Torts II

Peterson v. Used Chevy Dealer

SL does not apply to the seller of used products where there is no showing of a defect that was created by the seller or that it was present when it was sold

Henningsen v. Bloomfield Motors, Inc.

Under modern marketing conditions, when a manufacturer puts a new automobile in the stream of trade and promotes its purchase by the public, an implied warranty that it is reasonably suitable for use as such accompanies it into the hands of the ultimate purchaser -removes privity requirement

Special damages

some kind of pecuniary loss

Landowners are not liable for harm done by wild animals on their property unless

they reduce the animal to possession or control or introduce non-indigenous animal into the area.

Rationales in support of SL

-Consumer may find it too difficult to prove negligence -Incentive to produce safer products -Replace product if there's a defect -Better position to protect from harm by insuring against it and share the cost -Warranty arguments -Cost should be placed on the one who could have prevented it

Manufacturing defects cont.

-Injury causing product may be measured against the same product as manufactured according to the manufacturer's standards -If the product used by P fails to conform to those standards or other nits of the same kind, it is defective step 1: Identify the flaw in the product Prove that the flaw caused the harm Trace the existence of the flaw to the time of the sale of the defective product by the defendant Negate other sources of the flaw, such as maintenance or misuse

What constitutes special damages:

-Loss of a marriage -Loss of hospitable gratuitous entertainment -Preventing a servant or bailiff from getting a place -Loss of customers by a tradesman -Whenever a person is prevented by the slander from receiving that which would otherwise be conferred upon him, though gratuitously

Pre-emption: Have to establish 3 things

1. FDA has a specific federal guideline 2. State requirement regarding the same device 3. Are those state claims different than, consistent with, or in addition to the federal guidelines

Fencing Out Statutes

As the country became more settled, these statutes were enacted which indicated if P had fenced his land properly and the D's animals broke through the fence, D was strictly liable. -Otherwise, D was liable only for negligence.

Misrepresentation

One engaged in the business of selling chattels, who by advertising, labels, or otherwise, makes to the public a misrepresentation of a material fact concerning the character or quality of a chattel sold by him is subject to liability for physical harm to a consumer of the chattel caused by justifiable reliance upon the misrepresentation, even though it is not made fraudulently or negligently, and the consumer has not bought the chattel from or entered into any contract relation with the seller

Vicarious Liability

One party is found liable for the act of another party, even if there not negligent -Makes one L for another's wrongful conduct, due to a "special relationship" between them oEx. Employer/Employee relationship -Used because there is an innocent third party and you do not want them to be without a remedy oNot necessarily deep pockets, but fairness Control - Its all about control. You have control of the tortious actor.

Rest. 2nd sec. 402A

One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer to his property if -The seller is engaged in the business of selling such a product and -It is expected to and does reach the user or consumer without substantial change in the condition in which it is sold Defendant is held strictly liable when: Defendant is in the business of selling the product; Defendant in fact "sells" the product; At the time the defendant sells the product, the product is in a defective condition; The defective condition renders the product unreasonably dangerous; The defect is the actual and proximate cause of harm to the plaintiff. Defects included: i. Design ii. Manufacturer iii. Failure to Warn c. Not applicable in Virginia and NC i. Don't allow recovery under SL

Fencing In Statutes

Owners were required to fence or restrain their animals. -Owners were strictly liable for failing to do so.

Respondeat Superior Policy Reason

P should not go without compensation because the D can't pay Force the enterprise to internalize the losses to others caused by its operations. This will provide an incentive to take safety precautions. Spread the losses via insurance and the costs of the enterprise's goods and services.

Single publication rule

Publication of a book, periodical, or newspaper containing defamatory matter gives rise to but one cause of action for libel which accrues as the time of the original publication and that the statue of limitations runs from that date

There is a property interest in one's:

Reputation

Identification

Test is whether a reasonable person reading the book would understand that the fictional character therein pictured was in actual fact the P acting as described

Strict liability

The defendant must pay damages although the defendant neither intentionally acted nor failed to live up to the objective standard of reasonable care that traditionally has been at the root of negligence law.

Bailor

a person who retains ownership of goods but entrusts possession of them to another under a bailment Law argues that you have the right to control the driver of your automobile even if you really don't rationally have that ability. •To excuse the bailor from liability the baillee must be acting out of the consent of the bailor so that the Bailee drove the car without the bailor's knowledge and contrary to the owner's explicit instructions. o VL and a Sub-Bailee's • To excuse the owner, the sub-bailee must drive the vehicle without the bailee's permission under circumstances that might be conversion or theft. The relationship even exists where the bailor expressly forbade the baillee from permitting another person to drive. 2) CL rule altered by decision and by statute with respect to automobiles a) Presumption that Owner Controls the Vehicle i) Law argued that you had the right to control the driver, but you really are not

Under SL, Harm has to result from

that that would make the activity abnormally dangerous in the first place oSL almost always involve the use of property •User of the gun makes it dangers, not the gun itself oEx. Rare chemical that's not really that valuable to society then you protect society o D. was not L because the thing that makes blasting ultra hazardous is the risk that property or persons may be damaged or injured by coming into direct contact with flying debris, or by being directly affected by vibrations of the earth or concussions of the air o Moderate vibration and noise was no more than a usual incident of the ordinary life of the community • These are not the kind of risks which make blasting ultra hazardous

Rest. 2 -> 3:

the decision to abandon the single definition approach and to replace it with separate functional rules for manufacturing defects, design defects, defects due to failure to warn was most fundamental change

Indemnity happens when:

the employer pays but the employee can pay, sues employee for complete award

Public officials

The test was held to be whether the position in gov. has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all gov. employees The public official or public figure is entitled to less protection from defamation: They have greater opportunities for "self help," because they have greater access to the media for correcting falsehoods. They have assumed the risk, in a sense, by seeking public office or public notoriety and the scrutiny that goes with them.

Rule of Innocent Parties

Two innocent parties, the law protects the most innocent party, and typically that is the plaintiff. Employer is the other innocent party, has done nothing wrong, at least not primarily, but his association or relationship allows for his status to change (takes backseat to more innocent party).

Ultra-hazardous v Abnormally Dangerous

Ultra-hazardous activities • are so inherently dangerous that the conductor of the activity is absolutely liable no matter where the activity occurs. (RARE) o Abnormally dangerous activities • do not rise to the level of absolute liability. Location and character of activity is considered. ( E.G. shooting a gun is not abnormally dangerous on a deserted island. It is abnormally dangerous when done on Time Square) • Specific Harm Requirement o One may recover for only the type of harm that makes the activity ultra-hazardous or abnormally dangerous. • Blasting is not abnormally dangerous because it might make Minks eat their kittens.

Retailers and wholesalers

Under 402A, all sellers in the direct chain of marketing from the manufacturer to the consumer can be liable for injuries caused by defective products. This is true even if the intermediate sellers had no responsibility for the defect, as where the goods are simply put on the shelf and sold without inspection or alteration. Assuming that the defect originated at the manufacturer, the intermediate sellers would have an indemnity claim against the manufacturer if they are held liable and pay damages On the other hand, retailers and wholesalers might be directly responsible for creating a defect, as by improper preparation or inspection of the product.

Negligent Entrustment

a)Differs from VL because you actually do something tortuous b)You lend something to someone that you should have known was likely to use the loaned object to harm other c)Ex. Owner knew driver was frequently drunk, or father funded purchase of automobile for son whom he knew to be an irresponsible driver

Riparian Rights to water

b. If your on land that has a natural barrier such as water, river o No absolute rights because there is competing use of the water o Three theories • 1) Natural Flow theory • Right to have the water flow as it was wont to flow in nature, qualified only by the right of each riparian owner to make a limited use of it • 2) Reasonable use theory (Majority) • Most flexible - right to be free from unreasonable uses that cause harm to the proprietor's own reasonable use • 3) Prior Appropriation rule (TX) • First in time first in right o You don't have to be a riparian owner to use the water • TX all water belongs to state o Uses appropriation system with a component of reasonableness

Average reciprocity of advantage

give up some rights for the greater good of the community •As an individual of society you give up some rights for the benefit of society as a whole but in the long run you benefit as well

Warnings Defects- Anderson case

have to have required knowledge, actual or constructive, of potential risk of danger before imposing SL for a failure to warn, evidence that the particular risk was neither known nor knowable by the application of scientific knowledge available at the time of the manufacture and/or distribution

What is the State of the Art

"State of the art" judges a product design as of the time of its manufacture, with the technology then available. Later technological change that makes it possible to design out danger does not make previously acceptable designs "defective." Some courts adopt a negligence standard for design defect by considering, under the phrase "state of the art," such matters as the foreseeability of the harm, industry custom, and the commercial availability of safety features.

Daly v. Gen Motors

-A system of comparative fault should be and it is hereby extended to actions founded on strict products liability -Court abolished assumption of the risk as a sole defense i. Merged it into comparative fault ii. Court is trying to bring them together iii. Would allow for the complete denial of a remedy, but it is combining them and reducing the amount they P will receive instead of completely barring iv. Separate defenses but it's about how you treat them v. Reduction in damages, not complete bar

O'Shea v. Welch

-An employer is only liable for injuries caused by an employee acting within the scope of his employment -An employee is acting within the scope of his employment when he is performing services for which he has been employed or when he is doing anything which is reasonable incidental to his employment -Test: whether such conduct should have been fairly foreseen from the nature of the employment and the duties relating to it

Going-and-Coming rule

-Course of employment does NOT include an employee's daily commute -An employee is outside the scope of his employment while engaged in his ordinary commute to and from his place of work -Employment relationship is suspended from the time the employee leaves his job until he returns -Not rendering services to his employer during commute -Exceptions: When an employee endangers others with a risk arising from or related to work-Where the employee is given a task to complete for the employer on the way to or from work. Exception: Where the travel to the place of work creates a special hazard or involves special risks, or is part of the job.

