Torts II
Restatement (Second) of Torts, § 652C Comment D
"No one has the right to object merely because his name or his appearance is brought before the public, since neither is in any way a private matter and both are open to public observation. It is only when the publicity is given for the purpose of appropriating to the defendant's benefit the commercial or other values associated with the name or the likeness that the right of privacy is invaded.' "
Intrusion Upon Seclusion Elements
(1) "the defendant intentionally intruded upon the seclusion that the plaintiff 'has thrown about [his or her] person or affairs,' " and (2) the intrusion "would be 'highly offensive to a reasonable person
privileges (two types)
(1) Absolute privileges (2) Conditional or Qualifying privileges
Reliance Analysis
(1) Materiality (2) Justifiable reliance analysis (3) JDX (4) Puffery
misappropriation of likeness (two branches)
(1) Privacy-based (2) Right of publicity
Risk-Utility Factors
(1) Utility of product to user and public as a whole - RE: usefulness, desirability to user and public as a whole (2) "Safety aspect" - RE: likelihood it will cause injury and probable seriousness of the injury (3) Availability of a substitute product which would meet the same need and not be as unsafe (4) Manufacturer's ability to eliminate unsafe character of product without impairing usefulness or making it too expensive - RE: state of the art; reasonable alternative design (5) User's ability to avoid danger by exercise of care in use of product (6) User's anticipated awareness of dangers inherent in the product and their avoidability because of general public knowledge . . . - RE: pulls in consumer expectations concepts (7) Feasibility of loss-spreading through manufacturer's price-setting, or by carrying liability insurance
Reasonable Alternative Design (goes with factor 4 RE of RUA)
(1) design alternatives must be available at time of manufacture (2) must be technologically & economically feasible
defect that causes injury (3 objectives)
(1) intended use (2) defectiveness (402A) (3) causation
causal nexus (two part test)
(1) is required by or incidental to the employee's duties, or (2) it is reasonably foreseeable in light of the employer's business [Montague v. Man Healthcare]
questions to ask (respondent superior)
(1) is the negligent actor an employee? (2) was the employee acting within the scope of employment?
Warning Defect Steps to Analyze
(1) is there a duty? (2) if yes > whether warning supplied (3) if yes > assess adequacy ** keep heading presumption in mind (4) if warning arguably inadequate > next issue is causation
ways a product can be defective
(1) manufacturing defect (2) design defect (3) "warning" defect
Privacy Torts. 4 Types:
(1) misappropriation of likeness; (2) intrusion upon seclusion (3) publicity to private facts (4) false light
Restatement § 525: Fraudulent Misrepresentation
(1) misrep. of fact, opinion, intention or law is made (2) misrep. is made fraudulently (3) misrep. is made for the purpose of inducing another to act or to refrain from action in reliance upon it (4) the other justifiably relies on it to her detriment
Restatement § 519: General Principles (Abd. Dang. Act.)
(1) one who carries on an ADA is subject to liability for the harm to the person, land, or haters of another resulting from the activity, although he has exercised the utmost care to repent the harm (2) this SL is limited to the kind to harm, the possibility of which makes the activity abd. dang.
Requirements for a claim under §402A
(1) product was in a defective condition, unreasonably dangerous for its intended use (2) such defect existed when the product left defendant's control. AND (3) the defect was the proximate cause of the injury sustained
Interface w/ Contractual Relations Elements for Prospective Relations
(1) prove intent (2) means used (3) cause π economic loss
Public Policy for Respondent Superior factors are:
(1) to prevent recurrence of the tortious conduct; (2) to give greater assurance of compensation for the victim; and (3) to ensure that the victim's losses will be equitably borne by those who benefit from the enterprise that gave rise to the injury. [Montague v. Man Healthcare]
Plaintiffs Prima Facie (Bed, Bath & Beyond)
(1) π must show MFR or seller breached its duty to market safe products when it marketed a product designed so that it wasn't reasonably safe AND (2) defective designs was substantial factor in causing π's injury
False Light Elements
(1) ∆ gives publicity to a matter concerning another (2) that places the other before the public in a false light (3) subject to liability IF (4) FL in which the other was placed would be highly offensive to a reasonable person (5) Actor had knowledge of or acted in reckless disregard as to falsity ** look at the totality of the publication Clear & Convincing [Welling v. Weinfeld]
Design Defect Key Objectives
** diff. approach for diff. JDX (Leichtamer) - Consumer Expectation or Risk Utility - PA choose between CE or RU
Sindorf v. Jacron Sales Co., Inc.
