B-Law Exam 3: Torts (LSB)

monopoly power

A business cannot be liable for a violation merely for holding monopoly power. The business must also exhibit monopolizing conduct.

In our torts system, factfinders first ask: Who caused the harm, and was it foreseeable? So we have "in fact" causation:

"But for" that misconduct -> the harm would not have occurred. That is the test for direct causation

what is intent

An intended wrong is, legally, far worse than is "mere" negligence.

Fraud is a tort.

Because fraud often arises in the context of contract formation, it was outlined in this text's Second Section, on Contracts.

medical malpractice (medical errors)

Medical errors are estimated to be responsible for about 200,000 deaths a year—far more than those caused by breast cancer, AIDS or motor vehicle accidents.

Causation is the link between harm and breach of duty

There are two types of causation: (1) in fact, and (2) proximate cause (also called "legal causation")

responsibility for consequences

You are responsible for the Natural, foreseeable consequences flowing from your wrongful act.

This percentage is matched to a "market power" scale provided by Judges Learned Hand and Augustus Hand when they decided United States v. Aluminum Company of America, 148 F.2d 416 (1945):

"[O]ver 90[%] ... is enough to constitute a monopoly; it is doubtful whether 60 or 64 percent would be enough, and certainly 33 percent is not."

Elements of defamation include:

(1) "Publication" to another person—put forth, transmitted (not necessarily in writing) to a third person (someone other than the plaintiff or the defendant); (2) False statement of fact (not mere opinion) - "I believe Joe is a loathsome scum sucker" (opinion), compared to "Last Thursday, while walking past a pond, I saw Joe loathsomely sucking scum from a pond." (fact statement, whether true or not); and (3) Harm to reputation (held up to contempt, ridicule, hatred).

To understand the main types of intentional torts (the basic elements), we have four broad categories:

(1) Interference with Property, (2) Interference with the Person, (3) Fraud, and (4) Interference with Business Relations.

Strict liability (without needing to prove fault) is imposed as a matter of public policy. Reasons given for imposing strict liability on a manufacturer or other seller:

(1) Make it the insurer of its product; (2) It has control over product quality; (3) It can distribute costs; (4) It can bear burdens better than others (e.g., the consumer) can; and (5) Morality—it has special responsibilities.

two key questions concerning respondeat superior

(1) Was there an employment relationship? (2) Was the employee on the job, acting within the scope of his/her duties? These issues are, of course, important to resolving many agency issues and administrative disputes.

People have been charged with—and convicted for—deaths resulting from:

(1) a vociferous, in- your-face argument, (2) foolishly placing one's child on a plastic swimming pool raft in the back of a pick-up truck, and (3) dropping rocks off of a bridge onto I-75 (the defendant knew the rocks could hit a car and cause serious injury or even death).

Strict liability concerns:

(1) dangerous activities, and (2) products. --To impose strict liability, fault is not necessary, but one must always show causation and harm.

Indeed, two areas in which courts have been extremely reluctant to permit malpractice claims are:

(1) education (from pre-school all the way to graduate or professional school); and (2) religious counseling.

An ordinarily acceptable purpose for employers to engage in surveillance methods is to:

(1) ensure that employees not carry out illegal activities; (2) deter disgruntled or dishonest workers from passing along confidential information; or (3) measure productivity and quality.

Medical liability policies, according to William M. Sage, a physician and a law professor at Columbia University, should seek three goals:

(1) restraining overall costs, (2) compensating the victims of medical mistakes, and (3) providing incentives for doctors and hospitals to reduce medical errors.

Because they usually extend no warranties and buyers generally have no great expectations when dealing with them, sellers of used goods are rarely liable except for:

(1) some states' special laws requiring warranties from used-car salesmen and (2) their own conduct in poorly making, replacing, or repairing a part.

The criteria by which an advertisement is judged to determine whether it is highly likely to mislead reasonable consumers under the circumstances, are:

(1) substantiation, by the advertiser, of claims made in the advertisement; (2) disclosure, to the consumer, of material information; and (3) disclosure of any material connection between an endorser and the product or manufacturer endorsed.

Defenses to Defamation

(1) truth: If a representation is true, then it simply cannot be defamatory (falsehood is an element of the tort of defamation). (2) privileged statements: Privilege is a protection for "core" judicial/legislative functions: the statements of judges and lawyers in the courtroom (although lawyers may be in contempt of court for what they do or say in court), and the statements of legislators while in the legislature (e.g., in Congress debating a bill, but not while appearing on a television talk show).

res ipsa loquitur

--As a legal principle, res ipsa loquitur applies if: The instrumentality that caused the harm was under the exclusive control of the defendant(s) and the harm that occurred ordinarily only happens because of negligence. --Res ipsa loquitur means, in effect, "Let the defendant explain—the defendant should know what is going on (e.g., the plaintiff was under anesthetic while the defendant was conducting surgery on the plaintiff)." --The defendant still has no burden of proof, but has the burden of introducing some evidence.

assault vs. battery

--Assault involves apprehension, while battery requires contact. --Ex. Cory Creep sneaks up on Sleeping Sylvia and kisses her. That is, if unwanted behavior, a battery. If Sylvia woke up five seconds before the foul deed occurred and saw Cory's creepy lips coming toward her, that is assault. She runs away, to avoid battery, but assault (the apprehension) did take place. --One Can Claim Assault Without Battery or Battery Without Assault

assault

--Assault is the reasonable apprehension of imminent unjustified (harmful or offensive) contact. --The expectation of harm is sufficient for a court to hold that an assault has occurred if the plaintiff was reasonable in imagining what he/she thought was going to happen. --For example, when a defendant brandishes a "weapon," does that supposed weapon reasonably seem to be a real switchblade? A real chainsaw? A real gun?

attractive nusiance

--Attractive nuisance is a dangerous condition, even on private property, that may constitute a nuisance because it attracts trespassers (e.g., children) unaware of the dangers. --These are several examples: unsecured construction sites (big bulldozers with keys in them), outdoor trampolines (possible broken limbs), unsecure swimming pools (possible drowning), and unfenced trees (climbing and falling).

