Torts II Outline

Defamation: What are some qualified or conditional privileges?

- Apply to etxtent they are not superseded by New York Times or Gertz - The defendant must believe statement is true (and in some jurisdictions have reasonable grounds for believing and not acting recklessly) In qualified or conditional privileges, motive and reasonableness of publisher will be considered.

Defenses: Immunity Parental Immunity: - Early common law rule? - States ______. - Concerns ________. - Exceptions?

- Early common law rule - parental immunity - States have been much slower to eliminate or reduce parental immunity. - Concerns about standard of care in family situations - Willful or wanton and intentional torts not protected by immunity

Defamation: Media v. Nonmedia Generally, ______. Media - Public Figure re: Public Matter = Private Individual re: Private Matter - Private Individual re: Matter of Public Interest

- Generally , Media has more of a "privilege" because of First Amendment Media: - Public Figure re: Public Matter: NYT v. Sullivan: liability only where there is "malice" (knowledge of falsity or reckless disregard) - Private Individual re: Private Matter: state law standards probably apply some boundaries but still concern about free discourse and not chilling media - Private Individual re: Matter of Public Interest: Gertz, state law standard, probably still requires at least negligence

Defenses: Immunity Public Officers - Immunity is __________. - If no _______. - Generally, ________. - When ___________. - Highest _________, unless _______. - Lower _________. When performing ______. - Many states ________. - Judges and legislators are absolutely immune even in bad faith.

- Immunity is not identical to immunity of employer. - If no statutes, common law liability is broader. - Generally, government officers or employees are personally liable for torts. - When exercising judicial or legislative function, employee shares traditional immunity of employer. - Highest executive officers officers of federal and state government are absolutely immune from tort liability unless if they have so far exceeded scope of official discretion (acting clearly beyond bounds of authority, out of personal spite or malice) - Lower level employees have qualified immunity. When performing discretionary function, immune if acting honestly and in good faith. - Many states modify thee rules (example: constitutional violations, indemnification) - Judges and legislators are absolutely immune even in bad faith

Defamation: What are some absolute privileges? (4)

- Judicial (judges, attorneys, parties, witnesses, juries; concept of "ill will" sometimes present) - Executive (in performance of official duties) - Legislative (in legislative proceedings, not newsletters) - Husband/wife

Defenses: Immunity: Governmental Immunity Federal? - Original __________. - Gives ___________. - Exceptions? (11)

- Original total protection from tort immunity changed in 1946 by Federal Tort Claims Act. - Gives federal district courts exclusive jurisdiction over suits against United States for damages for injury or loss of property, personal injury or death cause by negligence or wrongful act or omission of any government employee acting within scope of employment or office. - Waiver of immunity exceptions under FTCA (federal government is still immune for these areas): - Misrepresentation, assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, deceit, or interference with contract rights.

Defenses: Immunity Charitable Immunity - Originally _______. - Policy? - Most jurisdictions _______.

- Originally in US, virtually all states provided immunity for charitable, educational, religious, or benevolent organizations. - Policy reasons: not divert funds from charitable purpose, beneficiaries assume the risk, good works might be impeded. - Most jurisdictions have eliminated charitable defense (with some exceptions)

Products Liability: Strict Liability: Types of Losses What are the types of losses in Strict Liability case involving products? (5)

- Personal injuries - Harm to property other than product - Harm to product - Harm to product constructed with defective component part from another seller - Economic Loss due to unable to use product for its intended purpose

Defamation: Media v. Nonmedia Nonmedia: - Private Individual re: Private Matter

- Private Individual re: Private Matter: usually defamation rules, only defense is truth. Presumed damages for per se categories - slander; libel damages presumed - Public Figure or Public Official re: Public Matter: NY Times v. Sullivan standard, actual malice, knowledge of falsity/reckless disregard for truth Private Individual re: Public Matter: Unclear, no supreme court case on this issue.

Defamation: What are some types of statements that may be treated with special consideration? Pneumonic Device.