- Employee Reference Termination - Mutual interest is present here because they share an interest In the honesty of that employee - Qualified privilege
truth and opinion notes
- If a speaker says, "In my opinion John Jones is a liar," he implies a knowledge of facts which lead to the conclusion that Jones told an untruth. Even if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact. Simply couching such statements in terms of opinion does not dispel these implications....' - "Thus a false statement of fact, whether expressly stated or implied from an expression of opinion, is actionable an opinion based on implied, undisclosed facts is actionable if the speaker has no factual basis for the opinion" but "[a]n opinion is not actionable if it discloses all the statements of fact on which the opinion is based and those statements are true." . . . - To decide whether a statement expresses or implies a provably false assertion of fact, courts use a totality of the circumstances test. . . - Thus, a court considers both the language of the statement and the context in which it is made. . . . "The contextual analysis requires that courts examine the nature and full content of the particular communication, as well as the knowledge and understanding of the audience targeted by the publication
Fruit v. Schreiner
- Insurance is readily available for the employer so that the risk may be distributed among many like insureds paying premiums and the extra cost of doing business may be reflected in the price of the product. o Incentivize purchase of insurance. - The theory of respondent superior is do business in a way that is less likely to cause accidents. - If the employee is acting for the benefit of the employer, then likely if employee is negligent under respondent superior employer will pay.
Minnifield v. Ashcraft
- Misappropriation - tattoo case [QR]If a person's likeness is published without her permission, the person has a valid claim for invasion of privacy based on commercial appropriation even if the person's only monetary damages are based on psychological interests.
Solano v. Playgirl Inc
- Playgirl cover - D disclosed to one or more persons information about or concerning P that was presented as factual but that was actually false or created a false impression about him; - The information was understood by one or more persons to whom it was disclosed as stating or implying something highly offensive that would have a tendency to injure P's reputation;
Riviello v. Waldron and Raybele Tavern
- Shows that an employers general expectations of employee behavior should include all types of normal human conduct and habits. - Employer does not need to foresee precises act that causes the injury - Scope of employment encompasses any act done while the employee is doing employers work (negligent acts or intentional acts) - Test is whether the act was done while the servant was doing his master's work, no matter how irregularly, or with what disregard of instructions! - did the employer control the employee? (Narrow approach)
Comity v. Meiners (opinion and truth)
- Speed ticket and radio host - While we agree with Cromity that this acquittal is not definitive proof of the truth of Meiners' claim that he was not speeding, it certainly does not weigh in Cromity's favor. Since the factual assertions underlying Meiners' opinions expressed during his broadcasts are not provable as false, and meet other requirements of protected opinion speech, they are constitutionally protected.
Haynes v. Alfred
- The Promised Land Book [QR] To recover for a breach of privacy involving the publication of personal facts about a private plaintiff, the plaintiff must show that the private facts published are such as would make a reasonable person deeply offended by the publication, and in which the public has no legitimate interest.
pure opinon
- absolutely privileged, - occurs where the commentator states the facts on which the opinion is based, or where both parties to the communication know or assume the exclusive facts on which the comment is clearly based.
