01/22/2015

Loves premises liabilityFlorida Premises liability law

The Duty of Care
Special Circumstances
To Duty or Not to Duty
o Last semester we mostly focused on WHAT was the duty of
care owed to a plaintiff, not IF there duty of care owed in the
first place.
o Rpp, and how we asses it. Child involve, emergency situation.
o Generally speaking, a defendant does not owe a plaintiff a
duty of care to help if the plaintiff is in peril ,or to control the
actions of 3rd parties that may harm plaintiff. If I am walkning
down the street and someone is drowing I don't owe a duty of
care to save that person. Morally reprehensible and not
helping them. Morally ye, but no legal duty to help. Or to
control the action of 3rd party.
While a defendants not doing either of these things
may be MORALLY reprehensible, there is generally no
recognized LEGAL duty to do so
o However, if the defendants actions placed plaintiff in a
position of peril, or increased her risk of harm by a 3 rd party,
then the defendant does owe the plaintiff a duty of care.
Unless you did something to increase the risk, you don't
havea duty to help. So the court will ask: did you do
anything to increase it?
o Therefore, courts will look at nature of defendants actions in
those circumstances to determine if a duty of care exists
Nonfeasance vs. Misfeasance
if you did something to increased the peril, then you
have a duty.
If you take action that increase that persons peril, like
foreseeable forces, and superseding causes
Misfeace: nature of actions increase, then duty of care
could attach to that D.
Nonfeases is failure to aid.
Misfease is affirmative action that drove the injuries.
Nonfeasance vs. Misfeasance (these 2 criterias are objective,
but will be applied subjectively) like the cannons of construction. 2
concepts with objective criterias but the application depends on the
jurisdiction and the decision making. There is not a right or wrong
answer, what matters is the correct analysis.

Nonfeasance
o Simply failing to aid a plaintiff in peril which was not caused
by defendant, or failing to prevent the actions of 3rd parties
unrelated to Defendant from harming Plaintiff
o Generally, no duty of care owed to plaintiff
Misfeasance
o Affirmative actions by defendant which placed plaintiff in a
position of peril or increased the risk of harm to plaintiff by a
3rd party.
o Defendant would generally owe a duty of care to plaintiff for
these types of actions
Lets look at Two Examples
Yania vs. Bigan, pg. 359
o Actions here according to P were misfeasance.
o Did the D take affirmative action that increase the Ps risk of
harm? Court is saying: this is a grown man. He was able to
appreciate the danger, and able to tell whether he could jump
or not. Appreciation for circumstances, and it was his own
decision to jump. D actions were morally reprehensible. No
duty of care on the part of the D, thus, the actions were
characterize as nonfeasance.
o In an action like this, you plead in the alternative and can
bring up contributory negligence. Defense that comes after P
can prove the elements of the case. So both, I don't owe a
duty plus contributory negligence. You plead in the
alternative. You raise the Contributory negligence you don't
know the way the court is going to rule on this. This can be
done because the cajolery did in fact increase the risk of
harm. Raising contributory negligence would be a different
issue, but it could be brought.
o Is there a duty of care in the first place? This is what to court
will look at first. Then after that is established, we will we will
see if the actions were misfeasance or nonfeasance, in other
words, if the actions of the D increased or not he risk of
harm.
Weirum vs. RKO General, pg. 362
o We don't have a duty of care to control the actions of 3rd
parties.
o 1st amendment idea that we are free to do these kinds of
advertisement.
o Case of misfeasance, nor of a nonfeasance.

o Foreeable that the activities because of their nature, and the

way of the promotions, it was reasonable forseeable that this
would happen.
o Palsgraf note: whether the P was a foreseeable P.
Foreseeability of the P herself. What we are saying is if P is
unforeseeable, no duty attaches. From the threshold
question, the defendant in that case said that Palsgraph was
not a forseeable P, thus no duty attaches to her.
Rescuer Doctrine
Do you remember last semester when we said that when a
defendant injures a plaintiff and dependent, foreseeable forces
intervene which make the plaintiffs condition worse that the
defendant is still liable for the full extent of plaintiffs injuries?
o Example: a rescuer arrives on the scene of an automobile
accident and causes further injury to plaintiff , then that
defendant is liable for the full extent of plaintiffs injuries.
o
But what happens when the rescuer herself is injured in the process
of trying to help the plaintiff?
o D has to pay damages or owe duty of care to that 3rd party?
Yes. Whether rescuer is going to be owed a duty of care.
Lets look at Day vs. Waffle House, pg. 367.
o Waffle house claimed they don't owe a duty of care to the
original P or the rescuer. If somebody comes in to help
someone, in a separate independent duty of care comes in,
and it is almost a vicarious liability. Duty of care is owned to
the 3rd party.
o The 3rd party that comes in to help will be owed a duty of care
as if it was the original victim.
Voluntarily Assumed Duties
Even when there is no legal duty to act in a given situation, a duty
of care generally arises where the defendant voluntarily undertakes
to render some type of aid or assistance.
o One exception is misfeasance.
Common exceptions are Good Samaritan statutes which are
usually passed to protect licensed doctors and nurses from liability
should they gratuitously render aid
o Usually not to require people to aid others as some
mistakenly believe

o If I voluntarily and gratuitous help someone then I am bound

and putting my self in the hoop. Very few jurisdiction have a
duty to aid. You will only will be held to the negligence
standard if you have the physical ability to aid them, and if
you fail to do, and hurt the person, you will only be held
accountable if you are grossly negligent or grossly
unreasonable.
Special Relationships
We said that generally here is no duty to control the conduct of 3 rd
parties to prevent the 3rd party from causing harm to another
However, the existence of a special relationship between the
affected parties can give rise to a duty of care on the part of
defendant
A special relationship between the defendant and the 3d party,
impose a duty on defendant to control the 3rd partys actions
o Defendant knows or should know the 3rd party is likely to
commit such acts
o Actual ability or authority to control the 3rd party
o Not just a special relationship. First analyze whether there
was a special relationship, did D know that the person was
about to do that, and did D have the authority to control the
person?
A special relationship between the defendant and the would-be
victim of a 3rd partys actions, imposes a duty on defendant to
protect the would-be victim
o In that situation the D would not have a duty of care because
the relationship is not with them.
o D does not have a duty to the 3rd party. Did the D have a
special relationship with the 3rd party, or .>>>>
Common Examples of Special Relationships
Common-carrier & passenger
o If you are an airline and a passage, the airline has a special
relationship to you. Cruiseship, bus drivers.
Landlord & tenant
Employer & employee
Parent & child
Teacher & Student
Farwell v. Keaton, pg. 375
o New that Farwell was severally beaten, and if Siegrist would
have aided him right away, Farwell would have survived.

o Siegrist alleged that there was no duty for him to aid others
in peril, but the court held is that there is a special
relationship between siegrest and farwell, and held that yes,
that joint venture, or group venture. This is when you have a
joint venture and are business partners or when you get
together and for certain activities together and accomplish
certain goals, there is an implicit understand (no contract, or
something express), but it is implicit that the other members
would come to your aid if you needed and to act reasonable
toward the other person because of the special relationship.
Sometimes must look at if at the time the injure started, was
the purpose of the venture done? Had they accomplished
what they originally wanted to accomplish as a group?
o Here, they hadnt accomplish their ultimate goal, and seigrist
knews that Farwell needed the and.
o Also, voluntarily assuming a duty the court talks about. He
thrust himself into the situation, so his actions wil be based
on
Public vs. Private Duties
What we have talked about so far has to do with he courts imposing
an affirmative duty to act on a private entity
Imposing an affirmative duty on a public entity can lead to
economic consequences
o The agency suing will bear the negligence. If I make the
choice of not acting reasonable, then I bear the responsibility.
o When you sue the government, it is paid by tax payers, so
they can just spread the love, so they don't feel >>>
Two situations where an affirmative duty to act may be imposed on
a public entity
o The public entity voluntarily acts to induce reliance by the
plaintiff.
o A special relationship exists between the private citizen and
public entity.
Sometimes government through their actions creates a
special relationship with people.
DCA child and foster home example. So they have a
duty of care to act reasonable in regards to those kids.
Thompson v. County of Alameda, pg. 382
Did not have a young child target, he just said I will take a young
childs life.
Failure to warn police, parents in the areas, or mothers in the are.
Court: no duty here, county is not liable.

Rationale: no specific threat to public at large. Country does not

have a special relationship to the public at large.
Majority distinguish from another case regarding a specific threat
which creates a specific relationship, but here there was not.
Policy reasons: we would not have the government do that. If they
know that a D is released from a jail, they don't have to issue a
warning for every person that would be released form jail,
particularly because of the stigma behind it. They would have to act
reasonable for unspecified threats which is impossible, and
impractical. Non specific generalized threat to public, v. a specific
threat in which the county would have to warn the family, or the
mother of person being threat.

