1
Q
contributory negligence
negligence defenses
A
-older, minority approach
-any negligence by P results in total bar to recovery
2
Q
comparative negligence
negligence defenses
A
-majority view
-negligence by P results in reduced recovery
- can be total bar to recovery in some cases
3
Q
assumption of risk
negligence defenses
A
-mostly abandoned
-express v. implied
-total bar to recovery?
4
Q
immunities
negligence defenses
A
-judicial proceedings
-employer
-families
-charities
-governments
-tribes
-public officers
5
Q
Pure “full” comp. negligence
negligence defenses
A
-no threshold
-% of fault reduces
6
Q
modified “Partial” comp. negligence
negligence defenses
A
-50% allowed rule (tie to p) (majority)
- “is not greater than” language
- South dakota’s doctrine
50% bar rule (tie to D) ( minority)
- “is less than” language
collective defendant’s (majority) & defendant-by-defendant (minority)
7
Q
express assumption of risk
neglgience defenses
A
- requires an explicit agreement in words (written or oral) assuming the risk
- majority of jurisdictions still recognize, with limits
8
Q
implied assumption of risk
negligence defenses
A
- by conduct or actions, p shows assumed risk
- majority of jurisdcitions no longer recognize
- may be subsumed in comparative negligence, leading to primary/secondary implied AoR analyses
9
Q
express assumption of risk issues
negligence defenses
A
- whether jurisdiction considers exculpatory contracts unenforceable due to lack genuine voluntariness
- most jurisdictions: public necessities = unenforceable waivers
- other problem areas: products liability cases, employement injury cases
10
Q
general elements of assumption of risk
negligence defenses
A
knowledge & voluntariness
-knowledge: P knows and appreicates the risk, including its nature and severity
-voluntariness: P takes on risk in an antirely voluntary way
11
Q
do pre-injury release forms release liability
negligence defense
A
AoR through pre-injury release from liability will be enforced if the injury is within the scope of the terms of the release and the release is not in violation of public policy
12
Q
what are the issues with implied assumption of risk
negligence defenses
A
-primary implied: no duty (treatment of “obvious and necessary” risks compared to “obscure and unobserved” ones when estbaloshing existence of duty = complete bar to recovery)
- secondary implied: finding of fault reduces or bars percentage of recovery [D created the risk through negligence but he P appreciated the risk and still assumed it = reduction in damages]
13
Q
when does cause of action occure
negligence defenses
A
when the P discovered or should have discovered the negligently inflicted injury rather than at the itme of the injury
14
Q
zellmer v. zellmer
negligence defenses
A
WA decides to retain parental immunity in a case arising out of negligent supervision by a stepparent after having previously abandoned it with respect with intentional torts and situations
15
Q
describe charitable immunity doctrine
negligence defenses
A
- the traditional common law doctrine of charitable immunity no longer is recognized in most jurisdictions
- charitable immunity continues to exist in modified form in some jurisdictions
16
Q
riss v. new york
negligence defenses
A
-no duty is imposed on the police that cna be enforced through the tort system to protect citizens from crime
17
Q
Delong v. Erie
negligence defenses
A
- tort liability against a municipal government unit for negligent conduct may be imposed where the governmental unit negligently provided the service and the P had personally relied on the government’s promises
18
Q
describe how the federal government is immune from suits
negligence defenses
A
- through FTCA, Congress waived sovereign immunity under certain circumstances
- Discretionary Function Exception [DFE} shields the government from liability when the actions taken were (1) discretionary and 92) the jdugment involve “is of the kind that the DFE was designed to sheild” that is when the conduct is in social, economic, or political goals”
19
Q
describe Congress immunity
negligence defenses
A
- the FTCA through the Westfall Act, provides that the remedy against the US for negligent acts of its employees is exclusive of any remedy against the employee
20
Q
What was the holding in Bundt v. Embro
joint tortfeasors
A
P may file as many suits against potnetial D’s as he chooses and may take as many to judgment as he chooses, but P may collect only one full satisfaction.
21
Q
what was the holding in Cox v. Pearl Investment
joint tortfeasors
A
The release of one joint tortfeasor releases them all, but a covenant not to sue is not a release and affects the liability only of the parties to it
22
Q
How does the court view Mary Carter agreements
joint tortfeasors
A
Mary Carter agreements [whereby one D limits his liability by settling with P but staying in the case] are void as against public policy even if they were disclosed to the court and the opposing party
23
Q
what happens when a joint tortfeasor pays more than their share
joint tortfeasors
A
- Knell v. Feltman
- Any joint tortfeasor who pays more than their share ofthe P’s damages may seek contribution [partial reimbursement] from other joint tortfeasors.
- this right of contribution is not affected by the P’s choice of D’s and may be enforced through a 3rd party claim or seperate contribution action if P doesn’t join all of the joint tortfeasors
24
Q
can non-immune tortfeasors collect from immune tortfeasors?
joint tortfeasors
A
- yellow cab. v. dreslin
- no they cannot collect contribution from immune tortfeasors
25
should settlement be encouraged?
