BUS LAW EXAM 2

breach of duty

P must show that D had duty to him and breached that duty by not being sufficiently careful. courts apply the reasonable person standard: failing to behave the way a reasonable person would under similar circumstances. reasonable person means someone of the defendant's occupation. In Gooden v. Tips, the plaintiff, Gooden, struck by automobile driven by Dr. Tips'a patient, who was under influence of prescription Quaaludes. Gooden claimed doctor breached his duty of care by failing to warn patient not to drive while taking drug. court held Dr. Tips leable for breaching duty Casarez v. NME Hospitals, Inc., Dr. Vasquez admitted patient to hospital who was terminally ill with acquired immune deficiency syndrome (AIDS). Casrez, certified nursing assistant, was caring for patient when he involuntarily spewed blood on Casarez's mouth, eyes and arm. patient died next day and casarez texted HIV positive. Casarez sued Vasquez claiming he was negligent in failing to warn him of dangers and instruct him how to handle AIDS patient. Vasquez not held liable.

false imprisonment involving businesses

-most state statues provide that a merchant has a legal right to restrain an individual suspected from stealing items from the premises

actual cause

"but for" or "substantial factor" test to determine actual cause

reasonable person rule

"duty of care" for stage 1 tort of negligence

proximate causation

"foreseeability" -both plaintiff and generally injury sustained by P are reasonably forseeable

res ipsa loquitur

"the facts speak for themselves" -plaintiff does not have to prove negligence (still must prove other required elements in order to recover -burdens of proof shifts to the defendant to prove there was no negligence -doctrine also requires the thing that caused the harm be in exclusive control of the defendant

Defamation (ch 6)

-must be made to 3rd persons -statement must do more than just diminish the plaintiff in eyes of listener or reader, more than mere expression of opinion -must hold plaintiff up to hatred, contempt or ridicule -reputation or business of plaintiff must be damaged or adversely affected -often times the word "disgrace" applies

Battery

- occurs where the defendant intentionally does an act that results in a harmful OR offensive touching (i.e. contact) of another without his/her consent note: direct contact between the plaintiff and the defendant is not necessary (e.g., a rock or baseball throw suffices) note: making contact with anything connected with the plaintiff's body is sufficient (e.g., the defendant hits the plaintiff's purse, sunglasses, dog while the plaintiff is holding the dog's leash, hat etc) note: doctrine of transferred intent applies note: the plaintiff need not be aware of the contact in order for a batter to occur (e.g., if you are asleep and somebody touches you with a knife, legally that is a battery) now, of course, whether and how much money a jury may award you for a contact being made while you are asleep/unaware, etc is altogether a different question

3 main approaches to product liability lawsuits

- strict liability - negligence - breach of contract (warranty)

defenses to negligence

-defendant's liability for negligence may be reduced or eliminated if plaintiff is shown to be negligent -contributory negligence vs comparative negligence

intentional infliction of emotional distress

-falsely telling someone family member has died or accused someone of illegal behavior -distress must manifest itself in physical symptoms, such as heart failure, nervous shock or mental anguish -some states allow recovery for fright, horror, grief, shame, humiliation and the like -in order to recover the P must show that the mental distress was foreseeable, or reasonably within the range of normal human emotion and reaction

false imprisonment damages

-if restraint is short in time and compensatory damages are difficult to prove, the plaintiff may instead demand payment for pain and suffering or mental anguish -plaintiff may be awarded nominal damages, or damages in name only; recognize P has been wronged but actual damages are minimal

defenses to privacy torts

-most common exists when P has expressly waived the right to privacy, or taken some action that could reasonably be expected to constitute a waiver

defenses in strict product liability case

-negligence on the part of the injured party is normally not a defense in a strict liability case -primary defenses are "assumption of risk" and "intentional misuse or abuse" -note that an injured child or mentally incapacitated person will likely be successful against a manufacturer or seller of a defective product in a strict liability case since they can neither assume the risk nor intentionally misuse or abuse the product

tort of negligence

-negligent torts focus on defendant's conduct rather than a mental state plaintiff must prove 1) the defendant owned a duty of care to the P 2) defendant breached that duty 3) a casual connection (proximate cause) exists between the plaintiff's injury and the defendant's breach of duty 4) the plaintiff suffered injury or property damage as a result of the defendant's actions

disparagement

-occurs when defendant intentionally makes false statements that damage the reputation of a business, product or service - to successfully bring this action, P must show that the statements intentionally to a 3rd party, statements were false regarding a material fact about business, and that they caused actual damages or economic loss -also arises when D makes a false statement about a plaintiff's personal life if it causes harm to person's business -damage shown through decrease in sales or profits

Nominal damages

-often only $1 but even if 1 is awarded then P may recover punitive damages

trespass to personalty

-personalty is personal property (sometimes called chattels) -intentionally taking control over someone's personal property without that person's consent -same compensatory damages (economic losses) -in rare situations, punitive damages may be awarded in trespass cases

punitive damages

-punish defendant for bad behavior -not awarded alone, must accompany compensatory or nominal damages

Conversion

-same elements to trespass to personalty but adds 1 more element: the defendant must intend to permanently deprive the owner of the property -property is destroyed or damaged beyond repair and cannot be recovered or restored to its original condition -conversion is the civil law equivalent to criminal theft -person who takes property of others may be sued for conversion and/or charged with crime of theft

defenses to battery

-self defense is most common -one may use reasonable force to defend one's property against the actions of an intruder. deadly force is never justified in the defense of property -consent is another defense to tort of battery, as long as consent is given freely and voluntarily ex. football players consented to contact

Elements of contractual inference

-the plaintiff had a valid contract with a 3rd party -

defenses to defamation

-truth is an absolute defense because no matter how injurious, if it is true there can be no defamation -privilege; absolute privilege means that defamatory communications are protected in every way; senators and representatives enjoy this privilege; also applies in courtroom bc witnesses speak with absolute privilege ex. US Constitution "for any speech of debate in either house, they shall not be questioned in any other place"

public disclosure of private facts

-truth is not a defense

Fraud. to recover for fraud in a civil case, a plaintiff must prove ALL of the following elements by a preponderance of the evidence:

