Intentional Torts s1

TORTS TURLEY – FALL 2011 A TORT IS THE IMPOSITION OF RISKS OR COSTS ON ANOTHER INDIVIDUAL WITHOUT CONSENT OR CAUSE, IN VIOLATION OF A SOCIALLY DEFINED, REVOLVING STANDARD OF SOCIAL CONDUCT.

INTENTIONAL TORTS

INTENT: Actor desires to cause the consequences of his act, or believes that the consequences are substantially certain to result from it (1) Classic intent: D intends a result (2) Substitutes for classic intent (a) Substantial certainty of the result (Garret v. Dailey) (b) Violation of rules (the natural consequence of which is the injury, Vosburg v. Putney) (c) Transferred intent: substitute the intent toward a third party  You have to establish that there was intent running from A to B before you can transfer it to C  Does not apply to intentional infliction of emotional distress

BATTERY: Acts intending to cause a harmful or offensive contact with the person or a third person, or imminent apprehension of such a contact, and a harmful contact with the person directly or indirectly results. ELEMENTS: (1) D acts intentionally (2) to cause contact with P (3) that is harmful or offensive  Objective (reasonable person) standard  Harmful: causes physical impairment, pain, or illness  Offensive: offends a reasonable sense of personal dignity CONSEQUENCES: Liable for all consequences, even if they are unforeseeable (Vosburg)

ASSAULT: Acts intending to cause a harmful or offensive contact with the person or a third person, or an imminent apprehension of such a contact, and the other is thereby put in such imminent apprehension ELEMENTS: (1) D acts intentionally  Attempted battery = completed assault (2) to cause a harmful or offensive contact or put P in imminent apprehension of such a contact  Words alone are not enough unless there is some contact  Conditional threats are generally not actionable (Tuberville v. Savage) (3) and P is reasonably placed in imminent apprehension of such a contact  Objective (reasonable person) standard  Imminent apprehension: believe the act is capable of immediately inflicting the contact; have to be aware of it

1 TORTS OUTLINE FALL 2011 FALSE IMPRISONMENT: Acts intending to confine the other within boundaries fixed by the actor and his act directly or indirectly results in such a confinement of the other and the other is conscious of the confinement or is harmed by it ELEMENTS: (1) D acts intentionally (2) to confine the other within boundaries  Does not need to be within 4 wlls  Imminent threats are false imprisonment  Such threats don’t only have to be against D  If movement is only restricted, P is not confined (Bird v. Jones) (3) D’s act results in confinement of P (4) P is conscious of or harmed by the confinement SHOPKEEPER’S PRIVILEGE (Coblyn v. Kennedy’s, Inc.): Suspected shoplifters may be held (1) For a reasonable time (2) In a reasonable manner (3) In a reasonable place

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS: One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm. Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress to a member of such person’s immediate family who is present at the time, whether or not such distress results in bodily harm, or to any other person who is present at the time, if such distress results in bodily harm. ELEMENTS: (1) D’s extreme and outrageous conduct (2) intentionally or recklessly (3) causes severe emotional distress to P (4) D is liable for such emotional distress and any resultant bodily harm WHERE SUCH CONDUCT IS DIRECTED AT A THIRD PERSON, D IS LIABLE: (1) To a member of such person’s immediate family (a) who is present at the time (b) whether or not such distress results in bodily harm (2) To any other person (a) who is present at the time (b) if such distress results in bodily harm  Cases involving a third party are usually negligent infliction of emotional distress

TRESPASS TO LAND: Irrespectively of if he causes harm to any legally protected interest of the other, D enters land in possession of the other, or causes a thing or a third person to do so, or remains on the land, or fails to remove from the land a thing which he is under a duty to remove. ELEMENTS: (1) D intentionally (a) enters (b) causes a thing/person to enter (c) remains on (d) fails to remove from (2) land belonging to another  Even if D thought the land was his own (Dougherty v. Stepp)

2 TRESPASS TO CHATTEL: Intentionally dispossessing another of a thing or using another person’s thing ELEMENTS: (1) D intentionally (2) Uses another person’s chattel  Usually try to get the thing back  Not extended to e-mails because there was no harm to the intraweb (Intel Corp. v. Hamidi)

