Torts II Flashcards
1
Q
DEFENSES NOT ON THE MERITS
STATUTE OF LIMITATIONS
A
2 Purposes of S.O.L:
- To bar stale cases which might be unfair or costly because evidence is lost or subtly altered with time
- Permit both personal and business planning and to avoid the economic burden that would be involved if defendants and their insurance companies had to carry indefinitely a reserve for liability that might never be imposed
2
Q
***Statute of Limitations Elements:
A
The statute of limitations will not begin to run until at least:
- All elements of the tort are present
- The plaintiff discovers, or as a reasonable person should have discovered that,
a. she is injured and
b. the defendant had a causal role, or there is enough chance that the defendant was connected to the injury to require further investigation.
3
Q
Statute of Repose
A
puts an outer limit on the right to bring a civil action
• clocks begins to run on the dater of the last culpable act or omission of the defendant
• effect a legislative judgement that a defendant should be free from liability after the legislatively time.
• Can be said to provide a fresh start or freedom from liability
4
Q
FEDERAL PREEMPTION
A
(1) Expressly preempting state law by statute (express preemption)
(2) Occupying the field with heavy regulation so there is no room for state tort law OR (field preemption)
(3) By passing laws that actually conflict with state law
5
Q
VREELAND V. FERRER
RULE:
A
Preemption may be either express or implied, and “is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose.
6
Q
VREELAND V. FERRER
ISSUE
A
Does the federal law preempt Florida state law with regard to the liability of aircraft owners under the dangerous instrumentality doctrine, and if it does, how broadly the scope of that preemption covers.
7
Q
JOINT TORTFEASORS
A
• A joint tortfeasor can be held responsible to pay a lot of the P’s damages even though other tortfeasors are also responsible for the harm:
o Where Ds act in concert to cause the harm
o Where Ds are held liable by operation of law or
o Where Ds cause a single indivisible injury
8
Q
RULE: JOINT TORTFEASOR/ACTING IN CONCERT RESTAT. 2ND 876
A
• For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he:
o Does a tortious act with the other or pursuant to a common design within or
Done by acting in accordance within an agreement to a particular line of conduct OR
Acting in accordance with an agreement to accomplish a particular result
o Knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself
9
Q
• 3 Bases for Joint and Several Liability
A
o Acting in concert
o By operation of law (respondent superior, agency or by statute, products liability)
o Independent tortfeasor causing indivisible injury
10
Q
Vicarious Liability:
A
One D may be vicariously liable for the acts of another
• A very common form of vicarious liability is when an employer answers in damages for a tort committed by the employee, acting within the scope and course of employment
o Individual contractors cannot use vicarious liability to hold a business they work for responsible
11
Q
Non-Delegable Duty of Care:
A
• An actor will have a non- delegable duty of care in cases that involves activities that carry a high degree of danger and special risks of harm, or where an actor has traditionally been responsible for a particular type of actor
12
Q
Respondent Superior Liability:
A
• The test for scope of employment boils down to the foreseeability of a risk (i.e. a kind of proximate cause)
• If employees tortious actions were clearly from a motive or purpose solely and alone to satisfy the sensous desire of the employee, and not in furtherance of the business
o Employee was in a “frolic of his own”
• Conduct may be within the scope of employment, even if not expressly authorized by the employer, but if it is purely personal in nature, vicarious liability is not appropriate
13
Q
LINDEMAN V LATTER DAY SAINTS
FACTS:
A
Plaintiff attended Defendant church’s Sunday school classes taught by Frank.
• Frank was 40 at the time, plaintiff was 15 years old
• Frank pled guilty to asexual assault with a ten-year age difference
• The church holds thousands of Sunday school classes and is only aware of one instance of sexual misconduct on church property
• Bishop miller, who selected frank to be the Sunday school teacher, had no knowledge of any criminal history involving frank
• Nothing inappropriate happened between frank and plaintiff on the church’s property; but they eventually began to communicate through text messages and ultimately had sexual intercourse in Frank’s car outside of his house
• Bishop miller became aware of the relationship and removed Frank as Sunday school teacher
14
Q
LINDEMAN V LATTER DAY SAINTS RULE
A
In a claim for negligent supervision against an employer, the plaintiff must prove that the defendant knew his employee posed a risk of harm to the plaintiff. (i.e. the plaintiff must prove that the employer has a duty to prevent an unreasonable risk of harm to third persons to whom the employers knows or should have known that the employee would cause harm)
• Whether the employee owes a duty of care to the injured third party boils down to issues of knowledge and causation, whether the employee’s acts are so connected with the employment in time and place such that the employer knows that harm may result from the employee’s conduct and that the employer is given the opportunity to control such conduct
15
Q
LINDEMAN V LATTER DAY SAINTS REASONING/HOLDING:
A
There is no evidence the conduct complained was reasonably foreseeable by the church thus triggering a duty to impose specific forms of supervision to prevent it. • Plaintiff’s argument that Frank groomed her during Sunday class and that the sexual conduct would not have occurred without the grooming (that occurred because of negligent supervision) fails to identify specific conduct constituting grooming, to tie that conduct to the Sunday school, and to explain how that conduct would have been deterred by some specific form of supervision. • Defendant’s church’s motion for summary judgement on all claims is granted and it is dismissed from this case entirely, Plaintiff’s motion for summary judgement on the claims for negligent hiring and supervision is denied, and Plaintiff’s motion for summary judgement on the claim of battery is denied. Holding affirmed. For Defendant
16
Q
Impact of Comparative Fault on Joint and Several Liability:
AMERICAN MOTORCYCLE ASS. V. SUPERIOR COURT OF LOS ANGELES COUNTY
FACTS:
A
Plaintiff Glen Gargos, a teenage boy, seeks to recover damages for serious injuries he incurred during a cross country motorcycle race for novices
• He alleges the organization that sponsored and collected the entry fee for the event negligently solicited the entrants for the race
• He alleges that as a direct and proximate cause of the negligence he suffered a crushed spine, permanent loss of function of his legs, and inability to perform sexual functions
17
Q
AMERICAN MOTORCYCLE ASS. V. SUPERIOR COURT OF REASONING/HOLDINGLOS ANGELES COUNTY
A
A concurrent tortfeasor whose negligence is a proximate cause of an indivisible injury remains liable for the total amount of damages, diminished only in proportion to the amount of negligence attributable to the person recovering. Comparative negligence applies
18
Q
Allocating Liability when a tortfeasor fails to protect the P from the specific risk of an intentional tort:
RULE: APPORTIONMENT OF LIABILITY – RESTATE. 3RD OF TORTS 14
A
• A person who is liable to another based on a failure to protect the other from the specific risk of an intentional tort is jointly and severally liable for the share of comparative responsibility assigned to the intentional tortfeasor in addition to the share of comparative responsibility assigned to the person
19
Q
Satisfaction of a Judgment and the Aftermath: Contribution and Indemnity
A
• On occasion, a D who either settled a case or paid a judgment may be entitled to full reimbursement from a joint tortfeasor
20
Q
RULE: INDEMNITY – RESTE. 3RD 22
A
• (a) when two or more persons are or may be liable for the same harm and one of them discharges the liability of another in whole or in part by settlement of discharge of judgment, the person discharging the liability is entitled to recover indemnity in the amount paid to the P, plus reasonable legal expenses if:
1. The indemnitor has agreed by contract t indemnify the indemnitee or
2. The indemnitee
Was not liable except vicariously for the tort of the indemnitor or
Was not liable except as a seller of a product supplied to the indemnitee by the indemnitor and the indemnitee was not independently culpable
• (b) a person who is otherwise entitled to recover indemnity pursuant to contract may do so even if the party against whom indemnity is sought would not be liable to the P
21
Q
Settlement:
A
• At common law, settlement with one tortfeasor released all joint tortfeasors from liability
• One problem is when one D settles with P and P reserves the right to sue the remaining tortfeasors
o The non-settling tortfeasor goes to trial and suffers a substantial judgment (may the litigating turn to settling D for contribution)
o If contribution is permitted, settling will be discouraged
o If contribution is not permitted, it will leave the non-settling D with the costs
o The 1939 Act left the settling totfeasor liable for contribution, while the 1955 Act adjusted the rule by releasing the settling tortfeasor from contribution if an only if the settlement was made in good faith
22
Q
MICHE V GREAT LAKES STEEL
FACTS
A
37 people, members of 13 families, residing in Canada have filed a complaint against 3 corporations which operate seven plants in the U.S. immediately across the Detroit River from Canada
• Ps claim that pollutants emitted by the plants are noxious and violates various municipal and state ordinances
23
Q
MICHE V GREAT LAKES STEEL RULE:
A
Restatement 1st of Torts 881 – Where two or more persons, each acting independently, create of maintain a situation which is a tortious invasion of a landowner’s interest in the use and enjoyment of land by interfering with his quiet, light, air, or flowing water, each is liable only for such proportion of the harm caused to the land or of the loss of enjoyment of it ny the owner as his contribution to the harm bears to the total harm
• Where the injury itself is indivisible, the judge or jury must determine whether or not it is practicable to apportion the harm among the tortfeasors. If not, the entire liability may be imposed upon one (or several) tortfeasors, subject of course, to subsequent right of contribution among the joint offenders
24
Q
MICHE V GREAT LAKES STEEL REASONING/HOLDING
A
The harm here is not divisible so far as the Ps ability to apportion it among the wrongdoers, so courts will permit entire recovery from any or all Ds and the burden will shift to Ds as to which one was responsible and to what degree from the injured party to the wrongdoers
• Disallowing aggregation of the Ps claim for the purpose of establishing diversity jurisdiction, does not apply to this case
25
DILLION V TWIN STATE GAS
| FACTS:
In a negligence action arising from a minor’s death by electrocution after falling from a bridge and grabbing D’s utility wires, D appealed
26
DILLION V TWIN STATE GAS RULE:
To constitute actionable negligence there must be damage, and damage is limited to those elements the statue prescribes
27
DILLION V TWIN STATE GAS REASONING/HOLDING:
If but for the current in the wires he would have fallen down on the floor of the bridge or into the river, he would without doubt have been killed or seriously injured. Although he died from electrocution, yet if by reason of his preceeding loss of balance he was bound to fall except for the intervention of the current, he either did not have long to live or was to be maimed. In such an outcome of his loss of balance the D deprived him, not of a normal life, but of one too short to be given pecuniary allowances, in one alterbative, and not of normal, but of limited earning capacity in the other
28
LIABILITY OF OWNERS AND OCCUPIERS OF LAND
• Possessors of land had a sort of sliding scale of responsibilities depending on whether the entrant to the property was a trespasser, licensee, or invitee
29
Trespassers:
* Duty to warn of hidden danger
| * The possessor of land cannot act in a wanton and willful manner to a known trespasser
30
Trespassers: Exception:
* When the trespasser was known or discovered, courts imposed a duty of reasonable care on the possessor of land in conducting activities that exposed the trespasser to danger
* Some courts went further and imposed a duty of care, owed to foreseeable trespassers who frequently intrude on a limited area of land, to alert them to them to dangers pf which they would otherwise be aware
31
RULE: ARTIFICIAL NUISANCE RESTAT. 2ND 339
• Imposes liability on a possessor of land to a child trespasser for physical harm resulting from artificial conditions on the land when the following conditions are met:
o The place where the condition exists is upon which the possessor knows or has reason to know that children are likely to impose and
o The conditions 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 serious bodily harm to such children and
o The children, because of their youth, do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it AND
o The utility to the possessor of maintain the condition and the burden of eliminating the danger are slight as compared with the risk to children involved AND
o The possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children
32
Licensees:
• Duty to make safe dangers of which possessor is aware and to warn of hidden dangers
• Licensees are persons who are on the land with the consent of the owner but are there for their own purpose
o Courts consider social guests as licensees
• The law treats licensees similar to trespassers
• The possessor has a duty to conduct activities on the land in a reasonable manner and to warn of hidden dangers known to him
33
Invitees:
* Highest standard of care is owed to invitees
* Duty to warn, inspect, and eliminate danger
* Exercise reasonable care to protect invitees against both known and unknown (dangers that would be revealed by inspection) dangers
34
RULE: INVITEES – RESTATE. 2ND 332
• 2 categories of invitees
1. Persons who are invited to come on the land for a purpose connected with the business dealings of the possessor and
2. Persons who come on the land as a member of the public for a purpose for which the land is held open to the public
35
RULE: INVITEES – RESTATE. 2ND 343
• Possessor of land is liable to invitees for harm caused by obvious dangers when possessor should anticipate that harm may befall them despite the obviousness of the danger
- All entrants of land are trespassers until the possessor of the land gives them permission to enter
- All persons who enter a premise with permission are licensees until the possessor of the land has an interest in the visit such that the visitor has reason to believe that the premise have been made safe to receive him
36
CARTER V KINNEY
| FACTS
Jonathan Carter, a member of the Northwest Bible Church, attended an early morning bible study at Kinney’s home
• Mr. Kinney had previously shoveled snow from his driveway but was unaware that more ice had formed over night
• Carter slipped on a patch of ice and broke his leg
37
CARTER V KINNEY RULE
The possessor’s intention in offering the invitation determines the status of the visitor and establishes the duty of care the possessor owes the visitor. The possessor owes a trespasser no duty of care, the possessor owes a licensee the duty to make safe dangers of which the possessor is aware, and the possessor owes invitees the duty to exercise reasonable care to protect them against both known danger and those that would be revealed by inspection.
• All entrants to land are trespassers until the possessor of the lad gives them permission to enter. All persons who enter a premise with permission are licensees until the possessor has an interest in the visit such that the visitor has reason to believe that the premises have been made safe to receive him.
