BLAW 341 Exam 2

Elements of Negligence

1. Duty of Care: legal duty requiring the defendant to conform to a standard of conduct established for the protection of others 2. Breach of Duty: defendant failed to exercise reasonable care 3. Factual Cause: defendant's failure to exercise reasonable care in fact caused the harm the plaintiff sustained 4. Harm: plaintiff sustained harm of a type that is protected against negligent conduct 5. Proximate Cause (scope of liability): harm sustained was foreseeable -specific harm that was sustained, the defendant breached the case

Tort (vicarious liability)

Businesses that conduct their business activities through employees are liable for the torts their employees commit in the course of employment

False Imprisonment

Act of intentionally confining a person AGAINST HIS OR HER WILL will within fixed boundaries if the person is CONSCIOUS of the confinement or harmed by it Restraint may be brought about physical force, threat of physical force, or by force direct against a person's property Obstructing a person's freedom of movement is NOT false imprisonment if there is a reasonable alternative exit available Damages may include compensation for loss of time, physical discomfort, inconvenience, physical illness, and mental suffering

Element of Intent in Intentional Torts

Actor desires to cause the consequences of his act or that he believes the consequences are substantially certain to result from it -Does not require a hostile or evil motive -Intent can be transferred Privileged "tortious" conduct -plaintiff's consent -self-defense -defense of property -defense of others ex. Throwing a clicker at friend with intention to hurt them but it misses at hits another classmates and takes their eye out

Love v. Hardee's Food Systems

Customer at Hardee falls at the bathroom because the floors are wet. Customer sues Hardee for the injury she sustained. She is considered an invitee Hardee must have highest duty of care for invitee, so must protect them -Must reasonably inspect the facilities so the invitees are protected -There was a wet floor sign but usually on the back of the bathroom door there is a cleaning timesheet but it was completely blank -If you were Hardee, train your employees, clean the floor once an hour, not just enough put down a wet floor sign Not only have duty to warn them but reasonably inspect the area around them to make it same

Proximate Cause (Scope of Liability)

Liability has been limited to those harms that result from the risks that made the defendant's conduct tortious Foreseeability -A REASONABLE PERSON OF ORDINARY INTELLIGENCE should have anticipated the danger created by a negligent act or omission -Plaintiff must have been one whom the defendant could reasonably expect to be injured by a negligent act

Public Disclosure of Private Facts

Liability is imposed for publicity given to private information about another, if the matter made public would be HIGHLY OFFENSIVE AND OBJECTIONABLE TO A REASONABLE PERSON Applies only to private info, no public REQUIRES PUBLICITY -private facts must be communicated to the public or become public knowledge Still liable if private info made public is true.

Factual Cause

Liability of the negligent conduct of a defendant requires that the conduct in fact caused harm to the plaintiff But-For Test: person's conduct is cause of an event if the event would not have occurred BUT FOR the person's negligent conduct -conduct is a factual cause of harm when the harm would not have occurred absent the conduct If multiple acts exist, each of which alone would have been a factual cause under the "but-for test" of the physical harm at the same time, each act is regarded as a factual cause of the harm

Defamation (employee references)

Nearly one-third of all defamation suits are currently brought by employees against present and former employers. As a business leader you should -Ensure that all statements you publish about an employee are true. -Publish statements only to people with a legitimate need to know. -Allow only certain people in the company to provide references. Vicarious Liability

Reasonable Person Standard: Disability

Physical Disability -STANDARD OF CARE IS THAT OF A REASONABLY CAREFUL PERSON WITH THE SAME DISABILITY -ex. blind person is compared to activities by reasonable blind person Mental Disability -person's mental or emotional disability is NOT CONSIDERED in determining whether conduct is negligent unless the person is a child -courts don't want ppl to take advantage

Tort Reform

Places a cap on the damages that plaintiffs may be awarded

Harm

Plaintiff must prove that the defendant's negligent conduct proximately caused harm to a legally protected interest

Modified Comparative Negligence

Plaintiff recovers as in pure comparative negligence unless her contributory negligence was equal to or greater than that of the defendant, in which case the plaintiff recovers nothing Pennsylvania - 51%

Assumption of Risk

Plaintiff who has voluntarily and knowingly assumed the risk of harm arising from the negligent or reckless conduct of the defendant cannot recover for such harm. Waivers of liability and assumption of risk forms. People who imperil themselves while attempting to rescue their own or others' property from a risk created by the defendant have not assumed the risk voluntarily.

