of injury is important (it all depends on circumstances)
ii. D is expected to do more if there is a higher probability of injury to public
iii. Duty is negated if it is a natural condition UNLESS D meddled with nature (though this is less relevant)
iv. There is a difference between urban and rural
ii. The greater the burden on the landowner required for prevention the less reasonable it is
1. If you have 2 trees it is not much burden to inspect them fairly regularly
2. If you own a forest it is a huge burden to know the condition of each tree
c. Exceptions
i. Highway Continuation – you owe a duty if your property is within a reasonable distance from the highway
ii. Alteration of natural conditions
iii. Artificial conditions – if a landowner is using their property in an artificial manner, they have a duty to take reasonable precaution to protect those outside the property; heightened responsibility because you know what is happening and have the ability to buy insurance
d. Read examples on page 498-499

Question 12

Duties owed to trespassers

Answer 12

A trespasser is a person who enters or remains upon land in the possession of another without a privilege to do so created by possessors consent or otherwise (R. 2d. §329

ii. General Rule: no duty owed to trespassers (Sheehan v. St. Paul & Duluth Ry. Co.)
iii. Exceptions
1. Trespasser whose presence has been discovered
a. Duty to warn or make safe, artificial conditions known to the landowner that involve a risk of death or serious bodily harm and that the trespasser is unlikely to discover
2. Frequent trespassers on a very limited area of land
a. Owner is required to anticipate trespassers and exercise reasonable care towards them
b. Same duty owed to discovered trespasser
3. Tolerated Intruders – trespass continuously happens but you don’t do anything about it
a. Duty to warn
iv. Other exceptions
1. Dangerous conditions known to the owner
2. Trapped trespassers in peril

Question 13

Licensee - definition and duty owed

Answer 13

i. A person who is privileged to enter or remain on land by the possessor’s consent but for the Licensee’s own purpose
1. Social guests – licensees because enter the property for “companionship, diversion, entertainment.”
2. Fireman, policemen, etc. are licensees not invitees
ii. Duty Owed - (R. 2d. §342): to warn of known hidden hazards or to make safe known hazards. Subject to liability for physical harm caused by a condition on the land IF:
1. Possessor knows or has reason to know of condition and realizes that it involves an unreasonable risk of harm, and expects that licensee will not discover or realize the danger, and
2. Fails to exercise reasonable care to make condition safe or to warn, and
3. Licensee does not know of condition or risk involved
iii. Some hazards are so dangerous that mere warning is not enough
iv. Children – Increased duty compared to an adult

Question 14

Invitees - Definition and duty owed

Answer 14

i. Definition – When the entrant goes onto the land in the furtherance of the owner’s business
1. It is not necessary that the invited person gain an advantage by his entry
ii. Duty - to investigate, locate/identify, and warn of or make safe hazards
1. Usually better to fix rather than simply warn.
2. No duty for a Natural Condition unless it is prolonged
3. Duty to invitee greater than duty to Licensee
iii. A regular customer of a business that is open to the public is an invitee, even if he did not purchase something on that particular visit
1. If a person has no intention of presently or in the future of being a customer, he could not be held as an invitee
iv. Examples on page 509

Question 15

Duty owed to children

Answer 15

i. Attractive nuisance
1. Only liable if child is injured by the precise thing that attracted them to the property
2. Replaced by Artificial Conditions Highly Dangerous to Passing Children
ii. Artificial Conditions Highly Dangerous to Passing Children
1. A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if:
a. The place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass
b. The condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or seriously bodily harm; AND
c. The children, due to their age, do not realize the risk associated with their intermeddling
d. The utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to the children involved: AND
e. The possessor fails to exercise reasonable care to eliminate the danger or otherwise protect the children

Question 16

Leassor/Leasee Duty owed

Answer 16

a. General Rule – Landlord is not liable for the tortious acts of the tenant
b. Modern case law usually limits the liability of a landlord arising out of a defective condition existing at the time of the lease to 6 exceptions
c. Exceptions
1. Undisclosed dangerous conditions known to the lessor but not to the lessee
a. Fix or inform
2. Conditions dangerous to persons outside the premises
3. Premises leased for the admission of the public
a. Must be safe at time of transfer
4. Parts of the land retained in the lessor’s control which leasee is entitled to use
a. Stairways, Hallways, etc.
5. Where the lessor contracts to repair
6. Negligence of lessor in making repairs
d. Scope of Landlord’s duty
i. Many jx treat the duty owed to the T the same as the duty to T social guests: General negligence standard—ordinary care (Pagelsdorf: P assisted D and fell off balcony)
ii. T cannot sign a exculpatory clause because T have unequal bargaining power.
iii. Criminal Acts (Kline: T assaulted while in common area of apt. building)
1. The LL is the only one in control of the common areas and is in the best position to protect people on the premises and LL can pass on the cost to all the Tenants
2. The foreseeability of the criminal acts should be very high

Question 17

Strict Liability - Prima Facie Case

Answer 17

(1) There must be an absolute duty on part of D to make safe;
(2) Breach of Duty;
(3) The breach was the actual and proximate cause of P’s injury; and
(4) Damage to P’s person or property