38
CARTER V KINNEY
Social guests are a subclass of licensees. The invitation was not tendered with any material benefit motive, and the invitation was nit extended to the public generally or to some undefined portion of the public from which entrants might reasonably expect precautions to have been taken to protect against danger.
• An entrant becomes an invitee when the possessor invites with the expectation of a material benefit from the visit or extends an invitation to the public generally
• Mr. Carter did not enter the Kinneys land to afford them any material benefit, he is therefore not an invitee
• The Kinneys also did not throw open their premise to the general public in such a way that would imply a warranty of safety. They took no steps to encourage general attendance by some undefined portion of the public. They only gave permission to a limited class of persons (church members) to enter their property.
• The trial court was correct in concluding that Mr. Carter was a licensee, and the Kinney’s had no duty to protect him from unknown dangerous conditions, and that the defendants were entitled to summary judgment as a matter of law. Holding for defendant.
39
Rejecting categories:
RULE – DUTIES OF LAND POSSESORS: RESTSTE. 3RD 52
• The tripartite division of entrants should be abolished in favor of the reasonableness standard
• The reasonable standard draws a distinction between ordinary and flagrant trespassers
o For ordinary trespassers, the landowner owes a duty of reasonable care
o For the flagrant trespassers, the landowner’s duty is limited to
Not acting in an intentional, wanton, or willful manner to cause physical harm
Exercising reasonable care for a trespasser who reasonable appears to be in peril (helpless and unable to protect him/her self
***Use old categories on final, but mention the reasonable person standard in analysis
***Proof of being known has to be clear or it cannot be said that D knew
***D either knows or did not know, if a q says D should have known, he will not be liable
40
ROWLAND V CHRISTIAN
| FACTS:
Plaintiff alleged that Ms. Christian told the lessors of her apartment that the knob of the cold water faucet was cracked and needed to be replaced
• Plaintiff entered her apartment after being invited and was injured while using the broken faucet, suffering severe severed tendons and nerves of his right hand
• He further alleged that Ms. Christian was aware of the dangerous conditions
41
ROWLAND V CHRISTIAN RULE:
Everyone is responsible, not only for the result of his willful acts, but also for injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself
• All persons are required to use ordinary care to prevent others being injured as the result.
• Old Rule: The general rule is that a trespasser and licensee or social guest are obliged to take the premises as they find them insofar as any alleged defective condition may exist and the possessor of land owes them only the duty of refraining from wanton or willful injury. An exception is when the occupier is aware of the dangerous condition, the condition amounts to a concealed trap, and the guest is unaware of the trap
42
ROWLAND V CHRISTIAN REASONING/HOLDING:
• The status of the plaintiff related to its proper place in determining such liability, and ordinary principles of negligence applied, the result in the instant case presents no substantial difficulties.
• Ms. Christian was aware that the faucet handle was defective and dangerous and the defect was not obvious, and the plaintiff was about to come into contact with it. The trier of fact can reasonably conclude that a failure to warn or to repair the condition constitutes negligence.
***uses whether or not defendant was negligent instead of classifying visitors
• Whether or not a guest has a right to expect that his host will remedy dangerous conditions on his account, he should reasonably be entitled to rely upon a warning of the dangerous condition so that he, like the host, will be in a position to take special precaution when he comes in contact with it. Judgment reversed, Holding for Plaintiff.
43
Firefighter’s Rule:
* Firefighters or police who entered in the premise of another to perform their job were treated as licensees
* The owner of the land owed no duty to make the premise safe for a licensee nor to inspect for dangers unknown to the possessor
44
Recreational Use:
• When private landowners open up their property for public recreational use, courts may classify entrants as licensees or public invitees, or otherwise hold the landowner to a full duty of reasonable care
45
Duties owed to those outside the Premise:
• Third restatement recognizes the artificial v natural distinction
o For artificial conditions, the landowner has a duty of reasonable care to persons or property not on the land
o For natural conditions, a user of land has a duty of reasonable care, however if the land is used for other (residential) purposes the possessor has a duty only if the risk is known or obvious
46
Duties owed by lessors:
* A lessor is treated as the equivalent of a vendor of property who had sold the land, unless the vendor knows of dangerous conditions and conceals them
* The third restatement imposes a duty of reasonable care on lessors for portions of the leased premises over which they retain control
47
SARGENT V ROSS
| FACTS
D resided on the ground floor of the apartment building and her son and daughter in law occupied a second story apartment serviced by the stairway in which P’s daughter fell.
• There was no apparent cause for the fall except for evidence that the stairs were dangerously steep and the railing was insufficient to stop somebody from falling
48
SARGENT V ROSS RULE
Old Rule: A landlord is not liable, except in limited circumstances, for injuries caused by defective or dangerous conditions in the leased premises
• New Rule: A landlord is generally conceded to be liable in tort for injuries resulting from defective and dangerous conditions on the premise if the injury is attributable to 1) a hidden danger of which the landlord but not the tenant knows about 2) a premise leased for public use 3) a premise retained under the landlord’s control such as common stairways and 4) premise negligently repaired by the landlord (Restatement 2nd of Torts 358-362)
• A landlord must act reasonably under all of the circumstances including the likelihood of injury to others, the probable seriousness of such injuries, and the burden or reducing or avoiding the risk. The questions of control, hidden defects, and common or public use which were formerly a prerequisite required to even consider negligence of a landlord, will now be relevant only inasmuch as they bear on the basic tort issues such as the foreseeability and unreasonableness of the particular risk of harm (reversed rule of nonliability for landlords)
49
SARGENT V ROSS REASOING/HOLDING:
* Both P and wife tenant testified that the stairs were too steep and the husband tenant testified that his wife complained to him of this fact. In any event, the use of these steps by young children should have been anticipated by D.
* The dangerous quality of the steps might have been obvious to an adult, but the danger and risk to a child would likely be imperceptible
* We have carefully reviewed the record and conclude that there is sufficient evidence, on the basis of the principles set forth, to support the verdict of the jury. Sustained Holding for Plaintiff.
50
POSCAL V WALMART STORES
| FACTS
Mrs. Posecai went to Sams club to make an exchange and to do some shopping
• As Posecai was placing her purchases in her trunk, a man who was hiding under her car grabbed her ankle and pointed a gun at her.
• The assailant instructed her to hand over her jewelry and her wallet
• She lost a two and a half carat ring given to her by her husband, a diamond and ruby bracelet, and a diamond and gold watch, all valued close to $19,000
• At the time of the armed robbery a security guard was stationed inside the store to protect the cash office , he could not see the outside parking lot
• Two police officers testified that the subdivision behind the Sam’s club is generally known as a high crime area but the Sam’s parking lot is not considered a high crime location
• An expert on crime risk assessment testified that the robbery could have been prevented by an exterior police presence
51
POSCAL V WALMART STORES RULE
Business owners do have a duty to take reasonable precautions to protect invitees from foreseeable criminal attacks and have a duty to protect their patrons from criminal acts when those acts are foreseeable.
52
POSCAL V WALMART STORES REASONING/HOLDING:
• There are four approaches to resolve the foreseeability issue
1. Specific Harm Rule (outdated) – a landowner does not owe a duty to protect patrons from the violent acts of third parties unless he is aware of specific, imminent harm about to befall them (courts agree this rule is too restrictive in limiting the duty of protection)
2. Prior Similar Interests Test – foreseeability is established by evidence of previous crimes on or near the business. The idea being past history of criminal conduct will put the landowner on notice of future risk
3. Totality of the Circumstance (most common) – This test takes additional factors into consideration such as the nature, condition, and location of the land. Tends to place a greater duty on business owners to foresee the risk of criminal attacks on their property and has been criticized as being too broad a standard
4. Balancing Test – Seeks to address the interests of both business proprietors and their customers by balancing the foreseeability of harm against the burden of imposing a duty to protect against the criminal acts of third persons
The foreseeability of harm and the gravity of harm must be balanced against the commensurate burden imposed on the business to protect against harm. (This court used the balancing test)
• We adopt the following balancing test to be used in deciding whether a business owes a duty of care to protect its customers from criminal acts of third parties. The foreseeability of the crime risk on the D’s property and the gravity of the risk determine the existence and the extent of the D’s duty. The greater the foreseeability and gravity of the harm, the greater the duty of care that will be imposed on the business
• The most important factor to consider is the existence, frequency, and similarity of prior instances of crime on the premises, but the location, nature, and condition of the property should also be taken into account
• In this case there were only 3 predatory offenses on Sam’s premises in the 6 and a half years prior to this robbery
• Although the neighborhood bordering Sam’s is considered a high crime area by local law enforcement, the foreseeability and gravity of harm in Sam’s parking lot remains slight
• We conclude that Sam’s did not possess the requisite degree of foreseeability for the imposition of a duty to provide security patrols in the parking lot. Nor was the degree of foreseeability sufficient to support a duty to implement lesser security measures. Accordingly, Sam’s owed no duty to protect P from the criminal acts of third parties under the facts and circumstances of this case. Reversed. Holding for D.
53
STRICT LIABILITY
• D actor who causes harm is liable even if the actor exercises reasonable care and does not intend to interfere in any way with the P
o Liable with no fault
54
Strict Liability Categories
1. Animals
2. Abnormally Dangerous Activity
3. Product Liability
55
Animals:
• Possession of Animals: 3 categories
o Livestock, including cattle, horse, sheep
o Wild animals confined for a variety of reasons
o Dogs, cats, and other domesticated animals
• In General courts impose strict liability on possessors of livestock and wild animals, but hold possessors of domesticated animals in the 3rd category liable only if P proves D knew ahead of time that the animal was prone to violence
• Restatement 3rd 23: indicates that if an animal owner knew of her animal’s dangerous tendencies, which may include a tendency to stray, the owner will no longer merely face a negligent standard, but one of strict liability
o Exception: public zookeepers are only liable if shown to have been negligent
56
BARD V JAHNKE
| FACTS
P Larry Bard, a self employed carpenter, arrived at Jahnke’s farm to repair ripped cow mattresses
• As he was working a number of cows wandered in and out of the barn
• A bull entered and charged Bard, causing him a fractured ribs, a lacerated liver, and exacerbation of a preexisting cervical spine condition
57
BARD V JAHNKE RULE:
The owner of a domestic animal who either knows or should have known of that animal’s vicious propensities will be held liable for the harm the animal causes. Vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others in a given situation.
• Once this knowledge is established the owner faces strict liability
• The owner of a domestic animal, which the owner does not know or have reason to know or should have known to be abnormally dangerous, is nonetheless liable if he intentionally causes the animal to do harm or is negligent in failing to prevent harm.
58
BARD V JAHNKE REASONING/HOLDING
* Fred (the bull) never attacked any farm animal or human being before. He had always moved unrestrained and regularly came into contact with other farm animals, workers, and members of the Jahnke family without incident or hint of hostility. He never acted in a way that put anyone at risk for harm.
* Jahnke was negligent in failing to restrain Fred or to warn of his presence is no different from arguing that Jahnke was negligent in that he should have known of Fred’s vicious propensities because bulls are generally vicious animals. We have never held that particular breeds or kinds of domestic animals are dangerous, so the owner must encounter prior vicious propensities
* Bard cannot recover under the traditional rule. (st. lia.), Appellate affirmed, with costs. Holding for D. (neg.)
59
Abnormally Dangerous Activities:
RULE – ABNORMALLY DANGEROUS ACTIVITIES: RESTATE. 3RD 20
• An actor who carries on an abnormally dangerous activity is subject to strict liability for physical harm resulting from the activity
• An activity is abnormally dangerous if:
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 common usage
60
FLETCHER V RYLANDS
| FACTS:
: P was damaged in his property being flooded by water, which without any fault of his own part, broke out of a reservoir constructed on D’s land by the D’s orders and maintained by the Ds.
• D selected competent engineers and contractors to make the reservoir, and were totally ignorant of any defects
• RULE: A person who, for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and if he does not do so, is prima facie answerable for all the damages which is the natural consequence of its escape> (strict liability)
• He can excuse himself by showing that the escape was owing to the P or that the escape was the consequence of an act of God.
***when going out into the world you are exposing yourself to danger, i.e taking risks, so strict liability isn’t applicable but P was on his own property so he had no reason to expect that he would be subject to risk
61
FLETCHER V RYLANDS
A person who, for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and if he does not do so, is prima facie answerable for all the damages which is the natural consequence of its escape> (strict liability)
• He can excuse himself by showing that the escape was owing to the P or that the escape was the consequence of an act of God.
62
FLETCHER V RYLANDS REASONING/HOLDING
* P took no assumption of the risk and there were no acts of god to excuse D from strict liability.
* P is entitled to recover (no judgment regarding the amount owed to P b/c it was not argued). Holding for P.
63
TURNER V BIG LAKE OIL CO.
| FACTS:
Ds in the error of operation of certain oil wells constructed large artificial earth ponds into which they ran the polluted water from the wells
• Water escaped from one or more of these ponds and passing over the grass lands of the Ps injuring their turf
64
TURNER V BIG LAKE OIL CO. RULE:
The impounding of water in stream ways, being an obvious and natural use, was necessarily within the contemplation of the parties to the original and adjacentg rants, and damages must be predicated upon negligent use of a granted right and power, while things not within the contemplation of the parties to the original grants, such as unnatural use of the land, the landowner do at his own peril. (Natural use = negligence while Unnatural use = Strict liability)
65
TURNER V BIG LAKE OIL CO. REASONING/HOLDING:
• The storage of water in Texas is necessary because it is an arid or semiarid region, and almost without any streams or ponds that would naturally store water, without water storage the livestock industry would perish. As a result, the rules predicated in Rylands v Fletcher do not apply here
66
INDIANA HARBOR BELT RR V AMERICAN CYNAMID CO.
| FACTS
American Cyanamid Co is Major manufacturer of chemicals, including acrylonitrile, a chemical used in large quantities in making acrylic fibers, plastics, dyes, etc.
