TORTS OUTLINE

STRICT LIABILITY

2/11/2012 10:18:00 PM

ELEMENTS FROM BARBRI: 1) The nature of defendants activity imposes an absolute duty to make safe. 2) the dangerous aspect of the activity is the actual and proximate cause of the plaintiffs injury; and 3) the plaintiff suffered damage to person or property ELEMENTS FROM CLASS: 1) was a merchant 2) absolute duty owed by a commercial supplier 3) production or sale of a defective product 4) actual and proximate cause 5) damages o Privity of contract not required (can sue anyone in distribution change) GOALS OF STRICT LIABILITY: o Loss-spreading o Loss avoidance o Loss allocation o Administrative efficiency o Fairness o Protection of individual autonomy COMPARE TO NEGLIGENCE: o Moral views of interpersonal conduct o Opt out of the dangerous business or assume the risk

ABNORMALLY DANGEROUS ACTIVITIES: Rest. 520 o DEFINITION: an activity may be characterized as abnormally dangerous if it 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. o TEST: 2 Requirements: 1) the activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors; and 2) the activity is not a matter of common usage in the community o RYLANDS V. FLETCHER: Mill owner held strictly liable when a neighbors mines were flooded from water escaping from the mill owners reservoir. This was considered an abnormal use in mining country. Also: blasting, manufacturing explosives, crop dusting, fumigating. Life is more important than the right to use property Natural: no strict liability Unnatural: deemed to have acted at own risk Distinguished: in TX we loosen strict liability for unnatural uses of land if its customary o SULLIVAN V. DUNHAM: blasters are liable for direct consequences of their actions. No liability for consequential injuries if there is no negligence o PRODUCTS LIABILITY: there may be strict liability imposed for damage caused by products, depending on the theory used by a court in resolving such problems. 6 FACTORS FOR ABNORMALLY DANGEROUS: R. 520 THOMAS V. WINCHESTER: Rule: if the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. o Irrespective of contract the manufacturer is under a duty to make it carefully Restatement 2nd and 3rd Distinctions: o 402(A) Restatement 2nd:

 unreasonably dangerous o Restatement 3rd: 3 different types of defects all possible care was taken foreseeable risks of harm could have been reduced inadequate instructions o Tests: Consumer Expectation Test (2nd Restatement) Limits liability to end user Depends on what the consumers expectations are Risk Utility Analysis takes into account all the care taken in preparation you can use experts but; expands liability to any user not just the end user

DEFENSES:
DEFENSES FOR PRODUCTS LIABILITY: o GM V. SANCHEZ: a consumer has not duty to discover or guard against defect. Contributory negligence by P is not a defense when such negligence consists merely in a failure to discover the defect in a product o Statutes of repose: SoL but begin to run when product sold o JONES V. RYOBI: when a third partys modification makes a safe product unsafe, the seller is relieved of liability even if the modification is foreseeable OPEN AND OBVIOUS DANGER: (Camacho) o The test to determine if a danger is open and obvious is whether "an average user with ordinary intelligence would have been able to discover the danger and the risk presented upon casual inspection.

LIRIANO V. HOBART CORP: manufacturer liability can exist under a failure-to-warn theory even in cases where the substantial modification defense bars a design defect claim o Court doesnt want to expand the scope of a duty to prevent all possible injuries for manufacturers but they do think that the duty to warn has a more limited scope focusing on the foreseeability of the risk o Also a duty to warn of dangers discovered after the product is sold.

PRODUCTS LIABILITY:
Liability of a supplier of a product to one injured by the product THEORIES: o Intent o Negligence o Strict liability o Implied warranties of merchantability and fitness for a particular purpose o Representation theories EXISTENCE OF A DEFECT: o Plaintiff MUST SHOW that product was defective when the product left s control o TYPES: Manufacturing defects: different than the others and more dangerous Design defects: all made the same but have dangerous propensities because of their mechanical features or packaging Inadequate warnings: type of defect design Must have clear and complete warnings of any dangers that may not be apparent to users o DEFECTIVE PRODUCT P must prove that product was dangerous beyond the expectation of the ordinary consumer

