Chapter 9, Chapter 10, Chapter 11, Chapter 12, Chapter 13, Chapter 14, Chapter 15, Chapter 17, Chapter 18, and Chapter 19

Mary Carter and Gallagher Agreements

- Booth v. Mary Carter Paint Co. (1968 class 14 12:00) - This is basically a High-Low Agreement in which the parties agree to a minimum and maximum for the plaintiff to receive - Gallagher agreements work the same way but are fully disclosed

Required state of mind

- Must show the defendant knew of the falsity of the statement or acted with reckless disregard of the truth - State of mind distinguishes intentional misrepresentation from negligent misrepresentation - Defendant can still be liable for representations made where the defendant does not know if they are true or not. You ca not represent belief as actual knowledge.

Defenses to liability

- Negligence of the Plaintiff: Comparative negligence and assumption of the risk is considered in a negligence claim - Disclaimer: Seller can disclaim both implied and Express Warranties in a specific format but can not disclaim implied warranty if not given a written express warranty - Time limitations for bringing the claim: reasonable time and Statute of Limitations

Negligence issues

- Negligent manufacturer may be liable for failure to use reasonable care -- In the Design or Manufacture - In failing to conduct reasonable inspection or testing -- In failing to package and ship in a safe manner - Generally a retailer has no duty to inspect goods unless it has a reason to believe it may be dangerous - If a retailer does know of a dangerous condition then it may have a duty to warn the purchaser - But a Plaintiff may sue the retailer on a Strict Liability theory and not for the retailer's own negligence. - However, in a negligence action the Plaintiff is not limited to suing only the retailer with whom they dealt (had privity) but purchaser's can recover is they are "reasonably foreseeable" plaintiffs.

Environmental laws

- Nuisance law is on the rise to remedy environmental claims - CERCLA (Comprehensive Environmental Response Compensation and Liability Act) - passed in 1986 provides another avenue for pursuing environmental claims - Nuisance laws often offer greater flexibility and damages than are offered by CERCLA

Interference with Prospective Contractual Relations

- One main difference: Since no contract yet exists it is harder to establish that the defendant interfered Can you drive another company out of business? Yes if he used accepted "competitive practices" to do so - no price fixing - Defendant can act competitively but can not act with sheer malice (targeting one competitor only for instance)

Damages (defamation)

- Plaintiff can recover pecuniary and non-pecuniary (such as humiliation) losses - Punitive damages may be awarded in matters pertaining to issues of private concern but may only be awarded in matters of public interest where the plaintiff proves actual malice. - Many states have enacted retraction statutes: bar a plaintiff from recovery if a defendant retracts his statement within a certain period of time.

Reliance

- Plaintiff has to show that he relied on the misrepresentation and not their own investigation - This requirement is met if the representation was a "Substantial factor" in inducing the plaintiff's reliance. Justifiable reliance - Reliance has to be reasonable - Normally not allowed to rely on an "Opinion" - except from a fiduciary or someone purporting to be an expert. - "Mere puffing" and predictions - are considered opinions that are not actionable. - More likely reasonable reliance if the speaker is a neutral or disinterested party such as consumer advocacy group's statement. - Opinions which are contradicted by the facts (facts of which the defendant was aware) then the defendant may not be protected by the opinion exception - A corp. president that represents his company as "a gold mine" but knows the company is losing money and may be liable (Ragsdale v. Kennedy 33:28 chapter 10 video) - Not justified to rely upon a prediction because it is seen as an opinion. -However, if the defendant knows of facts inconsistent with that prediction he may be liable.

Proximate Cause

- Plaintiff must show that the actual damage sustained were proximately caused by the Defendant's misrepresentations - Loss must be reasonably foreseeable result of the misrepresentation

Umbrella Policy

A policy of insurance that provides additional coverage at a certain point of liability and after other specific policies (such as the auto policy) have paid their limits of coverage toward a claim

Underinsured (UIM)

- insures the owner for injuries caused by another motorist where the at-fault driver's policy is insufficient to fully compensate the insured for his injuries - Stacking coverage: SC may allow the owner of multiple insured vehicles to combine (or stack) the coverage of their IUM to cover a loss from an accident with an underinsured at fault driver

Misuse of Legal Process

- malicious Prosecution: Instituting a criminal proceeding without probable cause. - Wrongful Institution of Civil Proceedings: Similar to malicious prosecution but in the context of civil claims - Abuse of Process: Using litigation devises for improper purposes such as to harass or humiliate.