Applies to Either
Animals
Abnormally dangerous activities

Question 18

Strict liability - Animals

Answer 18

a. Liability not only for owner. Liability can exist when
i. Keeping
ii. Possessing
iii. Harboring
iv. Owning
b. Wild Animals
i. Not liable for wild animals unless the party possesses or controls the animal
ii. Community/Societal Standards are used to judge what qualifies as a wild animal
c. Domestic Animals
i. An owner is strictly liable for a domestic or inherently nondangerous animal if the owner has knowledge of that particular animal’s dangerous propensities abnormal to its class (dog; cat; etc.).
d. Injury must be caused by the thing that makes the animal dangerous (the dangerous propensity)
e. If warn (ex: “beware of dog” sign) no strict liability but can still be negligent
f. Trespassing Animals – the owner is strictly liable for the damage done by the trespass of his animals (other than household pets; Dogs, cats) as long as it was reasonably foreseeable
i. Fencing out laws - Strict liability if plaintiff has built a fence to “fence out” wandering animals and defendant’s animals cross the fence
ii. Fencing in laws – Must fence in animals, strict liability when escape

Question 19

Strict Liability - abnormally dangerous activity 2 Requirements

Answer 19

i. The activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors
ii. The activity is not a matter of common usage in the community

Question 20

Strict Liability - factors to determine “abnormally dangerous activity

Answer 20

c. Rest 520 - Factors considered in determining abnormally dangerous activities
i. Existence of a high degree of risk of harm to the person, land or chattels of others;
ii. Likelihood that the harm that results from it will be great;
iii. Inability to eliminate the risk by the exercise of reasonably care;
1. (Most likely to be tested on)
iv. Extent to which the activity is not a matter of common usage
v. Inappropriateness of the activity to the place where it is carried out; and
vi. Extent to which its value to the community is outweighed by its dangerous attributes

Question 21

Strict liability - Some activities courts have found to be abnormally dangerous

Answer 21

i. Pile driving
ii. Crop dusting
iii. Storage of toxic chemicals
iv. Fumigation with toxic chemicals
v. Testing of rockets
vi. Operation of plutonium production facility
vii. Operation of hazardous waste disposal sites
viii. Operation of oil wells

Question 22

Strict liability - Proximate cause and scope

Answer 22

g. Proximate Cause is the same as in negligence—D’s liability can be cut off by unforeseeable intervening forces. (more likely to find it unforeseeable)
i. Scope/Limitations
1. Duty owed to foreseeable P (Golden): persons to whom a reasonable person would have foreseen a risk of harm under the circumstances
a. D is not liable if D had no reason to anticipate the harmful result (unprecedented earthquake).
b. Remember that proximate cause is narrower than in Neg.
c. Look for language like: Extraordinary/once-in-a-generation
d. Third Party Act cannot give rise to SL even though the harm was caused by the activity which made the activity abnormally dangerous.
2. The harm must result from the type of danger to be anticipated from the dangerous animal or abnormally dangerous activity (it must flow from the normally dangerous propensity of the condition or thing involved) (Foster: Mink mother); relates to Prox. Cause.
a. Knowledge that activity would result in normally unforeseeable harm does not affect SL but does for Neg.

Question 23

Strict liability defenses

Answer 23

h. Defenses (Sandy)
i. Contributory Negligence—ONLY a defense if P knew of the danger and his unreasonable conduct was the very cause of the abnormally dangerous activity miscarrying.
ii. Assumption of Risk: affirmative defense in contributory neg. jx
iii. Comparative Neg. States: Same as Neg

Question 24

Products liability - Negligence warranty

Answer 24

(McPhereson) – Standard Negligence analysis

i) Duty to inspect

Question 25

Products liability - Express warranty

Answer 25

(Baxter) – an express warranty arises where a seller or supplier (1) makes any affirmation of fact or promise to the buyer relating to the goods that (2) becomes part of the “basis of the bargain” (UCC)

i) Disclaimers do not affect express warranties
ii) P only needs to show breach

Question 26

Express warranty - misrepresentation

Answer 26

A seller is liable for damages regardless of whether he knew his representation is false if (1) he represents a material fact as true, (2) the representation is false, the buyer acts (and reasonably relies in some jurisdictions) on the representation and (4) the buyer is injured as a result

iv) Puffery does not constitute an express warranty
(1) Puffery – this is the safest window on the market
(2) Express warranty – this window is shatterproof

Question 27

Implied warranty of merchantability

Answer 27

(Henningson)

(1) When a manufacturer puts a new product in the stream of trade and promotes its purchase by the public, an implied warranty that is reasonably suitable for use as such accompanies it into the hands of the ultimate purchaser
(2) Seller liable when
(a) the goods are not of a quality to that generally acceptable among those who deal in similar goods; and
(b) Are not generally fit for the ordinary purposes for which such goods are used

Question 28

Implied warranty of fitness

Answer 28

(1) Seller liable if knows or has reason to know
(a) the particular purpose for which the goods are required; and
(b) the buyer relies on the seller’s skill or judgment

Question 29

Limitations allowed on warranty

Answer 29

iii) According to UCC 2-719(3)
(1) disclaiming of consequential damages for injury to “the person” in the case of consumer goods is prima facie unconscionable
(2) BUT limitation of damages where the loss is “commercial” is not
(3) Some states have modified the UCC to prohibit the exclusion or modifications of implied warranties as to consumer goods and services

