LAW EXAM 2

Ways a business becomes involved in a tort (3)

(1) person is harmed by actions of business or its employees (2) a person is harmed by a product manufactured or distributed by the business (3)a business is harmed by the wrongful actions of another business or person

Asbestos Litigation in the United States and United Kingdom

- ***if you are in the UK and you are an international business and you lose there, you pay - loser pays(for the law suit) - Some US states have begun to adopt this to save time/law suits

2. Privilege

- Can give immunity from liability - It can excuse what would have been a tort had the defendant not acted to further an interest of social importance that deserves protection - Ex: Breaking into a burning store to save someone trapped inside. If you grabbed the person to get them out of the fire, even if he did not consent, ordinarily you would have a privilege to have touched the person without permission

"Battered At The Show"

- Cindy Tasi sitting next to stage for Billboard - Music Awards at MGM Grand Hotel in Las Vegas. - Singer Miguel, who won awards, tried to jump from stage to catwalk. - Fell a bit short; landed on Ms. Tasi. - She contended action was reckless & negligent. - When he landed, he hit her head, crushing her into side of catwalk. - Sued Miguel. - Also sued MGM, 2 production companies & company that sold her a ticket. Outcome might be: - Man who jumped is liable - Unlikely that the company that had just sold the ticket is liable - Other figure could be liable (don't remember who she said)

Tort

- Civil wrong, other than a breach of contract, for which the law provides a remedy - A breach of duty owed to another that causes harm

Intentional Torts

- Classified on the basis of the personal and property interests the law protects - So there's intentional torts on persons and torts on property

2. Comparative Negligence

- Damages are reduced by the % of injuries caused by the plaintiff's own negligence - Replaced old rule old rule of contributory negligence - Term contributory negligence still used, but for damages, the rule of comparative negligence is employed - Three types of comparative negligence

Unknown Hazards or Latent Defects (pink pill example ON EXAM)

- Dangers not known at the time of the product's manufacture - Hazard associated with the product is not learned for many years - Claims are often class action suits - Consumer Expectation standard used by courts -- What is the expectation of an ordinary customer regarding safety of a product? - Manufacturers must have recalls or warnings when hazard is detected - Example ON EXAM: pink pill one... latent defects -others: IUD - found out they caused spontaneous abortion, Asbestos

Fuerschbach v. Southwest Airlines Company

- Fuerschbach worked as customer service representative for Southwest Airlines at Albuquerque airport. - After new employees finish probationary period, they are often subject to a prank to celebrate the event. - Her supervisor thought would be fun to set up a mock arrest. - Two Albuquerque police officers came to the counter, told her of outstanding warrants against her, handcuffed her and told her she was under arrest. - She began to cry, so officers took her to the party in the back. - All the employees yelled "Congratulations for being off probation!" - Handcuffs removed; little party began. She kept crying and was sent home. - Saw a psychologist who said she suffered post-traumatic stress disorder. - Fuerschbach sued everyone connected with the event on numerous grounds, including assault and battery. - District court granted summary judgment for defendants and did not allow the matter to go to trial. - HELD: Reversed. Summary judgment vacated re: assault and battery claim. She can go to trial. - District court said that the police officers "were courteous and professional." and that in any event, placing an individual in handcuffs is not an offensive contact - Issue: Did the actions offend "a reasonable sense of personal dignity"? - HELD: Jury might be able to conclude that being handcuffed and leading the person to walk fifteen feet offends a "reasonable sense of personal dignity." - Police handcuffed her tightly - offensive contact. - Note: Some other claims allowed to go forward; others were denied. The only claim against Southwest Airlines was a Workers' Compensation claim because there was no intent by anyone to harm her at work. - This was unique to this state's Workers' Compensation Statute. -Only people that got off were the people that could prove they weren't a part of it

Negligence in Tort (ON EXAM - bottom part)

- Manufacturer must exercise reasonable care under the circumstances. - Failure to inspect or test materials used in the product - Were the dangers foreseeable? - Care must be taken to avoid misrepresentation. - Defects and dangers must be revealed. - Causal connection must be present between the product or the design defect and the injury. - By the 1960s, courts began to apply strict liability. - Producers are responsible for damages and punitive damages may be added. - This theory can be used in conjunction with and as a separate theory from strict liability in a lawsuit. KNOW that it wasn't until the 60s that strict liability came into play - In the case Macphearson: it was Negligence bc strict liability didn't exists

Palsgraf v. Long Island RR Co. (1928 Landmark Case)