- Ridicule is protected to the extent that it represents merely a negative opinion, not implying false facts - Humor that is clearly exaggerated can be an exemption in some cases - Opinion that implies allegation of undisclosed defamatory facts as basis for opinion can be defamation - Verbal abuse: profanity, directed at plaintiff in anger and obviously intended as abuse and not taken liberally is NOT defamation (might be something else, but NOT defamation)

Strict Liability: Restatement Restatement Factors Often Used in Different States (7)

- Usually requires more than one factor (but not all) - High degree of risk of harm to person, land or chattels of others. - Likelihood that resulting harm will be great. - Inability to eliminate risk by exercise of reasonable care. - Extent that activity is not a matter of common usage. - Inappropriateness of activity to place where it is carried on. - Extent to which value to community is outweighed by its dangerous attributes.

Defamation: Terminology What are general groups that are applied in most jurisdictions? (3)

- When the group referenced is large, none may be able to recover even when language refers to all of them - When group is small and each and every member is referred to, all of them may be able to recover - Conflicts arise when reference is to "some" or "most"

Products Liability: Strict Liability: Defenses What are the five defenses? Elaborate.

1) Contributory Negligence: majority of courts do not recognize it as a defense; some courts apply and allow comparative negligence principles 2) Obvious hazard: some courts allow it as a defense; others to reduce damages 3) Assumption of risk: when plaintiff voluntarily confronts known hazard, restatement and some courts bar claim. Some courts look at reasonableness of plaintiffs claim. Some use it to reduce damages. 4) Misuse: generally an absolute limitation on liability. Foreseeable misuse (especially if common) may require manufacturer to design product in light of that 5) Government preemption and immunity

Products Liability: Strict Liability: Types of Cases What are the types of evidence used to trace flaw to defendant? (3)

1) Expert witnesses 2) Life history to show whether there was misuse 3) Evidence to negate misuse, poor maintenance, or overuse

Duty of Care: Bystander Recovery for Negligent Infliction of Emotional Distress Evolution of Standard? (3) (third one has 2)

1) Initially it was the impact rule. 2) Then only those in the "zone of danger" - those who feared for their own physical safety. 3) Evolution of the Dillon rule Amaya (1962 California case) did not allow recovery by a mother who saw her 17 month old son crushed under negligently driven vehicle. Dillon (1967 California case) extended recovery to such an individual, more flexible test, based on foreseeability, larger zone based on closeness of relationship of plaintiff and victim.

Defenses: Assumption of Risk Express and Primary Usually Requires ________. (3)

1) Knowledge: appreciation of what the risk is (charged with common knowledge) 2) Consent - plaintiff must implicitly manifest consent (not conduct that might simply be contributory negligence) (example - crossing street and not looking while talking on a cell phone is not "assumption of risk" but it might be contributory negligence) 3) Voluntariness - not agreed to under duress (example - certain employment settings; no realistic alternative in stressful situation)

Products Liability: Strict Liability: Types of Cases What type of proof is necessary? (3)

1) Must prove product was defective 2) Defect existed at the time product left factory 3) Defect was proximate cause of accident and injuries

Duty of Care: Bystander Recovery for Negligent Infliction of Emotional Distress Foreseeability under Dillon usually requires proximity of: ______. (3)

1) Place: usually must be present at the scene (Thing-majority) 2) Time: usually requires close proximity of time (Thing-majority) 3) Relationship: some require related by blood or marriage; some extend to other such as fiancé, heterosexual partner, gay partner, close friends, step parents.

Defamation: What are two issues regarding defamation?

1) Plaintiffs Status: Public vs. Private 2) Defendant's Status: Media v. Nonmedia - they have different "privileges" or "defenses" the challenge is determining whether it's media or nonmedia - Media has more latitude if an individual is a public official or public figure - Media has some, but less latitude if the private individual is a matter of public concern

Products Liability: Strict Liability What are the Elements of Strict Liability in Products Case? (6)

1) Product 2) Sale (or rental) of product 3) Defect in product at time of sale 4) Defect renders product unreasonable dangerous 5) Physical harm to user or consumer or property 6) Causal connection between defect and harm

Product Liability: Strict Liability: Types of Cases A good warning should _______. (3) In most jurisdictions ________. There is a _________.