NIED (Negligence Infliction of (Solely) Emotional Distress

Cause of action characterized by:
Plaintiff is a bystandard to defendants alleged negligent act
Plaintiff claims to have suffered emotional distress
HOWEVER, plaintiff does not necessarily claim to have suffered any
physical harm attributable to defendant's alleged negligent act
(there is a cause of action if he P alleged that he)
Evolution of NIED Law
The Impact Rule
o Requires plaintiff claiming emotional distress injuries to have
been physically impacted by defendants negligent conduct
(eve if you were not hurt by it, physically, you need to prove
that the mental distress caused severe physical disability.
Criticisms:
o Denies recovery to even the closest of relatives who
witnessed a loved one get injured by defendants negligent
act
o Courts bogged down in determining when impact
requirement was satisfied
The Zone of Danger Rule

Broadens the scope of who can potentially recover under NIED

Does not require a plaintiff to be physically impacted by a
defendants negligent conduct himself (no touching required, but
they basically said if OP is so closely related hat they could ___ the
injury, they could recover for NIED

HOWEVER, does require a plaintiff to be so closely related to the

accident scene that he could have been injured
o i.e. within the zone of danger
o When do we draw the line?
o What the victim close enough?
Criticisms:
o Courts again bogged down in making this subjective
determination
o Theoretically allows recovery for a relative who was physically
situated close enough to have been within the zone of
danger of defendants alleged negligent act, but did not learn
of the physical injury to their relative until later.
How do courts justify their recovery, but no to parents
who watched their son suffer injury but were not
physically impacted?

The Dillon Rule

Simply assesses the foreseeability of the bystandards emotional

duress under the circumstances
Dillon identified three distinct factors to be taken into consideration
in determining whether a duty of care was owed in a given case
o Whether the plaintiff bystandard was located near the scene
of the accident (zone of danger idea in this element. It took
away the idea that the D could have been hurt by being in the
zone of danger)
o Whether the emotional duress was caused from the sensory
and contemporaneous observance of the accident (it does not
have to happen right there in that moment but it has to be
contemporaneous, there cannot be a long lapse of time, P
must be in the vicinity, they become aware and see the
related close person injured.)
o Whether the plaintiff and the victim were closely related
(relative immediate vicinity, no need to be blood related)
o This goes from jurisdiction to jurisdiction: some use the
o Final exam: hypo: can P recover for NIED: in the jurisdiction
that follows the zone of danger, the Dillon factor, or any other.

The Dillon Cure-All?

NIED law is still very controversial in many jurisdictions (not
recognized in all jurisdictions)

In regard to Dillon, some jurisdictions ignore the factors, some pick

and choose what factors to use to justify a result, some treat all of
them as a set of mandatory requirements
o Some jurisdictions still do not recognize it as a cause of action
at all
Results still as random as predecessor tests (if you did a survey, I
will be able to tell where it was observe, and when it was not)

Premises Liability
Premises Liability History
Evolved from English feudal society
Wealth and power directly tied to the ownership of real property
One who entered upon the land of another was assigned a status
category (and a title as to what you have are categorized as, like
invitee, licensee)
o In school, I am an invitee.
These categories often favored landowners against claims brought
by the injured entrant
o There is more protection for the landowner, they have less of
the duty of care that when you are an invitee.
o Less and less protection from the landowner.
o They are not a guarantor of safety. They don't have to
guarantee that they the place is absolutely safe.
o Premises liability has status categories as to duty of care that
the landowner owes.
o Even if I am an invitee and I fall in the floor, does not mean
that I will recover. It is not a guaranteed thing.
Premises Liability Today
American courts adopted the English common-law status categories
o If given a short answer question: what the heck is this person
in the land? This is the first answer to analyze when in a
essay for premises liability. This is the first thing to analyze in
the final. Either an invitee, licensee, etc.
The once clear distinction between status categories has become
blurred over time
Today, premises liability law is one of the mostly litigious and
diverse areas in all of torts law
Remember, a premises liability case is still a common-law
negligence action like weve studied, just a special type

Three Status Category

Invitee:
o Most favored category of entrant
o People shopping in the mall, people in the movies.
o Requirements:
1) enters onto the land of another at the express or
implied invitation of the landowner (this is why all
people shopping at the mall are invite. They did not get
an invitation to shop there, or to go there, but just
because the mall is open, they are free to walk and
shop, to wonder. Restaurant who sells subs, or any
other)
2) for some purpose directly or indirectly associated
with the business of the owner, or for some other public
purpose (economic benefit test. You don't necessarily
have to be there to make a purchase in order to be an
invitee. Even if I just want to look around and go
through, that is part of the business that they allow,
and it is an indirect association. What is for the purpose
that only benefitted the person entering or does it
benefit both parties? Both need to be satisfied.
3) visit to mutual advantage of both parties
An example would be buying gas at a gas station or browsing at a
clothing store
o Landowner cannot just seat there and not inspect for
damages, or for violations. Things are there that cause a
potential damage. I was in my office and we didn't know
there was any danger as an invitee you will have to prove
that you looked around looking for the dangers.
Invitee 2-Prong Duty of Care
o 1) Use reasonable care in maintaining the premises
This prong sounds very broad, but it is essential the
requirement that a landowner make reasonable and
periodic expect inspections of the premises for the
purpose of discovering such hazards (this prong is very
broad, and it sounds like the Rpp standard, but it is
not) It sounds more broad than what it is. Reasonable
and periodic to maintain the premises. Regularly
inspect the premises.
AND

2) Warn or correct any latent or concealed perils of which the

landowner has actual or constructive knowledge
o someone slipped and fail and what is litigated the P has to
show that what they fell over was hidden. Was the condition
open and obvious condition: they will no be able to recover. If
you are walking in broad day light y ves un danger y caminas
anyway, no recovery for P because they have a duty to be
responsible. Walking to bathroom blindfolded, and slipped and
fall on something, you will not get anything, but loose in
attorneys fees, etc.
o it does not mean that P needs to be looking, but P needs to
be reasonable, just responsible.
o Must show landowner that there was a defect, and thus, you
should have realized that there was danger.
o It had to be something that the P would have not been able to
discover.
o If you find something wrong with the premise, it can be
subpoenaed.
o With constructed notice, the defendant should have know that
this was a recurring problem.
Ejemplo: they re did the entire skylight of the mall. The
had loza or tile, and they got into litigation, and had
many slip and fall cases, and they could get evidence
that they had constructive notice of the fact that ppl
were falling, and they should have corrected that a long
time ago.

Licensee (Emergency personnel, social guests)

Occupies a middle ground between invitee and trespasser
Requirements:
o 1) Enters upon the land of another with permission or consent
of the owner, either express or implied
o 2) Visit for entrants own benefit, gratification, or advantage
(not a usually beneficial situation, really connected with
business)
Examples are emergency workers, party guests, or entering store
to ask directions
Landowner owes no affirmative duty to prepare the premises for
entry by licensee, only to warn of hidden or concealed danger upon
the premises of which the landowner has knowledge

Licensee owe no duty of care, so you cannot get where you need to
go. They can warn seal or conceal danger. No duty to correct, only
duty to warn. They don't have a duty to inspect or discover. If you
are an invitee, it is more favorable to the landowner.

Trespasser
o Least favored category of entrant
o Person who enters upon the land of another without
permission to do so
o Only duty imposed upon the landowner is to refrain from
inflicting willful or wanton injury
Si me quedo yo misma encerrada en la escuela cuando
ya me tengo que ir: trespasser
You have no duty to unless there is a hidden danger.

VERY IMPORTANT: A landowners duty of care to an individual

entrant is solely based on the classification of the plaintiff in one of
the status categories. You are still are owed a duty of care even if
you are a trespasser.

Who decides which status category? (duty of care are set)

Classification made by either the court or jury

Where status of the plaintiff can be determined from undisputed
facts the court will determine the appropriate category as a matter
of law
However, if reasonable minds could differ as to facts that could
affect classification, most jurisdictions will permit the jury to
determine the applicable status category
Status categories are also subject to change
o An invited social guest may enter the premises as a licensee,
but become a trespasser if they overextend their welcome
beyond invitation

Landowners Non-Delegable Duty

The landowners duty of care in a premises liability case is nondelegable (it cannot be discharged, when they rent a space from,
and they rent it from me to sell pizza, the landowner cannot
discharge their duty of care to a vendor, tenant, or something else)

This means that the landowner cannot contract away their duty of
care to a 3rd party such as a tenant, vendor, etc.
It also means that even if a landowner is not actually controlling, or
even present, at the premises on a daily basis, they still owe
plaintiff the applicable duty of care (they are not legally off the
hook, but can have a side agreement where they can indemnify the
landowner in which it make legal sense to contract away to pay for
their duties, but they have to be at the table)
o Those in control of the premises, such as a tenant, also owe
the applicable duty of care.
In other words, the plaintiff can sue both parties
This duty is always in the landowner.
Landowner has a deeper pocket, and put a provision that they
would pay anything for you, they are still on the hook.

