I. Vicarious Liability 1.

Liability based on relationship between the parties (employer has some financial stake and its appropriate to hold them liable). 2. Enterprise benefit- theory of justification for respondeat superior where the employer benefits from the employees act. 3. An employer cannot insulate himself from liability by using safety rules. 4. If VL, than no negligence (2 separate claims). a. Respondeat Superior 5. Under the doctrine of respondeat superior, an employer is liable for the injuries its employees cause to others in the course of their work (w/in the scope of their employment), whether or not the employer had control over the employee. 6. Exception (Going-and-coming Rule) a) Shields an employer from liability for an employees action during his/her commute to and from work for any purely personal reasons. b) Scope of rule (1) Foreseeability test (v. negligence)=employees conduct that is neither startling nor suprising (not so unusual or startling) that it would seem unfair to include the loss resulting from it among other costs of the employers business. (2) Exception to Going-and-Coming rule (a) Where an employees job contributes to an accident, and such accident is foreseeable as a result of the circumstances, any resulting losses can fairly be attributable to the employers business. (i) Bussard v. Minimed (Going and coming rule not applicable in this case b/c the consequences of the exposure in this case can foreseeably lead to an accident, and because the employees job contributed to the accident, such losses can be fairly attributable to employers business.) 7. An employer is only liable for injuries caused by an employee acting within the scope of his employment. a) To be within the scope of employment, an employee must be performing actions for which he was employed or anything incidental to his employment. (1) Slight Deviation Rulefrolic or detour? (a) Frolic (substantial deviation; abandonment of employers business while in pursuit of employees own person business) (b) Detour (slight deviation from employers own business for employees own reasons) (i) If slight deviation than it satisfies the foreseeability test and employer is still liable under VL b/c the conduct is not so startling or surprising (i.e. its foreseeable) that it would seem fair to include the losses as a cost of doing business. (c) Factors (i) Employees intent (ii) Nature, time, and place of deviation (iii) The time consumed in the deviation (iv) The work for which the employee was hired (v) Incidental acts reasonably expected by the employer (vi) The freedom allowed to the employee in performing his job responsibilities B. Independent Contractor 1. One who arranges for work to be done by an independent contractor is not vicariously liable for the contractors torts. a) Independent contractor: one who engaged to perform a certain service for another according to his own methods and manner, free from control and direction of his employer in all matters connected with the performance of the service except as to the result thereof 1

C.

(1) Rationale: the IC does the work on his own time, in his own way and under no ones directions but his own, so that the one who selected the contractor has no control or rights of control over the matter in which it is done. b) Test for differentiating between an independent contractor and an employee is the right to control the physical details of the work. (1) (Murrell v. Goertz--Publishing company did not pay him (always think money), he only received his money from Westbrook. And the publishing company further had no input into the decision to hire Goertz and had no knowledge of his employment) 2. Exceptions for independent contractors a) Non-delegable duty (1) Third party may hold the employer directly liable because his duty of care was non-delegable to an independent contractor. (Whether a duty is delegable is a matter of public policy). (2) Restatement (a) One who carries on an activity that presents a grave risk of serious bodily harm or death may not delegate his duty of care to an IC. (b) One who is under a duty by statute to provide safeguards for the safety of others may not delegate his duty of care to an IC. b) Negligence in the selection of the contractor (1) If a company is negligent in selecting the contractor, the company will be held liable for its own negligence, which has combined with that of the contract. (note-this is ordinary concurrent negligence, not VL). c) Reasonable reliance (apparent authority) (1) Allows an injured party who reasonably relies on the representation to hold the party who made the misrepresentation liable. d) Inherently/intrinsically dangerous activity (1) When the activity involves a peculiar risk of harm that calls for more than ordinary precaution. (a) Collateral to risk: when the ICs negligence is deemed collateral to the inherent risk of the activity (i.e. not recognizable in advance as particularly likely to occur or as calling for special precaution), the exception for inherently dangerous activities does not apply. (2) Examples (under these circumstances, those injured by the contractors negligence would be able to recover through VL from the person who hired the contractor). (a) IC engaged to transport giant logs, six feet in diameter over the highway, where an obvious special danger arises unless the logs are properly anchored and secured. (b) To mark traffic lines on a busy street, where special precautions are required to keep traffic proceeding in another lane. (c) To fly a small private plane to a meeting in western Colorado. (d) Provide security to a manufacturing plant with armed guards. (e) To transport prisoners from Florida to Montana in a van. (f) To sell ice cream to small children from an ice cream vending truck on a busy street. (3) e) Illegal activities (1) One who contracts for performance of an illegal act is vicariously liable for any damage even if the agent is an IC. Joint Enterprise 1. Developed to impose vicarious liability on one who is engaged in the same activity with another committing a tortious act. 2. Each member of the joint enterprise is held to be the agent of the other, each may therefore be held liable for the acts of the other. 3. Elements 2

D.

E.

a) Agreement among the members of the group (express/implied) b) Common purpose c) A community of pecuniary interest d) Equal right of control 4. Joint ownership withut more usually is not enough to impose vicarious liability; there must be some business purpose involved. Popejoy v. Steinle (limited the doctrine of joint enterprise to those having a business or pecuniary interest to avoid the imposition of non-commercial situations which are more often the matters of friendly or family cooperation and accommodation). Bailments 1. Family car doctrine a) The family car doctrine places vicarious liability on the owner of a vehicle for negligent operation by a person using the vehicle with the express or implied consent of the owner for purposes of the business or pleasure of the owners family, and the head of households ownership of the vehicle strongly favors application of the doctrine. b) Parents must either own or furnish the car to the kids. (look to purpose) c) Negligent entrustment- the act of leaving a dangerous article (i.e. a gun or car) with a person who the lender knows, or should know, is likely to use it in an unreasonably risky manner. (1) The DF is themselves negligent in some way. (VL=no negligence on the part of the Df). Imputed Contributory Negligence 1. a drivers negligence will not be imputed to a passenger unless the relationship between them is such that the passenger would be V.L. as a defendant for the drivers negligence. 2. A passenger will only be V.L. for the negligence of the driver when there is either a masterservant relationship or a finding of joint enterprise. 3. Smalich v. Westfall (Contributory negligence will not be imputed to the owner-passenger of a car, when the owner-passenger is the plaintiff).

II. Damages A. Genral Categories 1. Compensatory a. Purpose: restore the Pl to pre-injury status as far as possible; compensate Pl for injuries 2. Punitive a. Quasi-crime (clear and convincing evidence) a. Purpose: punish the Df, make an example of the Df, and deter similar tortuous conduct. b. Compensatory damage required punitive damages. c. A windfall to the plaintiff, not a right (the jury has complete discretion to refrain from awarding them in any case.) d. Factors i. The reprehensibility of the defendants conduct, ii. The disparity between the actual harm caused and the amount of the punitive damages awarded, and iii. The difference between the punitives awarded and the civil penalties imposed under state law (State Farm Mutual Auto v. Campbell). e. State legislatures have broad discretion in regulating punitive damage awards, states can eliminate them entirely so they choose. f. A percentage of punitive damages award may lawfully go to the state. 3. Nominal a. Purpose: vindicate rights, makes the judgment available as a matter of record in order to prevent the Df from acquiring prescriptive rights, and carry a part of the costs of the action, the amount of the award is trivial and unimportant B. Personal Injuries 1. Special Damages (economic) a. Medical expenses i. Past medical expenses 1) Proven at trial by submitting bills or through testimony. ii. Future medical expenses 2) Must be proven by expert testimony establishing the anticipated need and predicted cost. iii. Recovery for increased risk of developing a serious condition in the future may be allowed if the Pl can prove actual exposure. iv. Sometimes Courts allow Pl to recover for medical monitoring for toxic torts. b. Lost wages (Past and future) c. Loss or impairment of future earning capacity i. If the injury is one from which the Pl does not recover and reenter the workforce. ii. Jury must first be persuaded that the injury is permanent. Than Pl must prove by expert testimony what the Pl would have earned during the Pls lifetime. iii. Even a very young Pl who would not be expected to engaged in employment until the distant future may recover for the loss of future earnings. d. Reduction to present value i. Damages awarded in lump sum to the victim. ii. The award must account for the investment value of advanced payments and the countervailing likelihood of inflation. iii. Compensation is not subject to the federal income tax. 2. General Damages (non-economic) a. Pain and suffering b. Emotional distress from legal malpractice c. Mental anguish d. Loss of function or appearance e. Litigation induced stress f. Loss of enjoyment of life (hedonic damages) 3. Estimating general damages a. Measure loss on a per-diem basis and multiply by the number of days. 4