• Its manufacturing plant loaded 20,000 gallons of liquid acry. Onto a railroad tank car
• The next day a train of the Missouri pacific railroad picked up the car, they carried the car to the blue island railroad yard of Indiana, Harbor Belt Railroad (P), who is a small switching line that has a contract with Conrail to switch cars from other lines to travel east
• Several hours after the car arrived in Indiana employees noticed fluid gushing from the bottom of the car
• The lid on the outlet of the car was broken
• The supervisor was able to stop the leak but it was unknown as to how much of the fluid leaked out so local authorities evacuated nearby homes
• Only about a quarter of the liquid spilled out
67
INDIANA HARBOR BELT RR V AMERICAN CYNAMID CO. RULE
A particular type of accident cannot be prevented by taking care but can be avoided, or its consequences minimized, by shifting the activity in which the accident occurs to another locale, where the risk of harm of an accident will be less, or by reducing the scale of the activity in order to minimize the number of accidents caused by it. The greater the risk of an accident and the costs of the accident if one occurs, the more we want the actor to consider the possibility of making accident reducing activity changes; the stronger, therefore is the case for strict liability. Finally if an activity is extremely common, like driving an automobile, it is unlikely either that its hazards are perceived as great or that there is no technology of care available to minimize them, so the case for strict liability is minimized
68
INDIANA HARBOR BELT RR V AMERICAN CYNAMID CO
The case for strict liability has not been made. Judgment reversed and remanded on the P’s claim for negligence. Holding for P.
***when due care avoids the harm, negligence is a more applicable claim than strict liability
69
FOSTER V PRESTON MILL CO.
| FACTS:
Blasting operations conducted by the Preston Mill company frightened a mother mink owned by Foster, and caused the mink to kill its kittens
• Foster bought this action to recover damages
70
FOSTER V PRESTON MILL CO .RULE
Strict liability should be confined to consequences which lie within the extraordinary risk whose existence calls for such responsibility
• One who carries on an ultrahazardous activity is liable to another whose person, land, or chattels the actor should recognize as likely to be harmed by the unpreventable miscarriage of the activity for harm resulting thereto from that which makes the activity ultrahazardous, although the upmost care is exercised to prevent the harm
71
FOSTER V PRESTON MILL CO. APPLICATION
* The thing which makes blasting ultrahazardous is the risk that property or persons may be damaged or injured by coming into direct contact with flying debris, or by being directly affected by vibrations of the earth or concussions of the air
* The relatively moderate vibration and noise which appellant’s blasting produced at a distance of two and a quarter miles was no more than a usual incident of the ordinary life of the community
* It is our conclusion that the risk of causing harm of the kind here experienced, as a result of the relatively minor vibration, concussion, and noise from distant blasting, is not the kind of risk which makes the activity of blasting ultrahazardous.The doctrine of absolute liability is therefore inapplicable under the fact of this case, and respondent is not entitled to recover damages.
72
PRODUCTS LIABILTY
• Injury caused by defective and dangerous products
• Legal Theories Used:
o Negligence
o Strict Liability
o Express Warranty
o Misrepresentation
o Implied Warranty of Merchantability
o Implied Warranty of Fitness for a Particular Purpose
• Privity: P has direct contact with D manufacturer does not bar negligence or strict liability but it remains an obstacle to recovery when a P seeks to recover for economic loss
o Because claims for economic loss are based in contract law and the lack of direct contractual relationship may be fatal for recovery
• Privity required in implied warranty of merchantability is practically useless for a P seeking recovery for injuries because of all of the restrictions and requirements in UCC
73
RULE: SPECIAL LIABILTY OF SELLER OF PRODUCT FOR PHYSICAL HARM TO USER OR CONSUMER – RESTATE. 2ND 402
• One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property, is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property if:
o The seller is engaged in the business of selling such product AND
o It is expected to and does reach the user or consumer without substantial change in the condition in which it was sold
• This rule applies although
o The seller has exercised all possible care in the preparation and sale of his product and
o The user or consumer has not bought the product from or entered into any contractual relation with the seller
74
3 Categories of Defect
1. Manufacturing Defect
2. Failure to Warn
3. Defective Design
75
RULE – LIABILITY OF COMMERCIAL SELLER OR DISTRIBUTOR FOR HARM CAUSED BY DEFECTIVE PRODUCTS
• One engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect
76
RULE: CATEGORIES OF PRODUCT DEFECT
• A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings. A product
a) Contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product
b) Is defective in design when the foreseeable risk of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe
c) Is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced of avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings render the product not reasonably safe
77
WELGE V PLANTERS LIFESAVERS CO.
| FACTS
Welge bought planters peanuts and a week later he removed the plastic seal from the jar, uncapped it, took some peanuts, replaced the cap, and returned the jar to the top of the refrigerator, all without incident
• A week after that Welge took down the jar, removed the plastic cap, spilled some peanuts into his hand, and replaced the cap, but as he pushed down the cap on the open jar the jar shattered. His hand was severely cut
78
WELGE V PLANTERS LIFESAVERS CO. RULE
If it is the kind of accident that would not have occurred but for a defect in the product, and if it is reasonably plain that the defect was not introduced after the product was sold, the accident is evidence that the product was defective when sold.
• The P in a strict liability suit is not required to exclude every possibility, however fantastic or remote, then the defect which led to the accident was caused by someone other than one of the Ds. The doctrine of res ipsa loquitor teaches that an accident that is unlikely to occur unless the D was negligent is itself circumstantial evidence that the D was negligent. The doctrine is not strictly applicable to products liability cases because unlike an ordinary accident, the D in a products liability case has parted with possession and control of the harmful object before the accident occurs
79
WELGE V PLANTERS LIFESAVERS CO. APPLICATION
* If Welge is to be believed it excludes all reasonable possibility that the defect was introduced into the jar after it was plucked from the shelf at K-mart, from the shelft put in a shopping cart, then handled by the checker at the check out counter, then placed in a plastic bag, then carried to the car and placed on the car floor, drove home, and placed in the refrigerator without incident. This argument overlooks two things, one is that karen godfrey took a knife to the jar
* The experts agreed that the jar must have contained a defect but they could not find the fracture that had precipitated the shattering of the jar and they could not figure out when the defect that caused the fracture that caused the collapse of the jar had come into being
* Here we know to a reasonable certainty that the accident was not due to mis-handling after purchase but to a defect that had been introduced earlier
80
The restatement and case law on inference of defect:
| RULE: CIRCUMSTANTIAL EVIDENCE SUPPORTING INFERENCE OF PRODUCT DEFECT
• It may be inferred that the harm sustained by the P was caused by a product defect existing as the time of sale or distribution, without proof of a specific defect, when the incident that harmed the P
a) Was of a kind that ordinarily occurs as a result of product defect AND
b) Was not, in the particular case, solely the result of caused other than product defect existing at the time of sale or distribution
81
DESIGN DEFECT
Design Defects: factors relevant in determining whether the omission of a reasonable alternative design renders a product not reasonably safe
o A product is defective in design if the omission of a reasonable alternative design renders the product not reasonably safe
• The rick utility balancing test is used to define defects
82
Risk Utility Balancing Test:
* Used to decide whether a product design is reasonably safe
* Restatement 2(b) requires a P establish that the foreseeable risks of harm could have reduced or avoided by the adoption of a reasonable alternative design’
83
Factors used to determine if a design is reasonably safe:
• The magnitude and probability of foreseeable risks of harm
• The instructions and warnings accompanying the product
• The nature and strength of consumer expectations regarding the product
o Includes expectations which arise from product portrayal and marketing
• Alternative design costs
84
PRENTIS V YALE MANUFACTURING CO.
| FACTS
P John and his wife Helen bought suit alleging both negligence and breach of implied warranty, predicating D manufacture’s liability upon the alleged defective design of the forklift
• John was employed as foreman of the parts department at an automobile dealership, and he sustained a hip injury in an accident involving the use of a forklift manufactured by D Yale Manufacturing
• John was never formally instructed how to use the forklift upon employment
• John knew that the forklift acted erratically when it was on a low batter on prior occasions, and on the day of the accident John was aware that the battery was low
85
PRENTIS V YALE MANUFACTURING CO. RULE
Whether a suit is based upon negligence or implied warranty, requires P to prove that the product itself is actionable, thus that something is wrong with the product that makes it dangerous
• Injuries caused by the condition of a product may also be actionable if the product’s design, which is the result of intentional design decisions of the manufacturer, is not sufficiently safe
• Approaches to determine defect: 1) negligence utility analysis, which focuses upon whether the manufacturer would be judged negligent if it had known of the product’s dangerous condition at the time it was marketed 2) the risk and utility of the product at the time of trial 3) Consumer Expectations of the product and 4) a combination of the risk utility and consumer expectation test
86
PRENTIS V YALE MANUFACTURING CO. APPLICATION
* The overwhelming consensus among courts deciding design defect cases is in the use of some form of risk utility analysis, either as an exclusive or alternative ground of liability
* Risk utility involves an assessment of the decisions made by the manufacturers with respect to their products
* The issue is whether the manufacturer properly weighed the alternatives and evaluated the trade-offs, and thereby developed a reasonably safe product
* When a jury decides a risk of harm outweighs the utility of a particular design (that the product is not as safe as it should be) it is saying that in choosing the particular design and cost trade-offs, the manufacturer exposed the consumer to greater risk of danger than he should have.
* A manufacturer of a product made under a plan or design which makes it dangerous for uses for which it is manufactured for, subject to liability to others whom he should expect to use the product or to be endangered by its probable use from physical harm caused by his failure to exercise reasonable care in the adoption of a safe plan or design
* A manufacturer has a duty to use reasonable care in designing the product and guard it against a foreseeable and unreasonable risk of injury and this may even include misuse which might reasonably be anticipated
* We hold that in a products liability action against a manufacturer, based upon defective design, the jury need only be instructed on a single unified theory of negligence, and the jury here was instructed to consider whether the manufacturer took reasonable care in light of any reasonably foreseeable use of the product which might cause or injury, so the instruction is adequate
87
VANTOUR V BODY MASTERS SPORTS INDUSTRIES INC.
| FACTS
Mr. Vantour was injured while using the leg press machine manufactured by D
• Mr. Vantour contends the location of the safety stops exposed users to an unreasonable risk of harm and that the design defect caused his injuries
• An expert witness testified that the machine, as designed, is hazardous because it does not adapt well to a wide range of body sizes and weightlifters may perform calf exercises without the upper stops engaged
88
VANTOUR V BODY MASTERS SPORTS INDUSTRIES INC. RULE
To prevail on a defective design products liability claim, a P must prove the following four elements. (1) the design of the product created a defective condition unreasonably dangerous to the user, (2) the condition existed when the product was sold by a seller in the business of selling such products, (3) the use of the product was reasonably foreseeable by the manufacturer and (4) the condition caused the injury to the user or the user’s property
• Under a risk utility approach, a product is defective as designed if the magnitude of the of the danger outweighs the utility of the product
• In order to determine whether the risks outweigh the benefits of the product design, a jury must evaluate many possible factors, including the usefulness and desirability of the product to the public as a whole, whether the risk of danger could have been reduced without significantly affecting either the product’s effectiveness or manufacturing cost, and the presence and efficacy of a warning to avoid an unreasonable risk of harm from hidden dangers or from foreseeable users
• The Restatement Third of Torts 2 requires a P in a design defect case to prove that the risks of harm posed by the product could have been reduced or avoided by a reasonable alternative design…”a product is defective in design when the foreseeable risk of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product nor reasonably safe
89
VANTOUR V BODY MASTERS SPORTS INDUSTRIES INC. APPLICATION
* We are satisfied that the risk utility test as currently applied protects the interests of both consumers and manufacturers in design defect cases, and we decline to adopt the restatement
* Here, the P presented sufficient evidence that the leg press machine was unreasonably dangerous pursuant to the risk utility balancing test. The P’s expert testified that the D’s design was dangerous to the user, from an injury perspective, and his proposed design was safer than the D’s current design
* Thus we hold that the trial court erroneously granted D’s motion for directed verdict upon the P’s strict liability design defect claim
90
Consumer’s Expectation Test:
* One argument is the way to move toward strict liability is not to ask whether there was a better way to design the product, but to impose liability if the product disappoints consumer expectations.