- Helen Palsgraf waits on the platform for a train; while she was there another train begins to leave the station; a man who was late ran to catch it and jumped on the train holding a package; looked like he was gonna fall a train guard helped pull the man onto the train and another guard helped push him from behind - He drops the package which contains fireworks that explode. - Shock from the explosion causes scales located on the platform to fall and hit Palsgraf on the head, seriously injuring her; Palsgraf sues RR for negligence of its employees. - Jury finds for Palsgraf; appellate court affirms; RR appeals. - Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. - "Proof of negligence in the air, so to speak, will not do" - "Negligence is the absence of care, according to the circumstances" - Issue: Is it foreseeable that the assistance by the guards would cause Palsgraf's injury through the falling scales? - HELD: No. Nothing in the situation would suggest such a result. - Case reversed and dismissed. - This is one of the first FORESEEABILITY cases

"Little chickens feet or little cows hooves" (ON EXAM)

- If you have the lil chicken feet and the chickens feet get infected then you have to put to many hormones in it bc it won't be FDA approved - Little cows hooves: just called this product, but not through a fitness or specfic purpose If they are on some kind of hard cement they'll get cracks in their hooves you have to give them antibiotics. So they often put down carpets On test: little chick feet or cows feet and the man asks, will this protect their feet and she says yes, that is an EXPRESSED WARRANTY BY STATEMENT - Could be by model

Implied warranty (you don't have to put it on the label)

- Implied Warranty of safety -- Manufactured Products -- Food Products - Implied Warranty of Merchantability (products out there ) -- Under the UCC Implied Warranty For Fitness For A Particular Purpose -- Is to compare it to like products -- tires that go for 10,000 miles are not merchantile - Implied AT LAW - whether the manufacturer wants the warranty for the product or not -- When the name of the product is on the item or container and will give the purpose of it -- Indoor/outdoor paint --- Breach of implied warranty if the paint isn't good for both -- Wood glue: if it doesn't hold glue to wood then it's a breach of contract

5. Consumer Products & Negligence (privity of contract)

- In the 19th century courts, there was the PRIVITY OF CONTRACT requirement - a contractual relationship with the manufacturer was needed - Burden on consumer - If there was no relationship, caveat emptor applied -"Let the buyer beware" - This changed with MacPherson v. Buick Motor Company

5. Invasion of Privacy

- Infringement on a person's right of solitude & freedom from unwarranted public exposure May be committed in four ways: 1. Use of a person's name or picture without permission 2. Intrusion on solitude (i.e. wiretap) 3. Placing a person in false light (publishing a false story) 4. Public exposure of private facts (debts, drug use)

4. Infliction of Emotional or Mental Distress

- Intentional conduct: So outrageous, it creates severe mental or emotional distress - Petty insults, annoying behavior, bad language? Usually not actionable; we must have "tough skin". - Bill collectors or landlords who badger, are profane, or threaten lay the background for a lawsuit. - EX: Louisiana court gave an award to a woman who found her comatose husband being chewed by rats in a hospital

The standard (for a reasonable person) (in negligence torts) for professionals (ON EXAM)

- It applies to professions - reasonable CPA, MD, attorney, etc. - Standard: what a reasonably skilled, competent and experience person in that profession would do

The Role of Tort Law (and purpose, and punitive damages)

- It is compensation for injuries wrongfully inflicted by the defendant on the plaintiff - It is Civil not criminal law (can have criminal charges and a tort case) - Tort law is private (aka law is determined in each state) - Purpose: to place injured party in the position he/she would have been in prior to the tort - Punitive damages are also awarded sometimes - Reason for ^: intended to punish defendant financially for malicious behavior and send a message that such behavior will not be tolerated by society

Geczi v. Lifetime Fitness

- Jodi Geczi was member of Lifetime Fitness in Columbus, Ohio. - Was using a treadmill that began to jerk violently and fell and was injured - 2 Lifetime employees told her they knew the machine was broken, but no sign had been placed on it. - Geczi sued Lifetime for negligence and gross negligence. - Claimed she suffered lost income, pain and medical expenses - Lifetime defended that as part of the membership agreement, Geczi agreed to an exculpatory clause - This would bar her claim - She admitted she knew of the clause re: no negligence for Lifetime from using equipment. - Claimed that Lifetime was liable for willful and wanton behavior for failure to warn of danger posed by the malfunctioning machine. Jury held for lifetime. She appealed. TRYING TO PROVE GROSS NEGLIGENCE - There was no gross negligence - Company didn't wait many days - Lady signed a disclaimer - So plainitiff didn't win case

4. Product Liability

- Liability of producers and sellers of goods re: defective products - On one hand, we want companies to have incentives to ensure their products are safe. - On the other hand, we do not want companies to pay for injuries consumers suffer while using products improperly.