reasonable interpretation

- must be reasonably understood (by at least one person) to refer to the plaintiff

Liability Coverage

- primary purpose is to cover bodily injury or property damage the insured person causes while operating an automobile - SC has a minimum amount of Liability coverage that it requires of all drivers - Split-Limit: each individual may collect a set amount with there is also an aggregate limit max. - Single-Limit: a set amount max available for coverage

Defenses to Strict Liability

- proximate Cause: The defendant is only liable for damages that result from the kind of risk that made the activity abnormally dangerous. Example: Pedestrian hit by truck transporting dynamite is not a strict liability claim though transporting dynamite is an abnormally dangerous activity. -- Also an "act of God" not in the Defendant's control may relieve the defendant from liability - Assumption of the Risk: Knowing and voluntary exposure to the risk may bar recovery

Products Liability

- refers to the liability of a manufacturer, seller, or other supplier of chattel which because of a defect, causes injury to a consumer, a user, or in some cases a bystander. - Liability can be based upon: -- Negligence -- Warranty -- Strict Liability

Publication

- statement must be heard by someone other than the plaintiff - repeating a defamatory statement can also be considered defamation

Imputed Contributory Negligence

- traditional common law view imputed the driver's negligence to the passengers and barred suit from the passengers. - Modern view is that contributory negligence of a driver is NOT imputed to the passenger and thus the passenger is not barred from suing. However, in derivative claims such as the loss of consortium or wrongful death the negligence can be imputed and be a defense the such claims.

Nuisance v. trespass

- trespass interferes with the right to possession - Nuisance interferes with the right to enjoy and use the property - and the interference must be substantial - Conduct can be both a nuisance and trespass. Substantial interference: Plaintiff must show that a person of normal sensitivity would seriously be bothered by the defendant's conduct. Intentional and unreasonable interference: - Conduct musty be either negligent, intentional, or abnormally dangerous - Most private nuisance claims arising from intentional conduct - Plaintiff must also prove that the conduct is unreasonable - Reasonableness may be judged by balancing the plaintiff's harm with the utility of the defendant's conduct.

Employer-Employee relationships

Frolics and Detours: An employer is generally not liable for negligent acts while done on a detour from work duties - Modern view states that slight deviations from work (which are foreseeable) are within the scope of employment. Delegation of Authority of Rights: - Could hiring someone without the employer's permission or allowing an unauthorized person to use the employer's property (Company car) and that person commits a tort/ -- employer can be liable if the employee acted negligently in doing so

Automobile Insurance

- More litigation arises out of the automobile insurance contract than any other type of insurance chart on car accidents (class 14 19:00ish)

Is it Malpractice?

1. The patient dies? - An unfavorable outcome does not prove malpractice. - The standard is reasonableness not necessarily accuracy nor favorable results

Joint and Several Liability

- Applies when Concurrent Tortfeasors - combined acts cause the plaintiff's injuries - Each defendant can be held responsible for the entire harm or any designated portion of the harm if it can accurately be apportioned - Plaintiff can recover only one time for the total damages - whether from one or multiple defendants

Privileges

- A defense to a defamation cause of action of for the defendant to claim a privileges - Privileges can either be absolute or qualified - Absolute privilege: certain jobs provide absolute privilege to defamation claims -- Judges, lawyers, parties, and witnesses have absolute privilege for statements they make during judicial proceedings, as long as the statement bears some relation to the matter at issue. -- Legislators and witnesses before the legislature, all federal officials, governors, and other government officials acting in their official capacity. - Qualified privilege: a statement made to (or pertaining to) a public official such as an accusation of criminal activity unless it is made recklessly. -- a speaker can protect their own interests as long as those interests are sufficiently important - for example telling the police of his suspicion that the plaintiff stole his property

Preemption

- A federal law may preempt (prohibit) a state law tort action - The Public Health Cigarette Smoking Act dictates the warning required on cigarettes packages and prohibits the requirement of other warnings - therefore a warning defect case would be prohibited because this federal law preempts state tort action

Parantal Liability

- A few states have enacted statutes seeking to hold the parent liable for the tortious acts of their children but these are few and limited - Negligent supervision claims and negligent entrustment claims allow for this type of parental accountability claim.

