Torts II


I.                     Proximate Cause

a.        Coincidence: although def may have been negligent and a but for cause of the injury, may not be liable bc of a coincidence occurring which intervened

b.       Majority View: Foreseeability

                                                               i.      Wagon Mound: limits liability to foreseeable consequences

1.        Rule: Liability extends to the def whenever injury is a reasonably foreseeable consequence at the time of the act/omission

a.        When there is an unforeseeable type of damage to a foreseeable pl, no liability

2.        Thin Skull Rule: def is liable for unforeseeable extent of harm (def takes the pl as he finds him)

3.        Policies

a.        Fairness: unfair to assign loss of unforeseeable harm to a def

b.       Efficiency: pl is in a better position to insure against particular losses rather than requiring def to insure against all possible injuries

                                                              ii.      Wagon Mound 2: Finding was that the fire was remotely foreseeable and def was liable for damage to other ships on the harbor

1.        Rule: The precise manner in which injury occurs does not have to be foreseeable as long as you can foresee the result or foresee a result of greater magnitude

                                                            iii.      Palsgraff: Limits liability to a foreseeable pl

1.        Rule: Stand in the shoes of the def at the time immediately preceding the act/omission and ask who could reasonably be hurt and how – if pl is one of those cases, then proceed

2.        There is no intent in negligence cases – relative non-culpability makes transferred negligence unfair to the def

a.        Example: A owes a duty to B, C, D, E, etc. and that a person breaches a duty to A if he can foresee the breach, but if you breach the duty to A and B is injured, you are not liable bc cannot foresee a breach of duty to B by breaching a duty to A

                                                            iv.      Policies

1.        Fairness: liability should be in proportion to culpability – culpability is defined in terms of reasonable foreseeability

2.        Judicial Administration: easier to apply bc easier for jury to decide foreseeable harm than direct harm

3.        Avoids over-deterrence: deterrence does not work after the results are no longer foreseeable – otherwise, some desirable conduct aside from negligence might be deterred

c.        Direct Consequences

                                                               i.      Polemis: whatever the direct result of the act is part of the damage

1.        Fire was not foreseeable but was a direct consequence

2.        Similar to the “but for” test

3.        Rule: consequences that follow wo an intervening independent cause are natural and proximate

a.        Foreseeablility is not the issue – factors such as time, space, intervening forces

b.       The larger the gap in time and space, the more likely intervening forces are at play

4.        Independent cause: another cause having no connection to the negligent act may free def from liability

                                                             ii.      Policies

1.        Deterrence: creates more incentive to use reasonable care

2.        Fairness: same reasoning as foreseeability – limit def liability to culpability, but not as strong an argument

3.        Weakness: not precise and has little predictive power

                                                            iii.      This is a question for the jury

d.        Intervening Causes

                                                               i.      Terminology

1.        Intervening force: one which actively operates in producing harm to another after the actor’s negligent act/omission has been committed

2.        Superseding cause: an intervening cause which, by its intervention, cuts off the def liability even though his antecedent negligence was a substantial factor in bringing the injury about

3.        Concurrent cause: foreseeable intervening cause

                                                              ii.      Superseding cause factors

1.        Unforeseeability

a.        Rule: if intervening cause is foreseeable, then it is one of the risks that makes def conduct negligent and def is still liable – may be a human action or a force of nature, either way if foreseeable then def is still liable

2.        Culpability of intervening actor

a.        If 3rd party was negligent (act was inadvertent) then def liable

b.       If 3rd party was acting intentionally or with maliciousness then def is usually NOT liable

                                                                                                                                       i.      It is not foreseeable that someone would do something criminal/culpable on purpose

                                                                                                                                      ii.      In some cases the criminal acts are foreseeable so def is liable

1.       Rule: if a danger of the def negligent act is that a criminal act would occur, the def is liable for the 3rd party criminal act

3.       Policies

a.        Fairness: dictates that one party should not be held liable for the criminal acts of another

b.       Courts seem to use foreseeability as a smoke screen for subjective moral culpability evaluations

                                                            iii.      Public Policy

1.        Social hosts - drinking

a.        Rule: most courts reject social host liability bc it is difficult to determine case-by-case if the guest was visibly intoxicated – most courts still impose liability on commercial servers and to all hosts who serve minors

2.        Rescuers

a.        Rule: def liable to 3rd party rescuer whether the intervention was foreseeable or not – foreseeability of the rescuer is assumed as a matter of law – must act instinctively

b.        Rationale: protect and ecourage the social good of rescuing

c.        Exception: def not liable if the rescuer is exceedingly reckless or foolish – such as rescuer would be a superseding cause

d.       Second rescuer: subsequent rescuers that are injured can also recover, up to the point where it is no longer feasible