CONVERSION: Intentional exercise of dominion of control over a chattel which so seriously interferes with the right of another to control it that the actor may be justly required to pay the other the full value of the chattel ELEMENTS: (1) D intentionally (2) exercises control over a chattel (3) seriously interfering with P’s right to control it  Destroy the chattel’s value or if it is of no use anymore  D deals with P’s goods as if he was an owner  Not extended to biological materials because P has no ownership interest (Moore)

DEFENSES TO INTENTIONAL TORTS

CONSENT: The volunteer suffers no wrong  P only consents to the acts specifically contemplated (Mohr v. Williams)  Types of consent o Express o Implied: outward appearance of consent (O’Brien) o Informed consent: consent forms from doctors are only as good as their clarity and the extent to which they are understood  Negated consent o Criminal acts (Hudson v. Craft) o Mistake, coercion, fraud, misrepresentation, lack of capacity  Special circumstances o Emergency Rule: cases of emergency where the act must be performed because of a medical emergency (imminent thread to life or bodily harm) before the consent can be obtained; courts reluctant to allow this rule to expand o Substitute consent: consent of a guardian for a minor/incompetent o Medical consent . Doctors have a duty to tell patient any serious risk that a reasonable patient would want to be aware of . If during surgery, the doctor wants to do something that the patient has not consented to:  Get substitute consent of a family member  If no family member, doctor can extend surgery within the area of the initial incision so long as it does not destroy a bodily function o Sexual consent: P may consent to sex, but if P did not consent to getting an STD and D knew and lied about having one, it is battery

3 TORTS OUTLINE FALL 2011 PRIVILEGE OF SELF-DEFENSE:  Use of reasonable commensurate level of force against a threat, even when reasonably mistaken about the threat  No duty to retreat  Cannot retaliate  Cannot use against mere words

PRIVILEGE OF DEFENSE OF OTHERS:  D can exercise the same level of privilege for other as D can use for himself  D has this privilege even when he is reasonably mistaken

DEFENSE OF PROPERTY:  General rule: You can use reasonable force but not force calculated to cause serious bodily injury or death to protect property, even if the other party is a trespasser o No property is more valuable than human life o Reasonable force is to “lay gentle hands”  Exception: Castle Doctrines o You can use deadly force against someone who enters your home without permission o Some states have extended this to cars or businesses  Spring guns/mantraps: You cannot use devices likely to cause serious bodily injury or death that cannot distinguish who they are harming (Bird v. Holbrook)

NECESSITY: (1) PRIVATE NECESSITY  You can trespass to avoid harm (Ploof v. Putnam)  But, you are responsible for damage that you cause (Vincent v. Lake Erie Transport. Co.)  Unclear as to whether you are responsible for opportunity costs (2) PUBLIC NECESSITY  C/L: Anyone can act as a champion of the public good  Today: Most states restrict who can act in public necessity  Gov’t generally liable for damages caused while acting for the public good

NEGLIGENCE

DEFINITION: The failure to exercise reasonable care under the circumstances

ELEMENTS: (1) DUTY: Did D owe P a duty to conform his conduct to a standard necessary to avoid an unreasonable risk of harm to others? (2) BREACH: Did D’s conduct fall below the applicable standard of care? (3) CAUSATION: Was D’s failure to meet the standard of care causally connected with P’s harm, in fact and proximately? (4) DAMAGE: Did P suffer harm?

4 (A) THE STANDARD OF REASONABLE CARE WHO IS THE REASONABLE PERSON?

DEFINITION: A reasonable person, where reasonable is an objective standard of ordinary prudence, in like circumstances

EXTERNAL CIRCUMSTANCES  Environment, situation, resources  Custom – may be relevant but not dispositive  Knowledge (what the party knows about the circumstances, for example, if one hold himself out as an expert)  Emergency o Third Restatement: If an actor is confronted with an unexpected emergency requiring rapid response, this is a circumstance to be taken into account determining whether the actor’s resulting conduct is that of the reasonably careful person o Emergency instructions usually unnecessary though – so effectively eliminated PERSONAL CIRCUMSTANCES  Youth usually considered o General Rule: Minors are judged by standards commensurate with their age, maturity, and intellect o Exception: When a minor engages in an adult activity (Daniels v. Evans – minor on a motorcycle) (may vary regionally) o Guidelines for Age . Below 4 (some states, below 7): Incapable of negligence because you are by definition unreasonable . 11: Presumption that the child can’t understand reasonableness but child can still be held liable if the plaintiff can rebut this presumption . Above 14: Presumption is in favor of capacity for negligence  Physical disabilities o General Rule: The conduct of an actor with a physical disability is negligent only if it does not conform to that of a reasonably careful person with the same disability o Exception: If the act is self-codifying for its standard of care (like driving)  Not given special consideration: o Insanity . General Rule: Insanity is not a defense to negligence . Exception: When there is no notice or forewarning to the person that he may be suddenly subject to such a mental illness (Breunig v. American Family Ins. Co. – batman car) o Individuals with low intellect, poor judgment, clumsiness o Old age (Roberts v. Ring – old man driving held to reasonable person standard)

(B) CALCULUS OF RISK (PRE-ACCIDENT SNAPSHOT) HOW WOULD THE REASONABLE PERSON ACT?