A good warning should - get user's attention - explain what hazard or danger is - show how to avoid risk In most jurisdictions, warnings based on basic fault principle (Manufacturers are not liable for what they could not have known at the time they made product) There is a continuing duty to warn.

Defamation: What does it mean to be a public figure? Why are public officials given less protection? (3) What does it mean to be a public official? (define + 2)

A public figure is someone who has achieved fame or notoriety, perhaps only through one's own efforts. ------------------------------ Public officials are given less protections because of: - access to communication - voluntarily assuming role of prominence in public controversy - seeking to influence outcome ------------------------------ Government official (including candidates) are responsible for or controlling government affairs. - Sometimes limited to high ranking officials. - Can apply to both appointed or elected office, but elected officials arguably are more "voluntarily" in assuming prominence.

Intentional Torts: Assault What is Assault? Not ______. Assault is also ________. Assault requires _______. Different jurisdictions ______. Elements __________.

Assault is an intentional, unlawful, offer to touch the person of another in a rude or angry manner Not every assault requires a battery Assault is also an unlawful attempt to commit battery. Assault requires that the offending party create in mind of the claimant a reasonable fear of imminent battery; with apparent present ability to carry out the attempt Different jurisdictions have different requirements for how "imminent" it must be. Elements may be different in criminal and civil assault.

Defamation: Terminology What is colloquium? What is group libel? What is extrinsic facts? What is innuendo?

Colloquium: identification of party defamed Group libel: communication must be understood to refer to plaintiff specifically Extrinsic facts: key unstated facts (inducement) Innuendo: harmful inference of statement

Defamation: What makes a statement defamatory? What are some factors to determine whether a statement is defamatory?

Communication is defamatory if it tends to harm plaintiff's reputation in the community either by lowering others' estimate of him/her or deterring others from associating or dealing with him/her. ---------------------------------------------------- If a substantial and respectable minority of plaintiffs community or associates would regard it as defamatory, then courts may take that into consideration. Time, place, and culture matters.

Defenses: Comparative Negligence Comparative negligence is a ________. Originally _________, but _________. Today, almost all jurisdictions __________. How many states use pure comparative negligence? What is comparative negligence? What is modified comparative negligence? (3)

Comparative negligence is a transitional doctrine from harshness of contributory negligence total bar. Originally judicially adopted, but many jurisdictions now codify this change. Today, almost all jurisdictions have abandoned contributory negligence as a total bar. About 15 states, including Kentucky, have pure comparative negligence. Comparative negligence is when plaintiff can proportionally recover damages to extent of his/her responsibility Modified comparative negligence: - 50% bar: plaintiff can recover only if less negligent than defendant - 51% bar: plaintiff can recover only if NOT MORE negligent than defendant - Some states have a blend of these rules

Intentional Torts: Battery What is the definition? Can also include ________. Remedy? Standard? What rule applies? Intent and courts? (2) Exception?

Definition: intentional and unpermitted physical contact with plaintiff's person Can also include setting in motion such a contact It provides a remedy for physical harm AND for personal dignity using a reasonable person standard The rule of transferred intent applies - if action is intended there may be a battery even if the person affected is not who was originally intended to be Intent to do harm or be offense - not required by all courts Intent to make "contact" is required by many courts (motive irrelevant) Consent negates liability; crowded world - implied consent

Products Liability: Strict Liability: Types of Cases What is Design Defect? What are the four factors courts consider to define "defect"? Most courts ________.

Design defect is intentional design decisions of manufacturer resulting in product that is not sufficiently safe. Four Approaches: 1) Risk-Utility: knowledge at the time product was marketed 2) Risk-Utility: comparing risk and utility at time of trial 3) Consumer Expectations: reasonable expectations of ordinary consumer 4) Risk-Utility and Consumer Expectations combined Most courts use some type of risk/utility analysis considering all factors to determine if manufacturer's conduct was reasonable.

Defenses: Immunity: Define Discretionary Functions. - Inquiry ______.

Discretionary functions - government shielded from liability for claims based on exercise or performance of discretionary function or duty (even if discretion is abused). - Inquiry is whether the conduct by the government employee was "discretionary"

Defamation: What is the rule in Gertz? When does Gertz apply?