3.        Fireman’s Rule

a.        Rule: professional rescuers may not recover for tortious injuries incurred while rescuing

b.        Rationale: rescuer already compensated for injury by salary and worker’s compensation

                                                            iv.      Shifting Burden of Responsibility

1.        Rule: When a dangerous thing comes under constructive control of a new party who has an obligation/duty to supervise its use, they will be held liable for any breach of that duty

a.        Risk is taken over by independent actors who relieve def of responsibility

b.       This may reflect a view of independent responsibility that is not as widely held today

2.        Medical malpractice: not a shifting responsibility bc original def could foresee doctor’s negligence

                                                             v.      Second injury

1.        Rule: original tortfeasor is liable for later injuries stemming from the original injury as long as there is a clear causal connection

                                                            vi.      Coming to Rest

1.        Rule: When the negligent act comes to rest, def generally not liable for injuries resulting after the rest period unless foreseeable and def caused the further actions

e.        Emotional distress

                                                               i.      Policies

1.        General tort policy to compensate pl for loss and restore to position occupied before the accident

2.        Deterrence: want people to invest in injury avoidance – want def to pay fully for the harm caused – some def cannot or are not likely to be deterred

3.        Vindication: primary argument

a.        Recognizes value in the intangible characteristics that make us human

b.       Some cultures even enforce public apologies

                                                              ii.      Why limitations needed

1.        Historically: we did not know if the harm was real – today we have confidence in court’s ability to ferret out non-legitimate claims (with the help of experts)

2.        Difficult to value

3.        Concern for the def – do not want liability to exceed culpability

4.        Concern for legal system – do not want to open the floodgates

5.        Standard evidentiary checks are unavailable bc the evidence is much more soft, intangible

                                                            iii.      Modern doctrines

1.        Impact Rule: law has historically protected mental anguish resulting from physical injury

a.        Rationale

                                                                                                                                       i.      Guarantees that mental disturbance is genuine, not frivolous/false

                                                                                                                                      ii.      Concerned about floodgates if no impact requirement

                                                                                                                                    iii.      Bright-line/objective standard is easier for the jury to apply

b.       Exceptions

                                                                                                                                       i.      Telegraph company negligently delivers false message of death

                                                                                                                                      ii.      Negligent mishandling of corpses

c.        Application of rule has been expanded to include the slightest touches

2.        Physical injury rule: Does not require impact, but must cause definite and objective physical injury

a.        Physical injury means condition or illness must be one susceptible to objective determination

b.       No recovery unless reasonable person would be similarly affected (No thin skull rule)

c.        Allow recovery now for fear of future harm

                                                                                                                                       i.      Has to be reasonable

                                                                                                                                      ii.      Some courts apply more likely than not that disease/harm will occur

1.        Limits false claims and gives the jury a standard to apply

2.        Need expert testimony

3.        Zone of Danger Rule: pl can recover if he was (1) in the zone of danger and (2) not hurt from impact but (3) suffered from emotional injury

a.        Rule is criticized as being arbitrary

4.        Bystander Rule: bystander can recover even if not in the zone of danger if the emotional distress is caused by witnessing the negligently inflicted injury of a 3rd person

a.        Requirements

                                                                                                                                       i.      Pl must be closely related to the victim

                                                                                                                                      ii.      Pl must have been present when the injury occurred

                                                                                                                                    iii.      Pl must have had a contemporaneous sensory perception of the accident

                                                                                                                                    iv.      Pl emotional distress must be severe

b.       Criticized as being arbitrary

5.        Direct Victim Rule: a person whose emotional distress is a reasonably foreseeable consequence of def negligent conduct

a.        Different from bystander in that wrt bystanders, def owes a duty to the public in general

b.       Person does not have to be there to perceive the injury (broader application)

c.        Requirements: emotional distress must be

                                                                                                                                       i.      Severe

                                                                                                                                      ii.      Reasonable

                                                                                                                                    iii.      Foreseeable

d.       Still ambiguous and difficult to defend

                                                            iv.      Georgia

1.        Retains the impact rule – there must be physical harmful impact

2.        No recovery for present fear of future harm

3.        Very restrictive

f.         Proximate Cause Analysis

                                                               i.      Was def act/omission unreasonable (breach/duty)? If so,

                                                              ii.      Was def negligence a cause in fat of pl injury? If so,

                                                            iii.      Is there a Palsgraff problem (unforeseeable pl)? If not,

                                                            iv.      Is there a Wagon Mound problem (unforeseeable type of harm)? If not,

                                                             v.      Are there any intervening/superseding causes? If not,

                                                            vi.      Is there nay other reason the def might not be liable

1.        Public Policy

2.        Shifting Responsibility

g.       Pure Economic Loss

                                                               i.      Majority Rule: one cannot recover economic loss resulting from a negligent act which is not a consequence of injury to the pl person or property