CONSIDER: (1) THE ACT OR OMISSION ITSELF (a) Eckert v. LIRR – D not negligent when he jumped in front of a train to save a baby, but would have been negligent if he had done so to save property or for no reason at all (normative principle)

5 TORTS OUTLINE FALL 2011 (b) Osborne v. Montgomery – every want of care will result in liability; balance the social interests in the case to see if there was neglligence (2) FORESEEABLE RISKS OF INJURY (a) Blyth v. Birmingham Water Works – A reasonable man would act with reference to the average circumstances; the water company was not negligent for failing to remove ice from the water main during a particularly cold year (3) EXTENT OF THESE RISKS (a) How significant were they? (b) How many people will be affected? (4) LIKELIHOOD THE RISKS WILL OCCUR (5) AVAILABLE ALTERNATIVES (a) Cooley v. Public Service Co. – P claimed D (telephone co.) was negligent in how it maintained wires because she suffered from a loud noise; any alternative design would endanger people on the street of electrocution so not negligent (6) COST OF REDUCING RISK (a) Who is the cheapest cost avoider? (i) Who has the most knowledge? (ii) Who can best spread the costs?

NEGLIGENCE = UNREASONABLY GREAT RISK W/ UNREASONABLY PROBABLE INJURIOUS CONSEQUENCES (1) Magnitude of Risk (2) Value or importance of the principal object (the person or thing exposed to risk) (3) Value or importance of the collateral object (the reason that D took the risk) (4) Utility of the risk (probability that the collateral object will be attained by taking the risk to the principal) (5) Necessity of the risk (probability that the collateral object would not have been Attained without taking the risk)

THE HAND FORMULA: B < P L (Burden of taking added precautions) < (Probability of injury occurring)(Cost of the injury)

(C) STANDARD OF CARE HEIGHTENED STANDARD  Common carriers o Andrews v. United Airlines - responsible for any, even the slightest, negligence and is required to do all that human care, vigilance, and foresight reasonably can do under all the circumstances

CUSTOM GENERALLY  Sometimes used to specify the “standard of care” for certain acts  Majority Rule: Custom is not controlling. You cannot use custom evidence for determining reasonableness. o Sometimes custom is unreasonable  Third Restatement – Differs from majority rule: Compliance with custom is evidence that the actor’s conduct is not negligent but does not preclude a finding of negligence, while a departure from custom in a way that increases risk is evidence of the actor’s negligence but does not require a finding of negligence

CUSTOM, MEDICAL MALPRACTICE

6  Standard: A doctor must use the degree of care and skill which of the average qualified practitioner, taking into account advances in the profession o Majority Rule: Abandon the localized standard o Exception: May have locality arguments when it comes to equipment and resources  If one school of medical experts (not a small minority) has approved a procedure even if a second group recommends a different approach – defense to negligence  Duty of disclosure (Canterbury v. Spence – doctor didn’t tell patient 1% chance of paralysis) o Duty to disclose material risks, or risks that a material person would be likely to attach significance to the risk in deciding whether or not to forego the procedure o Test for causal connection: Whether a prudent person in the patient’s position would have decided (have/not have the procedure) if suitably informed of all risks o No duty to ensure comprehension

(D) SPECIAL WAYS TO PROVE NEGLIGENCE  Note: Even if you use these, you still need to show causation!