## Footnote
joint tortfeasors
- slocum v. donahue
- allowing the settling D to buy its peace and not be subject to further liability for contribution v.
- the fairness to nonsettling D
26
what happens when the defendant couldnt determine which were attributable to which accident
## Footnote
joint tortfeasors
- Bruckman v. Pena
- to assess all damages against the defendants if they could not determine which were attributable to which accident
- shifted to the burden of P [BOP] to D's to allocate P's injuries beween the two accidents
27
what is the restatement [third[ of torts: liability for physical and emotional harm § 37
## Footnote
duty of care
- general duty rule
- "an actor whose conduct has not created a risk of physical harm to another has no duty of care to the other unless a court determines that [an] affirmative dut[y exists]
28
where does liability rest n privity of contract?
## Footnote
duty of care
- winterbotton v. wright
- liability rested soley in conctract which could not extend beyond those in privity
29
what is the duty of care in regards to manufacturers
## Footnote
duty of care
- MacPherson v. Buick Motor
- if the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made and there is added knoweldge that the thing will be used by persons other than the purchaser without new tests, then irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully
30
how does liability affect 3rd parties as monopolies or special relationships?
## Footnote
duty of care
- HR Moch v. Rensselaer Water Co
- independent duty must be found and this can arise from a public duty imposed by the status of the D as a monopoly provider or from a special relationship established resting upon the D's assumption of responsibility and the P's reliance to his detriment
31
what is the bridge to economic loss
## Footnote
duty of care
- clagett v. dacy
- the d attorney's negligence caused P's economic loss
32
what is duty of care under special relationships
## Footnote
duty of care
- Commonwealth v. Peterson
- a duty is imposed with regard to risk that arises within the scope of the relationship.
- the court admits a duty may arise but asks whether it covers these risks. the degree of knowledge or foresign of the risk is cirtical for the court
33
act v. failure to act
## Footnote
duty of care
- action is better seen as "conduct that creates a risk of harm"
- No action i sbetter seen as "conduct that does not create a risk of harm"
34
what is the general rule for no duty
## Footnote
duty of care
an actor whose conduct has not created a risk of physical harm to another has no duty of care to the other unless a court determines that [an] affirmative dut[y exists]
35
what are special affirmative duty situations
## Footnote
duty of care
- voluntarily undertaking a cuty of care
- special relationships
36
what are the special relationships
## Footnote
duty of care
- parent/child
- employer/employee
- common carrier/passenger
- shopkeeper/patron
37
what is the duty of care of someone who voluntarily undertakes a duty
## Footnote
duty of care
- subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking if (1) his failure to exercise such care increases the risk of such harm, or (2) the harm is suffered because the other's reliance upon the undertaking"
38
what is the duty of care under special relationships (peril)
## Footnote
duty of care
- the D may be liable for failure to act if the plaintiff is in peril
39
where is there a duty to rescue
## Footnote
duty of care
- a duty to rescue may be owed i.e., a duty to take positive or affirmative steps- where D controls the instrumentality causing the injury. the duty went to aggravation and damages were limited to the aggravation
40
what is the duty of care of a doctor and patient
## Footnote
duty of care
- a duty to exercise reasonable care to pritect a third persons will subsist once a therapist determines or should have determined that a patuent poses a serious danger of violence to those third persons.
41
when should a P be compensated for all damages
## Footnote
duty of care
-whether past, present, or prospective:
- includes compensation for economic damages; non-economic damages
- nominal damages are not available in negligence cases
42
what is pure economic loss for damages
## Footnote
duty of care
- pure. economic losses that are not accompanied by physical damage to person or property are not compensable
- common exceptions are accountants and attorneys
43
what is the economic loss owed from proximity
## Footnote
duty of care
- Southern California Gas Leak Cases
- economic losses caused by mere proximity to an industrial site damages by negligent actions, are not compensable in negligence. in such a case, the negligent actor does not owe a duty of care to avoid pure economic losses
44
elements of IIED
## Footnote
Duty of Care
(1) a volitional act
(2) Act is "extreme and outrageous conduct" [objective]
(3) intent or recklessness to cause severe emotional distress [subjective]
(4) substantial cause of actual damage
45
what test is used for duty of care under IIED cases
## Footnote
duty of care
- Deley v. LaCroix
- the court replaces the "physical impact" test with a "definite and obejctive physical injury" or "physical manifestation" test.
