LES 305 Chapter 9

Tortfeasor

The person who commits the tort

Defamation statement

-false statement of fact tending to damage a person's reputation or standing in the community -Dissemination to a third party (referred to as publication ) -Specificity "All CPA's are crooked" (not specified) "Jones is a crooked CPA" (specific) -Damages

Defining Defect

-Design or manufacturing Defect -Inadequate warning -improper packaging -unavoidably unsafe

Defenses to defamation

-truth -privilege defenses (see page 277)

Restatement of torts (2d), section 516

A person is privileged to use a dog or other animal to protect his property "to the same extent that he is privileged to use a mechanical protective device for those purposes. May be required to post warming Court could adopt it into their state judicial system and then it would be apart of the state law.

design or manufacturing defect

A product may become dangerous if it is designed improperly in that foreseeable risk of harm posed by the product could have been reduced or avoided by some alternative design

Negligence torts

An accidental (without willful intent) event that causes harm to another party

negligence per se

An action or failure to act in violation of a statutory requirement.

Assumption of duty

Another exception to the no general duty to act/ resue is when one party voluntarily begins to render assistance even when there is no legal obligation to do so -Requires that the party rendering assistance must proceed with reasonable care (See page 287)

Causation and damages

Once it has been established that the product is unreasonably dangerous, the injured party must prove only that the defective product was the cause of the injuries and that the product caused an actual injury that resulted in damages.

Damages

See page 276

Landowners

See page 286

Improper packaging

See page 299

Absolute privilege

-Members of congress and other government officials -Judicial proceedings -State legislators

Actual damages

Did the injured party suffer harm?

Cause in fact

Except for the breach of duty by the tortfeasor, would the injured party have suffered damages?

Sources of tort law

For the most part, tort law is governed by state common law Courts may adopt rules articulated by the american institute (ALI) and published in the Restatement of Torts

Zeidman v. Fisher, 980 A. 2d 637 (Pa. Super Ct. 2009) (294)

Golfer rode on the end of the golf cart. his own team mate hit him on the head when he was returning -To grant summary judgement on the basis of assumption of the risk it must first be concluded, as a matter of law, that the party consciously appreciated the risk that attended a certain endeavor assumption of risk was the defendants defense but the court found that it didn't apply

Defamation and Public figure standing

If the victim is a public figure, such as a candidate for political office or celebrity, the defamation must have been committed with malice or reckless disregard for the truth.

Tortious conduct

tortfeasor's wrongful conduct

Negligence in court

-Courts have found that manufacturers have the duty of care regarding proper design, manufacturing, testing, inspection, and shipping -Retailers do not have as comprehensive a duty as the manufacturer but still have a duty to warn the consumers of any product they know or suspect to be unreasonably dangerous

Abnormally Dangerous Activities

-Does activity involve a high degree of risk? -Is there a likelihood that the harm that results will be great? -Is it possible to eliminate/reduce the risk? -Is the activity relatively common? -Is the location of the activity appropriate? -Is there community value that outweighs the danger?

Seller's defenses

-Substantial change -assumption of the risk -Misuse of product

Duty

Did the tortfeasor owe a duty of care to the injured party?

Libel

Oral (spoken) defamation and slander (please see page 276)

Unavoidably unsafe

See page 299

Proximate (legal) cause

Was there a link between the breach of duty and the damaged suffered by the injured party

Products Liability

-In products liability case, the injured party may pursue a legal remedy against the seller under one of the three theories 1.) negligence 2.) warranty 3.) Strict liability

Nelson v. Tradewind aviation (Connecticut, 2015)

-Libel is actionable if it charges improper conduct or lack of skill or integrity in one's profession -The court held that a qualified privilege in a defamation case may be defeated if it can be established that the holder of the privilege acted with malice in publishing the defamatory material recovered 307,000 because of what was said to the potential employee through malice

qualified privilege (277)

-Media (for unintentional mistakes of fact in good faith and absence of malice) -Fair report privilege (when relying on an official public document or statement) -Employees ( when providing a reference for a former employee)

False Imprisonment

-Merchant has the right to briefly detain a suspect shoplifter -But must be cautious about giving rise to a false imprisonment claim when detaining an individual

Assumption of the risk

-The injured party/ plaintiff knew or should have known (by virtue of the circumstances or warnings, etc.) that a risk of harm was inherent the activity and - the injured party/ plaintiff voluntarily participated in the activity.

Tortious interference with prospective advantage

-The law also protects interference with potential contract (prospects) or other business relationships -Because no contract actually exists, courts allow recovery for this tort only under limited circumstances in which the tortfeasor's conduct was highly anti competitive -example; mgr, of ABC shoe store stands outside XYZ shoe store diverting customers from entering

Palsgraf v. Long Island Railroad Co. 162 N.E. 99 (Ct. App. N.Y. 1928) (292-293)

-The scope of your duty (and therefore your liability) for negligent acts is defined by foresee-ability of the harm -"The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is to another or to others within the range of apprehension

Comparative negligence

-This defense requires a jury to divide up the proportion of negligence committed by the parties in terms of percentage -Successfully asserting comparative negligence reduces (but does not eliminate) the final award to the plaintiffs -Plaintiff's recovery is reduced by the same % that plaintiff is found to be at fault for his or her own injuries

Warranty

-Warranty laws are important protection for purchases because they impose liability even in the absence of negligence -When the seller makes a representation of fact about a product, this is an express warranty -The UCC also sets forth implied warranties that goods sold are fit for the purpose intended.