 Food: consumer expectation approach o DESIGN DEFECT: P must show that a less dangerous modification or alternative was economically feasible Must be practical Cheaper or not much more expensive Less dangerous MACPHERSON V. BUICK: if the object can place someones life in danger if negligently made then it can be a thing of danger o There is a duty to make a product carefully o Manufacturers are responsible for the finished product o Thomas v. Winchester: Mislabeled poison= inherently dangerous o Loop v. Litchfield: Bad wheel on a sawing machine (accident after 5 years and user knew of bad wheel; risk of injury too remote, not liable.) ESCOLA V. COCA COLA: public policy demands the responsibility be fixed wherever it will most effectively reduce the hazards. o manufacturer can handle the cost o Traynors Concurrence: 2 tests for PL Consumer Expectation (402A) Risk utility analysis Restatement 2nd: 402A: Defines defective state in terms of consumers expectations o What is considered unreasonably dangerous to consumer o TEST: Consumer expectation test Limits liability to end user Seller liable if engaged in business in selling Must reach end user without substantial change Restatement 3rd: gives three types of defects o All possible care was taken o Foreseeable risks of harm could have been reduced o Inadequate instructions o TEST: risk utility analysis

Expands liability to any user, not just end user Can use expert testimony

SOULE V. GM: Basically a decision over what type of test should be used in design defect cases: a reasonable user standard or the riskbenefit test with use of experts and geared to reasonable safety CAMACHO V. HONDA: o Crashworthiness doctrine: a motor vehicle manufacturer may be liable in negligence or strict liability for injuries sustained in a motor vehicle accident where a manufacturing or design defect, though not the cause of the accident, caused or enhanced the injuries o Duty of reasonable care by the manufacturers to minimize the injurious effects of a foreseeable collision by employing common sense safety features GM Case v. Camacho case: court discusses the different tests, were not completely throwing out the consumer expectation test, but we recognize that there are some types of cases where it doesnt work Consumers are justified in assuming what they buy is reasonably safe, depending on many factors. o Usefulness/desirability o Safety/likelihood of injury o Availability of substitute o * Manufacturers ability to eliminate unsafe parts o Users ability to avoid danger by using care o Users anticipated awareness of inherent dangers o Feasibility of spreading the loss by setting price or carrying liability insurance o Dissent in Camacho asks which test?

COMMON DEFECT PROBLEMS: Misuses: suppliers must anticipate reasonable foreseeable uses even if they are misuses of the product Scientifically Unknowable Risks: ex. New drugs

o Courts generally refuse to find the drugs unreasonable dangerous where it was impossible to anticipate the problem and make the product safer or provide warnings Allergies: if allergic group is significant in number, product is defective unless adequate warnings are conveyed o Trend: requires warnings whenever manufacturer knows that there is a danger of allergic reaction, even though the number affected may be very small. ELEMENTS: o Merchant / commercial supplier o Defect o Product was not altered (presumed if it traveled in ordinary channels of distribution) o P was making foreseeable use of product

SAFETY INSTRUCTIONS AND WARNINGS: Purpose: reduce risks and warn of irreducible dangers Brown Forman Corp. v. Brune: no notice is required for a bottle of tequila Maneely v. GM: No duty to warn of the dangers of riding in the bed of a pickup truck HOOD V. RYOBI: Sufficient warning, need only be reasonable under the circumstances. o Prolific warnings tend to do more harm than good o Standard for adequacy: Warning must adequately indicate the scope of danger Reasonably communicate the extent or seriousness of the harm that could result from misuse of the product Physical aspects of warning must be adequate to alert a reasonably prudent person to the danger Simple directive warning may be inadequate when it fails to indicate the consequences Means to convey the warning must be adequate

STATE V. KARL: Court declined learned intermediary doctrine where manufacturer is excused from warning each patient who receives the drugs when the manufacturer properly warns the prescribing physician of the dangers o Outdated bc people can bypass doctors easily o Reasons for not adopting the doctrine: o 1) informed consent requires a patient based decision rather than the paternalistic approach of the 1970s o 2) Drs have less time than eer to inform patients of the risks and benefits o 3) sine they spent 1.3 billion in advertising in 1998.. its hard to say they cant effectively advertise

VASSALLO V. HEALTHCARE CORP: a manufacturer will be held to the standard of knowledge of an expert in the appropriate field, and will remain subject to a continuing duty to warn (At least purchasers) of risks discovered following the sale of the product at issue.