- court adheres to the requirement that an ordinary person would have suffered such a reaction. P must prove causation, but a post hoc propter hoc nexus is tolerated when expert evidence would usually be indispensable
46
what test is required for IIED
## Footnote
duty of care
- firm-bright-line-rule
- (1) P establishes a close familial relationship
- (2) P is present at the scene and is aware it is causing injury
- (3) P, as a result, suffers "serious emotional distress. . . beyond that of disinterested witnesses and which is not abnormal"
47
NIEF that causes physical harm
## Footnote
duty of care
- there is a limited duty not to negligently inflict emotional distress where there is a foreseeable risk of physical injury to the P, PLUS
- (1) the P is within the "zone of danger" and
- (2) the P suffers physical symptoms from the distress
48
NIED that does NOT cause physical harm
## Footnote
duty of car
- If the actor's conduct is negligent as creating an unreasonable risk of causing either bodily harm or emotional disturbance to another, and it results in sich emotional disturbance alone, without bodily harm or other compensable damage, the acotr is not liable for such emotional disturbance
- restatement (second) §436a
49
physical harm, but no actual danger
## Footnote
duty of care
- if the actor negligently causes "fright or other emotional disturbance which the actor should recognize as involving an unreasonable risk of bodily harm, the fact that the harm results soelly through the internal operation of the fright or other meotional disturbance does not protect the actor from liability
| restatement (second) §436(1)
50
restatement (second), §436
## Footnote
duty of care
(2) if the actor's conduct is negligent as creating an unreasonable risk of causing bodily harm to another. . . , the fact that such harm results solely from the internal operatio of fright or other emotional disturbance does not protect the actor from liability
(3) the rule. . . [also] applie where the bodily harm to the other results from his shock or fright at harm or peril to a member of his immediate famiyl occurring in his presence
51
bystander moetional distress
## Footnote
duty of care
- There is a limited duty to not inflict emotional distress on bystanders outside the “zone of danger” of physical
injury who see the defendant negligently injuring another, as long as: (i) the plaintiff and the person injured by the defendant are closely related; (ii) the
plaintiff was present at the scene of the injury; and, (iii) the plaintiff personally observed or perceived the event
52
what are the exceptions where emotional distress often allowed without observation
## Footnote
duty of care
- negligent mishandling of a relative's corpse
- negligent mistaken report of a terminal diagnosis
- negligent mistaken report of a relative's death
53
what is the duty of care for child death
## Footnote
duty of care
- Procanik by Procanik v. Cillo
- a wrongful life action was available where the D's negligence robs the mtoher of the choice to abort the child, thus obligating the child into a wrongful life.
- the damages cover special damages for extraordinary medical expenses during infancy and during majority
54
what are the 5 areas of focus in damages
## Footnote
damages
(1) types of damages
(2) jury allocation of damages
(3) the "collateral-source rule"
(4) duty to mitigate damages
(5) punitive damage fairness isues involving due process of law
55
what are the types of damages
## Footnote
damages
- nominal
- compensatory damages economic losses
- compensatory damages non-economic losses
- punitive (exemplary) damages
56
how do states view medical monitoring
## Footnote
damages
a dozen states have recognized it and 2x as many reject it
57
the amount of the award to be reduced is what value when the court is determining future losses
## Footnote
damages
present value (plus interest will equal amount awarded)
58
courts take instruct juries to take into account what
future inflation
59
is federal income tax included from income compensation for personal injuries?
## Footnote
damages
P's recieve a windfall for the portion of their damage award that is to compensate them for lost wages that would have been subject income tax
60
what are the non-economic losses
## Footnote
damages
- loss of function or appearance
- loss of enjoyment of life
- per-diem argument
61
what are judicial control of amounts recovered
## Footnote
damages
- remittitur
- additur
62
define remittitur
## Footnote
damages
a grant for a motion for a new trial that is conditioned upon the refusal of the P to accept a lesser amount
63
define additur
when the verdict is inadequate, grant a motion for a new trial that is conditioned upon the refusal of the D to pay a larger sum set by the court
64
may tortfeasors benefit by paying less in damages by sources of collateral
## Footnote
damages
- TF may not benefit from [pay less in damages b/c of] payments made to the P by sources collateral to the TF
65
motion in limine
## Footnote
damages
- motion made before trial to prohibit one side from referring to or introducing evidence that the other side believes is inadmissible
- also so prejudicial that the moving party would not get a fair trial if it were mentioned before the judge had a chance to rule on its admissibility during the trial at the point if was offered
66
common law collateral source rule
## Footnote
damages
- applied when the P recieves compensation from any source other than the TF
## Footnote
3/4 of states have modified collateral source rule-half provide that information concerning collateral source is admissible
67
loss of concortium
## Footnote
damages
- most states recognize a claim by the spouse of an injured person for loss of relations, society, companionship, etc
## Footnote
claim is derivative of the injured person's and in most states must be joined in the cause of action of the injured person
68
what do the courts charge for physical harm to property
## Footnote
damages
- market value
- what the property could have been sold for on the open market at the time and place where the wrong occured ; the highest price that could have been realized, not the lowest price at which there reasonably could have been a sale
## Footnote
some cases consider personal value
69
are people compensated for pets?
## Footnote
damages
- not usually compensated for sentimental value of pets
70
what does the duty to mitigate damages say
## Footnote
damages
- a rule that doesn't allow recovery of those damages that P could have avoided by RSBL conduct on the part of the P after a legal wrong has been committed by the D
## Footnote
also called doctrine of avoidable consequences
71
what are the 3 guideposts from BMW
## Footnote
damages
(1) degree of reprehensibility
(2) no bright-line ratios involved
(3) disparity between punies and authorized civil penalties
72
describe respondeat superior
## Footnote
vicarious liability
- an employer will be vicariously liable for tortious acts committed by her employee if the tortious acts occur within the scope of the employment relationship
73
describe vicarious liability
## Footnote
vicarious liability
one person commits a tortious acts against a 3rd party, and another person is liable to the 3rd party for this act
74
can employee actions be imputed onto the employer?