Examples of foreseeability (ON EXAM - foreseeability)

- Man was driving, heard an accident up ahead, turned left to go down a street to pass accident, lightning strikes a tree and falls on car and kills the driver but not the passenger, wife sues the people in the accident ahead because her husband would not have turned left if there was no accident - there was not foreseeable - Accident, glove box falls out of car, gun comes out, misfires, scares bicyclist who then swerves and scares dog who runs into an old man who falls down and breaks his hip. Old man sues the person who hit the car in the first place - case will not be held because the action was not foreseeable - There was a lack of proximate cause because the actions were not foreseeable

Strict Liability In Tort

- Manufacturers are strictly liable for defective products - The courts ask: -- Was the product defective? -- Did the defect create an unreasonably dangerous product or instrumentality? -- Was the defect a proximate cause or substantial factor of the injury? -- Did the injury cause damages? -- Courts do not worry about carefulness, due care, reasonableness, etc. - Instead of negligence now we have strict liability -- A coffee pot that can blow up is unreasonably dangerous

Defenses To A Negligence Action

1) Assumption of Risk 2) Comparative Negligence

Joint and Several Liability (ESSAY QUESTION)

- Most states have held plaintiffs may sue any or all manufacturers to share the liability created. - Manufacturers are allowed to fight it out as to which should pay for amounts of damages. Any of the defendant - Whoever is left will be responsible for plaintiff's damages (result in limits - some can't pay so you want to make sure a few have deep pockets) - Ex: pharmaceutical companies gave (offered) doctors a (pink) pill that would help prevent miscarriages. Later found out that the pill caused uterine problems (18-20% chance of getting uterine cancer). People didn't know which pharmacuetical company provided the pill so they sued all 5 of them (each gave like 33,000 dollars)

3. Interference With Prospective Advantage

- One party makes it difficult/impossible for another party to continue in some/all business dealings - A business attempts to improve its place in the market by interfering with another's business - Unreasonable, improper manner of interference - Predatory behavior, not "merely competitive"

Parish v. ICON

- Parish was jumping on a backyard trampoline made by Jumpking, that was surrounded by a safety net (fun ring) made by ICON - He did a back somersault, landed on his head, rendered a quadriplegic. - He sued ICON and Jumpking for failure to warn of dangers in using products. - District court granted summary judgment for manufacturers; Parish appealed. - HELD: Affirmed. Warnings were not inadequate.

1. Assault

- Placing plaintiff in fear of immediate bodily injury - Intent to act to cause a harmful or offensive contact - Plaintiff has imminent apprehension or fear - Fear: if a reasonable person under the same or similar circumstances would have apprehension of bodily harm or offensive contact - The person in danger of harm MUST KNOW of the danger of suffering a battery and be apprehensive of its threat -!!!! Actual contact with the body is unnecessary!!!!!

Types of comparative negligence

- Pure comparative fault: the court determines how much at fault should be assigned to the plaintiff and the defendant. If a plaintiff contributes 85% of the fault in a tort, then the defendant would be liable for 15% of the damages found to arise - If you see that someone got a little amount, it's the pure - 50% comparative fault: if the plaintiff contributes 50% or more of the negligence, there is no recovery for damages - If you see that the plaintiff got something at all you know it's the 50% rule - 51% comparative fault: if the plaintiff contributes 51% there's no recover; if the plaintiffs contributes 50%, he would recover half the damages

Substantial factor test

- Replaced proximate cause in some states - The test states: "A legal cause of injury is a cause which is a substantial factor in bringing about the injury" - That is, the jury is asked whether the defendant's conduct "has such an effect in producing harm as to lead reasonable men to regard it as a cause" - DEFENDANTS could be liable even if their negligent behavior was only one factor contributing to an injury, so long as the behavior was found to be a substantial factor in causing the injury

Strict liability doctrine

- Resolved consumers problems of not being able to prove manufactures didn't take reasonable care - Holds manufacturers liable to consumers injured by defective products regardless of whether the manufacturer had been negligent - Thus, the injured party is not required to attack the reasonableness of the conduct of the manufacturer, but rather focus on the product problems Strict liability under contract law is based on the relationship between the injured party and the manufacturer because of the existence of a warranty

Defense by businesses regarding detention of shoplifters

- Restraint was in a reasonable manner - Restraint was in a reasonable time - Basis for the detention was valid

Invasion of privacy defenses

- Right of privacy waived by public figures, politicians, entertainers, sports personalities, etc. - Information about an individual taken from public files or records

Seki v. Groupon

- Seki demanded Groupon to stop featuring Magical on its website and selling vouchers for rides bc Groupon postings with Magical Adventures received higher positions on Internet searches than Magical Adventures got from its own website, Seki lost 140,000 in revenues when Groupon used his company name. - Sued for invasion of privacy. - Trial Court: Held for Groupon; Seki appealed. - GA law: "the appropriation of another's name and likeness ... without consent and for ... financial gain ... is a tort." - Is invasion of privacy. - HELD: Seki is not precluded from pursing a claim for invasion of privacy through misappropriation. - This is an appropriation concept - Things can't sound too similar (Dell vs Delle)

Squish La Fish, Inc. v. Thomco Specialty Products, Inc.