b. Courts do not require a reduction of amount to present value. c. Reduced life expectancy usually not given. d. Pl must have been conscious/aware of the loss in order to recover. (proven by expert testimony). e. If physical injury, Jury must award damages for pain and suffering. 4. Judicial control of amounts recovered a. A trial court judge (through motion for a new trial) may disturb the jurys finding on the amount of damages only if the verdict is so excessive or so inadequate as to demonstrate that the jury acted contrary to the law-in passion or prejudice rather than according to their instructions. i. Test for disturbing a jury award 1) Maximum recovery rule: maximum amount which the jury could reasonably find, and whether that amount shocks the conscience. 2) Grossly excessive or inadequate, inordinate or outrageous. b. If Judge finds jurys award to be inadequate, than judge can set aside the verdict and i. Grant a new trial on both liability and damages ii. Grant a new trial only on the damages aspect (let liability verdict stand) c. Remittitur is a ruling by a judge lowering the amount of damages awarded. d. Additur is a ruling by a judge increasing the amount of damages. 5. Collateral source rule a. If an injured Pl receives compensation from a source, independent of the Df, the payment should not be deducted from the damages he would receive from the Df. b. Gratuitous or discounted medical services are a collateral source not to be considered in assessing the damages. (Montgomery Ward v. Anderson) c. Issue of double recovery. d. Some states have modified the common law rule to reduce amount of recovery by the amount of the collateral source or by allowing information concerning the collateral source to be admitted into evidence without indicating what the jury is to do with that information. 6. Loss of consortium a. Claim by a spouse of an injured person for loss of conjugal relations, companionship, society, household services etc. b. Claim is derivative of the injured persons c. Spousal injuries are a necessary condition for any claims of loss of consortium. 7. Plaintiffs have a responsibility to mitigate damages. a. Personal injury victims may not be allowed recover damages that they could have avoided by reasonable conduct on their part after a legal wrong has been committed by defendant. b. Defendant must show that the plaintiffs conduct in failing to mitigate damages was unreasonable (question for the jury). i. Whether, under the circumstances of the particular case, an ordinarily prudent person would do so (i.e. the duty to exercise reasonable care under the circumstances). C. Physical Harm to Property

III. Wrongful Death & Survival (2 separate c/a) a. Wrongful Death (Beneficiaries) i. Created by the death of an individual due to the tortious conduct of another, brought by one of the beneficiaries on behalf of all of them. ii. Theory of liability-must have some willful, wanton or reckless conduct w/ the negligence. iii. Damage claims for the beneficiaries (b/c they lost them) 1. Loss of support ($$) 2. Loss of services 3. Loss of society 4. Funeral expenses iv. Beneficiary defined by statute. b. Survival Statutes (Estate) i. Pre-death damages (decedents damages claims before the decedents death). Suit brought by the estate of the decedent-heirs under the will or intestacy statutes) ii. Damages 1. Personal property 2. Loss of wages 3. Pain and suffering (decedent must have been conscious) 4. Medical bills iii. Comparative fault applied in survival actions if decedent is partly liable. iv. Recovery by the estate is subject to creditors first (not the case in wrongful death statute). v. Problems of double recovery. vi. Punitive damagesdepends on who dies regarding the ability to recover. c. Wrongful Birth (Claim by parents) i. Denying parents the opportunity to abort for eugenic reasons (blindness, deafness..) 1. Doctor negligent in not informing you that your child had a defect, and you were unable to chose. ii. Typically actions against physicians (medical malpractice) 1. Must have been a test available. iii. Damages 1. Medical bills (reasonably related to the action)-unexpected but related to the condition. iv. Policy considerations: right to life v. condoning that right by allowing for a c/a. d. Wrongful Life (claim by child) i. Life is incommensurable ii. Almost universally rejected. iii. Damages 1. The childs life (difficult to measure) D. Wrongful conception iv. No post-conception claims. v. Botched sterilization vi. Damages 1. Recovery of the cost of the operation.

B. Immunities i. Bright line rules; based on the defendants status b. Interspousal Immunity Doctrine i. Spouses are not immune from liability in personal injury cases. ii. Common law rule of spousal immunity was based on the supposed legal unity of man and wife, and no longer comport with modern realities. iii. Limitations 1. Immunity does not extend to intentional torts or auto accidents (states usually allow these accidents). c. Parental Immunity i. General Rule: a step-parent is shielded by parental immunity from liability for negligent supervision of the child only if obligated to financially support a stepchild under the family support statute, an obligation that generally arises when a stepparent is married to the childs primary residential parent and lives in the same household with the child. ii. Scope of parental responsibility=that which is within parental discretion. 1. ExceptionCalifornia statute imposing scope as that of a reasonable parent std. iii. Policy considerations: protection of the child vs. non-interference with the family unit. iv. Although stepparent immunity does not exist solely by virtue of marriage to an injured childs biological parent, because a stepparent standing in loco parentis has a common law duty to support and educate a child to the same extent as a biological parent, he or she is also entitled to parental immunity for negligent supervision (Zellmer v. Zellmer). v. Limitations 1. Immunity does not extend to automobile torts. d. Charitable immunities i. Common law: charitable organizations were immune from tort liability. ii. 2 theorys for charitable immunity 1. Trust fund a. Funds given to charities for charitable purposes cannot be used to pay judgments. 2. Implied waiver a. Persons who accept the benefit of the charity implicitly agree they they will not sue the charity for torts. iii. Charitable immunity has increasingly been abrogated. 1. Nongovernmental charitable institutions are liable for their own negligence and for the negligence of its agents and employees acting within the scope of their employment. (Abernathy v. Sisters of St. Mary). 2. You can explicitly state on your funds given to the charity that the money is not to be used to satisfy judgments. e. Employer immunities f. State & Local Government i. General organization 1. Sovereign Immunity: Government not liable (has been abrogated by nearly every jurisdiction). 2. Waiver: liable (i.e. FTCA, OTCA) a. Federal Torts Claims Act (FTCA): statutory exception that shields the government from civil liability for claims based upon the exercise or performance of a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused. b. Ministerial vs. discretionary function i. Government not liable for torts liability if exercising a discretionary function. 1. Discretionary function=policy making decisions. 2. Ministerial acts= govt conduct which implements or executes policy decisions. (e.g. maintenance of a government building or automobile). 7

3. Consider political, economic, and social factors to help determine whether discretionary or ministerial. 3. Exception to the waiver (when claims arise out of): not liable. a. e.g. Federal Govt has retained immunity for intentional torts and also strict liability. ii. Municipal Government 1. Cities are immune from liability for the negligent failure to provide adequate police protection. (Riss v. NY). a. Exception: Municipalities are not immune from liability when they voluntarily assume a duty to provide police protection. (Delong v. Erie County, where a city has assumed a duty to a particular person and exposes them, without adequate protection, to the risks which materialize into actual losses, the City is not subject to immunity). i. Reliance on the 911 operator + failure to continue would have been tortious not to continue (actively worked an injury). (Delong v. Erie County/ Riss v. NY). 2. Governmental function v. proprietary function) a. While governmental functions could be immune, proprietary functions were not. b. Courts impose liability when the city or town engaged in activity that normally was carried out by the private sector of the economy and reserved the immunity for traditional governmental functions like administering elections, providing a judicial system, exercising police powers, etc. c. For the purpose of collecting revenue.. (Look to the use for which it is collected) d. Tax-Governmental function i.e. governmental immunity e. Revenue- Proprietary function i.e. no immunity and liable to the same extent as any other citizen Df. g. The United States h. Public Officers i. Immunity protects government employees from tort liability incurred in the course of performing their official functions. ii. Absolute immunity: within the scope of office and within the scope of his/her duty. (e.g. judges and legislators) iii. Qualified immunity: in some, it depends upon whether the harmful action was taken in good faith, and in others it depends on whether the official had a reasonable basis for taking the action. iv. Official immunity is available only with respect to acts that are discretionary as opposed to ministerial in nature.