Question 30

Strict liability in Tort

Answer 30

(Greenman)

i) Different than normal “strict liability”
ii) A MANUFACTURER is strictly liable in tort when an article he places on the market, knowing it is to be used without inspection for defects, proves to have a defect that causes injury to a human being
iii) R 2d § 402A – Pages763-764
(1) A D is strictly liable for an unreasonably defective condition if
(a) D is a engaged in the business of selling such a product; AND
(b) The product is expected to and does reach the consumer without substantial change in the condition in which it was sold; AND
(c) P is injured as a result of the defect
(2) The rule applies EVEN if
(a) Has exercised all possible care in preparation and sale of the product, and
(b) The user or consumer has not bought the product from or entered into any contractual relation with the seller
iv) P has burden of proving that
(1) The product was defective
(2) The defect existed at the time the product left D; AND
(3) The defect caused harm to a reasonably foreseeable

Question 31

Difference between “strict liability in tort” and normal strict liability

Answer 31

Normal Strict liability - unreasonably dangerous

Strict Liability in Tort - Unreasonably dangerous AND a defective product

Question 32

Manufacturing Defects

Answer 32

a) Manufacturing Defects (RIX) – Strict Liability
i) A manufacturing defect exists if it departs from its intended design despite due care in preparation and marketing
ii) The product is NOT in the condition that the manufacturer intended at the time it left its control

Question 33

Design Defects

Answer 33

b) Design Defects (Prentis) – Negligence standard
i) A design defect exists if
(1) The foreseeable risks of harm posed by the product could have been reduced or eliminated by the adoption of a reasonable alternative design; and
(2) The omission of the alternative design renders the product not reasonably safe

Question 34

Design Defects - Why negligence and not strict liability

Answer 34

(1) Plaintiff can learn facts through modern discovery rules
(2) Negligence standard rewards careful manufactures and penalizes carelessness
(3) Judgment in a design defect case results in an entire product line change. Public will be deprived of the product and therefore the P should have a higher standard
(4) Negligence standard keeps consumers from taking advantage of careful manufacturers

Question 35

Design defects - risk/utility test

Answer 35

(1) Risk Utility Test
(a) Risk-utility analysis is appropriate when the product may function satisfactorily under one set of circumstances, yet because of its design presents undue risk of injury to the user in another situation
(i) Balance the risk of injury with the utility of the product and the costs of alternative designs
(ii) A reasonable alternative = economically feasible
(b) The competing factors to be weighed under this test invite the trier of fact to consider the alternatives and risks faced by the MFR and to determine whether in light of these, the MFR exercised reasonable care in making the design choices it made.

Question 36

Design Defects - Risk/utility test factors

Answer 36

(c) Factors:
(i) Usefulness and desirability of the product – utility to the user and the public as a whole
(ii) The safety aspects of the product – the likelihood that it will cause injury, and probable seriousness of injury
(iii) The availability of a substitute product which would meet the same need and not be unsafe
(iv) The manufacturer’s ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility
(v) The user’s ability to avoid danger by the exercise of care in the use of the product
(vi) The user’s anticipated awareness of the dangers inherent in the product and their avoidability, because of the general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions
(vii) Feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance
(viii) Was product state of the Art
(ix) Industry customs

Question 37

Design Defect - risk/ utility test - State of the art

Answer 37

(a) In design liability cases, a D can avoid liability by showing compliance w/”state of the art” at the time the product was made.
(i) Requirement that the Best scientific and medical technology that is practically and commercially feasible at the time the product was made or marketed
(ii) Not the same thing as “industry customs”
(b) Persuasive but not dispositive/determinitive
(c) The ultimate burden of proof is on plaintiff but the burden is on defendant to show that compliance with state of the art, in conjunction with other relevant evidence, justifies placing a product on the market
(i) Such proof does not compel a judgment for defendant, but may support a judgment

Question 38

Design Defect - Consumer expectations test

Answer 38

(3) Consumer expectations test: Ordinary consumer
(a) Some JX use for design defect
(b) Consumer = ordinary consumer
(i) NOT bystander

Question 39

Design Defects - Jurisdictions that use both risk-utility and consumer expectations test

Answer 39

(a) Which test the jury is instructed to use depends on the specific issues raised
(b) If BOTH are appropriate, “consumer expectations” is treated as one factor in the risk-utility analysis

Question 40

Design Defects - Open and Notorious Danger

Answer 40

(a) A few jurisdictions hold that an “open and notorious” danger is an absolute defense to design defect
(b) Most, however, use the obviousness of danger as a factor in the risk-utility analysis

Question 41

Design Defects - Reasonable alternative Design

Answer 41

(5) Reasonable alternative design

(a) Most jurisdictions require that the plaintiff prove an alternative feasible design in order to prove design defect

Question 42

Design Defects - Prescription Drugs

Answer 42

(a) No SL for defects because of usefulness and social utility

Question 43

Design Defects - allergic reactions

Answer 43

Most JX’s have handled this as a failure to warn issue and imposed a duty on the MFR to warn of possible adverse reactions only if knew or should have known of the risk

Question 44

Product defects - food

Answer 44

Strict Liability only if the injury-causing substance is a foreign object, otherwise P must prove negligence

Question 45

Products defects - Warnings

Answer 45

(10) Most Jurisdictions hold that you CAN’T overcome design or manufacturing defect with a warning