Dun & Bradstreet case and other Supreme Court cases indicate that Gertz applies only when there is a public issue

Duty of Care: Duty to Act What is the Restatement general duty provision? What are the three factors?

Duty to take reasonable care under all the circumstances. The three factors are: 1) Foreseeable likelihood that conduct will result in harm 2) Foreseeability of the severity of harm 3) Burden to eliminate or reduce the harm

Defenses: Contributory Negligence Early common law rule? Changed because _______. Is different from ________. Contributory Negligence is not a defense to ___________. Most jurisdictions _________. What is Last Clear Chance? Usually ______ D ____ D ____ Last Clear Chance still ________.

Early common law rule is that contributory negligence is a total bar to recovery. Harshness of "all or nothing" aspect of the rule resulted in exceptions and changes. Is different from avoidable consequences or mitigation of damages - Plaintiff's conduct AFTER the injury results in damages or increased damages Contributory Negligence is not a defense to intentional torts. Most jurisdictions do not apply the defense to wanton & willful or reckless conduct. Last Clear Chance is a limitation to the defense of contributory negligence. - Usually only relevant in the handful of jurisdictions where contributory negligence by plaintiff is total bar to recovery. - Discovered Peril: when the defendant knows or should have known of negligence of the plaintiff and does nothing to avoid the accident, then Plaintiff's contributory negligence will NOT bar plaintiff's recovery. (some jurisdictions apply this) Last Clear Chance still places entire loss on one party, so does not resolve injustice of placing consequences entirely on one party.

Defenses: Immunity Spousal Immunity: - Early common law? Exceptions? - Purposes? - How prevalent is it? - Even where ___________.

Early common law: Immunity of spouses from tort negligence suits. Exceptions: Willful and wanton, intentional torts not included in immunity. Purposes: family harmony, avoiding spurious litigation, availability of other remedies, collusive lawsuits, tortfeasor could share in benefits. More than have of these states have eliminated spousal immunity. Even where eliminated, the standard of care towards spouses is different than care towards strangers. Much more discretion in conduct towards spouses.

Products Liability: Historical Context: Warranty Case(s)? (2) Relevance? (2)

Escola v. Coco Bottling Co. (1944): Established general principle of implied warranty of merchantability (fitness for ordinary purposes for which such goods are sold) Henningsen v. Bloomfield Motors, Inc (1960): Extends implied warranty to foreseeable ultimate purchasers; waivers of warranty generally unconscionable because of social justice policy.

Intentional Torts: Trespass to Land Every _______. Damages? Extension? After ______. Concern? Some _____ conduct ______. Damages?

Every unauthorized entry is a trespass. Damages may depend on extent of injury. Claim of trespass may extend to the sky (at least to some level) After license to use land expires, the failure to leave or remove items placed on land becomes a continuing trespass. Recognizes concern about protecting against adverse possession and prescriptive rights Some intangible conduct (gases and vibrations) might be nuisances instead. Punitive damages allowed where conduct is deliberate or malicious.

Defamation: What are the elements of defamation?

FALSE and DEFAMATORY statement cocnerning another person or corporation. UNPRIVILEGED PUBLICATION to THIRD PARTY FAULT (depends on defendant's status) DAMAGES (depends)

Intentional Torts: False Imprisonment (False Arrest) What is the definition? - Must be ______. Rules seek to _______. Based on ______. Restraint must ________. What is probably not false imprisonment? (3) Restraint might be ________. - ________ not enough; but _______. May be _______. What is arrest?

False Imprisonment is direct restraint of physical liberty without adequate legal justification. - Must be aware (because it is dignitary invasion) Rules seek to balance predictability and flexibility. Based on "dignity" and right to freedom of movement. Restraint must be intentional - physical force not required if there is threat of force Probably not False Imprisonment: - Excluding out - confining to a country - if a person does not remember as long a the person was aware at the time Restraint might be by acts or words (mere words raise issues) - Moral influence alone is not enough, but cannot withhold "key" (means) to one leaving may be sufficient restraint May be privilege (usually statutory) - shoplifting, citizen's arrest Arrest is conviction of crime for which person is arrested generally complete defense for claim of false arrest

Duty of Care: Duty to Act What is the General rule? Exception?