1) a false statement of fact (not opinion); 2) knowingly made by the defendant: - "knowingly" means the defendant knew that it was not true, did not believe it to be true, OR to recklessly disregard the truth of the statement. negligently making the statement is not enough!!! 3) made with the intent to induce the plaintiff to RELY on the statement, which, inf act causes the plaintiff to rely 4) the plaintiff's reliance on the statement was reasonable and justifiable; AND 5) the plaintiff was also somehow injured/damaged ***note that fraud can occur not just through an affirmative misstatement (e.g., i sell you a car and lie by telling you that the car has 40,000 miles bc thats what the odomoter shows on it and the car really has over 130,000); can ALSO occur through non0disclosure (not disclosing a material fact that to the other paty you should disclose) ex. stambovsky

strict liability applies to:

1) abnormally dangerous (or ultrazahardous) activities 2) statutory strict liability 3) strict products liability

strict liability defenses

1) assumption of risk 2) obviousness of the risk 3) product misuse 4) state-of-art defense 5) comparative negligence

Defenses for battery:

1) consent to the contact: must be free and voluntary; note that consent can be shown by words, acts and in some cases even by silence and/or inaction 2) self defense: but force must be reasonably necessary under the circumstances and not excessive 3) defense of others 4) defense of property

causation (stage 3 tort of negligence)

1) must be shown that the defendant's breach of duty was the actual cause of the plaintiff's injury 2) proximate cause

malicious prosecution

1) one filed and lost a civil suit 2) the suit was maliciously filed without any reasonable belief that the suit had merit 3) damages resulted from the suit (usually cost of defending against the suit)

assumption of risk

1) plaintiff knew and understood what particular risk what present 2) voluntarily chose to assume the risk -may be expressed or implied - a court would rarely find a young child capable of assuming risk

Elements of a strict liability product liability case; a plaintiff can recover if:

1) product sold in defective condition 2) product was normally sold by defendant's business 3) the product, because of the defect, was unreasonably dangerous 4) plaintiff incurred physical harm to self because of the product 5) the defective condition actually and proximately caused the injury 6) the product was not substantially changed from time of sale to time of injury

requirements/elements of strict liability theory (this is what P must prove beyond a preponderance of the evidence in order to recover against the defendant)

1) seller must be engaged in the business of selling the product that harmed the plaintiff AND 2) the product must also be in a "defective condition" when it left the hands of the manufacturer or seller AND it must also be "unreasonably dangerous" because of that condition

Defenses in a defamation case (meaning even if the plaintiff proves his/her case in chief, if the defendant can show that one or more of the below apply, then the defendant is NOT liable to the plaintiff)

1) truth is an absolute defense (but this can be hard to prove) 2) absolute privileges 3) conditional privileges basically, each of these examples is an example of making a statement to protect the interest of another/others (1) but if abused or exceeded (e.g., the person making the statement is lying, he/she knows it, and just wants to "get" the person they are defaming), conditional privileges are lost. an example of a conditional privilege being abused or lost would be a former employer providing defamatory information that is NOT related to job performance (such as lifestyle information)

Examples of slander per se (where it will be presumed that the plaintiff was injured or damaged):

1) where someone makes a fake statement about another re the commission of a crime of moral turpitude (e.g., rape, embezzlment); having a loathsome disease (e.g., AIDS); being professionally incompetent or guilty of professional misconduct; OR guilty of serious sexual misconduct

evolution of product liability law

19th century - product liability rules were very much in favor of sellers and manufacturers; it was an era of caveat emptor (let the buyer beware) 20th century - a more protective climate emerged. product liability law moved from a caveat emptor emphasis to a stance of caveat venditor (let the seller beware)

can product liability lawsuits be brought under strict liability theory or negligence theory?

BOTH!

Intentional Torts

Battery, Assault, Defamation, Fraud, Invasion of Privacy, False imprisonment, intentional infliction of emotional distress, trespass

Intentional Infliction of Emotional Distress reading

Ford won suit against Revlon after supervisor Braun failed to stop harassment $1 million for cremation of wrong body Alabama 'outrage' Miller's brothers identified russell body as miller boddy under extreme emotional distress; jury returned one count of "outrage', an alabama version of intentional infliction of emotional distress thaty ivey said is reserved for an extreme act, like mishandling a body

E-Mail Crusade Against Intel: Is it Trespass?

Hamidi, 55, fired from Intel Corp and spent next 2 years criticizing company in emails sent to thousands of co-workers now CA supreme court will determine whether email is form of electronic trespassing, as intel claims, or expression of free speech. intel won first 3 rounds hamidi contends company didn't want to pay for workers' compensation costs related to injury; hamidi was fired for incompetence issue: whether unwnated, unsolicited e-mail can be actionable as a form of trespass "trespass to chattels" - 17th century tort that prohibits meddling with damaging another person's property for personal gain ; mcSwain from Dechert represented Hamidi example of how common law works - old tort around for centuries

3 classifications of Tort Law

Intentional Torts Torts Involving Negligence Torts Involving Strict Liability

Maybe v. Jacobs Motor Co

Maybe purchased Chevrolet from Jacobs Motor co for $8,700, no one told her that van's original engine had been replaced with a rebuilt engine using a 1966 engine block nor was it mentioned that van had dieseling and oil leakage problems, had opportunity to ask questions and have van inspected by a mechanic but declined due to high compression ratio, engine required high octane aviation fuel for its proper operation Maybee sued Jacobs for fraud and deceit. jury found jacobs liable, awarding maybee $14,700 in compensatory damages and $75,000 in punitive damages. because 14,4 was more than 10X the $1450 cost of replacing the engine, trial court ordered a new trial on the damages question. maybee appealed this order and jacobs appealed determination that it was liable for fraud and deceit Second of Torts Section: party must disclose before the transaction is consummated: facts basic to the transaction if he knows that other is under a mistake to them, and other would expect disclosure of those facts during closing argument, Maybee's counsel stated that $1,500 would compensate his client. jury calculated 14k compensatory and 75k punitive, verdict indicates passion, prejudice and inconsistencies within instructions and law trial court decision reversed; case returned to trial court for a new trial on damages jury made a MISTAKE re: the amount of damages that the plaintiff should have been awarded. BUT, the fact that fraud occurred was pretty obvious! the new trial was only on the issue of the amount of damages to be awarded

when is defense of conditional privilege most often used?