Klein v. Pyrodyne Corporation

Plaintiffs were injured when an astray firework exploded near them. Defendant was sued under the tort of liability. Holding: trial court granted favor to plaintiff, defendant appealed to Washington Supreme Court. Strict Liability was appropriate Critical Facts: Rylands V. Fletcher established that defendant will be liable if the activity is unduly dangerous and inappropriate. Backed up by the restatement second of torts.

Defenses to Defamation (Absolute Privilege)

Statements made by participants in a judicial proceeding regarding the proceeding Statements made by Congressional members on the floor and members of state and local legislative bodies Statements made by certain executive branch officers while performing their gov duties Statements regarding a 3rd party made between spouses when they are alone

Texaco v. Pennzoil

Texaco agreed to purchase Getty Oil and right before the contract is signed, Pennzoil heard about the deal and quickly rushes to Getty Oil to pay more than Texaco Texaco sued Pennzoil for interference of contractual relations -Texaco won the case because Pennzoil induced Getty Oil to sign their contract -Punitive damages were $10 B for Pennzoil committing the tort

Ryan v. Friesenhahn

There's a party at your parent's house -Parents safety precaution: if you're going to drink, drink here -Minor (18 years old) drank alc and drove home and got into an accident and died TX Law: if you make alc available to a minor, you are negligent per se -If the minor gets hurt or the alc damages any property; adult is liable for their actions -If the law says you are negligent per se, the only way to defend yourself is that you didn't make alc available -If the minor went out of their way to find it themselves -At the end of the day, the harm must be foreseeable In this case, you can foresee that a minor drinking and driving can lead to potential harm

Appropriation

Unauthorized use of a person's name or likeness for one's own benefit Seeks to protect the indiv right to the exclusive use of his identity-right of publicity ex. NCAA could not make sports video games anymore bc they are making money off the likeness of the players

Abuse of Process

Using a civil or criminal legal proceeding to accomplish a purpose for which the proceeding is not designed

Vanna White v. Samsung

Vanna White (Wheel of Fortune Host) sued Samsung for appropriation Samsung puts an ad of a robot (with the likeness of Vanna White) without any pictures or name Vanna White sued for appropriation and this is the first time an indiv won this

Trespasser

person who enters or remains on the land of another without permission or privilege to do so Possessor of land IS NOT LIABLE to adult trespassers for his failure to maintain the land in a reasonably safe condition CANNOT INTENTIONALLY INFLICT INJURY After discovering a trespasser, possessor must exercise reasonable care for the safety of the trespasser and WARN THEM OF POTENTIALLY DANGEROUS CONDITIONS

Liebeck v. McDonald's Restaurants

- Tieback injured by cup of coffee received through drive-thru window - McDonalds had notice of 700 customer complaints about the temperature of the coffee served - Liebeck's compensatory damages were reduced from $200,000 because of comparative negligence - Jury tries to award $2.7 million in punitive damages but judge reduced to $600,000

Iannelli v. Burger King Corp.

-The Iannelli family went to eat at burger king where there was a group of obnoxious, swearing teenagers. The father asked them to stop and the teens beat him. -Argued that a commercial enterprise (restaurant) has a duty to exercise reasonable care towards its patrons. -A restaurant does have a duty of reasonable care to those who are eating in the restaurant, but protecting them from assault does not normally fall within the duty owed to diners at a restaurant. -When warning signs indicate that individuals eating in the restaurant may not be safe, the manager of the restaurant has a duty to take action to try to prevent injury. Warning signs in this case included obnoxious behavior by teenagers and one of them almost bumping into a child yet expressing indifference to the encounter. -The court found that a duty to protect diners from assault might exist if restaurant employees become aware of the danger and do not take basic measures to prevent it.