INTENT: either specific or general

SPECIFIC INTENT: o When a person acts with a purpose of inducing the consequence or acts knowingly that the consequence is substantially certain to result o Recklessness is NOT intent GENERAL INTENT: TRANSFERRED INTENT: Not enough that they act deliberately, they must desire to produce the forbidden conduct. What actor sought to achieve. o 2 EXCEPTIONS: Even if you dont desire it, you act knowing that the conduct is virtually certain to occur

Restatement Torts: substantially certain

GARRAT V. DAILEY: must prove a wrongful act has occurred SUBSTANTIAL CERTAINTY TEST: Rest. 3rd: test be limited to situations in which the defendant has knowledge to a substantial certainty that the conduct will bring about harm to a particular victim or to someone within a small class of potential victims within a localized area.

BATTERY:
Protects the integrity of the body of each of us (bubble!) ELEMENTS: 1. Intent to bring harmful or offensive contract to Ps person 2. Harmful or offensive contact to P o Harmful: anything that causes blood, broken bone trip to the hospital, its self evident o Offensive: if it offends a reasonable sense of dignity 3. Contact is with the Ps person Plaintiffs person: anything connected to the plaintiffs person is viewed as part of their person o ex. Cane, clothes, electric cooties! Doctrine of transferred intent applies Apprehension not necessary Actual damages not required o Can recover at least nominal damages even though he suffered no severe actual damage. o Punitive damages may be recovered where acted with malice PICARD V. BUICK: Assault is a physical act of threatening nature or an offer of corporal injury which puts an individual in reasonable fear of imminent bodily harm

Battery: and act that was intended to cause and in fact did cause an offensive contact with or un consented touching of or trauma upon the body of another WISHNATSKY V. HUEY: no requirement of actual bodily injury, uses a reasonable persons sense of personal dignity Assault and Battery: The difference: o Battery: the intentional act that causes a harmful or offensive contact OR with something closely connected Reasonable person standard Battery: hit someone from behind so they have no apprehension of the contact, but it occurs. o Assault: causes reasonable apprehension of an imminent or immediate battery Imminent means must be in reaching distance, not over the phone Assault ex: throwing the knife and they see it coming but you miss

ASSAULT:
Protects peace of mind ELEMENTS: 1. An act by defendant creating a reasonable apprehension of an imminent or immediate battery 2. Intent on the part of to bring about in the plaintiff apprehension of immediate harmful or offensive contact 3. causation REASONABLENESS o Apprehension is not the same as fear or intimidation, because apprehension has the sense of expectation o Knowledge of act required: must be aware o Knowledge of s identity not required o s apparent ability to act is sufficient (even if defendant isnt actually capable (gun isnt loaded but P doesnt know ))

apparent ability can create a reasonable apprehension (if it looks like you can, even though you can, it creates a reasonable apprehension) EFFECT OF WORDS: o Words are generally not enough (they lack immediacy) o Words that negate immediacy: Conditional: if you werent my bff Id stab you Not an assault because the words negate the immediacy Where threat is real but promises action in the future just you wait Conditional threat is sufficient: if the words and act combine to form a conditonal threat, an assault will result

FALSE IMPRISONMENT:
ELEMENTS: 1. An act or omission to act by that confines or restrains the plaintiff to a bounded area (against Ps will) and P knows 2. Intent to confine or restrain the P to a bounded area 3. Causation (is injured thereby) Must be unlawful Must restrain their movement (could be a room or a city) Can be words alone, can be threats of force Restraints can be invisible SUFFICIENT METHODS OF CONFINEMENT/RESTRAINT: o Physical barriers o Physical force Directed at him or a member of his immediate family Action can also lie if the force is directed against Ps property o Direct threats of force

o Indirect threats of force Words that reasonably imply that the will use force against Ps person or immediate family o Failure to provide means of escape If owes P a duty to facilitate that persons movements, there can be an affirmative duty to take steps to release the P. o Invalid use of legal authority False arrests are not basis for false imprisonment Privileged arrests: Felony arrests without warrant Valid if officer has reasonable grounds to believe a felony has been committed Private person can only do this if a felony has in fact been committed and person has reasonable grounds for believing they committed it Misdemeanor arrests without warrant Privileged if its a breach of the peace and

was committed in the presence of the arresting party Arrests to prevent a crime without a warrant When felony or breach of peace is in process of being or reasonably appears to be, arrest is privileged Amount of Force Allowable Felony arrest: may use degree of force reasonably necessary to make arrest Deadly force only necessary when suspect poses a threat of serious harm Misdemeanor arrest: only the degree of force necessary to effect the arrest but NEVER deadly force. Shoplifting Detentions are privileged Must be reasonable belief of theft