C. Owners and occupier of land i. Is the condition natural or artificial? 1. Static condition=A static condition is one that does not change and is dangerous only if someone fails to see it and walks into it. If nothing obstructs the invitee's ability to see the static condition, the proprietor may safely assume that the invitee will see it and will realize any associated risks. 2. Artificial condition= landowner altered their land. ii. Are the individuals threatened by the risk of harm on/off the property? iii. What is the status of the individual who is upon the landowners property? iv. Policy issues=over burdensome on landowners. b. Outside the Premises i. General rule (natural conditions): no duty to protect those who are off his/her property from the dangerous natural conditions of his/her property. 1. Exception (trees): landowner has a duty to inspect for the discovery of defects in trees. (Landlord is liable for negligence if he knows that the tree is defective and fails to take reasonable steps to avoid unreasonable risk of harm. Also, a landowner has the reasonable duty to inspect for discovery of defects in trees.) a. Taylor v. Olson (natural condition which poses a risk to an individual who is off the landowners premises). ii. General Rule (artificial conditions): where there are artificial conditions on the property, the owner must exercise reasonable care to protect those who are outside of the premises. 1. Scope of duty: reasonable precautions against those risks that are inherent in the activity. 2. Salevan v. Wilmington Park; a landowner who knows or should know of dangerous conditions on his/her property must take reasonable precautions to prevent injury to others using roadways adjacent to his/her land. iii. Landowner owes a duty to a traveler who accidently falls into excavations on land immediately adjoining the highways even to those who deviate intentionally from the highway for some casual purpose connected with travel. 1. No liability as to dangers a considerable distance from the highway. 2. When the land has a deceptive appearance of being a continuation of the public way, a duty may be imposed on the landholder to guard a trap or excavation even though the hazard is actually a considerable distance within private property. (Notes Pg. 499). c. On the premises i. Trespassers 1. General Rule: Landowner owes no duty of care to a trespasser unless the landowner has notice (actual or constructive) of the trespasser. a. Exception (discovered trespasser): Where a land occupier actually is aware of the presence of a trespasser and knows that the trespasser is approaching a nonevident artificial (human made) condition, the land occupier is obligated to warn the trespasser if there is danger of serious bodily harm or death. b. Exception (frequent trespassers on a very limited area of the land): If the land occupier is on notice of frequent trespassing, or has reason to know of such, an obligation to warn of hidden dangers known to the land possessor and risking serious injury or death may be imposed c. Exception (tolerated intruder): landowners continued toleration of the trespasses amount to permission to use the land, so that the intruder becomes a licensee. d. Exception (imperiled trespassers); duty of care owed by landlord for dangerous conditions obvious to the landowner and trapped trespassers in peril. (Notes Pg. 503). i. Sheehan v St. Paul; artificial condition (tracks), individual is on the landowners premises, individual is a trespasser. (Obligation of the railroad to use reasonable care arises at the time of discovery of the trespasser). ii. Licensees (personal) 9

1. Person who enters upon the property of another w/ permission but for ones own personal purposes. 2. Owner owes the duty to: a. Warn of hidden dangers that are unknown to the licensee, but known to the owner. b. Warn of dangerous, latent conditions on his premises that the licensee if likely to encounter. c. Use reasonable care towards licensees that are not only discovered, but to those whose presence might be reasonably anticipated. d. If they had reason to know about the unsafe condition. (Restatement) iii. Invitees (business) 1. Person who enters the premises of anothers property in furtherance of that persons business or economic interest. 2. Owner owes the duty to exercise reasonable care in keeping the premises reasonably safe. a. Scope of duty: owner has to reasonably inspect the premises for dangerous conditions, and reasonably remove the conditions so as to make the premises safe. 3. An individual, entering a place of business open to the public, need not make a purchase in order to be considered an invitee. (Campbell v. Weathers). iv. Change of status of an individual who is on a landowners property 1. One is an invitee as long as he/she stays within the scope of the invitation as well as within the physical area of invitation. a. Pl who went to the back of the store ceased to be an invitee and became a licensee, because he was there with the consent of the shop owner, and was there for the furtherance of his own purpose. v. Persons outside the established categories 1. Landowners have a duty to exercise a higher standard of care toward children. (Furthers societies interest in protecting children from serious injury.) 2. Children (trespassers) a. Attractive Nuisance Doctrine i. When a landlord sets before young children a temptation that he has reason to believe will lead them into danger, he must use ordinary care to protect them from harm. 1. Must be a conditions dangerous to children outside the premises 2. Child must be lured or enticed onto the premises b. Artificial Conditions Highly Dangerous to Trespassing Children (Restat.) i. A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if: 1. The place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and 2. The condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and 3. The children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and 4. The utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared w/ the risk of children involved, and 5. The possessor fails to exercise reasonable care to eliminate danger or otherwise to protect the children. 3. Children (licensees) 10

a. Landlord has an obligation to inform a child licensee about a risk when there would be no duty with regard to an adult. (if child is very young, a court may deem a mere warning as insufficient protection). 4. Persons privileged to enter irrespective of landowners consent a. Public Employees i. Sanitary purpose (sanitary & safety inspectors)--invitees 1. Public employees entering for a purpose connected w/ defendants business, and are essential to it, since w/out them it could not legally be carried on. ii. Community purpose (firemen & policemen)licensees 1. The frequency of sanitary & safety inspectors visits are far more than those of police/firemen. Therefore, you can anticipate the sanitary/safety inspectors while not so much w/ the firemen/police. 2. If defendant knows they are present, he must warn them of known dangers which they are unlikely to discover. 5. Rejection or merging of categories a. Where the occupier of land is aware of a concealed condition involving in the absence of precautions an unreasonable risk of harm to those coming in contact with it and is aware that a person on the premises is about to come in contact with it, the trier of fact can reasonably conclude that a failure to warn or to repair the condition constitutes negligence. b. Minority of jurisdictions have rejected the common law status approach and replaced it w/ a general reasonable person std. (Rowland v. Christian). i. This unitary standard permits more cases to get to the jury than the common law approach.

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IV. Strict Liability 1. Liability w/out fault (D liable even though no intent or negligence on Ds part) A. SL for Injuries Caused by Animals (diff. btw animals=control) a. Trespassing Animals i. The owner of livestock or animals is liable for property damage caused by them if they trespass on anothers land. This liability is strict even though the owner exercises utmost care to prevent the animals from escaping, he is liable if they do escape and trespass. b. Non-trespass liability i. Wild Animals=A possessor of a wild animal is subject to liability to another for harm that results from a dangerous propensity that is characteristic of wild animals of that particular class. 1. SL for wild animals reduced to possession or imputes non-native animal. 2. Wild animals you bring under your control=SL. 3. Many jurisdictions have been reluctant to extend SL this far, and opt instead for a negligence standard. a. If wild animal injures a person at a place classified as a zoo or public display, than Courts may limit the standard of SL or even to just plain negligence b/c you are serving the public good. ii. Domestic Animals=Keeper of domestic animals are liable for injury caused by the animal only where the possessor knew or should have known of the animals vicious disposition. 1. A possessor w/ actual or constructive knowledge of the animals vicious tendencies will be SL for harm, and no measure of care in its keeping will excuse him. 2. Pl must prove dangerous propensity. B. SL for Abnormally Dangerous Activities a. In such an action, the Pl must show that as to the activity: i. The risk of great harm should defendants safety efforts fail; ii. The virtual impossibility of defendants elimination of the risk of harm even w/ the upmost care; and iii. A resultant harm to Pl caused by the very hazards the risk of which led to describing the defendants conduct as abnormally dangerous in the first instance. b. General Rule (R. 219)=One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land, or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm. i. In determining whether an activity is abnormally dangerous, the following factors are to be considered (R. 520): 1. High degree of risk of some harm to others; Existence of a high degree of risk of harm to persons or property of others; 2. Harm that results is likely to be serious; Likelihood that the harm that results from it will be great (magnitude of that harm); 3. Risk cannot be eliminated by the exercise of reasonable care; Inability to eliminate the risk by the exercise of reasonable care (inevitability of some risk irrespective of precautionary measures that might be taken); 4. The activity is not common; Extent to which the activity is not a matter of common usage (ordinary nature of the activity in the community in which it is found); a. The activity is not appropriate for the place where it is carried on; Common usage=natural v. unnatural use. 5. The danger outweighs the activitys value to the community; Extent to which its value to the community is outweighed y its dangerous attributes. (The activitys value to the community in comparison to the risk of harm created by its presence). ii. Liability will not lie unless Pl makes the additional showing that the risk involved cannot be eliminated through Dfs exercise of reasonable care. iii. The activity must have been in the control of the defendant at the time of plaintiff's injury. iv. Limitations 1. Scope of Risk: Type of harm contemplated--limits the applicability of the strict liability remedy to injuries involving the kind of harm, the possibility of which makes the activity abnormally dangerous. 12