When is a tort committed?

1. When a duty owed by one person to another 2. is breached 3. proximately causing (act from which injury results as a natural, direct, uninterrupted consequence and without which the injury would not have occurred-But For Test) 4. injury or damage to the owner of a legally protected interest.

Intervening, Superseding Cause

An intervening cause is an event or act that occurs after the defendant's negligent conduct and with that negligence causes the plaintiff's harm. If the intervening cause is deemed a superseding cause, it relieves the defendant of liability for that harm. An intervening cause that is a foreseeable or normal consequence of the defendant's negligence is not a superseding cause. Ex. Lots of candles in the room, you carelessly knock over the candles. The door is locked and you can't get out -Before you get burned, someone comes in and shoots you in the head -You would have been otherwise negligent, but some sort of intervening superseding cause shifts liability

Tortious Behavior

Behavior that constitutes a tort

Harm to the Person

Intentional torts to the person entitle the injured party to recover damages for bodily harm, emotional distress, loss of impairment of earning capacity, reasonable medical expense, and harm the tortious conduct causes property or business

Reasonable Person Standard: Children

Child is a below the age of majority (18) Standard of conduct to which a child must conform to avoid being negligent is that of a reasonably careful person of the same AGE, INTELLIGENCE, AND EXPERIENCE UNDER ALL OF THE CIRCUMSTANCES Child who engages in a dangerous activity that is typically undertaken by adults is held to the standard of care applicable to adults -ex. operating a car, boat, or airplane

Ultrahazardous Activities Examples

Collecting water or sewage Storing explosives or flammable liquids Blasting or pile driving Crop dusting Drilling for or refining oil Emitting noxious gases or fumes into a settled community

Tort 3 Principle Objectives

Compensate persons who sustain harm or loss resulting from another's conduct To place the cost of the compensation only on those parties who should bear it To prevent future harms and losses

Contributory Negligence

Conduct on the part of the plaintiff that falls below the standard to which he should conform for his own protection and that is legal cause of the plaintiff's harm In contributory negligence jurisdiction, the contributory negligence of the plaintiff, whether slight or extensive, prevents him from recovering any damages from the defendant. If the plaintiff has 1% blame, then they cannot recover compensation

Negligence

Conduct that breaches that duty of care and creates an unreasonable risk of harm Liability due to the failure to exercise reasonable care under the circumstances for the safety of another person or his property, which failure proximately causes injury to such person or damage to his property, or both ex. Drinking and driving

Express Assumption of Risk

Contract, terms must be clear and unequivocal Written agreement, express oral agreement, or conduct that creates an implied-in-fact contract

Pure Comparative Negligence

Damages are divided between the parties in proportion to the degree of fault or negligence found against them ex. Jury says defendant is 75% at fault so they pay 75% of damages

Compensatory Damages

Damages awarded to plaintiff to recover what was lost- to make the plaintiff whole -past and future medical expenses -past and future economic loss -past and future pain and suffering Getting the plaintiff back to original state before accident occurred Hard to make plaintiff whole if they lose a body part

Punitive Damages

Damages over and above the amount necessary to compensate the plaintiff Used in cases in which the defendant's tortious conduct was intentional, reckless, outrageous, showed malice, or fradulent Designed to punish the defendant and deter others from similar conduct Awarded in only about 2% of litigated cases

Slander

Defamatory communication is oral or spoken ex. You are screaming false things at a person and 3rd party walks by -This is still defamation, especially slander

Libel

Defamatory communication that is handwritten, typewritten, printed, pictorial, or in any other medium with similar communicative power, like TV and radio ex. You write on a paper that someone cheated on the test and just leave it in the class -This is defamation bc it is false communication that can injure someone's reputation and negligently published to a 3rd person -This is specifically libel