## Footnote
vicarious liability
- yes if the employee's negligence was within the scope of employment at the time the negligent conduct occurs
75
what is the slight deviation rule
## Footnote
vicarious liability
personal acts that are nto far removed in time, distance, or purpose from the employment are deemd to be incidental to employment and thu spart of the scope of employment
76
frolic v. detour
## Footnote
vicarious liability
- frolic is something the employer is not responsible for
- detour is a slight deviation from employer's purposes for convenience of employee for which employer is responsible
- this is a question of fact that must be resolved by the jury
77
do independent contractors have responsibility in vicarious liability claims?
## Footnote
vicarious liability
there is no responsibility for the actions of an independent contractor
78
who is responsible for the independent contractor's actions in nondelegable duties?
## Footnote
vicarious liability
the person upon whom the duty is imposed is responsible for the independent contractor's actions in negligently performing the duty
79
what are the duties for vicarious liability for independent contractors
## Footnote
vicarious liability
- nondelegable duties
- apparent authority
- inherently dangerous activites or peculiar risk of harm
- illegal activities
80
can liability be imposed on joint ventures
## Footnote
vicarious liability
- yes for those who engage
- a joint venture is one where there is an agreement (express or implied) among the members of a group to act with a common purpose to enhance their pecuniary interest and in which they each have equal control over the direction of the enterprise
81
in a majority juris, where does vicarious liability fall for owners of cars?
## Footnote
vicarious liability
on the owner of the car for the negligence of the driver
82
what is the both ways theory?
## Footnote
vicarious liability
negligent conduct of a drive was attributed to the owner/passenger of the car to bar or reduce his recovery for his own injuries
83
what are the policies for negligence
## Footnote
strict liability
(1) those who do not exercise reasonable care pay for injuries of those they injure by accident
(2) those injured by one who acts with reasonable care bear costs of theur own accidental injuries
84
what are the policies for strict liability
## Footnote
strict liability
(1) those engaged in certain high-risk activities bear the cost for injuries caused by those activities even if reasonable care exercised
85
what are the strict liability categories
## Footnote
strict liability
(1) animals
(2) abnormally dangerous activities
(3) products liability
86
what is the prima facie for strict liability cases
## Footnote
strict liability
(1) the nature of the defendant's activity imposes a strict duty to make it safe
(2) the dangerous aspect of the activity is the actual and proximate cause of the P's injury
(3) the P suffered damage to person or property
87
is an owner strictly liable for wild aniamls?
## Footnote
strict liability
- yes, even if exercising utmost care
- the keeper of a wild animal is requried to know the dagerous properties normal to the class to which it belongs
- owner is subject to liability for harm resulting from a dangerous propensity that is characteristic of wild animals of that particular class
88
what is the zookeeper exception
## Footnote
strict liability
- most juris, subject zoos to negligence liability instead of strict liability b/c ofo their educational benefit to society
89
what is the domestic animal rule
## Footnote
strict liability
- owner of a domestic animal is not strictly liable for injuries it causes UNLESS owner has actual knowledge of that particular animal's dangerous propensities
90
what factors influence if an owner is strictly liable for domestic animals
## Footnote
strict liability
- if keepers "know or have reason to know" a domestic animal i s"abnormaly dangerous"
- applies even if owner acts with reasonable care to keep animal penned/leashed
- contributory negligence is not a defense here
- might also be able to asssert a theory of negligence
91
can defendants be held liable for damage caused by "non-natural" use?
## Footnote
strict liability
yes, even if there is no negligence on their part causing the damage
92
abnormally dangerous activity rule
## Footnote
strict liability
(1) one who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm
(2) this strict liability is limited to the kind of harm, the possibility of which mkaes the activity abnomrally dangerous
## Footnote
restatement (second) of torts § 519
93
An activity is abnormally dangerous if: . . .
## Footnote
strict liability
(1) the activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors; and
(2) the activity is not one of the common useage
## Footnote
restatement (third) of torts: liability for physical and moetional harm § 20
94
how does strict liability get imposed in regards to discharging firearms
## Footnote
strict liability
- should not be imposed b/c the risk can be reduced by care, its common, and apparently has social utility
95
strict liability in regards to transporting chemicals
## Footnote
strict liability
- indiana harbor belt v. american cyanamid
- the transportation of hazardous chemicals through a urban area is not one to which it is appropiate to apply strict liability
96
what are the 6 restatement factors to identify adnomrally dangerous activities
## Footnote
strict liability
(1) existence of a high degree of risk of some harm to the person, land or chattels of others
(2) liklihood that resulting harm will be great
(3) inability to eliminate the risk by the exercise of reasonable care
(4) extent to which the activity is not a matter of common usage
(5) inappropiateness of the activity to the palce where it is carries on
(6) extent to which its value to the community is outweighed by its dangerous attributes
97
what are typically considered abnormally dangerous activities
## Footnote
strict liability
- collecting water/explosives in unsuitable places
- blasting or lots of inflammable liquids in a city
- crop-dusting or poisonous fumigation
- oil wells or refinerues in close communities
98
can plaintiffs recover in unforeseeable event
## Footnote
strict liability
- P will not be able to recover in a strict liability case if the harm was caused by an unforeseeable event
- proximate cause is narrower in S/L than in negligence = easier for P to prove proximate causation in a negligence case than in S/L case
99
can contributory negligence is used as a defense to strict liability?