Breach of Duty Standard: Measured Subjectively for Children

--Children are held to a subjective standard, based on a child's own knowledge and experience. --the smarter or more experienced a child is, the more likely he/she is to be subject to tort liability.

defenses

--Defenses are excuses—"I did something that seems bad, but here is my explanation/excuse for why the act is not really a crime, a wrong." --In essence, an excuse may be a legal defense and thus keep an otherwise criminal act from constituting a crime. That is because the defense ordinarily meant that an element needed for conviction—mens rea (criminal intent)—is missing

Factual Causation

--Did the defendant act in the plaintiff's loss? This must be established before inquiring into legal causation, which often is a question of public policy. --For legal causation, the question is profound: Is this the sort of situation in which, despite the outcome of the factual inquiry, we might nevertheless release the defendant from liability (or should we impose liability)?

duress as a defense

--Duress occurs only when more serious, imminent harm is threatened to the defendant than the harm he/she was allegedly forced to commit. --Harm to you has to be greater than the harm you are forced to commit.

entrapment as a defense

--Entrapment is not simply clever police work. --A prerequisite for the entrapment defense is no predisposition to commit the crime.

translation malpractice suits

--Few translation service firms or individual translators have been sued over their allegedly poor translations. --Such suits probably could be brought as: (1) matters of breach of contract (the translator had agreed to perform certain services, but breached his/her duty under the contract), or (2) torts (a type of malpractice—negligence in the professional context)—a breach of duty of care, measured by the standards of the translation profession, if that breach causes harm.

defenses-- obvious risk

--If the use of the product carries an obvious risk, the manufacturer cannot be held liable for any injuries resulting from ignoring the risk. --Despite our plaintiff's assertion that Ford should have warned of the dangers of using the truck to pull down a tree, the courts often apply the standard that a manufacturer need not warn if the danger is generally known and recognized.

medical malpractice (informed consent)

--In medical treatment decision-making, sometimes the main problem is a patient's not being told enough to make a sound choice of whether, and how, to undergo a particular treatment. --An informed consent by patient P to treatment T occurs if and only if: (1) P receives a thorough disclosure concerning T; (2) P acts voluntarily; (3) P is competent to give consent; and (4) P consents to T.

medical malpractice (generally)

--In medicine, generally malpractice involves wrongs in treatment, diagnosis, monitoring, prevention, and/or communication. --Often the problem involves poor systems and failures of communication. An example of the latter is the lack of informed consent.

Commonwealth v. DeCotis, 316 N.E.2d 748 (Mass. 1974)

--It is no defense to a consumer protection action that the conduct is widely practiced within an industry. --Therefore do not rely on industry convention as comfort for the acceptability of conduct that is unfair or deceptive to consumers. --There are always a few state Attorneys General looking to reform what they believe to be improper, but widely practiced or tolerated, marketplace activity.

intentional infliction of mental or emotional distress

--It only covers extreme, outrageous behavior, with physical manifestations of real harm. ---E.g., the plaintiff needed psychiatric counseling, suffered ulcers, missed work, etc. --Because the behavior must be outrageous, it is usually insufficient to complain of just one or two bad acts; it generally is much better for a plaintiff to point to a pattern—a series of planned bad acts (perhaps an organized campaign).

Criteria to examine in developing the risk-benefit analysis include:

(a) Consumer expectations of the danger of the product; (b) the usefulness and desirability of the product (its utility to the user and to the public); (c) the safety aspects of the product (the likelihood that it will cause injury, and the probable seriousness of the injury); (d) the availability of a substitute product which would meet the same needs, yet be safer; (e) the manufacturer's ability to eliminate the unsafe characteristics of the product without impairing its usefulness or making it too expensive to maintain its utility; (f) the user's ability to avoid danger by exercising due care in using the product; and (g) the feasibility of spreading the loss in setting the product's price or by carrying liability insurance.

In product liability law, one can use negligence, strict liability, and/or warranties

(the last is a type of breach of contract claim).

Publication of Information Placing a Person in a False Light (must be outrageous)

--A neighbor burglarized the Woods' home and stole nude photographs of Mrs. Woods, which he later sent to Hustler Magazine. --Hustler published the photographs, and the Woods sued Hustler. --Was there defamation? Some statements in Hustler about Mrs. Wood were false, but the photograph itself was accurate. --It was false light because publication of the photos created an appearance that she consented to the submission of the photos and because it wrongly attributed to her debauched fantasies --While it was also public disclosure of private facts—Mrs. Wood's nude appearance—the appeals court's opinion emphasized false light and noted that the damages for public disclosure would just be duplicative of the damages for false light

Alteiri v. Colasso, 362 A.2d 789 (Conn. 1975)

--A rock thrower, Stone, tosses a rock at his friend, Fritz. --Stone says that he just intended to scare Fritz, not to hit him. --Nevertheless, Stone hits Fritz in the eye, causing severe damage. --What crime, if any, has Stone committed? Assault and battery. --Stone admits that he intended to assault Fritzi. It is a natural and foreseeable consequence that he might miss and hit him instead. --Therefore, his intent to commit assault is transferred to the battery. (transferred intent)

examples of negligence and other torts

--A shopper backs his car into your car at a parking lot. (Negligence) --An ogling male drives along Ft. Lauderdale Beach, watching women; he thus fails to see, and thereby hits, a pedestrian crossing the street (Negligence). --Grocery clerk mopping entrance with no "wet floor" sign; customer falls and breaks her leg (Negligence).

Defenses to negligence, but not applicable to intentional torts, include:

--Act of God, superseding causation, assumption of risk, comparative negligence, and contributory negligence. --To assume a risk, one must know of that risk, so plain, conspicuous warnings to potential plaintiffs often help a defendant establish this defense. --For Workers' Compensation claims, the injured worker's (or co-worker's) own negligence is no defense to liability

tort

--a civil, non-contractual wrong (a non-criminal wrong) --a violation of socially imposed sets of civil duties --Some torts might concern automobile accidents, burns from hot coffees, slip-and-fall accidents, dog attacks, fallen trees, food poisonings, trespasses, and baseballs breaking windows

The law awards compensation for emotional distress in a number of ways:

--It permits an action for intentional or reckless infliction of severe emotional distress (the tort of outrage). --It also allows emotional distress damages to be recovered as parasitic damages in cases of physical injury. --In addition, mental suffering is frequently treated as an element of recoverable damages in connection with certain non-physical injury torts, such as defamation, invasion of privacy, and assault.

self-defense as a defense

--Justifiable self-defense concerns the right to protect one's self and others (our loved ones), especially if in a dwelling. --This defense focuses on preventing a crime. --There is probably no right to take deadly force on a fleeing subject, because you are not in danger.

malpractice

--Malpractice is the failure to adhere to professional standards. --It is negligence in a professional context. --So malpractice is failing to do what a competent, reasonable doctor/attorney/accountant/etc. would have done. --The failure is a breach of duty for professionals in that field (not "what most people would/could do" -Malpractice can occur in any area where licensed, supposedly expert people practice or work.