Differences between intrusion, public disclosure, and defamation

Difference between intrusion and public disclosure of private facts -Public disclosure of private facts requires publicity Difference between defamation and public disclosure -Defamation is spreading FALSE info

Palumbo v. Nikirk

Dog bites mailman when delivering package Dog owner is not liable because first bite is free -only responsible if he knew dog has a dangerous propensity

Reasonable Person Standard

Duty of care is measured by the DEGREE OF CAREFULNESS THAT A REASONABLE PERSON would exercise in a given situation Reasonable person is a fictitious indiv who is always careful and prudent and never negligent -always does the right thing

Reasonable Person Standard: Emergencies

Emergency is a sudden and unexpected event that calls for immediate action and permits no time for deliberation. An emergency is taken into consideration when determining whether the defendant's conduct was reasonable. Standard is still that of a reasonable person under the circumstances; emergency is part of the circumstances. *If defendant's own negligent or tortious conduct created the emergency, he is liable for the consequences of his conduct, even if he acted reasonably in response to the emergency.* Failure to anticipate an emergency may constitute negligence

Reasonable Person Standard: Violation of Statute

Established by legislation or administrative regulation Some statutes expressly impose civil liability on violators -negligence per se: violation demonstrates negligent conduct Courts may adopt requirement of the statute as the standard of care if the statute is designed to protect against the type of accident that the defendant's conduct caused and the victim is within the class of persons that the statute is designed to protect Compliance with a statute does not prevent a finding of negligence if a reasonable person would have taken additional precautions

Defamation

FALSE COMMUNICATION that injures a person's reputation by disgracing him or her and diminishing the respect in which he or she is held Libel or Slander -both must be published (writing, verbal, text, etc) to a person other than the one who is defamed -must be intentional or the result of the defendant's negligence Cannot defame a deceased person

Interference with Contractual Relations Ex

Ex. "If you buy from another supplier other than me, then I'll shoot your face" is an interference with contractual relations Agreement Not to Compete- agree that you will not work for a competitor for a certain period of time -Usually you have to pay damages if you breach the contract -"I will pay double your salary and pay the liquidity clause if you work for me" is an interference with contractual relations

False Imprisonment Examples

Ex. Kaplan leaves classroom and locks all the doors -This is false imprisonment bc this is against the student's will Ex. Kaplan telling someone in a wide open field that if they leave the place then he'll shoot them -This is false imprisonment bc the victim is confined to a particular space Ex. Kaplan telling someone if they leave the soccer field then their car will blow up -This is false imprisonment bc you are damaging their property Ex. Kaplan locks all the doors but there is a window in the classroom -This is not false imprisonment bc there is an alternative exit -If the classroom is in the 4th floor then it is false imprisonment Ex. You consent to surgery and the operating rooms are closed so doctor puts you in a closet -This is not imprisonment bc the person is not conscious -However you get a cardiac arrest and no one is there to help then this will be false imprisonment

Assault or Not Examples

Ex. Kaplan telling student "if you don't get out of my class right now then I'll punch your face" -Assault bc it is imminent Ex. Kaplan telling student "if you're here on Friday then I'll shoot you" -Not assault bc it is not imminent Ex. Kaplan not saying anything but is holding a gun to a student's head -This is apprehension of imminent bodily harm so it is assault and battery Ex. Kaplan holding gun to behind to someone's head -Not Assault

Trespass to Real Property Examples

Ex. You have a party and kick everyone and someone stays -This is still trespass to real property Ex. Jack throws Kevin onto property -Jack is liable for trespass to real property -Kevin is not liable bc he has no intent