Class Actions

- A large group of similarly situated individuals that incur a similar injury based upon a widely distributed product - a class action allows a representative of a class to sue on behalf of the class: thereby eliminated the need of 100s of lawsuits Certification of a Class: The Court has to approve the class. 5 requirements

Non-trespassing Animals

- A person who keeps "dangerous animals" = Strict Liability for harm done by those animals. This policy turns on the definition of "wild" vs "domesticated" animals - "by custom dedicated to the service of mankind" - domesticated - Strict Liability for Domestic animals when the owners know or have reason to know that the animal has vicious propensities -- How would you know? "one free bite" - Often changed by state statutes - Like SC Dog Bite Statute Section 47-3-110 - owners are liable always no free bite unless the bite is provoked

SC DMV INFO (class 14 30:10)

- Additional Car Insurance (exhibit 17-2) - Optional coverage types help pay costs not paid for by liability or uninsured motorist coverage. They include: -- Collision coverage: pays for accident-related damages to your car (irrespective of fault) -- Comprehensive coverage: pays for damages to your car caused by external factors like weather, theft, or wildlife -- Medical payments coverage: pays for medical expenses if they exceed the limits of other coverage -- rental reimbursement coverage: pays for a rental car if you need one after an accident -- towing and labor coverage: pays for towing and some repair costs Uninsured Motorist Coverage - Uninsured motorist insurance pays for the damages/losses and injuries that you suffer if you are in an accident caused by the driver who does not have car insurance - in SC, you must have the following minimum uninsured motorist coverage: -- $25,000 for property damage -- $25,000 for bodily injury or death per person -- $50,000 for bodily injury or death per accident

What is a misrepresentation

- Affirmatively making a false statement - Intentionally concealing a fact -- Seller hiding some home damage from buyer - painting ceiling - or by actions alone such as a car dealer turning back the odometer - Until the 1950s the doctrine of Caveat Emptor prevailed - let the buyer beware -- No duty to disclose - Modern rule distinguishes between duty to disclose a Latent Defect (hidden) and a Patent Defect (readily discoverable) - For instance a duty to disclose termite damage - If a fiduciary relationship exists - imposes a greater duty to disclose than an "arms length" transaction - Also the courts consider whether the misrepresentation is material (essential) to the transaction. For instance: If the seller knows the buyer intends to make of the property is not possible, and fails to disclose, this may be misrepresentation

Medical Payments Coverage

- Also called personal Injury Protection (PIP) - Coverage which pays medical expenses for the insures - Usually the amount of coverage is $1,000-$5,000 - or $10,000 designed to pay initial expenses but not likely to cover significant medical care

Innocent Misrepresentation

- Amounts to strict liability and the court is hesitant to impose liability for those innocent misrepresentations 2 Exceptions: Sale or rental transaction - Misrepresentations in product liability actions also have strict liability if the label or advertising results in physical harm from such (innocent) misinformation

Warranty

- Combination of contract and tort law - also implicates the UCC Express Warranty: seller represents that the goods possess certain qualities (i.e. "the windshield is shatterproof") - Can be an affirmation of fact or promise regarding the goods - Can be a description of the goods - Can be by use of a sample or model - Privity is not required to recover for a breach of an express warranty Who may recover? - Must be of the general class of persons that the manufacturer should have expected to be reached by the warranty What may be recovered? - Personal and Property damage resulting from the defective product Implied Warranty is made by offering a product for sale - two major implied warranty's -- 1. warranty of Merchantability: is generally termed as "fit for the ordinary purpose for which such goods are sold" -- 2. Fitness for a particular purpose: is created when a seller knows that the buyer's purpose and makes a recommendation on which the buyer relies

Interference with Existing Contractual Relations

- Committed by inducing another to breach a contract with the plaintiff - Must be intentional interference and improper (looks at motive) - See Texaco and Pennzoil Case (10-6a 55:28 chapter 10 video) -- Pennzoil agreed to purchase Getty Oil - Texaco swept in and offered more and Getty withdrew from the deal with Pennzoil

Remedies

- Compensatory Damage or injunction of a private nuisance. - iF THE NUISANCE IS PERMANT THEN THE DAMAGES MAY INCLUDE PROSPECTIVE DAMAGES Defenses: Comparative negligence - assumption of the risk - knowledge of the nuisance before the purchase of the property.