- Squish holds patent on "Tuna Squeeze" - ProPack was hired to assist with store displays. - ProPack brought in Thomco for advice on adhesive for the displays. - Thomco said the adhesive would wash off; Squish relied on the advice, but adhesive wouldn't wash off. - Squish cancelled contract - Squish sued Thomco for NEGLIGENT MISREPRESENTATION - District Court granted summary judgment for Thomco; Squish appealed. - HELD: REVERSED and REMANDED - The bad information caused Squish to suffer significant cost - There may have been INDIRECT RELIANCE by Squish through ProPack on Thomco's representations.

Determining whether a person's conduct is negligent (what is the standard)

- The law applies a standard of reasonableness - Standard is stated as ordinary care or due care, as measured against the conduct of a hypothetical person (reasonable person) - Standard: "What a reasonable person would do in same or similar circumstances" - Tort law does not make us responsible for every injury our actions cause, only those that result from unreasonable behavior

Examples of assault

- Threats? Usually an assault - Pointing a gun? Yes - Point a gun while other person sleeps? No assault - Letter threats? Usually, no assault ("immediate" requirement usually not met) - Phone threats? Maybe. How close Someone hit from behind - battery only... - Assault is putting someone in fear

2. Battery

- Unlawful "touching" - Intentional physical contact without consent - Even if no actual physical harm, offense to a "reasonable person's sense of dignity" may constitute a battery - Useful in the place of work for when there's inappropriate sexual contact - Use of fist, hand, or kicking - Use of weapons, i.e. guns or stick - Unwanted kiss? Has been held in some states to constitute battery - Assault & Battery often linked together in a lawsuit

Chambers v. Travelers

- When she took her grandson with her that cost was not part of the business - it was personal - Cady gave responible grounds - Publication that was not defamatory - We want companies to be able to investigate it - As long as it's done in a discreet manner its not defamation - Karen Chambers worked for Travelers from 1987-2008. - Supervised employees (underwriters) who began to file complaints about her. - Human Resources Manager, Cady, investigated complaints as did Chambers' superior, Werner. - Results were not good. - Chambers was warned about her behavior. - Was given specific management issues to address. - She was not in agreement. - 2 months later, her superior asked her if it was true she took her daughter with her on a business trip. - Admitted she did but did not volunteer that her grandson came along, too. - When facts came to light, she was fired. - Chambers sued for defamation. - District Court held for Travelers. She appealed.. - Defendant may be entitled to "qualified privilege" that defeats the claim - If statement was "made upon proper occasion, for proper motive & based upon reasonable or probable cause" - Telephone complaint to Cady gave Travelers reasonable grounds to investigate - HELD: Affirmed - Travelers was entitled to the qualified privilege as a matter of law. - Conclusion: Statements made by Travelers agents were entitled to a "qualified privilege".

Lawler v. Montblanc

- Woman had immune disorder - it's not a disability - The woman can still work so she's not completely disabled - This is a mental distress case - They distressed her when they weren't nice to her, when they told her she wasn't doing well, - Have to have something really outrageous to win - California's cause of action for intentional infliction of emotional distress: (1) extreme and outrageous conduct by defendant with intention of causing or probability of causing emotional distress (2) plaintiff suffered severe or extreme emotional distress (3) actual and proximate cause of emotional distress was by defendant's outrageous conduct - "Outrageous": When so extreme it exceeds all bounds usually tolerated in a civilized community - Does not extend to mere insults, indignities, threats, annoyances, petty oppressions or other trivialities - However, the alleged emotional distress is not "severe" - She said injuries manifested as "anxiety, sleeplessness, upset stomach & muscle twitches - this does not rise to "severe" level. - HELD: Affirmed District courts' summary judgment for defendants.

Hamby v. Health Management Associates, Inc.

-Hamby sued HMA, Emcare and others for tortious interference with employment contract. - Trial Court: Dismissed suit. Dr. Hamby appealed. - Hamby said he was prematurely terminated by Emcare. - Because he refused to take part in HMA's scheme to increase revenue by improperly increasing patient admissions and medical testing in emergency department - "Smoking Gun": Linking HMA to termination of Dr. Hamby's employment was email From Pam Tahan, CEO of Summit Medical. - She wrote "We continue to have issues with low ER metrics from Dr. Hamby . . . . Please send me your plan for how this will be resolved. - Plan: Hamby would be terminated. - HELD: Trial court abused discretion in dismissing tortious interference claim. - Reversed and Remanded.