General rule: no duty to control conduct of another or to warn The case Tarasoff is an exception, it arises where there is a special relationship. Foreseeable victim. There is duty to warn endangered party or those who can reasonably be expected to be notified based on special knowledge of the professional.

Defenses: Immunity: Governmental Immunity Governmental Immunity is ________. What are the two types of governmental immunity. Originally in US _________.

Governmental Immunity is the most important (and most complex) Procedural - government had to consent to be sued. Substantive - "king could do no wrong" Originally in US, there was almost complete immunity for federal, state, and local government entities.

Products Liability: "Strict" Liability in Tort Case? What? (3) Where? Who?

Greenman v. Yuba Power Products, Inc. (1963): Manufacturer is strictly liable in tort when 1) article is placed on the market AND 2) manufacturer knows it is to be used without inspection for defects AND 3) it is defective and causes injury. Comes from Restatement 402A of Torts Principles California is the first jurisdiction to adopt this principle

Intentional Torts: Intentional Infliction of Emotional Distress Sometimes called ________. IIED: - Definition - Offending party ________ - Requirement? - Jurisdiction? - Degree of Standard of Conduct? Elements? (4) Jurisdictions? Standard? Requirement?

IIED: - Intentionally subjecting one to emotional distress (without privilege) - Offending party may be liable for emotional distress AND any resulting bodily harm - Does not require physical injury in most jurisdictions, but requires more than mere mental suffering - Each jurisdiction has its own standard regarding outrage, etc. - Higher standard of conduct for common carriers and innkeepers in some states (not extended to business open to public in most jurisdictions) Elements: recognized by at least 37 jurisdictions 1) intentional or reckless 2) extreme or outrageous 3) causal connection between conduct and emotional distress 4) emotional distress must be severe (most courts do not require physical manifestations) Courts generally use the reasonable person standard (unless sensitivities are known or should be known) Intentional infliction requires awareness of presence of third party

Defamation: Issues of "truth"?

If a statement is substantially correct but there are minor errors, then that is probably a fact based determination for the jury

Defamation: If plaintiff is private and no public concern, then, ______.

If plaintiff is private and there is no public concern, - Dunn and Bradstreet, credit report - General damages can be presumed, which allows punitives where conduct is egregious (this leaves the issue of fault undecided in this context)

Defamation: If plaintiff is public figure or public official and defendant is media, then defendant/media may be liable if: (3)

If plaintiff is public figure or public official, regarding a private matter or private person, and defendant is media, then defendant/media may be liable if: - defendant knew of falsity, OR - defendant acted with reckless disregard for truth, OR - defendant was at least negligent (must be proven under state law)

Defenses: Assumption of the Risk: Implied What is the Implied Traditional Rule? What is the Implied Primary Assumption of Risk? - Arguably ________. - Examples? (4) What is the Implied Secondary Assumption of Risk? -Reasonable/Unreasonable Examples? In most jurisdictions, _________.

Implied Traditional Rule can generally be inferred from complaining party's conduct Implied Primary assumption of risk: Voluntarily entered into relationship with knowledge of certain inherent (but commonly accepted) risks. - Arguably means plaintiff is agreeing that defendant has "no duty". - Examples: skiing, professional football player, police officers, firefighters) The Implied Secondary assumption of risk: Voluntarily entering into relationship with knowledge of substantial risk that defendant will act negligently in the future or knowing of a risk that already exists by defendant's negligence, and proceeds anyway. - Reasonable (example: running into burning building to save child) - Unreasonable (example: running into burning building to save a hat) In most jurisdictions, Implied assumption of risk is abolished and courts treat actions of the plaintiff as an element of contributory negligence.

What was Products Liability like historically in Common law?

In common law, it was Caveat Emptor (buyer beware): the principle that the buyer alone is responsible for checking the quality and suitability of goods before a purchase is made.

Owners and Occupiers of Land: Landlord/Tenant Responsibilities What is the common law landlord duty to tenant? What is the trend? Elaborate (3). Landlord duty to tenant's guests, family members, etc.? Tenant's duty to guests when landlord has a responsibility for premises?

