Torts II

Seat-belt defense

A defendant may argue that the plaintiff's injuries from the accident could have been reduced or avoided had the plaintiff worn a seatbelt. -this was inadmissible until 2003 -its so long understood and common sense to use a seatbelt its time to abandon the old rule!!!

Concert of Action

An expanded liability concept that applies when all defendants acted together or cooperatively. Herman v. Westgate (N.Y. App. Div. 1983) Facts: plaintiff was injured while attending a bachelor party that was onboard a barge owned by the defendant. People were skinny dipping in about 2 feet of water, he was pushed or thrown into the water against his will resulting in trauma to his head and neck by the injury to his spinal cord Rule: Liability of an individual defendant will not depend upon whether he actually propelled the plaintiff into the water; participation in the concerted activity is equivalent to participation in the accident resulting in the injury. This is generally a question for the jury. Reversed SJ should not have been granted.

Collateral Source Rule

the defendant cannot introduce any evidence that shows the injured party has received compensation from other collateral sources (like insurance $$) thus the court or the jury will not reduce them as such.

Justifiable Reliance on the Misrepresentation

-Deceived party must have -Reliance is not justified if the innocent party knows the true facts or relies on extravagant statements, is it justifiable -resulting damage Judd v. Walker(1908) The party owning the property or article, is presumed to know the facts -The court won't protect you from a bad deal or mistake

Elements of Fraud

1. the wrongdoer made a material misrepresentation 2. It was false 3. That was made with knowledge of the falsity or in reckless disregard of the truth 4. Intending for the plaintiff to rely upon it 5. Actual and justifiable—or reasonable—reliance by the plaintiff 6. Actual harm suffered by the plaintiff.

Per Diem and Day in the life videos

A majority of courts allow this argument style, but is not evidence and is used to draw an inference from the evidence given at trial

Damages

A sum of money paid in compensation for loss or injury in a civil case

Promissory Fraud

A type of fraud that occurs when one party induces another to enter into a contract by promising to do something without having the intention to carry out the promise. -kind of like breach of contract but much worse behavior and likely punitive damages, if the rule is successfully applied.

Rejection of Negligent interference

State of Louisiana v. M/V Testbank (5th Cir. 1985) Facts: chemical spill! Rule: denied the plaintiff recovery for economic loss if that loss resulted from physical damage to property in which he had no proprietary interest **remember the mere economic harm rule, this reflects the same objectives

Apportionment with absent or immune actors

Sullivan v. Scoular Grain (Utah 1993) Facts: Plaintiff lost his arm and leg in an accident in the railroad tracks as he unloaded grain from rail cars into warehouses. Rule: An employer, immune from suit, can be allocated their relative proportion of fault. -a dismissed party cannot be included in an apportionment Holding: A jury may apportion the fault of employers notwithstanding their immunity. A jury may not apportion the fault of a party that has been dismissed from the lawsuit substantially to an adjudication on the merits of the liability issue.

Statutes of limitation and repose

Takes away all solid ground of complaint because of the plaintiff's own negligence ▪ Nothing to do with the factual merits of the case. ▪ "Dead upon arrival" if filed in an untimely manner ▪ Barred as a matter of LAW What the legislature deems a reasonable time, purpose being: ▪ Repose for defendants ▪ Terminate stale claims Runs from the "date accrual" ▪ Typically commences at the date of the injury ▪ Differences in time allowed varies per tort (personal injury v. defamation) and per state (NC v. TX). ▪ Equitable/Ameliorating doctrines stop the clock for a period of time. When applicable, they provide additional time ("tolling") ▪ *Note: "Statute of Limitation" vs. "Statute of Repose If a plaintiff is under a legal disability when the cause of action accrues, the time of the disability is not included in the limitations period. ▪ Being a minor is considered a legal disability. -Typically, if the cause of action "accrued" while the person was a minor, it is suspended until he/she reaches 18. -Meaning àIf SOL is 2 years, the injured party has until his/her 20th birthday to bring suit. Date of Accrual = the beginning of the limitations period. "X date." -Typically, courts have held that a cause of action accrues when a wrongful act causes some legal injury. ▪ Example: When the car accident happens = Date of Accrual ▪ Note: This is true, even if all resulting damages have not yet occurred -Exceptions! Sometimes, an action does not accrue until the plaintiff knew or in the exercise of reasonable diligence should have known of the wrongful act and resulting injury. ▪ When an exception applies, the date of accrual is deferred to a later date Fraud/Fraudulent Concealment: ▪ Accrual is deferred because it's not fair for a defendant to avoid liability for his action through deceitfully concealing wrongdoing until SOL has run o Discovery Rule: ▪ Cases in which the nature of the injury incurred is inherently undiscoverable and the evidence of injury is objectively verifiable. ▪ Balances benefits of precluding stale or bogus claims and the risks of precluding meritous claims that happen to fall outside an arbitrarily set period. • Inherently Undiscoverable; and ✓ When the wrong and injury were unknown to the plaintiff because of their very nature and not because of any fault of the plaintiff. ✓ Note: Doesn't need to be impossible to discover, but discovery of a particular injury is dependent on the nature of the injury AND the circumstances in which it occurred, and the plaintiff's diligence. ✓ A fiduciary's misconduct is inherently undiscoverableài.e. plaintiff is relieved of the duty of diligent inquiry ✓ Examples: lawyer's malpractice, MD screening, vasectomy, or sponge cases • Evidence of Injury is Objectively Verifiable ✓ The facts upon which the liability was asserted can be proven by direct, physical evidence. ✓ Note: Plaintiff faces the burden of proving both a mistake in professional judgment and that such mistake was negligence. o When the issue concerns the issue of past judgment, there is typically no physical evidence. In these cases, expert testimony establishes the negligence of the same person (Sound's like Professional Custom 😉) ✓ Examples: actual sponge or expert testimony regarding misdiagnosis

Invitees, Licensees, Trespassers (MBE + NC)

Invitee: Person who enters D's land with express/implied permission AND for purpose relating to the D's interest or activities (Biz). --- Public vs. Private; Salesman; Co-worker; Movie theater; etc. Licensee: Person who enters D's land with express/implied permission AND who does not enter for purpose of benefiting D. --- Social guests, bible group, etc. Trespassers: Unknown trespassers = no duty; Known trespassers D has duty to ecercise reasonable care to warn a known trespasser of hidden dangers of which D is aware and the known trespasser is unaware (if related to Children + Attractive Nuisance, higher std). NC RULE!!!! Traditional distinction between Invitee & Licensee has been abrogated; both owed "duty of reasonable care towards all lawful visitors." NC Known Trespassers: Landowner must 1. exercise reasonable care in conducting operations on the property and 2. must refrain from willful and wanton conduct, 3. but there is no duty to warn of hidden dangers. 4. Special duties wrt Child trespasser + attractive nuisance

Business torts

Fraud: misrepresentations: -Trenholm v. Ratcliff (Tex. 1982) Facts: Plaintiffs contracted with defendants to build a subdivision. The defendants made a misrepresentation regarding the premises to be re-zoned for commercial activity. Rule: In order to establish fraud sounding in misrepresentations; -that a material representation was made -it was false -that when the speaker made it he knew it was false or recklessly without any knowledge of its truth and as a positive assertion. -that he made it with the intention that it should be acted upon by the other party -that the party that acted in reliance upon it -and he suffered an injury. ***Reckless is enough!!

Affirmative acts as concealment

Lindbergh Cadillac Co v. Aron(Ma. 1963) Facts: guy reseals cracked engine block and sells it to dealer. The seal was temporary at best, and really served no purpose other than to conceal the very serious crack. Rule: when someone willingly, knowingly allows a recipient party to be deceived as to the thing sold in a material way, the silence is grossly fraudulent ***silence would be a weaker way to state the rule and may be too broad, so the court applied the concealment as misrepresentation tort.

intentional interference with contract

Lumley v. Gye (1853) Facts: opera performance contract Rule: The tort that occurs when someone intentionally takes an action that will cause a person to breach a contract—by non performance—that he or she has with another.

Apportionment Problem

Sanford v. Chevrolet (Or. 1982) Facts: Plaintiff suffered severe burns when the pickup truck she was driving overturned and caught fire. The plaintiff alleged that the accident was caused by a defective tire manufactured by Uniroyal. Initially, the Tire Factory was found to have been 55% at fault and plaintiff was found 45% responsible therefore she was awarded 45% of the damages. Rule: There are three approaches to apportioning fault: -Quantifying "Fault": calls the fact finder to assess the relative magnitude of the parties respective fault. It's not mathematical. It magnifies the subjective elements already intrinsic to the ordinary judgement of negligence. This is a difficult approach because often "fault" is not a question in negligence. It's even more difficult in products liability actions. -"Comparative causation": ask how much of the injury was caused by the defect in the product versus how much was caused by the plaintiff's own actions? It must be tested on the assumption that both causes had to join to produce injury for which damages are to be allocated. Once its assumed, however, that two or more distinct causes had to occur to produce an indivisible injury, there is doubt that the purpose of the proportional fault concept is to subject the combines causation to some kind of vector analysis. -Mixing "fault" with "proximate" causation: "You simply close one's eyes and accomplish the task"—Dean Twerski. If plaintiffs behavior was one cause of the injury is alleged to have been negligent or otherwise at fault, it to be measured against the behavior that would have been faultless under the circumstances. The fact finder is to determine the degree to which the plaintiff's behavior fell short of that norm and express this d.eficit as a numerical percentage, which is the applied to diminish the recoverable damages. ———>In order to determine the "norm"—which is essential in the analysis— in a products liability action the benchmark for assessing a defendants fault for marketing a product which is dangerously defective in design, manufacture, or warning is what the product should have been without the defect. The benchmark for the injured party's fault is conduct which would not be unlawful or careless in any relevant respect. ———>To summarize, when an injured claimant's misconduct is a cause in fact of the injury, it can defeat a products liability claim if the claimant's fault is greater than the defendants combined fault involved in marketing the defective product. If it is not greater, plaintiffs fault proportionately reduces her recoverable damages. Holding: the court uses the mixing fault and proximate causation approach. ***Restatement of torts says: Factors for assigning percentages of responsibility to each person whose legal responsibility has been established include -(a) the nature of the persons risk creating the conduct, including any awareness or indifference with respect to the risks created by the conduct; and any intent with respect to the harm created by the conduct; and -(b) the strength of the causal connection between the persons risk creating conduct and the harm.