in tort actions for defamation of PUBLIC FIGURES other than members of congress

Bahamian Resort Battles Allegations in Shark Attack

a final article that addresses the "DUTY" element/aspect of negligence wife of mauled guest contends lifeguards did nothing to help, an accusation that company officials and witnesses deny Krishan Thompson, 36, was in an intensive-care unit Wednesday at Miami hospital after losing most of left leg while celebarting 10th wedding anniversary at the resort. his wife insists lifeguards did nothing when shark attacked him in 4 feet of water 18 ft offshore. resort and witnesses deny this. plaintiff arguing that hotel/lifeguard had duty to swim to him. hotel argued that duty it owed was satisifed i.e., rescue him in the time and manner resort manager is Waldburger

elements of infliction of emotional distress

a) defendant's conduct must be "so outrageous in character, and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community" b) the plaintiff's emotional distress must also be severe in order for him/her to recover 1) note: is proof of bodily harm or injury (e.g., a physical injury such as an ucler; break out in hives, etc) required here in order for the plaintiff to recover/to prove that the plaintiff suffered "severe emotional distress? (possibly - it depends on the state; some states require it and others do not) 2) note: remember that the 'intent" to cause intentional infliction of emotional distress works the same way as it does for assault and/or battery .. the intent can be the intent to actually cause the plaintiff to suffer extreme emotional distress OR if it is "substantially certain" to cause such distress to the plaints ( remember the English case herein 0 flying hamburger case!)

Elements of trespass

a) the intentional and unlawful entry onto/into a property in the possession of another (e.g., hiking on someone's property without their consent; having party that sounds loud sound waves across a neighbor's property; hacking into another's website or computer system) b) unlawfully remaining on/in another's property, after lawful entry (e.g., after your lease expires you don't leave the rental unit) c) unlawfully causing something to enter onto/into property posessed by another (e.g., throwing a beer can on your neighbor's property), OR d) failure to remove something from a property which you have a duty to remove (e.g., your neighbor says you can park your car at his house for 1 month and you fail to come pick it up after 1 month expires and just leave it there) **in most jurisdictions, no actual harm or damage to the property is required for there to have been a trespass

Damage/Injury

a) the plaintiff must have suffered damage or injury as a result of the defendant's negligent act b) the damage or injury can be economic (lost profits) or non-economic (personal injury, pain, and suffering, etc) c) ordinarily the plaintiff has physical injuries so this is not an issue. but what about purely emotional injuries? - most courts have dispensed with the "physical impact/contact or injury" requirement and allow for the recovery of purely emotional injuries. some still require proof that physical injury or symptom resulted from plaintiff's emotional distress.

false imprisonment store owners and shoplifters

a) traditional rule - the store is liable if the plaintiff is later found to be innocent of shoplifting b) the more modern and applicable rule - the store is not liable if it had a reasonable and only detained the plaintiff for a reasonable period of time belief the plaintiff shoplifted, acted reasonably note from carr: this is a more flexible rule, but shopkeepers are only protected if they are REASONABLY in these various facets. this often called or referred to as the "shopkeepers privilege" rationale: to accommodate and balance the interests of store owners and the public

imminent

about to happen; the defendant must have the apparent present ability to cause harm

Wal-Mart Not Liable in Shootings

another article dealing with/highlighting the DUTY aspect/element of negligence. the plaintiff was arguing that the store had a "duty" to ask such questions texas jury rejects contention of 2 victims of a shooting rampage 10 year ago where walmart sold a semi-automatic handgun to a mentally unstable attorney. plaintiff unsuccessfully contended that store personnel should have been trained to ask provoking questions that might have revealed customer's dangerous paranoia; jury disagreed with plaintiff's argument/position killer Gregory D. Lott had suit brought by fmaily of Chris marshall who died and retired Judge Ashworth who was wounded. Lott had paranoid disorder and violent temper.

Assault

any intentional ATTEMPT OR OFFER to cause harmful or offensive contact with another is an assault if it causes a well-grounded (i.e. reasonable) fear or apprehension of imminent harmful or offensive contact 1) threats of future harm/contact no are generally not sufficient (e.g., i am going to beat you up next week") because not considered imminent, and, the law expects you to take the high road and avoid such confrontations (e.g., not show up next week and fight) 2) also, whether contact actually occurs between the plaintiff and the defendant is irrelevant (i.e., no contact is necessary for there to be an assault - it occurs when the plaintiff reasonably "fears or "apprehends" harmful or offensive imminent contact) 3) threatening words alone are also generally not enough to constitute a civil assault ("I am going to pound your head in" is not enough); now if you said that while holding a hammer in your hand 2 inches from the other person's face, then that would be an assault 4) fear and apprehension are also not the same thing (either one will suffice) 5) the plaintiff must also be AWARE of the threat (e.g., if you stand over someone's bed and wave a knife over them while they are asleep, legally, no assault thas occurred)

Of the many torts against persons, the most common are:

assault battery false imprisonment intentional infliction of emotional distress privacy torts

state-of-the art defense

based on a manufacture's compliance with the best available technology at the time. shields manufacturer from liability if no safer product design is generally recognized as being possible at the time missouri statutes provide that if D can prove the dangerous nature of product was not known and couldn't be discovered at time the product was placed in stream of commerce, then defendant will not be held liable for failure to warn

England v. S & M

battery suit; judgment for england affirmed; if betty saw the hamburger coming at her and she felt a well-round fear or apprehension of imminent contact, then the defendant thas also committed an assault

The Billy Idiot-Delta Poo Poo Incident

billy commenced personal injury (i.e., negligence) action against members of Delta Poo Poo. physician from USF opined that proximate cause of Billy's permanent injuries was failure of the members of fraternity to promptly obtain emergency medical assitance. in second report, expert clinical psychologist from stanford opined that pledge's desire to join frat, prestige of being a member, psy/social dynamics involved in hazing diminished pledge's ability to refrain from excessive drinking