* If it does, then even if there was no reasonable alternative design, the P prevails
91
IZZARELLI V REYNOLDS TOB CO.
| FACTS:
D added ammonia compounds to turn nicotine into its more potent freebase form and understood that increasing the free nicotine would enhance the addictive properties of Salem cigarettes, while decreasing the nicotine yield of the cigarettes would increase the number of cigarettes needed to meet the smoker’s addiction demand
• P began smoking in the early 70s when she was about 12 years old and became severely addicted, eventually 2 to 3 pack of Salem cigarettes daily
• At age 36 P was diagnosed with cancer of the larynx and to treat it her larynx was removed and she received radiation
• After her diagnosis and treatment P commenced the present product liability action in federal court under theories of strict liability and negligent design
92
IZZARELLI V REYNOLDS TOB CO. RULE
The court decided to adopt a test that would incorporate risk utility factors into the ordinary consumer framework. Under the modified consumer expectation test, the jury would weigh the product’s risks and utility and then inquire, in light of those factors, whether a reasonable consumer would consider the product design unreasonably dangerous
93
IZZARELLI V REYNOLDS TOB CO. APPLICATION
* The ordinary consumer expectation test is reserved for cases in which the product failed to meet the ordinary consumer’s minimum safety expectations, such as res ispa type cases. A jury could not reasonably conclude that cigarettes that cause cancer fail to meet the consumer’s minimum safety expectations. Therefore, the P was required to proceed under the modified consumer expectation test
* A product might meet the consumer’s minimum safety expectations because the product’s dangers are known or obvious but nonetheless be defective because it could have been designed to be less dangerous without reasonably compromising cost or utility
* Finally, we note that other jurisdictions applying some form of risk utility test to design defect claims against cigarette manufacturers have found no impediment to the application of that test if the P identifies some defect specific to the cigarette brands at issue and/or a reasonably safer alternative
94
Purpose of Modified Consumer Expectation Test
Is to keep strict liability pure and not have design defect cases revert to a reasonableness test, so they add on a final consumer check after evaluating reasonableness
95
Two-Pronged Test for Defect:
SOULE V GENERAL MOTORS
FACTS
P was driving her 1982 Camaro and there was a slight drizzle, the roadway was damp and P was not wearing a seatbelt
• A 1972 Datsun approaching the northbound suddenly skidded into the path of P’s car
• The collision bent the Camaro’s frame adjacent to the wheel and tore loose the frame, as a result the wheel collapsed rearward and inward
• The wheel hit the underside of the toe pan, the slanted floorboard area beneath the pedals, causing the toe pan to crumble upward into the passenger compartment
• P received a fractured rib and relatively minor scalp and knee injuries. Her most severe injuries were fractures of both ankles and the more serious of these was the compound compression fracture of her left ankle
• P sued GM asserting a theory of strict tort liability for a defective product
96
SOULE V GENERAL MOTORS RULE
A product is defective in design if it fails to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner or if there is a risk of danger inherent in the design which outweighs the benefit of the design
• To establish liability for a design defect under the ordinary consumer expectations standard the P must show (1) the manufacturer’s product failed to perform as safely as an ordinary consumer would expect (2) the defect existed when the product left the manufacturer’s possession (3) the defect was a legal cause of P’s enhanced injury and (4) the product was used in a reasonably foreseeable manner
• An injured person is not foreclosed from proving a defect in the product’s design simply because he cannot show that the reasonable minimum safety expectation of the ordinary consumers were violated. Under Barker’s alternative test, a product is still defective if its design embodies excessive preventable danger that is unless the benefits of the design outweigh the risk of danger inherent in such design
• The two prong Barker test states: A product is defective in design if (1) it fails to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner, or (2) if there is a risk of danger inherent in the design which outweighs the benefit of the design
• 2 Prong Test: Unless the facts actually permit an inference that the product’s performance did not meet the minimum safety expectations of its ordinary users, the jury must engage in the balancing if risks and benefits required by the second prong of Barker
97
SOULE V GENERAL MOTORS APPLICATION
* We agree that the instant jury should not have been instructed on ordinary consumer expectations. P’s theory of design defect was one of technical and mechanical detail. It sought to examine the precise behavior of several obscure components of her car under the complex circumstances of a particular accident
* An ordinary consumer of automobiles cannot reasonably expect that a car’s frame, suspension, or interior will be designed to remain intact in any and all accidents. Nor would ordinary experience and understanding infrom such a consumer how safely an automobile’s design should perform under the esoteric circumstances of the collision at issue here
98
Two prong Barker test
• A product is defective in design if (1) it fails to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner, or (2) if there is a risk of danger inherent in the design which outweighs the benefit of the design
99
Analyzation Process:
In a state with a Soule jurisdiction we first have to figure out which test we will use to determine if the product design is defective
1. The Simple Complex Test – A design is simple if a lay person understands it easily, not a hard concept to grasp, no expert testimony needed
a. Whether ordinary persons, using knowledge common to the community, can form minimum safety expectations about how a product should be designed to function
2. In a Soule jurisdiction, if the ordinary consumer can form minimum safety expectations about a product’s functioning, the consumer expectation test (CET) should be used
* **Simple and complex tests are two different test! One or the other will be used, not both
100
O’BRIEN V MUSKIN CORP
| FACTS:
P Gary O’Brien seeks to recover in strict liability for personal injuries sustained because D Muskin Corporation, allegedly marketed a product, an above ground swimming pool that was defectively designed and bore an inadequate warning
• O Brien sued to recover damages for personal injuries sustained when he dove into a swimming pool. As his outstretched hands hit the vinyl lined pool bottom, they slid apart, and O’Brien struck his head on the bottom of the pool
101
O’BRIEN V MUSKIN CORP RULE
: Risk utility analysis implicates the reasonableness of the manufacturer’s conduct, strict liability law continues to manifest that part of its heritage attributable to the law of negligence. Risk utility analysis is appropriate when the product may function satisfactorily under one set of circumstances, yet because of its design present undue risk of injury to the user in another situation
• The ultimate burden of proving a defect is on the P, but the burden is on the D to prove that compliance with state of the art in conjunction with other relevant evidence, justifies placing a product on the market. Compliance with proof of state of the art need not, as a matter of law, compel a judgment for the D.
• State of the art evidence, together with other evidence relevant to risk utility analysis, however, may support a judgment for a D
102
O’BRIEN V MUSKIN CORP APPLICATION
* In a design defect case, the P bears the burden of both going forward with the evidence and of persuasion that the product contained a defect. To establish a prima facie case, the P should adduce sufficient evidence on the risk utility factors to establish a defect.
* With respect to above ground swimming pools, for example, the P might seek to establish that pools are marketed primarily for recreational, not therapeutic purposes, that because of their design. Including their configuration, inadequate warnings, and the use of vinyl, injury is likely; that without impairing the usefulness of the pool or pricing it out of the market, warnings against diving could be made more prominent and a liner less dangerous. It may not be necessary for the P to introduce evidence to on all of those alternatives
* In concluding, we find that, although the jury allocated fault between the parties, the allocation was based upon the consideration of the fault of Muskin without reference to the design defect. We believe the appropriate disposition is to reinstate the dismissal as to Kiddie City and to preclude Muskin from denying that it made the vinyl liner
103
O’Brien Case:
• Products can be state of the art and still fail to satisfy risk utility test
104
Abnormally Dangerous Activity:
• There are occasions where the court has determined as a matter of law because of policy reasons that liability should be imposed even though there is no defect in the product. This is the absolute liability model.
o The typical example is fixing absolute liability when an ultrahazardous activity causes injury or damage
o Liability is imposed irrespective of any wrongdoing by the D
105
RULE: ABNORMALLY DANGEROUS ACTIVITIES – RESTATE 2ND 520
• In determining whether an activity is abnormally dangerous, the following factors are to be considered
a) existence of a high degree of risk of some harm to the person, land, or chattels of others;
b) likelihood that the harm results from it will be great;
c) inability to eliminate the risk by exercise of reasonable care;
d) extent to which the activity is not a matter of common usage;
e) inappropriateness of the activity to the place where it is carried on; and
f) extent to which its value to the community is outweighed by its dangerous attributes
106
ADAMO V BROWN AND WILLIAMSON TOBBACCO CORP.
| FACTS:
claim that two cigarette companies were negligent in designing their product because they should have used lower levels of nicotine
• Norma Rose, who died during the pendency of the appeal, smoked for more than 40 years, consuming more than a pack a day of regular cigarettes and was diagnosed with lung cancer and another condition allegedly caused by smoking
107
ADAMO V BROWN AND WILLIAMSON TOBBACCO CORP. RULE
It is not necessary in every product liability case that the P show the safer product is as acceptable to consumers as the one the D sold; but such a showing is necessary where, as here, satisfying the consumer is the only function the product has
108
ADAMO V BROWN AND WILLIAMSON TOBBACCO CORP. APPLICATION
* The function of a cigarette is to give pleasure to a smoker; Ps have identified no other function. Ps made no attempt to prove that smokers find light cigarettes as satisfying as regular cigarettes
* To hold that every sale of regular cigarettes exposes the manufacturer to tort liability would amount to a judicial ban on the product. If regular cigarettes are to be banned, that should be done by legislative bodies, not by courts
109
Failure to Warn:
ANDERSON V OWENS- CORNING FIBERGLASS CORP:
FACTS:
Ds are or were manufacturers of products containing asbestos
• P Carl Anderson filed suit in 1984 alleging that he contracted asbestos and other lung ailments through exposure to asbestos and asbestos products while working as an electrician at the Long Beach Naval Shipyard from 1941 to 1976
• P alleged Ds knew consumers and members of the general public had no knowledge of the potentially injurious nature of asbestos, and that Ds failed to warn users of the risk and danger
110
ANDERSON V OWENS- CORNING FIBERGLASS CORP: RULE
Negligence law in a failure to warn case requires P to prove that a manufacturer or distributor did not warn of a particular risk for reasons which fell below the acceptable standard of care, i.e. what a reasonably prudent manufacturer would have known and warned about
• The rules of strict liability require a P to prove only that the D did not adequately warn of a particular risk that was known or knowable in light of the generally recognized and prevailing best scientific and medical knowledge available at the time of manufacture and distribution
• The fact that a manufacturer acted as a reasonably prudent manufacturer in deciding not to warn, while perhaps absolving the manufacturer if liability under the negligence theory, will not preclude liability under strict liability principles if the trier of fact concludes that, based on the information scientifically available to the manufacturer, the manufacturer’s failure to warn rendered the product unsafe to its users
111
ANDERSON V OWENS- CORNING FIBERGLASS CORP: APPLICATION
* We recognize that an important goal of strict liability is to spread the risks and costs of injury to those most able to bear them. However it was never the intention of the drafters of the doctrine to make the manufacturer or distributor the insurer of the safety of their products. It was never the intention to impose absolute liability
* A D in a strict products liability action based upon an alleged failure to warn of a risk of harm may present evidence of the state of the art, i.e. evidence that the particular risk was neither known nor knowable by the application of scientific knowledge available at the time of manufacture and/or distribution
112
ANDERSON CONT
Anderson Heeding Presumption Test: when a D fails to warn, the court presumes that P would have read the warning and would have avoided the warned against, it is then the task of the D to rebut the assumption
Anderson Heeded Warning Test: In failure to warn cases but for causation still needs to be met
The failure to warn is only a but for cause when but for the P having a warning, they would have used the product more safely (if not, no cause in fact)
113
UNION PUMP CO. V ALLBRITTON
| FACTS:
P bought suit alleging negligence, gross negligence, and strict liability and the trial court granted summary judgment for the D
• One night a fire occurred at Texaco Chemical Company’s facility in Port Arthur Texas. A pump manufactured by Union pump company caught fire and ignited the surrounding area
• Approximately two hours later, the fire was extinguished. However, there appeared to be a problem with a nitrogen purge valve, and Subia was instructed to block the valve
114
UNION PUMP CO. V ALLBRITTON RULE
Negligence requires a showing of proximate cause, while producing cause is the test in strict liability
• Proximate and producing cause differ in that foreseeability is an element of proximate cause, but not of producing cause
• Producing cause is an efficient, exciting, or contributing cause, which in a natural sequence, produced injuries or damages complained of, if any
• At some point in the causal chain, the D’s conduct or product may be too remotely connected with the P’s injury to constitute legal causation and the law does not hold one legally responsible for the remote results of his wrongful acts and therefore a line must be drawn between immediate and remote causes.
115
UNION PUMP CO. V ALLBRITTON APPLICATION
* Legal cause is not established if the D’s conduct or product does no more than furnish the condition that makes the P’s injury possible
* Even if the fire pumps were in some sense philosophic or but for cause of Allbritton’s injuries, the forces generated by the fire had come to rest when she fell off the pipe rack. The fire had been extinguished, and Allbrittion was walking away from the scence
* The pump fire did no more than create the condition that made Allbritton’s injuries possible
* We conclude that the circumstances surrounding her injuries are too remotely connected with Union Pump’s conduct or pump to constitute a legal cause of her injuries
116
Comparative Fault:
WEBB V NAVISTAR INTERNATIONAL TRANSPORTATION CORP.