Ultramares Corp. v. Touche, 174 N.E. 441 (N.Y. Ct. App. 1931)

--New York's highest court refused to apply the foreseeability principles to damages based on an accountant's alleged negligence. --The court limited claims for damages to persons receiving the primary benefit of the accountant's services, not creditors and other third parties who might incidentally rely on statements and documents certified to be correct. --About ten states follow that approach. --A few states hold the accountant liable to any injured party whose existence and injury might reasonably have been foreseen. --But over half of the states follow an intermediate standard—Restatement of Torts Section 552

nuisance

--Nuisance is improper use of one's own property to disturb other persons' use of their property; substantially interfering with the plaintiff's right to use and enjoy his/her property (private nuisance) or with rights common to all (public nuisance). --Examples of nuisance include: Obnoxious (hence, objectionable) music, smells, and other harmful impacts (e.g., a brothel or a crack house), or—a real Florida case—a pig farmer playing music to calm his swine, but disturbing the owners of a nearby golf course. Now, zoning often helps with these land use matters, as does other statutory law. But the common law of nuisance is still available, also.

ordinary people malpractice

--Ordinary people cannot, as laypersons, commit malpractice. They can simply commit negligence (no professional standard). Example: CAN A PATIENT COMMIT MALPRACTICE? Consider the urine sample story. --There is no professional duty of care from a patient. Still, there could be liability as to ordinary negligence standards or for intentional wrongdoing.

warranties and reliance

--Reliance is not needed for warranty claims under UCC Article 2 (Sales). --Warranties for other types of contracts require reliance.

State v. Veverka, 271 N.W.2d 744 (Iowa 1978)

--Ronald Eric Veverka started a fire in his apartment unit. --He was convicted of five counts of felony-murder in connection with deaths which occurred during his perpetration of the arson. --Veverka admitted that he had intended to burn some apartments. However, he did not know that other people were then in the apartment. Five of them died. --While Veverka did not intend to murder anyone, the death of someone who is in a structure is a natural foreseeable consequence of burning down a house.

The 4th Amendment: Search, Seizures, and Probable Cause

--Searches and seizures: Generally, warrants are needed for both searches and arrests. --Warrants are issued upon Probable Cause—Not definite proof, but more than "You Look Like Trouble." --One needs more than a hunch, a gut feeling that you cannot articulate. --But random or systematic searches may be okay.

The theory of negligence vs breach of warranty

--The key difference between the breach of warranty theory and the negligence theory is that the negligence theory requires no privity of contract between the buyer and the seller. --Instead, our injured party would only need to show that Ford did not use reasonable care in designing or manufacturing the truck or in providing adequate warnings. --This is certainly not an easy point for our plaintiff to prove. --In addition, the claim can be weakened if the plaintiff is found to have been negligent themselves in their misuse of the product

good samaritan laws

--These laws are designed to eliminate liability for ordinary negligence in certain situations. --They exempt medical professionals from liability when they in good faith assist in emergency situations. (They would even shield passersby who just do what they can in using, for example, a portable defibrillator.

Superseding (Intervening) Causation

--This is a defense that "Whatever we did, something/someone interrupted the chain of causation"; it was an unforeseeable (foreseeable is not the same as probable or likely) interruption. --This is not a question of physics but, as with proximate cause, a question of responsibility. --For example, even if you were negligent to leave something in the rain, others who subsequently could easily have brought the item in from the rain (but did not do so) could be held to have superseded your negligence.

merchants' protection statutes

--To assist shop owners in fighting shoplifting --To apply, there must be probable cause (reasonable grounds) and reasonable confinement— place, time, etc. These statutes give to merchants limited (not an absolute) right to detain, more than just a citizen's right to detain.

assumption of risk

--To assume a risk, one must know the risk. So potential defendants should give information to possible plaintiffs. --This defense depends upon a plaintiff's knowingly, voluntarily taking a risk. A plaintiff who does that may not recover for an injury arising out of the known risks inherent to that situation. (An exception to this defense is a rescuer acting in an emergency situation.) --Several state courts have barred suits stemming from acts of ordinary negligence in voluntary games—acts such as accidentally tripping or running into someone, hurting someone with a thrown ball, or offhandedly tossing a bat after hitting. --These courts are, in essence, saying that the participants assumed these risks. Of course, even these states would permit suits involving intentional or reckless "rough play" (the sort of behavior considered outside the range of ordinary activity for a sport).

O'Neill v. Hemenway, 3 So.2d 210 (La. App. Ct. 1941)

--a pile driver machine was left on a public street in New Orleans. --It was not grounded, and several youths, including Thomas O'Neill, age 18, took advantage of the shade afforded by the pile driver and sat beneath it on a piece of timber. --Shortly after O'Neill sat down, an electric storm arose and he was struck and killed by a bolt of lightning. --Thomas O'Neill's parents lost their suit on account of an act of God.

Tortious interference with prospective economic advantage

--can involve subtler behaviors or results than an outright interference with a contract. --Here, there is not a contract, but a known relationship (perhaps on the verge of becoming a contract). --The alleged tortfeasor knowingly interferes with the plaintiff's rightful expectations concerning that relationship.

Malpractice reform measures called for—and some of which have been enacted in a number of states— include:

--capping awards, tightening standards for expert witnesses, allowing judgments to be paid out over extended periods, partially shielding emergency room doctors from liability, and limiting lawyers' fees. --The premise of most reforms is that insurance premiums will go down and that more doctors will thereby enter or remain in needed fields

warranties are about:

--character --quality --time (how long) --Warranties usually go down the chain (down the stream of commerce)—lawsuits can go back up the chain (to everyone all the way up—in reverse chronological order).

It is hard to bring a case simply for questionable judgment calls. Much easier are claims involving:

--clear breaches of ethics (e.g., violations of fiduciary duties, such as revealing confidential information) or even battery or infliction of emotional distress. --Those intentional tort claims, which may coincide with malpractice allegations, usually are stronger than mere professional "negligence."

consumer expectations test

--inquires whether the product meets reasonable consumer expectations of safety. --This test considers the average consumer's viewpoint (his/her reasonable, fairly definite expectations) in deciding defect issues. --Implicit in the test is something akin to a negligence calculus: jurors typically are instructed to find a product defective if it was "dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.

Psychiatric malpractice

--involves cases such as: not controlling dangerous patients; or not informing at risk people about patients threatening harm (or not telling the authorities, the police). --An interesting policy issue is Confidentiality vs. Public Safety (must a mental health care professional violate the duty of confidentiality to his/her patient in order to warn or otherwise protect a third party (e.g., the patient's employer or creditors, his ex-spouse) about whom the patient has issued threats; however, that is a rare problem. --Much more frequent a concern, and one for whom an easier case against psychiatrists may be brought, is intentional wrongdoing—e.g., having sex with a patient

are parents liable for the torts of their children?

--parents are not automatically liable for the torts of their children. --there is no respondeat superior for parents. -To be liable, ordinarily parents must be negligent themselves in supervising the child.