Breach, Causation, Damages

This common law differentiation fairly standard in all jurisdictions

Again, once the specific duty of care based on the status categories
has been established, the landowners liability in negligence for
premises liability is determined just as in any traditional negligence
action that we've studied.
The defendants breach of the applicable duty must be linked by
both cause-in-fact and proximate cause to the claimed damages
which must be established
Traditional common law defenses based upon the plaintiffs own
conduct (contributory and comparative negligence) and causation
defenses are fully applicable.

Analyze the breach of the duty, and the causation.

Rest of analysis stays the same.
First we must establish who the P is either invitee, licensee, or
trespasser.
Do we need to establish the DUTY?
For the breach, and the causation, do we analyze it as we normally
would in last semester?
Premises Liability II
Special Categories of Entrant
o Special Categories of Entrant
o Trespassing Children
o Public Officials

o Social Guests
o Recreational Premise Users
o Victims of Crime
o Lessees of Real Property
Trespassing Children ( the child is still a trespasser. What
happens is that we change the level of care)
Because of tender age, children have traditionally been treated
differently than other types of trespassers. (they want to give children a bit
more protection than they would give to trespassers)
Common names you will here for this area of law
Attractive nuisance doctrine
The playground theory
The dangerous instrumentality doctrine
(if we here to this terminology, they are all referring to this status, and
court usually give it a higher standard)
Doctrine attempt to avoid harsh effects of low level of duty owed to
trespassers
Attractive Nuisance Doctrine (dangerous instrumentality
doctrine)
Childs status as a trespasser is NOT conclusive as to landowner's
duty of care owed (just because the landowner trespassed to sell
cookies, we will protectect them, and take into consideration she
was a trespasser.
o Simply one factor

A landowner will owe a duty to use reasonable care if:

o The landowner has reason to anticipate the presence of young
trespassing children on the premises (prior accident,
testimony, burden that P has to show)
AND
The danger created by some dangerous condition existing on the
property is of such a nature that the injured child is not likely to
appreciated it because of his AEI (age, experience, intelligence)
(because of the childs age, they could have not appreciate the
conditions, they could not tell or feel the danger)
o These 2 requirements must be met.
Attractive Nuisance Controversies

The current Restatement of Torts requires that the injury must be

caused by an artificial condition (not a natural condition)
o Considerable litigation regarding what is natural vs. artificial
o Inconsistency from jurisdiction to jurisdiction
o Inconsistency within jurisdictions from one case to another
o Some jurisdictions have refused to make this a requirement

The Restatement also extends protection to children of all ages

including adolescents (much harder for P to get out of the category,
so the older, the harder it becomes to show that)
Historically, there was an additional requirement that the injury
causing device lured or enticed the young child onto the property
(to do the trespassing act in the first place)
o No longer a requirement in a majority of jurisdictions
o However, in a practical sense captured in requirement that
landowner must foresee the presence of trespassing children
Public Officials
Public officials who enter onto the land of another while preforming
their official duties are traditionally classified as invitees
Postal workers
Trash collectors
The rationale is that the landowner typically derives a benefit related
to these official functions (you pay tax dollars, and they come in and do their
job)
*However, police officers and firefighters are generally treated as a
sub-group that are NOT afforded invitee protection (even thought you are
paying your tax dollars, and you get a great benefit)
Firefighters Rule (will not be held to a high standard)

Firefighters and police officers generally treated as licensees

Rationales
o It would be unfair to impose a high duty of care upon
landowners to protect such entrants against injuries due to
the unusual and unexpected nature of the entry
These types of public officials have been specifically trained to
confront dangerous situations as part of their occupation
Specially compensated based on their high risk occupation

Social Guests
One who has been expressly invited onto the premises for a social,
non-business purpose
Majority rule is to treat them as licensees
o Even where guest provides some service or incidental benefit
to the landowner
Rationale
o An invited social guest should not be entitled to any greater
protection than a member of the hosts own family
Criticisms
How can someone who is on the premises with an express invitation
be categorized as a licensee ? (almost no scenario in which it
would occur)

Some courts have expanded the scope beyond purely social

purposes meaning more plaintiffs get classified as licensees

Responses
Reclassifying all expressly invited guests as invitees, thus elevating
their status (some jurisdictions have this)
Stretching the term economic benefit to the host as a result of the
guests presence on the premises, thus elevating their status
Some jurisdictions have either through common law or statute
abolished the distinctions between licensee and invitee (in practice,
they become subjective in how they are apply, so they got rid of all
the status categories. They got rid of it all, and just have the RPP,
unless it is a trespasser.
(unless you can show you have your express invitation, you will be
considered a licensee)
Recreational Premises
One is gratuitously permitted to enter onto land of another for
recreational purposes (generally those are licensee, because when
you entered a por ejemplo hunting club, show up and the
landowner does not excersice care on that land, so we are not going
to hold them as invitee, just as licensee)
Many states have enacted recreational use statutes that expressly
designate such persons as licensees (the statutes specifically
enumerate who is a licensee, and who is an invitee)
Rationale

o To classify as an invitee too high a burden on the landowner

since often there is extremely minimal supervision over the
premises
Recreational Use Statues
Characteristics (usually clarified as a licensee?)
o List specific recreational purposes for which the statute
applies
o Usually only applies to outdoor recreational activities
Statutory protection for the landowner only applies if the landowner
does not charge a fee for the use of the premises
Victims of Crimes
Traditionally, landowners did not owe a duty of care to victims of
3rd party criminal actions
Rationale
o A 3rd partys criminal action is unforeseeable to a landowner
(so they can impose a duty of care to the landowner) The
exception is that the criminal act is something foreseeable.
Lessees of Real Property
Caveat Lessee!!
o Let the lessee beware

Most courts do not impose any common law duty of care at all on
the lessor of a premises with respect to injured tenants OR their
injured guests ( if I am a lessee of an apartment complex, the
person who lease to me, there is not a duty of care owed to me)

However, (as you can probably guess by now with regard to any
legal rule) there are a variety of exceptions to the general rule!

Exceptions to Caveat Lessee

Common areas in landowners exclusive control
o Hallways, parking lots, etc.(stairways, or something that the
landlord typically maintain, then they owe me the duty of
reasonable care)
o What a common area subject to litigation
Normal status based duty applies
Voluntary Repairs by Landowner
o Must be made with reasonable care
Latent Defects at the Time of Leasing

o Hidden defects at the time of leasing that the landowner had

actual or constructive notice of must be disclosed
o
MULTIPLE DEFENDANT ISSUES
Joint and Several Liability ( to ensure the P gets pay as quickly
as they can)
A doctrine by which each liable Defendant has full responsibility for
the full amount of damages (P is showing breach against more than
one D) some percetenga in more than one D.
Meaning Plaintiff can choose which Defendant to collect all or part
of the judgment from, regardless of each Defendants share of
liability, until Plaintiffs judgment amount is satisfied (P gets the
choice of who to pick from , y le cobra a quien ella quiere) (ella
escoge el que tiene deep pocket, o el que ella quiere) whatever the
judgment was in heir favor, they can collect. They can collect the
full amount of the judgment but no more)
The Defendants can then pursue actions among themselves for
their respective share of the payment
o IOW the proportion each will contribute to the payment
amount
Conditions Required for J&S Liability
1) Concurrent causes that act on Plaintiff to produce injury
o Even when those causes are independent actors
(if I was in my about and somebody rear ends me, and
someone else does, then 2 impacted me at the same
time.)
2) The Plaintiff cannot separate which portion of the injury is
attributable to one Defendant versus another
o P cannot separate the injuries.
3) Each cause on its own could have produced the entire injury
o similar to causation aspects. Multiple impacts that can tell
what injury each produced on their own.
Once all these are met, the P can decide who to go after. 2 forces,
cannot separate the injuries, and both could have caused the injuries.
Tortfeasors Acting in Concert
Jointly and severally liability will also apply when two or more
tortfeasors act in concert or agreement to injure plaintiff

o Even if I could not technically separate the injuries, if I shows

that the D were acting in concert, I can still file to Joint and
several liability)
Under this specific circumstance, there will be joint and several
liability even if the injury is divisible

Express agreement is not necessary, just a common design or

understanding
Satisfaction
Plaintiff recovers full payment from one tortfeasor either by
settlement or judgment
o Until satisfaction is achieved, Plaintiff may proceed against
other jointly liable parties
o Once satisfaction is achieved, Plaintiff may not recover further
against any other tortfeasor
IF D has any issues about paying, or getting reimbursed
from the other side, that is on them.
Release
A surrender of Plaintiff 's cause of action against the party to whom
the release is given
o The P can settle with one party, and release the other parties.
If they settled with one tortfeasor, the P can continue the
lawsuit as nothing ever happened.
In most states, a release of one tortfeasor does not discharge other
tortfeasors unless expressly provided in the release agreement
Rather, the claim against the others is reduced to the extent of the
amount stipulated to in the release
o In other words, other tortfeasors still liable for full amount
originally jointly and severally liable for minus the amount
paid by one tortfeasor in the release
If P settled for 9k, and collected 5k from one D, then the P can go after
the rest against one D, or divided. Up to P
Issues Between Just the Defendants
Contribution
Indemnity
Each defendant bears some liability but must be determined who is
actually going to pay some or all of amount
Even if D are severally liable for the full amount, the Ds can sue the
other for the loss. Jurisdictional dependent on how it is applied. If there are
co-defendant, they file a cross claim, a complain against your co-defendant.