Negligence

-When a tortfeasor fails to act reasonably under the circumstances thereby creating an unreasonable risk of harm, the law provides the injured party a remedy regardless of the tortfeasor's intent -In other words, it was an accident but you had a duty to be more careful -Example; taking off your jacket in a dark theater and hitting someone in the face with your elbow

Tortious interference with existing contractual relationship

-When one party induces another party to break an existing contract with a third party, the inducing party may be liable for any damages suffered by the innocent party as a result of breaking the contract. -A, B, and C; three parties involved here -C knows about the A-B contract but induces B to break that contract -Arises in the area of employment/ restrictive covenants

Merchant's Privilege (a/k/a shopkeeper's privilege) (see page 282)

-merchant must follow guidelines: -Limited detention -Limited to premises or adjacent area -Seizure of property in plain view but not in full search of the accused shoplifter -May not attempt to coerce payment, or a confession or purport to arrest the accused

Strict Liability Torts

-strict liability holds that the general public benefits when liability is imposed on those who engage in certain activities that result in harm to another party, even if the activities were undertaken in the most careful manner possible (without negligence whatsoever) *blowing up buildings

Elements of negligence

1. Duty 2. Breach 3. Causation 4. Damages

Tort

A civil wrong One party has acted or failed to act, and thereby caused a loss to be suffered by another party Which the law recognizes, and for which the law will provide a remedy, usually in the form of money but sometimes in the form of an injunction -Focused on compensating the victim but may also deter wrongful conduct in the future

Defamatory Statement (please see page 276)

A statement is defamatory if it tends to adversely affect the reputation of the subject of the statement. - Statement will usually contain a factual assertion - Mere name-calling is not defamatory. - Opinion statements can be defamatory if it implies factual basis.

Strict liability torts

A tortfeasor may be held liable for an act regardless of intent or willfulness Applies primarily in cases of defective products and abnormally dangerous activities

Restatement of Torts

An influential document issued by the American Law Institute that summarizes the general principles of U.S. tort law and is recognized by the courts as a source of widely applied principles of law. ALI has amended the Restatements twice, resulting in the Restatement (Second) of Torts and the Restatement (Third) of Torts.

Breach of duty

Did the torfeasor fail to exercise reasonable care?

Tortious interference with existing contractual relationship continued

For the injured party to recover damages, the torfeasor must have: 1.) had specific knowledge of the contract 2.) Actively interfered with the contract 3.) Caused some identifiable damages (losses) to the injured party

special relationship (page 286)

In tort law, a heightened duty created between certain parties, such as that of a common carrier to its passengers, innkeepers to guests, employers to employees, businesses to patrons, a school to students, and a landlord to tenants and landowners.

Inadequate warning

Products that are ostensibly safe may carry risks unknown to a reasonable consumer. In such cases, law requires the product to carry sufficient warnings and instructions. Failure to warn may render the product unreasonably dangerous even absent any manufacturing or design defect. -One common category of inadequate-warning cases involves prescription drugs

Trade Libel

Requires false statement 1.) clear and specific reference to the disparaged party or product 2.) Knowledge the statement was false, or reckless disregard for the truth 3.) Communicated to a third party

strict liability

Section 402A's strict liability is imposed on the seller even though: -The seller has exercised all possible care in preparation and sale of the product, and -The user or consumer has not bought the product form or entered into any contractual relationship with the seller.

Brunch v. Hoffinger Industries, 20 Cal. Rptr. 3d 780 (Cal. App. 2004)

See page 298

Substantial change Assumption of the risk Misuse of product

See page 301

Implications in cyberspace

See pages 280-281

Yost v. Wabash College, Phi Kappa Psi Fraternity, et al., 969 3 N.E.3d 509 (Indiana 2014)

See pages 287-288

Product liabilities and guns - legal/ ethical reflection and discussion q

See pages 299-300

Trade libel and product disparagement

Some states have passed product disparagement statutes intended to protect the interest of a state's major industries, such as agriculture, dairy, or beef -Idaho law against disparagement of potatoes -Texas beef producers sued Oprah Winfrey for disparagement of hamburger meat

Fraudulent misrepresentation

The law allows the innocent party to recover if: 1.) the misrepresentation was a material fact known to be false by the tortfeasor (or reckless disregard for the truth) 2.) the torfeasor intended the innocent party to rely on the statement, and the innocent party did, in fact , rely on it 3.) Damages were suffered by the innocent party

Specificity

The statement must be about a particular party, business or product thus a general statement about a profession as a whole cannot constitute defamation, but a false statement about a specific company can be the basis of a reputation claim.

Induce

To bring about or give rise to. In the context or tortious interference, liability is triggered if interference causes harm

Misfeasance (286)

Tort law allocates liability based on a fundamental difference between some act by one party that harms or endangers another party, known as:

res ipsa loquitur (the thing speaks for itself) (see page 289)

court may be willing to infer that the defendant caused the harm, under this doctrine . -shifts the burden of proof from plaintiff to defendant -applies only when ( 1) the defendant had exclusive control of the thing that caused the harm ( 2) the harm normally would not have occurred without negli-gence, and ( 3) the plaintiff had no role in causing the harm.

Other Intentional Torts (page 282)

emotional disturbance, trespassing, public nuisance, fraudulent marketing, assault, battery, Trespass (land), Trespass (chattel), Conversation, Civil assault

Strict Liability - 402A

imposes strict liability on seller of a defective and unreasonably dangerous product when: -The seller is engaged in the business of selling such a product -The product is expected to and does reach the user or consumer without substantial change in the condition in which it is sold

Types of torts

intentional, negligence, strict liability

Intentional tort

one in which the tortfeasor is willful in bringing about a particular event that causes harm to another party

Dissemination to a third party

see page 276

Common law standard behavior

see page 289

Nonfeasance

the failure to act or intervene in a certain situation