FACTS:
Bruce Webb learned that some of his cows might be out of the pasture so him and his father got on a tractor and proceeded down route 207 with Webb standing on the draw bar and his father driving
• En route, the tractor was struck in the rear by a car driven by an allegedly intoxicated operator, and as a result of the accident Webb suffered serious injuries to his legs
• At the time of the accident the flashing amber lights and the taillight did not work, and the reflectors were missing. In addition, by riding the draw bar Webb blocked the view of the reflective triangle
• The draw bar indicated there were no riders allowed
117
WEBB V NAVISTAR INTERNATIONAL TRANSPORTATION CORP. RULE
Manufacturers must bear the cost of casting defective products into the market. The manufacturer must remain responsible for damages resulting from defect, regardless of the extent to which other factors contributed to the injuries
• Strict liability was intended to spread the cost of injuries resulting from defective products, it was never intended to spread the cost of injuries resulting from user negligence
118
WEBB V NAVISTAR INTERNATIONAL TRANSPORTATION CORP. APPLICATION
* A balanced and properly designed rule on comparative causation will significantly reduce the incentive for manufacturers to produce safe products; indeed it may increase the incentive
* If comparative principles ever apply in a strict liability case, they should apply here. The jury could find that a number of Bruce Webb’s actions or omissions reflected the lack of due care for his safety
* For example, irrespective of what lighting was available or in use, the jury could find that Webb was negligent in riding on the draw bar and covering up a reflector and amber light while the tractor was being operated on a highway, on remand I will allow at least that determination
119
TRESPASS TO LAND AND NUISANCE
* If one intentionally enters upon land in the possession of another or intentionally causes a thing or a third person to do so, one is subject to liability for trespass
* The possessor need not establish that she suffered any harm as a result of the entry. The right to exclusive possession of the land is protected even if the entrant acted reasonably, believing that the land actually belonged to him
* Trespass to land is an intentional tort in the sense that when the entrant intends to be physically present on land that is legally in the possession of another, he is liable even when acting on a mistaken belief as to right to possession
* The remedies for trespass include nominal damages, rental value for use of the land, recovery for damage caused by the D’s conduct while trespassing and injunctions against continuing trespass
* The interest being protected in trespass is the right to exclusive possession of one’s property
120
ELEMENTS FOR INDIRECT TRESPASS:
(1) an invasion affecting an interest in the exclusive possession of his property,
(2) an intentional doing of the act which results in the invasion,
(3) reasonable foreseeability that the act done could result in an invasion of P’s possessory interest and
(4) substantial damages
121
Nuisance:
* The tort of nuisance protects one’s rights to the use and enjoyment of property
* Unlike trespass, which protects against tangible intrusion, the tort of nuisance protects against intangible invasions of one’s land. Thus, a landowner who is inconvenienced by noise, smoke, or other pollutants coming from industrial plants operating in the vicinity may be able to successfully to assert a claim for private nuisance
* Nuisance, unlike trespass, is fairly flexible
* The interest being protected in nuisance is the right to the use and enjoyment of one’s property (this is an indirect trespass)
122
ELEMENTS FOR PRIVATE NUISANCE
1. A basis for liability (intentional tort or negligence)
2. Significant harm AND
3. An unreasonable invasion of the P’s land
* **On exam focus more on the reasonableness of the invasion and less on the basis of liability
123
Tests for Unreasonableness:
| TEST FOR UNREASONABLNESS – RESTATE. 829(A)
1. P must have suffered severe harm from invasion
| 2. Harm is greater than the other should have to bear without compensation
124
UNREASONABLNESS – RESTATE. 826(B)
• The harm caused by the conduct is serious and the financial burden of compensating for this and similar harms to others would not move the continuation of the conduct not feasible
125
UNREASONABLNESS – RESTATE. 826 (A)
• The gravity of harm outweighs the utility of the actor’s conduct
126
Most D Friendly Unreasonableness Test in Order:
1. 826 (a)
2. 826 (b)
3. 829 (a) – does not mention D’s conduct
127
BRADLEY V AMERICAN SMELTING AND REFINIGN CO.
| FACTS
This case was initiated in King County superior court and later removed to the United States District court
• Ps purchased their property located four miles north of D’s smelter
• D’s copper smelter has operated in its present location since 1890.
• As a part of the industrial process of smelting cooper, various gases, such as sulfur dioxide and particulate matter, including arsenic cadmium and other metals, are emitted.
128
BRADLEY V AMERICAN SMELTING AND REFINIGN CO RULE
Liability on the theory of trespass has been recognized where the harm was produced by the vibration of the soil or by the concussion of the air which, of course, is nothing more than the movement of molecules one against the other
• In order to recover for indirect trespass, a P must show (1) an invasion affecting an interest in the exclusive possession of his property, (2) an intentional doing of the act which results in the invasion, (3) reasonable foreseeability that the act done could result in an invasion of P’s possessory interest and (4) substantial damages
129
BRADLEY V AMERICAN SMELTING AND REFINIGN CO. APPLICATION
• The elements adopted for this case require that a P has suffered actual and substantial damages. Since this is an element of the action, the P who cannot show that actual and substantial damages have been suffered should be subject to dismissal of his case upon a motion for summary judgment
130
HUGHES V EMERALD MINES CORP.
| FACTS:
: In 1977 Ps purchased a mobile home and installed it on the property for their son’s use. At the time a second well was drilled and from its installation until the same period in late May or early June of 1978 the supply was plentiful and potable
• D owned surface rights in addition to subsurface rights to a portion of the tract contiguous to P’s property
• The second well became polluted so the water in this well can only be used to flush the commode, but not for cooking, cleaning, bathing, or drinking
131
HUGHES V EMERALD MINES CORP. RULE
One is subject to liability for a private nuisance if, but only if, his conduct is a legal cause of an invasion of another’s interest in the private use and enjoyment of land, and the invasion is either
a) Intentional and unreasonable or
b) Unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities
• Restatement 825 further defines intentional invasion as follows: An invasion of anther’s interest in the use and enjoyment of land, or an interference with the public right is intentional if the actor (a) acts for the purpose of causing it or (b) knows that it is resulting or is substantially certain to result from his conduct
• An intentional invasion becomes unreasonable according to 826 if: (a) the gravity of the harm outweighs the utility of the actor’s conduct, or (b) the harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible
• Restatement 829(a) unreasonableness: An intentional invasion of another’s interest in the use and enjoyment of land is unreasonable if the harm resulting from the invasion is severe and greater than the other should be required to bear without compensation
132
HUGHES V EMERALD MINES CORP. APPLICATION
* There is no doubt that Ps have suffered a significant harm to the use and enjoyment of their property
* As to intent, Ps clearly are not contending that the activities of D amount to a deliberate plot to ruin their wells. They contend, however, and the jury obviously agreed, that the D’s acts came under the language of 825 (b)
* As to the finding that the invasion of P’s right to the enjoyment of their well-water was unreasonable, we turn to the wording of the restatement 829 (a)
* D made no effort on the record to show that the damage inflicted was not avoidable at all or that it was avoidable only at such expense as would be practically prohibitory
* We therefore affirm the holding of the court below insofar as it held the Ds liable for damage sustained by these Ps to their wells, however as the evidence does not support a finding of total permanent loss of the water, the award of 32,500 id excessive
133
CARPENTER V DOUBLE R CATTLE CO. INC.
| FACTS:
Ps are homeowners who live near a cattle feedlot owned and operated by Ds
• P allege that the feedlot had been expanded in 1977 to accommodate the feeding of about 9,000 cattle and that the spread and accumulation of manure, pollution of river and ground water, odor, insect infestation, increased concentration of birds, dust, and noise caused by the feedlot constitute a nuisance
134
CARPENTER V DOUBLE R CATTLE CO. INC. RULE
Restatement 826 (b) states that a D can be held liable for a nuisance regardless of the utility of the conduct if the harm is serious and the payment of damages is feasible without jeopardizing the continuance of the conduct
135
CARPENTER V DOUBLE R CATTLE CO. INC. APPLICATION
• To eliminate the utility of conduct and other factors listed by the trial court from the criteria to be considered in determining whether a nuisance exists, as the appellant has argued throughout the appeal, would place an unreasonable burden upon those industies
136
PUBLIC NUISANCE ELEMENTS:
* D’s conduct involves a significant interference with public health, public safety, or public convenience
* To recover under public nuisance P must have suffered harm of a kind different from that suffered by the general public
137
BOOMER V ATLANTIC CEMENT CO. INC
| FACTS
: D operates a large cement plant near Albany
• These are actions for injunction and damages by neighboring land owners alleging injury to property from dirt, smoke, and vibration emanating from the plant
• A nuisance has been found after trial, temporary damages have been allowed, but an injunction has been denied
138
BOOMER V ATLANTIC CEMENT CO. INC RULE
The ground for the denial of injunction, notwithstanding the finding both that there is a nuisance and that the Ps have been damaged substantially, is the large disparity in economic consequences of the nuisance and of the injunction
• This theory, however, cannot be sustained without overruling a doctrine which has been consistently reaffirmed in several leading cases in this court and which has never been disavowed here, namely that where a nuisance has been found and where there has been any substantial damage shown by the party complaining an injunction will be granted
139
BOOMER V ATLANTIC CEMENT CO. INC
* These are actions for injunction and damages by neighboring land owners alleging injury to property from dirt, smoke, and vibration emanating from the plant
* A nuisance has been found after trial, temporary damages have been allowed, but an injunction has been denied
140
BOOMER V ATLANTIC CEMENT CO. INC APPLICATION
* The total damage to P’s property is however, relatively small in comparison with the value of D’s operation and with the consequences of the injunction which P’s seek
* Such a balancing of consequences cannot be justified by the circumstance
* To follow the rule literally in these cases would be to close down the plant at once. This court is fully agreed to avoid that immediately drastic remedy
* One alternative is to grant the injunction but postpone its effect to a specified future date to give opportunity for technical advances to permit D to eliminate the nuisance, another is to grant the injunction conditioned on the payment of permanent damages to Ps which would compensate them for the total economic loss to their property present and future caused by D’s operations
* The court chooses the later alternative
* The orders should be reversed without cost, and the cases remitted to Supreme court, Albany county to grant an injunction which shall be vacated upon payment by D of such amount of permanent damage to the respective Ps as shall for this purpose be determined by the court
141
DAMAGES
* Past physical and mental pain
* Future physical and mental pain
* Future medical expenses
* Loss of earning capacity
* Permanent disability and disfigurement
142
ELEMENTS OF DAMAGES
* Past physical and mental pain
* Future physical and mental pain
* Future medical expenses
* Loss of earning capacity
* Permanent disability and disfigurement
- Subrogation – a contract provision that states that if insurance pays medical expenses, and you get a judgment or settlement, they will be reimbursed for the expenses they covered
- use maximum recovery test from Anderson case on exam!
143
ANDERSON V SEARS ROEBUCK AND CO.
| FACTS
A jury found that a defective Sears heater caused the home of Mildred and Harry Britain to burn down. The fire caused burn injuries to both Ps and severe burns to their infant daughter
• The jury awarded Mildred 250,000, Harry 23,000, and Helen 2,000,000 dollars in compensatory damages
• The sole issue is whether the damages awarded to Helen Britain were excessive
144
ANDERSON V SEARS ROEBUCK AND CO. RULE
Maximum Recovery Rule – this rule directs the trial judge to determine whether the verdict of the jury exceeds the maximum amount which the jury could reasonably find and if it does, the trial judge may then reduce the verdict to the highest amount that the jury could have properly awarded
• The maximum recovery rule both preserves the constitutionality protected role of the jury as the finder of facts and prevents predictions of the judge from infecting the jury’s determination
• Five elements of damages are past physical and mental pain, future physical and mental pain, future medical costs, loss of earning capacity, and permanent disability and disfigurement
145
RICHARDSON V CHAPMAN
| FACTS
Ps Keva Richardson and Ann Mcgregor were injured when the car in which they were riding was hit from behind by a truck driven by D Chapman
• The jury returned verdicts against Chapman in favor of Richardson and mcgregor in the amounts of 22,358,814 dollars and 102,215 dollars respectively
• Ds contend damages were excessive
• Keva had incurred a fracture of the fifth cervical vertebrae, which severely damaged her spinal cord and resulted in incomplete quadriplegia
146
RICHARDSON V CHAPMAN RULE
An award of damages will be considered excessive of it falls outside the range of fair and reasonable compensation or results from passion or prejudice,, or if it is so large that it shocks the judicial conscience. When reviewing an award of compensatory damages for a nonfatal injury, a court may consider, among other things, the permanency of the P’s condition, the possibility of future deterioration, the extent of the P’s medical expense, and the restrictions imposed on the P by the injuries
147
RICHARDSON V CHAPMAN APPLICATION
• We conclude that a more appropriate figure for pain and suffering is 50,000 dollars, which would reduce her total damages to 52, 215 because she was not seriously injured in the accident, Richardson’s damages are affirmed
148
RICHARDSON V CHAPMAN APPLICATION
• We conclude that a more appropriate figure for pain and suffering is 50,000 dollars, which would reduce her total damages to 52, 215 because she was not seriously injured in the accident, Richardson’s damages are affirmed
149
Non-economic and Non-pecuniary damages:
| MCDOUGALD V GARBER FACTS
This case involves non-pecuniary damages, which are damages awarded to compensate an injured person for the physical and emotional consequences of the injury, such as pain and suffering and the loss of the ability to engage in certain activities
• P Emma Mcdougald, 31 years old, under went a Caesarean section and tubal litigation and D Garber performed the surgery
• During the surgery, after being administered anesthesia, P suffered oxygen deprivation, which resulted in severe brain damage, and left her in a permanent comatose condition
• This action was bought P and her husband alleging that the injuries were caused by the D’s acts of malpractice
• Mcdougal was awarded a total of 9.6 million in damages, including 1 million for conscious pain and suffering and a separate award of 3.5 million for loss of the pleasures and pursuits of life
150
MCDOUGALD V GARBER RULE
This case involves non-pecuniary damages, which are damages awarded to compensate an injured person for the physical and emotional consequences of the injury, such as pain and suffering and the loss of the ability to engage in certain activities
• P Emma Mcdougald, 31 years old, under went a Caesarean section and tubal litigation and D Garber performed the surgery
• During the surgery, after being administered anesthesia, P suffered oxygen deprivation, which resulted in severe brain damage, and left her in a permanent comatose condition
• This action was bought P and her husband alleging that the injuries were caused by the D’s acts of malpractice
• Mcdougal was awarded a total of 9.6 million in damages, including 1 million for conscious pain and suffering and a separate award of 3.5 million for loss of the pleasures and pursuits of life
151
MCDOUGALD V GARBER RULE
If we are to depart from the traditional approach and approve a separate award for loss of enjoyment of life, it must be on the basis that such an approach will yield a more accurate evaluation of the compensation due to the P
152
MCDOUGALD V GARBER APPLICATION
* Estimation of nonpecuniary damages is not amendable to such analytical precision and may, in fact, suffer from its application
* Translating human suffering into dollars and cents involves no mathematical formula, it rests on legal fiction
* Thus, we are not persuaded that any salutary purpose would be served by having the jury make separate awards for pain and suffering and loss of enjoyment
153
COYNR V CAMPBELL
| FACTS:
On July 5th, 1957 P sustained a whiplash injury when his automobile was struck in the rear by a motor vehicle driven by D
• He received medical treatment, physiotherapy, and care from his professional collegues and his nurse, but incurred no out of pocket expenses
154
COYNR V CAMPBELL RULE
With regard to medical expenses, P must show what he paid the doctor, and can recover only so much as he paid or was bound to pay
155
COYNR V CAMPBELL APPLICATION
* A moral obligation, without more, will not support a claim for legal damages
* P did not claim that he was required to pay any additional compensation to his nurse for her performance of these duties, and therefore, this has not resulted in compensable damages to P
156
P’s Duty to Mitigate:
• Aka avoidable consequences doctrine, imposes a duty on the P to act affirmatively and reasonably after the accident to minimize the harm that the D’s conduct has caused
157
Wrongful Death and Survival:
1. Who May Recover?
a. Close relative (as defined by statute)
2. What are the recoverable damages?
a. Pecuniary harm (money)
b. SOME states allow Emotional harm, including grief and sorrow, most do not
c. Economic damages limited to those the P suffers as a result of the death of the decedent, so not all lost wages are recoverable, just those that would have supported the P
3. What is the effect of an instantaneous death from tortious injury?
a. Does not bar the claim
4. What is the effect of death from natural causes after tortious injury
a. Bars the claim (because the death is not wrongful)
158
• Survival Action
o I could have sued you, but I died before I got to court
o This covers all harm in between tortious injury and death, so if death is instantaneous, no survivor claim
o Who may recover? – The Decedent’s Estate
o What are the recoverable damages? – medical expenses, lost wages, decedent’s pain and suffering
o What are the effects of an instantaneous death from tortious conduct? – bars the claim
o What are the effects of death from natural causes after tortious injury – does not bar the claim
159
NORFOLK SHIPBUILDING AND DRYDOCK CORP V GARRIS
| FACTS
Respondent filed a complaint alleging her son Christopher Garris, sustained injuries on April 8, 1997, that caused his death one day later
• The injuries were sustained while Garris was performing sandblasting work abroad the USNS Maj.
• The complaint was dismissed for failure to state a federal claim because no cause of action exists, under general maritime law, for death of a nonseaman in state territorial waters resulting from negligence
160
NORFOLK SHIPBUILDING AND DRYDOCK CORP V GARRIS RULE
Although the general maritime law provides relief for injuries caused by the breach of maritime duties, it does not provide relief for wrongful death
• An action does lie under general maritime law for death caused by violation of maritime duties (new rule)
161
NORFOLK SHIPBUILDING AND DRYDOCK CORP V GARRIS APPLICATION
* The wrongful death claim in the Morgane case was limited to the duty of seaworthiness, and so the issue of wrongful death for negligence is technically open, and we are unable to find a rational basis for distinguishing negligence from seaworthiness
* The choice of law anomaly occasioned by providing a federal remedy for injury but not death is no less strange when the duty is negligence than when it is seaworthiness.
* Of the two victims injured at the same instant, in the same location, by the same negligence, only one would be covered by federal law, provided only that the other person died of injuries
* Nothing in ordinary notions of justice suggests that a violation should be nonactionable because simply because is was serious enough to cause death
* No rational basis within the maritime law exists for denying respondent the recovery recognized by Morgane for the death of her son, and the maritime cause of action that Morgane established for unseaworthiness is equally available for negligence
162
MURPHY V MARTIN OIL CO.
| FACTS:
P Charryl Murphy, as administratrix of her late husband, filed a complaint against D for wrongful death and sought damages for conscious pain and suffering, lost wages, and property damage
On June 11th 1968 Jack Raymond, decedent, while having his truck filled with gas at Murphy Oil’s gas station was injured through the D’s negligence in a fire on the D’s premise, and nine days later he died from his injuries
163
MURPHY V MARTIN OIL CO.
The wrongful death act provided the exclusive remedy available when death came as a result of given tortious conduct
• In considering the Survival Act, the court stated that it was intended to allow for the survival of a cause of action only when the injured party died from a cause other than that which caused the injuries which created the cause of action
• Thus, an action for personal injury would not survive death if death resulted from the tortious conduct which caused the injury
164
MURPHY V MARTIN OIL CO. APPLICATION
The wrongful death act provided the exclusive remedy available when death came as a result of given tortious conduct
• In considering the Survival Act, the court stated that it was intended to allow for the survival of a cause of action only when the injured party died from a cause other than that which caused the injuries which created the cause of action
• Thus, an action for personal injury would not survive death if death resulted from the tortious conduct which caused the injury
165
MURPHY V MARTIN OIL CO. APPLICATION
* Damages under the wrongful death act, were limited to pecuniary losses, as from loss of support, to the surviving spouse and next of kin as a result of the death
* Under the survival statute damages recoverable in a personal injury action as for conscious pain and suffering, loss of earnings, medical expenses, and physical disability, could be had only if death resulted from a cause other than the one which gave rise to the personal injury action
* To say that there can be recovery only for his wrongful death is to provide an obviously inadequate justice
* For the reasons given above an action may be maintained by P for loss of property and loss of wages during the interval between injury and death, and P cannot maintain an action for her decedent’s pain and suffering
166
PUNITIVE DAMAGES:
* Courts award punitive damages not to compensate for harm the P has suffered, but to punish the D for egregious wrongdoing
* Punitive damages are supposed to provide incentives to the D and others in the D’s position not to engage in the same bad behaviors
* Courts award punitive damages in addition to any compensatory damages they may be due
167
OWENS ILLINOIS INC. V ZENOBIA
| FACTS:
Ps alleged that asbestos manufactured by the Ds caused them to suffer harm
• The court awarded punitive damages against some Ds, including Owens Illinois
168
OWENS ILLINOIS INC. V ZENOBIA RULE
* P are required to show by a preponderance of evidence that the Ds acted with implied rather than actual malice
* Implied Malice – Implied malice, which Ps have to prove in order to recover punitive damages in this case requires a finding of a wanton disposition, grossly irresponsible to the rights of others, extreme recklessness, and utter disregard for the rights of others
169
OWENS ILLINOIS INC. V ZENOBIA APPLICATION
• P are required to show by a preponderance of evidence that the Ds acted with implied rather than actual malice
• Implied Malice – Implied malice, which Ps have to prove in order to recover punitive damages in this case requires a finding of a wanton disposition, grossly irresponsible to the rights of others, extreme recklessness, and utter disregard for the rights of others
REASONING/HOLDING:
• The implied malice test has been too overbroad in its application and has resulted in inconsistent jury verdicts involving similar facts
• The trier of facts may not award punitive damages unless the P has established that the D’s conduct was characterized by evil motive, intent to injure, ill will, or fraud, i.e actual malice
170
STATE FARM MUTUAL AUTOMOBILE CO. V CAMPBELL
| FACTS:
Campbell was driving with his wife when he decided to pass six vans traveling ahead of him on a two lane highway
• Todd Ospital was driving a small car approaching from the opposite direction, and to avoid a head on collision with Campbell, who by then was driving on the wrong side of the highway and toward oncoming traffic
• Ospital swerved onto the shoulder, lost control of his automobile, and collided with another vehicle
• Ospital was killed, the other driver was permanently disabled, and Campbell escaped unscathed
• Campbell asserted he was not at fault but consensus was reached that Campbell’s unsafe pass had indeed caused the crash, however, Campbell’s insurance company state farm decided to contest liability and declined offers of the other drivers estates to settle the cases for 50,000
• At trial the jury returned a verdict for 185,849, far more than the settlement
• State Farm refused to cover the verdict for Campbell
• Campbell obtained his own representation for appeal, and eventually agreed with the attorneys of the other drivers that they would represent Campbell in a bad faith suit against State Farm
171
STATE FARM MUTUAL AUTOMOBILE CO. V CAMPBELL RULE
Courts reviewing punitive damages should consider three guideposts: (1) the degree of reprehensibility of the D’s misconduct, (2) the disparity between the actual or potential harm suffered by the P and the punitive damage award and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases
• Courts can determine (1) the reprehensibility of D’s conduct by considering whether the harm caused was physical as opposed to economic, the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others, the target of the conduct had financial vulnerability, the conduct involved repeated actions or was an isolated incident, and the harm was the result of intentional malice, trickery, or deceit, or mere accident
• Courts must ensure (2) that the measure of punishment is both reasonable and proportionate in the amount of harm to the P and to the general damages recovered
• Punitive damages are not a substitute for the criminal process, and the remote possibility of a criminal sanction does not automatically sustain a punitive damages award (3)
172
STATE FARM MUTUAL AUTOMOBILE CO. V CAMPBELL APPLICATION
* Punitive damages pose an acute danger of arbitrary deprivation of property. Jury instructions typically leave the jury with wide discretion in choosing amounts, and the presentation of evidence of a D’s net worth creates the potential that juries will use their verdicts to express biases against big businesses, particularly those without strong local presences
* The court’s opinion makes it clear that state farm was being condemned for its nationwide policies rather than for the conduct directed toward the Campbells (1)
* The compensatory award in this case was substantial, Campbell was awarded one million for a year and a half of emotional distress, this was complete compensation. There was no physical injuries and the campbells suffered only minor economic injuries (2)
* The most relevant criminal sanction for the wrong done to the Campbells is a 10,000 dollar fine for fraud, an amount dwarfed by the 145 million punitive damages award (3)
* An application of the guideposts to the facts of the case likely would justify a punitive damages award at or near the amount of compensatory damages. The punitive award of 145 million, was therefore was neither reasonable nor proportionate to the wrong committed, and it was an irrational and arbitrary deprivation of the property of the D
173
PHILLIP MORRIS USA V WILLIAMS
| FACTS:
This lawsuit arises out of the death of Jesse Williams, a heavy cigarette smoker. Respondent Williams, widow, represents his estate in this lawsuit for negligence and deceit against Phillip Morris, the manufacturer of Marlboro, the brand Williams favored
174
PHILLIP MORRIS USA V WILLIAMS RULE
The constitutional need for punitive damages awards to reflect (1) the reprehensibility of the D’s conduct (2) a reasonable relationship to the harm the P (or related victim) suffered, and (3) the presence (or absence) of sanctions
• The constitution’s due process clause forbids a state to use a punitive damages award to punish a D for injury that it inflicts upon nonparties or those whom they directly represent
175
PHILLIP MORRIS USA V WILLIAMS APPLICATION
* We can find no authority supporting the use of punitive damages awards for the purpose of punishing a D for harming others. We have said that it may be appropriate to consider the reasonableness of a punitive damages award in light of the potential harm the D’s conduct could have caused. But we have made clear that the potential harm at issue was harm potentially caused THE plaintiff
* We believe that the Oregon Supreme court applied the wrong constitutional standard when considering Phillip Morris’ appeal
176
DEFAMATION
• Used to protect one’s reputation
177
Analytic Framework for Defamation
1. Analyze ALL 5 elements of defamation
2. Then depending on the problem analyze constitutional defamation
a. Whether the defamation is constitutional turns on (1) whether the defamation is a public concern and (2) the identity of the P
b. Freedom of speech prevents the gov. from infringing on an individual’s freedom of speech not relevant in personal interactions
178
Is Statement Defamatory Element:
• Use Susan B Anthony case
• Test used to establish if a statement is defamatory in this case is Restatement 2nd 559
• The number of people exposed to the defamation only affects recovery NOT liability
o As long as the defamation is published, even if only 2 people see it, there is still defamation
179
SUSAN B ANTHONY V DRIEHAUS
| FACTS:
Steven Driehaus filed a complaint with the Ohio Elections Commission, alleging that a pro-life advocacy group, Susan B Anthony List, intended to run advertisements containing false or misleading statements about him
• SBA’s list statement that Driehaus voted for a health care bill that includes taxpayers funded abortions, their planned billboard made public stated that Driehaus voted for taxpayer funded abortions
180
SUSAN B ANTHONY V DRIEHAUS RULE
A defamatory statement reflects injuriously on a person’s reputation, or exposes a person to public hatred or contempt, ridicule, shame, or disgrace, or affects a person adversely in his or her trade, business, or profession
• Whether a false statement is capable of inflicting injury depends on the totality of the circumstances
181
SUSAN B ANTHONY V DRIEHAUS FACTS
Steven Driehaus filed a complaint with the Ohio Elections Commission, alleging that a pro-life advocacy group, Susan B Anthony List, intended to run advertisements containing false or misleading statements about him
• SBA’s list statement that Driehaus voted for a health care bill that includes taxpayers funded abortions, their planned billboard made public stated that Driehaus voted for taxpayer funded abortions
182
SUSAN B ANTHONY V DRIEHAUS RULE
A defamatory statement reflects injuriously on a person’s reputation, or exposes a person to public hatred or contempt, ridicule, shame, or disgrace, or affects a person adversely in his or her trade, business, or profession
• Whether a false statement is capable of inflicting injury depends on the totality of the circumstances
183
SUSAN B ANTHONY V DRIEHAUS APPLICATION
* SBA suggests the only way it could have hurt Driehaus’ reputation or harmed him in his professional capacity is by claiming that he engaged in illegal conduct while in office
* Although statements of committing an illegal act while in office is ONE way to evidence injury, it is NOT the ONLY way
* There is no rule stating that a public official alleging defamation may not rely on false statements that injure his reputation, expose him to public hatred or contempt, or affect him in his profession as a public servant
* Driehaus maintains that accusing him of ordering Lamar Advertising to not put up SBA’s billboard did further damage his reputation for fairness, honesty, and integrity by making it appear to his constituents and fellow members of the community that he had abused his power as a public official
* Considering the facts in the light most favorable to the non-moving party, the court finds that the taxpayer funded statements and ordered statement are certainly capable of defamatory meaning
184
Fact or Opinion Element Analytic Framework
* In a defamation analysis, use the exact words used by the D
* Just because there is ONE interpretation of the D’s words that would not be defamatory, a defamation claim is not defeated, as long as ONE interpretation is a statement of fact that is defamatory, it is enough
* The test used for fact or opinion is the totality of the circumstance test
* General Tenor – statements made during anger/ arguments to bolster an opinion in a dispute will not be subject to defamation
185
GREEN V COSBY
| FACTS:
On December 10, 2014 Tamara Green filed a complaint alleging that Willian H Cosby publicly defamed her in statements made by individuals operating at his discretion and/or within the scope of their employment
• Cosby made the statement “this is a 10 year old, discredited accusation that proved to be nothing at the time, and is still nothing” to a publicist who gave the statements to Newsweek when asked about Green’s sexual assault accusations
186
GREEN V COSBY RULE
* In order for a defamation claim to survive a motion to dismiss, the allegedly defamatory statement must contain at least one false factual assertion which is also defamatory
* In determining whether a statement is capable of being interpreted as asserting or implying a fact the totality of the circumstance test is used, this test has three parts: (1) whether the general tenor of the entire work negates the impression that the D was asserting an objective fact, (2) whether the D used figurative or hyperbolic language that negates that impression, and (3) whether the statement in question is susceptible of being proved true or false
187
GREEND V COSBY APPLICATION
* As to the first part, general tenor, the phrase “discredited accusation that proved to be nothing, and is still nothing” has an obvious literal meaning that P Green’s allegations are completely without merit and have been so proves.