1.        Policies

a.        Floodgates: limit potentially inordinate number of foreseeable pl

b.       Jurisprudential: bright line rule provides an easy and judicially efficient limiting standard

c.        Deterrence: economic analysis is that when the accident costs get too high, the incentive curve flattens, so courts would rather err on the side of the negligent def, otherwise might over-deter

d.       Problems with proof and speculative damages

e.        Fairness: def should not be forced to pay repeatedly for the same damage – prevent culpability and liability from becoming disproportionate

f.         Efficiency: others should be getting first party insurance – but insurance might not achieve desired level of deterrence

                                                              ii.      Minority Rule: use normal negligence analysis with foreseeability of pl and damage, proximate cause, intervening cause, etc.

1.        Policies

a.        Fairness: more fair to the innocent def

b.       Brightline: no exceptions needed to the brightline rule

2.        This rule allows more cases to get to jury and results in more liability

                                                            iii.      Trend: there has been some movement towards expanding protection, particularly when negligent misrepresentations cause loss

II.                   Affirmative Duties

a.        Common Law

                                                               i.      Rule: There is no affirmative duty to act for the benefit of another or help someone in need bc the law is not concerned with moral obligations

                                                              ii.      Rationale

1.        Libertarian: notions of personal autonomy

2.        Line-Drawing: must draw a line somewhere and the easiest point is affirmative/negative duty distinction

3.        Moral: making rescue a legal obligation would debase the moral and heroic worth of admirable voluntary acts

4.        Disincentive: to professional rescuers – people will want to avoid the duty and put themselves out of the range of liability

                                                            iii.      Against the Rule

1.        Ethical: the human element and feminist perspectives

2.        Utilitarian: if the cost of saving someone is low you should have to do it

3.        Quasi-Contract: the only reason why do not contract now is bc the transaction costs are high so the government should contract for us (but this is a slippery slope problem)

b.       Attempts to address the problem

                                                               i.      Statutes imposed by the states

                                                              ii.      Restitution: instead of making rescuer liable, make the person receiving assistance provide restitution for the benefits conferred – avoids line-drawing problems and encourages rescuers

c.        Rule: def is liable if he changed the world and made it more dangerous

                                                               i.      Whether a def is negligent or not, where he is the cause of harm he has a duty to render aid

                                                              ii.      Exception: Scruggs – def not liable when would not move train for a firetruck bc def is not making the world more dangerous but refusing to help

d.       Permitting Help

                                                               i.      Ploof different from Scruggs bc in Ploof just required not to act whereas in Scruggs asking for an action

                                                              ii.      Rule: liable if negligence prevents or disables the 3rd person from giving aid (active interference)

1.        Example: Ploof more like Soldano bc in Soldano bartender just had to allow 3rd party use the phone and did not have to act himself

e.        Undertook Duty

                                                               i.      Rule: if undertake duty to help someone then liable for:

1.        Failure of the actor to exercise reasonable care to secure the safety of the other while wi the actor’s charge

2.        Leaving the person in a worse position than when the actor took charge of him

                                                              ii.      If others forego their opportunity to help in reliance on the actor helping then the pl can argue that he was left in a worse position

f.         Government

                                                               i.      Rule: government generally does not have a duty to rescue

                                                              ii.      Exception: When the government put the person in harm then may be liable (placing a child with abusers)

                                                            iii.      Rationale: autonomy (not having government control) and also to avoid floodgate issue bc government involved in many situations

                                                            iv.      Worker’s compensation: insurance company can be sued after they failed to discover conditions that could have been discovered and corrected with reasonable care

1.        Problems with this

a.        Undermining the bargain bt employer/employee - Employer gives up necessity for showing negligence in return for lower recoveries provided under worker’s compensation - If employee allowed to recover, emplooyer’s cost of insurance will rise and the bargain is defeated

b.       Inspections would be reduced bc they can be held liable

g.       Control Issue

                                                               i.      Rule: duty imposed when an instrumentality in the control of the def causes the danger which gives rise to the pl need for rescue