(1) NEGLIGENCE PER SE DEFINITION: Noncompliance with a statute is negligence per se

RESTATEMENT: An actor is negligent if, without excuse, the actor violates a statute that is designed to protect against the type of accident the actor’s conduct causes, and if the accident victim is within the class of persons the statute is designed to protect

ELEMENTS: (1) Statute protects against the type of harm that occurred (2) Plaintiff is in the class of persons protected by the statute  Have to have a causal link between violating the statute and the harm caused

CREATING A PRIVATE RIGHT OF ACTION: (Uhr – no private right of action because the legislature wrote an enforcement mechanism into the statute and has immunized schools from liability) (1) Whether recognition of a private right of action would promote the legislative purpose (2) Whether creation of such a right would be consistent with the legislative scheme

NOTE: May be a defense when compliance with a statute involves a greater risk of physical harm to the actor or to others than noncompliance (excuse/justification)

FEDERAL PREEMPTION  Preemption: Rules that supplant state law  Supreme Court has a presumption against preemption and look at (1) whether the preemptive law is expressed and (2) when it is not expressed is it implicit?  and in close cases will presume that state law is not preempted  Types of Preemption o Field Preemption: Federal government do occupies a field that there is no room for state law o Conflict Preemption: Even if federal law doesn’t occupy an entire field, the state law conflicts with the federal preemption o Immunity: Congress gave many industries immunity  Federal Torts Claims Act – discretionary authority

7 TORTS OUTLINE FALL 2011 o Feres Doctrine: SC ruled that the FTCA barred military personnel from suing the military whether in peacetime or wartime because everything that military personnel do has to do with their combat function o Demonstrates that liability forces internalization of risk; military hospitals are inexpensive BUT they have far more risks

(2) RES IPSA LOQUITUR “THE THING SPEAKS FOR ITSELF”

Definition: The thing speaks for itself Used when there is a paucity of evidence (typical cases: falling bodies, medical malpractice)

Wingmore on Evidence, on using res ipsa: (1) The event must be of a kind which ordinarily does not occur in the absence of someone’s negligence, (2) It must be caused by an agency or instrumentality within the exclusive control of the defendant, and  Colmenares Vivas – A defendant with a non-delegable duty of care to maintain an instrument in a safe condition has exclusive control over it for the purposes of applying res ipsa loquitur o Non-Delegable Duty: Whether the responsibility is so important to the community that it should not be transferred to another  Ybarra – Even when there are multiple possible defendants that are part of a homogeneous group (here, doctors and nurses in the operating rule) but they were in exclusive control  McGonigal – The whole grenade was handled by many people but the fuse was handled ONLY by he manufacturer; the manufacturer was in exclusive control (3) It must not have been due to any voluntary action or contribution on the part of the plaintiff  Narrow  Better standard: The acts of the defendant were the principal, most probable cause of the injury. If P may have been partially negligent, do a standard comparative negligence analysis

(E) CAUSATION LINK D’S CONDUCT TO P’S HARM

(1) CAUSE IN FACT

RESTATEMENT THIRD, FACTUAL CAUSE: Tortious conduct must be a factual cause of physical harm for liability to be imposed. Conduct is a factual cause of harm when the harm would not have occurred absent the conduct.

“BUT FOR” TEST: But for D’s conduct, would the harm have occurred?  Expert Testimony (can be very important for factual testimony) o Frye Test: Expert testimony is admissible only when “generally accepted” as reliable by the scientific community o Daubert Rule: Rejects the Frye test; Have to show the “fit” between the evidence resented and the charge to be proven  When you can’t rule out other causes (1) D’s negligence increased the chances of injury (2) The injury actually occurred

8  Lost Chance Doctrine (Herskovits): Plaintiff can maintain an action when the defendant’s negligence reduced his chances of survival

JOINT AND SEVERAL LIABILITY (JOINT TORTFEASORS) DEFINITION: Situations where an injury results from more than one negligent act(or) and if you remove just one of them, the accident would not have occurred RULE: As long as D’s act is a “but for” cause of the injury, he may be held liable DAMAGES: Each joint tortfeasors is fully responsible for the undivided consequences of the injury caused by his actions  If we can find only one tortfeasor – he is liable for 100% of damages  If we can find all tortfeasors – damages apportioned appropriately

SPECIAL CIRCUMSTANCES (1) MULTIPLE DS, each of whom could have caused the injury on their own  “Substantial Factor” Test: Was D’s negligence a substantial factor contributing to P’s injury?  Rationale: Unfair to allow each D to claim it was the other D’s fault (2) MULTIPLE DS, each of whom commit similar acts, one of which caused injury but it cannot be determined which act was the “but for” cause  “Alternative Liability” Test: Burden to prove causation shifts to the defendant (has to prove that he is not the “but for” cause) (3) MARKET SHARE LIABILITY: SINDELL TEST  Came from a DES case  Hold the entire industry liable, with liability apportioned by market share when the injury was caused Elements: (a) Absence or paucity of records (b) Fungible (identical) harmful component (c) No fault of the victim Variations: (a) Whether you use national or regional market share (b) Whether a company can prove itself out (4) LOST CHANCE DOCTRINE