* The phrase is not surrounded by hyperbole or figurative language that undercuts the literal meaning
* Finally, to the extent D’s response implies an investigation into P green’s allegations was conducted, is provable as true or false. Additionally, the gist of the statement- that P Green fabricated her allegations- is also provable as true or false
* Based on the totality of the circumstances analysis, the court concludes a reasonable fact finder could determine, based on the context and content, the Newsweek statement asserted or implied factual statements that were susceptible of being proved true or false
188
Publication Element:
* Almost never an issue
* If the publication was by accident then there is NO liability
* If the publication was purposeful or due to negligence then there IS liability
189
How to Determine Negligence in Posting:
* Did the publisher act reasonably?
* Did the publisher follow industry standards?
* Did the publisher follow their own standards?
* Were there reasons to doubt the source?
* How much checking was done by the publisher?
190
Secondary Publishers and transmitters:
BARNES V YAHOO
FACTS:
This case stems from a dangerous, cruel, and highly indecent use of the internet for the apparent purpose of revenge
• In 2004 Barnes broke off a lengthy relationship with her boyfriend and he responded by posting profiles of Barnes on a website run by Yahoo
• Barnes did not authorize the publication of the profiles
• Barnes contacted Yahoo to have the profiles removed, and they instructed her that they would take care of it, so Barnes took no further action
191
BARNES V YAHOO RULE
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking if:
(a) His failure to exercise such care increases the risk of such harm, or
(b) The harm is suffered because of the other’s reliance upon the undertaking
192
BARNES V YAHOO APPLICATION
We are not persuaded that a P cannot sue someone for publishing third-party content simply by changing the name of the theory from defamation to negligence.
• The duty that Barnes claimed Yahoo violated derives from Yahoo’s conduct as a publisher, the steps it supposedly took, but later supposedly abandoned, to de-publish the offensive profiles. It is because such conduct is publishing conduct that we have insisted that section 230 protects from liability “any activity that can be boiled down to deciding whether to exclude material that third parties seek to post online”
• Yahoo is being held liable for promising, which is not synonymous with the underlying act of publishing
193
Of and Concerning the Plaintiff Element:
• Three Scenarios for Of and Concerning the P
1. Plaintiff is identified directly
2. A large group is identified OR
3. A small group is identified
• Rule for large and small groups is from the Neiman Marcus case
194
• Rule for Large Groups
If some or all of a large group are defamed, NONE of them can bring a defamation claim
This is because people will not attach the defamation to one individual person
Ex: all law students are dumb, no law student can sue for defamation
195
• Rule for Small Groups
If some or all of a small group are defamed, ALL can sue for defamation
They will meet the of and concerning the Plaintiff element
196
THREE AMIGOS SJL RESTARUANT INC. V CBS NEWS
| FACTS:
This defamation action arises out of a wholly accurate news report stating that federal authorities raided the Cheetah Club, a strip club which they alleged to be “run by the mafia”
• Ps alleged that Ds in broadcasting and publishing stories concerning Operation Dancing Brides, defamed them. Ps claimed that the stories were misleading, false, and malicious and that Ps had no connection with the mafia
• Ds argued the claims were not of and concerning the Plaintiffs
197
THREE AMIGOS SJL RESTARUANT INC. V CBS NEWS RULE
While a P may use extrinsic facts to prove that the statement is of and concerning him, he must show the reasonableness of concluding that the extrinsic facts were known to those whom the statement was made
198
THREE AMIGOS SJL RESTARUANT INC. V CBS NEWS APPLICATION
• With respect to the Times square Ps, they have not met their burden of showing that any of the allegedly defamatory statements are of and concerning them, as there are no allegations to support a reasonable connection linking these corporate entities to the statements
199
CONSTITUTIONAL DEFAMATION
NEW YORK TIMES V SULLIVAN
FACTS
Respondent L.B Sullivan is one of the three elected commissioners of the city of Montgomery, Alabama
• He bought this civil libel action against the four individual petitioners, who are Negroes and Alabama clergymen
• Respondent alleged he had been libeled by statements in a full page advertisement that was carried in the New York Times on March 29, 1960
• Although neither of the statements (regarding the widespread nonviolent Negro protests) mentions respondent by name, he contended that the word “police” in the third paragraph referred to him as the Montgomery commissioner who supervised the police department
• He argued the paragraph accused the police of using intimidation and violence
• The issue is whether the rule of liability for defamation, as applied to a public official against critics of his official conduct, abridges the freedom of speech and of the press that is guaranteed by the 1st and 4th amendment
200
NEW YORK TIMES V SULLIVAN RULE
The constitutional guarantees require a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malice, that is with knowledge that it was false or with reckless disregard of whether it was false or not
201
NEW YORK TIMES V SULLIVAN APPLICATION
* Applying these standards, we consider that the proof presented to show actual malice lacks the convincing clarity which the constitutional standard demands, and hence that it would not constitutionally sustain the judgment for respondent under the proper rule of law
* The mere presence of the stories in the files does not, of course, establish that the Times knew the advertisement was false, since that state of mind required for actual malice would have to be brought home to the persons in the Times organization having responsibility for the publication of the advertisement
* Large group defamation applies here so NONE of the members of the group can bring a defamation claim, unless one is specifically named
* Actual malice in defamation means knowledge of falseity or recklessness as to truth
* There was no reference to respondent in the advertisement, either by name or official position, so the ad also was not of and concerning the P
202
Public Officials:
* Elected officials are public figures, but not all appointed officials are
* All purpose public figures have to show actual malice for ALL defamation whereas limited purpose public figures only have to show actual malice if the defamatory statements that are directly related to why they are a public figure
* All purpose public figures make it their life to be in the center of view/attention of the public
203
• Limited Purpose Public Figure Test
1. Whether there was a public concern of issue
2. Whether the P achieved prominence in the debate
3. Whether the alleged defamation related to the P’s participation in the controversies above but limited to a distinct issue of defamation must relate to that debate
• To prove a reckless disregard of the truth substantial circumstantial evidence my be used to show the D ignored the truth
204
Difference between Fault and Falsity:
• Using Bradstreet case
• Fault – they had a 17 year old high schooler create the post and they never confirmed the actual truth with the source, as per their own policy
Goes to the decision to publish
• Falsity – P never file for bankruptcy
Goes to the accuracy of the publication
205
Defamation as a matter of public concern:
GERTZ V ROBERT WLECH
FACTS:
The Nelson family retained petitioner Elmer Gertz, a reputable attorney, to represent them in civil litigation against Nuccio
• In 1969 Respondent published an article under the title Frame Up: Richard Nuccio and the War on Police
• This article purports to demonstrate that the testimony against Nuccio at his criminal trial was false and that his prosecution was part of the Communist campaign against the police
• Gertz claimed that the falsehoods published by respondents injured his reputation as a lawyer and a citizen
• The principle issue is whether a newspaper or broadcaster that publishes a defamatory falsehood about an individual who is neither a public official nor a public figure may claim a constitutional privilege against liability for the injury inflicted by those statements
• Involves a private figure and a public concern
206
GERTZ V ROBERT WLECH RULE
The constitutional guarantee requires a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malice, that is with knowledge that it was false or with reckless disregard of whether it was true or not
• The court extended the constitutional privilege announced in that case to protect defamatory criticism of nonpublic persons who are nevertheless intimately involved in the resolution of important public questions or, by reason, of their fame, shape events in areas of concern to society at large
207
GERTZ V ROBERT WLECH APPLICATION
* The new York times standard defines the level of constitutional protection appropriate to the context of defamation of a public person. Those who, by reason of the notoriety of their achievements or the vigor and success with which they seek the public’s attention, are properly classed as public figures and those who hold governmental office may recover for injury to reputation only on clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth
* We hold that, so lang as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual
208
DUN AND BRADSTREET INC. V GREENMOSS BUILDERS INC
| FACTS:
On July 26th, 1976 petitioner sent a report to five subscribers indicating that respondent, a construction contractor, had filed a voluntary petition for bankruptcy
• This report was false and grossly misrepresented respondent’s assets and liabilities
• The error in petitioner’s report had been caused when one of its employees, a 17 year old high schooler, inadvertently attributed a bankruptcy petition filed by one of respondent’s employees
209
DUN AND BRADSTREET INC. V GREENMOSS BUILDERS INC RULE
Whether speech addresses a matter of public concern must be determined by the expression’s content, form, and context, as revealed by the whole record
210
DUN AND BRADSTREET INC. V GREENMOSS BUILDERS INC APPLICATION
* We conclude that permitting recovery of presumed punitive damages in defamation cases absent a showing of actual malice does not violate the first amendment when the defamatory statements do not involve matters of public concern
* Accordingly we affirm the judgment of the Vermont Supreme Court
211
PHILADELPHIA NEWSPAPERS INC. V HEPPS
| FACTS:
: Hepps is the principle stockholder of General Programming, which franchises a chain of stores.
• The inquirer published a series of articles containing the statements at issue here
• The general theme of the articles was that appellees had links to organized crime and used some of those links to influence the State’s governmental processes
• Involves a private figure and a media defendant because the newspaper articles are of public concern
212
PHILADELPHIA NEWSPAPERS INC. V HEPPS RULE
A private figure who brings suit for defamation bears the burden of proving negligence or malice by the D in publishing the statements at issue
• As to falsity, the common law presumption that an individual’s reputation is a good one is followed
• Statements defaming that person are therefore presumptively false, although a publisher who bears the burden of proving the truth of the statement has an absolute defense
213
PHILADELPHIA NEWSPAPERS INC. V HEPPS APPLICATION
* We believe that the common law’s rule on falsity, that the D must bear the burden of proving truth, must similarly fall here to a constitutional requirement that the P bear the burden of showing falsity, as well as fault, before recovering damages
* There will always be instances when the factfinding process will be unable to resolve conclusively whether the speech if true or false, in those cases the burden of proof is dispositive
* We believe that the Constitution requires us to tip them in favor of protecting true speech. To ensure that rue speech on matters of public concern is not deterred, we hold that the common law presumption that defamatory speech is false cannot stand when a P seeks damages against a media D foe speech of public concern
214
Defamation Analytic Framework:
1. Is P a public official or private individual?
2. Is the defamation matter private or public?
• Private P + Private Matter = Common Law Rules for Defamation (no const’al issue applies)
o Ideal for P because it’s the easiest to win
• Private P defamed as a matter of public concern (also media D, Hepps case) = Actual damages need proof of some fault (negligence), presumed and actual damages need proof of actual malice
• Public Official or Public Official (also media D) = Actual malice needs to be proven to recover anything
o Worse for Ps because its hard to prove
215
Privileges
Sometimes one is privileged to defame
A qualified privilege can be overcome if actual malice is present
An absolute privilege cannot be overcome
216
Absolute privilege
Granted to members of government when they speak while in the course of performing executive, legislative, and judicial functions
217
3 prong test for qualified immunity (from Erickson case)
1) the appropriateness of the occasion in which the defamatory statement was published (when)
2) the legitimacy of the interest created by the disclosure (why)
3) the pertinence of the receipt of that information by the recipient (whom)
- I only provided info when asked, I did not volunteer it
- I provided the info because the company asked
- I only provided the info to the hiring manager
* qualified immunity applied
218
PRIVACY TORT 1: RIGHT OF PUBLICITY
| Overview:
* Despite its tremendous expansion, the right of publicity does have some limits. Uses deemed merely communicative, as opposed to commercial, will not be seen as violating the right of publicity. Putting it succinctly, one court has stated:
* If the portrayal mainly serves the purpose of contributing information, which is not false or defamatory, to the public debate of political or social issues or of providing the free expression of creative talent which contributes to society's cultural enrichment, then the portrayal generally will be immune from liability. If, however, the portrayal functions primarily as a means of commercial exploitation, then such immunity will not be granted.