Establishing Intent of tort

1) The state of mind: Person knew what he/she was doing 2) The person knew/should have known the possible consequences of an action 3) Knowing that certain results are likely to occur - To be liable, a defendant must have ACTED - Intentional torts are based on willful acts that invade protected interests - The occur when a jury finds that under the circumstances, a reasonable person would have known that harmful consequences were likely to follow from the act - Intent matters less than the act

Intentional Torts on Persons

1. Assault 2. Battery 3. False Imprisonment or False Arrest 4. Infliction of Emotional or Mental Distress 5. Invasion of Privacy 6. Defamation: Libel and Slander

Defenses of battery

1. Consent 2. Privilege 3. Self defense 4. Defense of others/Defense of property - Most states have "stand your ground" doctrines - No requirement to retreat - Allow force for force & deadly force for deadly force

Primary Areas of Product Liability Law

1. Defect in product from manufacturing 2. Manufacturer failed to warn consumer of risks of use or of known hazards in certain uses of product. 3. Product had design defect that could have been avoided 4. Product resulted in latent injuries that may not become known for years. -- pink pill example

Torts Particular To Businesses

1. Fraud or Intentional Misrepresentation 2. Interference With Contract 3. Interference With Prospective Advantage 4. Product Liability 5. Consumer Products & Negligence 6. Strict Liability 7. Primary Areas of Liability Law 8. Ultrahazardous Activity

Three elements must be shown to exist for both libel and slander to be actionable

1. Making a false or defamatory statement about another person 2. Published or communicated to a third person 3. Causing harm or injury to the plaintiff

The elements to establish fraud or intentional misrepresentation

1. Misstatement of an important or material fact - Ex: Misstatement induces another to enter into some sort of business relationship - Unrelated or unimportant misstatement cannot be a basis of fraud, i.e. hyping a product 2. Scienter (or intent to defraud) 3. Person knows or has reason to know that statement being made is false 4. Recipient of false information justifiably relies on the information and makes a decision to enter into the deal 5. Privity between the parties - relationship exists that created a legal obligation (3rd party observing fraud cannot sue) 6. Proximate Cause - logical link between reliance on misstatement & losses to the plaintiff 7. Damages

Defenses To Negligence and Strict Liability (4) (3rd on EXAM!)

1. Product Misuse or Abuse 2. Assumption of Risk (smoking users) 3. Sophisticated User Defense and Bulk Supplier Doctrine (ON EXAM) - Sophisticated user or Knowledgeable purchaser is one who "reasonably should know of the product's dangers" e.g. another manufacturer. - Ex: There's a chemical company (fertilizer company buys from the chemical companies), put chems together to make fertiziler, find out later that there's a latent defect (grows lots of things but produces a carcinogen - cancer), then they sue the chemical company -- Defense by chemical company; sophisticated user, you hire chemist to make this and didn't know you were going to mix it together 4. Some statutory limits exist. - Worker's compensation

Examples of invasion of privacy cases (example ON EXAM)

1. Someone was worreid about someone selling trade secrets - Then they go in and wiretap your homephone - Is this invasion? - YES (on exam) 2. In Clemson can our computers be reviewed from Clemson? Yes, they're Clemson property (I think they're talking about professor computers..) 3. Publishing is not often invasion, if you can RECANT it - But if you call someone a rapist then that can't really be recanted 4. Found out prof went to same high school as mom, went home and asked mom about him, mom said he was a real pothead in high school, student thought it was hilarious and went and told all his friends, (I think this is a soft tort...) (public exposure of private facts)

Elements of negligence based torts (4)

1. The wrongdoers owed a duty to the injured party (legal standard created is called "due care" or "ordinary care) 2. BREACH OF DUTY of care wrongdoer owed to injured party (the plaintiff). Breached through some act or omission on the part of the wrongdoer. (This breach itself is often called negligence) 3. CAUSATION: a causal connection exists between the wrongdoer's negligent conduct and the resulting harm to the injured party 4. INJURY/DAMAGES: the injured party suffered actual harm or damage recognized as actionable by law as a result of negligent conduct

Defenses to Defamation

1. Truth is a complete defense in some states 2. Absolute privilege is an immunity - Legislators in committee sessions - Participants in judicial proceedings 2. Conditional privilege or QUALIFIED PRIVLEDGE eliminates liability if the false statement was published in good faith. - If there is no malice - In order to protect a person's legitimate interests - Often in business cases (discuss employee performance) 3. Constitutional privilege - Members of the press may publish "opinion" about public officials, figures, or those of public interest if there is no actual malice ("absence of malice")

A warranty

A manufacturer's assurance that a product will meet certain quality and performance standards

3. Self defense

A privilege based on the need to allow people who are attacked to take steps to protect themselves - Stand your ground doctrine" a person need not retreat in the face of danger and may meet force with force