In determining what is a matter of legitimate public interest
- account must be taken of the customs and conventions of the community; and in the last analysis what is proper becomes a matter of the community mores. - The line is to be drawn when the publicity ceases to be the giving of information to which the public is entitled, and becomes a morbid and sensational prying into private lives for its own sake, with which a reasonable member of the public, with decent standards, would say that he has no concern.
damages for a violation of the right to publicity
- address the economic interest in one's name or likeness
damages for commercial appropriation
- are intended to compensate for the personal harm to one's dignity and integrity
Bentley Reserve v. Papalios
- bad landlord - Contrast with Cromity (the value of Bently) o Here provably false o No facts alleged (more like John Jones) o Miners goes into such details about the stop
In re the Marriage of Jeffrey E Tiggs and Cathy Tiggs.
- camera in the bedroom
Hall v Post
- child abandonment 17 years ago [QR] A tort claim for invasion of privacy by public disclosure of private facts is not cognizable.
Sidis v. F-R Pub Corporation
- child prodigy "where are they now" [QR]A public figure may not have an action for invasion of privacy for publication of limited details of his private life, including his dress, speech, habits, and the ordinary aspects of his personality.
McCarthy v. Olin Corp.
- design defect is about function - can't apply risk utility test unless there is something actually wrong with the design - As a matter of law, a product's defect is related to its condition, not its intrinsic function
purpose of risk/utility analysis
- determine whether the risk of injury might have been reduced or avoided if the manufacturer had used a feasible alternative design. (McCarthy) - MUST be something wrong w/ product before analysis to apply!! - Criminal misuse = no duty - However, the risk of injury to be balanced with the utility is a risk not intended as the primary function of the product.
Existing K v. Prospective K
- different set of expectations for each - economic freedom of choice - interference w p.k. > CHILL economics activity (less)
Miller v. Civil Constructors, Inc.
- example of what is NOT ADA - public policy reason -- use of guns (although classified dangerous) = not deemed ultra hazers when practicing at firing range
Jews for Jesus v. Rapp
- flyers for rock throwing incident - Takes opposite position than Welling, false light is too subjective - Minority approach! Majority of jurisdiction recognize false light o PA recognizes false right
Consumer Expectation Test [Jackson v. Nestle-Beich, Inc.,] (food case)
- food manufacture is liable for injuries cause by substance in its product if a reasonable consent wouldn't expect that given product might contain such a substance - majority approach
Doe v. TCI Television
- hockey comics case - To recover damages for the tort of right of publicity, the plaintiff must prove that the defendant used the plaintiff's name as a symbol of his identity without his consent with the intent to obtain a commercial advantage.
Cantrell v. Forest City Publishing Co
- husband died in bridge collapse [QR] To maintain a false light claim, the plaintiff must show that the defendant published falsehoods knowingly or recklessly.
creel v. ICE & Associates
- insurance investigator camera in church [QR] There is not a reasonable expectation of privacy during public church services.
Fraud - State of Mind (fraud & misrep. ∆)
- knows statement is false; and intent to harm - knows statement is false but NO intent to harm - reckless about truth of statement
Standifer v. Val Gene Management Services
- landlord calling tenant troublemaker - She didn't know about the statements before she moved but she can't present evidence that she was hounded out of the building because of the statements
Exception to right to privacy
- legitimate public interest - broadcast of matters of "legitimate public interest" is not prohibited by the right to privacy because of the interest of the public in being informed
JDX (Reliance Analysis)
- may differ in how they treat statements of opinion - some will not categories "pure opinions" as actionable representations - others treat opinions as representations depend on circumstance (Westby)
Robertsons v. Rochester Folding Box Co.
- misappropriation - flour picture - With misappropriate its about the right to have your own image, the ability to autonomously manage your identity
nervous mama mink
- no recovery in ADA b/c naturally nervous - only mink ranch affected by blasting
Staton v. Metro Corp
- promiscuous teens [QR]: A communication is susceptible to defamatory meaning if it would tend to hold the plaintiff up to scorn, hatred, ridicule or contempt, in the minds of any considerable and respectable segment in the community. In making the assessment, however, the communication must be interpreted reasonably, and can be ruled defamatory only if it would lead a reasonable reader to conclude that it conveyed a defamatory meaning.