Detention must be conducted in a reasonable manner and only non-deadly force can be used Detention must only be for a reasonable period of time and for purpose of making an investigation

Will only lead to a charge if P is aware of the restraint and suffers harm o Could be mental or physical o No harm no foul: no tort o If I lock you in a room while you sleep but you never know it, its not false imprisonment

LOPEZ V. DONUT HOUSE: moral pressure is not enough. Evidence must establish restraint against Ps will as where she yields to force, threat of force, or the assertion of authority Shoplifting cases: reasonable grounds can be a defense

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS:

ELEMENTS: 1. An act amounting to extreme or outrageous conduct Conduct that exceeds all bounds of decency tolerated by society 2. Intent on to cause severe emotional distress, or recklessness as to s conduct Recklessness can cause liability 3. Causation If to a third party, P must show: Present when injury occurred to other person P was a close relative of injured person knew P was present and a close relative 4. Damages; severe emotional distress Actual damages are required, but not necessary to prove physical injuries to recover

Must establish severe emotional distress

EXAMPLES OF OUTRAGEOUS CONDUCT: o Extreme Business Conduct: extreme methods of collection, if repeated, may be actionable o Misuse of Authority: school authorities threatening and bullying pupils o Offensive or Insulting Language: only actionable if there is a special relationship or a sensitivity on Ps part of which is aware SPECIAL RELATIONSHIP SITUATIONS: common carriers and innkeepers owe special duties to their patrons that will be a basis for liability even when the act is something less than outrageous o Ex. Bus driver insulting passenger KNOWN SENSITIVITY: If knows P is more susceptible to emotional distress, liability will follow if uses extreme and outrageous conduct intentionally to cause such distress and succeeds o Ex. Children, pregnant women, elderly people

LOOK FOR: o Power disparity o Repetitive SPECIAL LIABILITY FOR MISHANDLING CORPSES: special category for mental distress resulted from intentional or reckless mishandling of a relatives corpse

WOMACK V. ELDRIDGE: a reasonable person would or should have recognized the likelihood of the serious mental distress that would be caused in involving an innocent person in child molesting cases o 4 element test: 1) conduct intentional or reckless (intent)

2) conduct was outrageous and intolerable 3) causal connection between conduct and distress 4) emotional distress was severe (damages) TITLE 7 CASES: o Someone made 2 racial remarks, not a steady barrage

TRESPASS TO LAND:
ELEMENTS: 1. An act of physical invasion of Ps property 2. Intent on s party to bring about a physical invasion of property Dont need to know that you crossed the boundary line, only that you are putting one foot in front of the other 3. Causation PHYSICAL INVASION: o Defendant need not enter land (can be something thrown) o Lawful right of entry expires (ex. He stays after allowed)

INTENTIONAL MISREPRESENTATION:
ELEMENTS: o Material representation o Representation is untrue o Seller knew or had reckless disregard for the truth o Intent to induce reliance (cases turn on this) o Duty to disclose OLLERMAN V. OROURKE: Factors significant to impose a duty: o Condition is latent and not readily observable by purchaser o The purchaser acts upon the reasonable assumption that the condition does (or does not) exist o The vendor has special knowledge or means of knowledge not available to the purchaser o The existence of the condition is material to the transaction

RELIANCE: (her notes) o A misrepresentation is not actionable unless the plaintiff in fact and justifiably relied (otherwise theres no link between action and damages) o Relying means choosing the conduct because of the representation (acting or refusing to act because of the misrepresentation) o If you enter into a transaction without learning of the misrepresentation until after the transaction has closed or would have entered into the deal whether or not the misrepresentation would have been made, then there is NO MISREP claim. o If the misrepresentation is SO material, then reliance is inferred o RELIANCE NOT JUSTIFIED: when the misrepresentation is not material it makes a legal conclusion by one without a specialized knowledge