Contribution
If a tortfeasor, required to pay damages under joint and several
liability, pays more than her share of damages, then that tortfeasor
has a claim against the other jointly liable parties for the excess she
paid
o Allows for apportioning of responsibility among at fault parties
(you are proportioning the payment, what amount should I
ship into the pot, and you should ship into the pot)Defendant
will pay depending on their liability of the case)
Comparative Contribution (majority): imposed in proportion to
relative fault of tortfeasors
o P suffers $100,000 in damages from combined negligence of
DI and D2 who are joint and several liable. Jury determines
that Dl is 80% at fault and D2 is 20% at fault. Plaintiff
recovers all $100,000 from D2. D2 can recover $80,000 from
Dl.
Equal Shares (minority): All tortfeasors pay equal shares of
damages regardless of relative degrees of fault
o D2 can recover $50,000 from Dl.
If one of D is insolvent? Then they don't pay
Indemnity
Does not apportion the loss, but shifts the entire loss between
tortfeasors.
o Even if I pay the whole to P, I can get indemnity for the full
amount.
Examples:
Contract
o If clear agreement to indemnify another against
consequences of his own negligence.
o Express provision identifying. Ex. Sleep and fall case. We are
under K so long as it relates to the claim. Mall has K
agreement never comes to litigation, parties know.
Vicarious Liability
o If one must pay damages caused by another simply because
of his relationship to that person (employer-employee or
Landowner-IC) then can possibly seek indemnification from
that true at-fault party

You have an indemnification because of your

relationship. Even if you do something negligent with
the truck, and doing something related to driving that
truck. Based on the possibility, they can get
idemnificaiton.
Strict Products Liability
o In the case of defective products, everyone in distribution
chain has liability to Plaintiff, but each entity in chain has
potential right of indemnity against all others in chain
o Example: retailer who relied on manufacturer for products
condition
(Anyone in the chain of distribution is liable.
Manufacturer, wholesaler, all are liable for the defect of
that product. If it is a defected product.
Indemnity: you have to take it all. )

Vicarious Liability
Situations under which derivative or imputed liability is imposed
o Person A commits a tortious act against Person B, and Person
C is liable for this act
Such a situation arises when the tortfeasor is in a special
relationship with the party who becomes liable
o Person A is in a special relationship with Person C
Employer-Employee (respondeat superior)
Partnerships and Joint Ventures
Parent-child also
Under such circumstances Person C will have liability even if Person
C
o Had no active physical role in the act
o Did nothing to encourage or aid the act
o Tried to prevent or discourage the act
Doctrine of Respondeat Superior

Essentially the liability of the employer for the acts of the employee
Employer will generally be vicariously liable for tortious acts
committed by employee
HOWEVER, tortious acts MUST occur within the scope of the
employment relationship
o Subjective view. The jury looks at this standard.

Scope of the Employment Relationship

Control Theory
o Focuses on what the injury inflicting employee was doing at
the time of the injury
Was it within the normal course of the employees
duties?
Was there a direct order to employee? What the
employee was doing at the time of the injury.
Enterprise Theory
o Focuses on the purpose of the injury inflicting employees
actions
Did it at least in part further some legitimate purpose or
motive of the employers business?
Even if employer did not give an order, if employee was
doing something to further the purpose of the business,
most courts will uphold that the action falls under the
scope of the employment. The purpose and the motive.
Cases
Fruit v. Schreiner, 502 P.2d 133
(Alaska 1972)
Employer told Fruit to attend to as many activities as possible
during the conference. He goes to a bar, and people were not there,
and he left to his hotel, and on his way back, his car went out of
control, and he crush Ds leg in the accident.
They found equitable liability and also found independent
negligence.
Trial court concluded that fruit and Equitable were liable.
The court of appeals held that Equitable was liable for Fruits
activities because Equitable created the conference himself. Under
the control theory it might fail, but the enterprise theory, he had
the idea that he was to go on his own because he was furthering
the business purpose. He was reimburse for his travel, thus the
court reasoned that he was under the scope of employment.
Frolic and detour: had he taken a detour from his scope of
employment, the court would have reasoned different.
Policy behind it: they have deeper pockets, and they are in a better
position to assume the expenses of an accident, and they have
insurance. Also when you have the business you have that risk, and
when you are benefitting from the benefit they took, then you are
doing well, and you should at least bear the risk of taking the loss.
Buitrago v. Rohr, 672 So.2d 646
(Fla. 1st DCA 1996)

P sued Donovan because even if Donovan was not an employee, he

was an agent. Donovan was an agent of Rohr, and Rohr was
dictating what Donovan did.
Donovan filed a motion for summary judgment alleging that a
reasonable person would not come to the conclusion that he was an
agent.
Trial court ruled that he was an independent contractor, and the
court explains a 10 factor test to determine if he was acting as an
agent or as a contractor.
Factor # 1: most important, Donovan just indicated Rohn where to
put the balloons and where.
Factor # 2: totally distinct from Donovans business.
Any reasonable mid could see that he was an independent
contractor.

Specific Actions
Still Within Scope?
Coming and Going
Frolic and Detour
o I do something personal within the scope of employment. Like
getting a manicure and pedicure while work hours.
Intentional Torts
o
Coming and Going Rule

Respondeat Superior doctrine is generally NOT applicable while the

employee is coming from or going to work
o Employer NOT liable for negligence of employees
Ordinary use of streets and highways usually required for
employer to obtain benefit of the coming and going rule
Exceptions to Coming and Going Rule
o Special Hazards
if the employee is subject to this.
o Special Errand or Dual Purpose

o Employer compensates employee for time and travel

expenses, then they open themselves up to vacarious liability.

Special Hazard Exception

Employee must be subject to a hazard not normally encountered by

the regular traveling public. ( it must be something truly
dangerous)
o Example: Transporting explosives
Excessive distance alone does not constitute a special hazard

Special Errand Exception

Respondeat Superior doctrine IS applicable where ordinary use of
streets and highways specifically required of employee in
performance of duties to employer
o Example: An employer requires the employee return home to
pick-up special tools while the employee is traveling between
job sites, then that become a special errands. If an accident
happens in the interim, there is vicarious liability on the
employer.
Factors
o - Time and trouble of making the journey
o - Special inconvenience, hazard, or urgency in making the
journey
Courtless v. Jolliffe

D raised the coming and going rule, and because of that we don't
have any vicarious liability in this matter.
P appealed that and alleged that they did stop to do something
work related to get the shock absorbers.
Even though he owned the vehicle, the employer paid for the
maintenance and repairs, and would give him 400 monthly for the
payment of the truck. He got free gas, thus the court rules that it
qualifies as a special errand exception of the coming and going rule.
Court of appeals reversed and held that the he was acting under the
scope of employment.

Frolic and Detour

Occurs when an employee is clearly traveling for his employer
within the scope of his employment, but temporarily departs and
deviates from the employers business to do pursue a personal goal,
such as an errand or visit a friend, and commits a tort during the
course of that deviation
If the deviation was significant in time and geography, then the
employer will not be liable (this is what court will look at)

If the deviation was minor in time and geography, then the

employer will be liable ( they might still find you in the course of
employment)
o Nail place example: if nail place is far away.
o Stopping to pay a bill and getting in an accident: usually not
taking out of the scope of employment.