a. Limiting proviso: this SL is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous. (Was the risk of causing harm of the kind here experienced the kind of risk that has been considered to make the activity ultra hazardous?if no, than SL does not apply). 2. Abnormally sensitive activity by Plaintiff: Foster v. Preston Mill Co. (blasting causes Mink to eat her kittens, but no liability.) c. Defenses i. Contributory negligence no defense by D. (usually will not bar P from her strict liability recovery.) ii. Assumption of the risk 1. Pl knowingly and voluntarily assumed the risk (Knowledge of the risk and voluntarily encountered risk) C. SL for Workers Compensation a. General Rule: Workers compensation statutes compensate the employee for on-the-job injuries without regard either to the employers fault of the employees. i. Employer is liable for on-the-job injuries even though these occur completely without fault on the part of the employer. ii. Scope of coverage 1. Even if employee is contributory negligent, the statutory benefits are not reduced at all. 2. Statute covers all injuries arising out of and in the course of employment. Thus, activities which are purely personal (i.e. injuries suffered while employee is driving to or from work) are typically not covered by statute. 3. Exclusive remedy: the workers comp statute is the employees sole remedy against the employer. The employee gives up his right to sue in tort, ad does not recover anything for pain and suffering.

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V. Product Liability A. Development of Theories of Recovery 1. Negligence i. A manufacturer of any product capable of serious harm if negligently made owes a duty of care in the design, inspection, and fabrication of the product; a duty owed not only to the immediate purchaser but to all persons who might foreseeably come into contact with the product.(MacPherson v. Buick). 1. Duty of inspection to all foreseeable plaintiffs. The fact that Pl was a remote purchaser, or even a bystander, does not prevent them from a negligence recovery against a negligent manufacturer. 2. Warranty i. Express Warranties 1. The breach of an express warranty is actionable in tort, even absent privity of contract, if a purchaser of ordinary experience and reasonable prudence could not have discovered the defect. 2. Express warranties may arise via: (1) a statement of fact or promise about the goods; (2) a description of the goods (e.g. shatterproof glass); and (3) the use of a sample of model (e.g. Shopsmith) 3. Innocent Misrepresentation Rule=One, who engaged in the business of selling chattels, who by advertising, labels, or otherwise, makes to the public a misrepresentation of a material fact concerning the character or quality of the chattel sold by him is subject to liability for physical harm to a consumer of the chattel caused by justifiable reliance upon the misrepresentation, even though (a) it is not made fraudulently or negligently, and (b) the consumer has not bought the chattel from or entered into any contract relation with the seller. a. Rationale=Df has the control. b. Scope of liability: expressions must be sufficiently specific to subject them to SL claims. ii. Implied Warranties 1. Implied warranty of merchantability (seller must be a merchant) a. Warranty imposed on all sales transactions that the thing sold is reasonably fit for the general purpose for which it was manufactured and sold. i. Requirements: 1. The seller is the merchant of such goods, and 2. The buyer uses the goods for the ordinary purposes for which such goods are sold ii. Scope of warranty: extends to all foreseeable users of the product, not merely those in privity of contract with the seller. iii. Warranty of merchantability cannot be disclaimed for both contract and tort purposes. b. Policy i. Sellers are generally better suited than buyers to determine whether a product will perform properly. ii. Holding the seller liable for a product that is not fit for its ordinary purpose shifts the costs of nonperformance from the buyer to the seller. This motivates the seller to ensure the product's proper performance before placing it on the market. iii. The seller is better able to absorb the costs of a product's nonperformance, usually by spreading the risk to consumers in the form of increased prices. 2. Implied warranty of fitness for a particular purpose (no merchant requirement) a. Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the sellers skill or judgment to select or furnish suitable goods, there is an implied warranty that the goods shall be fit for such purpose. i. Requirements 14

1. Buyer must rely on the sellers skill or judgment to select or furnish suitable goods. 2. Seller must have reason to know of the buyers purpose and that the buyer is relying on the sellers skill or judgment. (must be communicated to the Df). b. Policy i. Protects the buyer ii. Contracts of Adhesion--Unequal bargaining power between seller and buyer 3. Strict Product Liability in Tort i. A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being. (Greenman v. Yuba). 1. S.L. imposed to relieve injured consumers from problems of proof inherent in pursuing negligence and warranty remedies. 2. S.L. seeks to shift the burden of loss on manufactures rather than on injured persons who are powerless to protect themselves. ii. Restatement (Second) of Torts 402A (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (i.e. if altered by retailer, manufacturer not liable) (2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation & sale of his product, & (b) the user or consumer has not bought the product from or entered into any contractual relationship with the seller. 1. Requirements for strict liability doctrine under the Restatement (second): a. D must be a seller b. D must have been in the business of selling products of this type c. The product must have been sold in a defective condition d. The product must have ben expected to, and did, reach the consumer without substantial change in its condition; and e. The product must have been the cause in fact, and the proximate cause of the damage to Pl. iii. Applies to non-manufacturers who sell i.e. retailers and it doesnt matter that D used all possible care in designing and manufacturing the product. B. Product Defects 1. Restatement (3rd) i. 1. Liability of commercial seller or distributor for harm caused by defective products: One engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm caused by the defect. ii. 2. Categories of Defect: A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, a design defect, or is defective because of inadequate warning labels or instructions. 1. Manufacturing defects---A product contains a manufacturing defects when the product departs form its intended design even though all possible care was exercised in the preparation and marketing of the product. (Rest. 3d) a. Standard of proof--Pl has to prove that the product deviated from the sellers design or form the sellers other products of the same design, not what specific conduct of the manufacturer led to that defect. 2. Design defects---A product is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design and the alternative design renders the product not reasonably safe. a. Negligence based ; risk-utility standard 15

b. A verdict for the Plaintiff in a design defect case is the equivalent of the determination that an entire product line is defective. 3. Warnings defects/ failure to warn---A product is defective because of inadequate warnings or instructions when the foreseeable risk of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, and the omission of the instructions or warnings renders the product not reasonably safe. a. P must prove only that the D did not adequately warn of a particular risk that was known or knowable in light of the generally recognized and best prevailing scientific and medical knowledge available at the time of manufacture and distribution. b. Scope of warning=adequate to inform a consumer on whether and how to use the product such as to call for a true choice of judgment. c. Risk of harm, foreseeability, severity, obviousness of danger. 2. Tests used to prove defect i. Risk-utility analysis 1. Comparison of the utility of the product w/ the risk of injury that it poses to the publice.g. Evaluate the relative need of the product. a. Products that are so dangerous and of such little utility=manufacturer liable for harm that results, even if no alternative exists. b. When the risk of harm outweighs the utility of a particular design, then in choosing the particular design and cost tradeoffs, the manufacturer exposed the consumer to greater risk of danger than he should have. c. A manufacturer may have a duty to make products pursuant to a safer design even if the custom of the industry is not to use that alternative. 2. Factors a. The usefulness and desirability of the productits utility to the user and to the public as a whole. b. The safety aspects of the productthe likelihood that it will cause injury, and the probable seriousness of the injury. c. The availability of a substitute product that could meet the same need and not be as unsafereasonable alternative (Ps burden) d. The manufacturers ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility. e. The users ability to avoid danger by the exercise of care in the use of the product. f. The users anticipated awareness of the dangers inherent in the product and their avoidability, because of general public knowledge of the obvious condition of the product, or the existence of suitable warnings or instructions. g. The feasibility on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance. h. Additional factors i. State-of-the-art defense (D burden) 1. The existing level of technological expertise and scientific knowledge relevant to a particular industry at the time a product is designed. 2. Standard of care=what is known (actual or constructive knowledge) in the scientific community. 3. Negligence standard of care=foreseeability, reasonable care. ii. Open and obvious danger 1. Obviousness of the danger is not a complete bar to recovery, but may be considered. a. Obvious danger + product of high utility/need= ii. Comparison of the risk and utility of the product at the time of trial iii. Consumer expectations test (what a reasonable consumer would expect) 1. The failure of a product to preform safely may be viewed as a violation of the reasonable expectations of a consumer. 16

iv. Risk-utility and consumer expectations test C. Proof D. Defenses 1. Plaintiffs Conduct 2. Preemption and Other Governmental Actions/ i. Has the FDA established specific federal requirements that apply to the a particular device? ii. Is their a particular state requirement w/ respect to the medical device? iii. Does the state claim create requirements that are different from, or in addition to, the specific federal requirements?

