Whole Course Flashcards
Elements of Defamation
(1) Defedant publishes
(2) a false and defamatory statement
(3) about another
Environmental trespass
Intangible thing enters property. Same as trespass, but must show actual and substantial damages..
See Bradley v. American Smelting for points.
Some courts do not recognize environmental trespass
Private Nuisance
Defendant interferes with plaintiff’s private use and enjoyment of the land
The interference is unreasonable
The interference is substantial
Defendant negligently caused the interference or intentionally caused the interference or caused it while engaged in an abnormally dangerous activity
Unreasonable Interference (w/ land)
An intentional invasion of another’s interest in the use and enjoyment of land is unreasonable 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.
Key: A nuisance may sometimes exist even where the utility of the defendant’s conduct outweighs harm to the plaintiff
Public Nuisance
The Restatement, Second, of Torts §821B defines public nuisance as “an unreasonable interference with a right common to the general public.” To make out a public nuisance, a plaintiff must establish that the defendant’s conduct involves a significant interference with public health, public safety, or public convenience. Frequently, the conduct is proscribed by statute and is of a continuing nature.
For an individual to recover damages for a public nuisance, the plaintiff must have suffered harm of a kind different from that suffered by the general public.
Strict liability (wild/dangerous animals)
Restatement (Third) § 22 (2010)
(a) An owner or possessor of a wild animal is subject to strict liability for physical harm caused by the wild animal.
(b) A wild animal is an animal that belongs to a category of animals that have not been generally domesticated and that are likely, unless restrained, to cause personal injury.
Possessor of known dangerous animal
Restatement (Third) § 23
An owner or possessor of an animal that the owner or possessor knows or has reason to know has dangerous tendencies abnormal for the animal’s category is subject to strict liability for physical harm caused by the animal if the harm ensues from that dangerous tendency.
Restatement (Third) § 23 Cmt. j
Negligence liability. Many animals, while lacking the element of abnormal danger that justifies strict liability, still involve some level of risk, especially when the animal is brought into various societal settings. In light of that risk, the animal owner can potentially be held liable under the § 6 negligence standard for physical or emotional harms.
Harm caused by other animals (not wild/dangerous)
Restatement 2nd § 518:
Except for animal trespass, one who possesses or harbors a domestic animal that he does not know or have reason to know to be abnormally dangerous, is subject to liability for harm done by
the animal if, but only if,
(a) he intentionally causes the animal to do the harm, or
(b) he is negligent in failing to prevent the harm. The duty owed by an animal owner may depend upon the status of the injured person.
Abnormally Dangerous Activities
Restatement, Third, of Torts §20 has simplified the factors set forth in Restatement, Second, §520.
§20. Abnormally Dangerous Activities
(a) An actor who carries on an abnormally dangerous activity is subject to strict liability for physical harm resulting from the activity.
(b) 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.
Product Liability
Restatement (3d) Torts: Product Liability
§1. 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.
Categories of Product Defect
§2. 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.
Manufacturing defect
§2(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;
Design defect
§2(b) is defective in design when the foreseeable risks 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; or,
Inadequate warnings or instructions
§2(c) is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or 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 renders the product not reasonably safe.
Circumstantial evidence and product defect
Restatement (Third) § 3 Circumstantial Evidence Supporting Inference of Product Defect
It may be inferred that the harm sustained by the plaintiff was caused by a product defect existing at the time of sale or distribution, without proof of a specific defect, when the incident that harmed the plaintiff:
(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 causes other than product defect existing at the time of sale or distribution.
State of the Art Defense
A manufacturer has a duty to warn “of dangers that were known to the scientific community at the time it manufactured or distributed the product.”
A duty to warn exists only if the manufacturer had actual or constructive knowledge of the danger. The state-of-the-art evidence can be used to establish constructive knowledge (i.e., the manufacturer should have known of the danger).
Contributory negligence (Defense to strict liability)
Contributory negligence by Plaintiff reduces Defendant’s liability accordingly.
Conscious misrepresentation
An actor who makes a misrepresentation is subject to liability to another for physical harm which results from an act done by the other or a third person in reliance upon the truth of the representation, if the actor(a) intends his statement to induce or should realize that it is likely to induce action by the other, or a third person, which involves an unreasonable risk of physical harm to the other; and
(b) knows (i) that the statement is false, or (ii) that he has not the knowledge which he professes.
Negligent misrep
Negligent Misrepresentation Involving Risk of Physical Harm
(1) One who negligently gives false information to another is subject to liability for physical harm caused by action taken by the other in reasonable reliance upon such information, where such harm results(a) to the other, or(b) to such third persons as the actor should expect to be put in peril by the action taken.
(2) Such negligence may consist of failure to exercise reasonable care (a) in ascertaining the accuracy of the information, or (b) in the manner in which it is communicated.
Damages (general notes)
Compensatory damages are the primary instrument of recovery in tort. They are aimed at restoring the plaintiff to her pre-injury condition by paying an amount equal to the value of the interests that the defendant has diminished or destroyed.
The jury (finder of fact) is charged with determining the proper amount of damages.
But the law controls the types/elements of harm for which damages are available.
So, in setting an amount, the jury has to act within the framework of the law.
Elements of Damages
Past physical and mental pain
Future physical and mental pain
Past medical expenses
Future medical expenses
Loss of earning capacity
Permanent disability and disfigurement
The existence of a shortened life expectancy
Maximum Recovery Rule/tests for excessive award
Whether it “falls outside the range of reasonable and fair compensation” (Remember, tort law is primarily geared towards compensation, not punishment.)
Whether it “results from passion or prejudice”
Whether it “shocks the judicial conscience”
Elements of defamation
(1) D publishes
(2) a false and defamatory statement concerning another
(3) to a third party
(4) D is at least negligent as to the fact that the statement is false and defamatory
(5) Damages may or may not be required
Libel v. slander
Historically, the key difference between libel and slander was that in a libel action damages were presumed. The plaintiff did not have to prove any specific pecuniary loss.
In a slander action, damages were typically not presumed. There were only a handful of types of cases, such as when the slander involved an allegation of serious sexual misconduct, in which damages were presumed.