Accrual of a claim

The date when all events, that fix the alleged liability of either the Government or the contractor and permit assertion of the claim, were known or should have been known

Constitutional limits

The punitive damage award must be reasonable and proportionate to the amount of harm to the plaintiff and to the general damages recovered. Assess three guideposts: -1 the degree of reprehensibility of the defendants misconduct -2 the disparity between the actual or potential harm -3 the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.

The legal injury rule

Time accrues when the act causes the injury

Interference with prospective contractual relations

Walmart case: Walmart tried to lease something that was in the process of being leased to another Rule: "improper conduct"=malice -in order to recover for tortious interference with a prospective business relation a plaintiff must be able to prove that the defendants conduct was independently tortious or wrongful -when two parties are competing for something they have no interest in there is no justification or privilege defense available.

Affirmative defenses

excuses for unlawful behavior, "even though you proved negligence there is a lawful reason for it." -these apply to negligence—well and intentional torts...

Parental immunity

immunity from suit by unemancipated children in the areas of child-rearing and discipline (does not apply when a parent is abusive to child) -created to preserve family unity and prevent collusion

Negligent Misrepresentation

misrepresentation made without due care in ascertaining its truthfulness; renders agreement voidable Staggs v. Sells (Ct. Tenn. App. 2001) Facts: Staggs signed an agreement for a house that was in a flood plane, which was represented as a low flood plane. Which, ended up not being correct. Rule: One who in the course of his business...supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon such information, if they fail to use reasonable care or competence in obtaining or communicating the information. -the liability is limited to loss suffered by the person for whose benefit and guidance he knows the information to be intended and -through reliance upon it in a transaction in which it is intended to influence his conduct. The plaintiff must establish: -the defendant supplied information to the plaintiff, -the information was false -the defendant did not exercise reasonable care in obtaining or communication the information and -the plaintiff justifiably relied on the information The court rule in the plaintiffs favor, awarding her the 25,000 in damages. *you can justifiably rely but still commit comparative fault by doing so—this might look like a failure to mitigate damages.

Statute of Repose

Basically, a statute of limitations that is not dependent on the happening of a cause of action. Statutes of repose generally begin to run at an earlier date and run for a longer period of time than statutes of limitations. -popular in statutes regarding medical malpractice, product liability, and constriction defects cases **Think having a super rare unforeseeable side effect 35 years after a surgery. -cannot be defeated by the discovery rule but perhaps by asserting fraudulent concealment.

Heightened culpability standard—gross negligence, wanton or willful, or malicious conduct\

Defined as: personal ill will toward the plaintiff or that his acts were aggravated by oppression, insult, rudeness, or a wanton and reckless disregard for the Plaintiff's rights -If you bait someone into hitting you that won't cut it.

Defamation

Includes both libel and slander -Defamation refers to false statements of fact that harm another's reputation. It encompasses both libel and slander. Libel generally refers to written defamation, while slander refers to oral defamation. -The hallmark of a defamation claim is reputational harm. Former United States Supreme Court Justice Potter Stewart wrote in Rosenblatt v. Baer (1966) that the essence of a defamation claim is the right to protect one's good name. According to Stewart, this tort "reflects no more than our basic concept of the essential dignity and worth of every human being—a concept at the root of any decent system of ordered liberty."

Vicarious liability

Legal doctrine under which a party can be held liable for the wrongful actions of another party. "Standing in the place of another" or "guilt by association" with the tortfeasor. Trahan-Laroche v. Lockheed Sanders, Inc. (N.H. 1995) Facts: Plaintiffs were injured when the trailer of a flat bed truck came unhooked and collided with their vehicle. One the defendants task as an employee of the defendant corporation was to haul hay, using the trailer. Rule: The doctrine of respondeat superior holds an employer vicariously liable for the tortious acts of an employee committed incidental to or during the scope of employment.

Invitees

Persons invited by possessor of land onto her property for the purpose of conducting business, more importantly mutual benefit. The landowner owes invitees a duty of reasonable care under the circumstances -Dangerous activates undertaken on the land=reasonable care -Dangerous conditions on the land=duty triggered by either actual or constructive knowledge—considering the length of time that the dangerous condition existed without being dealt with by the owner.

Duty based on the defendant's status: professionals

Professionals may and often do have higher duty's toward those who engage with them in the course of their profession based on specialized skills and knowledge—and to some extent industry custom.

Strict Liability `

Where an activity poses such unique and significant risks for others that intent is not a question.

Equitable doctrines creating joint liability

Where liability is placed on an "innocent, non acting party" based on a party's special relationship with a tortfeasor.

Express assumption of the risk

occurs when the plaintiff expressly agrees, usually in a written contract, to assume the risk posed by the defendants behavior Tunkl v. Regents of the University of California (Cal. 1963) Facts: The decedent suffered injuries because of the conduct of two negligent doctors working with the defendant hospital. He died before the opinion was written and his wife, the executor of his estate was substituted as plaintiff. There was an exculpatory clause, in the contract signed by the decedent, that released the hospital from liability for the negligent or wrongful actions or omissions by its employees, if the hospital used due care in selecting the employees. The decedent was in great pain, under sedation, and probably unable to read... Rule: The general rule is that exculpatory clauses are only enforceable if they do not involve "the public interest. -Public interest:a business type generally thought suitable for public regulation, the party seeking exculpation is engaged in performing a service of great importance to the public, a matter of public necessity, the party provides this service for any member of the public, unequal bargaining power. Holding: the clause was void for public policy reasons, it meets pretty much every factor in the foregoing framework. The judgement was reversed in favor of the plaintiff. The decision to sign the contract did not seem commercial or particularly voluntary based on the circumstances.

Duty based on a victims status

Not all tort victims are viewed the same

Assumption of the risk as a defense

1. Plaintiff's​ ASSUMPTION OF RISK could be a defense -Knows of risk -Appreciates its quality, and -Voluntarily confronts risk when faced with a reasonable alternative 2. Contributory negligence is NOT a defense -Law is unclear in comparative negligence states as to whether a plaintiff's negligence can be submitted to the jury and weighed against the strict liability of a defendant. -Strong policy arguments exist that weight against plaintiff's contributory negligence being a defense.

Khawar v. Globe (Cal. Sup. Ct. 1998)

1. 1968--Robert Kennedy was assassinated in the kitchen of the Ambassador Hotel in Los Angels while running for President. Two months prior, MLK, Jr. had been assassinated in Memphis. Five years prior, his brother, President John F. Kennedy, had been assassinated in Dallas. RFK's death devastated a country in chaos, as the Vietnam War raged. Sirhan Sirhan—a 24 year-old anti-Zionist Palestinian was convicted of RFK's murder. 2. 1988—Roundtable published Morrow's book, which claimed that Sirhan Sirhan was not the murderer, but a young Pakistani named Ali Ahmand. Morrow went on to describe him as man who wore a gold-colored sweater carrying what looked like a camera but was really a gun. The book had four photos of Kennedy (and allegedly Ahmand) shortly before the assassination occurred in the hotel's kitchen. The book received little attention. 3. 1989, the Globe, as tabloid with several million in circulation, gave an uncritical summary of Morrow's book, including a photograph at the hotel's Embassy Room podium with an arrow pointed to "Ahmand," who was actually our plaintiff. Khawar. 4. What happened to Khawar? 1. The Globe argued that Khawar was a public figure, not a private one? Why did that matter? The issue was a question of law for the court. On appeal, as an issue of law, it is reviewed de novo. The Globe said the Khawar was a limited purpose public figure for purposes of this controversy. The court said this was incorrect. See the bottom of page 865. Did Khawar have significant media access to defend himself? The interview with the Bakersfield TV station occurred after and in response to the Globe article. 2. But wait, the Globe argued, Khawar, stood on the podium near Kennedy before the assassination. This argument didn't work. Why? Khawar was a private figure. However, to get punitive damages or "presumed," general damages, Khawar had to prove actual malice, even as a private figure. Why? The Kennedy assassination was a matter of public concern. So state law would apply as far as the defamation cause of action and harm to reputation, but the First Amendment demanded that Khawar prove actual malice to recover punitive damage because the subject of the defamation was a matter of public concern. And? Could Khawar prove the Globe acted with actual malice?