Manufacturing Defect Key Objectives
- usually proved w/ circumstances (Crookston v. Coca-Cola) - similar to Res Ipsa
economics loss rule
- you cannot have a cause of action for a purely economic loss in a "garden variety" case - economist torts= exceptions to K rule
absolute privilege
- ·fully insulates speaker from liability. Applies to limited speakers and contexts, - Narrow and few - Mostly involved judges statement on the bench of legislative comment on the floor -- Done to adjudicate and protect them and allow them to do their job
The Foreign v. Natural Doctrine [Mexicali Rose v. Superior Court] (food case)
- π has no c.o.a in SL or implied warranty if injury producing substance is natural to the preparation of food served
expectations of manufacture (Defendant)
- ∆ can be held liable even if they used ALL possible care in manufacturing product in question (Crookston v. Coca-Cola) - ∆ is SL when articles he places on the market, knowing that it's to be used w/o inspection for defects proves to have a defect that causes injury to a human being (Greenman v. Yuba)
Kramer v. Christies
-contrast with Westby - π have duty to investigate when they are experts * industry norms matter
Guille v. Swan
-paradigmatic case for SL - §520
Jablonski v. Rapalje
-puts in mind what concealment is - even when active concealment if have clues might not repent b/c unjust reliance - acttive concealment thwarts disco = justifiable reliance
two ways of measure damages in fraud
1) BOB - benefit of bargain 2) OOP - out of pocket measure ** need to have evidence to support
Misappropriation/Right of Publicity [Doe v. TCI] (Plaintiff must prove)
1) Defendant used π's name [or likeness]; (people will understand referring to π) 2) w/o a π consent 3) to obtain a commercial advantage -- focus on intent to gain commercial advantage -- there is no requirement that defendant also intended to injure plaintiff 4) damages: pecuniary loss to plaintiff or unjust pecuniary gain obtained by defendant
Slander Per Se Types
1. Imputations of Major Crime [Crime must be involving "moral turpitude" defined as "an inherent baseness or vileness of principle in the human heart"] 2. Loathsome Disease 3. Business, Trade, Profession or Office [likely to affect the plaintiff in his business, trade, profession or office, the probability of some 'temporal' damages is sufficiently obvious] 4. Serious Sexual Misconduct [charge imputing unchastity to a woman]
restatement § 552: negligent misrepresentation
1. ∆ in the course of business, profession, or employment OR any other transaction in which he has a pecuniary interest 2. supplies false information for the guidance of others in their business transactions 3. π justifiably relies upon the information 4. ∆ fails to exercise reasonable care or competence in obtaining or communicating the information 5. ∆ subject to liability for π pecuniary loss caused by justifiable reliance on the information
Plaintiff's Burden with Manufacturing design
402A + π must prove: (1) use product as meant to be used AND (2) get injured while doing so b/c of defect (Greenman v. Yuba)
Slander Per Se
Actionable without proof of special damages by proving defamatory statement is the legal cause of specific monetary harm
elements of a right of publicity action include
DON'T FORGET THAT THESE ARE LAYERED ELEMENTS (1) That defendant used plaintiff's name as a symbol of his identity (2) without consent (3) and with the intent to obtain a commercial advantage.
Crash worthiness
Doctrine under which an automobile manufacturer may be liable either in negligence or strict liability for injuries sustained in an accident if a manufacturing or design defect caused or enhanced the injuries, though not the accident itself. The crashworthiness doctrine is also called the enhanced-injury doctrine. (Leichtamer v. American Motors Corp.)
Design Defect
Entire underlying design is the defective (therefore, every unit manufactured is defective) * consider implication for manufacturer
warning defects "information defects" - general
MFR has duty to warn
Restatement (Second) of Torts, § 652C
One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy
Restatement Section 652E False Light
One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if: (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.