Appropriation- P has to prove:

-D used P's name or likeness -D used it for his own purpose or benefit, commercially or otherwise -P suffered damaged -D caused the damages

2 things to look at for failure to warn

-Didn't warn at all (Did it tell me what I needed to be wary of) -How the warning was given (How was it presented) Thus, not only must the manufacturer discover the hazard, but the warning given must be adequate to inform the public about the danger.

Foreseeability test

-Employee's conduct that is neither startling nor unusual -Ask whether the actual occurrence was a generally foreseeable consequence of the activity -In the context of the particular enterprise an employee's conduct is not so unusual or starling that it would seem unfair to include the loss resulting from it among other costs of the employer's business

P must prove

-False or unprivileged publication by letter or otherwise -Which exposes a person to distrust, hatred, contempt or obloquy -Or when has the tendency to injure such a person in his office occupation, business or employment -If the publication is false and not privileged, and is such that its natural and proximate consequence necessarily cases an injury to a person in his personal, social, official, or business relations or life, wrong and injury are presumed and implied and such publication is actionable per se

Civil Rights

-Fundamental right being denied -There has to be a corresponding remedy

A warning should

-Get user's attention -Explain the hazard -Show the user how to avoid the risk

Difference between greenman and 402A?

-Greenman spoke merely of a defective product and 402A speaks of a defective condition that is unreasonably dangerous to the consumer -Risk utility test in 402A

Horizontal Privity

-HP is the relationship between the parties outside the chain of distribution. i. Family members ii. Guests iii. Employers of the purchaser iv. Innocent bystanders v. Other injured third parties • Purchaser→ User (Family member, guest, or EE)→ Person ultimately harmed by product→ Innocent bystander

Employer not liable for independent contractor

-He is the only one liable, not the one who retains the services -The one who takes on the risk is himself, not the one who hires him General Rule: A principal is not vicariously liable for the negligence of an independent contractor. Note: If the principal does attempt to control the work, this may result in liability because the principal in fact acted without due care in its supervision of the contractor.

NYT v. Sullivan

-Holding: the constitution delimits a sate's power to award damages for libel in actions brought by public officials against critics of their official conduct -The rule of requiring proof of actual malice is applicable In order to recover for defamation, a public official must prove the statement was made with "actual malice." "Actual malice" means that the defendant knew the statement was false or made it with reckless disregard of whether or not it was false. "Actual malice" must be shown by clear and convincing evidence.

Who can maintain a cause of action for defamation

-If D libels a large group, no individual member of the group has standing to bring a claim (opens flood gate of litigation) -If the publication defames each member of a small class, any member of the class can sue. -If the libel defames some but not all of the small group, all may maintain a cause of action; all are treated as if they were defamed -Even here the group is large, a member of the group may have a cause of action if the facts point to one person's having been defamed o 3) Numerical approach • 25 or less would be successful • Some jurisdictions use "intensity of suspicion" test

Duty of manufacturer to foreseeable users

-Includes warning of the risks inherent in the use of that product and not placing defective products on the market -Breach these duties- SL -Reflects policy that by marketing its product, manufacturer assumes responsibility to members of the public who are injured because of defects in that product

Trespassing Animals

-Initially, courts found landowners liable when their cattle trespassed on P's land. -The law developed such that the owner of an animal likely to roam and do damage was strictly liable for its trespasses. These animals were of the barnyard type, e.g. fowl, horse, sheep, hogs, etc. -Historically, dogs and cats were not included as they were deemed not to do a lot of harm; but the reality is that because of common usage, an exception was made for them.

Malicious Prosecution

-Institution of a civil or criminal proceeding against the accused -Termination of the proceeding in P's favor -P must be exonerated -Absence of probable cause -Malice -Damages Institution of criminal proceedings. Lack of probable cause to initiate the proceedings. Malice. Termination of the proceedings in favor of the accused. Damages.

Types of qualified privilege

-Interest in the publisher -Interest in others -Common interest of the publisher and the recipient -Comm. made by acting in the public interest -Fair comment on matters of public concern

Intrusion tort

-Intrusion into a private place, conversation or matter -In a manner highly offensive to a reasonable person Intrusion involves the invasion of a person's private space or affairs. This is the privacy cause of action that can be invoked against spying, eavesdropping, snooping, breaking and entering, and similar invasions of a person's home or office.

EXCEPTION to the rule of strict liability for trespassing cattle and other for straying from highway on which they were being driven:

-Lands adjoining the highway were a servitude for animals being driven to market. -This did not apply to other lands where the cattle strayed from the permitted land to land not part of the servitude.

Design Defect Test

-Manuf. makes a product -It's dangerous -Subject to liability to someone who it expects to use or are in danger by it -Based on failure to reasonable care in adopting the design Consumer Contemplation (or Expectation) Test: A product is defective if it is dangerous to an extent beyond what would be expected by the ordinary consumer. Risk-Utility Test: Balances the dangers and the benefits of the product design

MIPS for special damages

-Mental anguish and suffering -Impairment of reputation -Personal humiliation -Standing in the community

Slight deviation rule

-Must be determined whether the employee was on a frolic or a detour -frolic (abandonment of ER business while in pursuit of EE own personal business) -detour (slight deviation from ER own business for EE own reasons) -Pure frolic, employer not liable The employer is vicariously liable for torts committed during detours, but not those committed during frolics.

Approaches for determination of the meaning of defect in design cases fall into 4 general categories

-Negligence risk-utility analysis: focuses upon whether the manufacturer would be judged negligent if it had known of the product's dangerous condition at the time it was marketed -Compares the risk and utility of the product at the time of trial -Consumer expectations about the product -Combines the risk utility and consumer-expectations tests

Slander per se

-No special damages have to be proven for the four below -CLUB (common law) a. Crime (major, One of moral turpitude) b. Loathsome disease c. Unchaste (lacking in moral, sexually immoral) d. Business, trade, profession, or office A statement likely to injure the plaintiff in his or her trade, business or profession. A statement accusing the plaintiff of having a loathsome disease. A statement accusing the plaintiff of a crime that either carries a serious punishment or involves moral turpitude. A statement accusing the plaintiff of serious sexual misconduct.

Situations where retaining an independent contractor will not insulate the party from vicarious liability:

-Nondelegable duties -Apparent authority -Inherently dangerous activities -Illegal activities Ex. Dealer hired reposseser who trespassed to repossess van, dealer was found VL -Negligence in the selection of the contractor An employer is subject to liability for physical harm to third persons caused by his failure to exercise reasonable care to employ a competent and careful contractor (a) to do work which will involve a risk of physical harm unless it is skillfully and carefully done, or (b) to perform any duty which the employer owes to third persons. Duties imposed by public authority, duty to exercise care, general contractor cannot delegate how a building is to be structured

Sanders v. ABC Rules:

-One has a right to be free from intrusion when one has a reasonable expectation of privacy -Right exists even in a non private place -Where a reasonable expectation of privacy is violated depends on the exact nature of the conduct and the surrounding circumstances

Secondary publishers (vendors)

not liable if they had no knowledge and has no reason to know that there was defamatory content

Substantial truth

not true in every respect, but true in those aspects that tend to support the alleged defamatory allegations -can sometimes be a defense?

Public figure may not recover for the tort of intentional infliction of emotional distress without showing:

that the publication contains a false statement of fact which was made with knowledge that the statement was false or with reckless disregard as to whether or not it was true

Private nuisance

the intentional, substantial, unreasonable interference with one's use and enjoyment of land by a non-trespassory invasion, such as smells, light, smoke, dust, noise, or other forms of "pollution." The typical nuisance case involves the problem of conflicting land uses.

If the seller adopts the manufacturer's warranty:

the seller is liable for breach of warranty.

Self-help to Abate a Nuisance

-One may use self help only if one is affected by the nuisance -A private person may abate a public nuisance only when it causes or threatens special damage to him apart from that to the general public -An honest but mistaken belief will not justify the action -The privilege extends to the use of reasonable force according to necessities of the situation and may extend to the destruction of valuable property -Unless the wrongdoer is already aware and the demand would be futile, the actor, if time permits must notify the wrongdoer of the existence of the nuisance and demand removal of the condition

Independent contractor

-One who engaged to perform a certain service for another according to his own methods and manner, free from control and direction of his employer in all matters connected with the performance of the service except as to the result thereof. -Decisive test for determining whether a person is an employee or an independent contractor is the right to control the physical details of the work oYou don't control the actions of the contractor so the key issue of control is absent

NYT Policy

-Open ones self up to public criticism -A public official can't have thin skin -Citizens have a right to question actions of a public official -Marketplace of ideas -Avg. recirpicity of advantage -Freedom of speech is paramount -Don't want self-censorship -False statements will ultimately out? the truth

Rules for opinion

-Opinion does not receive an absolute or additional const. protection or immunity from liability for defamation -A statement on matters of public concern must be provable as false before there can be liability under state defamation law where there is a media D -Statements that cannot be reasonably interpreted as stating actual facts about a person are protected (Nobody would believe them to be true) -Where a statement of opinion on matters of public concern reasonably imply false and defamatory facts regarding a public official or figure, the P must show that the statements were shown with actual malice -Where the statement involved a private figure on a matter of public concern, P must show that the false connotations were made with some level of fault as required by Gertz

False Light

-P must prove that the D published false facts about the P that a reasonable person would object to -D must communicate the facts to a substantial number of people -Here, the emphasis is upon injury to one's emotional and mental suffering, not damage to one's reputation

Elements for intentional spoliation of evidence

-Pending or probable civil litigation -D's knowledge that litigation is pending or probable -Willful destruction of evidence -Intent to interfere with P's prospective civil suit -A causal relationship between the evidence destruction and the inability to prove the lawsuit -Damages

Public concern

-People in society would have a concern about the info be said -Whether or not the impact is broad on society, if not then no public appeal -Limit on what the speaker can say and about whom