Duty to Act Examples

Ex. You see a blind person headed for cliff ahead of you. Do you have an obligation to help them? Can relatives of the blind person sue you for not helping? -No because the law says we have no affirmative duty to help someone else This is when law is different from morals and ethics However, if there is a special relationship between the person who is in danger and you then you MUST help Ex. If there is a hotel in a fire, hotel employees have a duty to help customers get out of the hotel Ex. You're at the beach and you see a 3 year old struggling in the water. You are NOT REQUIRED to help in the eyes of the law -You don't have a legal obligation even if the kid is a niece or sister

Intrusion Examples

Ex. You were at Saxbys and you overhear couple talking about their relationship problems -This is not intrusion bc couple is talking about their problems in a public space Ex. Finding someone arrest warrant is not intrusion -Warrants are PUBLIC records Ex. Just overhearing or seeing private records then it is a violation of intrusion -You don't even need to spread the info and you'll still be in trouble

Frank B. Hall & Co., Inc. v. Buck

Frank Hall leaves a company and starts interviewing for jobs -He couldn't get any jobs and hires a private investigator to figure out why he's not getting jobs -Investigator calls former employer and the employer is saying false things about Frank Court of Appeals decides Buck is still guilty for defamation bc he was spreading false info to a 3rd party

Palsgraf v. Long Island Railroad

Gentleman tried to get onto a train when it started to pull away and 2 employees helped push him onto the train A brown package gets dislodged from the guy and package was filled with fireworks -Fireworks explode At the other end of the train station, the fireworks hits a scale and hits Ms. Palsgraf -She sues But for pushing the gentleman and but for dislodging the package, she wouldn't have gotten harmed Would a reasonable person have suspected that fireworks would've been in the packaged and shot and hit Ms. Palsgraf Even though it was factual cause of harm, it was not proximate cause because no one would foresee this happening

Soldana v O'Daniels

Group of folks at the Happy Jacks Saloon having a good time drinking, eating, etc -One of the folks and gets shot -One of the customers runs of the Happy Jacks Saloon and goes next door to the Circle Inn bar -Asks the bartender if he can borrow the phone to call the police The Circle Inn was negligent in this ruling. While we don't necessary have a duty (legal obligation to act) but we cannot stand in the way of someone else trying to act if it doesn't cost you something unreasonable Cost: use of phone for 1 minute; basically no cost with no zero consequences Circle Inn: you cannot get in the way of someone else trying to act

Shoplifting Example

Harvard students realized shoplifting is very costly for business Walmart and other retail stores developed a private company that if someone is caught shoplifting then they have to take a class that tells them shoplifting is bad -This is alternative to persecution -Court found this is extortion If someone doesn't pay for the class then they'll get prosecuted Police is suppose to handle the legal processes Walmart stopped this policy and went back to regular prosecution

Battery

Intentional infliction of harmful or offensive BODILY CONTACT -may cause serious injury -may involve little or no physical injury Contact is offensive if it would offend a reasonable person's sense of dignity May occur with the use of objects

Willful and Wanton Negligence

Intentional or the act must have been committed under circumstances exhibiting: Reckless disregard for the safety of others, such as failure, after knowledge of impending danger Exercise ordinary care to prevent it Failure to discover the danger through RECKLESSNESS OR CARELESSNESS when it could have been discovered by the exercise of ordinary care

Reasonable Person Standard: Superior Skill or Knowledge

If superior skills or knowledge are possessed, those skills or knowledge are circumstances to be taken into account in determining whether the person has acted with reasonable care. Persons who are qualified and who practice a profession or trade that requires special skill and expertise are required to use the same care and skill that members of their profession or trade normally possess. If a member of a profession or skilled trade possesses greater skill than that common to the profession or trade, she is required to exercise that greater degree of skill.