Lewis case

carves out an exception to the normal rule that "making the statement to only the plaintiff is not enough" (this case is an example fo the common law in action and how it carves out/creates a new rule of law in the defamation area in order to od justice and equity for the plaintiff at issue)

defenses for false imprisonment

consent, plaintiff's lack of knowledge or awareness of confinement (e.g., someone is asleep and you lock the door on them while they are asleep)

Defamation in Cyberspace

defamation - an untrue statement made by one party about another to a third party Mark S Jakob, security trader lost $100,000 in August 2000 with poor trades in Emulex, Inc. stock options, decided to correct his declining earnings trend by posting a false press release on the internet that emulex's earnings were overstated and thats its CEO would resign Jakob made $240,000; tort of defamation permits investors to recover their losses; stock decline directly attributable to trades made immediately following the posting of the false info by the fake press release server companies must reveal internet users to private companies under warrants from law enforcement agencies issue if revealing identity of those who posted defamatory information remains in litigation, but the ultimate answer will be determined by the very staid law on invasion and privacy and the notion of expectation of privacy

trespass to realty

defendant intentionally enters the property of another -included invited to property, asked to leave but doesn't -also intentionally places or leaves physical object upon the property of another and fails to remove it -attempted common defense is a mistake -compensatory damages usually limited to compensation for economic losses to the property owner -often only damages awarded are nominal

appropriation

defendant uses someone's name, image, or likeness without permission for commercial gain

Punitive damages (exemplary damages)

designed to punish wrongdoer (tortfeasor) -judge or jury sets punitive damages at a level that will deter the defendant and others from similar conduct -many states limit the amount of punitive damages to a percentage of the tortfeasor's networth -award of punitive damages not limited to assault and battery cases; any tort committed with proof of malice will result in the likelihood of a punitive damage award

Duty

duty to exercise "reasonable care" how far does this duty go? depends on: 1) the level of danger posed to the consumer/plaintiff/public 2) the reasonable foreseeability of that injury occurring 3) the burden on the defendant in meeting/complying with that duty

Elements of negligence

duty, breach of duty, causation, damages/injury, and no defenses apply

Intentional Infliction of Emotional Distress

e.g., prank telephone calls, co-worker stalking another co-worker, a credit collection agency making harassing telephone calls to a debtor every morning between 1:00 am and 5:00 a, etc

Photos of Women Who Get Abortions Go Up On Internet

example of how the tort of invasion of privacy can come up (intrusion of solitude; and publicity concerning private facts) MrHosley makes Abortioncams.com Daniel Michasel snapped picture of woman with cervical tear. Defendant include Mr. Michael, his wife, Angela and Stephen Wetzel who runs the Website. suit also names hospital Gateway Medical Center for failing to make sure her records stayed confidential. woman seeking more than $400k in punitive damages. start court judge george moran issued temporary restraining order last summer ordering removal of her photo and medial records from Missionaries to the Unborn and another Website (case is pending) photos were blurry and the records were redacted to exclude her name and address legal question is whether posting women's photo amounts to a threat against their safety. courts generally say plaintiff must show the defendant directly threatened to do violence agsint them 1982 NAACP v Hardware, black activists wrote names of blacks who shopped and white-owned businesses. names were read aloud at nub-lie meeting and published in newspaper, leading to several assaults and arsons Zitrain say current privacy laws don't protect a person from being photographed while in public place but women could sue photographers for intentional infliction of emotional stress or illegal intimidation Nuremberg Files carries abortion providers names, addresses and photos and crosses out their names when they've been killed, evidence of intimidation. PP & doctors & clinic filed suit in federal court in portland. alleged the ocalition had cited violence and broken 1994 federal law that allow doctors/clinic workers to sue anti-abortion protesters that tried to intimidate them. 199 jury awarded plaintiffs nearly $107 milion, virtually all punitive damages. 2 years later 3-judge panel of the US Court of Appeals for 9th Circuit in SF overturned verdict, saying sites didn't contain any explicit threats of physical harm. this month full 9th Circuit reversed decision bc activists "made statements to intimidate the physicians reasonably forseeing that physicians would interpret the statements as a serious expression of intent to harm them"; doctors wore bulletproof vests; activists promise to appeal and expect supreme court to take case bc thorny questions of free speech/abortion access

En-Ruse? Workers Say They Had to Pose as Busy Traders to Impress Visiting Analysts

example of tort of fraud in business cases some employees of Enron's retail-energy unit say the company asked them to pose as busy electricity and natural-gas sales representatives one day in 1998 so the unit could impress wall street analysts visiting its Houston headquarters (75) Peggy Mahoney, Enron's spokeswoman, confirms employes told to move to 6th floor for a visit by 150 analysts from Wall Street firms but she said it was just a handful, not 75 and enron didn't ask anyone to pose as traders or sales reps enron filed for bankruptcy-law protection after off-balance-sheet partnerships were questioned. controversial accounting related to the partnerships was the major factor contributing to Enron's collapse. report by 3 member board committee said the company "improperly" implemented various transactions "to conceal from the market very large losses" resulting from some of its business operations in 1998 trading floor incident, analysts were led around by Ken Lay, Enron's chairman and chief executive and the EES floor appeared busy with actual work, said an analyst who recalled the visit to Enron headquarters

Conditional Privileges

examples are intra-corporate communications (e.g., sending out an email that states to employees of the firm, "Bill (or someone) is believed to have stolen company property, and if anyone knows anything, please email back with the details"); a former employer answering questions about a former employee; fair comment (media reports of defamatory matter in reports of proceedings of official action, or originating from public meetings), etc

negligently

failed to exercise reasonable care and act as a "reasonably prudent person"

Islamic Charity Sues Media Companies for Defamation

global relief foundation, large US-based islamic charitable organization, filed defamation suit against half-dozen media organizations falsely linked GRF with fund raising for terrorist groups, the chairty alleges in a complaint filed in federal district court in chicago, drop in donations from upwards of 50 a day to 3-4 a day defendants: new york times co and its globe newspaper unit, associated press, walt disney's ABC ,hearst corp and the daily news of new york courts generally treat organizations that solicit public funds as "public figures"; if GRF is private figure they're required to show only negligence