## Footnote
strict liability
no in some jurisdictions
100
is assumption of risk a defense to strict liability
## Footnote
strict liability
- yes, if P knew of the danger and unreasonable conduct was cause of harm
101
is unknowing contributory negligence a defense to strict liability?
## Footnote
strict liability
no
102
does partial defense comparative negligence apply as a defense to strict liability?
## Footnote
strict liability
- applies in most jurisdictions, apply the same comparative neglgience rules as neglgience cases
103
bright line test v. factor balancing reasonable test for owners and occupiers of land
## Footnote
owners and occupiers of land
- bright line would save the costly inquiry to particular circumstances
- applies a test of whether D had, under the circumstances, taken reasonable care about the condition
- factors of location, use of property, and customary practice were being weighed in gauging reasonableness
104
static conduct v. active conduct
## Footnote
owners and occupiers of land
- active: courts apply the usual reasonable foreseeability test = reasonable use of property
- the more active the conduct in the creation of any kind of hazard, the more likely the court will find liability
105
do property owners need to act in anticipation of trespassers?
## Footnote
owners and occupiers of land
- no duty should be found, at least in the absense of any pre-existing relationship.
- however, the presence of the trespasser is known, then a duty will arise to take reasonable care with knowledge
106
minority v. majority view on landowner duty to trespassers
## Footnote
owners and occupiers of land
- some states: the only duty owned is to not act in an intentional, willful, or wanton manner to cause physical harm
- most jurisdictions: require a duty of "ordinary care" and to avoid injury to trespassers, but only once the trespasser is discovered
107
what duty do propery owners owe to licensees
## Footnote
owners and occupiers of land
- invitee: duty would be more intrusive, requiring RSBL positive steps on part of P (duty to protect against unusual dangers)
- licensee: duty turns on the D's occupier's actual knowledge of the propensities (duty to warn of traps)
108
is there a duty to a licensee to inspect for defects/repairs?
## Footnote
owners and occupiers of land
no, but there is a duty to exercise reasonable care in the condcut of "active operations" for the protection of the licensee whom he knows to be on the property
109
is there a duty for an owner/occupier to use reasonable and ordinary care in keeping of the property?
## Footnote
owners and occupiers of land
yes this duty is owed plus a duty to make reasonable inspections to discover dangerous conditions and make them safe
110
what are landlords liable for?
## Footnote
owners and occupiers of land
(1) undisclosed dangerous condition known to lessor and unknown to the lessee
(2) conditions dangerous to persons outside of the premises
(3) premises leased for admission of the public
(4) parts of land retained in lessor's control which lesee is entiteld to use
(5) where the lessor contracts to repair
(6) negligence by lessor in making repairs
111
what is coase theorem
## Footnote
owners and occupiers of land
landlord is a better position to access the risk and act, without the free rider problems associated with collective tenant action
112
what is product liability
## Footnote
products liability
- generic phrase used to describe the liability of a supplier of a product to one injured by the product
- includes theories under both negligence and stric tliability as well as express and implied warranties
113
what are the policy goals of products liability
## Footnote
products liability
- social responsibility
- loss-spreading
- saftey incentives
114
what are privity-based theories in contracts
## Footnote
products liability
- express warranty
- implied warranties
115
express warranty
## Footnote
products liability
affirmatively states a fact or promise about the product's functioning as a "basis of the bargain"
116
implied warranties
## Footnote
products liability
- may be UCC-types laws
- merchantability or fitness for a particular purpose (think item sold is reasonably fit for its general purpose it is sold)
117
product liability subjective v. objective test
## Footnote
products liability
- sub: more states are no longer requiring reliance
- obj: only that D made warranties that would create justifiable reliance
118
what is strict liability law
## Footnote
products liability
- breaks the ability of a manufacturer to disclaim any responsibility for personal injury; provides same rationale for strict liability to promote public acceptance
119
warranty protection extends to ____ users
## Footnote
products liability
foreseeable users even if they are not in the chain of distribution and manufacturer may not limit its liability to exclude recovery for personal injury
## Footnote
Hennsingsen v. Bloomfield
120
are negligence and breach of warranty adequate causes of action?
## Footnote
products liability
- strict liability for defective products is adopted by California b/c of its view that they are NOT adequate to compensate P
## Footnote
Greenman v. Yuba Power Products
121
restatement (second) of torts s. 402A
## Footnote
products liability
1. one who sells any products in a defective condition unreasonably dangerous. . . is subject to liability . . . if
-> the seller is engaged in the biz of selling
-> it is expected to & does reach the user without substantial change in which it is sold
2. the tule state in subsection (1) applies through. . .