Question 46

Warning defects / failure to warn

Answer 46

i) Defects may arise from packaging and inadequate warnings, instructions, labels, etc.
ii) Cannot overcome a design or manufacturing defect
(1) Only come into play when adequately designed and properly build
iii) Inadequate warnings may make a product defective when the dangers are NOT apparent to customers
iv) Foreseeable risk of harm posed by the product that could have been reduced or avoided by the provision of reasonable instruction/warnings renders the product not reasonably safe
v) Anderson v. Owens Corning Fiberglass Corp.
(1) Electrician sued an insulation manufacturer for failure to warn of the risks of asbestos exposure
(a) D NOT held liable
(b) Rule: evidence that a particular risk was neither known nor knowable by the application of scientific knowledge available at the time of MFR and/or distribution provides a defense to warnings defect cases.
vi) Knew or should have known
(1) Most courts require P to show the manufacturer knew or should have known of the risks that injured P
(2) NO duty to warn of an unknown danger at the time it was sold
(a) Not at the time of the subsequent litigation
vii) Obvious dangers and generally known risks
(1) Most Jurisdictions have found no duty to warn of obvious dangers or generally known risks
viii) Allergic reactions and Hypersensitivity
(1) Most JX’s impose a duty a to warn if the ingredient is one to which a substantial number of persons are allergic
ix) Adequacy of warnings
(1) The issue of adequacy of warning is normally left up to the jury who relies upon expert testimony
x) Sophisticated users
(1) No duty when information is common knowledge
xi) **Learned intermediary rule: In cases involving pharmaceuticals, most courts hold that warnings and instructions should be provided to the physician, who is a “learned intermediary” b/w the drug company and the patient, as well as best person to understand the patient’s needs and assess the risks/benefits of a particular course of treatment.
(1) Note: many JX’s do not apply the learned intermediary rule in situations where the MFR is aware that there will be no medical provider to provide learned advice or where the patient is expected to take an active role in the selection of the product.

Question 47

Product Defects - Defenses

Answer 47

i) Comparative fault:
(1) Daly v. General Motors Corp.
(a) A driver was intoxicated and not wearing seat belt when he was killed by an allegedly defective door latch that gave way
(b) Comparative fault provides D a defense
(c) Contributory negligence does NOT apply to SL cases
(d) Rule: Comparative fault principles can be applied to strict products liability actions
(2) Ford Motor Co. v. Matthews
(a) Tractor operator was killed when the defective safety switch allowed the tractor to be started while in gear
(b) D was held liable
(c) Rule: MFR’s are liable for reasonably foreseeable, albeit abnormal, uses of their products.
ii) Assumption of risk:
(1) R.2d §523: One who KNOWS the danger or risk involved and unreasonably continues to use the product, may be held to have assumed the risk. When P voluntarily confronts a known hazard.

Question 48

Product Defects - D’s other than the manufacturer

Answer 48

i) Other suppliers of Chattels
(1) Peterson v. Lou Bachrodt Chevrolet Co.
(a) Father of 2 children injured in an automobile accident sued the used car dealer for strict products liability BC the used car was sold w/o adequate brakes
(b) D NOT held liable
(c) Rule: a remote retailer, who is outside of the original producing/marketing chain, is not subject to strict products liability
ii) Exam Tips:
(1) New products: of a MFR or seller of new goods may be subject to strict liability
(2) Used products: Many courts decline to impose strict liability on sellers of used products
(3) Retailers, wholesalers, and distributors: Most courts have extended strict liability to these sellers in the chain of distribution
(a) Reasoning:
(i) Many manufacturers are located in foreign countries and would be very difficult for the average customer to reach
(ii) Many products are manufactured by companies other than the one that markets the product
(4) Occasional seller: Who does not hold himself out as having any knowledge or skill in the commercial sense will not be subject to strict liability
(5) MFR of component parts/raw materials: Maker of a component part not subject to further processing or substantial change in the MFRing process is likely to be subject to strict liability if there is a defect in that part or material
(6) Corporate acquisitions/successor liability: Generally, successor corporation is liable only if:
(a) IT agreed to assume liability;
(b) The transfer was a fraudulent one
(c) The corporations merged; OR
(d) The successor is essentially a continuation of the original company
(e) SOME courts have gone further, holding a corporation that acquired substantially all of the assets of another corporation liable if it continues the product line

Question 49

Products Defects - Kinds of losses recoverable

Answer 49

(1) Personal injuries or death
(a) Pain and suffering caused by injury from the defective product are recoverable, together, with all damages consequential thereto – medical expenses, loss of income, etc.
(b) and if death results, a wrongful death action is available
(2) Property Damage
(a) Physical damage to other property is recoverable in almost all states
(3) Economic Losses
(a) Most courts do NOT allow recovery in tort for purely economic losses
(i) E.g. product does not perform well, and purchaser is deprived of profits she expected to make through its use or is forced to incur additional expenses to make it work, etc.
(b) Purchaser’s right to recover such losses is more of a “sales” problem than a “torts” problem, and she usually is limited to a contract action against the person who sold her the product.
(c) This approach applies even where the defect created a serious risk of personal injury that did not occur
(d) Minority Rule - Extended SL for defective products to purely economic losses

Question 50

Nuisance - Prima Facie Case

Answer 50

1) Act by D
2) Non-trespassory invasion of P’s interest
Intentional
Negligent
Strict liability
3) Substantial and unreasonable harm
4) Causation

Question 51

Nuisance - Intentional, negligent, strict liability

Answer 51

i. Intentional (Rest.2d §825) – When actor knows that his conduct is interfering with the P’s right, or knows that it is substantially certain to do so
1. Not intent to cause harm, but intent create the circumstances that causes the harm
a. Playing loud music at midnight – intent to play the music, NOT intent to bother neighbors
ii. Negligence
1. Basis for Nuisance when the D has not intentionally interfered with the protected interest, but has failed to exercise reasonable care to avoid the interference
a. Property may be allowed to fall into disrepair so that a private nuisance is created
b. For liability based on negligence, the condition must be discoverable using reasonable care
iii. Strict Liability
1. Basis for nuisance when an activity poses extreme danger to plaintiff’s use and enjoyment of property
a. EX: If a neighbor is blasting next door, even though there is no actual damage to your property, your use and enjoyment of your property has been infringed upon