219
CARSON v. HERE’s JOHNNY PORTABLE TOILETS, INC.
INVASION OF PRIVACY v. RIGHT TO PUBLICITY:
What is the difference between a claim that someone has violated another’s right to privacy v. a claim that someone has violated another’s right to publicity. Put another way, what interests do these two different torts protect?
A)Tort of invasion of privacy protects our right to be left alone. Invading the right to publicity protects the person’s financial interest in the commercial exploitation of her name.
220
• WHY BOTHER PROTECTING ABILITY TO PROFIT FROM ONE’S NAME/IMAGE OR LIKENESS?
o It was their efforts that made them valuable, so they should enjoy the profit – no one else.
221
• WHAT IS THE KEY DIFFERENCE BETWEEN THE MAJORITY AND DISSENT’S CONCEPTUALIZATION OF RIGHT OF PUBLICITY TORT?
o Majority’s View
It said the trial court was too narrow in its conception of the interest to be protected. It said the issue is whether the celebrity’s identity has been commercially exploited by another – not just name or likeness.
The slogan “Here’s Johnny” is like saying “Here’s Johnny Carson” – it is his identity - and the D admitted that is what he had in mind.
222
o Dissent’s View
Judge Kennedy (now Justice Kennedy) says a slogan isn’t covered by the tort. He says the exploitation must involve the individuals name, likeness, achievements, identifying characteristics or actual performances - phrases don’t cut it.
223
o Judge kennedy’s analysis tells us important things:
(1) Not a name case:
Judge Kennedy (now Justice Kennedy) tells us first off that this is not a “name” case, why is that?
B/C “Johnny” is too common to belong to Johnny Carson and toilets are called Johns.
(1a) But isn’t the phrase “Here’s Johnny” really saying “Here’s Johnny Carson?” Sort of – does it depend on if you can hear Ed McMahon say it?
(2) Majority’s Ruling Doesn’t Advance Policies Justifications of the ROP Tort
Protective purpose – this tort protects celebrities’ rights to profit from their own identity or something they create that is uniquely theirs.
Kennedy says this purpose isn’t met here b/c “Here’s Johnny” isn’t the product of Johnny Carson’s talents and energy. It is a common phrase – said before he existed – not confined to entertainment – said by someone else – NOT him. It also has a double entendre re toilets b/c they are called Johns – thus the use of “Here’s Johnny” doesn’t rob JC of something unique to him or that he created. (I actually it is Ed McMahon’s creative effort that deserves recognition b/c the way he said “Here’s Johnny” is what is memorable.)
(2) Productivity Purpose – this tort encourages the production of intellectual and creative works by limiting compensation for those responsible for their creation
o This case doesn’t comport with the productivity purpose b/c JC didn’t expend any energy in creating or performing the phrase – JC is reaping the benefit of the time/creative energy of others. (BUT CAN’T YOU ARGUE THIS IS A GIFT OF ED MCMAHON’S TALENTS TO JC – B/C WHEN YOU READ THAT – YOU DO HEAR ED AND YOU DO THINK OF JOHNNY)
Legal Purpose – this tort discourages unjust enrichment and unfair trade practices – by making sure those who create valuable names/images are the ones who get to profit – if people are limited in their use of celebrities names/images, etc. there are fewer opportunities for Unjust enrichment and Unfair trade practices.
There is no confusion here so the laws that exist to protect against unjust enrichment and unfair trade practices can’t be met – and the lack of confusion also shows there is no wrongdoing here.
224
What Is The Effect Of This Ruling On The Public’s Ability To Use The Phrase “Here’s Johnny” In A Commercial Setting:
The ruling has the effect of allowing a celebrity (JC) to take a common phrase right out of the public domain.
CAN YOU FIGURE OUT A JOHNNY CARSON CHARACTER THAT, IF USED IN A COMMERCIAL SETTING, WOULD HAVE WON KENNEDY OVER?
o Karnak the Magnificent
WHAT TYPES OF THINGS ARE PROTECTED BY THIS TORT?
o name, (2) likeness, (3) achievements (4) identifying characteristics, (5) actual performances (6) fictitious characters created by the performer, and (7) phrases
225
ZACCHINI V. SCRIPPS-HOWARD BROADCASTING CO.
| FACTS
Hugo Zacchini is a performer who gets shot out of a cannon into a net 200 ft away. He performed at a county fair in Ohio on a regular basis. There was no separate fee to see him, the cover charge included his show.
• On Aug. 30th a freelance reporter for S-Howard which owned the local TV station tried to film the act. Zacchini saw the camera and asked him not to. He obliged that day, but filmed it the next day in its entirety – approximately 15 seconds. The full film clip was shown on 11:00 news that night w/favorable commentary.
226
ZACCHINI V. SCRIPPS-HOWARD BROADCASTING CO. ISSUE:
Whether the 1st and 14th Amendments of the US Constitution immunize the D from violations of Ohio’s right of publicity law
227
ZACCHINI V. SCRIPPS-HOWARD BROADCASTING CO. APPLICATION
No. Ohio Supreme Court wrong to conclude this way. Ohio Supreme Court’s reliance on the Time v. Hill case was wrong b/c that was a “false light” case. The individual torts under the privacy rubric are different analytically, and protect different interests, so they must be analyzed separately. Thus, Hill is distinguishable. The tort of false light protects against reputational harm. The right of publicity protects the financial value of P’s identity. The remedy in false light cases requires minimizing speech (b/c it is harmful to the P AND MINIMIZING SPEECH MAKES US WORRY ABOUT THE 1ST AMENDMENT).
• But, the remedy in publicity cases is often about who gets to do the publishing. There isn’t the same desire to stop the speech. In fact, the P in this case wasn’t asking for an injunction (a stoppage of speech) he was asking for financial compensation (SO WE AREN’T AS WORRIED ABOUT THE 1ST AMENDMENT)
HOLDING
• Application of Ohio’s rt of publicity law in this case does not violate the 1st and 14th Amendments b/c by showing his entire act, they robbed him of his entire means of making a living. They can do excerpts and write/talk about it – but they went too far and took too much. The Constitution does not sanction such an invasive taking.
• Awarding damages makes sense here (and that is all P is asking for) and there is some fault (so we are ok under Gertz) as the D knew the P did not want his act televised.
228
Privacy Tort 2: PUBLIC DISCLOSURE OF EMBARRASING PRIVATE FACTS ABOUT PLAINTIFF
Restating the Tort to Capture key Points
A. Public Disclosure of Embarrassing Private Facts About Plaintiff
(that aren’t of legitimate public interest and aren’t available in public records, stated in court or legally made available to the press).
229
ELEMENTS OF EMBARRASSING PRIVATE FACTS (FROM UNDERSTANDING TORTS)
1. Publicity of
a. D Must Communicate private facts to significant # of people
i. Only 1 person is required in Defamation
2. Private Facts that are Highly offensive to a reasonable person that are
a. Cox case
3. Not of Legitimate Public Interest
a. Many Cases
230
EMBARRASSING PRIVATE FACTS CONT
• Almost a Dead Letter
• Why is this tort only viable when highly offensive private matters are published and the public has no interest in them (Rutgers gay sexual encounter suicide case)? B/C this tort more directly confronts freedom of speech concerns b/c the info is true – it’s pure reporting of truth – no exploitation of a likeness/image for economic gain; no lies that impugn reputation, etc. this is about the truth. The truth usually saves you from liability in a defamation case so there is tension in recognizing a cause of action (particularly against the press) when the truth is being told about a matter of public concern.
• Interesting Cases
o Oklahoma Publishing - PRESS CAN PUBLISH NAME OF MINOR CHARGED WITH MURDER IF HIS NAME IS SAID IN OPEN COURT AND MEMBERS OF THE PRESS WERE LAWFULLY IN COURT.
o Smith - if eyewitnesses give press the name of a juvenile assailant (murder), they can publish it (b/c it is lawfully obtained and truthful) and state law that says it’s a crime is not upholdable unless doing so furthers a “state interest of the highest order.” The promotion of the rehabilitation of minors is not a state interest of the highest order.
o Florida Star – Police Department inadvertently releases name of sex crime victim to Press and Press publishes the name. They cannot be prosecuted under state statute because they published lawfully obtained truthful information about a matter of public interest.
o Bartnicki – Press legally received information that was illegally obtained (illegally intercepted cell phone conversation between union officials). No problem with this because the information is true, the press did nothing wrong and it goes to the core of the 1st amendment.
231
PRIVACY TORT 3: PLACING P IN A FALSE LIGHT: False Light ELEMENTS
1. D publicized
a. sig. # of people required , (unlike defamation)
2. False Facts
3. that create a false impression of P that a Reasonable person would find highly offensive
4. Fault
a. Regarding facts themselves
b. Regarding whether the facts put P in false light
i. Can you imagine a situation where a P could establish a but not b?
1. I think an example could deal with religious issues – say you are a columnist and you deliberately lie about someone attending a Barb-B-Que and eating pork, w/out realizing that the person is an orthodox Jew.
c. Treat it just like defamation re:
i. Private P + Public Matter = Negligence is sufficient to est PF case; AM needed for presumed/punitives. (no presumed damages allowed in False Light)
ii. Public Official or Figure P = AM needed for anything.
iii. Private P + Private Matter = ? not sure re: fault
232
FALSE LIGHT DEFENSES
DEFENSES Are the Same as Defamation.
233
Differences between Defamation and False Light
1. FL requires reasonable people to find matter “highly offensive” but doesn’t require the statements hold the P up to shame or ridicule.
a. Defamation doesn’t require a “reasonable person” test; Defamation can exist when a minority of people would find that the statements lessened the reputation of P.
2. FL doesn’t require the statements to subject P to shame and ridicule like Def does; FL just requires P to have been put in a false light in a manner that would offend reas person.
3. No Presumed Damages in FL cases
4. FL – falsity is NEVER presumed; P must always prove
4. FL requires publication to sig. # of people; Def only 1.
234
Similarities between False Light and Defamation
1. Both involve lies about P that create public misconceptions about P.
2. Both require fault in most cases
IF YOU DO A DEFAMATION ANALYSIS YOU SHOULD ALSO DO A FALSE LIGHT ANALYSIS
235
TIME INC. V. HILL FACTS
HOME INVASION --- Book ---- PLAY----Article; this is a Private Person + Public Matter case. It held A.M. needed to recover actual damages. This is contrary to GERTZ, so many think it is no longer good law)
The Hill case arose from a Life magazine article about the play The Desperate Hours. The play dramatized a family of four who showed great heroism while being held hostage by three escaped convicts. The magazine article reported that the play was based on a book about an ordeal suffered by James Hill and his family.
• However, in the incident, the perpetrators did not harm the Hill family in any way. In the play, the convicts beat the father and son and the daughter suffered a sexual insult. The Hills sued under a New York civil rights law protecting the right of privacy.
236
TIME INC V HILL ISSUE
In a false light case (privacy) Does the 1st Amendment require Ps to prove actual malice TO RECOVER ACTUAL DAMAGES when the matter at issue is one of Public concern?
237
TIME INC V HILL APPLICATION
YES
• The 1st Amendment goes beyond protecting the political it extends to matters of human interest.
• A rule requiring mere negligence would chill speech.
• Judgment for P vacated and case remanded b/c jury not instructed that actual malice standard applies.
238
What is the problem with the holding in this case?
* Gertz / D&B. Those cases stand for the proposition that a Priv Plaintiff defamed in a matter of public concern need not est Actual Malice to recover actual damages (AM is required for presumed and punitive damages).
* Gertz/D&B came AFTER Hill.
* We don’t know if Gertz/D&B rules apply b/c Time v. Hill is an entirely different tort. But many courts/commentators think the Gertz/D&B rule would apply.
* For our purposes, we are assuming Gertz / D&B would apply and private person/public matter can get actual damages by showing some level of fault.
239
PRIVACY TORT 4: INTRUSION UPON PLAINTIFF’S SOLITUDE
HOW DIFFERENT FROM ALL OTHER TORTS?
• It doesn’t require any publication of any sort. The essence of the tort is the Intrusion itself
• What are the Elements of a C/A for Intrusion into P’s solitude?
• P must show:
(1) the D engaged in intentional improperly “intrusive” conduct for the purpose of
(2) eliciting private info not available through normal inquiry or observation and
(3) intrusion would be highly offensive to a reasonable person.
240
NADER V. GENERAL MOTORS CORP.
FACTS
* Nader claims GM is out to get him b/c he is publishing book about them and is devastating critic of them.
* To that end GM is hiring people to:
241
What types of conduct did not meet the elements of the tort and why?
(1) Interviewing associates of Nader and asking for personal info, (2) causing girls to accost him with illicit proposals and (3) making lots of threatening and harassing phone calls did not meet tort b/c they were not unduly intrusive for the purpose of collecting private, confidential material on Nader.
242
What C/A could the above behavior be actionable under?
• IIED. But P must meet those pleading requirements
243
What types of conduct did meet the standard?
1. Wiretapping and eavesdropping
2. Following Nader to the Bank and closely peering to see how much $ he withdrew.
a. BUT Nader must show he wasn’t holding his cash so a casual observer could see it.