Intentional Torts
Generally, an employer is NOT liable for the intentional torts of his
employees.
o If a battery or assault is committed by employee, employer
will not be vicariously liable.
Exceptions
o 1) Force is authorized in the employment (bar bouncer)
o 2) Friction is generated by the employment (bill collector) if
they go over that line, then employer might be liable.
Sunseri v. Puccia
The was the business component, and vicarious liability might
attach, and the jury should consider that.
Owner was there and saw it, and there could be direct negligence
He could have prevented it, but he did not.
Partnerships and Joint Ventures
Each member of a partnership or joint venture is vicariously liable
for the tortious conduct of another member committed in the scope
and course of the partnership or joint venture
A joint venture is similar to a partnership but more limited in scope
in terms of time and purpose. Still requires:
o Business purpose or sharing of expenses
o Mutual right of control
Employers Own Actions
Remember, an employer can have additional liability for any of its
own independent tortious actions regardless of any vicarious liability
imposed against it
A cause of action for negligent hiring, supervision, or retention of
employees or independent contractors is not the same as vicarious
liability
Situations Where Vicarious Liability May Not Be Imposed
Independent Contractors
Parent for Child
Bailor for Bailee

Independent Contractors
In general, a principal will not be vicariously liable for the actions of
an independent contractor
Exceptions:
o The independent contractor is engaged in inherently
dangerous activity
Excavating, blasting
o The owners duty for that particular type of activity is by law
nondelegable or non-transferable
Business owners duty to keep its premises safe for
customers
Parents
Parent is generally not vicariously liable for the tortious conduct of
the child
Exceptions:
Majority view is that parents liable for the willful and intentional
torts of their minor children up to a certain dollar amount
Child commits a tort while acting as the agent for the parents
o Example: Parent vicariously liable if child is in an accident
while running an errand for his mother
Parents own independent negligence (not vicarious)
o Allowing child to use a dangerous object
o Failing to control or mitigate violent or destructive conduct
after the child has exhibited such conduct in the past
Allowing child to play with children he previously
attacked
Vicarious Liability:
Automobile Owners
Approach #1: General rule is automobile owner is not vicariously
liable for the tortious conduct of another driving his automobile.
Approach #2: Family car doctrine - owner is liable for tortious
conduct of immediate family or household members who are driving
with the owner's express or implied permission.
Approach #3: Permissive use" statutes imposing liability for
damage caused by anyone driving with the owner's express or
implied permission.
Dram Shop Vicarious Liability
Common law: no liability on seller of alcoholic beverages for
injuries, whether to customer or 3rd party, resulting from the
customer's intoxication
"Dram shop Act" States

o Created cause of action for any 3rd person against seller of

alcoholic beverages injured by an intoxicated customer
Negligence States
o Rather imposing liability based on vicarious liability principles,
liability is based on ordinary negligence principles, namely the
foreseeable risk of serving a minor or obviously intoxicated
adult

Defenses Based on Plaintiffs Conduct

Defenses
Contributory Negligence
Comparative Negligence
o These 2 are about the same conduct, the Ps conduct.
Assumption of the Risk
o
Express
o
Implied
Contributory & Comparative Negligence Commonalities
(similarities)
Focus is on Plaintiffs failure to reasonable care for his own safety
o Did P act with reasonable care for his or her own negligence.
o Did P act as an ordinary reasonable prudent person.
This failure is an actual and proximate cause of Plaintiffs injuries
o Have to have a showing that whatever I am alleging was
caused by the injury that occurred.
Defendants affirmative defense to plead and prove
o IOW Plaintiff not required to plead and prove he was using
due care
o Remember, affirmative defense operate to defeat or reduce
Plaintiffs recovery, even when Plaintiff first proves their prima
facie case
These are raised by D, and the burden of P is on the D.
D had a duty, D breached that duty, and D suffered
damages. D can raise the Affirmative defense.
Usually a jury question
o Not in the proper province of the court to rule.
Defenses to negligence, not intentional torts
o These relate to claims of negligence. If P bring a battery
action against D, then this theory cannot be used since these
are only for negligence.

Contributory & Comparative Negligence Differences

Contributory Negligence acts a complete bar to Plaintiffs recovery
o In other words, if a jury finds Plaintiff 1% at fault for the
accident, then Plaintiff is barred from recovery.
Comparative Negligence makes it possible for a Plaintiff to recovery
even if Plaintiff bears fault for the accident
o Unlike contributory negligence, in which even the smallest
fault assigned to P will prevent recovery.
Two Types of Comparative Negligence
PURE
MODIFIED
Pure Comparative Negligence (we have it in FL) Being the this
type of jurisdiction helps the P.
Plaintiff will be allowed recover as long they prove some percentage
of liability on the defendant, regardless of Plaintiffs own fault
o It can be 40/50, 50/50, etc.
o IOW, unless a Plaintiff is 100% at fault for own damages,
Plaintiff will be allowed to recover
Also referred to as straight percentages
This approach is followed in Florida
Consequences for potential recovery of fees and costs
Modified Comparative Negligence
A party will be totally barred from recovery just as in contributory
negligence IF their percentage of fault exceeds a specified level,
usually a percentage set by statute (as long as in that amount or
below, we will allow recovery but not if it is more)
Example
o A statute allowing a Plaintiff to recover as long as her
percentage of fault does not exceed 50%
o Ask this question: does it exceed 50%, or exceeds, or is it
below 50%? Must read the statute clearly.
For further discussion of justification of this approach see the
Bradley decision on page 506
Justifications for Defenses
Moral
Plaintiffs own negligence cancels out the Defendants negligence and
keeps undeserving Plaintiff from being unjustly enriched.

If we didn't allow some fault on the P, that would not be fair since
they have a substantial amount of fault, and they would get unjust
enriched if the defense would not be allowed.
Economic
Plaintiff may be party who can more easily and cheaply avoid an
accident; therefore, reducing or denying recovery when Plaintiff fails to do so
provided incentives to take precautions.
Not only do you want to incentivize the D, but you also the P is in a
position in which they are better situated that D to avoid the harm
coming about, so you want to make sure that there is something
that would hold them accountable for doing that.
o Even if Plaintiff is in an all-or-nothing contributory negligence
jurisdiction, Plaintiff has potential escape from harsh effects
of that rule through last clear chance doctrine
Last Clear Chance Doctrine
Even if P had partial negligence for negligence, they could
escape if they could prove that even thought they were negligence,
D had the last clear change to avoid accident completely.
Applies in Contributory Negligence jurisdictions
The idea is that even if Plaintiff is partially negligent for the
accident, the Plaintiff can still recovery if Plaintiff can prove
Defendant had a last clear chance to avoid the accident
Example
o Plaintiffs car is parked and partially blocking the road before
Defendants vehicle collides with it. Plaintiff is clearly
negligent, but would still be able to recover to some degree if
Plaintiff can show Defendant had seen Plaintiffs car, realized
it was blocking the road, but simply failed to successfully
steer around the car.
o P was helpless.
Why Go From Contributory Negligence to Comparative
Negligence?
All or nothing aspect of Contributory Negligence too harsh
Unfair result to let a negligent Defendant escape without liability
Rationale doesnt make sense: if the Plaintiffs fault makes it unfair
to throw the entire loss on the Defendant, isnt it unfair if the
Defendant is negligent to leave the entire loss with the Plaintiff?
Stehlik v. Rhoads
Seat belt defense:
Assumption of the Risk

Common law notion that there is no legal injury to one who

consents to bear a risk
Appears very similar to Contributory and Comparative Negligence,
BUT one key conceptual difference
o Contributory and Comparative Negligence are focused on the
reasonableness of Plaintiffs actions
o Assumption of the Risk is focused on Plaintiffs free will in
encountering a known risk
Quote page 527

Defendants based on Ps conduct-play close attention because it can

be confusing.
Contributory negligence focuses on reasonableness. But assumption
of risk; can you see in the fact pattern that there was an appreciation of P
about the danger of the situation. Not because they were unreasonable, but
because they knew, or notices.
Two Types of Assumption of Risk
EXPRESS
IMPLIED
Express Assumption of the Risk
Plaintiff expressly agrees to bear a risk. A contract usually, a
release that you sign when you go sky diving. Exculpatory clauses,
things that takes liability away from potential D.
Usually by contract in exculpatory clause provisions
o Example: a release of liability agreement one signs before a
given activity
Courts have discretion whether to enforce the express agreements
o Balance parties freedom to make a contractual agreement
with whether such agreements undermine the safety and
compensation policies of tort law
o Give parties the freedom to engage in dangerous activities
even if they want to participate. However, in some dynamic
there is public policy behind it which focuses on
o Court defaults rule is that as long as there are 2 freely
contracting parties, the release is valid.
Exculpatory Clauses
General rule is that exculpatory agreement between two freely
contracting parties will generally be held valid
Three exceptions to this general rule

o 1) Party may not contract away its liability for intentional

harms, reckless conduct, or gross and wanton negligence
(court may not enforce that)
o 2) When one party has a decided disadvantage in bargaining
power
o 3) Transaction involving the public interest
Utilities
Industries regulated by the government.
Common carriers
Innkeepers
Public services
Wolf v. Ford
Implied Assumption of the Risk ( I understand the risk and I
will go forward) I stepped into the football field and there is a high
probability that I will get hit.
Plaintiff voluntarily encounters a known risk
Constitutes an implied agreement to release from liability a party
that created the risk
Implied assumption of the risk often arises in the context of
sporting events
o Participants: Simply violating the rules of the game does not
trigger liability, defendant must act reckless or intend harm
beyond normal activity inherent in game
o Spectators: subjectively aware of the risk (i.e. familiarity with
the game)? Does it matter where they are located?
Murphy v. Steeplechase Amusement Co., Inc.
You knew about the ride, you were aware of the risk even with the
best padding in the world anyone would have been injured by
steeping in the conveyor belt. If I operated the Ice Skating ring I
assume the liability on the defendants activity.
Conscious awareness of the risk and decision with your free will. I
know there is a risk, I am out with my friends, having a good time.
Assumption of the Risk in Contributory & Comparative
Negligence Jurisdictions (you are either going to be in a comparative
or contributory jurisdiction)
In Contributory Negligence Jurisdictions, a finding of Plaintiff's
Assumption of the Risk acts as complete bar to recovery, just as a
finding of Contributory Negligence
In Comparative Negligence jurisdictions a split exists