Question 52

Nuisance - substantial and unreasonable harm

Answer 52

ii. Substantial: MUST be something that a reasonable person would take offense at, rather than just something an unduly sensitive person would object to
iii. Unreasonable: harm done by the interference outweighs justification for D’s conduct
iv. (R.2d §828) Must take into account:
1. Suitability of the neighborhood where it is
2. Values of respective properties
3. Cost to the D to eliminate the condition complained of, AND
4. Social benefits from allowing the condition to continue (employment, etc.)
a. ALSO look to see whether the use preceded the P’s presence
i. Come to the nuisance
b. Zoning: few states (CA, etc.) provide zoning ordinance as presumptive defense

Question 53

Nuisance - Causation

Answer 53

i. MUST be direct harm caused from the nuisance

1. NOT indirect

Question 54

Private Nuisance

Answer 54

a. R.2d §821D: non-trespassory interference w/P’s interest in the use OR enjoyment of her property
b. TURNS on considerations of gravity and utility
c. Interference might be:
i. W/physical condition of premise
1. Blasting, vibrations
ii. Occupant’s health
1. Unsanitary conditions of adjoining property
iii. Comfort and convenience
1. Smoke, odors, noise, heat
iv. Peace of mind
1. Nearby bawdy house, funeral parlor

Question 55

Private Nuisance - Balancing test

Answer 55

i. Rule: BALANCING TEST: where a serious nuisance may be allowed to continue BC the utility of the activity causing the nuisance is great, the injured party is not entitled to compensation for the interference.
ii. R.2d §826 – Nuisance can be found even though the gravity of the harm is outweighed by the utility of the conduct IF the harm is “serious” and the payment of damages is “feasible” WITHOUT forcing the D’s business to discontinue

Question 56

Public nuisance - definition

Answer 56

a. R.2d §821B:
i. Public nuisance is an unreasonable interference w/a right common to the general public
ii. Circumstances that may sustain a holding that an interference w/a public right is unreasonable include the following:
1. Whether conduct involves a significant interference with the public healthy, safety, peace, comfort, convenience, OR
2. Whether conduct is proscribed by statute, ordinance, or administrative regulation, OR
3. Whether conduct is of continuing nature or has produced a permanent or long-lasting effect, AND as the actor knows/has reason to know, has a significant effect upon public right

Question 57

Public nuisance - Standing to sue

Answer 57

i. Generally, only state–acting through public officials–can redress a public nuisance
ii. Private individual may maintain an action for public nuisance ONLY if she suffers an injury peculiar in kind–i.e. apart from that common to the public
1. Difference in degree, rather than of kind
a. If P’s injury is greater in degree, but NOT different in kind → insufficient
b. Philadelphia Electric Co. v. Hercules, Inc

Question 58

Nuisance - Remedies

Answer 58

a. Compensatory damages: usually suffice where invasion is of a nonrecurring nature
b. Injunction: usually sought when recurring invasion
i. Boomer v. Atlantic Cement Co.
1. Rule: a continuing nuisance may be remedied by the payment of permanent damages, allowing the interference activity to continue
c. Punitives may be available if D’s conduct was willful/malicious

Question 59

Nuisance - defenses

Answer 59

a. Contributory negligence
i. Where nuisance results from negligence, may be a defense
ii. Intentional nuisance → not a defense
iii. SL → comparative negligence likely to apply
b. Assumption of risk
i. Whatever type of nuisance (intent, negligent, SL), always a defense
ii. Consent (knew there would be a nuisance, e.g. building something)
iii. Coming to the nuisance: ordinarily not a defense
1. Spur Industries, Inc. v. Del E. Webb Development Co.
2. JXAL split:
a. Majority: even if P had knowledge of nuisance, does NOT bar recovery
b. Minority: deny recovery altogether when P comes to a nuisance w/knowledge of it

Question 60

Nuisance - privilege of self help

Answer 60

a. Only available to those to whom the condition is a nuisance
i. Public nuisance may be abated by private individuals ONLY if they incurred special damages apart from that to the general public
b. Depends upon actual existence of a nuisance
i. Honest mistake does NOT justify
c. Extends to reasonable force as the situation necessitates
d. Does NOT extend to unnecessary/unreasonable damage
e. Does NOT justify personal injury or breach of peace
f. UNLESS the wrongdoer is already aware and demand would be futile, the actor, if time permits, MUST notify the wrongdoer of existence of nuisance and demand removal of condition
i. FN: Hickey v. Michigan Central R. Co.