§ 652D Publicity Given to Private Life
One who gives publicity to a matter concerning the private life of another is a subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concerns to the public
§652B intrusion Upon Seclusion
One who intentionally intruded, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person
Going and Coming Rule
Rule whereby employers are generally not liable for tortious acts committed by employees while on their way to and from work. not within the scope of employment [Moradi v. Marsh USA]
required-vehicle' exception
The exception can apply if the use of a personally owned vehicle is either an express or implied condition of employment ..., or if the employee has agreed, expressly or implicitly, to make the vehicle available as an accommodation to the employer and the employer has 'reasonably come to rely upon its use and [to] expect the employee to make the vehicle available on a regular basis while still not requiring it as a condition of employment [Moradi v. Marsh USA].
what do you look for in product liability cases?
You don't look at defendant conduct, the focus is on the product!
layers of right of publicity action
[1] "the name used by the defendant must be understood by the audience as referring to the plaintiff" [2] the fact-finder may consider evidence including "the nature and extent of the identifying characteristics used by the defendant, the defendant's intent, the fame of the plaintiff, evidence of actual identification made by third persons, and surveys or other evidence indicating the perceptions of the audience." [3] the commercial advantage element of the right of publicity focuses on the defendant's intent or purpose to obtain a commercial benefit from use of the plaintiff's identity. But in meeting the commercial advantage element, it is irrelevant whether defendant intended to injure the plaintiff
Carfano v. Metrosplash
[QR] A computer matchmaking site may not be held liable for defamatory content posted in a fictitious dating profile by someone posing as another person.
Common basis for privilege
[T]he types of interest which are protected by a qualified privilege are classified by Prosser, at 786, as interest of the publisher, interest of others, common interest of publisher and recipient, communications made to one who may act in the public interest, and fair comment on matters of public concern.
Restatement §520: ADA (6 factors)
a) existence of high degree of risk of same harm to there person, land, chatters to others; b) likelihood that harm result from it will be great; c) inability to eliminate the risks by exercise of reasonable care; d) extent to which activity is not a matter of common usage; e) inappropriateness of the active to the place where it carried on; [consider character of place to its surrounding] f) extent to which its value to community is outweighed by its dangerous attributes [look for ∆'s reason in ADA]
fraudulently made = one who make misrep:
a) knows or believes that matter isn't as he represents it to be; OR b) doesn't have the confidence in accuracy of his representation the that he states or implies; OR c) knows that he doesn't have the basis for his representation that he state for implies
restatement § 542 (a)-(d)
a. Purports to have special knowledge of the matter that the recipient does not have, OR b. Stands in a fiduciary or other similar relation of trust and confidence to the recipient, OR c. Has successfully endeavored to secure the confidence of the recipient, OR d. Has some other special reason to expect that the recipient will rely on his opinion.
ellis v. grant thorton
accountants may not be held liable to unforeseen parties for negligent misrepresentation
IIKR - Prospective (Intent)
act for purpose OR act w/ substantial certainty substantial certainty = capacity, understanding & experience
restatement § 20: liability (ADA)
an active is ab. dang. if: (1) activity creates a foreseeable & highly significant risk of physical harm even when reasonable care is exercised by all actors; AND (2) activity is not one of common usage
respondent superior doctrine
an employer can be held liable for his employee's negligence
State of the Art (goes with factor 4 RE of RUA)
at time of manufacture not trial
Dyer v. Maine Drilling
blasting = SL Liability insurance required for blasters
reliance NOT justified if:
both parties have approximately equal competence to form an opinion on the subject matter §542 cmtd D
going and coming rule exception
commuting is within the scope if: - Required Vehicle Rule - On Call Employee - Job Related Errand - Commute serves a dual purpose [Moradi v. Marsh USA]
Deciding on offensiveness:
consider customs/ conventions of community; matter of community mores; line is crossed when defendant ceases to be giving information to which public is entitled and engages in a morbid and sensational prying into private for its own sake
Walmart v. Sturges
courts will be concerned if you get damages based on speculation (general rule) - prospective K
BOB
damages will be equal to what the π would believe the business would received in profit
Manufacturing design
departs from intended manufacturing design (Rix v. General Motors)
OOP
difference between price you paid & the FMV at the time of misrep.
follo v. florindo
finding of fraud doesn't require actual knowledge of falsity of rep.