Notes following Henderson...

2. Publication. Not enough simply to tell plaintiff she's a *****. That's not enough. Must be to at least one other person. If plaintiff repeats the lie, she has self-published, and that doesn't create a claim for defamation. 3. Republication. Ouch! You are just as liable as the original publisher. 4. Fault—notice that in our last case, Rhode Island law required the plaintiff to prove negligence on the part of the publisher. Notice that NC and other states don't require proof of this. States vary. 5. Damages—sometimes, plaintiffs' can prove economic (special) damages such as the loss of a job or inability to get a job. If there is no such evidence, then most courts will allow the recover of actual "presumed" damages to one's reputation. (Agriss covers this.) 6. Punitive damages—Ill will or grossly negligent lack of concern for the truthfulness of the statement paves the way for punitive damages against the defendant. A significant issue is whether calling someone a "jerk" constitutes a false statement of fact. Opinions are protected as non-actionable (both under the common law and under First Amendment jurisprudence.) HOWEVER, -Statements of opinion that imply that the person making the statement knows certain facts to be true may be defamatory if a reasonable person would interpret the statements as fact.

Immunities

Affirmative defense that is based on the status of the defendant, or the special status of the relationship between the plaintiff and the defendant.

Credits for settlement

Some type of credit is due to the remaining defendant based upon the preceding settlement with another defendant. The credit is calculated either as a dollar-per-dollar set-off against against the total award of actual damages, or, by the percentage of fault method.

The discovery rule

legal theory that provides that the statute of limitations begins to run at the time the injury is discovered or when the patient should have known of the injury

Open and obvious dangers—danger or injury is so foreseeable that the defendant has no liability to warn.

landowner is usually not under a duty to protect invitees from open and obvious dangers (such as a pothole in a parking lot or bodies of water) O'Sullivan v. Shaw (Mass. 2000) Facts: Where the 21 year old plaintiff dove into the shallow end of an in ground, backyard, pool. He ended up fracturing his cervical vertebrae causing immediate paralysis of his lower half, which thankfully, was not permanent. Rule: the owner or possessor of land owes a common law duty of reasonable care to all persons lawfully on the premises. -This duty includes an obligation to maintain their property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk. - a landowners duty to warn of open and obvious dangers on their on their premises is relieved when it is not reasonably foreseeable that a visitor exercising reasonable care for their own safety would suffer injury from such blatant hazards. In other words, where a danger would be obvious to a person of ordinary perception and judgement, a landowner may reasonably assume that a visitor has knowledge of it, and, therefore, any further warning would be an empty form that would not reduce the likelihood of resulting harm. ———>in the open and obvious danger framework, it takes an objective view of the defendants conduct, presuming a plaintiff is exercising reasonable care for his own safety and asks whether the dangerous condition was, objectively speaking, so obvious that the defendant would be reasonable in concluding that an ordinarily intelligent plaintiff would perceive and avoid it and, therefore, that any further warning wouldn't be effective. ———> Assumption of the risk, as a defense, is raised by a defendant by a plaintiffs conduct; while open and obvious danger framework is raised by the plaintiff regarding the defendants conduct. Holding: Because diving into the shallow end of a swimming pool is such an open and obvious danger, to a person of average intelligence, the defendants had no duty to warn the plaintiff of this danger as a matter of law., motion for summary judgement granted. ***Some states do not recognize the open and obvious danger rule because it can apply to both natural and man made hazards. So some states recognize the natural accumulation rule: where the natural accumulation of natural elements is so obvious that there is no duty by the land owner to warn.

Who is a public official?

(1) Persons who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs, and (2) The position in government has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it. -Examples of Public Officials: County Commissioners, Sheriff, Mayor, Governor, or President Trump Think elected public official → the public cares about their individual qualifications because they will control gov't'l affairs

Joint and several liability

-Existed under the common law and still exists in Con. Neg states such as N.C. ———>In contributory negligence states like N.C., each liable defendant pays his pro rata share of damages. If there are two tortfeasors, they each owe 50% of the damages; if there are three liable tortfeasors? 1/3 each-Any tortfeasor found to have been a cause of the plaintiff's harm could be liable to the plaintiff for ALL of the compensable damages. Aids the victim in recovering her damages.

Henderson v. Henderson (R.I. 1996)

-Bitter divorce, called her a ***** in front of the kids. "Publication" is a term of art in defamation law. For a defamatory communication to be published, it need only reach one other person. Here it was the plaintiff's daughter and the plaintiff's mother. That sufficed as publication. The court was to determine to award of punitive damages, looking at the ill will and malice of the defendant sufficient.

Notes following Agriss...

-Broadcasting of defamatory matter by means of radio or television is libel, whether or not it is read from a manuscript. -Single publication rule: in defamation actions, the defendant's singular publication gives rise to one defamation claim no matter how many people view the publication and regardless of when they view the publication. -Defamation proof plaintiffs: when your reputation is already so bad that the court basically says "it can't get any worse, might as well dismiss (because it would hard to prove reputation alone harm)

Governmental vs. proprietary functions

-Immunity IS available for governmental functions; it is NOT available for proprietary functions -how to determine whether a function is proprietary: --ask yourself if a private person would normally perform this function

Busch v. Viacom International

-Plaintiff sued late night talk-show host Jon Stewart and the Daily Show for making fun of him during a short bit that appeared on one episode. (I went to a live taping of this show with my daughters—one of his last shows before he went off the air) -Phillip Busch, the bodybuilder, appeared on the 700 Club to discuss his 200-pound weight loss that he attributed to a shake developed by Pat Robertson, the host. Rule(s): These are the elements of defamation in North Carolina: 1.False statement of fact 2.Cause of injury to the plaintiff's reputation 3.Of and concerning the plaintiff 4.Published to a third person. Note that some states don't require the plaintiff to prove falsity; rather the defendant must prove truth as an affirmative defense. See page 834, note 3. Also, this defamation cause of action requires an additional element if the plaintiff is a public figure. More to come on that.

Who is a public figure?

1. All Purpose/General Public Figure) A person who has a pervasive, universally notorious public presence (the general public knows who they are; "open book") 2. Limited Purpose: (See note 2, page 871—Actual Malice is req's only when the defamatory speech relates to the issue for which they are famous. Otherwise, they are private figures.) (A.) Voluntary: (1) The person has voluntarily thrust themselves into a specific public controversy in order to influence the resolution of the issues involved and (2) The person has assumed the risk that the public will discuss them in the context of the controversy (B.) Involuntary: (1) The person pursued a course of conduct from which it was reasonably foreseeable, at the time of conduct, that public interest would arise, and (2)The person must have been recognized as a "central figure" during the debate over the public controversy *public controversy --issue that is publicly debated with foreseeable and substantial ramifications for nonparticipants

Assumption of the risk

A defense against negligence that can be used when the plaintiff was aware of a danger and voluntarily assumed the risk of injury from that danger.

Spousal immunity

A doctrine of the common law that tort actions between spouses are prohibited because of a public policy to protect the harmony of the marital relationship from adversarial and disruptive legal proceedings. -created to preserve family unity and prevent collusion.

General damages—non-economic damages

A monetary award to compensate a victim for losses, such as pain and suffering, that do not involve specific measurable expenses. Review of the Jury's award Miraglia v. H&L Holding Corp (N.Y. Sup. 2004) Facts: the plaintiff was impaired by rebar on a work site, suffering horrific injuries Rule: Pain and suffering awards are not subject to precise standards that permit a purely mathematical evaluation in order to determine whether a verdict deviates materially from what is considered reasonable compensation. -In reviewing a money judgement in an action in which...it is contended that the award is excessive or inadequate and that a new trial should have been granted unless a stipulation is entered to a different award, the appellate division shall determine that an aware is excessive or inadequate if it deviates materially from what would be considered reasonable compensation -the court must tread carefully because great deference is given to the jury in determining a damage award. -evaluations of prior awards, in similar personal injury cases is intended to provide guidance to the court in resolving disputed contentions regarding the adequacy of inadequacy of a verdict so that issues such as prejudice and sympathy do not become the motivating factor. -The court must consider: the nature of the injury sustained by the plaintiff, plaintiff's age, the physical condition of the plaintiff prior to the occurrence, the permanency of injury sustained plaintiff's ability to return to gainful employment, the pain, both physical and emotional, experienced to to be experienced in the future, the extent of future hospitalization, and ascertain whether the award in part was generated by the devastating effects of plaintiffs injury Holding: The court reduced the award. Which is an example of remittitur, the plaintiff can accept a reduction or the trial court will rant new trial ***Additur, related to the defendant is similar. An increase in a damage award that's inadequate. ***Attorneys fees: the "American rule" where unless imposed by statute, a party is responsible for their own attorneys fees.