Family car doctrine

-Places liability on the owner of a vehicle for negligent operation by a person using the vehicle with the express or implied consent of the owner for purposes of the business or pleasure of the owner's family. -To be liable, the head of the household need not own the vehicle, but must furnish it for the use, pleasure, and business of himself or a member of the family -The owner of an automobile is held vicariously liable when the car is negligently driven by a member of the immediate household -Assumption that the driver is implementing a family purpose even if the driver is only using the automobile for his own pleasure of convenience -Car must be driven with permission of the owner but this may be inferred from very general circumstances -In general limited to cars 1) Omnibus Clause a) Everyone is covered under this b) Ex. A maid goes to pick up the kids from school

Design defect or failure to warn

-Product has been manufactured as intended and cannot be defective by comparison to a standard set by the manufacturer -Standard to measure reflects policy that some products are so dangerous that they create a risk of harm outweighing their usefulness -Defect is a conclusion rather than a test to reach that conclusion

4 elements public disclosure of private facts

-Publicity -Private facts -Offensiveness -Absence of legit concern he defendant must publicize; some private information about the plaintiff. The disclosure of the private information must be highly offensive to a reasonable person. The information disclosed must not be a matter of legitimate public concern

Rest. 3rd Product Defectiveness

-Sec. 1: one engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect -Sec. 2: three categories of defects Manufacturing Defects Design Defects Warning Defects

Right to farm statutes

-Similar to coming to the nuisance -Farms and other ag activities are immune to nuisances if it existed for a specified period of time -Farms are being effected by urbanization

Libel per quod

-Special damages -Written form of slander without being libelous on its face -One special damages are proven, it is treated as libel per se Colloquium Inducement Innuendo

Have to show for innocent misrepresentation:

-Specific promise -Reliance -Breach -Causal link between breach and injury

Gertz Case

-State may not permit recovery presumed or punitive damages unless liability is based on the showing of actual malice -2 types of public figures ~Vortex public figures: One who achieves the status through fame and notoriety ~Limited purpose: controversy draws itself around the person -A state must apply the NYT standard in a suit by a public person, but it is not requires to do this in a suit by a private person but is entirely free to do so if it wishes No liability without fault. Other than that the states may define the proper standard. (So what is the minimum level of fault?) No presumed or punitive damages unless the plaintiff proves knowledge of falsity or reckless disregard for the truth. (In other words, the New York Times standard.) Plaintiff may only recover for "actual injury" -- which means what? Not limited to out of pocket loss. Impairment of reputation and standing in the community. Personal humiliation. Mental anguish and suffering.

Radio & Television Broadcasters

-State statutes find broadcasters should not be liable unless they did not act with due care. -Rest § (581) (2) treats broadcasting stations as original publishers.

Generally, P has burden of proving:

-That the product was defective -The defect existed when the product left the hands of the defendant -The defect caused injury to a reasonably foreseeable user

Nondelegable duties

-The duty can be delegated to another, but the responsibility for a negligent failure remains with the owner -Policy: cannot avoid particular responsibilities by retaining someone else to discharge them because of the importance of the duty Malony v. Rath-- brakes failed even though she took to car shop because she had to get brakes inspected in compliance with vehicle code

Factors in determining whether employee has embarked on a slight or substantial deviation

-The employee's intent -The nature, time, and place of the deviation -The time consumed in the deviation -The work for which the employee was hired -The incidental acts reasonably expected by the employer -The freedom allowed the employee in performing his job responsibilities Notes -ER cannot protect himself from L by imposing safety rules or by instructing his EE to proceed carefully -So even if you tell someone not to do something but he does it, there is still an innocent party out there who does not know the rules

Abnormally Dangerous Activities Factors:(need at least two to find Strict Liability but do not need them all. Weigh factors)

-The risk (probability) of harm was great -The harm that would ensue if the risk materialized could be great -Such accidents could not be prevented by the exercise of due care -The activity was not a matter of common usage -The activity was inappropriate to the place in which it took place -Value to the community of the activity did not appear to be great enough to offset its unavoidable risks Ex. Fumigation, using explosives, blasting, excavating, mining - Protect the innocent - Value judgments oAbout either the person or property and weigh that against the activity and the harm that could be suffered, and see which is more valuable

Exception: Republication of materials received from wire services will not subject the publisher to liability if:

-The service is reputable; -D did not know the information was false; -The story itself does not reveal its falsity; -No substantial change was made in (to) the story.

Risk Utility Factors (7+1)

-The usefulness and desirability of the product to the user and to the public as a whole -The safety aspects of the product, the likelihood that it will cause injury, and the probable seriousness of the injury -The availability of a substitute product which would meet the same need and not be as unsafe -The manufacturer's ability to eliminate the unsafe character of the product without impairing its usefulness or making it to expensive to maintain its utility -The user's ability to avoid danger by the exercise of care in the use of the product -The user's anticipated awareness of the dangers inherent in the product and their avoidability because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions -The feasibility on the part of the manufacturer of spreading the loss by setting the price of the product or carrying liability insurance -State of the art 1. Utility of the Product 2. Likelihood and severity of harm from product 3. Availability of substitute products 4,Manufacturer's ability to design out danger 5.User's ability to avoid harm by using carefully 6User's awareness of the dangers, either because of common knowledge or warnings. 7.Manufacturer's ability to spread the loss

Factors as indicative of the high degree of control over physical details of the work:

-Ultimate control over the territorial boundaries of D's route -Set a standard policy that paper deliveries be completed by 6 am -Set policy that all papers were to be held by rubber bands -Customers who were missed by the carrier called D to report it -Complaints concerning the service were lodged with D -New subscribers called D to initiate newspaper service

Continueing criminal proceeedings

. Active participation required. In order that there may be liability under the rule stated in this Section, the defendant must take an active part in their prosecution after learning that there is no probable cause for believing the accused guilty. It is not enough that he appears as a witness against the accused either under subpoena or voluntarily, and thereby aids in the prosecution of the charges which he knows to be groundless. His share in continuing the prosecution must be active, as by insisting upon or urging further prosecution. The fact that he initiated the proceedings does not make him liable under the rule stated in this Section merely because he intentionally refrains from informing a public prosecutor, into whose control the prosecution has passed, of subsequently discovered facts that clearly indicate the innocence of the accused, even though they have the effect of convincing him that this is the fact.

Pleading Defamation

1) Defamatory words- "he burned down his barn 2) Publication to a third party: D spoke words to X 3) Inducement: extrinsic facts, because of which, the words were reasonably understood to convey a meaning that defamed the P 4) Colloquium- a formal allegation that the words were of and concerning P (He, P, burned down his barn) 5) Innuendo- an allegation of the particular defamatory meaning conveyed by the words i. Means the words were understood by X to mean that P burned down his own barn in order to defraud the insurance co) 6) Special damages- only when they are necessary to the cause of action

3 claims which address misuse of the legal system

1)Malicious prosecution -The wrongful criminal prosecution of an innocent D in bad faith 2)Malicious institution of a civil proceeding -Wrongful institution of civil proceedings against a non-liable D in bad faith -Both involve abuse from the inception of the process The Defendant must be actively involved in beginning or continuing the criminal proceeding against the Plaintiff. Any formal institution of criminal proceedings will satisfy this element. 3)Abuse of process -It is misuse in the legal process including deposition, subpoenas and property attachment devices including liens -P can prevail if she proves D acted with improper purpose -Here, the abuse occurs within the litigation process - Policy - Punish a person who misuses the legal process

Voluntary public figure: D must prove

1. P had access to channels of effective comm. 2. P voluntarily assumed a role of special prominence in the public controversy 3. P sought to influence the resolution or outcome of the controversy 4. The controversy existed prior to the publication of the defamatory statement (Very impt prong) 5. P retained public figure status at the time of the alleged info

Goals of strict liability

1. Social utility, stigma 2. Want of due care in negligence, not present in SL 3. If one can eliminate the risk, it is negligence • Main focus is economics and fairness • Should not make a decision based on deep pocket but because it is logical and fair oIf the risk is great, the harm is great, and due care cannot resolve the issue, then you are subjected to SL

Proof: P must be prepared to show

1. That the product that injured P was, in fact, manufactured by D 2. That the product was defective and P was injured as a result 3. That the defect was present in the product at the time of sale and was not introduced by a distributor or installer or repairer

What factors might a court use to determine whether D's use of his or her property is reasonable or unreasonable? • It is a matter of degree determined by the facts and surrounding circumstances. • Some considerations are listed below:

1. The activity is not customary or suited to the area. • 2. The activity causes observable effects that most of us would find disagreeable, whether or not they in fact harm P. • 3. The activity is little value to the D . (Is it of long duration or unremitting)? • 4. The activity is unimportant to society Restatement (Second) of Torts § 826 (a) looks at intentional nuisance in terms of how the gravity of harm outweighs the utility of the conduct.

• What remedies are available when P prevails in a claim for private nuisance?

1. The traditional rule is that where a nuisance has been established, P was automatically entitled to an injunction. (Boomer) • 2. However in Boomer, the court rejected the traditional rule, instead substituting a test which balanced the equities between the parties. • 3. The court deemed the cement factory "socially valuable" because of the revenue it generated and the jobs it created.4. When the court "balanced the equities" it concluded that granting an injunction was greatly outweighed by the harm to the cement plant. There would be a large disparity in economic consequences. • 5. The court fashioned a remedy such that D would pay permanent past and future damages in leiu of receiving an injunction. One can pay for an injunction- (See Spur v. Del Webb) • This means one who comes to the nuisance may nonetheless obtain an injunction if one pays for the injunction. For example, since Del Webb forced Spur to close a business it had operated lawfully until Del purposely developed its retirement housing toward the ranch until it created a nuisance. It had to pay Spur Industries for forcing the closure of its cattle ranch.