Florida Statutes § 812.015(3)

--permits a law enforcement officer, farmer, merchant, or merchant's employee to detain a person suspected of unlawfully taking farm produce or store merchandise. --There must be probable cause to believe that the items were taken unlawfully and that the items may be recovered by taking the person into custody. --Detention may only be for a reasonable time and only for the purpose of recovering the produce/merchandise or for prosecution (a law enforcement officer is to be called to the scene immediately). --Florida's statute also specifies that the activation (e.g., buzzing noise, closing of doors) of an inventory control device constitutes probable cause to detain a person, if the merchant posted notification to customers about the use of such devices.

Palsgraf v. Long Island R.R. Co., 162 N.E. 99 (N.Y. Ct. App. 1928)

--railroad employees tried to help a man onto a moving train. --At the train station, as Mrs. Palsgraf waited for another train with her young daughters, parts of decorative scales fell onto Mrs. Palsgraf. --Yes, the railroad employees did breach a duty, and—yes—that did cause the accident, but the harm was so remote, so unforeseeable. There was no proximate cause, the court held. --The key proximate cause issue tends to be foreseeability.

Suing for Malpractice: The Shotgun Approach

--the Shotgun Approach (like shooting a blast of shotgun pellets) is to assert many claims or defenses and hope at least one pellet hits the target. --Sometimes the shotgun approach may undermine the better claims/defenses because the more dubious claims/defenses leave people questioning everything the "shotgunner" says.

Crinkley v. Holiday Inns, Inc., 844 F.2d 156, 160 (4th Cir.1988)

--the U.S. Court of Appeals in Richmond held that an innkeeper could be liable for failing to inform guests of the potential for crimes. --A gang of robbers was invading hotel rooms along that stretch of the interstate in North Carolina, but the hotelier defendant failed to warn its guests. --That was a breach of a duty of care. --Two guests who were assaulted and robbed in their hotel room thus brought a successful action against the hotel for its negligence in not warning or otherwise taking better safety measures.

Respondeat superior

--the doctrine by which the employer is vicariously liable for the negligence of its employee acting within the scope of employment. (The negligence of the employee is automatically ascribed to the employer.) --This doctrine can explain why employers are liable when their employees engage in a negligent act even without their knowledge.

unintentional consequences and double jeopordy

--the federal courts have repeatedly ruled that the homicide charges do not constitute double jeopardy. --The U.S. Supreme Court has ruled that double jeopardy exists only if the two crimes have the same elements.

theories of recovery--strict liability

--usually easiest to prove --Under strict liability, the injured party does not have to prove negligence, nor does it have to be in privity with the defendant seller. --For our defendant, Ford, to be held strictly liable for the truck mishap, the plaintiff must prove: (1) The plaintiff, or his property, was harmed by the product. (2) The injury was caused by a defect in the product. (3) The defect existed at the time the product left the defendant and did not substantially change along the way.

The breach of warranty action is concerned with:

--whether the quality, characteristics, and safety of the product were consistent with the implied or expressed representations made by the seller at the time of the purchase. --The action requires that the injured party be in a contractual relationship, either expressed or implied, with the seller. --This notion of privity of contract is intended to prevent recovery in the suit by anyone who was not in privity with the seller.

There is no assumption of risk or comparative negligence...

...(e.g., the plaintiff's alleged foolishness) concerning intentional misconduct (intentional torts, or crimes). For example, assume that it is 2:00 a.m., and someone is inebriated and waving his/her wallet in the air while stumbling around in a "bad" part of town. A robbery is not legally assumed just because the victim's behavior was tremendously stupid!

The Test for Strict Liability concerning Dangerous Activities is: Strict liability if these 3 questions are answered (1) Yes, (2) No, and (3) Yes:

1. Is there a high level of danger from the activity? Yes 2. Can the risk in the activity be reduced by reasonable (non-extraordinary) measures? No 3. Is the activity unusual in that locale? Yes

So here are the three main groups of decision makers, with advantages and disadvantages - (concerning product liability)

1. Jurors and Judges—apply common sense approach. But it is ad hoc (case by case), thus not as efficient as a comprehensive legislative or regulatory approach. 2. Legislatures—can hold hearings and enact systematic approaches (statutes). Lawmakers are representative (elected), but often are influenced by lobbyists (so-called special interests). 3. Bureaucrats—conduct investigations, bring in experts (e.g., about consumer safety); can put in time to hold hearings. Can promulgate rules, but—compared to juries and legislature—these administrative agencies are least representative of the populace.

Three things must be shown to prove tortious interference with contract. Let us illustrate that with the Paul (P), Daniel (D) and Laura (L) example:

1. Valid Contract between P & L; 2. D knows about the P—L Contract; and 3. D intentionally causes L (or P) to breach the Contract or otherwise prevents performance. Here, there are two distinct causes of action: (1) a tort claim (tortious interference with contract)—P sues D to recover damages stemming from D's interfering with the contract P had with L (from D's inducing L to breach the P-L contract). (2) a breach of contract claim—P sues L for breaching the contract between P and L.

defect

A defect is something that leaves a product unreasonably dangerous. Defects may exist when products are/were: poorly made; badly designed; or with insufficient or nonexistent warnings. --Problems in Manufacture, Design, or Marketing

Manufacturing Defect

A flaw in a product that occurs during production whereby the product is fundamentally different than the others rolling off the same production line.

Guarino v. Mine Safety Appliance Co., 255 N.E. 2d 173 (N.Y. Court of Appeals, 1969)

A gas leak injured or killed some New York City sewage treatment workers, some had been in the tunnel where the leak occurred, and others had jumped into the tunnel to help their co-workers. --To whom did the gas company owe a duty of care? Besides just to the workers in the sewers/tunnels, there also was a duty to people other than those in immediate danger. So the duty extended also to the rescuers.

Inadequate Warnings

A product must carry adequate warnings of the risks involved in its normal use. To prevail on the basis of failure-to-warn, the plaintiff must prove the defendant breached a duty to warn and that the failure to warn was the proximate cause of the injury.

act of god negligence defense

Act of God is a defense to negligence when purely natural forces such as lightning, earthquakes, or hurricanes are the proximate cause of injury that could not have been prevented by any amount of foresight reasonably to be expected of a defendant. --The trend may be toward undermining the viability of act of God as a defense when protective measures could deal with specifically unpredictable, but generally foreseeable harms stemming from lightning, hurricanes, earthquakes, volcanoes, and other forces of nature.

The first definite common law case announcing the contributory negligence standard was decided in England in 1809. Starting with a Massachusetts case in 1824, American states quickly adopted contributory negligence:

By 1850 it was universally the approach, and contributory negligence remained predominant for well over a century. Only the District of Columbia and four states now have contributory negligence: Alabama, Maryland, North Carolina, and Virginia.