Strict Products Liability (Emanuel Crunch time supplement) Definition to use: A seller of a product is liable without fault for personal injuries (or other physical harm) caused by the product if the product is sold in a defective condition. Requirements: o D must be a seller o D must have been in the business of selling products of this type o The product must have been sold in a defective condition o The product must have been expected to, and did, reach the consumer without substantial change in its condition o The product must have been the cause in fact, and the proximate cause of the damage to P. Things to remember o Care irrelevant: it doesnt matter that the manufacturer used all possible care in designing and manufacturing the products. o Applies to non-manufacturers who sell, most notably retailers. Was the product in fact defective? o Manufacturing defect= A product contains a manufacturing defects when the product departs form its intended design even though all possible care was exercised in the preparation and marketing of the product. (Rest. 3d) o Design defect= A product is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design and the alternative design renders the product not reasonably safe. (Rest. 3d) Ds failure to include a cost effective technology-available safety feature will often be a design defect. (Ps burden-reasonable alternative.) State of the art defense (Ds burden) Pre-emption defense Unavoidably unsafe defense (if products overall benefits outweigh its overall dangers) Prescription drugs-even if the drug has rare side effects, or causes allergic reactions in a few people, as long as D gives adequate warnings and the drug produces a net benefit to some group of patients, than at least according to the 3rd Restatement the drug is not defective, and the particular P who is injured cannot recover. o Warnings defects/ failure to warn=A product is defective because of inadequate warnings or instructions when the foreseeable risk of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, and the omission of the instructions or warnings renders the product not reasonably safe. (Rest. 3d) Duty to warn of non-obvious dangers: even if the product is designed in a non-defective way, D still has a duty to warn of any non-obvious dangers. Inappropriate uses-D must warn that certain uses are not appropriate. Labeling problems o Prescription drug cases (Courts today say that virtually any risk-however smallmust be warned of.) 17

 Causation o Misuse by purchaser: If purchaser misuses a product in a way that is virtually unforeseeable, than it constitutes a superseding cause. (Foreseeable misuse is not superseding). Conscious disregard of warning: if the manufacturer warns against a particular misuse, and P (or whoever is using the product) consciously disregards the warning, it usually constitutes a superseding cause. (But Ps negligent failure to notice the warning is not superseding.) Failure to warn cases: if D can show that P wouldnt have read a warning even if one had been given (or would have ignored the warning if it had been given and P had seen it), than the failure to warn wasnt the proximate or but for cause of the accident, and D wont be liable. Defenses o Contributory/comparative negligence: Courts vary on whether they are defenses to strict product liability. The modern/ Rest. 3d view is that these defenses apply the same way as they would in a negligence cause of action. o Assumption of the risk: defense is P acted unreasonably in encountering the danger. Reasonable to ignore warning: if P is reasonable in ignoring the warning, and the warning unfairly limits the product compared with what a reasonable consumer would expect, P is probably not bound by assumption of the risk. o Compliance with safety regulations: compliance with governmental safety regulations usually not a defense. Preemption: impossibility/ frustration of legislative purpose

Lost warning booklet: If the warning booklet (or box containing the warning) is part of the package when the product leaves the manufacturer, but is lost in shipping or by the retailer, the manufacturer is protected by the when it left the defendants hand rule, except for situations where the danger is so great that a reasonable exercise of the dutyto-warn required putting the label right on the product itself instead of on packaging. State of the art defense (if danger wasnt knowable at the time of manufacture, there is no duty to warn of it). Obvious dangers: No duty to warn of dangers that would be obvious to an ordinary person.

Essay Exam Analysis Restatement (Second) of Torts 402A One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if --the seller is engaged in the business of selling such a product, and --it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (i.e. if altered by retailer, manufacturer not liable) The rule stated in Subsection (1) applies although --the seller has exercised all possible care in the preparation & sale of his product, & --the user or consumer has not bought the product from or entered into any contractual relationship with the seller. 1. Manufacturing Defect (SL)-non-conforming widget a. A product contains a manufacturing defects when the product departs form its intended design even though all possible care was exercised in the preparation and marketing of the product. (Rest. 3d) b. Standard of proof--Pl has to prove that the product deviated from the sellers design or form the sellers other products of the same design, not what specific conduct of the manufacturer led to that defect. c. Defenseproduct substantially altered after it was sold. 2. Design Defects a. Design defects-: A product is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design and the alternative design renders the product not reasonably safe. b. Ps burden=reasonable alternative design 18

c. Ds burden= state of the art defense i. Issue-whether a defendant can avoid liability by showing compliance with the state of the art at the time the product was made. ii. Requirement that the best scientific and medical technology that is practically and economically feasible at the time the product was made or marketed be utilized by the manufacturer. iii. Std=what is known (actual or constructive knowledge) in light of knowledge and technology that were available at the time of manufacturer (not at the time of trial). d. Open and Obvious Danger i. Maj- not an absolute bar to recovery but instead one consideration to include as a factor in the R-U balancing test. ii. Min- absolute defense to a design defect case e. Products that are so unreasonably dangerous and of such low utility= manufacturer liable even if there is no reasonable alternative design. f. Unavoidably Unsafe Products (prescription drugs & medical devices) i. R. 2d: The seller of such products, against with the qualification that they are properly prepared and marketed, and proper warning is given, is not to be held strictly liable for unfortunate consequences attending their uses, merely because he has undertaken to supply the public with an apparently useful and desirable product, attended with a known but apparently reasonable risk. ii. R. 3d: Seller and distributor of prescription drugs and medical devices will be liable for harm caused by defective design if the foreseeable risks of harm posed by the drug or medical device is sufficiently great in relation to its therapeutic benefits that reasonable health-care providers, knowing of such foreseeable risks and therapeutic benefits, would not prescribe the drug or medical device for any class of patients. g. Applicability to Food i. Foreign-Natural Test=vendors of food will be held liable if the injury-causing substance is a piece of glass, wire, or other substances foreign to the food. If the substance is natural, like bond fragments in meet, pits in cherries or shells in nuts, strict liability is not available and P must prove under negligence theory. ii. Consumer Expectations Test- strict liability will lie against vendors of food if the consumer of the product would not reasonably have expected to find the substance in the product. h. Allergic Reactions i. If allergic reaction to a drug or product occurs because of an individuals unusual susceptibility to an ingredient=manufacturer not liable since the product is reasonably fit for the ordinary user. ii. Most jurisdictions hold this as a failure to warn issue and impose a duty on the manufacturer to warn of possible adverse reactions only if it knew or should have known of the risk. 3. Failure to Warn (inadequate warnings) a. Obvious Danger i. Maj- no duty to warn of obvious dangers or of risks that are generally known. ii. R. 3d- no duty b/c warning will not reduce risk and may diminish significance of warnings about nonobvious defects. b. Post-Sale Duty to Warn i. Post-sale duty to warn determined by balancing factors, including obviousness of danger, its seriousness, the burden on the manufacturer to locate those who should be warned, and the likelihood of harm. c. Learned Intermediary Rule i. In cases involving pharmaceuticals, most courts hold that warnings and instructions should be provided to the physician, who is a learned intermediary between the drug company and the patient and the best person to understand the patients needs and assess the risk and benefits of a particular course of treatment. The physician will than decide which warnings to pass on to the patient in light of the patients particular condition and needs and using the physicians professional judgment. ii. Rule does not apply in situations where the manufacturer is aware that there will be no medical providers to provide learned advice or where the patient is expected to take an active role in the selection of the product. iii. R. 3d- Warnings must be given directly to patient in situation where health-care providers role is diminished by circumstances. 19

iv. Rule does not apply when product is marketed directly to consumers because direct marketing belies the premises upon which the doctrine is based. 4. Defenses a. Foreseeable Product Misuse by Plaintiff i. When plaintiff uses a product in a manner (1) unintended and (2) unforeseeable/abnormal of the use by the manufacturer, the manufacturer is not liable.