Ultrahazardous Activity

Abnormally Dangerous Activity - Common law rules developed about uncommon activities where utmost care is needed -- i.e. use of explosives, transport of dangerous chemicals, crop dusting, etc. -- Kansas Case: Groundwater contamination from oil refinery Ex: There's a building, top floor (2nd) is the tenants, there was an insect and rodent problem, company came in and checked and fixed room A, but said since they fixed that they said B, and C were fine, but then the problem spread to B, and C and the people got really sick, they didn't use the utmost care This is a strict liability case - Any time you transport a dangerous item you are liable for the results

Baxter v. Ford Motor Company (1932 case)

Advertisement can be an express warranty now - Baxter buys Model A. - Printed material states "Triple Shatter-Proof Glass"--"will not fly or shatter under the hardest impact. . .it eliminates the danger of flying glass." - Rock hits windshield - Baxter loses left eye. - Trial court did not allow advertising to be admitted into evidence; said there was no privity of contract. - Baxter appeals. - Held: Trial court erred in taking the case from the jury. - Representations of Ford were false and Baxter relied on them. - Ford failed to provide the safety glass as advertised. - Breach of express warranty. - Reversed and remanded to grant a new trial allowing advertisement to be admissible evidence.

Vicarious liability

Business is responsible/liable for its employees

3. Design Defects (example ON EXAM)

Cases that focus on the determination of whether an injury to users could have been prevented by designing the product differently Ex: Group of Chicago firefighters won award against siren maker. Sirens caused "excessive exposure to noise" and were unreasonably dangerous and defective. - Design defect: sirens had too many decibels (too loud) KNOW THESE ARE DESIGN DEFECTS, NOT FAILURE TO WARN

Negligence (definition)

Conduct - an act or omission (failure to act) - by a person or business that results in harm to another to whom a duty of care is owed

Gross negligence

Conscious & voluntary disregard for need to use reasonable care - more likely to lead to punitive damages

4. False imprisonment

Def: the intentional holding, detaining, or confining of a person that violates the protected interests in freedom from restraint of movement - Need not be physical; VERBAL restraints, such as threats or using POSITION OF AUTHORITY - Often arises in retail stores when customers are detained with an affirmative defense to a charge of false imprisonment for detaining a shoplifter

6. Defamation: Libel and Slander

Definition: An intentional false communication that injures a person's or company's reputation or good name - Slander: spoken defamation - Libel: published defamation

Interference with contract example ON EXAM

Fox chases the other out to "get the mouse" The two answers for the test: when he wants to renew the contract, don't bc I'll give you a better deal or you can breach the contract and I'll give you a really good deal right now - You're gonna get knocked out but you'll find out about it eventually - Then you're gonna sue. Who though? - The person for breaching and then the person for interfering - If they don't renew then you can't sue them, but you can sue the other person for interfering - THIS IS CALLED PREDATORY BEHAVIOR How can you compete without competitory behavior: - You're attracted to someone and you want them to date you but they're dating someone else - You go over to the other person and you tell them, "I know you're dating them, but consider me, I have ____ qualities..." - Predatory is trashing someone - "Consider me..." is classy

Two types warranties

Express and Implied

2. FAILURE TO WARN (language part on EXAM)

Failure by manufacturer to warn of dangers in using a product - Includes a wide variety of circumstances -- Failure to give information about specific dangers -- Failure to issue added warnings about problems that become known after product has been in use -- Failure to give special emphasis on biggest dangers Have to have warnings in english and spanish (two languages) ON TEST

1. Fraud or Intentional Misrepresentation

Fraud: Deliberate Deception - Malice intent is there, and often added to a breach of contract

"Hot Stuff"

Got dismissed Jimenez ordered a plate of sizzling fajitas for dinner at Applebee's. When food came, he bent over to pray before eating. Heard "a low sizzling noise, followed by a 'pop noise'" Felt a burning sensation in his left eye and face" He sued Applebee's for negligence for failing to warn him of danger. Trial court and appeals court agreed that danger was open and obvious

Express Warranty

Guarantee of safety or performance - By model -- Order jeans, want them to be the same - By statement (ON EXAM): woman states that this product will work - By contract - By advertising -- Advertising is now integrated - can't say the car will work better than the others if it won't Misrepresentation theory is used as well to create strict liability

Difference between negligent and intentional tort

In contrast to an intentional tort, in negligence the harmful results of a party's conduct are not based on an intended invasion of another person's rights or interests - Ex: Person runs over someone on purpose, that's intentional tort of battery. Person accidentally runs over someone from driving carelessly, that's a tort of battery based on negligence

Res ipsa loquitur doctrine

In some cases the plaintiff states a case that is so obvious this doctrine applies ("the thing speaks for itself") - Shows that the case is strong enough to prevent dismissal of the claim without further examination

Proximate cause

Indicates that the liability bears a reasonable relationship to the negligent conduct. - If consequences are too remote - no liability. - If there is an intervening or superseding event/conduct - no liability - Chain of events created by a party's actions must be foreseeable.