In common law, landlords had fewer duties. The general policy was buyer beware. Even if there were duties based on exceptions (latent defect, public use, common areas, negligent repairs), the common law remedy was breach of contract damages (cost of repair, difference in value, etc.), not tort damages (medical expenses, lost earnings, etc.) Trend, beginning in 1960s, is to apply greater responsibility to landlord - Duty of ordinary care in maintenance of premises (implied warranty of habitability) - And to allow tort damages - At least in residential (often in multi-unit) premises Landlord duty to tenant's guests, family members, etc. - Today, generally no requirement of "privity" of contract Tenant's duty to guests where landlord has a responsibility for premises - When tenant is aware of a dangerous condition which would not be obvious to guest, tenant at least has duty to warn

Defamation: What are rules regarding publication (communication)? What are two examples of single publication? What is an example of separate publication? What are the rules regarding republishers? *

Intentional or negligent communication by defendant to someone other than plaintiff. Defendant is NOT liable unintended or accidental publication. ---------------------------------------------------- Single publication: - heard at the same time by two or more third parties - one edition of a book, newspaper, one broadcast, or one exhibition of a movie Separate publication: - Each of several communications to third persons by same defendant ---------------------------------------------------- Republishers are liable to the same extent as original publisher. Defendant is liable for republication by another if: 1) third person was privileged to repeat it OR 2) defendant authorized or intended repetition OR 3) repetition was reasonably foreseeable *Defendant is not ordinarily liable for repetition by plaintiff (some special issues in employment context)

Defamation: What is the difference between libel and slander? What are some relevant factors to determine whether it is libel or slander? (3) Why does the difference between slander and libel matter?

Libel is written, printed, embodied in physical form; or other permanent forms of communication Slander is spoken; transitory gestures ---------------------------------------------------- Relevant factors in determining whether it is libel or slander: 1) area of dissemination (how many people did it reach;audience) 2) deliberate and premeditated character of publication 3) persistence or permanence of publication ---------------------------------------------------- The difference between libel and slander matters because it affects the presumed damages to be awarded by the court

Duty of Care: Duty to Act: Malfeasance and Nonfeasance What is Malfeasance? What is Nonfeasance? Which is worse? Early judicial attention __________. Challenge was _______.

Malfeasance is intentional conduct that is wrongful or unlawful, especially by officials or public employees. Nonfeasance is failure to act when there is a duty to act. Malfeasance is worse and is a higher level of wrongdoing. Early judicial attention is more likely to grant remedy to third parties where there was malfeasance. Challenge was determining whether it was one or the other.

Products Liability: Strict Liability: Types of Cases What is Manufacturing Defect?

Manufacturing defect is departure from intended design regardless of care

What is an important case regarding Products Liability and Negligence? What did it hold?

McPherson v. Buick Motor Co (1916): Allowed Consumers to recover even if they did not have privity of contract.

Defamation: What is an important case we need to know about and what is the rule?

New York Times v. Sullivan: In cases involving - conduct - fitness - role of public officials - public figures then the plaintiff must show that defendant acted with knowledge and malice for both media and nonmedia defendants

Owners and Occupiers of Land: Duties On Premises: Trespasser Original common law __________. What is a trespasser? Generally ________. Exceptions? (2) Trend is towards _________ for _______ (3). Higher duty of care for _______. Doctrine?

Original common law rules made duty dependent on status of the individual who was harmed. A trespasser: one who enters or remains on land without privilege to do so. - Generally no duty of care - Exceptions: 1) Discovered trespassers (probably only a duty to warn) 2) Reckless disregard (sometimes willful or wanton misconduct) Trend is towards general duty of ordinary care (perhaps only duty to warn) for the following: - Tolerated intruders - Dangerous conditions obvious to owner - Trapped trespassers in peril Higher duty to trespassing children, liability for injuries. "Attractive Nuisance" Doctrine/"Turntable" Doctrine: artificial condition that possessor knows or has reason to know would attract children and they would be likely to trespass which would involve unreasonable risk of death or serious bodily injury = very close to general duty of reasonable care.