Court Decisions and Statutes on Unfair Competition

Among the unfair tactics the courts have condemned is a business trying to lure customers away from a competing business by confusing customers as to which business or products they are dealing with. The most common way to confuse customers is for a second business to market its goods or services under a name or other mark that is confusingly similar to that used by the first business on its goods or services.

Predatory Business Practices Constitute a Type of Unfair Competition

An example of unfair competition in this broader context is: an entirely predatory business practice. E.g., a Bank President, upset with a disastrous catered event at his/her home, persuades the Bank's Board of Directors that the Bank should diversify and go into catering. The sole goal of this new Bank "venture" is to "do in" the caterer.

Antitrust Law Generally

Antitrust law is meant to foster and protect competition. The American economy is a compromise between two ends of a spectrum: At one end lies complete laissez-faire and at the opposite end lies socialism, with the concept of an intermediate "regulated competition" coming to fruition in America.

What about a product improvement?

As a matter of policy, the plaintiff cannot use the defendant's subsequent improvements to a product to prove a defect for strict liability purposes or to prove a breach of duty for purposes of negligence

The International Realm

At the international level, the International Chamber of Commerce, an independent organization, has promoted self-regulation by developing voluntary codes of marketing practices for businesses

conversion

Conversion is unjustified control over another's personal property. The tort of conversion is committed when a party wrongfully commits a distinct act of dominion over the property of another which is inconsistent with the owner's rights.

battery

Battery is an unjustified contact: the contact itself does not have to be harmful, just offensive. For example, an unwanted kiss is generally deemed to be a battery.

Failure to Follow Instructions, or to Take Safety Measures or Otherwise to Behave Sensibly—

Examples include: no loosening up before or warming down after exercising; improper loading; using a product without heeding warnings; playing sports without use of protective equipment; traveling without using a seat belt or helmet.

Robinson-Patman Act (1936)

Charging different prices for a commodity without a legally justified reason for the difference is price discrimination. The Robinson-Patman Act tends to make it unlawful. Generally, there must be a real difference in costs (e.g., shipping). Simply claiming that one was trying to boost sales is not generally a lawful excuse.

Component-part manufacturer liability

Component-part manufacturers are liable if it is their defective manufacturing or design of the part that is the basis for the suit; but, unless they had reason to believe the manufacturer was in error, component-part makers ordinarily are not liable for design defects in a part that they simply made per the manufacturer's erroneous specifications.

defamation

Defamation is either slander (purely oral) or libel (written or otherwise recorded).

To win a strict liability case involving products, a plaintiff must establish the following six factors to show liability under Second Restatement of Torts §402A: (DEUNCH)

Defective Product, with the defendant Engaged in the business of making or selling such a product; and the product—in its defective condition—was Unreasonably dangerous to the user; No substantial change to the product after it left the defendant's control; Causation (a causal link between the defect and the alleged harm); AND Harm to the plaintiff.

dental malpractice

Dental malpractice often involves mistakes about a patient's teeth or gums, such as pulling the wrong tooth.

Design Defect

Despite the product being manufactured according to the specifications, a product can be defective if inadequate design or poor choice of materials makes it dangerous to users.

Disclaimers and the law of disclaimers are geared towards implied warranties.

Disclaimers can wipe out, or limit, implied warranties. It is very difficult (practically impossible) to disclaim an express warranty.

Warnings also may disclaim warranties.

Disclaimers eliminate or, via modification, restrict warranty obligations. "As Is" is the classic disclaimer.

Disparagement (also called "trade libel" or "commercial disparagement")

Disparagement is any unprivileged false statement concerning the quality of a business' service or product that is intended to and does cause that business financial hardship. Disparagement is thus a type of defamation—in a business context (defaming a competitor's products, services, or general reputation).

elements needed to prove negligence

Duty of Care, Breach of that Duty, Harm, and Causation.

Who Is Liable for a Defective Product?

Each party in the chain of distribution may be liable.

infancy as a defense

Even a child, with no Capacity, can commit a crime. --The test for judging whether infancy excuses a defendant is a subjective test. --Courts look at knowledge/foresight/conscience. The Common Law standard provides that ages 7 and 14 are key divides. --Under age 7, a defendant was held absolutely to be too young to form the requisite mens rea. --From age 7 until the child is 14, there is a rebuttable presumption that the child's infancy should act as a defense. --From the age 14 until 18 (or some other age of adulthood), the rebuttable presumption is that the child should be charged as if he/she were an adult.

accounting malpractice

Inaccurate reading/analysis of financial records; mistakes re: taxes.

false arrest

False arrest is detention of plaintiff, without his consent, under falsely asserted authority (e.g., an insurance claims adjuster pretends to be a cop in order to get information from someone).

false imprisonment

False imprisonment is the wrongful use of force, physical barriers, or threats to restrain plaintiff's movements. If not a merchant, you had better be right when you detain someone. For merchants, an "honest mistake" may excuse an erroneous detention.

Groups usually excused from the antitrust laws include:

Farmers, Fishermen, Labor Unions, Federally-regulated industries, and State-regulated insurance companies.

Crashworthiness Doctrine

For automobiles, one can point to design defects such as seatbelts with faulty latching mechanisms or with shoulder-only belts. As the seatbelt examples indicate, a defect could be not something that causes an "accident," but that fails to deal with the problem (the "accident") after it occurs. The lack of "crashworthiness" has been defined as a defect that did not cause a vehicular accident, but that increased the plaintiff's injuries from that accident.

Ordinarily, the defendant is not required to provide an accident-proof product.

For example, if a car or truck rolls over, that may be chargeable to misuse by the driver—misuse that was not reasonably foreseeable and thus something for which the defendant cannot be held responsible.

manufacturers need to do as much as they reasonably can to prevent an unintended, possibly harmful use.

For example, pharmaceutical makers are constantly seeking to engineer and re-engineer bottles—to design with twists and turns or other schemes the "Perfect Pill Bottle": one toddlers cannot open, but elderly folks can!1

slander or libel "per quod"

For most alleged defamation, a plaintiff must introduce evidence to show that the supposedly defamatory statement harmed the plaintiff

foreseeability

Foreseeability is not the same as probability. In other words, something, to be foreseeable, need not be probable.

Strong competition, by itself, is insufficient to constitute a tort.

Generally, one must show misrepresentation, intimidation or malice. Tortious interference can occur even though the interferers were engaged neither in competition with one another nor in a business relationship with one another.

manufacturer liability

Manufacturers, particularly of end-products (not just component parts), may be liable even if a subsequent party (e.g., a distributor) is responsible for final inspections of, and possible corrections of, the product.