o Majority View: Assumption of the Risk principles are simply

used to reduce Plaintiffs recovery further in the Comparative
Negligence scheme, it does not act as a complete bar to
recovery
o Minority View: Assumption of the Risk is a separate doctrine
and serves as a complete bar to recovery, regardless of
Plaintiffs amount of Comparative Negligence
If you should that assumption of the risk
See Davenport on page 524 for further discussion
Mirar.
Common Law Strict Liability
Liability Without Fault
PRIMA FACIE CASE
Nature of defendant's activity imposes an absolute duty to make
safe (if D is taking part in a certain part of activities, it changes the
duty of care) If D is performing a unique activity, D has to excersice
his duty of care. The dangers of duty of it is very dangerous.
If you can say that the defendant behavior falls within the category
of unique (dynamite, reasonable, they tried to make it safe but the
accident still happened, they are still liable even if they tried to
make it safe.)
o Contrast with negligence duty to act reasonably
Dangerous aspect of the activity is the actual and proximate cause
of the plaintiff's injury
Plaintiff suffered damage to person or property
Animals
Trespass
Owner is strictly liable for the damage done by the trespass of his
animals as long as it was reasonably foreseeable
o Generally no strict liability for trespassing household pets
( wild and domesticated, yes, strict liability) if family dog gets
out and cross and goes into other land, no strict liability.
Personal Injuries
Owner of wild animals strictly liable
o Strictly liable even if he came into court an testify that he did
everything he was supposed to, he is still liable.

Owner of domestic or farm animals not strictly liable

o Exception - liability attaches if owner has knowledge of
particular animal's dangerous propensities beyond what is
normal for that species, even if no specific history of attack by
that animal. (outside of what it is normally expected, if animal
has an attack, the other side
Public Duty Exception to Strict Liability
o Negligence must be shown if landowner is under public duty
to keep the animals (like a zookeeper)
o If you are charged with maintaining wild animal, in order to
be liable, they would have to prove negligence against you

Dog Bite Statutes

Only applicable to dogs (certain breeds of dogs)
Strict liability in personal injury actions even without prior
knowledge of dangerous characteristics
o If dog statute was implicated, it would tell you what type and
the standard)
(if we are imposing a strict liability there has to be :ABNORMALLY
DANGEROUS ACTIVITIES
An activity that involves a substantial risk of serious harm to person
or property no matter how much care is exercised
Whether an activity is abnormally dangerous is a question of law
that the court can decide on a motion for directed verdict or
summary judgment
o Because there is no factual dispute sometime, the court
decides that whether it qualify as an abnormal dangerous
activity or not. Motion of directed verdict sometimes. As long
as P comes and shows some injury, they can win.
Abnormally dangerous activity
Six Factor Test (most jurisdictions) memorize for test.
1) Does activity involve high degree of risk of some harm to a
person, land, or chattel
o risk involve. Hulling dynamite.
2) Gravity of harm
o if something goes wrong, how severe would the harm be to
that property. Serious bodily injury of death, or severe.
Gravity or depth of harm that will result from this activity.
3) Can the risk be eliminated with the use of reasonable care

o most important factor. Based on nature of activity, we will

impose an absolute to make safe.
4) Whether the activity is a matter of common usage
o is this the normal thing that usually takes place.
5) Whether the activity was inappropriate in the place it was
carried out
6) The value of the activity to the community
o even if activity itself is very dangerous, if it provides a safety
for a particular group of people.

Court will look at these, and then decide whether it is or not an

abnormally dangerous activity.
Limits on Strict Liability
Foreseeable Plaintiffs
Duty owed only to "foreseeable plaintiffs
o Persons to whom a reasonable person would have foreseen a
risk of harm under the circumstances
Generally, no strict liability imposed on a defendant
whose blasting activities hurled rock onto a person so
far away that no reasonable person would have
foreseen a danger
Limits on Strict Liability
Normally Dangerous Propensity
For strict liability to attach, the harm must result from the kind of
danger to be anticipated from the dangerous animal or abnormally
dangerous activity
In other words, the harm must flow from the "normally dangerous
propensity" of the condition or thing involved
Example: Ds dynamite explodes and causes burns to P, then strict
liability
o Compare: P trips over Ds stick of dynamite, no strict liability
(but possible negligence)
Defenses to Strict Liability
Contributory Negligence States
Unknowing contributory negligence
o Plaintiff's contributory negligence is no defense if the plaintiff
simply failed to realize the danger or guard against its
existence .

Knowing" contributory negligence / Assumption of the Risk

A defense to strict liability in contributory negligence states
Plaintiff knew of the danger and his unreasonable conduct was the
very cause of the harm from the wild animal or abnormally
dangerous activity.
o Example:
P knowingly and unreasonably tries to pass D's
dynamite truck on a sharp curve, causing it to turn over
and explode. No matter what you call it with regard to
latter two defenses, P cannot recover.

Defenses to Strict Liability

Comparative Negligence States
Simply apply the same comparative negligence rules that apply to
negligence cases.
Sinclair v. Okata
Siegler v. Kuhlman
Why should strict liability should not be imposed.
Other sideHow many have accidents, how many have gas spills, and how many
injure others?
No counter argument to element 2 since I don't want to be incredible.
I don't want to make an argument just because, even if it is bad.
4,5,6 this is not an abnormally dangerous activity. There was not risk
in the behavior.
Products Liability I
Overview
&
Types of Defects
Products Liability
BASIC DEFINITION:
The liability of a supplier of a product to one injured by the product

NO Requirement of Contractual Privity Between Plaintiff and

Defendant (end user can end up suing the wholesaler, even if there
was no interaction between the wholesaler and end-user. No
contractual relationship.
What is privity
o A contractual relationship exists between parties, such as a
direct sale by the defendant retailer to the plaintiff
Since privity is not required, products liability lawsuits can proceed
in these examples
o Plaintiff buyer can sue a wholesaler or manufacturer rather
than the retailer who sold the product to the plaintiff
o Injured plaintiff sues retailer. However, plaintiff is not the
buyer, but 3rd party in later possession of product
3rd party in later possession can sue
Defects
Under any products liability theory, plaintiff must show that the
product was "defective" when the product left defendant's control
( in order to bring a suit)
o Types of Defects
1) Manufacturing Defects
remember it is about a defect because the specific
product that hurt the plaintiff in the case was
defective because it was different form the other
products. There was fault with the particular
product they got. Must show it was different form
the other products and it was more dangerous.
Variations in the one you got. Defective in a way
that makes it unreasonably dangerous. Beyond
the expectations of ordinary consumers.
2) Design Defects
ejemplo de la sopa con el eggshell inside. They
could not pinpoint who was at fault, so they sued
everyone in the line.
3) Warning Defects
Manufacturing Defects
Occurs when a product emerges from a manufacturing process:
o 1) Different from the other products
o AND

o 2) More dangerous than if it had been made the way it should

have been to the extent that it becomes "unreasonably
dangerous or dangerous beyond the expectation of the
ordinary consumer
Defective food products treated as manufacturing defects
Ford Motor Company v. Gonzales
(Page 708)

Design Defects
All the products of a line are made identically according to
manufacturing specifications, but have dangerous propensities
because of their mechanical features or packaging
o The entire line may be found defective
o There some defects that go across the board. Mechanical
feature, or packaging. Design defect is about the mechanical
use of the product. There is something about the product that
makes them dangerous. The have to show by the way these
products were made, and they have to show that there is a
feasible design defect. Court look at feasible alternative
design that the defendant could have done.
Plaintiff usually must show a economically feasible alternative
design (less dangerous modification) was available
Feasible Alternative Factors
Usefulness and desirability of the product
Availability of safer alternative products
Dangers of the product that have been identified by the time of trial
Likelihood and probable seriousness of injury
Obviousness of the danger
Normal public expectation of danger
Avoidability of injury by care in use of product through instructions
and warnings
Feasibility of eliminating the danger without seriously impairing the
product's function or making it unduly expensive.

Brown v. Superior Court (Page 723)

If P can show that there an alternative design that could have been
made but they did not have the means to and it would have been to
expensive, the court will not have to do that.
Can a drug manufacture be held strictly liable for a defect with a drug even
when they manufactured the drug, or should we take into consideration.
The first test we have to look at is the ordinary consumer test to see if
product is dangerous.