Record Maintenance

- Completion and maintenance of records is critical to avoiding (AND DEFENDING AGAINST) a malpractice claim - Changing of medical records can also open up a medical provider to damages beyond a statutory cap in some situations

Preventing Malpractice Claims in the Law Office

- Confidentiality - Unauthorized Practice of law - Client Relations - Maintenance of Documents and Files - Trust Accounts - Filing and Deadlines

Indemnification

- Contribution shares liability but Indemnification involves a shifting of liability from one tortfeasor to another - For instance an employer paying for the judgment incurred due to an employee's torts could then seek to be repaid by the employee in an indemnification claim

Basis for Bad Faith Claims

- Court determined many insurance contracts are contracts of Adhesion and therefore there is an implied covenant of good faith and fair dealing with the insured. - a Contract of Adhesion is one commonly used in some business which is characterized by the superior bargaining power of the drafting party and the unfamiliarity with the terms of the contract of the non-drafting party, and for which the "weaker" party has no real opportunity to negotiate the terms What are the reasonable expectations of the insured regarding the policy provisions - reasonable expectations doctrine: protects the insured reasonable expectations that coverage will be provided by voiding provisions that would be unanticipated by the ordinary insured and were not negotiated - Court remedy is to reform contract

Overview of Strict Liability Claims

- Defendant is neither negligent nor has any intent of wrongdoing - Usually involves "abnormally dangerous activities" - Lack of Fault is how Strict Liability is different than normal negligence claims - Defendant must pay for any damages even if they carry out those activities in the most careful manner possible - Areas where Strict Liability may be imposed: -- Defendant engaging in abnormally dangerous activities -- Product Liability Claims (ch. 12) -- Animal Harm

Intentional Misrepresenation Elements

- Defendant misrepresents something with the intent of inducing the plaintiff to rely on the misrepresentation - Defendant knows the misrepresentation is false or acts with reckless indifference to the truth - The plaintiff justifiably relies on the defendants misrepresentation - Plaintiff suffers damages as a result of the reliance

No-Fault Insurance (not SC)

- Designed to make insurance companies more quickly pay claims and reduce the number of lawsuits - it has mostly failed at those objectives - The insured gives up their right to sue in tort for damages sustained as a result of a third party's negligence and the insured party's own insurance pays their damages - lower premiums but No Pain and Suffering damages allowed - Can still sue for intentional or reckless conduct or where medical bills surpass a certain level (differs by state)

Vicarious Liability

- Doctrine in which one person may be held liable for the tortious acts of another - Involved some special relationship between the bad actor and the one held to be vicariously liable.

Liability Coverage in SC

- Liability Insurance pays for damages/losses and injuries TO THE OTHER PARTY if you cause an accident - in SC, you must have the following minimum liability coverage: -- $25,000 for bodily injury or death per person - $50,000 total for bodily injury or death per accident - $25,000 for property damage

Informed Consent

- Fiduciary: Relationship of confidence and trust - Creates a duty to disclose all relevant facts to the client so that the client can make an informed decision and exercise autonomy and dominion over their bodies. - Most often has to do with medical treatment - Duty to warn increases as the probability or severity of risk to the patient increases. - Must advise of alternative treatments that might work. - To determine what should be disclosed some courts look to what would be a the expectations of a reasonable (patient) layperson to make an informed decision. - Physician to disclose those risk to a prudent patient would consider material to the decision to undergo the treatment Nature of risk involved - Should the impact of the info on the patient be taken into consideration in determining whether to tell the patient? - Can a physician not inform of a low risk associated with a treatment if the physician feels the risk may cause the patient to refuse the treatment? a. In such circumstances a physician is not required to disclose the info.

First Party v. Third Party Bad Faith

- First Party Claims: Insured sues his insurer - Third-party Claims: Plaintiff is assigned the bad faith claim of the defendant and sues in the shoes of the defendant (insured)

Employer-Employee Liability

- Forbidden Acts: Is an employer liable for acts that the employer specifically told the employee not to do? - Yes- as long as the acts are within the scope and furtherance of employment

Independent Contractor

- Generally one who hires an ____________________ is not liable for the tortious acts of that person. What distinguishes a person as an ______________________________ v. an employee? Control is the primary determiner - an __________________________ is considered to be their own boss - they work at their own pace, in their own way, under their own supervision. exceptions - Negligence of employer in the hiring process - Non-delegable duties- some duties too important to delegate. - extraordinary risk activities may make an employer liable for the harm done by an IC - Illegal acts - employer contracts for an illegal act - Physicians-liable for nurses, and other healthcare providers considered to be under the physicians control though usually actually IC's