Owners and Occupiers of Land: What does Owners and Occupiers of Land generally address?

Owners and Occupiers of Land generally addresses duty of owner of property to those outside the property and those who come onto the property.

Defenses: Immunity Immunity vs. Privilege

Privilege ALLOWS conduct (conduct not considered a tort) Immunity recognizes the tort, but for policy reasons allows defense to liability - Favored status of defendant (example - government official) - Burden of liability disproportionate to risk

Owners and Occupiers of Land: Privileged Entrants Who are Privileged Entrants? They are not ______. Jurisdictions?

Privileged Entrants are police officers, firefighters, and public employees such as meter readers, mail carriers, etc. They are not trespassers. Different jurisdictions have applied various duties: - Today, most probably use a "reasonable duty of care" standard

What is Products Liability?

Products Liability is a claim for personal injuries or property damage arising out of the use of a product.

Products Liability: Strict Liability: Prospective Plaintiffs and Other Defendants Who are the Prospective Plaintiffs in Strict Liability case involving products? (3) This has ________. Who are the other defendants? (4)

Prospective Plaintiffs: - Purchasers - Users (who are not purchasers) - Nonusers (bystanders) This has evolved over time. Other Defendants: - Retailers and other suppliers - Sellers of used products - Service providers who use products (hospitals) - Others in chain

Defenses: Statutes of Limitations Purpose? Statute of Limitations - Define - Generally ______. - Most jurisdictions _______. - Statute starts _________. Statute of Repose - Define - Generally, _______ - Generally ________ - Purpose? - Often _______. Sometimes ________. Different types ___________. (examples: )

Purpose is to prevent stale claims, fairness, witnesses, closure Statute of Limitations: - statutory period in which a claim can be filed - Generally, starts to "run" when cause of action accrues. - most jurisdictions now apply the "discovery" rule - Statute starts to run when individual knew or should have known of negligence Statute of Repose - more recent legislative creation - Generally, applies for certain specific types of claims - Generally, starts to "run" when negligent conduct occured - Purpose - burden of maintaining records and insurance - Often very long Sometimes, Infancy and mental disability "tolls" the statute, meaning it does not start to run until the individual is of legal age or disability is removed, usually does not apply for statutes of repose. Different types of causes of action may have different statutes of limitations (examples: general negligence, medical malpractice, etc.)

Duty of Care: Privity of Contract Recovery for __________. Also addressed in __________. Generally, _______. Exception ________.

Recovery for negligence by parties not in privity (not parties to the original contract). Also addressed in products liability. Generally, privity requirement has been eliminated Exception still significant for attorneys (except in narrow circumstances)

Duty of Care: Bystander Recovery for Negligent Infliction of Emotional Distress Recovery under any of these standards: ______. (2)

Recovery under any of these standards: - Physical Manifestation: majority require some form of physical manifestation. This test can be applied to any of the three other tests (impact, zone of danger, Dillon) - Subjective or Objective test? General standard is that of a "normal" plaintiff, unless defendant knew of plaintiff's hypersensitivity.

Strict Liability: Abnormally Dangerous Activities Case/Year? B_____. C_____.

Rylands v. Fletcher 1868 Blackburn: liability for anything likely to do mischief that is brought on land that escapes Cairns: liability for unnatural use of land (based on custom)

Defenses: Immunity: Governmental Immunity State and local? - Some jurisdictions _______________. - ___________ - ___________ - Discretionary ______________. - ___________ - ___________

State and Local: -Some jurisdictions distinguish between governmental and proprietary functions - Proprietary: private type (example - operation of utilities) - Some states limit by statute (including types of cases, caps on damages, etc.) - Discretionary conduct usually is protected - Making of a policy in the first place - Once there is a policy, duty is to follow (but this can raise questions)

Products Liability: Strict Liability: Application Who does Strict Liability in Products Case apply to? Applies even if... (2)

Strict Liability in Products Case applies to sellers engaged in business of selling such products Applies even if: - Even if seller exercised all possible care in preparation and sale - Even if user or consumer did not have a contractual relation with the seller

Strict Liability: Introduction What is Strict Liability? Policy? Usually _______. Negligence _______. Assumption of the risk _________. Require _______.