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I) Privacy Torts a) Right of Appropriation or Publicity i) The right of publicity protects the commercial interest of celebrities in their identities. P's identity may be exploited even if his name or picture is not used. b) Invasion of Privacy by Intrusion (1) Right to protect one self from having ones private affairs known to others and to keep secret or intimate facts about oneself from the prying eyes or ears of others. (i.e.-Wiretaps, electronic surveillance, gaining access under false pretenses are all intrusions.) (2) Elements (a) Intrusion into a private place, conversation or matter (b) In a manner highly offensive to a reasonable person (3) P must have an objectively reasonable expectation of seclusion or solitude in the place, conversation or data source. (4) There is no invasion of privacy where the information sought is open to the public view or has been voluntarily revealed to others. ii) Newsworthy Privilege (1) News gathering is an intergral part of news dissemination, but hidden mechanical contrivances are not "indispensable tools" of news gathering as D claims. The First Amendment is not a license to intrude by electronic means into the precincts of a person's home or office. The First Amendment does not become a license simply because a crime is suspected

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VI. Defamation A. Common Law 1. (1) A false and defamatory statement of and concerning the plaintiff that was published. 2. The falsity of the statement and damages are presumed. (Truth is an affirmative defense.) 3. D has burden of proving that the statement was substantially true.) B. Defamatory Statement 1. A statement having the tendency to harm the reputation of P by injuring a persons general character or causing personal disgrace. (Reputation that diminishes your role or succession in society). 2. Restatement: A communication is defamatory if it tends to harm the reputation of another as to lower him in the estimation of the community or to deter third person from associating or dealing with him. 3. Significant minority rule: not limited to whether right minded people would believe the statement to be defamatory, it is sufficient if a substantial and respectable minority of people would comprehend the negative opinion of P, even though other people would not have a negative opinion. 4. Ambiguous Statements: A court determines as a matter of law whether any interpretation of the communication could be construed as defamatory, while it is up for the jury to decide whether the statement in the case before it is actually defamatory. a) Is the statement capable of a different (defamatory) meaning? (judge) b) (if yes) Is it defamatory? (jury) 5. Statements not facially defamatory: P must plead extra evidence to make the statement defamatory (inducement) or to explain the particular defamatory impact/meaning conveyed by the statement (innuendo) if it is not obvious. 6. Falsity of statement (presumed) a) Substantial truth bars recovery (if its true, the Constitution forbids recovery) b) Statements of opinion cant be defamatory (but an implicit assertion of related facts can be defamatory as to those facts). C. Of and Concerning the Plaintiff 1. P must show that the defamatory communication was understood as referring to her. a) Irrelevant that the D did not intend for the statement to refer to the P. 2. If P not expressly named, P must plead colloquium to connect herself to the defamatory statement. a) Fictional characters: D will still be liable even though D intended to create a fictional character if the recipients of the communication reasonably believe that the character is really the P. b) The test is whether a reasonable person, reading or hearing the communication, would understand that the fictional character therein pictured was, in actual fact, the plaintiff acting as described. c) If only the P recognized (understood) themselves as the character=no publication= no communication=no cause of action. 3. Group Defamation a) Intensity of suspicion and numerosity (1) One who publishes defamatory matter concerning a group or class of persons is subject to liability to an individual member of it if, but only if (1) The group or class is so small that the matter can reasonably be understood to refer to the member, or (2) the circumstances of publication reasonably give rise to the conclusion that there is particular reference to the member. (Restatement). b) The law does not recognize a c/a if the class is too large (cannot spoil the reputation of an individual if your talking about all members of a group). c) If the group is small and the defamatory sting may attach to each group member, each member of the group may bring a defamation action. 4. Living Plaintiffs: P must be living (alive) in order to bring a suit for defamation. (no actionable defamation of the dead). 5. Corporate Plaintiffs: can bring a c/a where the communication tends to case aspersions on their business character, such as trustworthiness, or deters third parties from dealing with them. (defamatory language must lead to economic damages). 22

D.

Publication 1. A "publication" of defamatory matter is its communication to a person other than the plaintiff, who understands its defamatory meaning and its application to the plaintiff. To be a publication, the communication also must be made intentionally or negligently. For a communication to a 3rd party to be a publication, it must have been done intentionally or by a negligent act. a) A publication is intentional if made for the purpose of communicating the defamatory matter to a person other than plaintiff, or with knowledge that the defamatory matter is substantially certain to be so communicated. b) A publication is negligent if a reasonable person would recognize that an act creates an unreasonable risk that the defamatory matter will be communicated to a person other than plaintiff. c) There is no publication when the words are spoken by defendant directly to plaintiff, with no reason to suppose that any one can overhear, but they are in fact overheard by a concealed listener. d) When the words are spoken in so loud a voice that defendant can expect that someone may overhear, the defendant has published the defamatory imputation. e) Depending on jurisdictions; inconsistencies in conclusions (1) Yes publications when a telegraph company transmits a message or a third party orally repeats a message. (2) No publication when: (a) Postal service does not make a publication when it delivers a letter. (b) No publication by the telephone company when its system is used for communication purposes. (c) No publication of an Internet Service Provider (ISP) for emails sent through its servers. (d) ISP immunity (i) Whether an internet service provider (ISP) will be held liable depends on whether the entity was a provider (user) or a publisher (speaker) (a) Provider (immune)=information came from/was created and developed by someone else. (b) Publisher (liable)=actually supplied the data/ created or sufficiently developed the information. 2. Single Publication Rule a) Under the single publication rule, written material containing defamatory matter gives rise to only one cause of action for libel. This cause accrues at the time of the original publication, and the statute of limitation runs from that date. Is it no longer the law that every sale or delivery of libelous matter was a new publication, allowing a new cause of action to accrue. (1) Each edition of a newspaper, magazine or book is held to be one separate publication. (each broadcast and every rebroadcast over radio or TV, and each exhibition of a motion picture). (2) The number of copies of the offending publication that are published will be a factor in determining the amount of recoverable damages. However, the original publication of the defamatory material causes the statute of limitations to run. 3. Republication Rule: one who repeats a defamatory statement made by another is held to have published it, and is liable as if he were the first person to make the statement. This is true even if they indicate the source, and indicate that he himself does not believe the statement. 4. Common Law Private Individual (Gertz) Media defendant Private plaintiff 23 Public Official/Figure (NY Times v. Sullivan)

Publication Of and concerning the Plaintiff

Plaintiff

Public official or public figure

False and defamatory Statement

Presumed unless the defendant proves truth. (D has burden of proving truth)

To succeed plaintiff must prove false defamatory statement was published with some fault

Damages

Presumed

Not presumed P must prove

Plaintiff must prove actual malice (knowledge or reckless disregard) concerning the falsity of the statement. Std=clear and convincing evidence. Not presumed. (If P can prove motive or ill will, than allowed to recover punitive)

A. Pleading Defamation (Elements): a. The defamatory words b. The publication (communication of the words to a third person) c. Extrinsic facts, because of which the words were reasonably understood to convey a meaning defaming the plaintiff (inducement). d. A formal allegation that the words were spoken of and concerning the plaintiff (colloquium) i.e. in reference to the plaintiff. i. Group defamation-Numerosity/ intensity of suspicion (Neiman-Marcus v. Lait). ii. If the P is not expressly identified, the issue is whether a reader with knowledge of the surrounding circumstances could have reasonably understood that the words referred to the P. iii. The fewer the number of persons who are possessed with knowledge of the surrounding circumstances that identify the P, the less the damages that may be awarded (damages will be proportional). iv. Reference to the plaintiff need not be by name if it is reasonably understood as referring to him. (Brindrim v. Mitchell) v. A fictional publication may be libelous if a reasonable person, reading the book, would understand that the fictional character, was, in fact, a real person acting as described. vi. Publication for purposes of defamation is sufficient when the publication is to only one person other than the person defamed. (if only P recognize themselves as the characterno publication no communicationno c/a). e. An allegation of the particular defamatory meaning conveyed by the words (innuendo). f. Special damages, when necessary to the cause of action. B. Both the colloquium and the innuendo must be reasonable in the light of the words spoken and the facts pleaded in the inducement. C. Nature of a defamatory communication a. The court must initially determine whether the statement, on its face, is unambiguously defamatory or not defamatory. i. If capable of 2 meanings, one defamatory and one not defamatory, than it goes to the jury. ii. If statement bears but one interpretation, than judge decides (does not go to jury) b. Is the statement, on its face, capable of carrying a defamatory (different) meaning? c. Is the statement itself defamatory? (Jury decides, unless unambiguous than question for the judge) i. If a statement is open to two meanings, one defamatory and one not, it is for the jury to determine whether the defamatory send was the one conveyed. (Belli v. Orlando Daily Newspaper). a. Common Law Definitions i. Defamation=a communication that tends to damages the plaintiffs reputation, that is, diminish the respect, good will, confidence or esteem in which he is held, or to excite adverse or unpleasant feelings about him. ii. Libel=A civil action for libel will lie when there has been a false and unprivileged publication by letter or otherwise which exposes a person to distrust, hatred, contempt, ridicule, or obloquy or which has a tendency to injure such person in his office, occupation, business, or employment. iii. Libel per se=If the publication is false and not privileged, and is such that its natural and proximate consequences necessarily cause injury to a person in his personal, social, official, or business relations or life, wrong and injury are presumed and implied, and such publication is actionable per se. (Presumption of falsity) 24