Nuisance

- Hard to define precisely: "Legal garbage can" - basically defendants interference with the plaintiff's interests. Public Nuisance: Substantial interference with a right common to the general public - Plaintiff must show that he suffered a particular harm that was not shared by the rest of the public - "particular damage" damage may be a greater loss than others in the community - Example: Commerical fishery being allowed to recover for losses due to pollution even though ordinary citizens who use polluted water could not recover. Private nuisance: Unreasonable interference with the plaintiffs use and enjoyment of their property See exhibit 10-4

Specialists

- Held to a higher standard of care than generalists - "reasonably careful and prudent specialist" in that field - Typically a National (not local) standard

Defamation cases

- In general they are hard to prove and therefore not often litigated unless the damages are substantial

Bad Faith

- Intentional Tort - Occurs if the insurance carrier does one or more of these three things: -- Unreasonably delays payment on a policy -- acts unconscionably toward its insured, or -- engages in unfair claims practices

Contribution

- Joint Tortfeasor A may be entitled to receive partial reimbursement from B and C if A paid more than their pro rata share of the damages

Battery Versus Negligence

- Lack of consent can generate a claim for battery or negligence. - If patient is in total ignorance or physician gets consent for one procedure then performs another the patient may have a claim for battery - If the patient is informed (to at least some degree) but does not fully understand the issue becomes "Were the "Material risks" disclosed?" - which requires expert opinion testimony as to the standard of care and its breach. - in negligence claims the question will be were the undisclosed risks material - was the outcome a foreseeable risk (then can recover) or remote or unpredictable (can not recover)

Strict Liability

- Product must be in "a defective condition and unreasonably dangerous" Dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics. - Must be both in a defective condition and unreasonably dangerous - Plaintiff must show that the product was the cause in fact and proximate cause of his injuries. --Plaintiff must show that the defect existed when the product left the custody of the manufacturer. --- List of Elements (ex. 12-1 & 12-2c) -Retailers (in the business of selling goods) are strictly liable for the sale of any defective goods --Anyone who is the ultimate user or consumer and possibly even bystanders may be a plaintiff.

Unavoidably Unsafe

- Products incapable of being made safe (i.e. experimental drugs) then no strict liability

Covenant Not To Sue

- Promise that the plaintiff will not sue that particular defendant while continuing to hold the other defendants liable

Strict Liability - Damages

- Property damage and personal injury damages are usually recoverable - economic loss only if accompanied by personal injury or property damages

Employer-Employee

- Respondeat Superior Doctrine - "let the higher up answer" An employer is vicariously liable for the acts of an employee - to apply the employee must be acting within the scope and furtherance of his employment - even if his methods are foolish Is an Employer liable for Intentional Torts Committed by their employees? - Yes- as long as the tort is reasonably connected to the employee's job -- For instance: An employer may be liable for False Imprisonment by an overzealous security guard or for assault by an overzealous collections agent roughing up someone to collect.

Failures Constituting Negligence

- See exhibit 9-1 (what constitutes professional negligence) - Failure to use good judgement in setting a course of action (outside of standard of care) - Failure to make referrals when appropriate - Failure to ask for essential info from the client - Failure to follow-up on client's condition - Failure to provide informed consent - Failure to keep abreast of changes in the profession

Ang v. Martin (Wash. 2005) (30:30 in chapter 9 video)

- Sets forth elements of a malpractice claim in a criminal legal representation case - Fraud case 1. Why did the clients pursue a claim against the lawyers that initially represented them? a. Attorneys tried to get them to accept a terrible plea deal - Another attorney got them an acquittal 2. What was Plaintiff's burden of proof for a claim of negligent representation? a. Must show by a preponderance of the evidence that they were actually innocent of the crimes. What is the difference between "legal innocence" and "actual innocence"? - Legal innocence: is a determination made by the trier of fact in a criminal trial - Actual innocence: refers to the determination in a civil trial by a preponderance of the evidence, that the defendant had not engaged in criminal conduct. 3. what damages did the clients suffer? a. The attorney's fees paid plus other damages. - A flat fee of $325,000.00 The court: We conclude that, as plaintiffs in a criminal malpractice action, the Angs were properly required to prove by a preponderance of the evidence that they were actually innocent of the underlying criminal charges.