Defenses to Negligence

Intentional tort defenses are available. Contributory negligence Comparative negligence Assumption of Risk

Wrongful Civil Proceeding

Imposes liability for damages causes by improperly brought CIVIL proceedings, including harm to reputation, credit, or standing; emotional distress; and the expenses incurred in defending against the wrongfully brought suit

Malicious Prosecution

Imposes liability for damages causes by improperly brought CRIMINAL proceedings, including harm to reputation, credit, or standing; emotional distress; and the expenses incurred in defending against the wrongfully brought suit

False Light

Imposes liability for publicity placing another in a false light if the defendant knew that the matter publicized was false or acted in reckless disregard for the truth Must be untrue Must be publicized Must be objectionable to a reasonable person, but need not be defamatory

Dram Shop Acts

Imposition of strict liability upon tavern owners for injuries to third parties caused by their intoxicated patrons

Trespassing Animals

In general, owners and possessors of animals, except for dogs and cats, are subject to strict liability for any physical harm their animals cause by trespassing on the property of another.

Tort (strict liability)

Injuries may be inflicted intentionally, negligently, or without fault

Assault

Intentional conduct by 1 person direct at another that places the other in apprehension of IMMINENT bodily harm or offensive contact -mental (no physical touching is required) -battery is not required Damages may include compensation for fright and humiliation Person in danger of immediate bodily harm MUST HAVE KNOWLEDGE of the danger and be apprehensive (to be in fear) of its imminent threat to his or her safety

Interference with Contractual Relations

Interfering intentionally and improperly with the performance of a contract by inducing one of the parties not to perform it. -Relevant to prospective contractual relationship as well. Injured party may recover the economic loss resulting from the breach of contract. Rule requires that a person act with the purpose or motive of interfering with another's contract or with the knowledge that such interference is substantially certain to occur as a natural consequence of his or her actions. May occur by the use of physical force, threats of force, or inducement (better contract). Do not interfere with Agreements Not to Compete and Agreements Not to Disclose

Strict Liability

Liability based on the nature of the activity. In some instances, a person may be held liable for injuries he has caused even though he has not acted intentionally or negligently. Certain types of socially desirable activities pose sufficiently high risks of harm regardless of how carefully they are conducted. Those who carry on these activities should bear the cost of any harm that such activities cause.

Misuse of Legal Procedure

Malicious Prosecution Wrongful Civil Proceeding Abuse of Process ex. Someone wrongfully accuses a company about fraud because you want to drive down the value of the company

Shoplifting

Merchants may detain suspected shoplifters with probable cause, in a reasonable manner, and for not more than a reasonable time Merchants are worried about detaining customers because they do not want to be liable for battery, assault, or false imprisonment

Nuisance

Nontrespassory invasion of another's interest in the private use and enjoyment of his land Does not require interference with another's right to exclusive possession of land but imposes liability for significant and unreasonable harm to another's use or enjoyment of land -emissions of unpleasant odors, smoke, dust, or gas -pollution of a stream, pond, or underground water supply

Strict Liability

Not based on intent or negligence of the defendant Based on the nature of the activity in which the defendant is engaging Liability even if defendant exercised the utmost care -abnormally dangerous conditions -keeping animals ex. Shooting fireworks and accidentally hurting someone

Ehling v. Monmouth-Ocean Hospital Service Corp.

Nurse tweets about EMT for saving someone who shot ppl in the Halocaust memorial museum Manager finds out from another fellow employee and fires the nurse Question: is information posted FB private? Information posted on social media is not private info -Courts decided that some info on social media can be private if you limit your audience -Court said employer can still fire the nurse bc a fellow employee saw the post and sent it to the manager -3rd party can inform the employer about the post and legally fire the nurse

Nontrespassing Animals

Owners and possessors of wild animals are subject to strict liability for physical harm caused by such animals, whether or not they are trespassing. The owner or possessor is liable even if she has exercised reasonable care in attempting to restrain the wild animal. Owners and possessors of domestic animals are subject to strict liability if they knew, or had reason to know, of an animal's dangerous tendencies abnormal for the animal's category. -The animal's dangerous propensity must be the cause of the harm.