A manuf. is liable under a theory of SL if the Ps prove that:

1. Their injury or damage resulted from a condition the product 2. The condition was an unreasonably dangerous one 3. The condition existed at the time it left the manuf.'s control

Product Misuse: Unforeseeable

402A comment h: a product is not defective if it is safe for normal use. Therefore, "Unforeseeable Misuse" of a product leading to injury does not result in strict liability because the product is not defective. Alternatively, if the product was defective, the defect was not the cause of the harm, the misuse was.

Vertical Privity

=VP is concerned with the relationship between the parties in the chain of distribution of goods. i. Manufacturers ii. Distributors iii. Wholesalers iv. Retailers v. Dealers vi. Purchasers • Manufacturer→ Seller→ Distributor→ Wholesaler

What is dafamatory

A defamatory communication is one that would tend to harm a person's reputation in the community. A defamatory communication: exposes the plaintiff to hatred, contempt, and ridicule; impairs the plaintiff's reputation for morality and integrity; or causes the plaintiff to be avoided by others.

CL RULES FOR DEFAMATION

A defamatory statement concerning the plaintiff. Publication of the statement to a third party, who understands the defamatory meaning. Depending on the situation, Plaintiff may have to prove that the defamatory statement caused pecuniary harm. Note: At common law, truth was an affirmative defense, and not part of the Plaintiff's prima facie case.

Both ways test

A driver's negligence will not be imputed to a passenger, unless the relationship between them is such that the passenger would be VL as a defendant for the driver's negligent act Only a master-servant relationship or a finding for a JE will justify the imputation of contributory negligence The only way one can impute contributory negligence if there is a master servant relationship or joint enterprise (vicarious liability)

What is a joint Venture

A joint venture has the same elements as a joint enterprise, but is explicitly a business or profit-making association. A joint venture is distinguished from a partnership by the fact that it is usually for a more limited purpose, and exists for a more limited period of time. In a joint venture, the members of the group owe each other fiduciary duties with regard to the common purpose of the group.

Greenman

A manufacturer is strictly liable in tort when an article he places on the market knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being -Greenman requirements: have to have a defective product, using the product as intended, injury has to result aNot concerned about fault b. Factors i. Defective product ii. Place in the stream of commerce iii. Used without inspection iv. P. did not know of the defect (Can lead to defense) 1. Defenses a. Assumption of the Risk v. Injury/causal connection c. Public Policy i. Looking at cheapest cost avoider, which is the manufacturer

Involuntary public figure

A person who has pursued a course of conduct from which it was reasonably foreseeable at the time of conduct that public interest would arise -Must have been recognized as a central figure during the debate over the public controversy

Rylands Rule

Fletcher, D. and owner of a mill, constructed a reservoir on land over abandoned mines in which Rylands, P., was building mines toward and the reservoir flooded the abandoned mines and also Rylands joining mines rule: The person who for his own purposes brings on his lands and collects and keeps there any thing likely to do mischief if it escapes must keep it in at his peril and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape • L for all consequences of that escape • Non-natural use of property • No SL for damage done when naturally using your land Strict liability is imposed when one: Makes a non-natural use of the land; "non-natural" later becomes "abnormal." In the course of the non-natural use brings or collects on the land something not there in its natural state; Landowner is engaging in an activity. This material escapes from the land and causes injury to neighboring land and its possessors. It was dangerous! Abnormal + Dangerous + Activity No VL in Rylands (Prof. Moore does not agree) • Either demonstrate that it is a nondelegable duty or that he negligently hire IC

Product Misuse: Foreseeable

Foreseeable misuse imposes on the manufacturer a duty to protect the user. The manufacturer may have a duty to design the product to avoid harm from the misuse. Example: Automobile crashworthiness. The manufacturer may have a duty to warn against the misuse. Example: Overdose warnings on medications.

Dun & Bradstreet: A New Balance

Gertz was originally thought to apply to all defamations of private individuals. In Dun & Bradstreet, the court emphasized that the defamation was not only about a private individual, but in addition involved a matter of private not public interest. Because only a matter of private concern was involved, the court held that presumed and punitive damages could be awarded even without a showing of "actual malice"

PETA v. Berosini

Highly offensive to reasonable person—FACTORS: Degree of intrusion Context, conduct, and circumstances surrounding the intrusion Intruder's motives and objectives Setting into which intruder intrudes Expectations of those whose privacy is invaded

Greenmoss Case

Holding: permitting recovery of presumed and punitive damages in defamation cases absent a showing of actual malice does not violate the first amendment when the defamatory statements do not involve matter of public concerns

Philadelphia Newspapers v. Hepps

Holding: where a newspaper publishes speech of public concern, a private figure P cannot recover damages without also showing that the statements at issue are false

402B

§402 B looks at innocent misrepresentation: • Best tools to use for a ∏ • Not talking about fraudulent, or negligent misrepresentation. • Pursue strict liability claims with warranty • SL Elements o ∆ makes a promise • Must be a fact and material o Specific promise o Reliance, although now reliance is presumed/implied o Breach of that promise o Causation btw injury and warranty.

o 4 General Categories for the meaning of "defect" in design cases

• 1) Negligence Risk-utility analysis • Merely a detailed version of Learned Hand test • 2) Compares the risk and utility of the product at the time of the trial • 3) Consumer expectations about the product • 4) Combines the risk-utility and consumer-expectation tests • Risk utility favors the mfr • If using risk utility you would argue that utility outweighs risk because this product had been used for twenty years o (4) 402A cautioned that products whose inherent characteristics made them dangerous were not to be considered "unreasonably dangerous" • Ex. Knife

o Factors- objective verifiability, balancing test Private Nuisance

• 1) The Π has to prove that his loss is financially large • 2) Π has to prove that there is observable physical damages to their premises • 3) Π on the land suffers observable mental harm or anguish • 4) Π must prove that it would be costly or difficult for the Π to avoid the harm • 5) Harm is of long duration or unremitting • 6) Coming to the nuisance: consider if Π has come to the nuisance

o 4 Basic Social Policy Reasons for design defect and liability

• 1) Those who are injured by a defective product should be compensated for there injuries • 2) Manufacturer can most efficiently distribute costs of injuries • 3) Mfr does not have to be insurer of the product • 4) P. must have to prove that something is actually wrong with the product which is dangerous or defective

Holliday v. Bannister (JE)

• Father and son are engaged in JE while together on a hunting trip • Holliday II, Court emphasizes the need for a JE to have a "community of pecuniary interest" • Court is making it clear that you look at this business or commercial interest

How do we determine substantial interference?

• It cannot be de minimus, meaning, it cannot not be minor annoyances. The law does not generally concern itself with trifles. • The law of nuisance does not protect those who are hypersensitive.

How does the Rest. determine "gravity" of harm?

• It considers 5 factors: • 1. Extent of harm-(degree & duration). • 2. Character of the harm-(physical damage or personal discomfort). • 3. Social value of P's use and enjoyment. • 4. Suitability of the invasion to the character of the locality. • 5. Burden of P to avoid the harm.

PVN Nuisance per se

• Nuisance per se (at law): An act, occupation or structure which is a nuisance at all times and under any circumstances, regardless of location (unlawful activities).

Policy for VL

• Policy Benefit - If you gain from the actions of another then you should pay for when the costs of your gain are externalized oInnocence - When neither party is an outright wrongdoer, it is better to protect the more innocent party by imposing liability on an employer oAbility to Spread Costs •Employers have deeper pockets to compensate an injured party and are able to get insurance to protect themselves.

safe harbor rule

• Protects if you write something in a context in which it should be protectable ...not applicable if you write about a real person falsely

more summing up

• SL does not apply to a seller of a sued product where the P. cannot demonstrate that there was defect in the product at the time the product left mfr hands or that the defect was created by the used product seller o Have to have some ability to put pressure on the mfr to make the product safer o When talking about used products, you cannot hold someone L if they did not create the defect or knew or should have known o 402A • Have to be in business of selling the product o Rest. 3rd • Limit liability • Must be engaged in the business of selling • Ex. Garage sell o Could be L o "As is" or "Without fault" • Split in jurisdictions about whether this will resolve L • Moore thinks this shouldn't work

Fair comment Rule

• Try to create a fair balance between the statements that are given and the manner in which they are given • Factors • Public Concern • True facts • Actual opinion of person who said it • Not made to cause harm o Couching it in terms of your opinion doesn't remedy the situation b/c you are suggesting that there are some facts underlying your opinion. o Privilege only applied to expression of opinion, not a false statement

- Implied Warranties of Fitness for a Particular Purpose

• When the seller has reason to know of any purpose for which the goods are required and the buyer is relying on the seller skills and judgment to select and furnish the goods, there is unless excluded or modified an IW • Reliance on seller's skill or judgment o Seller must know the purpose the buyers is using it for and that the buyer is relying on his expertise o Issue of L looks to the relationship as to where the product starts and where it ends up vertical and horizontal privity for this kind of warranty

VL and Intentional Torts

• When they are reasonably connected with the employment and so within its scope • Principal is liable for punitive damages only if the principal authorized or ratified the act, was reckless in employing or retaining the agent, or the agent was employed in a managerial capacity and was acting in the SOE (scope of employment). Evidence of fault by the employer itself must be shown The employer is vicariously liable for the intentional torts of employees if: The tort is in the scope of the employment and in furtherance of the employer's business; and The tort was foreseeable in view of the nature of the employment. Some courts impose vicarious liability if the tort occurred during the performance of the employee's duties for the employer.

How does the Restatement determine utility of D's conduct:

It considers 3 factors: • 1. The social value of D's conduct. • 2. The suitability D's conduct to the character of the location. • 3. The impracticability of preventing or avoiding the interference. See Rest (Sec. ) of Torts § 828.

Libel

Libel originated as sedition against the government, usually by pamphlet. It was associated with printed defamation.

The MacPherson Case:

MacPherson v. Buick Motor Co. was the beginning of the end for the privity requirement in negligence actions. Under this case, the "imminently dangerous" exception swallowed the rule when the court held that a product is a thing of danger if it is foreseeable that the product is likely to cause injury if negligently made.