Reasonable Care for the Professional

- Some states apply a local standard for medical professional malpractice claims but many are now moving to a national standard when determining whether medical care meets the "standard of care"

Defamation: 2 keys

- Status of the Plaintiff: Public figure or Private individual - Subject Matter: Public issue or private issue

What is reasonable care?

- Studied in chapter 5 - The duty of care required of a professional is one of reasonableness - The skill and learning commonly possessed by members in good standing in the profession. - Does not have to be the only course of conduct, just reasonable course under the circumstances - then it is not negligent.

Contract Interpretation

- The Modern Rule for contract interpretation is that contracts are interpreted in favor of the non-drafter so that any ambiguities in a contract for insurance would be construed against the Insurance carrier and in favor of the insured - Insured that sue their insurance carriers will typically include a breach of contract claim with their bad faith claim but bad faith can be pursued even when the contract is not breached - for instance, when a claim is denied without proper investigation

Satisfaction

- The plaintiff is entitled to collect the full amount of the judgement one time - This is known as one satisfaction of the judgment

Invasion of Privacy

- These claims have no basis in the English or American Law prior to 1890 when Samuel Warren and Lewis Brandeis proposed their creation as tort causes of action - Appropriation: The value of the plaintiff's name or picture is used by a defendant for his own financial gain - Unreasonable Intrusion: intrusion upon the seclusion of another if such would be considered highly offensive to a reasonable person (includes binoculars and wiretaps) (see ex. 13-5) - Public disclosure of private facts: a creditor posting a notice that the plaintiff owes him money invades privacy. But there is no invasion if the facts are contained in a public record. - False light: deliberate portrayal of the plaintiff in a false light (highly offensive to a reasonable person) is the tort of false light. The facts may also give rise to a claim of defamation.

Injurious Falsehood

- Trade Libel and Slander of Title Trade Libel: false and disparaging statement referring the plaintiff's goods or business - such a statement does not have to disgrace the plaintiff but plaintiff must show harm resulted Slander of Title: false disparagement of the property rights of another.

To whom must the misrepresentation be made?

- Traditional Rule was liability was limited to the person whom he/she intended to influence with the misrepresentation - Today, Plaintiff can recover is s/he is a member of the class whom the defendant could reasonably expect to learn of, and rely on, the misrepresentation - Reliance must occur in the "type of transaction" the defendant could reasonably expect to engage in as a result of the reliance.

Harm Caused by Animals

- Trespassing animals: most jurisdictions impose strict liability for trespassing animals - Some western states that allow free range animals reject this and adopted "fencing in" or "fencing out" policies Fence out: you as a landowner can have a fence around your property you can hold the owner liable if their animal wanders on your land Fence in: as long as the owner has a fence they would not be liable if the animal gets or?

Interference with Business Relations

- Two Torts designed to protect business interests .1. Interference with existing contractual relations 2. Interference with prospective contractual relations - Interference must be Active - Not applicable to "At-Will" contracts or those which are against public policy Remedies: Plaintiff can recover from pecuniary losses and maybe emotional harm -- and breach of contract as to the party with which they had the ongoing business relationship Privileges: See the Brimelow v. Casson (57:25 chapter 10 video) example of privilege - where public policy supported breaching the contract

Release

- a document in which the plaintiff absolves the defendant of all liability - a release of one defendant may act as a release to all defendants so be careful - to avoid this result a plaintiff can use a "covenant not to sue"

Harm to reputation

- a statement must have a tendency to harm the reputation of the plaintiff (not actually harm) to be considered defamatory - Sufficient even if the hearing does not believe the statement can still be considered defamatory

Defenses to professional negligence

- comparative negligence - contributory negligence - assumption of the risk - emergency situation -Exhibit 9-2

Libel v. slander

- damages are presumed and the plaintiff can collect damages that would "normally result" form a defamatory statement like the one made by the defendant - the courts have limited this right to damages particularly in cases involving matters of "public concern" - where the plaintiff must show actual malice to get the presumed damages.