(2) PROXIMATE CAUSE

TRADITIONAL DEFINITION: Whether D’s conduct can be regarded as a substantial factor in bringing about P’s harm; whether any intervening or concurrent human actions or natural events that occur after D’s conduct but before P’s harm sever the causal connection between them

FORWARD-LOOKING APPROACH: Whether the chain of events was sufficiently foreseeable/probable for D to be held liable for the ultimate cause

DIRECTNESS APPROACH: Whether any act of P, a third party, or any natural event has severed the causal connection between the harm and the D’s wrongful conduct

PRINCIPLES OF FORESEEABILITY: (1) If the injury suffered by P is not the type of harm expected from D’s conduct, P cannot recover

9 TORTS OUTLINE FALL 2011 (2) If P suffers a foreseeable injury resulting from D’s conduct, D is liable to the full extent of injury (a) Eggshell Thin Skull Plaintiff – take the plaintiff as you find him (3) D is liable for the foreseeable consequences even if they occur in an unforeseeable manner (a) Ex: Risk is explosion. D is liable whether the occurs when someone lights a match near the oil, or a dog covered in the oil whose fur catches on fire due to a sharp ray of sunlight (What? Okay. Not my example but it works.)

SUPERSEDING/INTERVENING ACTS DEFINITION: Acts that sever the causal connection  Natural disasters  Criminal activity o Though not a superseding act when D knew or should have known that his negligence would bring it about  Rescues – D is liable for P and for P’s rescuer (a rescuer is always foreseeable) when: (1) D was negligent to the person rescued and such negligence caused the peril or appearance of peril to the person rescued (2) The peril or appearance of peril was imminent (3) A reasonably prudent man would have concluded such peril or appearance of peril existed (4) And the rescuer acted with reasonable care in effectuating the rescue

CHANGE OF HARM TESTS (1) Polemis (Permissive): As long as there is a direct relationship between the act and the harm, P can recover based on D’s negligence.  Superseding/intervening acts sever causation  But, foreseeability is irrelevant! Bottom Line: Need a direct relationship but change of harm does not sever chain of causation. (2) Wagon Mound: The harm to P must have been reasonably foreseeable by D Bottom Line: Significant change of harm severs the chain of causation.

UNFORESEEABLE PLAINTIFF TESTS (PALSGRAF) (1) Cardozo: D is liable to all Ps within the reasonably foreseeable zone of harm. If P is not in the “zone” he cannot recover. (2) Andrews: D is liable to anyone who is actually injured due to the negligent act. As long as there is a direct relationship (no superseding/intervening acts) between the act and the harm, P can recover.

(?) NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (1) P suffers emotional distress from D’s negligence (2) P’s distress if both foreseeable and severe

Impact Rule: Early courts restricted NIED to claims where P had physical contact with D

Zone of Danger Rule: Someone who has no physical contact with D but is in the “zone of danger” at the time of the tort may recover for NIED

Dillon: (1) Actually close enough to witness the accident (2) Distress results directly from witnessing the accident

10 (3) P is a close family member of the victim  Some courts require that there was physical contact; this is expanded today (i.e. blood spatter might count) to get equitable results

(F) AFFIRMATIVE DUTIES LIABILITY FOR D’S FAILURE TO ACT (NONFEASANCE)

(NO) DUTY TO RESCUE: Unless you are the cause of P’s injury, you have no duty to rescue P  Criticized by feminists  Posner says this rule is inefficient  You do have a duty to warn if you create a risk of harm

OWNERS & OCCUPIERS  TRESPASSERS: No duty, UNLESS (Duty only extends to artificial conditions likely to cause death or SBI; D only has a duty to exercise reasonable care in the circumstances) (1) ATTRACTIVE NUISANCE (Children) (a) Reason to know that children will trespass (b) There is something artificial on the property such that children will not appreciate its risk of danger (2) ANTICIPATED OR DISCOVERED TRESPASSERS: Duty to warn of hidden, but not overt, danger  LICENSEES (social guest; enters with D’s permission): Duty to warn of discovered hidden dangers (not overt and not natural conditions) (1) FIREMAN’S RULE: Police/firefighters typically treated as licensees  INVITEES (public or business invitee): Duty to warn and take reasonable measures to make safe