Meaning of malice

Making a statement knowing it is false. Making a statement with reckless disregard for whether it is false: recklessness requires more than lack of care. recklessness requires proof that the publisher in fact entertained serious doubts about the truth of the statement. in writing In order to be "malicious" the quotation must materially change the meaning of the quoted statement.

The process began with New York Times v. Sullivan.

Many of the common law standards of liability have been changed by the intervention of federal law. Federal law intervened to protect first amendment interests.

The most common types of breach are:

Negligence in manufacturing the product. Negligence in inspecting or testing the product (by any party with a duty to do so). Negligence in the advertising or sale of the product, typically a problem of failure to warn about dangerous attributes of the product. Proof of breach, especially in manufacture, was often difficult.

Appropriation

One who appropriates to his own use or benefit the name or likeness of another is subject to liability to another for invasion of privacy Appropriation involves the use of plaintiff's name, likeness, or identity for the user's benefit. Appropriation is based on the idea that a person's identity may have a distinct value that should be protected from exploitation without permission. Note: The use of the plaintiff's identity is often for commercial purposes, but need not be. What is required for the common law tort is the appropriation of the plaintiff's identity to advance some purpose of the defendant.

Apparent Authority (also Apparent agency or Agency by estoppel)

One who expressly or impliedly represents that another party is his servant or agent may be held VL for the latters negligent acts to the extent of that representation • Even if the negligent party is a IC or even if there is no employment or contractual relationship o Allows an injured party who reasonably relies on the representation to hold the party who made the misrepresentation liable o TX follows Apparent Authority

Intrusion upon seclusion

One who intrudes, physically, or otherwise upon the solicitude or seclusion of another or his/her private affairs or concerns is subject to liability to the P for invasion of privacy, if the intrusion would be highly offensive to the reasonable person

Manufacturing Defect

P has to prove that the product deviated from the seller's design or from the seller's other products of the same design, not what specific conduct of the manuf. led to that defect A flaw in construction that causes the product to depart from its intended design

injunctions for nuisance

Plaintiff must first demonstrate that a nuisance exists. Plaintiff must then satisfy the requirements for equitable relief: Damages are not an adequate remedy, and Irreparable injury will occur if no injunction is granted. In practice, this will require that the defendant's conduct be both intentional and continuing.

CL SL on defmation

Plaintiff must show that the defendant published (at least negligently) a defamatory statement about the plaintiff. The statement was presumed to be false. Plaintiff did not have to prove that the defendant was aware that the statement was not true, or even that the defendant was negligent with regard to its truth or falsity. In this sense, liability was strict: If the statement was false and defamatory, defendant was liable. Plaintiff also had no burden to show that the defendant should have been aware that the statement referred to the plaintiff. Here again, liability was strict. Finally, if the defamation was libel or slander per se, plaintiff did not have to prove actual monetary loss. Injury to reputation and resulting damages were presumed.

Keys to Stict Liability in Abnormally Dangerous Activity

Primary Keys oIf the risk of harm can be diminished through the use of due care then there is not cause for strict liability. The correct standard for judging avoidable harm is negligence. Causation o П must prove that the Δ's abnormally dangerous activity was the proximate cause of the damage suffered.

Public nuisance Remedy

Private remedies are available when a person has suffered "particular harm": harm different in kind from that suffered by the general public from interference with the public right. Typical examples of "particular harm" include Personal injury. Damage to or loss of value of land. If the Public Nuisance also interferes with the use and enjoyment of land, the possessor of the land can also bring an action under a private nuisance theory.

Theories of PL

Products Liability deals with the problem of the liability of suppliers of products to users and others for losses caused by some defect in the product. Three theories of recovery are generally used to attempt to impose such liability: Negligence, Breach of Warranty, and Strict Products Liability - contract, who suffers physical harm caused by the chattel - Most expansive area of tort law

Public Nuisance examples

Public rights protected include: public health (pollution of water supply, malarial swamp). public safety (vicious dog). public morals (crack house, gambling, etc.). public peace. public comfort/convenience (blocking a public street, smoke, dust, vibrations).

Publication of Private Facts

Recent cases have imposed liability for truthful publication about recent events where p had a reasonable expectation of confidentiality in matters people would consider private

Appropriate standard for design defect

Risk utility analysis -comparison of the utility of the product with the risk of injury that I poses to the public The risk\utility test looks at the product as designed and asks whether the magnitude of the danger presented by the product is larger than the utility of the product. The test compares the actual dangers presented by the product (not the foreseeable dangers) with the actual benefits provided by the product (not the anticipated or foreseeable benefits

Services and SL

SL does not apply to providing services or to the sale if products if the product sale is incidental to providing the service

The first remedy of any victim of defamation

Self help- using available opportunities to contradict the lie or correct the error and thereby to minimize its adverse impact on reputation -Defamed person is given a conditional privilege

Express Warranty

Seller represents to buyer something about the product's -Quality -Performance -Construction -Durability

Slander

Slander became identified with word of mouth -Spoken -Special damages Slander: spoken and requires special damages (SSS- slander, spoken, special damages) Emotional distress by itself is not the type of injury that will make a slander actionable.

Winn dixie

Summary of Winn-Dixie 1. There is an important point in this case: The supermarket operated in compliance with the zoning ordinance. 2. As a result, there is a strong but rebuttable presumption that the business does not constitute a nuisance due to its location. . However, simply because the zoning ordinance permits certain types of behavior does not mean that the manner of operation is of that activity isn't a nuisance. 4. This mean W-D could operate its business in the area designated via zoning, but it had to do so without interfering without unreasonably with the rights of its neighbors. 5. This means that Plaintiff (W) could prevail only by proving that W-D's inference was unreasonable.

Defamation background

The Defamation cause of action remedies wrongful injury to a person's reputation. Defamation, for historical reasons, consists of the two torts known as libel and slander. Both torts provide a remedy for damage to reputation caused by defamatory statements.

Limitations on Warranty

The UCC imposes a requirement that the claimant give prompt notice of the breach to the manufacturer. The concept of warranty seems to require that the buyer have relied on the warranty in making the purchase. In spite of limitations on the ability to do so, sellers may still be able to limit or disclaim warranties. The UCC itself limits privity of contract

Animals

The basic premise underlying strict liability or negligence is that under certain circumstances, one who owns possesses, keeps or harbors the offending animal is liable for the harm it does. Contributory negligence is NOT a defense, but Assumption of the risk is: • 1.) P. had knowledge of risk and • 2.) P. voluntarily placed himself in way of harm o Court doesn't want to help person who knows their animal is vicious - issue of fairness - not letting wrong-doer go unpunished • Protection of the innocent party Legal Sanction • Held to preclude the application of SL, on the ground that the D. cannot be held SL for doing properly what the law has authorized him to do, although he will still of course be liable for any negligence

Control Theory

The control theory bases the imposition of liability on the employer's right to control and direct the activities of the employee. This approach looks at what the employee was doing and asks whether it was part of the employee's job. Was the employee engaged in the activity because the employer directed the employee to do it?

Milkovich Case

The decision in Milkovich v. Lorain Journal indicates that no separate privilege exists for opinion, rather, opinion is protected by the other constitutional limitations on liability for defamation. 4 factors are considered to ascertain whether under the totality of circumstances a statement is fact or opinion -Specific language used -Whether the statement is verifiable -General contract of the statement -Broader context in which the statement appeared

Abuse of process

The defendant must make use of the processes of the court; The use must be for a purpose for which the process was not designed. NOTE: Lack of probable cause to bring the suit is not an element. Favorable termination of the underlying suit is not an element. The "process of the court" means some enforceable order of the court. Thus merely filing a complaint does not constitute abuse of process, but service of the summons is part of the process of the court and may trigger abuse of process. "Process" thus includes many orders and proceedings that are part of litigation. example Seller sues Buyer of apartment building for breaching agreement to refurbish units, sell as condos, and pay percentage of profits to Seller. Assume either: (1) suit is for breach of contract and would not affect transfer of title; or (2) suit is for rescission of sale, to regain title. Then, Seller files lis pendens to block resale of building

Respondeat Superior

The doctrine of Respondeat Superior holds that the employer is liable for torts committed by an employee while the employee was acting within the "course and scope of employment." "Look to the higher person"Let the employer answer -Servant working for a master- Master has control over acts of the servant -Employer is not primarily responsible- Being made to answer -Employer is liable only by the relationship 1. The D still remains on the hook for what was done wrong, but suing employer because of deep pocket 2. Have to be able to absorb the actions of employees 3. The cost of doing business

Test for Scope of Employment

The employee is performing services for which he/she has been employed (or) oIs doing something reasonably incidental to his/her employment. Scope of employment test is not necessarily whether this specific conduct was expressly authorized or forbidden by the employer, but whether such conduct should have been fairly foreseen from the nature of the employment and the duties relating to it

Group Libel

The general rule is that disparaging words about a large group or class of persons does not give rise to a libel action by any individual member of the group. The reason is that the statement would not be read to apply to all members of the group. If the group is small enough, however, so that the statement could reasonably be thought to apply to all members of the group, an individual can bring an action.

Joint Enterprises: "Social" History on it

The joint enterprise doctrine began with automobile trips, where a passenger could be responsible for the negligence of the driver. This often resulted in imputing the driver's contributory negligence to the passenger. In recent years, courts have limited the doctrine in the automobile and social setting by requiring some shared pecuniary interest.

Ford v. Matthews

The manufacturer is not liable for injuries resulting from abnormal or unintended use of his product if such use was not reasonably foreseeable

summing

The plaintiff's conduct may be relevant to any of the following issues, and good analysis will keep them distinct: Duty/Breach: Was the product defective (or was the accident the result of misuse)? Proximate Cause: Was the conduct of the plaintiff (the misuse) so unforeseeable as to excuse the defendant from liability? Affirmative defenses: Should the lack of care of the plaintiff reduce or bar recovery?