-> the seller has exercised all possible care &
-> the user has not. . . entered into any contractual relation with the seller
122
what are the major types of products liability
## Footnote
products liability
1. manufacturing defects
2. design defects
3. defects in marketing
123
what are manufacturing defects
## Footnote
products liability
- occur in production of the item and impact some of the overal production line
- proof: product must be dangerous beyond the expectation of the ordinary consumer because of a departure from its intended design
124
what are design defects
- inherent flaws exist before the manufacturing, causing unreasonable dangerousness
- proof: must be defective at time it leaves control of the manfactuer; there is a reasonable alterntive design
125
what is defects in marketing
## Footnote
products liability
improper instruction or failure to warn the consumer of latent dangers
126
what are risk-utility factors to assess designs
## Footnote
products liability
1. usefulness and desireability of product to the public, weighted against liklihood and seriousness of harm
2. availability of safer alternative products that would meet the smae needs and not be too expensive
3. ability ti eliminate danger while meeting the same needs and not making the product too expensie
4. obviousness of inherent danger to user, and avoidability with knowledge and suitable warnings
5. expectations of danger by the ordinary consumer
127
what are warning defects
## Footnote
products liability
- product fails to provide adequate warnings of dangers that were known (or should have been known) and that are not apparent to users
- proof: must show warnings are inadequate
128
restatement (third) of torts, products liability s. 2(c)
## Footnote
products liability
a product is decfective b/c of inadequate warnings when the foreseeable risk of harm posed by the product could have been reduced or avoided by the provision of reasonable. . .warnings. . . and the omission of the instructions or warnings renders the product not reasonably safe
129
plaintiff must demonstrate _ in California in order to for the court to impose strict liability
## Footnote
products liability
- D has actual or constructive knowledge of the potential risk or danger
## Footnote
Anderson v. Owens-Corning Fiberglass Corp.
130
can defect be proved by res ipsa loquitur?
## Footnote
products liability
-yes, defect may be proved by circumstantial evidence
131
restatement (third) of torts, products liability s. 3
## Footnote
products liability
it may be inferred that the harm sustained by the P was caused by a product defect existing at the itme of sale or distribution, without proof of a specific defect, when the incident . . .
1. was a kind that ordinarily occurs as a result of product defect; and,
2. was not, in the particular cae, solely the result of causes other than product defect existing at the time of sale or distribution
132
does comparative negligence principles apply to S/L?
## Footnote
products liability
-yes, they apply to products liability causes of action based on strict liability
## Footnote
Dely v. General Motors Corp.
133
if a product is deemed not defective, but was a an extensive misuse, what is the misuse called?
## Footnote
products liability
- other times, they say the misuse was "foreseeable" and the product is defective but damages may be reduced based on P's fault
- P's misuse of a product will not prevent recovery under a strict liability theory of recovery if the P's abnormal or unintended use of the product was or should have been foreseeable to the defendant
134
should sellers of used cars and other used products be subject to S/L?
## Footnote
products liability
- not applicable to those who sell used products where there is no showing that hte defect existed at the time the product left the manufacturer's control or that the defect was creted by the used product seller
| majority imposes S/L on retailers & wholesalers of new products
## Footnote
Peterson v. Lou Bachrodt Chevrolet Co
135
Do companies such as Amazon classify as a seller?
- no
- when it proides a website for use by other sellers of products and facilities those sales under its fulfillment program, it is not a seller, and it does not have the liability of a seller
## Footnote
Erie Ins. Co. v. Amazon.com
136
T.H. Novartis Pharmaceuticals Corp.
## Footnote
products liability
-Brand-name drug manufacturer may
be held liable for failure to warn of adverse
side effects based on injury caused by
plaintiffs’ exposure to a drug manufactured
by a generic drug manufacturer even though plaintiffs had not been exposed to any of the drug made by the brand-name manufacturer itself and defendant brand-name manufacturer had sold its rights to the drug to another drug manufacturer before plaintiffs were exposed to the generic version.
137
what is the general basis for providing services
## Footnote
products liability
- whether professional or non-professional is negligenc e
- S/L does not apply the providing of services or to the sale of products if the product sale is incidental to the providing of a service
138
what are the elements for defamation
## Footnote
defamation
1. a false and defamatory statement (libel or slander) concerning an identifiable, living person
2. that is published to a third person (withotu privilege)
3. that damages the person's reputation, and
4. that satisfies first amendment requirements regarding falsity and level of fault
139
defamatory words must expose the plaintiff to _
## Footnote
defamation
- tend to "expose the plainitff to distrust, hatred, contempt, ridicule, or obloquy
- not the hurtfulness of the words, but rather the effect of those words on a person's ability to engage in normal social intercourse
## Footnote
Belli v. Orlando Daily Newspapers, Inc
140
judge v. jury in deciding defamatory meaning
- judge has task of deciding whether the pleaded material is capable of having a defamaotyr meaning
- the jury has the task of deciding whether the material should be regarded as defamatory
## Footnote
Belli v. Orlando Daily Newspaper, Inc
141
what is the standard for determining whether the meaning of a statement is libelous
## Footnote
defamation
- Learned Hand concluded that a statement is libelous if some peopel find it to be libelous, even if that group is the "wrong thinking" or minority group
## Footnote
Grant v. Reader's Digest Ass'n
142
restatement (second) of torts §559 (1977)
## Footnote
defamation
"To be defamatory, it is not necessary that the communication actually cause harm to another’s reputation or deter third persons
from associating or dealing with him. Its character depends upon its general tendency to have such an effect. ... It is enough that the communication would tend to prejudice him in the eyes of a substantial and respectable minority of the [community].”