Lewis v. Equitable Life and Assurance Society

good example of "self-publication" doctrine that can come up in a defamation case, watch what you say as a future employer Lewis, Smith, Rafferty, Loizeaux employed as dental claim approvers in office of the Equitable Life Assurance Society of the United states. given verbal info on meal and tip allowances and told to keep receipts for hotel bills and airfare, each given $1,400 travel allowance which they spent in full equitable's written guidelines differed from instructions they received prior to departure, asked to return $200 to equitable but didn't, fired for "gross insubordinatoin" only 1 woman found new job. filed defamation suit against equitable, when jury ruled in their favor, equitable appealed Amdahl, Chief Justice: statement must be communicated to 3rd party, must be false, and harm plaintiff's reputation;if defamed person compelled to communicate defamatory statement to 3rd person and was forseeable to defendant than defamed person would be so compelled, defendant could be held liable for defamation there was publication but true statements are not actionable. jury verdicted that charge of gross insubordination was false the originator of statement not held liable if the statement is published under circumstances that make it conditionally privileged and if the privilege is not abused recognition of a qualified privilege seems to be the only effective means of addressing the concern that every time an employer states the reason for discharging an employee it will subject itself to potential liability for defamation the conclusion doesn't determine that the company's statements were privileged. a qualified privilege is abused and lost if P demonstrates that D acted with actual malice. jury found company's statements were "actuated with actual malice"; judgment for P affirmed

Is a Singer Liable When Someone Acts Upon His Lyrics?

good example of CAUSATION aspect/element of negligence McCollum v Cbs Inc., and Osbourne. John's (suicidie) relative McCollum and estate sued Ozzie Osbourne and CBS for negligence, alleging that yrics of Osbourne's music incited John to committ suicide. when trial court dismissed the case, plaintiffs appealed. appellate court held that lyrics might have been an actual cause of John's suicide, they were not the proximate cause

Kelly v. Gwinnell

good example of the DUTY element of negligence, what a duty is owed and what that duty is Kelly hurt in head-on collision by Gwinnell, who was drinking at friend Zak's house. case deals with the suit against Zak. court is saying that the level of danger posed to the plaintiff is high AND that foreseeability of that injury occurring is also high! most courts that have considered the problem have disagreed with the new jersey supreme court. at common law, it was only drunk driver who was liable, not a social host who poured the alcohol. high courts of Iowa and California, like new jersey, held social hosts liable yet in both states angry legislators thought court went too far. voted to repeal social host liability and return to the old common law rule, leaving only driver himself liable.

Intrusion of Solitude

intentional intrusion on the solitude or seclusion of another where the intrusion is highly offensive to a reasonable person and violates someone's reasonable expectations of privacy (e.g., open mail, tap phone or bank account, search home or body, harassing phone calls, etc)

Ann M v. Pacific Plaza Shopping Center

good/interesting case dealing with the DUTY element of negligence Ann M worked at 60 Min photo company in pacific plaza shopping center. Ann M sued pacific plaza bc man pulled a knife, went behind the counter and raped Ann M. he robbed the store and fled, was never apprehended. she claimed it was negligent in failing to provide security patrols in the common areas of the shopping center. conclude that violent criminal assaults were not sufficiently foreseeable to impose a duty upon Pacific Plaza to provide security guards in the common area. therefore conclude that paicif plaza was entitled to summary judgment on the ground that it owed no duty to Ann M. to provide security guards in the common areas court says "no" to the question of whether a duty is owed

Miscellaneous rules regarding defamation

groups - an individual member of a group of people that has been defamed cannot recover unless the group is so small that statement can reasonably be understood to refer to a specific member; or, the statement is such that it is reasonable to conclude that a particular group member is being referred to opinions - not actionable because not a statement of fact (obviously the line between a statement of fact vs opinion is gray and murky)

Breach

guilty of breach if he exposes another to an unreasonable, foreseeable risk of harm (D fails to act or behave the way a "reasonable person" would under similar circumstances)

K-Mart to Pay $3 Million for Selling Gun to Suicidal Teen

here, plaintiff successfully argued/conviced the jury that the Kmart employees had a DUTY to check for proper ID, ask young man right questions, which would have brought to light he was messed up, then NOT sold him the gun. P successfully argued/convinced the jury that the defendants breached this duty by selling him the gun sued for violations of gun-control laws requiring proof of residence. also alleged negligent training and supervision of store personnel. jury awarded eslingers $1.5 million then added $1.5 million in punitives the next day

Griffith v. Valley of Sun Recovery

highlighting and tying together ALL of the elements of negligence (duty, breach, causation and damages) Gorney went to car at 4 am and unlocked car to set alarm off which aroused neighborhood. williams and a neighbor, griffith, investigated and concluded it was attempted theft. williams accidnetally shot griffith and griffith sued valley of sun. the trial court granted summary judgment for valley of sun and Griffith appealed.

Ivy Imbroglio: Princeton Says it Spied on Yale

highlights several torts: invasion of privacy, fraud and trespass yale caught princeston accessing confidential internet records to see whether its rival had amitted or rejected students that had applied to both; princeton admitted and it suspended associate dean and director of admissions LeMenager princeton could be in trouble for: civil trespass (accessing computer network it was clearly not supposed to use), fraud (employees' misrepresentation of their identities); invasion of privacy (rights of students) Alexander Clark, yale sophomore created the site

The (Not-So) Friendly Skies: a slew of suits follow a northwest's treatment of passengers during jan 2. blizzard

highlights the torts of false imprisonment and intentional infliction of emotional distress 3 actions claiming false imprisonment and negligence are in works against northwest because passengers stranded in detroit on runway during blizzard. sousanis' suit seeks comepnsatory and punitive damges for intentional infliction of emotional distress, breach of contract and breach of the implied covenant of good faith and fair dealing. passenger bill of rights would require airlines to compensate passengers any time they are kept waiting on the runway for more than 2 hours and to explain the reasons for delay, cancellation or diversion of any flights