Question 61

4 ways nuisance claims can be resolved

Answer 61

a. Abate the activity in question by granting P injunctive relief
i. Morgan
b. Let activity continue if D pays damages
i. Boomer
c. Let activity to continue by denying all relief
i. Carpenter
d. Abate the activity if P pays damages
i. Spur

Question 62

Defamation - Prima Facie Case

Answer 62

1) Publication to a 3rd party
2) harm to reputation
3) false facts
4) Fault / Causation
5) Damages

Question 63

Defamation - Definition

Answer 63

i. Communication that tends to damage the P’s reputation, more or less in the popular sense to diminish the respect, good will, confidence, or esteem in which he is held, or to excite adverse or unpleasant feelings about him

Question 64

Defamation - Roles of Judge and Jury

Answer 64

i. Court first determines whether words are reasonably capable of a particular interpretation
ii. Jury then decides whether they are in fact understood as defamatory

Question 65

Defamation - Publication to a 3rd person

Answer 65

a. Must be communicated to a 3rd person
i. ANY 3rd person
ii. Need only publish to 1 person for liability
1. However, damages can be based on how broadly it was publicated

c. R.2d §577: Publication MUST be intentional or negligent
i. No publication when words spoken by D directly to P w/no reason to suspect anyone can overhear, but there is a concealed listener
1. FN: Hall v. Balkind

Question 66

Defamation - publication - mailing letters

Answer 66

1. Sealed letters unexpectedly opened by 3rd person → no publication
   a. FN: Barnes v. Clayton House Model
2. If D knows/should know that P’s spouse or secretary opens the mail → publication
   a. FN: Rumney v. Worthley

Question 67

Defamation - Single Publication Rule

Answer 67

1. One is liable for only the initial publication of the writing that contains the offensive statement
2. Only a single action for libel even if 100,000 copies are sold
3. Statute of limitations begins to run as of the first publication
4. Exceptions
   a. If a “new edition” of a writing is produced, a new cause of libel exists
   b. If multiple newspapers publish the same libelous article, each newspaper is liable

Question 68

Defamation - Republication

Answer 68

i. ANY republication (even oral) → libel
ii. Failure to remove a publication may constitute libel
iii. If one has legal duty to republish material, will NOT be libel, even if defamatory in nature
iv. Original publisher’s liability is increased by whatever harm is caused by republication IF republication was intended by original publisher or reasonably foreseeable

Question 69

Defamation - Harm to reputation - defamatory meaning

Answer 69

a. Defamatory meaning:
i. Whether meaning alleged by P is defamatory and if so, whether the statement would be reasonably interpreted as such.
1. R.2d §559: Statement MUST tend to lower the P’s reputation in the community where published or deter others from associating w/P
b. Context important
i. R.2d §559 cmt. E: Community standards control:
1. Publications are generally read as a whole, in light of the context in which the statement appears
2. Issue is embedded in time, place, and culture
a. FN:
3. MUST be an element of discredit/disgrace in the eyes of some particular segment of society
4. FN: Cf. Steinman v. Di Roberts
a. “liberal”

Question 70

Defamation - Harm to reputation - Defamatory effect

Answer 70

i. Focus: how words were reasonably understood by the 3rd person to whom it was published, NOT on what the speaker meant
ii. If spoken in foreign language which 3rd party did not understand, statement cannot be defamatory
1. However, understanding can be presumed by courts
a. If one writes something in German, and it was published in a German newspaper, it is presumed that it was understood by its readers
2. Economopoulos v. A.G. Pollard Co.
iii. Presence of others is insufficient UNLESS they overhear
1. FN: Sheffill v. Van Deusen
iv. JXAL split: presumption of read defamation
1. FN: Ostro v. Safir
a. Defamatory postcard mailed
2. FN: McKeel v. Latham
a. Proof of actual reading req’d

Question 71

Defamation - suggested meaning

Answer 71

i. Courts look to fair and natural meaning that statement will be given by reasonable person of ordinary intelligence

Question 72

Defamation - “Of and Concerning” the P

Answer 72

i. Some 3rd party must have reasonably interpreted it to refer to P
ii. If it doesn’t identify P by name:
1. P must establish the colloquium:
a. Some persons to whom the statement was published reasonably interpreted it as applying to the P
b. Fiction: novels might be of and concerning the P
i. Bindrim v. Mitchell
c. Unintended, but explicit use of P’s name
i. P’s name is used, may be defamation, even though D was referring to another person w/same name

Question 73

Who may be defamed?

Answer 73

i. Any living person, corporation, partnership, or other entity
ii. Deceased person:
1. No action for one who is dead, but may be an action if defamation reflects upon living persons
2. However, can be action if damage is caused to an estate that continues to generate money
iii. Corporations:
1. No reputation in personal sense
2. Corporation can maintain an action for defamation that casts an aspersion upon its honesty, credit, efficiency, other business/moral character

Question 74

Defamation - size of group of defamed

Answer 74

.2d §564A: One who publishes defamatory statement concerning a group or class of persons is subject to liability only if group is small enough that statement may reasonably be interpreted as applying to each member OR particular circumstances that reasonably gives rise to conclusion that there is reference to that member

Question 75

Defamation - False Facts

Answer 75

v. Statement cannot be false UNLESS it contains assertions of fact
vi. NO automatic protection for opinion
1. Milkovich v. Lorain Journal Co.
2. As opinion may be defamatory if it can reasonably be interpreted by the recipients as implying defamatory facts
vii. Specificity of language
1. More specific the language used, more likely it is to be reasonably interpreted as a statement of fact OR a statement based on underlying facts

Question 76

Determining Libel from Slander - Factors

Answer 76

1. Permanency of form of publication;
2. Extent of dissemination; AND
3. Whether publication was deliberate or premeditated

Question 77

Libel

Answer 77

b. Libel: R.2d §568(1)
i. Defamation usually appearing in some written or printed form
1. i.e. reduced to some permanent, physical embodiment
2. Representations to the eye
a. All radio & TV broadcasts
i. However, by statute anything spoken over TV is slander NOT lible
b. Pictures, signs, statues
c. Motion pictures
d. Conduct carrying defamatory implication
ii. Shor v. Billigsley
iii. DOES NOT require special harm
iv. Damages:
1. If in form of libel and clear on its face, most JX”s presume general damages from the fact that it was published
a. Some
2. Punitives
a. Most states allow punitives if the defamation can be shown to have been muttered w/common law malice
i. Hatred, ill will, or spite
b. NO punitives for defamation of matters of public concern if falsity is only negligence