Siegler v. Kulman
gasoline = SL
Substantively inadequate
if it omits necessary information = must provide complete disclosure of existence to extent of risk
material
if one to which a reasonable person would attach importance in determining their choice of action in the transaction in question [§538]
procedurally inadequate
if poorly presented: (1) consumer's attention? (2) comprehensible? (3) fair indiction of risks? (4) intensity justified by magnified of risk?
exception to r.s. liability employer and intention tort
if the act has a "causal nexus" to the employees work [Montague v. Man Healthcare]
heeding presumption (π argument)
if there has been sufficient warning, π wold have read and headed
whether π had duty to investigate (fraud & misrep.)
if ∆ made an aff. rep. there is NO duty to investigate - when there is positive distinct & definite rep. π had no duty to investigate. (Westby) - BUT, not if falsity of rep. is OBVIOUS or π has reason to know of facts which then make his relevance unreasonable (Westby) [i.e. representations that runs counter to knowledge wihthing π possession or reach]
Caruso v. Local Union 690
if ∆'s actions are just speech & there is nothing illegal to boycott = ∆ has right to do it - if ∆'s right to do it = NOT improper
interference with contractual relations
intentionally causing one of the parties to a contract not to perform
A product will be found unreasonably dangerous if:
it is dangerous to an extent beyond the expectations of an ordinary consumer when used in an intended or reasonably foreseeable manner.
materiality
justifiable reliance requires misrep. matter to be material §538
strict liability (definition and purpose)
liability without proof of negligence Purpose - ensures cost of injuries resulting from defective product are borne by the manufacture that put such products on the market rather than by injured person
"[F]oreseeability" [in the context of determining scope of employment]
merely means that in the context of the particular enterprise an employee's conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer's business.
garden variety
must be some sort of physical injury to π OR in many jdx. to property belonging to π
negligent misrepresentation - State of Mind (fraud & misrep. ∆)
negligent about truth of statement
exception to warning defects MFR duty to warn
no duty if danger is obvious (Liriano) - obvious is determined by what mass of users known
Justifiable (reliance analysis)
no reliance when statement is obviously false - whether falsity of a statement could have been discovered via ordinary care is to be determined in light of the intelligent & experiences mislead individual
general rule for responder superior liability for an employees intentional tort
no respondent superior liability for an employees intentional tort
parties w/ same experience
not entitled to rely on one another's opinions
frolic
not within scope of employment - If found to be frolic then not within the scope of the employment; doing something for personal reason (fun activities)
Intrusion upon seclusion
one who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of privacy, if the intrusion would be highly offensive to a reasonable person
scope of liability ; (∆ act's)
one who makes f. misrep. is subject to liability. to whom she intends or experts reliance upon misrep. for pecuniary loss suffered by them via their just. reliance in type of transaction she intends [§ 531]
who bears the burden to establish tortuous act respondent superior
plaintiff bears the burden of proving that the employee's tortious act was committed within the scope of his or her employment.