GRATUITOUS UNDERTAKINGS Bailments – moving toward a standard of reasonable care

PRIVILEGES  Priest-worshiper  Attorney-client (based on Constitution) o Exceptions: withholding info about a crime/fraud, knowingly putting lying client on stand  Husband-wife  Doctor-patient o Tarasoff: Psychologist-patient privilege broken if it is essential to avert a danger to others  Journalist-informant o Shield laws exist to protect journalists but state issue

 RESPONDEAT SUPERIOR: An employer is liable for whatever an employee does within the scope of his employment (not if it is a frolic or detour)  Crimes usually cut this off (detour) but maybe not if the action is close to the actual scope of employment  Landlord-tenant

11 TORTS OUTLINE FALL 2011 o Kline v. 1500 Mass Ave: Landlord has a duty for a reasonable standard of protection (over areas exclusively in his control, from foreseeable harm)

CREATING A DANGER  If you start to help someone who is helpless you have a duty to exercise reasonable care while you are acting, which often means finishing the act  Promotional liability o Weirum Rule: D is liable if it was foreseeable that D’s actions would lead to the third party’s illegal actions (ex. using advertising to create scarcity, which creates panic)  Dram Shop Liability o Liability of those who serve alcohol to others o P must prove negligence by the dram shop (bartender knew or should have known that the individual was overserved) o Usually corporate parties and social hosts not held liable under dram shop (may still be negligent)

STRICT LIABILITY

USED FOR CERTAIN TORTS BECAUSE: (1) High risk (2) Likelihood of creating injury is high (3) Use of reasonable care doesn’t negate the risk

PURPOSE (1) Encourages people to forego high risk activities, limiting injuries (2) Encourages those who continue high risk activities to take precautionary measures (3) Forces the cheapest cost avoider to absorb the cost of the abnormally high risk

(1) ANIMALS

D is strictly liable for: (1) ANY WILD ANIMALS IN D’S POSSESSION (a) Helpful to look at agriculture statutes when figuring out close cases (and other statutes – owning wolves or half-wolves is illegal) (b) If a species has animus revertendi (a habit of returning), it is domestic (c) Exception: Most states have passed statutes excepting zoos (d) Possession: You exercise dominon and control over the animal (2) A DOMESTICATED ANIMAL IN D’S POSSESSION D KNOWS OR SHOULD HAVE KNOWN TO HAVE VICIOUS PROPENSITIES (a) ONE FREE BITE RULE: P can’t use the attack in question as evidence that the animal is vicious (don’t take this literally) (b) Evidence of a species’ viciousness can be introduced but there is disagreement over this (c) Vicious propensities determined by the animal’s history or certain indicators like growling/pulling on leash/etc. (3) LIVESTOCK – D is strictly liable when his cattle trespass onto P’s property

12 (2) ULTRAHAZARDOUS OR ABNORMALLY DANGEROUS ACTIVITIES

RESTATEMENT SECOND § 519: (1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land, or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm. (2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.

RESTATEMENT SECOND § 520: In determining whether an activity is abnormally dangerous, the following factors are to be considered: (a) Existence of a high degree of risk of some harm to the person, land, or chattels of others (b) Likelihood that the harm that results from it will be great (c) Inability to eliminate the risk by the exercise of reasonable care (d) Extent to which the activity is not a matter of common usage (e) Inappropriateness of the activity in the place where it is carried out (f) Extent to which its value to the community is outweighed by its dangerous attributes  Cost-benefit analysis!

NUISANCE NOT REALLY NEGLIGENCE OR STRICT LIABILITY

(1) PRIVATE NUISANCE

ELEMENTS: D’s conduct is an invasion of another’s interest in the private use and enjoyment of land and the invasion is either (1) Intentional and unreasonable or (a) Unreasonable if the gravity of the harm outweighs the utility of the actor’s conduct or the harm caused is serious and the financial burden of compensating for the harm would not make continuation of the conduct feasible (2) Unintentional and negligent or abnormally dangerous

DEFINITION: An ongoing interference with the use and enjoyment of P’s land NOTE: Coming to the nuisance is NOT a defense

THEORIES: (1) COASE – says the market will decide between the two conflicting uses