Question 78

Slander

Answer 78

c. Slander: (R.2d §569(2):
i. Oral defamation (less permanent/less physical form)
1. Representations to the ear
a. Some states categorize radio & TV as slander even if written scripts are used
b. Transitory gestures
2. Slander is not actionable UNLESS a showing of special damages, except where there is actionable per se
a. Special damages: pecuniary damages actually suffered by P
i. NOT presumed by law
ii. EX: Loss of employment/business
iii. Terwilliger v. Wands
b. May also recover general damages if shown some amount of special damages
i. General damages: compensate for harm to P’s reputation
ii. Emotional damages: many states also allow recovery for emotional damages

Question 79

Slander Per Se

Answer 79

a. Don’t need a showing of special damages
i. P has committed a serious crime
ii. P has loathsome disease
1. Veneral disease
2. Leprosy
3. NOT insanity
iii. Incompetent in trade or profession
iv. Unchastity
1. Used to be limited to females, most states allow action for males
2. Homosexuality
a. A false imputation of this, even where legalized, may be slanderous per se
b. CRIME: where D charges that P has committed a serious, morally reprehensible crime, or has been incarcerated for such
i. Considered actionable per se

Question 80

Privacy - Misappropriation of Identity

Answer 80

a. R2.d §652(c) – One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy
i. Elements:
1. The defendant used the plaintiff’s name or likeness
2. The defendant sought to take advantage of the plaintiff’s reputation, prestige, social or commercial standing, or any other value attached to the plaintiff’s name, likeness or identity
3. The use of P’s name/likeness was for D’s own purposes or benefit, commercially or otherwise;
4. Causation
5. Damages

Question 81

Privacy - 4 Torts

Answer 81

1) Misappropriation of Identity
2) Intrusion
3) Undue Publicity of Private Life
4) False Light

Question 82

Privacy - Intrusion

Answer 82

2. Intrusion – Sanders v. American Broadcasting Companies, Inc., et al.
   a. When D has intruded on the privacy of P in a way that is highly offensive to a reasonable person
   i. considering, among other factors, the motive of the intruder
   b. R.2d §652B – Elements
   i. Intrusion into a private place, conversation, or matter,
   ii. In a manner highly offensive to a reasonable person
   c. Does not require a reasonable belief of “total privacy” in order to be protected
   i. Can be protected even if there is a limited expectation of privacy
3. In Sanders – even though she had a limited expectation of privacy at work, still liability because she had no reasonable expectation that her conversation would be recorded and rebroadcast outside of the circumstances

Question 83

Privacy - Undue publication of Private life

Answer 83

a. R.2d § 652D – Liability will be imposed when “the matter publicized is of a kind that
i. (a) would be highly offensive to a reasonable person; and
ii. (b) is not of legitimate concern to the public
b. R.2d § 652D – Elements
i. Publicity
ii. Private facts
iii. Offensiveness
iv. Absence of legitimate public concern
1. Public Concern Defined – “In determining “newsworthiness” or “public interest” account must be taken of the customs and conventions of the community. what is proper becomes a matter of the community mores
2. The line is drawn when the publicity ceases to be the giving of information to which the public is entitled, and becomes a morbid and sensational prying into private lives for its own sake, with which a reasonable member of the public, with decent standards, would say that he has no concern

Question 84

Privacy - False light

Answer 84

4. False Light
   a. Definition – placing the plaintiff in an objectionable false light in the public eye
   b. Differs from defamation
   i. Defamation focuses more on the specific damages caused by a false statement
   ii. False Light focuses on characterizing or portraying the plaintiff in a way against their wishes
5. Does not need to harm one’s reputation as defamation does
   iii. Must show actual malice if a public figure
   iv. Recognized in 20 states
   v. Example
6. A movie was made about a famous general that made up a fake romance with a fake woman who was different than his real life wife

Question 85

Misuse of Legal Procedure - 3/4 torts

Answer 85

1) Malicious Prosecution
2) Wrongful institution of civil proceedings
3) Abuse of Process
4) Spoliation

Question 86

Misuse of legal procedure - Malicious prosecution

Answer 86

Elements:

1) Institution of Criminal proceedings by D against P
2) Termination of proceedings in favor of P
a) Discharge, acquittal, dismissal, abandonment, etc.
4) Absence of probable cause
a) Objective test - as would induce a man of ordinary caution, and did induce the prosecutor to believe P is guilty
b) Subjective Test - D knows P is innocent
5) Malice
a) purpose other than bringing a guilty person to justice
6) Damages

Question 87

Misuse of legal procedure - wrongful institution of criminal proceedings

Answer 87

Elements:

1) Prior proceedings terminating in favor of P
2) absence of probable cause
3) malice
4) damages

Special harm:
- English Rule - strong minority of jurisdictions - special damages required in order to receive damages
American Rule - Majority - no special damages required

Question 88

Misuse of legal procedure - Abuse of process

Answer 88

Elements:

1) An ulterior purpose; AND
2) an act that it is improper in the regular prosecution of the proceeding