CHILD TRESPASSERS - ATTRACTIVE NUISANCE DOCTRINE

A possessor of land is subject to liability for physical harm to children trespassing Theron caused by an artificial condition upon the land, if: -(a) The place where the condition exists is one upon which the possessor knows or as reason to know that children are likely to trespass, and -(b) The condition is one of which the possessor knows or has a reason to know and which he realizes or should realize will involve unreasonable risk of death or serious bodily harm to such children, and -(c) 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 -(d) The utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and -(e) The possessor fails to exercise reasonable care to eliminate the danger or to otherwise protect the children

course and scope of employment

A principal is liable for the authorized conduct of an agent only so long as the agent is acting within the course and scope of his employment. Fruit v. Equitable Life Assurance Society (Alaska 1972) Facts: the defendant was an insurance salesmen was required to attend a sales convention where there was a lot of required networking.... ahem i mean partying... The defendant was driving on a highway late at night, after drinking, when he pinned a person between his vehicle and her vehicle causing such severe damage that his leg had to be amputated and the other leg wasn't but basically renders him immobile. Rule: Under the doctrine of respondeat superior, an employer is vicariously liable for the negligence acts of an employee acting within the scope of his employment and in furtherance of the employer's business. -Control theory -Enterprise theory

Privileges

Absolute privilege: An absolute privilege provides a defendant with a complete defense to a defamation suit even if the defamatory statement is uttered maliciously or in bad faith. Very few absolute privileges. -Ex: Statements made during judicial proceedings. This includes defendant's statements to the police in Johnson. Statements made in the context of Absolute Privileges: afforded to speech that is "essential for the functioning of representative government and the administration of justice." These include: A) Statements in the course of Judicial and (often) Quasi-Judicial Proceedings B) Statements in the course of Legislative Proceedings *new C) Statements made by Federal Executive Branch Employees in the Course of Their Employment *new D) Statements made within a marriage about a third person to the spouse.. Flip to the note on page 857. Do all states agree with this? Qualified (a/k/a/ Conditional) Privilege: This privilege immunizes the defendant, when applicable, unless he or she acted with malice or excessively published the false statement. Publications made in furtherance of: Publications made in furtherance of... (1) A legal, moral, or social duty (2) The public interest (charges made to public officials) (3) One's self interest (4) The recipient's (or other third party's) interest (5) A common interest shared by the publisher and the recipient—by far the most common -It's up to the defendant to convince the court to recognize the existence of a qualified privilege. -Notice in Lester that the court determined as a matter of law that the qualified privilege existed. The court determines on a case-by-case basis whether to recognize a conditional (qualified) privilege, influenced by public policy and the notion of wanting to promote free, but not absolutely unfettered, speech. (The common interest privilege is by far the most common qualified privilege,)

Actual Malice in defamation law

Again, what does "actual malice" mean? That the defamatory statement was made with knowledge of its false or reckless disregard of whether it was false. Reckless disregard, in turn, means the published in fact entertained serious doubts as to the truth of his publication. A later Supreme Court case said that, to prove actual malice, the plaintiff must demonstrate with clear and convincing evidence that the defendant realized that his statement was false or that he subjectively entertained serious doubts as to the truth of his statement.

Libel or slander

Agriss v. Roadway Express, Inc. (Pa. Sup. Ct. 1984) Facts: Where an employee received a completely false warning letter than ended up circulating around the workplace. Rule: A publication is defamatory if it tends to blacken a person's reputation or expose him to public hatred, contempt, or ridicule, or injury him in his business or profession. -Slander: understood to mean oral defamation ———>Libel, once proven to be defamatory, can sustain an action for general, presumed reputational harm as well as special (economic losses) damages caused by the defamation. •Written statements that meet the standard of defamatory on their face are referred to as "libel per se." They need no additional explanation or contextualization in order to prove to be defamatory. Writing that someone is a "thief" is an example. •Libel per quod- these statements require additional explanation in order to be shown defamatory are referred to as "per quod." The classic example is a newspaper article about the plaintiff giving birth to twins. Nothing harmful here, right? Except that the plaintiff was a newlywed. See fn. 7 on page 845. •The traditional rule, and as this court notes, the correct rule of law treats libel per se and per quod exactly the same, once proven to be defamatory. All libelous statements can give rise to claims for both general, presumed damages and special damages ———> the distinction was used to distinguish libel defamatory on its face (per se) from libel not defamatory on its face (per quod). -Plaintiffs in a libel per quod has to plead and prove the extrinsic facts (the inducement) imparting defamatory meaning and the defamatory meaning (the innuendo) imparted. -Libel per quod claims limit recovery to economic losses. *** •The court in Agriss confused slander and libel, treating this case like a slander cases, dismissing the case because plaintiff alleged no special economic losses. The lower court treated libel per quod like slander per quod. •Secondly, the trial court erred in treating this defamation as libel per quod that needed additional proof to make it defamatory. The statement were libelous on their face.

The drafting hurdle—the express negligence rule

Alack v. Vic Tammy International Of Missouri, Inc. (Mo. 1996) Facts: Plaintiff was injured using health club facilities. He signed a retail installment contract containing a general exculpatory clause. The clause, however, did not expressly release the health club form injuries resulting from its own negligence. A pin was improperly connected to fitness equipment which disengaged the weight and smashed into Alack's mouth and jaw which severely injured him. Rule: Although exculpatory clauses are disfavored they are not prohibited against public policy. -However, contracts exonerating a party from acts or future negligence are to be strictly construed against the party claiming benefit of the contract, and clear and explicit language in the contract is required to absolve a person from such liability. -A contract provision exempting one from liability for his or her negligence will never be implied but must be clearly and explicitly stated. Individuals wishing to protect themselves from their own negligence "must express that intent specific terms within the four corners of the contract. -Ambiguity is a matter of law -The injured party must be notices of the intent of the exculpatory clause, you might wanna use "negligence" in the release. Holding: The court determined the clause to be ambiguous, and additionally that one may never exonerate oneself from future liability, for intentional torts or gross negligence, or for activities involving the public interest. The defendant is not insulated from liability based on the clause.

Contributory Negligence and comparative fault

An affirmative defense that seeks to indemnify a defendant from liability for negligence because of the negligence on the part of the plaintiff

Multiple tortfeasors in modified comparative fault

Beaudoin v. Texaco, Inc. (D.N.D. 1987) Facts: The plaintiff and employee avoid wireline, was hired to conduct a pressure gradient check on Texaco's well. When the plaintiff arrived, the job site was dark and the plaintive began uncoiling wire from a large spool mounted on the wireline rig when he was struck in the left eye by the end of the wire. He is now legally blind in that eye. Rule: modified comparative negligence jurisdictions follow one of two rules for determining the damage award in cases with multiple tortfeasors at least one of which is less negligent than the plaintiff: the "Wisconsin rule" and the "unit rule". Under the Wisconsin rule the plaintiffs share of the negligence is compared in turn with the negligence apportioned to each individual defendant and the defendant his percentage of the negligence is lower than, or, in North Dakota, equal to, the plaintiffs, is dismissed from the case. -The unit rule is the modern trend. -in North Dakota, a joint tortfeasor is liable for the share of negligence attributed to a statutorily immune employer. In other words, when a statutorily immune employer was 70% negligent the other party would be responsible for the entire amount of damages to the injured party. Holding: the court chose to apply the unit rule. Texico, which was only 10% negligent, will be responsible the full 70% in damages. The plaintiff is entitled to70% of his damage award.

Actual/Compensatory Damages

Can include both general and special damages, they seek to make the victim whole by compensating the victim for the harm that has been suffered, past damages, as of the time of trial and all damages likely to be suffered after trial. Martin v. United States (D. Ariz. 1979)—special damages Facts: a grade school boy was riding his motorbike when he struck a sagging power line negligently maintained by the government. Rule: The damages elements are: -past medical expenses, which are agreed, -future medical expenses, also agreed, save for minor aspects, -present value lost future earning capacity; -pain and suffering, and interference with normal and usual activities. -future medical expenses almost always require expert testimony to prove that the expenses will in reasonable probability be incurred in the future for the underlying condition. -For future lost earning capacity, often you will want to show that the injuries will prevent employment that otherwise would have been forecast as likely to have occurred. -Inflation: add to the award -Discounting to present value: discount to the present value number ———>a minority of courts don't adjust anything

Libel and Slander—elements

Common Law—Reputational harm was considered a grave injury in socially stratified England., and the legal system treated it accordingly. -the challenged statement contains assertions of fact about the plaintiff -the challenged assertions of fact are defamatory, injuring the plaintiffs reputation -the challenged assertions of fact are false -In cases where the plaintiff is a public figure, the constitution demands proof of actual malice

Rejection of joint and several liability in favor of several liability

Comparative Negligence States— by statute have typically changed this pro rata result and have adopted comparative allocation of responsibility among multiple tortfeasors, including a potentially a negligent plaintiff. So once Joe and Mary are found negligent, then the jury is asked to apportion the percentage fault of each, totaling 100%. Assume Joe is 30% responsible and Mary is 70% responsible.

Amount of punitive damages

Consider: -the nature of the wrong -the character of the conduct involved -the degree of culpability of the wrongdoer -the situation and sensibilities of the parties concerned -the extent to which such conduct offends a public sens of justice and propriety. -the net worth of the defendant

One Satisfaction Rule

Contribution is a necessary by-product of J and S liability. It only makes sense. See note 3. Note: A tortfeasor cannot get contribution? -If the Tortfeasor committed an intentional tort -From an immune joint tortfeasor (intrafamilial, workers comp, and governmental immunities arise most frequently) -In most jurisdictions from a settling joint tortfeasor (recognizing that the joint tortfeasor's (We'll talk about how the tortfeasor can get CREDIT, however)

SOL CASES:

Crumpton v. Humana, Inc. (N.M. 1983) Facts: Where plaintiffs counsel failed to file the claim within the SOL period and the discover rule does not apply. S.V. v. R.V. (Tex. 1996) Facts: Woman suffered sexual abuse from her father until she was 17 years old. She did not sue him within the 2 year period after her 18th birthday. Rule: they chose to apply the discovery rule, but the plaintiff didn't satisfy it. See rule above. It did not apply because the science regarding memory recovery at the time was not objectively verifiable.