Strict Liability is liability imposed without fault Based on policy - when blame is on neither party, in interest of social justice, liability is allocated to the one who can best bear the blame. Usually limited to the harms that naturally flow from the trespass or activity -- foreseeability. Negligence principles can apply, even if there is no strict liability. Assumption of the risk is a defense to strict liability. Requires knowledge of risk.

Defamation: Why is per se category important? What are the per se categories? Who uses it?

The importance of per se categories relates to proof of damages. Damages are "presumed" without proving "special damages", giving opening to receiving punitive damages where no actual damages are proven. Per se categories - crime of moral turpitude - loathsome disease - business trade, profession, or office - sexual misconduct of women Some states use this.

Defamation: Internet?

The law has not kept pace with internet developments. Is the internet really like a bulletin board? Or is it publishers or media? These issues are still in flux.

Owners and Occupiers: Duties Outside Premises What are the two types of conditions? What are the duties to those outside the premises for each?

The two conditions are natural and artificial conditions (a.k.a certain activities) The general rule in common law and today for natural conditions is that there is no duty to third parties for natural occurrences. There is also no duty to alter natural conditions to prevent harm. - Some jurisdictions have abolished the rule, but most still apply it. the general rule today for artificial conditions/certain activities is duty of reasonable care.

Intentional Torts: Trespass to Chattel/Conversion There is a remedy _________. Restatement? What may be sufficient? Issues? (2) Damages? Who may maintain an action?

There is a remedy for trespass to chattel that impairs its value; deprives party of use for substantial time; or causes harm to the thing. Restatement: trespass to chattel rules difficult to apply to computer systems. Electronic signals may be sufficiently tangible to support trespass action. May depend on impact on disk space and processing power; diminishing value. - Where harm is substantial - action for conversion possible - allowing for full value Issue of demand: might be required where chattel is in the hands of another with permission but permission ceases Issue of return of chattel Damages: reduced value; cost of repair; forced sale (depending on circumstances - amount of time detained might be a factor Who may maintain an action: someone in the rightful possession of land might have action instead of owner (although owner might have remedy for damage to reversion)

Owners and Occupiers of Land: Trend for all categories __________.

Trend for all categories is to apply reasonable duty of care under the circumstances, considering the status of the individual and the relationship as one of the circumstances.

Defenses: Immunity What is the trend? - Abolition _____.

Trend is to abolish or limit immunities - Abolition sets up inquiry - what is DUTY of party

Owners and Occupiers of Land: Duties on Premises What are the three statuses regarding people on premises? Elaborate on other two.

Trespasser, Licensee, and Invitee Licensee: social guest, invited onto premises - Generally, duty to warn of hidden dangers known to owner/occupier Invitee: one invited on for "economic" purposes - Generally, duty to protect persons from unusual dangers that owner/occupier knew about or should have known about - Questions can arise when invitee is beyond the zone of public invitation

Strict Liability: Animals ________ animals - common law: ______. What is the other type of animals? (2) Many common law ________. - Often _____.

Trespassing farm animals (except dogs & cats) - common law - strict liability for harm Dangerous animals - Wild animals: strict liability but liability may end if animal returns to its wild state, which is indigenous to the locality - Animals known to have vicious propensities - Particular animal: based on past activities - Sometimes breed: based on known temperament Many common law rules are changed by state judicial interpretation or statute - Often affected by custom (example: fencing in; fencing out)

Defenses: Assumption of Risk What is the Underlying Assumption? What is Express Assumption? Exceptions? Other contract principles to apply? (2)

Underlying Assumption: everyone is equally capable of protecting oneself from harm. Express Assumption: general presumption of validity (based on freedom to contract) - Exceptions: intentional torts (or wanton/gross negligence); unequal bargaining power (contracts of adhesion); public interest/policy (e.g., common carriers) Other contract principles to apply: capacity (age/mental state), fraud

Defamation: What is reckless disregard?

What the defendant knows, not what defendant should have checked out, although clearly questionable information is probably not protected (example: anonymous note, known unreliable witness, etc.)