Torts: SL, Privacy Flashcards
Strict liability 3 categories:
- Abnormally dangerous
- Animals
- Product
Strict liability for abnormally dangerous activity
scope
D engaged in an abnormally dangerous activity is strictly liable for harm caused by the activity regardless of precautions taken.
Scope of liability: D is liable for the harm that flows from the risk that makes the activity dangerous. e.g. car with explosives blowing up vs. car with explosives hitting a pedestrian
Strict liability: An activity is abnormally dangerous if
if it creates ∑
(a) foreseeable and
(b) highly significant risk of physical harm even with reasonable care and
(c) activity is not commonly engaged in.
Factors: Look for
- inherently dangerous (foreseeable, severity of harm)
- manner (appropriateness of the location) and
- utility (whether the act has any value to community)
Strict liability: animals - 3 types
wild animals, animals with dangerous propensity, animals trespassing on others’ land.
Strict liability: wild animals
Owners are strict liable for harm caused by the animal AS LONG AS harm arises from the animal’s dangerous propensities.
(incl. injury caused by fearful reaction to the sight of an unrestrained wild animal)
Strict liability: wild animals and trespassers
© not strictly liable to a trespasser except for injuries caused by a vicious watchdog.
Strict liability: animals known to have dangerous propensities
Owner strictly liable for harm caused by animals if owner knew/had reason to know of dangerous propensities of a particular animal
Strict liability: trespassing animals – damage to land
Owner strictly liable for reasonably foreseeable harm caused by his animal that’s trespassing on another’s land.
Strict liability: trespassing pets
Owner strictly liable for harm caused by reasonably foreseeable damage caused by trespassing household pets if
(1) owner knew/had reason to know that the pet is intruding another’s property
(2) knew/had reason to know pet has a tendency to cause substantial harm.
Defense to strict liability: contributory negligence
is not a defense to strict liability in contributory jurisdiction.
It may reduce recovery in comparative jurisdictions.
Defense to strict liability: assumption of risk
Complete defense; bars recovery in both types of JX
Defense to strict liability: trespassers
property owner not strictly liable against trespassers for animal-inflicted harm unless vicious watchdog
Strict product liability elements:
P must show
(1) product was defective
(2) defect existed when the product left D’s control
(3) defect caused P’s injury when the product was used in a reasonably foreseeable way
Strict product liability standing
Plaintiff for product strict liability claims: anyone foreseeably injured by a defective product.
Strict product liability defendant
Anyone in the business of selling
© service providers
© If D provides both product and services, S/L if product is consumed but not if only used
Strict product liability: 3 ways a product can be defective
manufacturing, design defect, failure to warn.
Manufacturing defect exists when
product does not conform to D’s own specifications
Design defect exists when
(consumer expectation test) its less safe than the ordinary consumer would expect; or
(risk-utility test) if risks outweigh benefits and there is a reasonable alternative design
Failure to warn defect exists when
(1) foreseeable risk of harm
(2) not obvious to ordinary user
(3) risk could’ve been avoided with reasonable instructions/warnings
Learned intermediary rule:
An exception to failure to warn defect—manufacturer satisfies duty to warn by warning prescribers
© mfr knows drug will be publicly available
© If the manufacturer did not inform the doctor of the risks, the doctor’s failure to warn doesn’t relieve the manufacturer of liability.
Defenses to strict product liability: misuse
Misuse: Not a defense if P misuse, modification or alteration was foreseeable. ← viewed as comparative fault
Defenses to strict product liability: substantial change in product
complete defense
Defense to strict product liability: compliance with gov’t standards
can be used but not conclusive evidence
© state of the art standard is a complete defense
Defense to strict product liability: state-of-the-art standard
Can be a complete defense to design defect and warning defect, but not manufacturing defect.
Must prove that the state of technical and scientific knowledge, at the time when he put the product into circulation, was not such as to enable the existence of the defect to be discovered
Defamation elements
(1) D made a defamatory statement
(2) that is of or concern the P
(3) published to a third party who understood its defamatory nature
(4) damage to P’s reputation results
Defamation intent against private persons
Defamation intent: against private person (including matter of private and public concerns)– D must act with knowledge that the statement is false or with negligent disregard for its falsity.