Duty to protect invitees from criminal attack

Delta Tau Delta v. Johnson (Ind. 1999) Facts: a college student was sexually assaulted while attending a fraternity party with the defendant fraternity. Rule: a majority of courts agree that landowners owe a duty of reasonable care to protect their invitees from foreseeable criminal attacks. -How to determine if a criminal attack was foreseeable? Look at the following approaches: ———>(1)the specific harm test: a landowner owes no duty unless the owner knew or should have known that specific harm was occurring or was about to occur. This is a small minority approach. ———>(2)prior similar incidents test: a landowner may own a duty of reasonable care if evidence of prior similar incidents of crime on or near the landowners property shows that the crime in question was foreseeable. Although courts are split on the application of this rule, they do agree that evidence of prior incidents, their proximity to the premises, and the similarity of crimes. But most do not use it for public policy concerns because it allows no recovery for the first victim.(Most popular) ———>(3)totality of the circumstances test: where a court considers all the attendant circumstances, like: the nature, condition, and location of the land, and prior incidents, in order to determine whether a criminal act was foreseeable. This is a broad test rejecting the limitations of the prior tests. (Most popular) ———>(4)balancing test: the court balances the degree of foreseeability of harm against the burden of the duty to be imposed. As foreseeability and severity of injury increase so does the duty to prevent against it. This test still relies heavily on prior incidents. Holding: This court chooses the broad totality of the circumstances test. There is a duty based on the past circumstances as a matter of law, the jury will now decide breach. ***This case illustrates how the courts are uncomfortable with the invitee/licensee distinction, so they treat a social guest at the party as an invitee. ***All courts demand a duty of reasonable care when there is actual knowledge of peril, where an owner witnesses an invitee being attacked.

Private matters

Dun & Bradstreet, Inc. v. Green-Moss Builder's, Inc. (1985) Facts: False report that the plaintiff was filing for bankruptcy. The notice was false and grossly misrepresented respondents assets and liabilities. Rule: A matter of private concern: speech solely in the individual interest of the speaking and its specific business audience. No showing of malice required

McIntyre v. Balentine (Tenn. 1992)

Facts in an automobile accident where both plaintiff and defendant drivers had been consuming alcohol, the plaintiff pulled out in front of the defendant, and the defendant failed to stop the accident. The court applied the 49% comparative fault rule. Rule: Most comparative negligence states have rejected J and S liability, in favor of SEVERAL liability, in which the defendant is liable only for his percentage of damages. ———>" Our adoption of comparative fault is due largely on considerations of fairness, the contributory negligence doctrine unjustly allowed the entire loss to be borne by a negligent plaintiff...Have thus adopted a rule more closely linking liability and fault, it would be inconsistent to simultaneously retain a rule, joint and several liability, which may fortuitously impose a degree of liability that is out of all proportion to fault." ***Several liability negates the right of contribution and credit because defendants are only responsible for their share to begin with.

Adult Trespassers—Ryals v. United States Steel Corp.

Facts: -David Rylals, the decedent, went with his broth to strip copper wire from U.S. Steel's Muscoda Mines switch rack—basically an electrical substation. His brother testified that the gate to the substation was wide open, with exposed wire, and much overgrowth. Ryals contacted a 44,000 volt copper line. He had 3rd degree burns over 95% of his body and died several days later Rule: There are two distinct categories of trespassers recognized by the Alabama Supreme Court, (1) Mere trespassers to whom the landowner owes a duty not to wantonly injure them—mere trespassers, where the trespasser has no motive, design, or intent to engage in further wrongful conduct; and (2) Trespassers who enters upon land of another with the manifest intent to commit a criminal act and to whom the landowner owes only a duty to not intentionally injure them. ———>Wantonness is described as the conscious doing of some actor the omission of some duty under the knowledge of the existing conditions, and conscious that from doing of such act or omission of such duty injury will likely or probably result. Holding: -Recklessness or wantonness is not the correct standard because the decedent was a trespasser with manifest intent to commit a criminal act and to whom the landowner owes a duty to not intentionally harm them. Even though there were two prior deaths on the property, if the standard was Recklessness then maybe the Plaintiff would have a better chance of withstanding summary judgement. ———>Why don't we like trespassers in this situation? -we don't like them at all. They are also less foreseeable as invitees and licensees, which would create an undue burden on the landowner to protect someone who might wanted onto their land at any time. ———> Remember Katko (spring loaded shot gun to protect property), well their conduct wasn't necessarily intentional to harm the trespasser with criminal intent, BUT, remember the rule you can't use lethal force to protect property.

Campbell v. Indiana (Ind. 1973)

Facts: ●Campbell: sustained personal injuries as a result of a head on collision ●Vehicle was traveling in the appellant's lane of traffic on state highway ●Negligence on part of the state, failed to a) mark with a yellow line where it was unsafe to pass; b) carelessly and negligently failed to install no passing signs along the road ●The road as maintained constituted a nuisance ●Knotts: personal injury resulting from fall on a crosswalk, resulting from negligent state of repair of the crosswalk ●Monument Circle (part of intersection) was part of the state maintained highway system Rule: ●"Such a defense by the state is not available to any greater extent than it is now available to municipal corporations and counties of this state" p. 527 ———>Meaning: sovereign immunity will be limited in use by the state in the way that it exists as a defense post-determination from case law. ●In order for one to have standing to recover in a suit against the state, there must have been a breach of duty to a private individual ●Vacate the ruling on the motion to dismiss and enter an order overruling such motion. -"The doctrine of sovereign immunity has no proper place in the administration of a municipal corporation" -If city and council governments can withstand the consequences of liability, the state should also be able to bear such a burden -Reserve immunity for discretionary functions only!

Sandoval v. Sandoval (Az. 1981)

Facts: Mr. Sandoval forgot to close the gate to the yard. ●4 year old Ramero Sandoval rode his tricycle through the gate and into the street. ●Mr. Lopez, an uninsured driver, ran over Ramero. ●The Sandovals did not have uninsured motorist coverage. Thus, they were left with large medical bills. ●In an attempt to recover some of their expenses, the Sandovals had their son sue them, believing their homeowners insurance policy would cover their negligent act Rule: two approaches: -Majority: follows parental immunity to preserve principles (above) and public policy -Minority: Abrogated Parental Immunity: ———>(1)The actual cause of the injury ———>(2)Whether the act of the parent breached a duty owed to the world at large (or merely a duty to the child within the family sphere) -(a)Was the act an exercise of parental authority over the child? -(b)Was it an exercise of ordinary parental discretion? ———>Traditionally where a minor has been injured as a result of a parent's negligent driving. Holding: Using the minority approach, the Arizona court held, "The closing of the gate was a duty owed to the child alone and a part of the parental 'care and control' or 'other care' to be provided by the parents." ***Note: abrogated Parental Immunity is not limited to automobile negligence cases. Courts must consider facts on a case by case basis to decide what duty was owed - whether the duty was owed to the world or the child alone.

Riddle v. Universal Sport Camp (Kan. App. 1990)—qualified secondary assumption of the risk

Facts: Plaintiff was at cheerleading camp and she got thrown too high and missed the top of the pyramid and injured herself. She fell where there was no spotter. Rule: Secondary qualified implied assumption of the risk either: -reasonable or unreasonable. ———>Elements: -actual knowledge of the danger -appreciation of the gravity of the danger -voluntary exposure to the danger, it might be so obvious that knowledge is presumed Holding: The court held that it was unreasonable in part of the plaintiff to risk a fall of about 15 feet knowing there was no spotter.

Schroyer v. McNeal (Md. App. 1991)—Unqualified secondary assumption of the risk

Facts: The plaintiff fell on snow and ice in the parking lot. The plaintiff requested a room closest to the exit door due to her need to move boxes from her car into her room. She parked on the ice and snow without mishap. However, on the return trip to retrieve the remainder of er belongings, she slipped and fell. Rule: a plaintiff who proceeds reasonably with caution, after voluntarily accepting a risk, not unreasonable in itself, may not be guilty of contributory negligence but may have assumed risk. Holding: The plaintiff may have exercised reasonable caution while walking on the snow and ice, by walking slowly, however by such conduct she indicated her willingness to take the risk, the defendant is relieved from liability.

Jordan v. Baptist Three Rivers Hospital

Facts: The plaintiff's mother was killed allegedly due to the negligence of the defendant(s) Rule: -Survival statutes: allow the victims estate to recover what the victim would have if they had survived. -Pure wrongful death statutes: proceeds on the theory of compensating those affected by the decedents death. -Two classifications of damages: ———>permits recovery for injuries sustained by the deceased from the time of injury to the time of death. Such as, medical expenses, mental pain and suffering, funeral expenses, lost wages and loss of earning capacity. ———> permits recovery of incidental damages suffered by the decedent's next of kin. They can include the pecuniary value of the decedents life (the expectancy of life, the age, the condition of health and strength, capacity for labor and earning money, and personal habits -loss of consortium—in a child parent relationship—is recoverable as a pecuniary damages in a wrongful death statute in Tenn.