Negligent Misrepresentation

- essentially the same elements as intentional misrepresentation minus the intent - leaves defendant liable to those he intends to reach with the info or knows the recipient of the info intends to reach. This is more narrow than intentional misrepresentations. - Answer putting into practice 10:1 38:28 of video (Barbara miscarriage etc)

Opinions

- generally not defamatory - however if it leads to "factual" conclusions then it may be defamatory depending on the supporting facts given chapter 13/14 20:25 - "I think George is a pothead" - (Colorado) v. "George has lived in this house for a year and every night I see him on his couch smoking something. I also see him eating lots of snacks after smoking whatever it is. I think he is a "pothead"" (less likely to be defamatory)

Burden of proof

- generally on the plaintiff to prove that the statement is not true - although it is not clear in cases involving public figures and matters that are not a "public interest"

Bailments

- when a party temporarily entrusts goods to the care of another - Bailor - person handing over the goods - Bailee - person receiving custody of the goods - Generally bailors are not vicariously liable for the acts of the bailee - Bailor may be liable for his own negligence if he entrusts control of his property to a person that he knows or reasonable should know is likely to endanger others - Otherwise the traditional rule was that the owner is not vicariously liable for the negligence of the driver. - However some courts have tried to change this rule - Bailor may be presumed liable for the acts of the driver of the vehicle due to insurance coverage issues when the owner is present in the car. These jurisdictions create a legal presumption that the owner is in control of the car if they are present. - Another exception to the general rule of non-liability for the owner is the Family Purpose Doctrine: So long as the driver is a member of the family and has permission to use the car, the head of the family is vicariously liable for the driver's negligent act. Bailment Non-Liability Exceptions: - Automobile Consent Statutes: Legislative attempt to make an owner vicariously liable for the negligent acts by anyone using the car with the owner's permission. This has mostly bee resolved by the "omnibus clause" in automobile insurance policies which covers permissive drivers anyway. - Joint Enterprises Doctrine: Also seeks to make owner vicariously liable - theory here is that the goal of the driving was a joint one in which the owner was involved and therefore be responsible.

What will the client need to prove in each case?

1. An attorney advises a woman injured in a car wreck that she has no case. After the statute of limitations expires she consults an attorney on another matter and that attorney advises her that she did in fact have a good cause of action and would have had a big recovery. - She would have to show that if the attorney did not advise her in that matter she would have received an award/damages. Prove malpractice and OG case win. 2. An attorney fails to relay a settlement offer he feels is too low. The case goes to trial and the jury awards even less. The client finds out about the offer and is upset he was not told. - Prove the attorney breached his fiduciary duty for the difference in the award and OG offer. 3. Attorney forgets to file a list of exhibits and witnesses on the date due resulting in a key witness being excluded at trial. - Prove that the excluded witness would have most likely changed the outcome of the case.

employer Liability

An employer is generally NOT liable for employee torts while traveling to or from work .

Bard v. Jahnke (N.Y. 2006) 15:30 chapter 11 & 12 video)

Bard, a carpenter was working on a dairy farm when a hornless dairy bull named Fred slammed him into some pipes, injuring him. The bull had never previously been aggressive before. The N.Y. Court cited 108(y) of the Agriculture and Markets Laws define a bull as a domestic animal. The court also follows the rule established in Collier V. Zambito regarding the requirement to show vicious propensity of a domestic animal. Though a domestic animal's propensity to cause injury may be proven by something other than a prior vicious act.

Defamation on the web

CDA: Communications Decency Act of 1996 - removed liability for ISPs and other providers when they act in good faith to regulate objectionable content. The ISP is not treated as a publisher of the content. - CDA eliminates nearly all liability against ISPs for defamation

Third Party Bad Faith Claims

Example (class 14 45:20) Arises after the insurance carrier refuses to settle a claim made against their insured for an amount less than or equal to the policy limits. This failure exposes the insured to an "excess judgment". The insured can then file a lawsuit against its insurer for this excess judgment. More likely, the insured will assign this lawsuit to the injured party and must cooperate in suing the insurance company. "Reservation of Rights" defense means that the insurance company is not denying coverage for the claim at the moment but also reserves the right to do so and may defend the insured while also seeking a ruling about whether the policy covers the claim

31:52 chapter 13/14 video

Exhibit 13-3 (text at 13-2H) summary of defamation law

Tort Reform and Joint and Several Liability (class 14 video 4:45)

Links with info - Critics say it costs too much to defend and is unfair to make a party responsible for all when they are minimally at fault - Advocates say it is unfair to make the injured party bear the cost and that uncovered losses are often societal burdens in terms of disability and aid

Defamation in the News (chapter 13/14 video 2:20)