Product liability laws provide an array of compensatory and punitive damage possibilities.

However, more than thirty states, including Florida, have enacted legislation limiting the punitive damages awards. Since Beefy's case would be heard in Florida, state law limits punitive damages to the greater of three times the compensatory damages or $500,000.

Engaged in the Business of Selling/Making that Product (A Merchant-Manufacturer or an Expert)

If you do not make or ordinarily sell the product, then you are not engaged in the business.

invasion of privacy

Invasion of privacy is a 20th-21st Century Tort. --An extremely influential law review article advocated a right of privacy to meet changes in technology, which then concerned newspapers and photography. --Unlike in defamation, for invasion of privacy, truth is not a defense. But here, honor—or damage to it— still matters; and intrusions may be a tort.

intoxication as a defense

Is intoxication a defense? --Only if it deprives you of mens rea. --Voluntary intoxication generally is not a defense, while Involuntary intoxication (accidentally, by force) is a defense. Example—Drew gets drunk, hits Sara, and puts her in a coma. Drew claims he could not have had the mens rea needed to be convicted of a crime, because he was drunk. He cannot even remember what he did. However, Drew can be prosecuted for his battering of Sara; voluntary intoxication is generally NOT a criminal defense.

Under its 1983 Policy Statement on Deception, the FTC put forth standards for what is deceptive advertising under Section 5 of the Federal Trade Commission Act.

It is essentially a looser common-law fraud standard: a deceptive ad has, for instance, a material representation, omission, act, or practice (e.g., "material" means anything about a product's performance, features, safety, price, or effectiveness—whether that thing is express or implied; by including or omitting information from an ad, the advertiser admits its materiality!)

Government Intrusion on an Individual's Privacy

Just because government authorities violate a citizen's right of privacy does not mean that the citizen is entitled to damages.

Are Words Necessary for warranties?

No. Warranties can arise from models, blueprints, diagrams, or photographs. A picture, indeed, is worth a thousand words.184 Thus, to use a picture can be, just like using words, an affirmation of the fact of conformance, or a description, or an expression by reference to a sample or model, and thus constitute a warranty.

Unfair Competition (including remedies under the federal Lanham Act)

Often unfair competition is a claim based on alleged unfair, false, or deceptive advertising.

3 types of torts

One is negligence, and that's the biggest and most common of all torts. The most common of negligence torts is a car accident case. A second classification of torts is intentional torts and there are numerous types of intentional torts out there. There are cases involving, for instance, assault, or battery, or conversion of property, or defamation, or fraud. The third classification is strict liability. These cases do not require fault on the part of the defendant. All we're looking for is that the defendant's actions, his goods, his services, cause harm to a plaintiff, and as a matter of social policy, we have decided that the defendant should bear the risks and should have to pay for any of the harms from his goods or services.

causation

One is responsible for the natural consequences of one's wrongful acts, whether intentional acts or negligent acts.

Puffing is not a warranty, nor a disclaimer.

Opinions (such as statements of value), unless by an expert, in his/her area of expertise, are not warranties.

No Substantial (Material) Changes to the Product Since It Left the Defendant's Control?

Ordinarily, a merely decorative alteration would not be a material change, while an alteration of a product's working components would be a material change.

Some Specific Antitrust Concepts-- Mergers and Monopolies.

Ordinarily, the Justice Department or the Federal Trade Commission investigates the potential merger of large corporations. Unrelated companies can form a conglomerate, which is legally acceptable (although sometimes foolish business).

Federal predatory pricing laws require that alleged harm must be to overall competition, not just to an individual competitor.

Pricing some items below costs, at a large retail establishment, is not a Robinson-Patman violation: To prove a violation, one must show pricing for an entire market; only that truly affects overall competition (not just impacts particular persons).

Some inducements for others to breach are lawful. These inducements are "privileged" if they use reasonable methods and have proper purposes.

Privileged behavior is a defense from claims of tortious interference. Two examples are advertising and labor union activities.

UCC 2-318 and Breach of Warranty Lawsuits

Privity is not an issue for negligence and strict liability cases and often not much of an issue for alleged breaches of warranty. The latter is the case because of UCC 2-318, which concerns liability based on warranties. (One might try, as plaintiff, to use all 3 approaches: Negligence, Strict Liability, and Warranties.)

retailer liability

Retailers often are liable, but some jurisdictions excuse from responsibility a retailer who did not in any way help cause the product's defective condition.

Some Specific Antitrust Concepts-- Unjustified Price Discrimination

Robinson-Patman violations occur when a business charges different prices for the same commodity without a legally justified reason for that difference. Different transportation costs or other expenses, but not simply trying to boost sales, may excuse a price differential.

other defenses used

Some additional, possible defenses are consent, immunity, insanity, mistake of fact or of law, and the statute of limitations.

Unreasonably Dangerous Product (When the Product Is Used for Ordinary Purposes)

Sometimes this requirement is treated as being the "Consumer Expectations Test"—the consumer has a right to expect a product to perform as safely as an ordinary consumer would assume should be the case, when the product is used in an intended or reasonably foreseeable manner.

Strict PAW

Strict Liability involves Products, Abnormally dangerous activities, and Wild animals

successor corporation liability

Successor corporations tend to be liable for the acquired company's debts, including product liability judgments or claims stemming from the acquired business' actions before it was acquired.

In its findings on deceptive advertising, the FTC considers the effect, not the intent, of communication

The FTC may hold an advertiser liable for implied claims discerned by as little as 14% of a consumer audience.

Hutchinson v. Proxmire, 443 U.S. 111 (1979)

The Supreme Court, in an 8-1 decision, held: (1) the Constitution's speech or debate clause did not protect transmittal of the allegedly defamatory material in Proxmire's press releases and newsletters, and (2) Hutchinson was not a "public figure" so as to make a showing of actual malice necessary.

Many states have enacted consumer protection statues providing for specific remedies for a variety of product defects.

The best known example: lemon laws, which became widespread because automobiles are often an American citizen's second largest investment after buying a home. Some commentators say that the Supreme Court unfairly slants a narrow law into a broadside against plaintiffs and personal injury lawyers.

Cases also are brought against media or Internet Service Providers (ISPs), with more chances to achieve compensation against the ISP.

The business response, to protect itself, has been better compliance with more privacy laws, upgraded usage policies in business, legal disclaimers in websites, and to emphasize, whenever possible, that ISPs and e-Media servers are different from brick and mortar media. Under the Communications Decency Act (1996), ISPs do not qualify as publishers of third party content.