False Imprisonment

intentional restraint of another person without reasonable cause and without consent generally, a store may detain a customer or worker for alleged shoplifting provided there is a reasonable basis for the suspicion and the detention is done reasonably lawful" detain customer in manager's office for 20 minutes and question where he got an item some states have passed new statutes called "civil fine", which allow stores to demand, in writing, a fine from the shoplifter of up to three times the value of teh goods taken

breach of duty pt 2

homicide leading cause of death in New York's workplaces and 2nd leading cause of workplace death, nationwide corporation can be liable for negligence if it hires someone known to have a history of violence. in gaines v monsanto, mailroom clerk with previous rape and robbery conviction followed secretary home after work and assaulted her. court held defendant liable. companies found liable for failing to check driving record, contact personal references, search criminal records Yunker v. Honeywell, Inc Honeywell employed Landin when he was imprisoned for strangulation death of Miller, Honeywell co-worker. Honeywell rehired him as custodin when Landin released from prison. Landin went out to kill Nesser in driveway, convicted of first degree murder and sentenced to life imprisonment. minnesota court of appeals held that honeywell had not been negligent in hiring landin, but that jury could properly find that Honeywell had breached its duty to Nesser by retaining Landin after these incidents

Employee References

how an employer can get caught in the "no-man's land" that can exist between defamation and negligence cali supreme court found that in, Randi W v Muroc Joint Unified School District (1997) 14 C4th 1066, that the defendants who wrote letters of rec should have been able to foresee plaintiff's school district would rely on their favorable letters in hiring VP and that he might molest or injure a student after being hired facts may not prevent an employee from suing a former employer for interference with prospective employers. employers may have a defense, in the qualified privilege for job performance references contained in section 47 of the civil code

contributory negligence

if the defendant can prove that the plaintiff's negligence in part caused the accident, c neg applies and there can be no recovery

Jury Says Home Depot Must Pay Customer Hurt by Falling Merchandise $1.5 Million

illustrates how Home Depot owed its customers the DUTY to keep safe store premises and how it BREACHED to satisfy that duty (i.e., failed to act as reasonably prudent person/store under the circumstances) Avery sued Home Depot in 1998 for negligence in 19th judicial state court. 70 lb pound of sand fell from rack and landed on mr. avery, suffered injuries to his back, hand and mouth

Proximate Causation

in addition to being the actual cause of the plaintiff's injury the breach of duty must ALSO have been the proximate (or legal) cause of P's injury. here, idea is to place a legal limit on defendant's liability. D is only liable if his conduct was ALSO the proximate cause of that injury. this test for what constitutes "proximate cause" is one of forseeability 1) was it reasonably foreseeable that a thief would steal Chris' $3,000 gold necklace after J.T. struck Chris and knocked him out? probably not, thus not met. 2) what about a superseding cause of "intervening force" (i.e., an outside, independent force)?? if intervening force is unforeseeable, most courts will absolve the defendant from liability and treat the force as a superseding cause of the plaintiff's injury

Trespass

is an offense against the right to possession of property (note that "property can be real property i.e., real estate or personal property e.g., a company's computer system)

damages to assault and battery are calculated and aware by...

juries

comparative negligence

jury is asked to pro rate the negligence among the parties -in jursidictions following the 50% rule, a plaintiff whose contributory negligence is over 50% of the cause of the accident will not be able to recover any compensation from

strict tort liability

liability without fault -negligence is irrelevant

Comparative negligence (comparative fault)

look at the relative fault of parties and assesses liability accordingly. this doctrine was developed and adopted by courts in most states to help mitigate the harshness and potential unfairness to plaintiffs of the contributory negligence doctrine and defenses discussed above

strict product liability

major benefit of this theory for the plaintiff is that it eliminates the need for the plaintiff to prove that defendant owed and breached a duty (as is required by negligence)

defamatory

means it harms the reputation of another by injuring the community perception of him by deterring others from associating or dealing with him

offensive

means that it is calculated to offend a person of ordinary sensitivity's reasonable sense of personal dignity and is unwarranted by the social usages prevalent at the time and place at which the contact is made

harmful

means that it produces any bodily injury

intentional

means that the defendant either desired to bring about the consequences of his act, acted recklessly OR believed that harmful or offensive consequences were substantiallly certain to follow from what he did

compensatory damages objective and items covered

objective: make an injured party whole items covered: pain and suffering; medical bills; lost wages; lost future earnings

punitive damages objective and items covered

objective: to set an example; punish wrongdoer items covered: damages determined by the jury, the amount is whatever the jury feels will be necessary to meet the objective; in some cases limited based on plaintiff's networth

self-publication doctrine

occurs where the defamed person in some way is compelled to communicate the defendant's statement to a third person, and it is reasonably foreseeable to the defendant that the defamed person would be so compelled. this should teach you to be careful about what you say/don't' say as a future employer to departing employees!

conditional privilege

one may make defamatory communications and not be held liable unless the communications are made with malice (evil intent or ill will, make with knowledge of falsity or disregard of truth)

publication

only need to be from one person to another. widespread communication is NOT necessary, and making the statement to ONLY the plaintiff does not normally count

Slander

oral defamation. generally requires proof of special damage (meaning the plaintiff has to prove that he/she was actually somehow injured), but not when SLANDER PER SE is involved in which the defamatory and harmful nature of the statement is presumed. in other words, these situations (slander per se) are deemed to be so bad/harmful that we/the court will PRESUME that the plaintiff was injured and he/she nOT need to, therefore, prove that he/she was somehow damaged or injured in such situations/cases by the alleged defamatory statement at issue. but.. if it is NOT a slander per se case or situation, and only an "everyday/normal" oral defamation case, THEN the plaintiff must ALSO prove some type of damage or injury i order to recover/prevail against the defendant

in tort cases, compensatory damages typically do not include

payment of attorney fees, loss of time, or transportation costs to and from trial location

comepensatory damages usually include

payments for medical bills, lost wages, pain and suffering

Torts involve harm to:

persons (physical damage) property reputation

battery (ch 6)

plaintiff does not have to sustain injury examples include pushing, hitting, pinching, spitting

Contributory Negligence

plaintiff fails to exercise reasonable care for his own safety. This is a total bar to any recovery by the plaintiff! The doctrine and defense means that if the defendant was 99% negligent and the plaintiff was only 1% negligent, the plaintiff loses and recovers nothing!