Implied Warranty of Merchantability

The seller must -Sell in "the ordinary course of trade." -By placing the product on the shelf, it is deemed to be an offer; -When the consumer takes the item off the shelf, it is acceptance of the merchant's offer.

Pre-emption is a defense because:

The state cannot act inconsistently with the fed gov. -State claims are barred if they are inconsistent

What is an alternative safer design

The test here is whether the danger actually avoided by the proposed alternative design, using available technology, would be greater than: The costs of the new design, plus loss of product utility from the new design, plus New dangers created by the new design

nuisance substantial

"Substantial" means more than a trifle. Some significant injury must occur. Small interferences probably cancel one another out. ("Live and let live.") When the nuisance activity changes the condition of land, its substantial character is established. Any measurable economic loss resulting is "substantial." A nuisance that causes personal injury is substantial. If the nuisance results only in discomfort or annoyance, the interference must be severe. If the interference significantly affects the market value of the land, it is "severe". The standard applied is that of the normal person in the locality--whether such a person would regard the invasion as seriously annoying. Sensitive uses cannot impose on neighbors a duty to safeguard them.

damages for nuisance

"Temporary damages" compensate for the harm suffered up to the time of trial. If the nuisance is continuing, an award of temporary damages will require the plaintiff to sue repeatedly to collect for additional harm. "Permanent damages" are based on the loss of land value, and are supposed to compensate for all harm caused by the nuisance, past, present and future.

Absolute Privilage on defmation

- Anything that goes towards the judicial or legislative process o Judges, Attorney - in trial, Broadcasters, Witnesses, Pleading, Affidavits, Statements made before the state bar, administrative hearings, Grand Jury/ Petit Jury - Once you find privilege, must assert that this privilege must have a reasonable bearing on the relationship of the subject (MUST BE RELATED)

Warranties for PL

- Applies to people who either purchase or who have been exposed to the product - Saying that the product does not satisfy ordinary expectations or the product is dangerous or both

Express Warranty PL

- Express Factors: 1) Promise 2) Which is specific 3) There is reliance on the promise 4) Casual connection between breach of warranty and the injury oSeller represents something to the buyer about the durability, quality, performance, or construction of the product oCan be given orally or written, but must be given before the time of the sale •Cannot be given after sale oCan look to brochures, models, which are the same as express warranties o Have to be more than an opinion • Must be a warranty of fact • Ex. Glass won't shatter No

warranty disclaimer

- UCC 2-217 Disclaimers o Can limit consequential damages unless unconscionable o Not unconscionable to limit damage for commercial loss - UCC 2-316 Disclaimer for Implied Warranty of merchantability o If you limit L you have to use the word merchantability • If in writing it must be conspicuous Notes: o Issue of fairness o Moore compares the breach of warranty to strict liability because the manufacturer is in the best position to make sure the product does not have any defects. o Make sure to discuss "reliance" because it shows that the P put faith in the representations that D made. o Even if the courts are talking about warranties, they are talking about fault.

REVIEW FOR FIRST PART MATERIAL SL AND RS

- VL Determine whether or not the EE has acted within the SOE • Has the ER taken all possible precautions to stop the act from happening o SOE • Whether or not the EE is doing something in furtherance of the ER • Whether the ER is exercising control over the EE whether directly or indirectly o Coming and Going Rule • ER is not L for personal injuries which occur to the EE when coming going to work • ER has no opportunity to exercise control • Instrumentality of danger (Bussard) • If the EE is using the ER car in furtherance of business, the ER will be L o Detour v. Frolic o Looking to see if the nature was foreseen o IC • Murrell • Issue of control • Rule o Not L for IC • Cases following were the exception • Non-delegable duty • Inherently dangerous activity • One engaged in the performance of certain circumstances for another according to the IC own methods and manner free from control of direction from ER in all matters connected with accordance of the service EXCEPT the results • Maloney • Certain things not delegable (ex. By statute) • Key is public policy o Wants to protect an injured third party who is innocent and should not go without remedy

Wild Animals

-Under Eng. CL, the owner/possessor of a non-domesticated animals, ferae naturae, was subject to strict liability for anyone it injured. -Custom of the community may influence what would be a wild animal. -Most US courts apply strict liability for harm done by wild animals. (But see Wisconsin, applying a negligence theory). O are SL for any harm resulting from the animal's normally dangerous propensities (except for zoos and anyone else keeping wild animals as part of a public duty—for them, negligence must be proven) Zoo • When providing extreme caution, it becomes more of a negligence issue •Looking to the injury caused by the animal •Doesn't matter if you're the owner or the possessor oMost jurisdictions follow SL for wild animals oIf you keep a wild animal on your land and invite someone to come view it, then you are SL But if the person visiting the property puts himself in danger

Interference with the user of water

-Water in a watercourse or lake in or adjoining the land 1. English rule- natural flow theory: One has a right to the water as it flows in nature (Minority American rule) 2. American rule of reasonable use 3. Underground stream is treated like a surface stream -Ground water - Surface water

Implied Warranty of Fitness for a Particular Purpose

-Where the seller (S) a the time of contacting -Has reason to know any particular purpose for which the goods are required -And that B is relying on the seller's skills or judgment to select or furnish suitable goods, -There is, unless excluded or modified, an implied warranty that the good shall be fit for such purpose.

Circumstances that may sustain a holding that an interference with a public right is unreasonable include the following

-Whether the conduct involves a substantial interference with the public health, the public safety, the public peace, the public comfort or the public convenience or -Whether the conduct is proscribed by a statute, ordinance, or administrative regulation or -Whether the conduct is of a continuing nature or has produced a permanent or long lasting effect and to he actor's knowledge, has a substantial detrimental effect upon the public right

Libel per se

-Written -Defamatory on its face -Published in writing with the capability to do great harm

Publication

-sufficient when the publication is to only one person other than the person defamed -In order for there to be publication, the words must be spoken in the presence of others who both hear and understand it For liability, the defendant must either have intended the publication or been at least negligent with regard to its communication to a third party. There is no liability if the publication occurred by mistake, and without fault on the defendant's part.

Domestic Animals

-the owner of a domesticated animals were only subject to strict liability only if owner knew or should have known of the animal's dangerous propensity. -The facts and circumstances will determine if one knew of animal's vicious propensities (VP abnormal to its class) •If you have knowledge that your animal has a propensity to bite someone, then it really doesn't matter whether your animal has bitten previously or not Once your dog has bitten someone, you know it's a biting kind of dog and you'll be SL for any further attacks ("every dog gets one bite free") Not really a One Bite Rule•If you have knowledge that your animal has a propensity to bite someone, then it really doesn't matter whether your animal has bitten previously or not Negligence Per Se o Also applies o Ex. Leash laws

Continuing Criminal Proceedings

A private person who takes an active part in continuing or procuring the continuation of criminal proceedings initiated by himself or by another is subject to the same liability for malicious prosecution as if he had then initiated the proceedings.

NEGLIGENCE ANALYSIS

A. Negligence a. Duty (Expert) b. Breach i. Inspection, manufacture, design, warnings c. Causation i. Proximate cause, Actual "But for" cause d. Damages OR Injury

WARRANTY ANALYSIS

A. Warranties a. Type of Warranty i. Express ii. Implied Warranty of Merchantability iii. Implied Warranty for a Particular Purpose b. Elements i. Breach of the warranty ii. Causal Connection iii. Harm/Damages

Priviliges to defamation

Absolute Privileges (cannot be lost) For participants in judicial proceedings -- judges, lawyers, parties, jurors, witnesses -- for statements related to the proceeding. Legislators, and witnesses at legislative hearings. Statements between husband and wife. Statements required by law. Conditional or Qualified Privileges (can be lost by a showing of malice). Protection of publisher's interest. Protection of interest of third parties. Protection of family interests. Fair reporting privilege for publication of record of official proceedings.

Vis Major

Acts of God which the owner of the land has no reason to anticipate. (Not hurricanes in Florida. That's expected) • The ¶ was at fault too (contributory negligence)

Who is an employee

An employee must be distinguished from an independent contractor. The general rule (which has many exceptions) is that the employer is vicariously liable for torts committed by an employee within the course and scope of employment, but NOT for torts committed by an independent contractor.

ISPs

An interactive computer service qualifies for immunity so long as it does not also function as an info content provider for the portion of the statement or publication as issue

libel per se

any publication which exposes a person to distrust, hatred, contempt, ridicule, obloquy The role of the judge is to determine whether the communication could bear a defamatory meaning. The role of the jury is to determine whether the defamatory meaning was the one in fact conveyed.

public nuisance

an unreasonable interference with a right common to the general public -Has to be brought by public official unless P can show that it is a different kind of harm than that suffered by the public Public Nuisance is a "catch-all" low grade criminal offense, involving interference with a common public right.

Sec. 1983

Creates a species of tort liability in favor of persons who are deprived of rights, privileges, or immunities secured to them by the constitution Every "person" acting under "color" of state law who deprives another of rights, privileges and immunities secured by The U.S. constitution or federal law Is liable to the party injured. The term "person" includes: individuals (so long as they act under color of state law); City, county and other local government entities (so long as the the deprivation of rights is caused by a custom or policy of the governmental entity). The term does not include the state itself. Action under color of state law does not have to be action actually sanctioned or permitted by state law. It includes action that violates state law, so long as the action was made possible by the authority the state gave to the individual government official. Example: An unconstitutional search by a police officer.

English Rule vs. American Rule

Damages only with special damages vs. no showing of special damages

Slight deviation difference between Frolic and detour

Detour - It is a deviation that is sufficiently related to the employment to fall within its scope. o Frolic - Is the employee's pursuit of personal business a substantial deviation or abandonment of the employer's business. Abandonment of business = Frolic • If the employee abandons the employer's business, even temporarily, for personal reasons, he or she is not acting within the scope of employment, and the employer is not liable. • This is not abandonment unless there is a CLEAR severance of the employment relationship.