Question 89

Misuse of legal procedure - Spoliation

Answer 89

b. Elements
i. Pending or probable civil litigation
ii. D’s knowledge that litigation is pending or probable
iii. Willful destruction of evidence
iv. Intent to interfere with plaintiff’s prospective civil suit
v. A causal relationship between the evidence destruction and the inability to prove the liability
vi. Damages
1. How much the other party would have won in the civil case had they succeeded
c. Not followed in CA

Question 90

Misrepresentation - elements

Answer 90

1) Misrepresentation
2) Scienta
2) culpable state of mind
3) intent to induce plaintiff’s reliance on the misrepresentation
4) justifiable reliance
5) Damages

Question 91

Misrepresentation - 3rd person liability (accountancy cases)

Answer 91

NY Rule

i. Before accountants may be held liable in negligence to non-contractual 3rd parties who rely to their detriment on inaccurate financial reports, certain prerequisites must be satisfied:
1. The accountants must have been aware that the financial reports were to be used for a particular purpose or purposes;
2. In the furtherance of which a known party or parties was intended to rely; AND
3. There must have been some conduct on the part of the accountants linking them to that party or parties, which evinces the accountant’s understanding of that party or parties reliance

WI Rule

i. Ordinary negligence standard
1. Liable if plaintiff is reasonably foreseeable and reliance is foreseeable and reasonable

Restatement Rule

i. Takes intermediary position between NY rule and WI rule
ii. Limits recovery to a “limited group of Persons”; and
iii. To a transaction or “substantially similar transaction” intended by the defendant
iv. Defendant is deemed to have intended to influence its client’s transaction with plaintiff whenever defendant knows with substantial certainty that plaintiff, or the class plaintiff belongs to, will rely on the transaction in the course of the transaction
v. Followed in CA and some other jurisdiction

Question 92

Interference with advantageous relationships - 6 torts (instances)

Answer 92

1) Injurious falsehood
2) Title
3) goods and trade
4) intentional interference with existing or prospective contractual relations
5) gifts
6) Tortious breach of contract

Question 93

Interference with advantageous relationships - Injurious falsehood

Answer 93

1. Injurious Falsehood – Ratcliffe v. Evans
   a. An action will lie for written or oral falsehoods, that are not defamatory, where they are maliciously published, there they are calculated in the ordinary course of things to produce, and where they do produce actual damage
   b. Unlike Slander
   i. Actual damages must be shown
   ii. However proof of “general” loss are adequate for action
2. Do not need to show specific loss
   iii. Statements are not presumed to be damaging, plaintiff must prove
   c. Elements
   i. A false statement of a kind calculated to damage a pecuniary interest of the plaintiff
   ii. Must be published to a 3rd person
   iii. Malice
3. Same as defamation
4. Must show INTENT to harm a pecuniary interest
   a. Know to be false
   b. Reckless disregard to truth
   c. NOT NEGLIGENCE
   iv. Special Damages
5. General loss, no specific loss required
   d. Examples of statements that can have liability
   i. “Our business is unique, and the only one of its kind in the city”
6. Other businesses that are in fact of the same kind within the city can bring suit

Question 94

Interference with advantageous relationships - Title

Answer 94

a. Liability when one slanders the title of the property of another which he is trying to sell
i. “you can’t buy that land from Bob because I own it”
ii. consequently deal with Bob falls through, is delayed, or reduces sales price
iii. liability
b. Conditional / Qualified privilege
i. Is the asserted claim of title, or asserted mechanics lean, reasonable
ii. D’s statement does not have to be found to be correct to be protected by privilege, but merely has to be done for legitimate reasons and assert a legit claim
iii. Not done for some other / bad faith intention
1. Extortion
2. Spite
3. Desire to do harm for its own sake
4. Known to be false

Question 95

Interference with advantageous relationships - Goods and Trade

Answer 95

a. Puffery is not actionable
i. Our product is better than theirs
b. However, statement of specific false factual assertion is actionable
i. Our products have been tested and ours is 40% more effective than theirs
c. Cannot avoid liability by making a false statement about another’s goods/products and then avoid liability by making a comparison to your own produce

Question 96

Intentional interference with advantageous relationships -intentional interference with existing or prospective contractual relations

Answer 96

b. Tort Liability exists when one persuades another to violate terms of a contract with a third party
c. No need for ill-will or malice
d. Defendant must be aware of the contract with plaintiff in order to be liable
e. No liability if employee has already, or already decided to break the contract with Plaintiff
f. Liability not confined to inducing the third person to breach the contract
i. It may apply to other means of preventing the third person from performing
1. D refuses to carry out his contract with T, to prevent T from supplying them to P
g. Hinderance – Bacon v. St. Paul Union Stockyards
i. If you deny someone access to a place of business, even if you own it, you may be liable for a tortious act for interference of a contract with another
1. Still must be aware of the contract between 3rd party and P
ii. Can also be liable for conduct that makes P’s performance of his contract more burdensome or expensive
1. Deliberately damaging a roadway knowing that P was contracted to repair the roadway – making it more expensive for P to fulfill his contract
iii. R.2d § 766A
1. Typically involves a physical interference, but does not need to be physical
2. Does not need to result in breach
h. Justification – Brimelow v. Casson
i. Justifications may exist for inducing the breach of a contract if it is for the public good
ii. Motive of the intervener is very important
1. MUST be a reasonable and disinterested motive for the protection of other individuals
iii. Privilege exists when give disinterested advice to withdraw from a contractual relation where advice has been requested, or otherwise called for by the circumstances
1. Distinguished from intermeddling in matters which are not the defendant’s concern