IMPERIAL ICE V. ROSSIER: interference with a contract: awareness of an economic relationship and malicious intentional interference. DELLA PENNA V. TOYOTA: interference with prospective economic advantage: o Awareness of relationship o Intentional interference o Resulting injury

TRESPASS & NUISANCE:

PRIVATE NUISANCE: one is subject to liability for conduct that is a legal cause of an invasion of anothers interest in the private use and enjoyment of the land if the invasion is either o Intentional and unreasonable, or

o Unintentional and arising out of negligent or reckless conduct or abnormally dangerous conditions or activities GRAVITY OF HARM: FACTORS: R. 827: in defining the gravity of harm from an intentional invasion of anothers interest in the use and enjoyment of land, the following factors are important: o the extent of the harm involved o the character of the harm involved o the social value that the law attaches to the type of use or enjoyment invaded o the suitability of the particular use or enjoyment invaded to the character of the locality; and o the burden on the person harmed of avoiding the harm UTILITY OF THE CONDUCT- Factors Involved R. 828 o In determining the utility of conduct that causes an intentional invasion of anothers interest in the use and enjoyment of land, the following factors are important: o The social value that the law attaches to the primary purpose of the conduct o The suitability of the conduct to the character of the locality; and o The impracticability of preventing or avoiding the invasion

PUBLIC NUISANCE: historically used to combat public health hazards o an unreasonable interference with a right common to the general public; o ex. whether the conduct involves a significant interference with the public health, public safety, the public peace, the public comfort, or the public convenience.

ELEMENTS: o 1) unreasonable interference o 2) with a right common to the general public o 3) by a person or people with control over the instrumentality alleged to have created the nuisance when the damage occurred

BOOMER CASE:RULE: private nuisance: intentional, unreasonable, unreasonably dangerous

DEFENSES:
Motive: self-defense, necessity, did it for a justifiable reason

CONSENT:
Every consent has a scope! A defendant is not liable for an otherwise tortious act if P consented to s act. o Can be given expressly, or implied from custom, conduct, or words, or by law. EXPRESS (ACTUAL) CONSENT: o Where plaintiff has expressly shown a willingness to submit to s conduct 1) consent by mistake: I still a valid defense unless the caused the mistake or knows of the mistake and takes advantage of it 2) consent induced by fraud: not a defense, but the fraud must go to an essential matter 3) consent obtained by duress: may be held invalid IMPLIED CONSENT: o 1) apparent consent: consent which a reasonable person would infer from Ps conduct (ex. Sports) inferred from usage and custom (ex. Daily life of bumping in a crowd) o 2) consent implied by law: where action is necessary to save a life or some other important interest will occur in emergency situations CAPACITY REQUIRED: incompetents, drunk persons, and very young children are deemed incapable of consent to tortious conduct

CRIMINAL ACTS: majority view is that a person cannot consent to a criminal act o Modern Trend: differentiates between illegal acts that are breaches of the peace (street fight- consent ineffective) and those that are not (act of prostitution- consent ineffective). o Consent Invalid where law seeks to protect members of victims class: ex. Statutory rape- consent is not a good defense in an action by a member of that class EXCEEDING CONSENT GIVEN: o If goes beyond the act consented to and does something substantially different, he is liable HART V. GEYSEL: follows First Restatement, no man shall profit by his own wrongdoing; one who has sufficiently expressed his willingness to suffer a particular invasion has no right to complain if another acts upon his consent.

THE PROTECTIVE PRIVILEGES:

Check the timing: must be heat of the moment and responding to an imminent or in progress threat Must have reasonable belief that the threat is genuine

SELF-DEFENSE:
o When person has reasonable grounds to believe that he is being or about to be attacked he may use such force as is reasonably necessary for protection against the potential injury o WHEN AVAILABLE? Reasonable belief: apparent necessity is sufficient Reasonable mistake as to the existence of the dangers does no vitiate the defense

Retaliation not allowed: limited to force necessary to prevent the commission of the tort (must be proportionate) Retreat not necessary: although growing trend would impose a duty to retreat before using deadly force unless the actor is in his own home Not available to aggressor o COURVOISER V. RAYMOND: test is whether the circumstances would lead a reasonable man to believe his life was in danger, or in danger of receiving great bodily harm. DEFENSE OF OTHERS: DEFENSE OF PROPERTY: o Can never use deadly force to protect property KATKO V. BRINEY: spring guns are prohibited except to prevent the commission of felonies of violence where human life is in danger; higher value on human safety than property rights.