Imputed Contributory Negligence

B Generally, a driver's contributory negligence cannot be imputed to the vehicle's owner who is also a passenger in the vehicle. •A plaintiff can not be barred from recover from recover against a negligent defendant where there is contributory negligence on the part of a third party unless the relationship between the plaintiff and the third party is such that the plaintiff would be vicariously liable as a defendant for the negligent acts of the third party. Exceptions • master servant relationship or a joint enterprise The simply question is would the plaintiff have been vicariously liable for the negligent acts of the defendant? If the answer is "no," then contributory negligence cannot be imputed to plaintiff.

Alt. standard for design defect

Consumer expectations test -the failure of the product to perform safely may be viewed as a violation of the reasonable expectations of the consumer -8th prong in risk utility test for our purposes Under this test a product is defective if it is dangerous to an extent beyond what would be expected by the ordinary consumer. The test is based on comments "g" and "i" to section 402A, which make defect depend on the product being more dangerous than the ordinary consumer would expect. This test was never intended to deal with the problems of design defect. If the danger is obvious or a warning is given, the plaintiff will lose under this theory even if the product could have been made safer at very low cost. Products such as new drugs that may present a risk to a few people could be found defective under this test, even though the overall benefits from the drug are huge. The test gives little guidance to the jury

Easter v. McNabb

Court concluded that, by limiting JE to those having a business or pecuniary purpose, it avoided the burden of a basically commercial concept, to non-commercial situations which are more often matters of friendly or family cooperation and accommodation •Court concluded that hunting trip lacked the requisite element of business, commercial or profit motive

balancing the equities

Courts will consider whether the Defendant's CONDUCT was unreasonable (not just that the interference with use and enjoyment was unreasonable). Factors showing that the conduct is unreasonable include: Whether the harm caused by the activity outweighs the benefits that the activity produces; and Whether it is possible to reduce the harm without significant loss of utility.

Warning Defects

Failure to inform the user of potential dangers makes the product dangerously unsafe 1. Foreseeable risk of harm 2. Knowledge component in terms of known or should've known 3. NOT same as fault 4. If you had opportunity to warn, you had opportunity to exercise due care 5. Took away decisions to take on risk or avoid it 6. Could have reduced or avoided by adding reasonable instruction or warnings a. Failure to do so makes the product not reasonably safe

Defect

Any product in a defective condition unreasonably dangerous to the user or consumer a. Manufacturing defect b. Defect attributable to failure of design c. Defect due to failure to warn

Negligence for PL

Basic negligence theory • Foreseeability • Foreseeable that if product is negligently constructed that it will cause harm o Dangerous • Court says that if the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger • Its nature gives warning of the consequences to be expected o Duty of Vigilance • Have this duty when the danger was to be expected as reasonably certain • Could have easily done an inspection o You can categorize the types of harms • Negligence, Warranties, SL • Or by the defect • Manufacture, design o The majority/jury will usually find negligence over SL • Issue of looking at fault

difference between false light and defamation

Because this tort involves the publication of a falsehood, it is closely related to defamation. However, the matter need not be defamatory (damaging to a person's reputation) so long as it places the plaintiff in a highly offensive false light.

Right of Publicity

Closely related to the tort of Appropriation is the right of publicity. The right of publicity protects the ability of the famous to enjoy and control the benefits of their fame. The famous are recognized as having the exclusive right to license the use of their names and faces. Some jurisdictions regard this as a property right that survives the death of the celebrity Instead, widespread disclosure is required.

Absolute Privilege

If I can demonstrate that I sit between the confines, there is an absolute privilege and no liability

Imputed Negligence

If the agent in negligent, then the master is also negligent vicariously

Triggering the Duty to Warn

If the danger is obvious or well-known to the public, there is no reason to warn. Warnings are required for hidden dangers such as the possibility of allergic reactions. Warnings are required where necessary for safe and proper use of the product. Warnings are necessary for reasons of personal autonomy and consent when dealing with the risks of prescription drugs and similar beneficial but risky products.

"of and concerning the plaintiff" :Libel by Fiction

If the plaintiff is reasonably understood as the person depicted in a purported work of fiction, plaintiff has a cause of action for a defamatory portrayal in the work of fiction.

Learned intermediary rule

In cases involving pharmaceuticals, most courts hold that warnings and instructions should be provided to the physician so is a learned intermediary between the drug company and the patient and the best person to understand the patient's needs and assess the risks and benefits of a particular course of treatment -Does not apply when product is marketed directly to consumers because direct marketing belies the premises upon which the doctrine is based -For most prescription drugs, the manufacturer must give the warnings about the product to the physician (the "learned intermediary"). -It is then the duty of the physician to inform the patient of the risks and benefits of the drug under the "informed consent" doctrine. In a few situations,, where the manufacturer knows no physician will be involved, the warning must be given directly to the patient (example: mass immunization programs)

why distinction matters on slander v. libel

In the case of libel, the plaintiff was not required to prove actual damages; damage was presumed. In the case of slander, the plaintiff was required to prove special pecuniary damages unless the slanderous statement fell into one of the four categories of "slander per se."

Design Defect

Intentional decision, not a mistake by a machine The product's very design rendered it dangerously unsafe. 1. The whole line is defective 2. Involves elements of intent a. Mfr makes conscious decisions about design of product

ELEMENTS of intrusion:

Intentional intrusion (physical or otherwise) On the solitude or seclusion of another Plaintiff had actual expectation of seclusion or solitude -AND- Objectively reasonable expectation of seclusion or solitude That would be highly offensive to a reasonable person The intrusion must invade an area that the reasonable person would feel is truly private. Thus observation of a person in public is normally not an invasion of privacy, no matter how much the individual being observed wishes to be let alone.

Interference for nuisance

Interference means: Physical damage to land. Interference with comfort or health of the occupant of the land, as by smoke, dust, noise, light, or odors. Interference with mental tranquility, as by keeping something noxious or unpleasant on adjoining land.

The Four "Privacy" Actions(Blame Prosser)

Intrusion 2. Appropriation 3. Public Disclosure 4. False Light You need to be able to distinguish each of these based on their distinctive elements.

Public NUisance

The unreasonable interference of a right common to the general public; including activities that injure the health, safety, morals, and comfort of the public. The law envisions that only public officials can bring these claims o Low level criminal behavior o R2T 821B o Factors- Balancing test • 1) The activity is not customarily suited to the area • 2) It causes observable affects that most would find disagreeable whether or not they independently harm the Π • 3) There are other activities or methods which would cause less disturbance • 4) The activity is of little value to the Δ • 5) The activity has little social utility/unimportant to society • 6) On whose land did the interfering use first arise? • Coming to the nuisance? • The Δ activity began after the Π began the present use of their land

Adequacy of Warning

The warning must be: Available to the actual user Understandable to the actual user Sufficiently prominent to attract user's notice Sufficiently urgent given the gravity of the risk As courts require more and more in the way of warnings, a danger is created that the warnings will drown each other out

• Nuisance per accidens (in fact):

Those which become nuisances by reason of their location, or by reason of the manner in which they are constructed, maintained, or operated.

Constitutional Limitations: The Public's Right to Know

Those who are public figures and public officials have a narrower scope of privacy under this tort. The public has a legitimate interest in even some private facts about public figures and public officials, at least to the extent that the facts have some relation to the person's office or place in the public eye

Approaching warranties for third party

Three ways to approach it • UCC 2-318 Third Party Beneficiaries Warranties extends to any natural person, family member, or guest • Cannot be a corporation A) Everyone, but the purchaser would be a 3rd party beneficiary oInjured party cannot be a corporation and should be a family member, or guest of purchaser B) TX says the warranty is extended to any natural person who is to be affected oLess restrictive oIncludes innocent bystanders C) Any person who can be reasonably expected to use or consume or be affected by the warranty oCannot exclude any parties that can be effected by the goods •Includes entities (corporations) oMost broad

Defenses

Traditional strict liability rule: Contributory negligence is not a defense Assumption of the risk is a complete bar 402A comment n: Contributory negligence that "consists merely in a failure to discover the defect" or "to guard against the possibility of its existence" is not a defense. Assumption of the risk is a defense.

PN

Under the majority view only a public office may bring a cause of action for a public nuisance. • The Restatement indicates that a private citizen should be able to bring the claim or class action should be permitted on behalf of the public where a public official has not acted or will not act.

Defenses To Strict Liability

Unforeseeable Event •one will not be able to recover in SL if the harm is caused by an unforeseeable event; vis major → no SL •Assumption of Risk •Contributory negligence is NOT a defense, but assumption of the risk is. Must prove: ¶ had knowledge of risk, and ¶ voluntarily placed himself in way of harm It takes gross contributory negligence to effect a valid strict liability claim and the result is likely a mere reduction in DAS, not elimination of DAS.

Elements of Joint Enterprise (Joint Venture-same elements)

VL for torts committed within the scope of the venture -Impose VL upon one person who is engaged in the same activity with another person committing the tortuous act--Most often applied in automobile accident cases ELEMENTS -An agreement express or implied among the members of the group -A common purpose to be carried out by the group -A community of pecuniary interest in that purpose among the members -An equal right to a voice in the direction of the enterprise, which gives an equal right of control •Distinguish with Respondeat Superior:There is no right of one member of the group to control the other so no looking to the higher

Breach of warranty

Warranty can be thought of as an express or implied representation about the quality or attributes of a product. If the product does not live up to these representations, and loss results, a breach of warranty claim may provide one avenue of recovery.