Invitee

Person invited upon land as a member of the public or for a business purpose Possessor of the land is under a DUTY TO EXERCISE REASONABLE CARE to protect invitees against dangerous conditions that are unlikely to discover Liability extends not only to those conditions of which the possessor actually knows but also to those of which she would discover by the exercise of reasonable care -business should inspect their premises regularly to detect any dangerous conditions and either remedy the danger or post prominent warnings

Duty to Act

Person owes no duty of care when another's person or property is at risk for reasons other than the conduct of the person, even if the person is in a position to help Special relationships may impose affirmative duty of reasonable care -common carrier and passengers -innkeeper and guests -employer and employees -school and students -landlord and tenants in common areas -business and customers -parents and children

Infliction of Emotional (Mental) Distress

Person uses EXTREME OR OUTRAGEOUS CONDUCT to intentionally or recklessly cause SEVERE EMOTIONAL DISTRESS to another -reasonable person in the same circumstance would suffer sever disturbance -NO LIABILITY if plaintiff is unusually vulnerable unless the defendant knew of the plaintiff's special vulnerability Liable for emotional distress and bodily harm if bodily harm is caused by EMOTIONAL DISTRESS Recklessness is conduct that evidence A CONSCIOUS DISREGARD OF OR AN INDIFFERENCE TO THE CONSEQUENCES OF THE ACT COMMITTED -conduct must go BEYOND THE BOUNDS OF HUMAN DECENCY and be regarded as INTOLERABLE IN A CIVILIZED COMMUNITY -ordinary insults and indignities are NOT enough for liability to be imposed, even if the person desires to cause emotional disturbance bodily harm= health issues from stress, panic/heart attack, possibly suicide

Abnormally Dangerous (Ultrahazardous) Activities

Person who carries on an abnormally dangerous activity is subject to strict liability for physical harm resulting from the activity Activity is abnormally dangerous if (1) the activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors, and (2) the activity is not one of common usage.

Tortfeasor

Person who commits a tort

Licensee

Person who is privileged to enter or remain on land only by virtue of the lawful possessor's consent Licensee will become a trespasser if he enters a portion of the land to which he is not invited or remands on the land after his invitation has expired Possessor MUST WARN THE LICENSEE OF DANGEROUS ACTIVITIES AND CONDITIONS -the possessor has knowledge or reason to know -licensee does not and is not likely to discover

Philip Morris USA v. Williams

Philip Morris got sued for concealing the dangers of smoking Williams died for smoking Philip Morris products for a long time and died from harmful effects of tobacco Wife sued for the wrongful death of husband from smoking -She was awarded $821,000 in compensatory damages (Jury was saying this was the worth of her husband) Jury also awarded $79.5 Million in punitive damages -Goal was to punish Philip Morris for damages -Jury charged so much to deter further activities from tobacco companies -Williams was not the only person who died from smoking tobacco, so jury wants to punish Philip Morris for all the damages caused to other individuals Philip Morris appealed this decision and Supreme Court agreed with the company Jurors cannot consider the actions of the defendant of what they may have done to other parties not involved in the case

Defenses to Defamation (Conditional Privilege)

Protect own legitimate interest or, probably, interest of another

Harm to the Right of Dignity

Protection covers a person's reputation, privacy, and right to freedom from unjustifiable litigation

Trespass to Real Property

Protects the possessor's rights to the exclusive use and quiet enjoyment of the land Damages include compensation for the resulting decrease in the value of the land, the lose of the use of the land, and discomfort caused to the possessor of the land Liable if person intentionally -Enters or remains on land in possession of another, -Causes a thing or a third person to so enter or remain, -Or fails to remove from the land a thing that he is under a duty to remove. No actual damage to the land is needed. A mistake is no defense. Person is not liable if his or her presence on the land is not caused by his or her own actions. Trespass may be committed on, beneath, or above the surface of the land.