Defamation intent against public figures
D must act with actual malice (knowledge that the statement is false or with reckless disregard for its falsity).
Defamation: falsity requirement
P must prove that defamatory statement is false if (1) the statement relates to a public concern or (2) P is a public figure
Proof of falsity not required if P suing on a private matter statement. But D may raise truthfulness as an affirmative defense.
Defamation: defamatory language
Language is defamatory when it diminishes respect, esteem or goodwill toward P
Defamation: of and concerning P
Of or concerning P means third party believes the language refers to particular P
Defamation: damages requirement
If libel, P may recover general damages (i.e. recovery without proof of measurable harm)—harm to reputation is presumed.
If slander, P must prove special damages, unless slander per se.
Defamation: slander per se
P does not need to prove special damages if P is
(1) accused of committing a crime,
(2) conduct that reflects on fitness to conduct trade/profession
(3) loathsome disease or
(4) sexual misconduct
Defamation 4 defenses
Truth, consent, absolute privilege, qualified privilege
Defamation defense: truth
A statement that contains slight inaccuracies may nevertheless be considered to be true and therefore not defamatory.
Defamation defense: qualified/conditional privilege
Privileged if the defamatory statement is made
(1) In the interest of D (e.g. such as defending his reputation) or third party (e.g. recipient) ; or
(2) affects an important public interest
© can be lost if abused (by acting outside the scope of privilege or acting with malice)
Defamation defense: absolute privilege
remarks used during judicial/legislative proceedings, btw spouses, or in required publications.
Cannot be lost.
Defamation defense: consent
D’s reasonable belief that P consented to the defamatory communication (i.e. apparent consent) is a complete defense to defamation.
© A publisher who was told that P consented may be liable if reckless in accepting the third party’s statement
Privacy tort — Misappropriation:
unauthorized use of P’s name, likeness or identity for D’s advantage (commercial or otherwise
Intrusion upon seclusion:
(a) physical/nonphysical intrusion into
(b) (privacy interest) a matter over which P retained a privacy interest if the intrusion is
(c) (offensive) highly offensive to a reasonable person
Public disclosure of private facts
actionable if
(a) D gave publicity to
(b) (private concern) a matter concerning another’s private life and not of legit public concern.
(c) (offensive) matter is a kind that would be highly offensive to a RP.
Privacy tort: false light
P must prove
(1) D published facts about P or attributed views/actions to P that place him in a false light and
(2) are highly offensive to a reasonable person
Tort: intentional misrepresentation elements
(a) D’s intentional misrepresentation
(b) D intent to induce the plaintiff’s reliance,
(c) P justifiable relied
(d) incurred actual economic damages.
Tort: negligent misrepresentation elements
(a) D negligently gave false information,
(b) during the course of his business or profession,
(c) causing P to justifiably rely upon the information, and
(d) P is either
- is in a contractual relationship with D; or
- is a third party known by D as one for whose benefit the information is supplied.
© not liable if the third party’s use of the information is of a different character than the use for which the accountant provided the information.
Tort: Intentional interference with business relations
To prove intentional interference with a contract, P must prove that
(a) a valid contract existed between P and 3d party,
(b) D knew of the contractual relationship,
(c) D intentionally interfered with the contract, causing a breach, and
(d) the breach caused damages to P
No need to show that the loss was substantial
intentionally interfere: e.g. if P was D’s competitor
Defamation: publication element
Intent: Publication must be intentional or negligent. Re-publishing also counts.
Republication: independently liable, even if republisher identifies the originator of the statement and expresses a lack of truthfulness. © secondary publishers who merely disseminates (e.g. bookstores, newspaper vendors) liable only if they knew or should know of the defamatory statements in material.
Malpractice claims
require a professional deviated from the standard of care that reasonable professionals in the field would’ve used in similar circumstances.
e.g. using defective product not necessarily malpractice if due care.