b. An action of defamation will lie only if the statement is both defamatory and false. c. No privilege must exist as a defense to the false statement d. The statement must either expose a person to some sort of disgrace (socially), or it must tend to injure a person in his occupation (business). e. Reputation not limited to what right-minded people would think. It is sufficient that some people would think it is defamatory. (Grant v. Readers Digest). f. Defense (truth) i. Truth or substantial truth is an absolute defense. (Killian v. Doubleday & Co.) ii. At common law, the D had the burden of proving this defense. Thus, the common law raised a presumption of the falsity of all statements that were defamatory. g. Group Defamation (element D) i. If a publication defames a large group, no member of the group has standing to sue (cannot spoil the reputation of an individual if you talking about all members of a group). ii. If a publication defames each member of a small class, than any member of the class can sue. 1. Rationale-if each member were allowed to sue, it is doubtful that any particular member would be injured significantly enough to necessitate a remedy in the courts. iii. Numerosity/ intensity of suspicion=one who publishes defamatory matter concerning a group or class or persons is subject to liability to an individual member of it, if, but only if, (a) the group of class is so small that the matter can reasonably be understood to refer to the member, or (b) the circumstances of publication reasonably give rise to the conclusion that there is particular reference to the member. iv. Although size alone is not determinative, it is an important factor in determining whether the intensity of suspicion cast upon the P is sufficient to give him a right to maintain a personal action. h. Who can be defamed? i. Any living person (P must be alive). ii. No actionable defamation of the dead, since there is no living person whose reputation is affected. iii. Corporations can maintain a c/a for defamation that casts an aspersion upon its honesty, credit, efficiency, or other business or moral character (must lead to economic damages). iv. Charitable or benevolent corporation not operated for profit. v. Partnerships, or an unincorporated association, such as a labor union. i. Damages i. Slander 1. General Rule is that the P must prove special damages (i.e. pecuniary loss) unless the words spoken come within one of the four classes of slander per se. 2. Pecuniary Loss=whenever a person is prevented by the slander from receiving that which would otherwise be conferred upon him, though gratuitously, it is sufficient. (i.e. loss of a marriage, loss of hospitable gratuitous entertainment, preventing a servant or bailiff from getting a place, the loss of customers by a tradesman. ) ii. Slander per se (exceptions) 1. Imputations of major crime 2. Loathsome disease 3. Business, trade, profession, or office 4. Serious sexual misconduct iii. Libel 1. General Rule is that the P does not need to prove special damages for any libel action. iv. Re-publication Rule 1. Original publisher is liable for damages due to a republication that might reasonably have been anticipated (foreseeable) by subsequent people. 2. Party repeating the defamation is himself liable for its publication, even though he states the source.

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Defamation To determine whether a defamatory statement involves an issue of public or private concern, we must balance the states interest in compensating private individuals for injury to their reputation against the First Amendment interest in protecting this type of expression. Public concern=a state could not allow recovery of presumed or punitive damages absent a showing of actual malice. o States interest-limited o 1st Amendment-interest of the press and broadcast media in immunity from liability significant. o Rationale Immunity of media defendants requires special protection to ensure that debate on public issues will be uninhibited, robust, and wide-open. When the alleged liable falls outside these especially important categories, the Constitution permits states significant leeway to compensate for actual damage to reputation. Private concern o State interest-strong and legitimate o 1st Amendment-not substantial o Rationale Private persons (1) have not voluntarily exposed themselves to increased risk of injury from defamatory statements, and (2) they generally lack effective opportunities for rebutting such statements. Gertz v. Welch-1st Amendment prohibited awards of presumed and punitive damages for false and defamatory statements unless the plaintiff shows actual malice. (knowledge of falsity or reckless disregard for the truth). Public Figures (1) Limited (vortex figures) that have thrust themselves into a public controversy (2) Universal (unlimited) Public Officials: Persons who have or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.

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Defamation Common Law (F. PADS) 1. Defamatory Statement by the defendant, tending to harm plaintiffs reputation in a respectable segment of the community; 2. Of or concerning the plaintiffa reasonable reader, listener, or viewer would understand that the defamatory statement referred to the plaintiff; 3. Publicationnegligently or intentionally communicated to at least one 3rd party capable of understanding the statement; 4. * Damage to reputation (presumed) 5. *Falsity(presumed, defendant had the burden to prove the statement was true) Defamatory Statement Innuendo and Inducement-If not defamatory on its face, P must plead to prove such additional facts as inducement and establishes the defamatory meaning by innuendo. Of or concerning the plaintiff Colloquium-If there is no clear reference to the P contained on the face of the statement, P required to introduce additional evidence of facts that would lead a reasonable reader, listener, or viewer to perceive the defamatory statement as referring to the P. Group Defamation o All members of small groupeach member can establish by proving they are a member of the group. o All members of big groupno member can establish a c/a. o Some members of small groupa member can recover if they establish a reasonable person would view the statement as referring to the P. Publication Intentionally or negligently communicating the defamatory statement o Negligent publication=where the D does not intend to communicate the statement to a third party, but it was foreseeable that a communication would occur. o Intentional publication=only need to show an intent to publish, not an intent to defame (irrelevant whether D knew or had reason to know that P even existed or that the publication was defamatory). To at least one 3rd party (not the one defamed) Who is capable of understanding the statement and its defamatory context. Damages Special Damages=pecuniary losses caused by harm to plaintiffs reputation. o Loss of a job o Loss of a gift o Loss of a business o Any firm pecuniary expectation General Damages (presumed)=reflect harm of a non-pecuniary nature. o Humiliation o Mental anguish o Harm to reputation with no financial repercussions. Common Law privilege--Fair comment privilege of criticism of public officers and their official conduct.

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Common Law

(NY Times v. Sullivan) Public P vs. Media D

Public concern Media D

(Gertz) Private P vs. Media D

Public concern Media D Private Figure P must prove falsity Some fault

(Dun & Backstreet v. Greenmoss)

(Philladelphia Newspapers v. Hepps) Private P vs. Public D

Public concern

1. Defamatory Statement that was Published 2. Of and Concerning the P 3. False

Private concern

Plaintiff

Public official/figure P must prove falsity (changes C.L.) Actual malice

Private

Private

4. Fault

Presumed unless D proves truth Strict liability

P must prove falsity

5. Damages

Presumed if liable or slander per se

Presumed

Some fault proven=da mages not presumed. Actual malice proven=pre sumed, general, and punitive damages.