Warning Defects
A product must have clear and complete warnings of any dangers
that may not be apparent to users.
Warning must be disseminated in a manner so that it will reach the
end users of a product.
o A common ladder that is covered with instructions regarding
how to set-up an use. Court looks to see if there was an
instruction manual.
Compliance with federal labeling requirements does not preempt
state warning label laws ( if they have requirements that go above
and beyond the state, they are required to have the federal label
on)
Learned intermediary Rule
Arises where end user relying on someone elses expertise with
regard to product
Warnings do not have to go to end user, but the learned
intermediary
Most common in cases of prescription drugs and medical devices
where general rule is that warnings need not be supplied to the
patient; only to prescribing physician
o When you go to doctor, you are not dealing with retailer.
Medical devises or prescription drug. These drugs are
produced and put out in the market, and the manufacturers
don't know that the person who is going to do that is the
doctor, so they are more properly situated to (the doctor) so
the warning should go to physician instead of to the patient
itself. In exam: who did the warning go? If to doctor, the duty
has been filled.
Jackson v. Coast Paint & Lacquer Co. (Page 733)

So highly flammable, the floor.

Government Safety Standards

Product is deemed to be defective in design or warnings if it fails to
comply with applicable government safety standards
o If you can show that products does not comply with these
government design, you will be found liable.
BUT
Product's compliance with applicable government safety standards
is evidence, but not conclusive, that the product is not defective
o If the products do meet these standard, does not mean that
they are not liable and not a defect.
Is the Defect Really a Defect?
Misuses of a product
o Courts require suppliers to reasonably anticipate foreseeable
misuses of the product
o Manufacturer of liquid detergent must reasonably anticipate a
child may try to drink contents, so need child-proof top
This is why we see safety caps on things to not
anticipate that a child grabs and drink something that is
poisons.
Scientifically Unknowable Risks
o Usually no liability for manufacturer of new drugs that caused
dangerous side effects that were impossible to anticipate or
warn against
Majority view. No strict liability for new drugs that cause
side effects unless you know or should have known of
the risks.
Allergies
o If allergy sensitive group is significant in number,
manufacturer must provide warnings (then and only then)
(historically view)
o Modern trend is warning is required regardless of group size
Products Liability Part 2

Five Theories of Products Liability

Plaintiffs can prove products liability under five possible theories of

recovery:
Intent: rare
Negligence: DES brown v. superior court, court had to decide even
if we had a design defect with drug that causes child birth defect,
are we imposing strict liability standard. Required the P to proof or
should have known
Strict liability: most. Automatically liability, where the P has to show
that a party was in the chain of distribution and injured by a
product and they cannot recover.
Implied warranties of merchantability and fitness: other ways when
product violate the imply warranty.
Representation theories
o Express warranty: you made an express warranty made.
o Misrepresentatio:n of fact, falsehood.
LIABILITY BASED ON STRICT LIABILITY
Prima Facie Case
Absolute duty owed by a commercial supplier (if one shows
that they were hurt by defective product, then they have an
absolute duty of care) Commercial supplier is made by
different facts.
Production or sale of a defective product
Manufacturing defect
Design defect: warning defect
o Jackson v. Coast Paint & Lacquer Co. (pg. 679)
Actual and proximate cause
Similar to negligence concepts
Damages
Must show personal and/or property damages
Pure economic loss is not recoverable, there are some exceptions.
Monetary loss is not enough. Strict liability, economic loss not
allowed. Must show the one of the 2 above.
"Commercial Supplier"
A commercial supplier of a product is not a casual seller
o Someone who knits as a hobby and sells a sweater to a
neighbor is a casual seller, not a commercial supplier
If I have a problem that talks strict liability action, first
thing to ponder is whether it is a commercial supplier,
or a casual seller?

Casual seller: knits a sweater to neighbor.

Examples of commercial suppliers

Manufacturer
Retailer
Assembler
Wholesaler
Includes sellers of used products that have been reconditioned or
rebuilt.
Strict liability extends to any commercial supplier in the chain of
distribution. (can be manufacturer, wholesaler, retailer) very difficult to pin
point who caused the defect.
Protection for buyer, buyer's family, guests, friends, and employees.
Even protection for foreseeable bystanders. We dont have to have privity.
Not requirement in premises liability action. If someone was a guest at a
buyer, even if guest does not privity with coffee maker, they can bring strict
liability action against the retailer.
Allenberg v. Bentley Hedges Travel Serv. Inc.

Products and Services

Strict liability is imposed only on one who supplies a product, as
opposed to one primarily performs a service
o If hurt in a bus accident due to driver incompetence, then
cause of action is in negligence
o If hurt in a bus accident due to some part of the bus
malfunctioning, then cause of action is strict products liability
Product must also not have been substantially altered for strict
products liability
Royer v. Catholic Medical Center
Defenses to strict products liability claims.
Contributory Negligence States
o Ordinary contributory negligence is not a defense where the
plaintiff merely failed to discover the defect
o Voluntarily assumption of risk is a defense
Comparative Negligence States
Comparative negligence rules apply

Disclaimers of Liability unenforceable in strict products liability cases if

personal injury or property damage has occurred.
Daly v. General Motors Corp

IMPLIED WARRANTIES MERCHANTABILITY AND FITNESS

Implied Warranty of Merchantability
1) Goods are of equal quality to goods that are generally
acceptable among those who deal in similar goods
2) Goods are generally fit for the ordinary purposes for which such
goods are used
Implied Warranty of Fitness
Seller knows or has reason to know:
o 1) The particular purpose for which the goods are required
o 2) That the buyer is relying on the seller's skill or judgment to
select suitable goods
General Requirements
Apply to the sale of goods under U.C.C.
Plaintiff need not prove any fault on defendant's part if a product
fails to live up to the standards imposed by the implied warranties
No direct contractual privity required between a buyer and seller,
wholesaler, etc.
o But most states still require horizontal privity and only extend
implied warranty protection to a buyer's family, household,
and guests who suffer personal injury
Disclaimers & Damages
Disclaimers of liability for breach of implied warranty must be
specific and are narrowly construed
Contractual limitations on personal injury damages resulting from a
breach of warranty for consumer goods are prima facie
unconscionable
In addition to personal injury and property damages, purely
economic losses are recoverable in implied warranty actions
Henningsen v. Bloomfield Motors, Inc.
Defenses
Assumption of Risk

o Bars recovery only if plaintiffs uses a product that plaintiff

knows violates warranty
Contributory Negligence States
o Plaintiffs failure to discover a violation of warranty does not
bar recovery
Comparative Negligence States
o Plaintiffs damages award is reduced
Notice of Breach
o The U.C.C. requires that the buyer to give the seller notice
within a reasonable time after the buyer discovers or should
have discovered the breach

Express Warranties
Involves an affirmative representation by the defendant beyond the
act of distributing a product
o Promise to the buyer relating to the goods that becomes part
of the "basis of the bargain"
Plaintiff need not show fault of the defendant, but only that a
breach of the warranty did in fact occur
o Defendant advertises its suntan lotion as being completely
safe for sensitive skin. Even if there is nothing wrong with
the product itself, a buyer who suffers an allergic reaction
may bring a successful warranty action
Other Considerations
Express warranties include leases
Privity generally irrelevant
Disclaiming an express warranty unenforceable
Causation, Damages, and Defenses
o Same criteria s implied warranties
Misrepresentations of Fact
The defendant must have intended to induce the reliance of the
buyer by making a statement that proved to be false
Plaintiff need not make any further showing regarding defendants
state of mind and motivation
Plaintiff can show inducement simply by showing the
misrepresentation was a substantial factor in their purchase
decision making, even if it was not the sole factor
The misrepresentation must be of a material fact concerning the
quality, nature, or appropriate use of the product
Privity generally irrelevant

Defenses
Assumption of Risk
o Not applicable if Plaintiffs injuries arose from relying on the
representation of a product that turned out to be false
Contributory Negligence and Comparative Fault
o Generally same as implied warranties
Nuisance
Public and Private
General Considerations
Nuisance is an umbrella term containing aspects of:
o Negligence
o Intentional Torts
o Strict Liability

Civil liability for damage caused to the use and enjoyment of ones
property or to the public in general
Types of Nuisance
Private
o Action that unreasonably interferes with use and enjoyment
of nearby property
Public
o Consists of interference with rights of community at large,
from obstruction of a public highway to a public gaming house
Private Nuisance
Negligence aspect
o Concerned with reasonableness of actors activity.
Was there something of what they did that was
unreasonable?