MLB Umpire wins defamation lawsuit against ex-met player

Types of Defects

Manufacturing: A defect in how the good is constructed but not in the design of the good (Macpherson v. Buick Motors (50:25 chapter 11/12 video) Collapsing tire case Design: Did the chosen design pose an unreasonable danger in light of other available designs (lacking a safety feature) was the use a reasonably foreseeable use of the product even if not the intended use (foreseeable misuse) - "State of the Art" defense: there was no reasonable alternative when the good was made due to technology at the time. Warning Defects: Absence of a warning regarding possible dangers of a product may also be the basis for a claim - Court looks at the likelihood of severity of an accident that a warning could avoid - If the risk is obvious then less duty to warn

Damages

Measured in 2 ways 1. (reliance measure) puts the plaintiff in the position she was in before misrepresentation 2. (Benefit of the bargain measure) put the plaintiff in the position s/he would have been in had the misrepresented facts been true. See exhibit 10-2 summary

Abnormally Dangerous Activites

Rylands v. Fletcher (1868) (chapter 11/12 video) - English case where court held that: one "who for his purposes brings on his land and collects and keeps there any thing likely to do mischief if it escapes, must keep it at his peril. Factors to Determine if an activity is abnormally dangerous - High degree of risk - risk of serious harm - Inability to eliminate the risk by the exercise of reasonable care - Not a matter of common usage -inappropriateness of the activity to the location - Value to the community Examples of activities courts have considered abnormally dangerous -- Crop dusting -- Use of poisonous gases -- testing of rocket fuel Examples of activities courts have considered NOT abnormally dangerous -- Airline crash -- Falling tree -- Irrigation

Reformation of Policy

The Court may allow a party to reform the contract to meet applicable state standards or where the reasonable expectations of the policy holder were not met

Is it unreasonable?

The restatement 2nd of torts allows that even if the utility is high if the harm caused by the conduct is greater than any individual should be required to bear then the defendant may have to compensate the plaintiff. -Jost v. Dairy (51:20 chapter 10 video) Coal plant emitted 90 tons of Sulphur-dioxide daily harming farmers - so defendant was required to compensate plaintiff even though utility of the coal plant was high.

Subrogation

The right of the insurance company to seek recovery against the responsible party for the amounts it paid under the policy

Libel

Written defamation - occurring in physical form

Defamation

an invasion of the reputation of a person or group resulting from libel or slander A key case is NYTimes Co. v. Sullivan (1964 chapter 13/14 4:30) - Decision supported public debate and required "public official" to prove "actual malice" in defamation cases 22:55 - Public official can only recover for defamation by showing the defendant acted with actual malic - A statement is defamatory if it tends to harm one's reputation, thereby lowering them in the estimation of the community or deterring others from the association. - must be "published" - communicated to someone other than the plaintiff - Defendant must be at least negligent in making the representation

true or false - you can defame the dead

false

Public Figure

one who has achieved persuasive fame or notoriety or who voluntarily injects himself or is drawn into a particular public controversy. - chapter 13/14 25:15 - Richard Jewell sued FBI, CNN, the Atlanta Journal-Constitution for defamation when they ran with stories that painted him as the Atlanta Bomber (who was actually Eric Rudolph) - chapter 13/14 26:55 - A northern Kentucky youth named Nicholas Sandman successfully sues CNN and the Washington Post both of which settled for undisclosed amounts when the news outlets falsely portrayed the incident as the youth being racist. - chapter 13/14 28:25 - Duke University Lacrosse Team is falsely accused of rape. A group of Duke professors quickly pen a letter for a local publication seemingly condemning the students as racists. The school eventually settled with the accused students.

Slander

oral (spoken) defamation - to prove slander the plaintiff must establish that she suffered some kind of special harm of a pecuniary nature to collect. (therefore the plaintiff must establish more than just a loss of friends and emotional distress to be able to collect) 4 cases in which slander is assumed to cause harm (chapter 13/14 10:45) - special harm rule - the following 4 statements do not require a showing of special harm because special harm is assumed 1. the plaintiff engaged in criminal behavior 2. the plaintiff suffers from a venereal disease or other loathesome and communicable disease 3. the plaintiff is unfit in their position 4. the plaintiff has engaged in sexual misconduct

"Actual Malice" (civil)

reckless disregard for the truth or with the knowledge that the statement is false - knowledge that the statement is false or acting with "reckless disregard" for the truth or falsity of the statement. Malic does not necessarily mean "ill will" - extended to "public figure" not just "public official (in the Gertz v. Robert Welch, Inc. (1974 chapter 13/14 24:30)

true or false - special harm does not need to be proved in a case of libel

true