143
what is the affirmative defense to an action to libel (defamation)
## Footnote
defamation
- truth
- in order to support a defense of trith, it is necessary to prove merely that the statement was substantially true. specific charged, however, cannot be proven as truth merely by showing the P's genereal bad character
## Footnote
- truth is probably a constitutionally requried defense, but its force has not always been recognized
- Kilian v. Doubleday & Co.
144
can defamation be aimed at a particular class?
## Footnote
defamtion
- no/maybe
- to state a claim of liability, a P must plead that the statement refers to some ascertained person. statements about a class must have some particular circusmtances which point to the P as a person defamed
## Footnote
Neiman-Marcus v. Lait
145
restatement (second), sec. 564(A)
## Footnote
defamtion
"as a general rule no action lies for the publication of defamatory words concerning a large group or class of persons"
146
how many people need to identify the P that the defamation is about to bring a suit?
## Footnote
defamtion
- 1+
- P must show that a reasonable person who read the publication could identify it as a statement about the P. In addition, it is enough for even one person to identify the statement to be about the P
## Footnote
Bindrim v. Mitchell
147
slander must show __
## Footnote
defamtion
- must show the words caused special damage. the dmage must flow from the diminution of reputation rendered by the slander
- if the slanderous statement is not actional per se (facially damaging to the P), it is necessary that the P should allege that some particular damage has happened. IN addition, the statement must be disparaging to the character of the P, and the special damage must "flow" from the damage to character
## Footnote
Terwilliger v. Wands
148
What are the requirements for defamation through publication
## Footnote
defamtion
- communication to third persons is essential
- in order for there to be publication of a slanderous statement, the words must be spoken in the presnece of others, and
- they must understand it
## Footnote
Economopoulos v. A.G. Pollar Co.
149
where does the risk fall from print to online publication
## Footnote
defamtion
- Internet reiceves favorable treatment in contrast to the print media
- A commerical internet dating service is immune from liability under 47 USC 230 (c)(1) for a personal profile of plaintiff posted by an imposter
## Footnote
Carafano v. Metrosplash.com, Inc
150
what is the single publication rule
## Footnote
defamtion
- modern american law of libel
- the publication of a book, periodicalm or newspaper containing defamatory matter gives rise to but one cause of action for libel which begins at the time of the original publication.
- the statute of limitations runs from that date
## Footnote
Ogden v. Assoc. of the US Army
151
the federal constitution prohibits officials from recovering damges for defamation unless they can prove _
## Footnote
defamtion
- that the statement was made with actual malice
- when the speaker had knowledge that the statement was false or acts with reckless disregard to whether it was false or not
## Footnote
NY Times v. Sullivan
152
what is the standard for establishing actual malice
## Footnote
defamation
- whether the speaker in fact entertained serious doubts to the truth of their publications
- publisher however, cannot rely solely on his belief that the statemetn was true
- finder of fact must determine whether the publication was indeed made in good faith
## Footnote
St, Amant v. Thompson
153
what is the threshold of proof to show actual malice
## Footnote
defamtion
- proof must be clean and convincing evidence of actual malice
- failure to investigate will alone not support a finding of actual malice, but purposeful avoidance of the truth may
- court must exercise independent judgment to ensure compliance with constitutional standard
## Footnote
- departure from professional standards are not sufficient to establish actual malice, but they are strong start to proving the requisit actual malice
- Harte-Hanks Communications, Inc v. Connaughton
154
how far should the first amendment concerns control go if the P wasn't a public official or public figure
## Footnote
defamation
- public/private distinction turn on 2 matters that diminish the reputational intersts & advance the free speech interests:
- 1. the marketplace of ideas and the advantages that a public person has in accessing that marketplace,
- 2. the voluntary assumption of risk that public person may be said to take on
## Footnote
Gertz v. Welch
155
what are the requirements for first amendment controls
## Footnote
defamation
1. cannot impose liability without fault (must be negligence burden on P)
2. no presumed or punitive damges (where no actual malice is shown)
- shifts risk to P who must show the ingredients of fault or negligence
156
what is the "actual malice" standard
## Footnote
defamation
- the bruden of proof is on the plaintiff when the plaintiff is a "public figure" to prove the actual falsity of the statement
- the plaintiff also must prove y clear and convincing evidence that the false statement was made knowingly or with reckless disregard of its falsity
157
states may permit recovery of punitive damages in defamation cases without actual malice so long as _
## Footnote
defamation
- so long as the defamatory statements do not involve matters of public concern
## Footnote
Dun and Bradstreet, Inc. v. Greenmoss Builders, Inc.