NOT A NUISANCE: (1) BLOCKING LIGHT (a) Exception – SPITE FENCES: Act of malicious intent (you can sue for nuisance) (b) With spite fences – the question will be whether D has any functional use for the “nuisance” (2) AESTHETIC “NUISANCES” – nuisance actions where someone is using their property in a way that is obnoxious or at odds with the surrounding area

13 TORTS OUTLINE FALL 2011 (a) Generally unsuccessful (b) May have an exception if D’s actions lower the value of the surrounding property (3) HARM DONE TO THE EXTRA-SENSITIVE PLAINTIFF There is liability for a nuisance only to those to whom it causes significant harm, of a kind that would be suffered by a normal person in the community or by property in normal condition and used for a normal purpose.

(2) TAKINGS

TAKINGS CLAUSE: No person shall be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation

TAKINGS REVOLUTION: Court recognizes that nuisance remains a valid reason for a state to regulate private land without compensation

(3) PUBLIC NUISANCE

DEFINITION: An unreasonable interference with a right common to the general public The government can bring a public nuisance claim. An individual can only bring a public nuisance claim if there is a harm suffered by the general public but that P suffered a unique harm.

PRODUCTS LIABILITY

DEFINITION: Claims for injuries caused by commercial products APPLIES TO: (1) Goods (not services) (2) Sold by a commercial supplier, manufacturer, or retailer (not a casual seller) (3) No substantial alteration of the defective aspect of the product (a) Exception: D is liable for injury that results from foreseeable misuse of D’s product

PURPOSE: (1) Incentivize manufacturers to assure the safety of their products (2) Incentivize innovation (3) Manufacturers are generally the cheapest cost avoider and we want them to avoid all accidents worth avoiding

DEFENSES: (1) Substantial modifications (to the part of the product that causes the harm) (2) Unforeseeable misuse (3) Open and obvious (only a defense when the danger cannot be designed out)

RESTATEMENT SECOND:

14 (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 consumer without substantial change in the condition in which it is sold (2) The rule stated in (1) applies although (a) The seller has exercised all possible care in the preparation of sale of his product and (b) The user or consumer has not entered into a contractual relationship with the seller

RESTATEMENT THIRD: It may be inferred that the harm sustained by the plaintiff was caused by a product defect existing at the time of sale or distribution, without proof of a specific defect, when the incident that harmed the plaintiff: (a) Was of a kind that ordinarily occurs as a result of product defect and (b) Was not, in the particular case, solely the result of causes other than product defect existing at the time of sale or distribution

(1) MANUFACTURING DEFECTS

RESTATEMENT THIRD: The product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product

P HAS TO SHOW: (1) That the product was defective (2) Making it more dangerous (3) Caused an injury

(2) DESIGN DEFECTS

THREE TESTS: (1) CONSUMER EXPECTATIONS: Whether a product is more dangerous than the expectations of a reasonable consumer (2) HYBRID TEST: Whether a product is more dangerous than the expectations of a reasonable consumer, or, if the benefits of the “defective” design do not outweigh its risks (a) Second question considers a risk-utility analysis (3) THIRD RESTATEMENT: Whether there is a reasonable alternative design (a) Asks about feasibility not risk-utility

SECONDARY INJURIES: (1) It was foreseeable that the defect would cause enhanced injuries (2) The defect was not obvious (3) The defect caused an enhanced injury

(2A) COMMENT K: PHARMACEUTICALS

RESTATEMENT SECOND, COMMENT K: (doesn’t mention pharmaceuticals specifically but is often used for them)

15 TORTS OUTLINE FALL 2011 There may be certain products with such a great societal benefit that it would be against public policy to apply strict liability to them, and negligence should be applied (example is the polio vaccine)

RESTATEMENT THIRD: Apply negligence to all pharmaceutical drugs that a reasonable caregiver/doctor would give to a class of persons safely.

(3) WARNING DEFECTS

Manufacturers have a duty to warn for foreseeable risks, and warnings must (1) be reasonable and (2) effectively communicate the warning. Manufacturers have a duty to test the product for scientifically knowable risks and find them!