Tort

Provides persons relief from civil wrongs or injuries to their persons, property, and/or economic interests Primarily common law

Injurious Falsehood (Trade Disparagement)

Publication of false statements that disparage a business owner's company or product -plaintiff must establish the falsity of the defendant's statements -plaintiff must also show actual damages arising from the untrue statements Competitor has conditional privilege to compare products favorably with those of a rival, even if he or she does not believe that his or her products are superior -No privilege applies if the comparison contains false assertions of specific unfavorable facts about the competitor's property Damages may include that which directly and immediately results from impairment of the marketability of the property disparaged, expenses necessary to counteract the false publication, including ligation expenses, cost of notifying customers, and cost of publishing denials

Defenses to Defamation (Constitutional Privilege)

Statements about public officials or public figures without malice -malice is clear and convincing proof of the publisher's knowledge of falsity or reckless disregard for the truth -private person may show malice or negligence

Battery Examples

Reasonable person's sense of dignity (CONTEXT MATTERS) Ex. Football players spanking their asses is not battery bc reasonable football players do this Ex. Friend spanking another person's ass in the hallway is battery You can cause battery with an object or with physical contact Ex. Throwing a clicker at someone is still battery

Duties of Possessors of Land

Right of possessors of land to use that land for their benefit and enjoyment is limited by their duty to do so IN A REASONABLE MANNER Possessors CANNOT cause UNREASONABLE RISKS OF HARM to others Must exercise reasonable care to protect others who are not on the property

Malpractice

Someone being negligent in their professional field medical malpractice-surgeon is compared to a reasonable surgeon and the resources they have

Keeping of Animals

Those who possess animals for their own purposes do so at their peril and must protect against harm those animals may cause to people and property

Petition of Kinsman Transit

Truck driving around changing lightbulbs. Truck pulls off the side of the road but pulls up perpendicularly and blocks a telephone pole Motorcyclist did not see the pole and hits it, gets ejected and lands on spikes of an unfinished construction site River with ship resecued by deadman but company failed to secure the property Unsecured boat not floating down the river with no one controlling the ship -> hits another boat and dislodges it, both hit a bridge and created a dam Dam floods buffalo and surrounding area This is partially foreseeable as knowing damage would occur if leaving an unsecured boat

Defenses to Defamation

Truth Absolute Privilege Conditional Privilege Constitutional Privilege Higher standards for public officials and figures to win defamation -must prove malice

Intrusion

UNREASONABLE AND HIGHLY OFFENSIVE interference with the SOLITUDE OR SECLUSION OF ANOTHER -improper entry into another's dwelling (house) -Unauthorized eavesdropping on another's private convo -Unauthorized examination of another's PRIVATE papers and records (taxes, mails, medical records, etc) Must be highly offensive or objectionable to a reasonable person and must involve private matters No liability if the defendant examines public records or observes the plaintiff in a public space Publicity is not required

Joint and Several Liability

When the problem of causation arises from the carelessness of 2 or more indiv Tort law makes each indiv jointly and separately liable for the entire judgement

Fraudulent Misrepresentation

imposes liability for the monetary loss caused by a justifiable reliance on a misrepresentation of fact intentionally made for the purpose of inducing the relying party to act When describing your products or services, do not make false statements False Advertising-Federal Trading Commission -advertisements must be truthful, not misleading, and when appropriate, backed by scientific evidence Ex. Elon Musk committed securities fraud with "funding secured" tweet

Trespass to Personal Property

intentional dispossession or unauthorized use of the personal property of another -dispossesses the other of the property -substantially impairs the condition, quality, or value of the property -deprives the possessor of use of the property for a substantial time

Conversion

intentional exercise of dominion or control over another's personal property that so seriously interferes with the other's right of control as justly to require the payment of full value for the property Property may be destroyed or used in an unauthorized manner

Res Ipsa Loquitur

the thing speaks for itself Permits the jury to infer both negligent conduct and causation from the mere occurrence of certain types of events Applies when the accident causing the plaintiff's physical harm is a type of accident that ordinarily happens as a result of the negligence of a class of actors of which the defendant is the relevant member

Implied Assumption of Risk

the plaintiff voluntarily proceeds to encounter a known danger