Knorpp v. Hale—Licesnsee's

Facts: The plaintiffs son, the decedent was killed while cutting down a tree at the Hale's house. He was cutting down a dead tree for a bonfire at the Hale's house. The trial court held that the decedent was a licensee and not an invitee. Rule: A landowner owes a licensee a duty not to injure them by "willful wanton or grossly negligent conduct, and that the owner use ordinary care to either warn a licensee of, or make reasonably safe, a dangerous condition of which the owner is aware and the licensee is not. In order to establish liability, a licensee must prove: -(1) that a condition of the premises created an unreasonable risk of harm to him; -(2) that the owner actually knew of the condition; -(3) that the licensee did not actually know of the condition; -(4) that the owner failed to exercise ordinary care to protect the licensee from danger; and -(5) that the owner's failure was a proximate cause of the injury to the licensee. ———> In Texas, a social guest, such as the decedent, are considered licensees. In determining whether a person is an invitee or licensee, courts look at "mutual benefit" through the lens of the restatement analysis which provides: -An invitee is either a public invitee or a business visitor. -A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public -A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land. Holding: -Because the decedent, was a social guest, not a public guest or a business guest, as required under the restatement there is no liability to the landowner in the negligence claim. He is not a business guest because he was not there for actual mutual benefit. His mother tried to argue that his benefit was intangible for the purposes of attending the bonfire, but the court declined to extend the definition to that extent. -The decedent was also already aware of the danger of the condition, because he had experience in cutting down trees. ***Why the strict interpretation of "mutual benefit by the Texas Court? -They reason that the nature of licensee's overall; licensees are expected to take the premise as the owner would, meaning their presence is less foreseeable because of the close relationship (he had a key to their house, and was dating their daughter) ***NOT ALL COURTS APPLY THIS CATEGORIZATION, meaning some would consider him an invitee

Price v. Price (Tex. 1987)

Facts: a woman sues her husband for injuries she sustained while he was driving, for insurance purposes. Rule: they abolish spousal immunity all together, and don't allow it to remain with automobile accidents. Holding: The case will be remanded for further proceedings

Cestonaro v. U.S.

Facts: where a Italian man was killed by government officials while on vacation. Rule: The federal tort claims act is a partial waiver of sovereign immunity that would otherwise protect the United States from tort I ability stemming from the actions of its employees. -There is an exception, where the government is exercising a discretionary function. -whether a federal statute, regulation, or policy, specifically prescribes a course of action for an employee to follow. If so, the exception cannot apply. If not, the question is whether the governmental action or inaction "is of the ind that the discretionary function was designed to shield." Holding: the plaintiff didn't ask for much other than more warnings. So the court held in their favor in that the actions and conduct of the national park service within the parking lot was not a discretionary function.

Failure to Mitigate Damages

Failure to mitigate as fault: Miller v. Eichhorn (Iowa 1988) Facts: Plaintiffs appealed a damages award in their favor, claiming erroneous instructions. There were not Rule: the failure to mitigate damages is considered fault. -to determine degrees of fault the trier of fact shall consider. Both the nature of the conduct of each party and thee extent of the causal relation between the conduct and the damages claimed. ***This is not an affirmative defense as classified by the FRCP. It's technically an inferential rebuttal of an element—damages—of the plaintiffs claim. Holding: The court affirmed the award because her relative fault in failing to continue to see a doctor that may have helped constituted an unreasonable failure to mitigate damages, therefore their award should stay reduced. Failure to mitigate as a damage consideration Klanseck v. Anderson Sales & Service, Inc. (Mich. 1986) Facts: Motorcycle accident case where the plaintiff did not follow his doctors instructions and therefore had the instruction to the jury to reduce his damages. Rule: instruction: where the plaintiff fails to reasonably mitigate their damages the jury should apportion the damages resulting from such failure and to refuse to award them. Holding: The instruction was proper

Sitzes v. Ancho Motor Freight, Inc.

In Sitzes, page 659 -The West Virginia court affirmed that its fealty to the doctrine of J and S liability. -However, the court recognized that a state statute provided for a right of contribution when one tortfeasor paid more than his/her percentage fault. -The court points out on page 660 in the call-out box the rules of civil procedure that apply in a multiple tortfeasor situation, including Rule 14, that FRCP that apply in such a situation.

Other mitigation doctrines

Last clear chance rule: declares that that even if a plaintiff's own fault placed the plaintiff in a situation of peril, this could be ignored if the defendant had a chance to avoid causing the accident and failed to do so through its own misconduct. Like where a defendant sees a plaintiff and doesn't avoid inflicting injury, despite having a good opportunity to do so at a point when the plaintiff had no such chance. - Courts have also refused to apply the contributory negligence—as an affirmative defense—where a defendant's misconduct rose to the level of either gross negligence or an intentional tort. -Now courts use comparative fault frameworks where the jury considers all of these circumstances i apportioning fault among the parties.

Examples:

Johnson v. Queenan (Mass. Super. Ct. 2000) Facts: where a woman was assaulted and told the cops which eventually she discussed prior to her civil trial. Rule: In Johnson, the defendant's statements made about having been raped were absolutely privileged as to statements made during the course of the judicial proceedings. -The qualified privilege applied to Johnson's statements to the nurse who examined her, her friends, and her mother. In this case the "common interest" privilege applied, i.e., both she and those to him she spoke had a common interest in Johnson's physical and emotional well-being. -After Johnson asserted that privilege in response to the plaintiff's prima facie case of defamation, the burden of proof shifts back to the plaintiff to show "abuse of the privilege" or "actual malice." Since the plaintiff provided no evidence of either of the latter two (abuse of the privilege (which sometimes occurs through excessive publication) or actual malice, the court granted summary judgment to the defendant. Lester v. Powers (Me. 1991) Facts: The student writes a bad review of a professor who was offered a tenured position. This opinion was solicited by the university who was looking to hire the plaintiff. Rule: balance the totality of the circumstances, in view of the interests of the publisher, and the recipient in order to determine conditional privileges. -If the publication is made for the purpose of protecting the interest in question, the fact that the publication is inspired in part by resentment or indignation at the supposed misconduct of the person defamed foes not constitute an abuse of the condition privilege. -A statement of opinion may be actionable, however, if it implied the existence of undisclosed defamatory facts. ———> knowledge or disregard of falsity is a purely subjective state of mind, "there must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts about the trust of their publication. Holding:

Comparative fault reform

McIntyre v. Balentine (Tenn. 1992) Facts: After both consuming alcohol, two men were traveling in cars on a highway. The plaintiff was hit by the defendant truck, while he was in within the scope of his employment. Rule: So long as a plaintiff's negligence remains less than the defendant's—in percent—the plaintiffs damages are to be reduced in proportion to the percentage of the total negligence attributable to the plaintiff. (They choose modified and the 49% rule). -pure comparative fault: damages awarded to the plaintiff are reduced in proportion to the percentage negligence attributed to him. -modified comparative fault: plaintiffs recover as they would in pure comparative fault, but only if their apportioned fault does either not exceed 50% or is less than 49% -At trials where the issue of comparative fault is before a jury, the trial court shall instruct the jury on the effect of the jury's finding as to the percentage of negligence as between the plaintiff and defendant. The attorneys for each party shall be allowed to argue how this instruction affects a plaintiffs ability to recover. Holding: the apportionment from the trial and appellate level had them equally at fault, which needs to be reevaluated so the case is remanded for a new trial.

Corporate liability for punitive damages

Mobile v. Ellender (Tex. 1988) Facts: case of the decedent, an independent contractor, was exposed to the chemical Benzene and was not adequately warned or protected by the contractor, while employees were protected. The decedent developed a type of cancer that was synonymous with Benzene exposure but could have been exacerbated by cigarette use, according to the defendant. Rule: In order to establish gross negligence: -viewed objectively, the defendants conduct created a substantial probability of serious danger to the plaintiff; and -that the defendant had subjective awareness of the risk of harm arising from its actions but made the conscious decision to disregard the risk. Holding: the court affirmed the punitive damage award.

Punitive Damages

Monetary damages that may be awarded to a plaintiff to punish the defendant and deter similar conduct in the future. Civil punishment is permitted in situations of: -malicious conduct: Shugar v. Guill: Battery, a little tiff gone awry ———>Some courts allow recovery of punitive damages even when there is no injury, using nominal damages as an anchor. This is definitely a minority approach.

Burton v. Crowl Pub Co.—how J. Learned hand and early courts viewed defamation law.

Mr. Camel- A famous jockey who agreed to appear in a print ad for Camel cigarettes. Though he consented to pose for the photo in the ad and to have it used in the ad campaign, he was somewhat shocked to realize that the photo gave the inaccurate impression (though obviously wrong) that he was very well endowed and was displaying his wares to the public. There was also a caption with the double entendre, "Get a lift with a Camel." The trial judge dismissed his claim for failure to state a claim. But Judge Learned Hand and the Second Circuit reverse this case. -The photograph becomes "grotesque, monstrous, and obscene" and the legends.. Reinforces the ribald interpretation. That is the libel." -But then Judge Hand says that nobody "could be fatuous" enough to believe the plaintiff was actually exposing himself in the photo. It was obviously a trick of the camera on the eye. EXACTLY, JUDGE HAND -Further the photo does not assert anything about the plaintiff....but it subjected him to ridicule.....to Judge Hand, that was enough. MMMMM. Not so much, Judge Hand.