Consider: (1) Extent and likelihood of risk (2) Whether reasonable consumer expects the danger (3) Likelihood that too many warnings will reduce their effectiveness (4) Effectiveness of warning (languages, pictorals)

Pharmaceuticals (1) Learned intermediary: drug manufacturers can generally warn through a learned intermediary (2) Drug manufacturers do have to warn consumers directly when they advertise directly to the consumer or when there is limited consumer/doctor interaction (3) For hypersensitive consumers  risks to them do have to be warned somewhere but it is incumbent on the consumer to make the inquiry and find it

PLAINTIFF’S CONDUCT

Contributory Negligence Jurisdictions  When plaintiff is at fault (any %), the plaintiff’s negligence is a complete bar to recovery  Possible Exception: Last Clear Chance Doctrine (a) Helpless Peril: D had actual knowledge or should have known of O’s helpless state (P is in a state from which he cannot extricate himself) (b) Inattentive Plaintiff: D had actual knowledge that P was in actual peril (P could have extricated himself had he been attentive)  D must have been able to act! If D’s negligence had occurred before the plaintiff was in peril, this exception cannot apply

Comparative Negligence Jurisdictions  Plaintiff is more than 50% at fault (A)Modified or Partial Comparative Negligence Jurisdiction – P cannot recover (B) Pure Comparative Negligence Jurisdiction – Recovery allowed for percentage of the award attributable to the defendant  Plaintiff is less than 50% at fault (A)Modified or Partial Comparative Negligence Jurisdiction – P can recover (B) Pure Comparative Negligence Jurisdiction – Recovery allowed for percentage of the award attributable to the defendant

16 Negligence (1) Contributory negligence (a) Contributory states – P cannot recover (b) Partial comparative states – cannot recover if P contributed >50%; can recover if less (c) Pure comparative state – P can recover the % of award attributable to D (2) Implied assumption of the risk (a) Contributory states – P cannot recover (b) Abolished in comparative states (3) Express assumption of risk (a) Complete defense in all jurisdictions

Strict Liability (1) Contributory negligence is NOT A DEFENSE to strict liability! (2) Implied assumption of the risk – P cannot recover (a) Courts in product cases will require D to show that the plaintiff understood the danger assumed and the plaintiff acted unreasonably in using the product (3) Express assumption of risk – P cannot recover

DEFAMATION

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 persons from associating or dealing with him.

Defamation requires publication – communication intentionally or by a negligent act to one other than the person defamed (continued publication when one allows defamatory matter to remain on his land or chattels in his possession/under his control)

Special Circumstances (1) You cannot defame the dead (2) Public officials and figures can only hold someone liable for defamation if there was knowing falsehood or reckless disregard of falsehood (very hard standard to meet) (3) Large groups generally cannot be defamed (small groups can) (4) Opinion (a) Opinion is protected when based on known or stated facts (b) Parody and humor are protected as a form of opinion (5) Someone who merely delivers/transmits defamatory material is not liable if they did not know its defamatory content

Mitior sensus: Take the words’ least harmful meaning when it is ambiguous

Libel: Publication of defamatory matter by written or printed words, by its embodiment in physical form or by any other form of communication that has the potentially harmful qualities characteristic of written or printed words  At common law libel was actionable per se

Slander: Publication of defamatory matter by spoken words, transitory gestures, or by any form of communication other than libel  At common law only certain categories were per se (otherwise you had to show special damages:

17 TORTS OUTLINE FALL 2011 (1) Criminal conduct (2) Loathsome or communicable disease (3) Imputing a plaintiff’s business or professional reputation (4) Imputing a lack of chastity to a woman (5) Claiming sexual misconduct or moral turpitude

Defenses (1) Truth is an absolute defense (2) Privileges (malice negates privilege, however) (a) Anything said in court is privileged (b) Fair Reporting Privilege – taking information from gov’t reports is privileged (c) Speech and debate  Congressmen can’t be sued for what they say in the course of their legislative duties

PRIVACY

INTRUSION UPON SECLUSIon: One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person. NOTE: You do not have the same expectation of privacy when you are in public but a person does not automatically make public everything he does in a public place

PUBLIC DISCLOSURE OF EMBARRASSING PRIVATE FACTS: One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) Would be highly offensive to a reasonable person and (b) Is not of legitimate concern to the public NOTE: Publicity ≠ publication (just that it is public knowledge); applies to true facts

FALSE LIGHT: One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if (a) The false light in which the other was placed would be highly offensive to a reasonable person and (b) The actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed NOTE: Alleged information must be false

APPROPRIATION OF PLAINTIFF’S NAME OF LIKENESS (RIGHT TO PUBLICITY): One who appropriates to his own use or benefit the name or likeness of another is subject to the other for invasion of his privacy NOTE: Some states but not all limit to commercial use