NECESSITY:
Only apply to property torts and are very rare PUBLIC NECESSITY: o Where the act is for a public good, the defense is absolute PRIVATE NECESSITY: o Where the act is solely to benefit a limited number of people, the defense is qualified Defense is absolute if the act is to benefit the owner of the land (start a fire to stop a fire) o HYPOS: Dave is cross-country hiking in rural Northern Minnesota in February and a blizzard arises and if he doesnt take shelter immediately he will die. He sees a farmhouse and. 1) knocks, no answer, door is locked, breaks window, crawls in to take shelter, leaves the next day.

Liable to pay for the broken window 2) knocks, door isnt locked so he walks in, takes shelter, gets sued. Liable for nothing because emergency 3) arrives, unlocked, enters, farmer walks in and finds him and shoves him out Farmer is liable for battery for throwing him back out into the blizzard VINCENT V. LAKE ERIE: ordinary rules of property were suspended by forces beyond human control. Ship owners were responsible for damages their boat caused to dock.

DAMAGES:
COMPENSATORY DAMAGES: an attempt to return the plaintiff to his or her condition before the accident o Measures cost of harm in past and future terms o Courts stick with single-judgment single-payment approach o Includes: past and future medical bills, sometimes nonpecuniary damages such as pain and suffering and loss of consortium SEFFERT V. LA TRANSIT: Damages only excessive if they, at first blush, shock the conscience and suggest passion, prejudice or corruption on the part of the jury. MCDOUGAL V. GARBER: Cognitive awareness is a prerequisite to recovery for loss of enjoyment. Also held that loss of enjoyment of life should NOT be considered a separate damages category form pain and suffering EVENT OF DEATH: o Survival action: provides recovery of damages the deceased could have obtained before death Lost income & medical expenses from time of injury to time of death, maybe pain and suffering

o Wrongful death action: when tortious conduct is responsible for victims death Usually economic loss to the beneficiaries o Loss of life damages: seek to compensate a decedent for the loss of the value that the decedent would have placed on his or her own life o Wrongful death of a child: ????????????? PUNITIVE DAMAGES: TAYLOR V. SUPERIOR COURT: punitive damages allowed where has been guilty of oppression, fraud, or malice: express or implied EYOMA V.FALCO: jury can consider the patient's total disability and impairment in awarding loss of enjoyment damages. COLLATERAL SOURCE RULE: plaintiffs in personally injury actions can still recover full damages for their injuries even if theyve already received compensation through a collateral source such as medical insurance ARAMBULA V. WELLS: collateral source rule applies to lost wages and gratuitous services. PP: Dont want to punish people for other people helping them out. Also want to encourage insurance and private charitable assistance. AUTOMOBILE LIABILITY INSURANCE: provides that insurer will cover amounts for which insured is held liable, and hire and pay for lawyer to defend in suit STATE FARM V. CAMPBELL: 3 guidelines set out in Gore (1996) for measuring punitive damages in civil case. o 1) the degree of reprehensibility of the s misconduct must be so reprehensible so as to warrant the imposition of further sanctions to achieve punishment and deterrence o 2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award

rarely exceed a single-digit ratio, based on facts and circumstances of s conduct and harm to P. o 3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases not a substitute for the criminal process

GOVERNMENT LIABILITY:
KKK act 1871: Every person who subjects another to a deprivation of their rights shall be liable to the party injured 1985(3): Created damages remedy for citizens deprived of constitutional rights by persons acting in a conspiracy IMMUNITIES: Only a violation of a clearly established right o Government immunity o Qualified immunity o Absolute immunity: usually officials performing judicial and legislative functions TEST: Whether the act is a function normally performed by a judge and whether the parties dealt with the judge in his judicial capacity

ON THE EXAM!!
1) Policy on enjoyment of life damages o Know the positions and take a stance 2) Intentional infliction of emotional distress in relation to gender and race cases 3) Title 7 employment discrimination o Title 9 Apply IIED to fact patterns 4) Products Liability

5) punitive

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