Bennett v. Stanley

Negligence--Duty--Landowners' Duties to Licensees, Invitees, Trespassers and Children Facts: Plaintiff arrived home and found his two daughters crying. One told him that Plaintiff's wife and brother drowned in the neighbor's pool. The pool wasn't kept up well, was basically a pond, the fence was removed, there were no ladders, and there was no tarp. The defendant saw that the kids were sometimes outside unsupervised and didn't post a warning or no trespassing sign on their property. Rule: -Invitee's are owed ordinary care and to protect the invitee and maintain the conditions of the premises to maintain a safe condition. -Trespasser's are only owed a duty that the landlord refrain from wanton or reckless conduct, which is likely to injure the trespasser. -Child trespasser's needs a different rule, the attractive nuisance doctrine, which arose out of the turntable doctrine—where the landowner owes a higher duty for trespassing children. -Pools are generally not included in the Restatement rule, but the Ohio court apparently did not agree. -SEE ELEMENTS ABOVE+ the attractive nuisance doctrine can apply to adults when they seek damages for their own injury if the injury was suffered in an attempt to rescue a child from danger created by the defendant's negligence—which the dissent disagreed with because there is already the rescue doctrine. Holding: -The rule balances the safety of children with the rights of landowners, the court remanded the case to determine how the facts fit into the attractive nuisance doctrine framework. The defendant's not only had a duty to mitigate the danger of the "pool" they owed Cher Bennett a duty of ordinary care.

Modern rejection of the three categories

Nelson v. Freeland (N.C. 1998) Facts: the defendant left a stick on his porch on the day when he and the plaintiff were to carpool for a business meeting. The plaintiff inadvertently fell on the stick. Rule: NC courts joined 24 other jurisdictions in abolishing the use of the trichotomy. It fused invitees and licensees, requiring a reasonable standard of care for all lawful visitors. The classification of trespasser remains as to not overburden the landowner. Holding: The trichotomy is abolished and the plaintiff is entitled to a trial, where the jury will be instructed on the new rule.

Unusually dangerous activities

New Restatement Factors (RS3rd) for deciding whether an activity is abnormally dangerous: -The activity creates a ​foreseeable and highly significant risk of physical harm even when reasonable care is exercised​ by all actors; and (to shorten it further—To what extent is the activity dangerous?) -The activity is​ not one of common usage (or, How uncommon is the activity?) It does not matter whether the Def. acted reasonably! This is no-fault based liability. Reason for imposing S/L for abnormally dangerous activities: a) Certain activities create a foreseeable risk of serious harm that can't be avoided, even with reasonable care, and these activities are not usual in the ordinary life of the community Dynamite Case: -When a person engages in such a dangerous activity, useful as it may be, he becomes an insurer. Storing a lot of dynamite close to where people live is unusually dangerous. Gun case: -The gun was not defective, no products liability. -Illinois recognizes strict liability for ultra hazardous activities and unreasonably dangerous products. -The court declined to extend to gun manufacturers. ***There is a difference between selling a weapon and using one.

Professional custom

Osborn v. Irwin Memorial blood bank (Cal. App. 1992) Facts: A three week old boy contracted the aids virus following a blood transfusion for a heart surgery at UC San Francisco Medical Center. The blood used in his transfusion was from the defendant blood bank. Rule: Generally, custom and practice are relevant but not conclusive on the standard of care. -In the TJ Hooper case (boat without radio), the court must say what is required: there are some precautions so imperative that even their universal disregard will not excuse their omission. Holding: here, the failure to perform the anti-HBc testing could not be considered as the professional standard of care because there was no evidence that it is standard practice anywhere, therefore no duty no recovery for negligence. Blood banks are not subject to strict liability Hodges v. Carter Facts: in a lawsuit to recover damages from an insurance policy for premises damage, two layers had major issues with service. Their client eventually sued them. Rule: Where an attorney engages in the practice of law and contracts to prosecute an action on behalf of his client, he impliedly represents that: -(1) they possess the requisite degree of learning, skill, and ability necessary to the practice of the profession and which other similarly situated ordinarily possesses. -(2) they will exert their best judgement in the prosecution of the litigation entrusted to him -(3) they will exercise reasonable and ordinary care and diligence in the use of his skill and in the application of his knowledge to his clients cause. -(4) the attorney need not answer for mere error when they act in good faith and in honest belief that his advice and acts are well founded and in the best interest of their client. For mistake in law, that remains unsettled, but often determined by what other reasonable lawyers would recognize as doubt. Holding: Because the plaintiff offered no evidence showing breach and the attorney's followed custom and were unaware of their error the judgement is affirmed. When there is a split in the professional community, so long as the professional conforms to one way that is sufficient.

Sovereign immunity—the federal government/State and local

Protects the government from tort liability ●Under common law, immunities were complete and prevented any tort suits against the government ●In modern times, most states and the federal government have passed statutes waiving its immunities in certain instances ●Discretionary: policy-making decisions, not subject to tort liability ●Ministerial: performance in maintaining government property, deemed suitable for tort liability if negligently performed ●Courts struggle with the categorizations, influenced by policy concerns Federal immunities: Enumerated intentional torts: assault, battery, false imprisonment, false arrest, malicious prosecution, libel, slander, misrepresentation, deceit, and interference of contract rights in various circumstances ●Bonus immunity: from all claims based on strict liability ●Agencies which enjoy immunity: the military, mail delivery service and the fiscal operation of the Treasury ●Justified? Accountable? Compensation? State and local immunities: Most states have repealed and done away with the common law doctrine of governmental immunity ●In the doctrine's place, these states have passed comprehensive statutes governing tort liability of state and local governmental entities—See e.g., North Carolina Tort Claims Act ●These acts specify the types of claims for which the state has waived sovereign immunity. Often, even where the state waives sovereign immunity, recovery is capped.

Time as a trigger of duty

Richardson v. The Commodore (Iowa, 1999) Facts: Appellant was injured in a bar owned and operated by the defendant. While shooting pool, he was struck by falling plaster. He was struck by some the original, 1913, plaster that became detached from wood lath that had been previously exposed by the removal of partition walls. Upon inspection, the portion of the ceiling that fell was thicker than the others, likely separated from the lath because of vibration form heavy traffic on the adjoining street. Rule: A possessor of land is subject to liability fir physical har, caused to his invitees by a condition on the land if, but only if, he; -(a) Knows or by the exercise of reasonable are would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and -(b) Should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and -(c) Fails to exercise reasonable care to protect them against the danger. ———>Knowledge doesn't need to be actual, it may be constructive. Knowledge is Imputed on the possessor of land who created the dangerous condition that causes the plaintiff's injury. -The Defendants duty of reasonable care as possessors of the premises extends to an inspection of the premises to discover any dangerous condition or latent defects, "followed by such repair, safeguards, or warning as may be reasonably necessary for the invittee's sprotection under the circumstances. The required conduct depends on the nature of land and the purposes for which it was used. -The duty of one who operates a place of entertainment or amusement is higher than the owner of private property, generally. Holding: -A ceiling inspection, would not have been necessarily overburdensome and the owners knew the building was built in 1913. Therefore there is an issue of fact for the jury to determine; whether reasonable care warranted an inspection of the plaster ceiling and whether such inspection would have altered the defendants to the dangerous condition of the ceiling. Wal-Mart Stores, Inc. v. Gonzales (Tex. 1998) Facts: Where a woman slipped on macaroni salad and injured herself. Rule: To recover damages in a slip and fall case a plaintiff must prove, -actual or constructive knowledge of some condition on the premises of the owner or operator; -that the condition posed an unreasonable risk of harm; -that the owner or operator did note exercise reasonable care t reduce or eliminate the risk. -that the owner or operators failure to use such care proximately caused the plaintiffs injuries. Holding: There is no evidence that Wal-Mart had constructive knowledge. Gonzales failed to offer sufficient evidence to suggest that, more likely than not, that the macaroni salad had been on the floor for a long time. -dirt in the Mac just isn't enough evidence. ***Time is very important in slip and fall cases, if the plaintiff can establish that the condition existed for an unreasonable amount of time following knowledge then it will be easier to trigger the duty.

Who is considered a professional?

Rossell v. Volkswagen of America (Ariz. 1985) Facts: During an automobile accident, that was caused by a mother falling asleep behind the wheel, as seven hours passed until she was recovered from the scene an allegedly defective battery leaked sulfuric acid on er daughter's face, chest, arms, neck, back, and shoulder. These burns were severe requiring surgery and she is still disfigured and in need of additional surgery. Rule: special groups will be allowed to create their own standards of responsibly prudent conduct only when the nature of the group and its special relationship with its clients assure society that those standards will be set with primary regard to protection of the public rather than to such considerations as increased profitability. -evidence of industry custom and practice is generally admissible as evidence relevant as to whether defendant's conduct was reasonable under the circumstances. -In determining reasonable care for manufacturers the plaintiff need only prove that the defendant's conduct presented a foreseeable, unreasonable risk of harm. There need not be explicit expert testimony establishing the standard of care and the manner in which defendant deviated from that standard. Holding: the plaintiff did indeed have expert testimony that would likely establish foreseeable and unreasonable risk of harm, therefore, the trial court judgement, in the plaintiffs favor, is affirmed. ***Consider: the nature of the group and whether it has special relationships with its clients (ie confidentiality/fiduciary relationships, self imposed professional obligations, somewhat insulted from cost cutting considerations for overall public welfare.