Looks like State C.L. persists even if SL Presumed (punitive damages)

Constitutional Constraints Falsity o Public officials & public figuresactual malic required o Private Persons need not prove malice, except if the statement involves a matter of public concern. Public Officials/ Figures must prove fault by Actual Malice. P cannot recover in a defamation suit relating to his official conduct in the absence of clear and convincing proof that the statement was made with actual malice. Actual Malice=knowledge that the statement was false, or reckless disregard as to its truth or falsity. o Reckless conduct--Subjective standard, not measure by the reasonably prudent person or by whether a reasonable person would have investigated before publishing. There must be a showing that the D in fact (subjectively) entertained serious doubts as to the truthfulness of his publication. o Spite, hatred, ill will or intent to injure the P is not enough. Public Officials= the test to determine if public official is whether the position in government has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all governmental employees. Public Figures (justified b/c public figures generally have access to the media to counteract false communications and because they have assumed the risk of reputational harm by involving themselves in issues of importance.) 1. All purpose (unlimited) public figures=where the person has achieved such pervasive fame or notoriety that he becomes a public figure for all purposes and contexts. 2. Limited Public Figures= a person who injects themselves into a controversy (thrusts themselves into it)

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Nature of a Defamatory Communication Defamation=communication that tends to damage the plaintiffs reputation, that is, to diminish the respect, good will, confidence or esteem in which he is held, or to excite adverse or unpleasant feelings about him.). Defamatory Statement If a statement is open to two meanings, one defamatory and one not, it is for the jury to determine whether the defamationary sense was the one conveyed. The court must initially determine whether the words are capable of more than one interpretation. o If not, than Judge determines whether the statement was defamatory. o If the common reader of the publication could interpret the statement in more than one way, and if at least one of the interpretation is defamatory, than the jury must determine whether the statement was in fact defamatory. Grant v. Readers Digest Assn-a statement may be defamatory if it injures a persons reputation in the minds of some people, even if these people are not right thinking. (some people goes to how much damage you get). Neiman-Marcus v. Lait- where the group or class defamed is large, none can sue even though the language is inclusive. Where the group or class defamed is small, and each and every member of the group or class is referred to, then any individual member can sue. Intensity of suspicion cast upon the plaintiff & numerical approach to group libel. o Group Defamation: one who publishes defamatory matter concerning a group or class of persons is subject to liability to an individual member of it if, but only if, (a) the group or class is so small that the matter can reasonably be understood to refer to the member, or (b) the circumstances of publication reasonably give rise to the conclusion that there is particular reference to the member. Bindrim v. Mitchell-a fictional publication may be libelous if a reasonable person, reading the book, would understand that the fictional character, was, in fact, a real person acting as described. o When P not expressly named in publication: reference to the plaintiff. Need not be by name if it is reasonably understood as referring to him. But it words are not reasonably understood to refer to the plaintiff, there is no defamatory imputation identifying the plaintiff. Libel and Slander Libel=the publication of defamatory material by written or printed words, or by its embodiment in physical form, or by any other form of communication which has the potentially harmful qualities characteristic of written or printed words. Slander= the publication of defamatory matter by spoken words, transitory gestures, or by any form of communication other than those considered as libelous. Radio and TV broadcasts are treated as libel rather than slander (regardless of whether the statements are adlibbed or read from a script) because of the potential to reach as large an audience as a written publication, and the ability of a defamed person to be harmed even more by a broadcast than by a written publication. Damages (C.L.)-Damages for libel and slander per se were presumed. Plaintiff was required to prove special damages if slander. (Special damages=actual damage to reputation and resulting pecuniary loss). Republication Rule: original publisher is liable for damages due to repetition that might reasonably have been anticipated. The party repeating the defamation is himself liable for its publication even though he states the source and even though he states that he does not believe the imputation.

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PRIVACY TORTS *For exam: --Know the elements for each of the 4 types of privacy torts --than you can discuss the constitutional overlay as a defense i.e. Newsworthy Privilege (refer to the first case Dickerson v. Dittmar as an example for how to do this analysis.) 1. Right of Appropriation or Publicity Elements: a) Defendant used the plaintiffs name or likeness b) Use of the plaintiffs name or likeness was for the defendants own purposes or benefit, commercially or otherwise c) *Defendant sought to take advantage of the plaintiffs reputation, prestige, social, or commercial standing, or any other value attached to the plaintiffs name, likeness, or identity.* (COMMERCIAL EXPLOITATION- if in Restat. Juris.) d) Plaintiff suffered damages e) Defendant caused the damages incurred First Amendment Privilege Permits the use of a Ps name or likeness when that use is made in the context of, and reasonably relates to, a publication concerning a matter that is newsworthy or of legitimate public concern. Where the appropriation is used for primarily commercial reasons, however, rather than for communicating news, the privilege does not attach. If something is a matter of public concern, than it is deemed noncommercial. Commercial Speech=communication (such as advertising and marketing) that involves only the commercial interests of the speaker and the audience, and is therefore afforded lesser 1st amendment protection than social, political, or religious speech. Newsworthy Privilege Privilege extends to Dfs use of Ps name for the purpose of communicating news (vs. for the purpose of marketing a product or service) Court must determine whether the character of the publication is primarily commercial (privilege does not apply) or noncommercial (privilege applies). Under this test, an article that has commercial undertones may still be protected if it concerns a legitimate matter of public concern. It is the content of the speech, not the motive of the speaker, which determines whether particular speech is commercial (privilege does not apply). A magazine or newspaper article is protected despite the fact that a publisher may publish a particular article in order to make a profit. Dfs speech is protected even if he intends it to result in profit to him, so long as the contents of the speech qualify for protection. The fact that a Dfs reason for publishing an article is his own commercial benefit does not render the speech commercial. Notes after case (Dickerson v. Dittmar) Most of the cases have involved advertising, or pictures accompanying an article sold; but other forms of commercial appropriation have resulted in liability. o Use of name in title of corporation o Impersonation to obtain secret information o Motion picture based on incident in life of plaintiff, in which an actor represented him o Plastic surgeons use of before and after photographs to promote business o Publicizing plaintiffs name and identities to advertise pornographic videos on the internet. Privacy tort of Misappropriation (4 elements)= deals with personal privacy violated by the misappropriation of plaintiffs likeness, name, etc. (Damages sought=emotional distress, mental anguish, non-pecuniary) Right of Publicity (5 elements- commercial exploitation)=Restatement jurisdiction. If this element were always required, than only celebrities would ever have a c/a. (Damages sought=commercial , pecuniary damages). 30

2. Invasion of Privacy by Intrusion Elements a) Intrusion into a private place, conversation, or matter (expectation of privacy) b) In a manner highly offensive to an objectively reasonable person (manner of intrusion) First Amendment Privilege In order to negate the offensive element of the intrusion tort, Df must show that the claimed intrusion, even if it infringed on a reasonable expectation of privacy, was justified by the legitimate motive of gathering the news. Sanders v. ABC Inc. (hat in camera case) Issue=Are conversations overheard by other employees at work subject to a limited expectation of privacy? Held=In an office or other workplace to which the general public does not have unfettered access, employees may enjoy a limited, but legitimate, expectation that their conversations and other interactions will not be secretly videotaped by undercover television reporters, even though those conversations may not have been completely private form the participants coworkers. Intrusion into a private place, conversation, or matter (expectation of privacy). When the intrusion occurs in a public place, capable of observation by others, there is no reasonable expectation of privacy. Element is proven only if the Pl had an objectively reasonable expectation of seclusion or solitude in the place, conversation or data source. Pl must show that the Df penetrated some zone of physical or sensory privacy surrounding, or obtained unwanted access to data about, the Pl. Not met when the Pl has merely been observed, or even photographed or recorded, in a public place. Its the trapping (not the publication of the communication) that we are interested in. Public v. Private o Public place (i.e. restaurant)=no reasonable expectation of privacy against the outside world. (Shulman case, pp. 991). o Private place= In Sanders, Ct held a workplace to be considered a private place. Employees have an expectation of privacy against the outside world in their communications even if some of them may have been overheard by those involved in the workspace, but not by the general public. In a manner highly offensive to an objectively reasonable person (manner of intrusion) Objective reasonable person=Objective standard, context important. Manner tied to policy reasons/balancing o Policy: strike balance btw the Pl that is harmed and the Df that caused the injury. o Manner in Sanders=covert camera in a hat at a psych clinic is highly offensive to a reasonable person. (vs. hat camera while walking down Lincoln Road=not highly offensive manner b/c in a public place). Context matters! o In the workplace, as elsewhere, the reasonableness of a persons expectation of visual and aural privacy depends not only on who might have been able to observe the subject interaction, but on the identity of the claimed intruder and the means of intrusion. o A person who lacks a reasonable expectation of complete privacy in a conversation, because it could be seen and overheard by coworkers (but not the general public), may nevertheless have a claim for invasion of privacy by intrusion based on a TV reporters covert videotaping of the conversation. o If in a public place there is no such thing as an intrusion in a highly offensive manner b/c people have no expectation of privacy in such a context. o Food Lion v. Capital- Plaintiff supermarket chain had a c/a in trespass where defendant had breached their duty of loyalty by secretly videotaping in plaintiffs non-public areas to which they had fraudulently obtained entry.)

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