Workplace Defamation:

Info. given re: job performance or info. spread within business unnecessarily about an employee

Cause in fact

Is established by evidence showing the person's conduct is the actual cause of the event that created the injury (some courts call this the "but for" test [sine qua non rule]). - That is, the injury would not have occurred but for the conduct of the party accused of committing a tort - We don't use the sine qua non rule anymore - Instead we use proximate cause

Yazdianpour v. Safeblood Technologies, Inc.

KNOW ABOUT INVESTIGATION - Hami Yazdianpour entered in to licensing agreement with Safeblood. - Safeblood (some subsiderary) is run by Worden. - Entered into the agreement to have Exclusive rights to market patented technologies overseas - Worden told the licensees that his patents were marketed by another company in U.S. - But that they would have exclusive rights otherwise. - Worden knew he missed deadline for his U.S. patents to be eligible for protection in other countries. - So the foreign licensing rights were worthless. - So the plaintiffs, not knowing the legal status of the patents, learned later they could not register the in other countries. - Sued Safeblood and Worden for fraud. - District Court dismissed the claim. Plaintiffs appealed. - So in this court they reversed the dismissal of Licensees' fraud claim and remanded the fraud claim to the district court for trial Reasons for this: - Safeblood argued that Licensees could not prove justifiable reliance because on his representation because the status of the patent was publicly available on the USPTO website. And that even if the Licensees could easily have checked the status, they were not required to investigate an affirmative misrepresentation. - Worden also argued that they could not prove he personally made a false statement of fact - But it was proved that he had learned from his attorney that patent could not be registered overseas, - But executed an agreement nevertheless.

Restatement (Third) of Torts on Products Liability

Key part to the Restatement (Third) of Torts define categories of defect in §2 regarding (a) product departing from intended design, (b) foreseeable risk of harm could be reduced or avoided by an alternative design and (c) harm could have been reduced by reasonable instructions or warnings. - Restatement Third speaks of "risk-utility balancing".

"Dare You List My Phone Calls!" (on EXAM)

Know: is this going to be dismissed? YES It was a package deal, so they can't separate the phone bill - Gabriella Nagy's husband was looking through their phone bill. - Saw many calls to a strange number. - He called the number and man on the other end admitted the wife and he had been having affair. - Mr. Nagy dumped his wife. - She sued the wireless company for invasion of privacy. - For publishing the list of phone calls - Which were bundled with the television and Internet services - Said she had asked the company to send her the phone bill in her name alone; company said the couple requested package service. - Ms. Nagy demanded $600,000.

2. Interference With Contract

Known also as - Interference With Business Relations or - Interference With Contractual Relations Breaking the contract benefits a 3rd party 1. Existence of a contractual relationship 2. 3rd party knows about the contract 3. 3rd party intentionally interferes with the contractual relationship 4. Absence of justification for the interference 5. Damages as a result of the interference

Three things there must be proof of for fraudulent claims

Must be proof that a false representation has been made: 1. Knowingly, or 2. without belief in its truth, or 3. Recklessly, careless whether it be true or false

Evolving Changes in the Law of Negligence

Only thing to know: we are moving towards substantial factor - SUBSTANTIAL FACTOR (does not get rid of use of proximate cause)

Three groups (categories) of tort

Negligence, intentional, and strict liability

Danger-Invites-Rescue Doctrine (ON EXAM)

Negligent party is responsible for losses suffered by those who attempt to save people who are in danger as the result of torts of others. - Happens often with drowning

1. Consent

Occurs when the injured party gave permission to the alleged wrongdoer to interfere with a personal right - May be expressed or implied by words or conduct -Ex: voluntary participation in a contact sport

Kim v. Toyota Motor Corporation (ON EXAM)

On test: know the two test that they applied, and that it was not the standard at the time to have equipment on vehicles at the time The two tests: - Consumer expectation test: Product has a design defect if when product used fails to perform as safely as an ordinary consumer would expect. - Risk-Benefit Test: (would it have helped prevent the injuries) -- Plaintiff must show evidence that the design proximately caused the plaintiff's injuries. -- Then burden shifts to defendant to prove "the benefits of the challenged design outweigh the risk of danger inherent in such a design". - Kim driving 2005 Toyota Tundra pickup on wet, curvy road at 50 mph. - Claimed car driving toward him crossed over center line.He swerved to avoid the vehicle. Right tires went off the road on to shoulder. Tried to regain control by turning back on the road. Truck went off road and rolled over. - He suffered serious injuries. - Sued Toyota for design defect: Truck lacked electronic stability control (ESC) - Feature would have increased a chance of regaining control of truck. - Not standard equipment on vehicles at that time. - Trial Court: Found for Toyota. Kim appealed. - California has set out two alternative tests to identify design defect.