heeding presumption (∆ argument)
presumptions are rebuttable IF: ∆ can get π to admit didnt read label under oath (Bed Bath)
Consumer Expectation Design Defect
product may be found defective in design IF: (1) π demonstrated the product failed (2) to perform as safely as ordinary consumer expects (3) when used in intended or reasonable foreseeable manner ** shaped by advertising
right of publicity:
protect a person from losing the benefit of their work in creating a publicly recognizable persona
Westby v. Gorsuch
public policy reasons: - moving from buyer beware > lead less experience people from trading, thus affecting commerce - law favors people in wesby's position
NAACP v. Clairborne
publication of articles = conditionally protected & can't give rise to liability for tort of business interference
warning defect π relief (Burke)
recovery on duty to warn = need to prove both BREACH & CAUSATION
puffery (Reliance Analysis)
refers to a subcategory of opinion statements vernally not basis for fraud claims I;.e. "fine" "superb" "first class"
Restatement § 538A : Intentional Misrepresentation
representation of value are statement of opinion BUT: such statement [of opinion[ may also be factual representation IF: (1) ∆ made rep. intending to induce π to act; (2) relevant info. was not readily available to π; AND (3) circumstances indicate π was entitled to rely on rep. as fact
Rylands v Fletcher
strict liability IF: - lawfully bring something onto his land where if escapes & is capable of doing harm occurring as natural consequences of escape
False Light
the defendant has put you in a false light and by doing so cause plaintiff to suffer outrage, mental distress, shame and humiliation
restatement § 542
the receipt of a fraud. misrep. sole on makers opinion is not justified in relying on it in a transaction w/ the maker unless the fact to which opinion relates is material and the maker: (a) - (d)
right to privacy
the right of a person to be free from unwarranted publicity' or 'the unwarranted appropriation or exploitation of one's personality, the publicizing of one's private affairs with which the public has no legitimate concern. Smith v. Doss
To Recover Under Consumer Expectation on a Design Defect
the π must prove by a preponderance of the evidence that the "enhancement" of the injuries was proximately caused by a defective product unreasonably dangerous to the plaintiff.
Assessing Warnings Sufficiency or Defectiveness
three types: -Warning adequacy -Substantively inadequate -procedurally inadequate ** law requires warnings not be conveyed in a manner that effectively prevents a consumer form reading them (Carruth)
Griffin v. Turner
to recover under EK: (1) Intent w/o privilege or justification (2) existence of a valid K (3) to induce another NOT to enter into or continue business relationship w/ π (4) causing economic injury
Warning adequacy
usually jury question, most cases include expert testimony
when is a manufacturer strictly liable
when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being
Griffith v. Buyers Construction
where a seller has knowledge of a defect ... which is not within the fair & reasonable reach of the buyer & which the buyer couldn't discover by experience of reasonable diligent = silence & reasonable failure of seller to disclose defect is actionable fraudulent concealment
Threshold Question defamation
whether [the] communication is reasonably susceptible of a defamatory meaning IF YES, then "whether the article is defamatory is not the court's to decide: " '[w]here the communication is susceptible of both a defamatory and nondefamatory meaning, a question of fact exists for the jury." IF NO, claim dismissed
control theory
which finds liability whenever the act of the employee was committed with the implied authority, acquiescence or subsequent ratification of the employer - narrow approach
enterprise theory
which finds liability whenever the enterprise of the employer would have benefited by the context of the act of the employee but for the unfortunate injury. - modern approach - why there is insurance
Qualified privilege
will insulate speaker from liability unless privilege is abused; if abused, the privilege is lost.
detour
within scope of employment - A detour is called a trivial departure from employment.
A communication is susceptible to defamatory meaning if it
would tend to hold the plaintiff up to scorn, hatred, ridicule or contempt, in the minds of any considerable and respectable segment in the community.'
Risk Utility Design Defect
π proves risk of challenged design outweighs benefits (Kokins) - use expert testimony - used for scientific & technical
Defamation v. False Light (False Light)
• Statement might be entirely false. • Statement can be literally true but create a false impression. • HARM IS EMOTIONAL: e.g., SHAME, HUMILIATION. • DAMAGES ARE FOR THE EMOTIONAL DISTRESS
Defamation v. False Light (defamation)
• Statements of fact that are true are not actionable. • Statements of fact that are untrue but not capable of defamatory meaning are not actionable. • If statement is factual, untrue, and defamatory it is actionable [if actual malice or negligence standard is met]. • HARM IS TO REPUTATION. • DAMAGES ARE FOR PECUNIARY LOSSES CAUSED BY HARM TO REPUTATION.
IIKR - Prospective (means used)
∆ conduct was independently tortious OR violated a law - impend of IIKR - if affirmative defense = not it