Contractual Inference

plaintiff must prove 1) plaintiff had a valid contract with a 3rd party 2 the defendant knew of the contract and took intentional action to cause the 3rd party to break or breach the contract 3) as a result of the defendant's actions, 3rd party did breach contract 4) as a result of breach, plaintiff suffered damages

dangerous activities

plaintiff needs to establish that the defendant 1) carried on an activity which involved serious potential harm to person or property 2) activity involved a high degree of risk (exercise of reasonable care would not completely guard against) 3) activity not commonly performed in the community

mixed comparative fault jurisdiction

plaintiff recovers a portion of his damages, but only so long as his percentage of fault is less than the defendant's percentage of fault (e.g., plaintiff can only recover if his negligence was 49% or less. e.g., if plaintiff was 49% at fault and D was 51% and total damages are $10,000 then P only recovers $5,100 against D)

pure comparative negligence jurisdiction

plaintiff recovers a portion of his damages, even if he was more at fault (percentage wise) than the defendant (e.g., plaintff was 60% negligent and defendant was 40% negligent, then P total damage was $10,000 and P recovers $4,000 against D. CALIFORNIA IS THIS TYPE OF JURISDICTION.

assumption of risk

plaintiff who voluntarily exposes himself to a KNOWN and SPECIFIC danger or risk (note that this is different from a general danger or risk) created by D's negligence cannot recover *note that plaintiff's assumption of risk can be express (e.g., via an exculpatory clause or waiver of liability in a contract that he/she signed) or implied (e.g., by conduct)

comparative negligence (also called comparative fault)

plaintiff's damages may be reduced by the degree to which the plaintiff's own negligence contributed the injury. i.e., same rules and concepts apply and discussed under negligence theory contributory negligence is NOT a defense in strict products liability action

The most common category of strict tort liability involves

product liability; involve personal injury to individuals due to defective products; do not involve loss of use of the defective product or economic harm due to the purchase of a defective product since there is no harm to the individual's person (body) -any party who is injured by a defective product should be able to recover - even if that party is not the original purchaser of the product

Goal of Tort Law

provide compensation for injured parties. defendants who are found liable must pay for the damages they have caused. civil.

Disaster Raises New Legal Issues in the Workplace

provision of the National Labor Relation Act protects "concerted activity of even non union employees. Thus, if anthrax fears lead 2 or more employees to object to mail-handling procedures, they can't be fired or disciplined for agitation for better protection. if worker can't perform functions because of PTSD, employer may have to make accommodations under Americans with Disabilities Act Equal Employment Opportunity Commissions said companies can provide this info to building security officers and others responsible under any emergency evacuation plan Fair Credit Reporting act requires job applications and employees to consent to checks of their credit history and to employers obtaining drug test reports, driving records; free to inquire about past convictions, many states forbid inquiry into arrests

Publicity concerning private facts

publicity of such facts that are highly offensive to a reasonable person (e.g., a person's failure to pay debts, his illness, details re: sex life, etc) here, unlike defamation, the publicity must be widespread

False light

publicity that places a person in a false light in the public's eye can be an invasion of privacy if that false light is highly offensive to a reasonable person (e.g., signing a person's name to a telegram, attributing an inferior or scholarly work to the plaintiff, etc)

Assault Defenses

same as battery

"he's back"

simpson faces 2 - 16 years in state prison if convicted of auto burglary and battery charges based on an angry road encounter last dec 4 during which he allegedly snatched the sunglass off a motorist's face; illustrates how OJ may have committed the tort of battery by making "contact" with something attached (sunglasses) -if the motorist also saw OJ's reach coming and felt reasonable fear or apprehension of imminent contact there may also be an assault

Absolute privileges

statements by participants in judicial proceedings, legislators or witnesses in legislative proceedings, executive officials in the course of their duties, and between spouses in private (these are called absolute privileges because even if they are "abused" by the person who holds them - e.g., they outright lie and defame a person in such a proceeding - they still work and are valid!) rationale: in order for such proceedings, situations, relationships, etc to be effective, open, etc., then as a policy matter we need people to feel completely free to say any and all things

No Penalty

teams and leagues are usually shielded from liability when spectators are injured during action, but that doesn't mean brittanie cecil's familiy won't be compensated. highlights assumption of risk doctrine/defense under common law docetrine "assumption of risk", sports teams and leagues are shielded from liability when fans are injured in forseeable ways during play

Forseeable Type of Harm

the CAUSATION element/aspect of negligence for the defendant to be liable, the general type of harm must have been reasonably forseeable. another way of stating dom is not liable to vet's family is bay calling the falling pig a superseding cause. when one of the "dominoes" in the row is entirely unforeseeable, courts will call that event a superseding cause and D is off the hook. only found where circumstances are highly unusual, extraorindary, bizarre, or beyond the scope of any fair assessment of a danger created by the defendant's negligence.

Actual Causation

the breach of duty must have been the ACTUAL cause of the plaintiff's injury. here, courts apply a "but/for" test 1) when the "but-for" test is satisfied, actual causation is satisfied. if the answer is "yes" then the but-for test fails and D wins because P cannot prove a required element in his/her negligence claim

Causation

the breach of this duty of care must have caused damage/injury to the plaintiff

defenses of publicity concerning private facts

the fact disclosed is a matter of public record or legitimate public interest; truth of the publicized fact is NOT defense here; this cause of action is not available to dead persons or corporations because personal rights are involved; public officials and figures have no right of privacy concerning information that is reasonably related to their public lives

False imprisonment

the intentional confinement of another for an appreciable length of time (a few minutes is enough) without his consent

Intrusion of solitude defense

the intrusion was not highly offensive/the expectation of privacy was not reasonable; note that this cause of action is NOT available to dead persons or corporations because it is a personal right that is involved

strict products liability law

the legal liability of the manufacturer or seller of a product which, because of a defect, causes injury to the purchaser, user or bystander. in theory, liability extends to anyone in the business of selling the goods or in the chain of distribution

public figures are...