Intentional tort aspect

o Knowledge of the substantial certainty of offensive nature of
actors activity
How certain was it to that person that something
offensive would result of their activities would come
about.
Strict liability aspect
o Concerned with the size and type of interference

Based on what they are doing, what is the size and

scope of interference that they could have foreseen.
A single act can incur liability for these other torts in addition to
nuisance
o A low flying plane over someones land

Nuisance can be added to your complaint. You can bring it along with
the negligence claim. All together.
Remedies
Monetary Damages
Injunctive Relief
o Permanent
o Temporary
o Court can draft to specific circumstances
Both types of relief grounded in concepts of equity
Standing
Must have standing to sue for both private and public nuisances
For private nuisance, must simply show that defendants actions
affected the use and enjoyment of your own property, not someone
elses
o Have to show that the smell, or smoke interfere with the use
and enjoyment of your own land.
For public nuisance, must show damage to you is different in kind
or character than that suffered from the public in general
o Part of rationale is to prevent duplicative lawsuits
o Standard still hard to pinpoint
o You had damage above and beyond. Standard is very hard to
pin point. If they release smoke in the air, everyone in the city
may be affected by it, and what you are showing is that this
may be affecting me. Fussy standard, but this is the idea.
Are they the proper person to bring that claim given that it is private
or public? Make sure person suing is the proper person against the party.
You
DEFAMATION
Libel and Slander
Libel is a defamatory statement recorded in writing or some other
permanent form

o Radio and television broadcasts, regardless of whether they

were scripted. Libel has permanent form.

Slander is spoken defamation. It is less permanent and in less

physical form

Who May Be Defamed?

Plaintiff can be any living person

o No defamation cause of action on behalf of deceased
o If you go to funeral and talk about someone who died, the
estate cannot sue you for defamation.

Plaintiff can be a corporation or business entity, but remarks must

go toward its financial condition, honesty, integrity, etc.
The defamatory has to got to the heart of what the business is
doing, its integrity.

Group Defamation
All Members of Small Group
o Where the defamatory language refers to all members of a
small group, each member may establish that the defamatory
statement was made of and concerning him by alleging that
he is a member of the group (20)
Some Members of Small Group
o Where the defamatory language refers to some members of a
small group, plaintiff can recover if a reasonable person would
view the statement as referring to the plaintiff
All Members of Large Group
o If the defamatory statement refers to all members of a large
group, no member of that group may establish this element
of the cause of action (over 100 people)
Who Can Be Liable For Defamation?

Primary Publisher
o Author (the speaker, or author of the slander)
o Speaker
o Newspaper
o TV station

Republisher

o One who repeats a defamatory statement will be held liable

the same as a primary publisher
True even if the repeater states the source or makes it
clear that she does not believe the defamation
o The original defamer's liability may be increased to
encompass any new harm caused by the repetition if the
republication was either intended by or reasonably
foreseeable to the original defamer

Secondary Publishers
o Newspaper vendors
Only liable if knew or should have known selling specific
defamatory content (material)

Prima Facie Case Private Plaintiffs (element for private

plaintiff, and public figures and officials)

Defamatory language on the part of the defendant

The defamatory language must be "of or concerning" plaintiff

o Clearly identify the plaintiff to a reasonable reader, listener, or
viewer
Publication of the defamatory language by the defendant to a
third person
Damage to the reputation of the plaintiff

What Type of Language is Defamatory?

Language that tends to adversely affect one's reputation 9not

language motivated by malice or ill will) simply language that when
you read it could affect ones reputation or so forth with the
community.
Attacks an individual's honesty, integrity, virtue, work ethic, sanity,
etc.
Words, pictures, satire, cartoons, etc.

Inducement and Innuendo

Some language standing alone is defamatory "on its face when

someone says something it can attack the reputation.

However, with some language defamatory meaning only becomes

apparent by adding extrinsic facts
o plaintiff pleads and proves such additional facts as inducement and establishes the defamatory meaning by innuendo
Angelina Jolie is romantically involved with Tom
Cruise.
(if she wanted to prove that this is yes or not, she
would have to do the one bellow)
Ms. Jolie would have to prove additional facts that she
is engaged to Brad Pitt
Fact and Opinion

A statement of fact may always be defamatory if it meets the above

criteria
A statement of opinion is actionable only if it appears to be based
on specific facts, and an expresses a defamatory allegation based
on those facts
o Based on what he did last year, I don't think Jason can be
trusted with a key to the cash register"
Implies personal knowledge of dishonest conduct and
thus may be actionable
o Jasons a slime ball (just an opinion, not asserting
underlying facts. The broader and more vague, the more it
will be held to be opinion statement. Not actionable for
defamation.
Generally not actionable
Generally, the broader or more vague the language, the less likely
that it will be reasonably interpreted as a statement of fact or an
opinion based on specific facts

Of or Concerning Plaintiff
Plaintiff must establish that a reasonable reader, listener, or viewer
would understand that the defamatory statement referred to the
plaintiff

Even if Plaintiff is not named, can meet this requirement through

colloquium
o Plaintiff can plead additional facts that show reasonable
reader would know it was him or her

Publication

Communication to a third person who understood it

o Johnny saw a defamatory statement about Steve printed in
Spanish. The publication requirement is not met unless
Johnny understood the foreign words
o If I am talking to a co-worker about another co-worker, it is
publication. They have to understand it.
Liability will incur if publication made intentionally OR negligently
For publication requirement court only looks to intent to publish,
not the intent to defame. (not malice behind it, or cause harm, just
was there the intent to public the statement)

Repetition of Publication

Each repetition of a defamatory statement is a separate publication

for which the plaintiff may recover damages
However, multiple copies of the same newspaper, magazine, or
book fall under the "single publication" rule where all copies of a
newspaper, magazine, or book edition are treated as only one
publication (cannot recover for each individual time)
Damages are calculated on the total effect of the story on all of the
readers (for the readership, for however many people read that
statement)

Damages
Libel
o In most jurisdictions, general damages (compensation for loss
of reputation, humiliation, etc.) are presumed and need not
be proven.
Constitutional free speech considerations may restrict
such an award when the defamation involves matters of
"public concern"
Slander:
o General damages are not presumed
o Therefore, in most cases special damages (measurable loss
such as loss of job, customers, etc.) must be plead and
proven
o (exception) UNLESS slander falls into one of four categories
of slander per se, for which general damages are presumed
Four Categories of Slander Per Se (4 type of spoken defamatory
statements, you wont have to show economic damages because
those damages are presumed form the publication)

Statement that directly denigrates plaintiffs abilities in her business

or profession
Statement that plaintiff is presently suffering from a venereal
disease or leprosy
Statement that plaintiff was or is guilty of a crime of moral
turpitude
Statement related to un-chastity of a woman

Prima Facie Case:

Public Figures, Public Officials &
Matters of Public Concern
Previous elements for private individuals (los de arriba) so 6
elements. If a public figure or public official=must prove 7
Additional two elements:
o Falsity of the defamatory language
o Fault on defendant's part
Public figures and public officials must additionally prove by
"clear and convincing" evidence that the statement was made with
"malice"
Two Ways to Be a Public Figure
Achieved pervasive fame or notoriety
o Celebrities
o Sports figures
Man stream appeal or recognition.
Voluntarily assumes a central role in a particular public controversy
o Community activist
o But only a "public figure" for that issue
o Possible for a person to become a public figure through no
purposeful action, but exceedingly rare
What is Malice ?
Knowledge that the statement was false
OR
Reckless disregard as to its truth or falsity

As to
o
o
o

the above two requirements

NOT determined by a reasonable person standard
NOT showing defendant acted out of spite
BUT a subjective standard inquiring whether defendant in
fact entertained serious doubts as to the truthfulness of his
publication

A journalist deliberately altering a quote to materially

change its meaning

Complete Defenses to Defamation

Consent
o If I consented you to say X, then that is it.
Truth
o Only applicable in private cases since plaintiff is not required
to prove falsity as an element of claim
Absolute Privilege
o Arises in five different circumstances
There are also circumstances of qualified privilege for
certain circumstances
Absolute Privilege
All parties to official court and judicial proceedings have absolute
privilege for statements directly related to any aspect of those
proceedings
All remarks made by either federal or state legislators during
legislative proceedings
Statement of governmental executive official, related to an
executive matter, while exercising the functions of her office
Radio or TV station compelled to allow a speaker use airwaves, or a
newspaper compelled to print public notices, is not liable for
statements made during those broadcasts
o Equal time provisions

Communications between spouses

o If you fight with your partner, you cannot sue for defamation.
Mitigating Factors
Not defenses to a defamation action, but may be considered by the
trier of fact to reduce damages
o No actual malice in statements
o Retraction
Failure to retract after a request to do so allowed as
evidence to increase damages
Anger of the speaker if provoked by the plaintiff

Thing v. LaChusa

Under zone of danger:

Under the Dillon: when she comes down, she didn't see the aftermath.
Contemporaneous observance is enough, and she would be able to recover.
This court does not go with the Dillon case.
They decided the case in terms of the 3 prong test
Your ability to recover depends on the jurisdiction and on what test to
apply.