Required Disclosures

The federal Truth-in-Lending Act mandates comprehensive disclosure of credit terms. Generally, state consumer protection is more stringent and substantive than is federal law, which is more devoted simply to information disclosures. Sometimes, disclosures are by the governing authorities themselves. Sometimes disclosures are ordered by courts or administrators, or are trumpeted by the winning party.

Four Different Ways to Make a Civil Case for Invasion of Privacy:

The four ways are public disclosure of private facts, false light, intrusion upon private life, and unauthorized appropriation of name or likeness.

In criminal law, it is better that a child not be "gifted."

The more precocious a child is (the greater experience and aptitude), the more likely it is that he/she is subject to criminal charges as an adult.

legal malpractice

The most frequent type of legal malpractice, and easiest to prove, is missing deadlines.

it is not ordinarily a Robinson-Patman violation to reduce prices simply to meet competition.

The question is whether the price arrangement conforms to economic reality. However, some state antitrust laws are more pro-plaintiff than Robinson-Patman is. They sometimes permit successful predatory pricing claims that could not succeed at the federal level.

Public Disclosure of Private Facts (must be outrageous)

There is often a question of conduct. Did the plaintiff agree to the behavior? How much expectation does the plaintiff have that his/her behavior will be kept out of the public eye, and how reasonable is his/her expectation, given the circumstances?

general issues in malpractice law

These issues include: society's interest versus an individual's right to sue. There is a balancing of various interests—A triad fighting about reforms: (1) Plaintiffs' Lawyers (often aligned with consumers' groups); (2) Insurers; and (3) Doctors.

Interference with Business Relations

These torts include abusive discharge, disparagement, infringement of intellectual property, tortious interference with contract, tortious interference with prospective economic advantage, unfair competition, and various antitrust law violations.

defenses-- unforeseeable misuse of the product

This defense holds that a manufacturer or seller is entitled to assume its product will be used in a normal manner, thus they will not be liable for injuries resulting from abnormal usage.

defenses-- assumption of risk

This defense holds that the manufacturer is not liable for any resulting injury when the injured party voluntarily and unreasonably assumes the risk of a known danger.

Intruding Upon a Person's Private Life (must be outrageous)

This is often a question of perspective on what people consider private (Is it a celebrity's private estate or is he/she walking on a public street?). Unauthorized Appropriation of Name or Likeness for Commercial Purpose For example, journalists or others may be snapping pictures of celebrities even when doing so entails intruding upon a space the celebrity has a right to consider private.

trespass

Trespass is wrongful encroachment on, or other offense against, real or personal property. If a building's overhang extends over another's property line (although the ground floor does not), that overhanging extension is a trespass. Trespass also occurs when someone throws or places any unwanted item onto another's property (e.g., places dirt on the other person's property, shoots a bullet or arrow onto the other person's property).

Some Specific Antitrust Concepts--per se violations.

Tying, market divisions, production quotas, competitors' agreeing upon prices, and boycotts are per se violations.

express warranties

UCC 2-313—a seller's explicit guarantee that the goods have certain qualities

implied warranties

UCC 2-314—merchantability—a guarantee that goods are reasonably fit for the general purpose for which they are sold

comparative negligence (also called comparative fault)

Under comparative negligence (also called comparative fault), the plaintiff's own negligence does not bar his/her recovery but instead reduces the plaintiff's damages award by the percentage of the fault attributed to the plaintiff.

contributory negligence

Under contributory negligence, a plaintiff who contributes to his/her own harm is barred from any recovery.

unfair competition law

Under this body of law, a business may obtain a court order preventing a competitor from engaging in unfair business practices. --Unfair competition is not usually considered a separate branch of intellectual property law, as it targets general business practices rather than intellectual property as such.

Breach of Duty measured by an Objective, "Reasonable Person" Standard

Whether a breach occurred is, for adults, determined by an objective standard: What an adult reasonably should know to do or not do

wholesaler liability

Wholesalers usually are liable for defective products they sell, except that some states relieve them of liability for latent or hidden defects when the wholesaler merely sold the product in the same condition that it received them.

Emails based on a subject in which all parties have an interest are protected by a qualified privilege...

—so defamation would be difficult to prove, even if George were fired. --For emails, when would the email be considered defamation? --It was published, but was George harmed? --It would be quite different if the e-mail were sent to the whole company. George could have a case if he proved defamation per se: the e-mail accused George of a serious criminal offense, has a loathsome disease, etc.

When you advertise, you must be prepared to back up your claims.

You may have to issue a disclaimer unless you can prove what you are saying.

The warranty of fitness for a particular purpose is implied when:

a buyer relies upon the seller to select the goods to fit the specific request.

Concerning product liability, one can put forth several standards that businesses should meet regardless of whether the law requires such action. Note that the following seven principles present more a series of ethical duties than they posit a legal mandate:

a. Businesses must monitor all manufacturing processes. b. Businesses must have their safety specialists review their marketing strategies and their advertising for possible safety problems. c. Businesses must provide consumers with specific, understandable written information about their products, including clear operating instructions, a description of the product's safety features, a complete list of how the product can be used, a strong warning about the conditions that tend to cause the product to fail or malfunction, and a specific admonition listing the ways in which the product should not be used. d. Businesses must anticipate and minimize the ways in which their products can cause harm, even harm involving product misuse. e. Businesses must investigate consumer complaints. f. Businesses must give safety the priority called for by a particular product. g. Businesses should carefully evaluate the morality (or lack thereof) of selling products abroad which cannot be so easily sold in the domestic market because of stricter laws protecting the consumer.

Restatement of Torts Section 552:

accountant liability beyond his/her client to any class of persons the accountant knows will receive a copy of his/her work.

Each type of intentional tort has different elements. All have certain recurring themes:

all involve an intended wrong (while the harm itself may not have been intended). But each has a distinct definition. So, while negligence is just one type of tort, with the same four elements all of the time, for intentional torts each type is different. And, for intentional torts, punitive damages are much more likely to be awarded than for "mere" negligence.

Uniform Commercial Code Section 2-315 (UCC 2-315)

applies only when the seller (anyseller, whether a merchant or nonmerchant) knows or should know the buyer's purpose and knows that the buyer is relying on the seller's skills/judgment to obtain suitable goods.

risk-benefits analysis

assesses the alleged product defect from the manufacturer's viewpoint. This test mandates a balancing of the product's risks against its benefits. (E.g., on balance, do the benefits of the challenged product outweigh its inherent dangers?)

alibis

at law, an alibi is a plea or fact that an accused person was somewhere else when an offense was committed. (So the defendant could not have committed the crime.)

The three primary theories on which a product liability claim can be brought are:

breach of warranty, negligence, and strict liability.

hedonic damages

concerns the lost pleasure in life: A broad interpretation of harm.