Enterprise Theory

What about the value or benefit to the enterprise? • Cost of doing business • Flea free environment o Foreseeable that someone could become sick • Attributable to the enterprise - Court says you cannot use the going and coming rule because she was not leaving on normal circumstances but is attributed to the ER Bussard can recover from the ER The enterprise theory (also called the "benefit" theory) bases liability on the benefit to the employer's enterprise provided by the employee's conduct. This view looks more to the purpose of the employee's activity (i.e., whether it was intended to benefit the enterprise in some way).

Seller of used product is liable:

When negligent. For a manufacturing defect if marketing would lead consumer to expect product was as safe as new. Where seller remanufactures the product. Product violates a safety statute or regulation applicable to the used product.

surface water

o 1) "Common enemy doctrine" • You may use the land as you please and cast water onto another's property without being L • Cannot cast off the water maliciously • Public Policy- Promotion of the development of land o 2) Civil Law Doctrine (TX) • Water must be permitted to flow its natural course • Adjoining land owners are entitled to have the normal and natural course of the water drain onto someone else's property • Law imposes a servitude upon the lower land owner to both accept and dispose of the water • Cannot artificially change the course of the water...if you do you are L because the law presumes that the most natural flows of the water are the ways it already flows o 3) Reasonable Use Theory • Most consistent with Tort Law • Balancing test- Court considers: • Benefit to the actor • Harm to adjacent land owner • Social utility • Question of fact • The land owner is entitled to take any reasonable steps under the circumstances to discard the water • Problem is that it is not very predictable • Public Policy- Want to promote the wise use of land and what's wise varies from time to time and place to place

Qualified privilige to defmation

o 1) Publication of defamatory statement may be conditionally privileged when it is fairly made by a person in the discharge of some public or private duty whether legal or moral or in the context of his own affairs in matters where his interest are concerned. o 2) Any reasonable and appropriate method of publication may be adopted which fits the purpose of protecting a particular interest. • Ex: SO if the communication is accidentally read or heard, then it is still privileged. They key is that you have to exercise your privilege in a reasonable manner and a proper purpose. o 3) The defendant has the burden of proving that there is a proper interest or duty that justified publishing this statement. o 4) The privilege can be lost if the statement is improperly made and to determine whether it is or is not then all relevant circumstances should be considered. o Policy • IF there is a privilege, then the average reciprocity of advantage is impt. • The def. is acting in furtherance of some interest of social importance, which is entitled to protection even at the expense of uncompensated harm to the pl's reputation. - Notes o Types of interest protected by qualified privilege • Interest of publisher • Interest of others • Common interest of publisher and recipient • Communications made to one who may act in the public interest • Fair comment on matter of public concern o To determine if an there is an abuse of privilege, the court looks at: • D. reasonable belief in truth of his statements • The excessive nature of the language used • Whether the disclosures were unsolicited • Whether the communication was made in a proper manner and only to proper parties

- Standard for determining if libel

o 1) The standard for determining whether a statement is libelous is not whether the majority of people or "right thinking" view it as such, instead it is if some people find it libelous even if the group is a "wrong thinking" group or the minority • Even if a small number of people think this statement is libelous then this is enough o 2) When the statement is made if that minority group person could take that statement and shun the person for what the statement expresses then the statement will be libelous - Considerations: o The audience o Circumstances surrounding what was being said o By whom it might be read and interpreted

Express warranty notes

o Express Warranties: innocent misrepresentation. There is no negligent misrepresentation because the manufacturer believed in the product/warranty. Look for fraudulent misrepresentation. o Is reliance enough? • Moore thinks it is because the court is looking at the fact that manufacturers use a specific promise to prompt reliance in order to get the consumer to buy the product. o If one makes a promise under warranty law, and it turns out to be a material representation of fact, you cannot assert the defense that the material was "state of the art," meaning that "this was all that was available on the market." • You can't argue that it is the only material on the market.

Implied warranty of merchantibility

o Given by seller in an ordinary course of trade o UCC 2-314 • Placing the product on the shelf, your taking it off so there is an offer and an acceptance • Products are good for there intended use and misuse • If it is in the realm of use and foreseeable then it is considered to be fit for particular use o Has to be fit for the ordinary purpose • Even extreme use of the product

summing it up for us

o Greenman • Looking at people who are powerless to protect themselves o If this court adopts R2 • Still going to be SL but needs knowability, sort of inserting a negligence element o Negligence standard • P. has to prove that a mfr did not warn of a particular risk for reasons which fell below the acceptable standard of care o SL standard • P. has to prove only that the D. did not adequately warn of a particular risk that was known or knowable in light of the generally recognized and prevailing best scientific and medical knowledge available at the time of manufacture and distribution

Bussard v. Minimed

o Hernandez feels ill after breathing in pesticides, leaves work, and crashes into Bussard and Bussard sues H and her employer Minimied - Reasoning o Respondeat Superior application requires that the employee be acting within the course of her employment at the time that the negligent conduct occurred Going and coming rule and forseeability test

PP for defamation

o Key: Idea that we have to have free and wide open rights to criticize public officials • Officials have put themselves out there for the attack o What are we trying to foster by not putting constraint on speech? • The free flow of ideas o What the constraints about what can be said about a public official? • Can't act with actual malice, knowing falsity of reckless disregard • Important because this is a high standard • Trying to avoid self censorship o Social Utility/Free flows of ideas • Benefit of society is truly greater by allowing some of these false statements, even if they com eon the back of a public official • Need inducement, innuendo, and colloquium o Failure to check ones facts • Negligence not enough to support defamation in a constitutional realm o Policy • Debate on public issues should be uninhibited, robust, and wide-open, and that it may include vehement, caustic, and sometimes unpleasantly sharp attacks on gov't and public officials. The market needs this public debate. • The rule of guaranteeing the truth of all allegations or std of ordinary care amounts to self-censorship. • Average Reciprocity of advantage - Give up some of your individual rights from the greater good of society. The public benefit (uninhibited debate) is so great that such discussion must be privileged

Malicious prosecution test

o Malicious Prosecution Test: • (1) A criminal prosecution instituted by the def. against the pl. • (2) Termination of the proceedings in favor of the accused • P has to wait until underlying civil or criminal action has come to conclusion; has to be resolved • Different from abuse of process b/c there, you can bring COA even before it ended • Failure to prosecute or go forward is not enough • If terminate case b/c conviction/case is now impossible to pursue—also termination in P's favor (P in 2nd suit, b/c was D in first suit) • (3) Absence of probable cause for the proceeding • Rest. 662(c): accuser has to have subjective belief that P is guilty; must have reasonable belief and subjective belief • (4) Malice • Improper purpose/motive other than bringing guilty to justice • (5) Damages • Can get punitive damages for malice • Don't have objective guidelines for determining equivalent of mental pain and injury and as a result, jury should retain a lot of discretion in this area. It is jury's job to do this. • Rest.: if you abandon proceeding b/c conviction is impossible, then P has right to use those statements

Policy reasons for warranties and PL

o Manufacturer should bear the burden of the implications of the defective product. • Put the burden on the person who can bear it. o Why can't we let privity be a barrier? • Product is being advertised, and the manufacturer has an ability • Can't argue lack of privity, because the manufacturer is in the best position to avoid harm. o Social justice demands a remedy. • Key: When a manufacturer puts a new automobile in the stream of trade and promotes its purchase by the public, an implied warranty that it is reasonable suitable for use as such accompanies it into the hands of the ultimate purchaser. o Freedom of Contract: • 1. it is an important freedom, but you have to look at it under the circumstances. • 2. modern commerce and modern business practices, so must take it by a case by case basis. • What's the conflict of interest? • Buyer wants a certain value out of the car, and the seller just wants to sell it. • Both want the sale, but what they want out of the sale is different. o Can the warranty theory protect the buyer? • Generally, yes and we usually don't want people taking that away. • Buyer is a weaker party. • Warranty on every contract - take it or leave it - can't bargain for it. • Automobile association has accepted that contract. o Under certain circumstances, you cannot wait warranties. • 1. implied warranty of merchantability overrides caveat emptor. • 2. implied warranty and privity issues - they don't want the idea of privity to stand in the way of justice or fairness. • 3. right of contract - the freedom of contract is huge, but it cannot be fair when there is unequal bargaining power.

Standards

o Standards • Public official, Public concern- Higher standard (Actual malice) • Private figure, Public concern- Constitutional requirement less than if person is a public figure (Gertz) • No CL but states gives lesser protections to this type of speech • Private figure, Private concern- State has right of deciding how to deal with it • Private party, Public concern- At CL, D. bears burden of proof regarding truth. Constitutionally, P. bears burden of proof regarding falsity o Moore disagrees: Reasons why not to place burden on P. • P. might not have enough money/resources to after media • Hard to prove that something is not true • Newspaper do not stop publishing after there has been a lawsuit against them • If this is the cases, there is no chilling effect • Even if there were a slight chilling effect, it is worth more than the P. reputation that cannot be remedied • Average Reciprocity of Advantage Argument o Burden on primary P. → hurt reputation o Ultimate benefit → free marketplace of ideas

Ground water

o Typically the water flows underground o Expert is only person that can tell it runs in a stream o Three basic theories • 1) English Rule of Absolute ownership doctrine (TX) • Moore thinks the harshest • A person has right to withdraw as much underground water as she wishes for whatever purpose she wishes o Exception: Cannot act maliciously • 2) American Rule of Reasonable use • Law says as neighbors you have equal rights to the water... can make beneficial use of the water but cannot deplete neighbor's supply of water • 3) Percolating water • Rule that an underground stream is treated like a surface stream

o Must satisfy 3 elements for strict liability: for PL

o ∆ manufactured and sold that product, and that it was defective at the time of the sale. o Reached the ultimate consumer without substantial change in the condition it was in at the time it was sold. o Defective condition proximately caused the accident.

Inherently or Intrinsically Dangerous Activities

oApplicable when the activity involves a peculiar risk of harm that calls for more than ordinary precaution Exception •Collateral Negligence •Not recognizable in advance as particularly likely to occur or as calling special precaution •It is that the activity is dangerous enough to require special precautions