MacPherson v. Buick Motor Company (1916)

Privity of contract was thrown out in this case - Buick produced cars and sold them to dealers - NY dealer sold a car to MacPherson. - The wheels on MacPherson's car were made by another company for Buick - Soon after he bought the car the wheel collapsed, causing accident that resulted in injury. - MacPherson files a negligence suit against Buick; Buick says it has no privity with MacPherson; trial court holds that privity is not required; MacPherson wins. - NY Ct. of Appeals holds manufacturer has primary control over product design & safety. - Defects could have been discovered by reasonable inspection, which was omitted. - Buick is responsible for the finished product. - Judgment affirmed.

Harter v. Edwards

Result: Edwards lost - Edwards purse stolen; thief tried to use credit cards. - She was contacted with various businesses re: matter. - Detective Harder of Fort Lauderdale PD had been working on fraudulent check ring. - Edwards's checking acct. was one thieves used for fraudulent checks. - Check from Edwards's acct. written to T.J. Maxx - they cooperated with police. - Using warrants, officers arrested 23 people alleged in involvement in check scam. - This included Edwards. - She was booked & jailed. Family posted bail. - Charges against her dropped. - She sued Detective Harder, Police Department, T.J Maxx & store employee Carlson who provided info. to police re: bogus checks. - Trial Court: Found for Edwards. Defendants appealed. - Where criminal activity encountered, "public policy of Florida is to give wide latitude to an individual reported suspect crime". - This ensures " a free flow in information between the people and the police." - Carlson acted reasonable in pursuing his investigation, - Merely provided Detective Harder with fraudulent checks. - Detective Harter exercised his discretion in pursing his investigation. - Evidence here is sufficient to establish probable cause for Edwards's arrest. - HELD: Reversed final judgment. Defendants win.

Example of res ipsa loquitur

Someone had surgery. Three years later, because of ongoing pain they went to doctor and found that a scalpel was left inside the body at some point during surgery. - The fact that the scalpel is there "speaks for itself"; it must have been left there during the earlier surgery and is the cause of the injury

Defamation per se

Statements are presumed by law to be harmful to the person to whom they were directed and therefore require no proof of harm or injury Examples: person has committed a crime; has a sexually communicable disease; carries out business activities improperly; use of highly derogatory, descriptive language, name-calling, etc. - Cannot use the N word, F'er's, or any derogatory words like W HORE - If person who has false statement said TO THEM, then tells a 3rd party: "Self publication" and no tort. Ex: : two women went to high school together, grew up, moved in right next to each other, would aruge every time they went to get paper, had daughters the same age, 1 lady told the other "prom is coming up and we're getting so many phone calls bc so many men are asking my daughter," the other women argues that they are not bc they're all calling her daughter, "then the other lady said they would all call her daughter too if she was a w hore". (w hore will be on exam and it must be published) - The other lady heard it so it was PUBLISHED - Even though nancy, the mom of the "w hore" was a "madame" in high school (or something) it was not a false statement, but it was a defamatory word aka it was defamation per se

Greenman v. Yuba Power

Strict Liability in Tort Law - California Changes Law - Wife buys husband power tool. - Two years later wood flies out of machine, striking Greenman's head. - He alleges breaches of warranties and negligence. - However: S. Ct. of Calif. affirms trial court decision in favor of Greenman and says that the manufacturer is "strictly liable in tort." - By mid-1970s every state supreme court had adopted strict liability rule.

Superseding cause

The act of a third party, or an outside force, that intervenes to prevent a defendant from being liable for harm to another due to negligence - If the link between the defendant's act and resulting harm is broken by the intervening act, which was unforeseeable under the circumstances, the defendant will likely not be liable - Ex: company digs trench in sidewalk to lay pipe, forgets to cover it at night, Lady gaga shoves Jay Z into it, he gets hurt; Gaga's act is intervening conduct that relieves the company of liability that would have occurred if Jay Z fell into the hole walking down the dark sidewalk - However, if Jay-Z had fallen into the hole and started to drown cause the ditch was filled with rain and Dr. Dre jumped in to save him and then drowned himself, the company would likely be liable for both deaths because of the DANGER-INVITES-RESCUE doctrine

Reasonable person

The standard which one must observe to avoid liability for negligence; often includes the duty to foresee harm that could result from certain actions

1. Assumption of Risk

This defense requires that the injured party knew or should have known of the risk and that the risk was voluntarily assumed - Ex: spectators of a sporting game assume the risk for injuries that result from the usual playing of the game and the reaction of the crowd - It is an affirmative defense - May be based on LIABILITY WAIVER or EXCULPATORY CLAUSE in a contract by which the plaintiff promised not to sue in case of injury - Seen in Gyms, paragliding, etc.

Torts based on negligence

To protect people from the unintentional careless conduct that creates an unreasonable risk of harm to others - "unintentional but legally careless conduct"