These two distinct defenses offset (remove or erase) a defendant's liability for negligence, but not for intentional wrongdoing.

contributory negligence & comparative negligence

Strict liability covers dangerous activities (sometimes called ultra-hazardous activities)

defined as "a risk of serious harm to the person, land, or other property of others that cannot be eliminated by the use of the utmost care"). Such activities include: keeping dangerous (wild) animals; storing gas in underground tanks; transporting hazardous waste; (perhaps) manufacturing, marketing, and/or sales of assault weapons.

The defects associated with some of the most notorious transportation catastrophes have been _______.

design defects

The "unreasonably dangerous"/consumer expectations test is:

do the circumstances of the product's failure permit an inference that the product's design performed below the legitimate, commonly accepted [minimal] safety assumptions of its ordinary consumers? This test creates a higher, more pro-plaintiff standard than does a "reasonable manufacturer" test. The latter, court-developed test presumes that a manufacturer, supplier, or seller knows of the harmful characteristics of its product; therefore, a product is unreasonably dangerous if it is so harmful to persons that a reasonably prudent manufacturer/supplier/ seller with this knowledge would not have placed it on the market.

to protect oneself from attractive nuisances, property owners should:

fence in and otherwise keep people out of swimming pools; remove doors from old refrigerators (e.g., keep children from getting trapped); remove keys from motor vehicles; lock up any firearms; keep fruit trees picked/harvested and the property barricaded (e.g., to prevent people from sneaking in and harming themselves in search of fruit).

The term, "emotional distress," covers a wide range of human suffering, including:

fright and shock at the time of an accident; humiliation due to disfigurement or disability; unhappiness and depression over not being able to return to the activities of one's prior life (e.g., inability to work, play sports, or have sex); anxiety about the future; and anger over the vicissitudes of life.

As with all tort suits, for a successful strict liability suit there must be:

harm and a causal link between the alleged problem (here, the defect) and that harm.

The "telegraph" privilege

has been extended, sometimes, to Internet-service providers because they perform no editorial functions (not like publishing a letter to the editor—there, a newspaper could be accountable).

Unauthorized Appropriation of Name or Likeness for Commercial Purpose

has no requirement that the defendant's behavior must be highly offensive (outrageous). However, there must be a commercial purpose (e.g., to advertise, to offer goods or services, to market a business). --There was such a case, for example, involving ads for a product concerning treatment of "irregularity." The ads featured photos of people with these bowel problems, and while their names were not used, the people were identifiable (faces were shown).

In antitrust case law, relevant market means:

he total demand for the product or service allegedly being monopolized as well as the interchangeable products or services within the geographic area in question [The relevant market is the demand for interchangeable products within a geographic area.]

Product liability is often a matter of public policy:

how should these matters be resolved— courts, ballots, or expertise? Our legal system values the competing concepts of Liberty and Individualism versus Security and Constraint.

Fraud has six elements: MKIRDC

material misrepresentation, knowingly made, intended to induce reliance, producing justifiable reliance, damages, and causation

transferred intent

one may have a transference of one intended act (or one intended victim) to what actually occurred.

Libel suits filed by fired employees against their former employers account for about ______________ of all defamation actions.

one-third

Comparative Advertising

ordinarily, comparative advertising is okay. Comparisons simply must be supported by the facts. And opinions generally are okay. It might simply be puffing/puffery, such as use of the words "better than" or "superior."

Five legally justifiable exceptions to the informed consent process are:

public health emergency (e.g., a quarantine); medical emergency (imminent and life-threatening); patient waiver; an incompetent patient with no legal surrogate available; and therapeutic privilege (it would be detrimental to the patient to inform him/her).

slander or libel "per se"

some statements, in and of themselves, are presumed to be so injurious that, if false and published, the third and final element of defamation need not be proven: Damages are assumed

Maussner v. Atlantic City Country Club, Inc., 691 A.2d 826, 835 (N.J. Super. Ct., App. Div. 1997)

the New Jersey appeals court held: "[W]hen a golf course has taken steps to protect golfers from lightning strikes, it owes the golfers a duty of reasonable care to implement its safety precautions properly. We do not go so far as to hold that golf course operators have an absolute duty to protect their patrons from lightning strikes. We refrain from finding this greater duty because it may still be cost-prohibitive to make all golf courses adopt particular safety procedures. Our holding has the following consequences. All golf courses have a duty to post a sign that details what, if any, safety procedures are being utilized by the golf course to protect its patrons from lightning.

direct causation

the defendant's conduct is the sine qua non—that without which the plaintiff's injury would not have happened.

overlapping warranties

the law ordinarily permits several different overlapping warranties. One can use all of these warranties, if they are consistent. If the warranties are inconsistent, then the UCC resolves it (i.e., it determines which warranty is given priority).

In antitrust case law, market share means:

the percentage of the relevant market under the defendant's control

Byrne v. Boadle, 2 H. & C. 722 (England 1863)

the plaintiff had walked past the defendant's warehouse, and a barrel of flour fell on the plaintiff's head. Although he was injured, the plaintiff could not prove any negligence; all the plaintiff knew was that the barrel fell and struck him on the head. Indeed, the plaintiff realized that he could not prove causation, and actually had no idea why the barrel just seemed to fall from the sky. The barrel presumably was under the exclusive control of the bakery. Ordinarily, barrels do not just fall from the stars. Thus, the obligation to come forward with evidence is put on the bakery.

Maryland UCC provision 2-316.1

the state law was that when a warranty is extended to cover a consumer purchase, that warranty must cover both the price of parts and of labor.

A rapidly increasing number of companies now have CPOs (Chief Privacy Officers). A CPO's skills should include:

understanding of law and (typically) a background in regulatory compliance, familiarity with security technology, ability at public relations, and capacity to navigate various departments within an organization.

A way to defend yourself from claims of unfair competition/deceptive advertising is to GIVE WARNINGS

warn the consumer about what he/she is getting and not getting. In a larger sense of the word, unfair competition can be any unlawful business practice. It is thus often combined with allegations of tortious interference with contract, fraud, and infringing of intellectual property.

Currently, in order to determine whether a business has monopoly power allowing it to exercise significant control over prices, courts focus on the answer to two questions:

what is the relevant market in which to consider questions of monopolization, and what is the market share of the business/defendant within the relevant market?

Baker v. Alt, 132 N.W.2d 614 (1965)

where the Supreme Court of Michigan upheld a common law standard that children under 7 years of age are incapable of contributory negligence.

The res ipsa loquitur doctrine proved useful to victims of:

wrecks, crashes, and explosions—those pursued by all manner of fallen or flying objects.

If you put someone in a position where grievous injuries lead to pulling "the plug" on a severely injured person, then:

you can be found guilty of homicide.