158
what is the protection for private persons
## Footnote
defamation
- defaming statements about private figured on "matters of public concern" cannot be penalized unless they were made knowingly or negligently with regard to their falsity
- defaming statements about private persons and regarding purely private conduct recieve no special procedural protections under US Constitution (although state law may require some heightened proof standard)
159
where does the burden to prove fall when the person defaming is posting speech of private concern?
## Footnote
defamation
- a private -figure plaintiff cannot recover damages without also showing that the statements at issue are false
- the burden is on the plaintiff
## Footnote
Philadelphia Newspaper, Inc. v. Hepps
160
how does the court view opinions?
## Footnote
defamation
- does not recieve additional absolute constitutional protection than other statements
- statement on matters of public concern must be provable as false before there can be liability under state defamation law here a media defendant is involved
- statements cannot reasonably be interpreted as stating actual facts about a person ARE PROTECTED
- where a statement of opinion matters of public concern reasonably implies false and defamaotry facts regarding a public figure, that individual must show that the statements were made with knowledge of their false implications or with reckless disregard of their truth
## Footnote
Milkovich v. Lorain Journal
161
factors to distinguish fact from opinion
## Footnote
defamation
1. the type of language used;
2. the meaning of the statement in context
3. whether the allegely implied fact can be verified;
4. the circumstances in which statement was made;
5. whether a factual basis of the opinion was disclosed
162
what are the core limitations on defamation liability for opinion
## Footnote
defamation
1. A statement of opinion relating to matters of public concern which does not contain a
provably false factual connotation will receive full constitution protection. (Often inherently unprovable such as “stupid,” a “real pain,” a “butt-head,” a “bastard.)”
2. Constitution mandates “protection for statements that cannot RSBLy be interpreted as stating actual facts (parody cases).
3. Constitutional limits on the type of speech which may be the subject of defamation actions, which protects statements consisting of rhetorical hyperbole, a vigorous epithet, or imaginative expression.
4. Statements of opinion are not actionable unless they state or imply undisclosed, unassumed, or unknown defamatory facts. An opinion either evaluative or deductive
is protected if it neither states nor implies new (“undisclosed”) defamatory facts. Protected opinions include comments on information already known, understood, or assumed by the recipient, comments on or implying true or non-defamatory facts or
facts the defendant is privileged to communicate, or pure conjecturing which is understood as nothing more, and thus doesn’t imply reliance on any new or “undisclosed” defamatory facts
## Footnote
Professor Joseph King
163
defenses and priviledges to defamation
- truth
- consent
- certain governmental actors (judge, witness, juror, legislator, prosecutor)
- spouses to each other
- first amendment
164
who has absolute privilege
## Footnote
defamation
- judicial privilege
- legislative proceedings
- public officials (federal)
- public officials (state)
165
to determine privilege _
## Footnote
defamation
- defamatory statement made by someone in discharge of public/private duty
- any reasonable and appropiate method of publication may be adopted which fits the purpose of protecting particular interest
- up to the D to prove that there was a proper interest or duty that justified publishing the statement
- BUT privilege may be lost if the statement is improper
## Footnote
Sindorf v. Jacron Sales Co
166
protection of publisher's own interests
## Footnote
defamation
A person has a qualified privilege to
make defamatory statements in a RSBL effort to recover goods stolen from him, to collect money due him or prevent others from collecting it; to protect against the mismanagement of a concern in which he has a financial interest; to protect his own business against unfair competition; to protect his own personal safety; to protect his reputation from defamation on the part of others; or to defend any
other legitimate interest.
167
protection of interests of a third person
## Footnote
defamation
when the publisher RSBLy believes that
there is information that affects a sufficiently important interest of the third party & that he publishes the information under a legal duty or IAW “generally accepted standards of decent conduct.”
168
common interest
## Footnote
defamation
existence of common interest between the publisher and the recipient gives rise to a privilege to speak regarding the common interest
169
D might successfully rely on the privilege even though he was aware of the fact that the statement was false with:
## Footnote
defamation
- fair reporting
- privilege to provide means of publication
- fair comment
| common law privileges
170
fair reporting
## Footnote
defamation
privilege to report publi proceedings, public records, and official acts. restriction -> the report must be accurate and fair or disinterested
## Footnote
C/L privileges
171
privilege to provide means of publication
## Footnote
defamation
when the author of the defamatory utterance is privileged to publish it, those who provide him with the appropiate means of publication are likwise privieged to do so
## Footnote
C/L privileges
172
fair comment
## Footnote
defamation
Allows the publisher to offer criticism on matters of public
concern including activities of public officials & figures & on subjects scientific, artistic, literary, & dramatic. The criticism must be comment or opinion, not misstatement of fact. It must be fair=must be based upon true facts & express what an honest-minded person might conclude. (Need not be RSBL.) (No privilege if not actual opinion or made solely for purposes of causing harm.)
## Footnote
C/L privileges
1L Spring
flashcards
Decks in class (8)
# Cards