those who seek public spotlight and have access to the media (actors, musicians, athletes, politicians) OR private figures that gain substantial media attention for a limited or specific activity (spokesperson for a political cause, or even someone who happens to win the lottery)

"tort-reform movement"

too difficult or prohibitively expensive to obtain liability ensurance. as a result, there has been a movement seeking to cut back what is perceived to be "pro-plaintiff" product liability law through state and/or federal legislation

Defamation

tort designed to protect a person's REPUTATION. in order to prevail on a claim for defamation, the plaintiff must prove beyond a preponderance of the evidence that the defendant: 1) published 2) a false AND defamatory statement 3) about another person

Abductions Cost Mo. Pastor $26.1M: defendant's pro se performance slams jews and the bible

tort of false imprisonment and intentional infliction of emotional distress jury returned $26.1 million against preacher and 2 of his children for false imprisonment and emotional distress by 8 of his grandchildren when he kidnapped them and indoctrinated them with anti0semitic beliefs , lawsuit brought up by 2 grandchilren and fathers (Leppert v. Winrod) Leppert = fathers, Winrods = wives

Promises, Promises: Internet Companies Stand Accused of Fraudulent Inducement

tort of fraud and how it can come up in the business setting 33 yr old fired by dot-com start up before her first day on the job; company's exec said venture capital funding came up short but woman couldn't return to former job lawyer Mark Rudy (SF with Rudy, Exelrod, Zieff & True) fraudulent inducement is the most obvious cause of action here California Labor Code section 970 provides relief for those who relocate to take new jobs and under promissory estoppel (obligates employers to live up to promises); some also claim negligent misrepresentation of facts in termination complaints are seen by Alvarez, one-half to two-thirds have invoked fraudulent inducement as a cause of action, with most misrepresentations involving a company's finances, product development, or merger prospects one way companies protect themselves is by including in their employment agreements a "superseding clause" that effectively preempts whatever else might have been offered or said during the recruiting process or make financial records available to hires assuming they won't look very hard defenses can be surmounted by email

Colonel Stores, Inc v. Fisher

tort of male imprisonment and how it can come up in a business context Fishel accused of stealing a botle of asprin in top pocket of sweater; took him to stockroom where he was searched and handcuffed; manager filed criminal complaint against fishel; guard failed to appear as witness at hearing and fishel brought action against Colonial Stores to recover damages. jury returned verdict in favor of fishel and awarded him $400 in actual damages and $175,000 punitive. colonial stores appealed. appellate court found no error in trial court's finding that defendant, Colonial Stores, Inc., committed the intentional tort of false imprisonment

Big Brother Knows You're Speaking

tort of privacy (intrusion of solitude) $20-$30/mo "telematics" - satellite system and wireless phone; can transmit an automobile's location and status (stopped, how fast) withotu driver knowing Air IQ, hidden black box connects vehicles, via cellphone netowrk, to online data warehouse. info determined by GPS system and routed to internet site. can lower insurance premiums most rental car companies use telematics only if cars are stolen, not to police prohibitions (going to mexico) budget and hertz keep devices on passive mode on high-end rentals, activating system only if car is missing Acme Rent-a-Car of New Haven conn actively uses telematics data which charges credits of renters who speed $150 for each violation (every time car exceeds 80 mph for 2 minutes according to Knzlowsky, owner of rental agency) Brunswick is Acme's attorney Aircept's tracking box costs $595 to install plus $5-$35 monthly fee and $49 tracking boundary

Intentional torts include

torts against persons torts against property torts against economic interest

Nature and Function of Tort Law

torts are private (civil) wrongs against persons or their property. the primary aim of tort law is to compensate injured persons for such harms. injured persons can sue for actual (compensatory) damages, and possible punitive damages (where applicable)

defenses for trespass

trespass was warranted/reasonable/justified (e.g., entering the property to assist someone in danger), showing that the purported owner did not actually have the right to possess the property, etc **note that mistake is generally NOT a defense here (e.g., you were on a hike and did not realize that you were on somebody else's property)

defenses or false light

truth is a defense here; this cause of action is not available to dead persons or corporations because it is a personal right, and defendants here enjoy the same constitutional protections as defamation defendants (e.g., free speech)

appropriation of name or likeliness

using a well-known or famous person's name, likeness, picture, etc in an advertisement or for other commercial purposes without their consent e.g., using tiger woods' pictures in an advertisement without his permission

Transferred Intent

where you intend to inure one person or do something that is substantially certain to injure another person, but you miss and actually injure another (e.g., if I throw a rock at Bill, miss and hit Paul, then you've committed a battery on Paul even though he is not the person you wanted to hit!)

Intentional torts

willful offenses; occur when a defendant (tortfeasor) takes purposeful action and knows, or should know, that the action will cause harm to the plaintiff; all involve an element of intent - not intended damage but intend to do a certain act that results in harm to the plaintiff

statutory strict liability

workers compensation (hurt on job, paid out of workers' compensation fund for your injuries regardless of whether employer was at fault) dram shop statutes (e.g., they make a tovern owner or bartender civilly liable for injuries caused to persons who are served too much alc) operators of aircraft for ground damage resulting from aviation accidents

WWF, Parents' Group Settle Libel Case

world wrestling federation entertainment settled a suit against a group claiming that televised wrestling causes violence in children in defamation settlement involving media research center, the pro wrestling organization will receive $3.5 million Parents Television Council and Media Research Center target wrestling show smackdown for innapropriate content for broadcast television (run by Brent Bozell III) settlment included damages stemming from a fund-raising video of the parents' groups claiming that murders of 4 children were caused by learning moves from smackdown Tate killed Eunick, tate's lawyer Jim Lewis claimed murder caused by moves leanred from show hever murder was committed before smackdown went on air

Libel

written defamation (includes television and radio). because more "permanent' in nature than oral defamation, deemed to be more serious and its actionable without any proof of "special damage" to the plaintiff (i.e., evidence of the actual loss of anything of monetary value)