Slander

Slander, the uttered word, has always been treated as less significant that libel because it's not viewed as causing the same permeant injury to reputation. The spoken word is more fleeting and more quickly forgotten. Slander per se (whether on its face or with explanation) imputes one of four types of false information about the plaintiff: 1. Crime 2. Loathsome disease 3. Shortcomings in one's profession 4. Unchastity (at least to a woman) The plaintiff in a slander per se case can recover what? Presumed and special damages Slander per quod—permits recovery for only special damage, economic losses. No presumed reputational damages are available. (To clarify, a plaintiff can PROVE other types of general damage, like emotional harm.)

Does comparative fault abolish secondary implied assumption of the risk

Some courts have adopted comparative fault in their jurisdiction and seek to abolish secondary implied assumption of hothead risk. Davenport v. Cotton Hope Plantation (S.C. 1998) Facts: the plaintiff was injured when he fell down the stairs at his apartment complex. Rule: Wisconsin rule: a plaintiff is not barred from recovery by the doctrine of the assumption of risk unless the degree of fault arising therefrom is greater than the negligence of the defendant. ***In South Carolina, if the plaintiffs total negligence exceeds that of the defendant, only then are they barred from recovery. Therefore secondary implied assumption of the risk is abolished and eaten up by comparative fault. ***THEREFORE SIAR IS REALLY ONLY USED IN CONTRIBUTORY NEGLIGENCE STATES, LIKE NC!!

Wild and trespassing animals

The basis of liability is imposed on those who ​keep, possess, or harbor ​the animal, not just the owner -Wild Animals: ​land owners are not responsible for harm done by wild animals on their property unless they reduce the wild animals to possession or control or introduce a non-indigenous animal into an area. Owners of wild animals​ (not commonly domesticated w/in a community) are strictly liable in majority of states -Zoo Exception:​ some courts have applied a negligence standard for liability of persons who display wild animals to the public -Barnyard Animals:​ owners of barnyard animals (cattle, sheep, horses, hogs, goats, fowl) are liable when those animals trespass or intrude into the plaintiff's land and cause personal or property damage. -Domestic Animals: ​if the owner knows or has reason to know (scienter) that a domestic animal has vicious propensities abnormal to its class, it is sufficient to classify that animal as wild and impose strict liability THINK ABOUT DOG BITES HERE—What is enough to create scienter of "vicious propensities"? -If the owner has good reason to apprehend, from his knowledge of the nature and propensity of that animal, that he becomes Emily inclined, the duty of care and restraint attaches. What if the dog is trespassing? Does strict liability apply? The Donkey case: yes the donkey was in an inappropriate place. Cat case: a mean cat but you can't provoke it.

Licensees

The middle ground between trespassers and invitees. -With regard to dangerous activities, under the control of the landowner, the duty is to avoid gross negligence. With regard to dangerous conditions on the land the duty is triggered by actual knowledge of the dangerous condition upon the land, only then does the landowner -Keep in mind that firefighters, police coming onto land during an emergency take the status of a licensee, but depending on their injury the firefighter rule may preclude any duty whatsoever but remember the limits on the doctrine. Public utility meter readers are considered by contrast to be invitees by the landowner.

Contributory Negligence states—Like nc

Think all or nothing recovery for plaintiffs, depending of if they were negligent themselves. Butterfield v. Forrester (1809)—Foundational case for contributory negligence Facts: A violently horse back riding man collided with a branch obstructing the road, at nighttime. Rule: If a plaintiff does not use common or ordinary care and is injured at the fault of their own they cannot recover in an action for negligence Harris v. Meadows (Ala. 1985) Facts: In an automobile accident, the plaintiff saw the defendant trying to turn left, and tapped her breaks and swerved a little. Rule: Where a plaintiff fails to act reasonably under the circumstances to avoid injury they are barred from recovery under the contributory negligence, common law, rule. Holding: The plaintiff failed to act reasonably by failing to "mash her breaks" to avoid the collision and therefore she failed to act reasonably and is barred from recovery due to her own negligence. ***In this case, the defendant was likely injured as a result of the collision, which likely had an effect on the courts decision to apply the contributory negligence rule. Also consider, that there were not a whole lot of facts to establish that the defendant was negligent. ***In order to apply the contributory negligence rule, the defendant must establish duty, breach, cause, and harm.

Employee's v. Independent contractors

Throop v. F.E. Young & Co. (Az. 1963) Facts: while driving on a highway an employee for the defendant struck the decedents vehicle killing both of them. The employee was likely an independent contractor. Rule: A principal is not liable for the negligent acts of an agent who is not an employee of the principal. To determine whether the doctrine of respondeat superior applies the court examines the following factors: -the extent of control over the details over the employees work -whether the servant is engaged in a distinct occupation or business -who supplies the instrumentalities, tools, and place of work -the employees method of payment **ROLE IN THE ABOVE RULE IS ACTUALLY SERVANT

Negligent Enabling

Turner v. Jordan (Tenn. 1997) Facts: a psychiatric patient attacked a nurse. The nurse and her husband filed an action against the patients attending physician. Rule: The conduct of a negligent defendant should not be compared with the intentional act of another in determining comparative fault where the intentional conduct is the foreseeable risk created by the negligent tortfeasor. Reasoning: the psychiatrist did owe the nurse a duty of reasonable care because he knew or should have known that his patient posed an unreasonable risk of harm to a foreseeable, readily identifiable, 3rd party.

Informed consent

Where a medical patient would not have engaged in a given treatment if they had known of potential side effects of which they were unaware at the time they decided to have the surgery. Scott v. Bradford (Okla. 1979) Facts: Plaintiff's physician advised her that she had fibroid tumors on her uterus, and she was referred to the defendant surgeon. She signed a consent form for a hysterectomy. Following surgery she had issues with incontinence and found out she had urine leaking from her bladder into her vagina. 3 additional surgeries fixed the problem. Rule: Consent for medical treatment, in order to be effective, should stem from an understanding and decision made on adequate information about the treatment, the available alternatives, and the collateral risks. **this is a minority rule: When a plaintiff sues under the theory of informed consent they must allege and prove: ———>(1) defendant physician failed to inform her adequately of a material risk before securing her consent to the proposed treatment; ———>(2)if she had been informed of the risks she would not have consented to the treatment; ———>(3) the adverse consequences that were not made known did in fact occur and she was injured as a result of submitting to the treatment. -Informed consent imposes a duty on a physician or surgeon to inform a patient of their options and attendant risks. -No consent=battery -No informed consent=negligence -conduct is judged from the standard of a reasonable person under the same or similar circumstances. -There needs to be disclosure of all material risks. Holding: The jury did find that the doctor should have disclosed the risk and were instructed as such but they still found for the defendant, there is no reason to reverse..

Secondary implied assumption of the risk—see powerpoint

Where the injured party consented to assume the risks either through conduct or actions. There are two categories: -Primary implied assumption of the risk: where the defendant has not duty to protect the plaintiff from specific risk because the plaintiff has knowingly and willingly accepted risks inherent to the activity. Remember the Flopper case where the whole point was to have fun while being thrown off of the ride. Completely bars recovery by the plaintiff. -Secondary implied assumption of the risk: where the defendant is negligent or does owe a duty to the plaintiff, but the plaintiff knowingly and voluntarily assumes the risk anyway—this is an affirmative defense. This doctrine permits recovery in some circumstances where the plaintiff acted unreasonably in regard to the risk, and depending on the jurisdiction and if it applies qualified or unqualified. The elements are: ———>Actual knowledge of the danger; ———>appreciation of the gravity of danger; and ———>voluntary exposure to the danger—both actual and subjective; ask ———>whether the exposure was reasonable or unreasonable? ———>does the Jurisdiction apply qualified or unqualified secondary implied assumption of the risk.

Wrongful death and survival claims

Wrongful death claim: provides for recovery by certain statutory beneficiaries—typically immediate family—to compensate for their losses associated with the death of their loved ones. They cover harm to others beginning at the moment of the victims death. A lot of these statutes only cover pecuniary—or monetary losses (the issue is often litigated) Survival claim: is owned by the estate of the decedent and provides for recovery for damages suffered by the decedent from the time of the tort, until their death; the damages might include pain and suffering as well as medical expenses and lost wages.

Constitutional privilege

protects members of the press who publish "opinion" material about public officials, public figures, or persons of legitimate public interest New York Times v. Sullivan—376 U.S. 254 (1964) -Public officials must prove the falsity of the publication AND that the speaker made the publication with "ACTUAL MALICE." Actual malice is defined as the speaker published the comments about the public office with knowledge that the publication was false OR with reckless disregard as its truth or falsity. "Reckless disregard" amounts to actual malice if, at the time of the publication, the publisher "in fact entertained serious doubts as to the truth of his publication. -In 1974 in Gertz, the Supreme Court extended this rule Public Figures. Public figures must prove actual malice because they can more easily counter defamation through effective communications channels. A private person doesn't ordinarily have access to those channels.

The professional standard of care

the legal standard used in medical negligence cases to determine whether health professionals and entities have adequately discharged their responsibility to provide reasonable care to their patients