                                                              ii.      Duty

1.        either relationship or control – OR

2.        relationship and control

                                                            iii.      Culpability is irrelevant – example: if in a car accident have a duty even if you are not responsible for the accident

h.       Easy Rescue

                                                               i.      Rule: def has a duty when he is in a position to help

                                                              ii.      Factors

1.        Foreseeable harm

2.        Certainty of the injury

3.        close connection bt def conduct and the injury

                                                            iii.      Policies

1.        Disregard for human life characterized as morally wrong

2.        Promotes policy of preventing future harm

3.        Availability of insurance to cover def for the risk

                                                            iv.      This may be just an application of private necessity

                                                             v.      Problem: where is the line drawn

III.                 Landowners and Occupiers

a.        Traditional Approach

                                                               i.      Trespassers

1.        Rule: landowner has no duty until actual notice of trespasser’s presence, then there becomes a licensee duty to warn of hidden dangers

2.        Rationale

a.        Presence of trespassers not reasonably anticipated

b.       Trespasser assumes the risk, is contributorily negligent, or is a wrongdoer not entitled to protection – no moral obligation to protect

c.        Deterrence of trespassers

3.        Exceptions

a.        Landowner liable for willful or wanton injury

b.       If def knows the trespasser is on premises, must use reasonable care

                                                                                                                                       i.      Discovered, frequent and tolerated trespassers may get some protection

                                                                                                                                      ii.      Def does not have to use reasonable care to discover the trespasser’s presence

                                                              ii.      Licensees/invitee – one who enters land with consent of owner for the benefit of the landowner

1.        Rule: landowner owes a duty to exercise reasonable care in keeping the premises safe for the invitee

a.        Constructive knowledge counts

b.       Even if the invitee knows of the danger, def may still be negligent if it is not too difficult to eliminate the danger and he should reasonably anticipate pl being injured by it

                                                                                                                                       i.      Owner has the duty to correct obvious defects

                                                                                                                                      ii.      In some jurisdictions, warning of obvious defect is enough

2.        Tests to determine if invitee

a.        Nature of premises

b.       Nature of visit

3.        Criminal activity – duty only to take reasonable measure to reduce the likelihood of dangerous criminal activity

4.        Conduct of others – landowner has duty to exercise power of control or expulsion of a person who may pose risk of injury to other invitees

                                                            iii.      Status can change over the course of a visit

                                                            iv.      Children

1.        Rule: there is a higher standard of care required when kids are involved

2.        Attractive Nuisance Doctrine: when a landowner sets before children a temptation he has reason to believe will lead them to danger, he has a duty to use ordinary care to protect them from harm

3.        Restatement

a.        Possessor must know or have reason to know a condition on his property will cause children to appear

b.       Must be a danger that involves an unreasonable risk of death or serious bodily harm

c.        Duty to put fence around pool, watch out for kids on trampoline, etc.

4.        Limitations

a.        Common hazards: dangers that even kids recognize (drowning, falling, etc.)

b.       Conditions that arise from nature

5.        Child licensees – may have an obligation to inform a child licensee about something you would not ordinarily have to warn an adult licensee about – mere warnings may not constitute reasonable care

                                                             v.      Persons Privileged to Enter – public officials like meter readers, police, etc.

1.        Rule: treat as licensee or invitee, depending on jurisdiction

2.        Some courts just apply reasonable care negligence standard bc of difficulty categorizing

b.       Modern Trends

                                                               i.      Reject traditional categories – two approaches

1.        Collapse invitee and licensee

a.        Find common standard requiring safety and warning with reasonable care

b.       Foreseeability is relevant

c.        Invitee/licensee still afforded more protection than a trespasser

2.        Total Abrogation of categories

a.        Rule: landowner is negligent if aware of a hidden danger and fails to warn about or repair the condition

b.       Policies

                                                                                                                                       i.      Promotes greater responsibility and leads to a safer world

                                                                                                                                      ii.      Status based rules are contrary to modern social mores and humanitarian values

                                                              ii.      Factors not affected by status

1.        connection bt pl injury and def conduct

2.        moral blame attached to the def conduct

3.        policy of preventing future harm

4.        prevalence and availability of insurance

                                                            iii.      Factors affected by status

1.        foreseeability of injury

2.        burden on def – may be greater, but often the same

3.        status is consideration not determinative

c.        Exception

                                                               i.      Last clear chance: Pridgen – def owes duty of assistence when he has the last chance to prevent harm to a trespasser

d.       Rules v. Standards

                                                               i.      Traditional Rule: emphasizes rules – leads to predictability, but also results in arbitrary lines being drawn – all courts aggress wrt emotional distress, an arbitrary line must be drawn

                                                              ii.      Modern Rule: emphasizes standards – leaves open the possibility of justice for every case, but also leaves open the possibility of run-away juries

IV.                Gratuitous Undertaking

a.        Reliance

                                                               i.      Elements

1.        Undertaking of a duty – if def undertakes a duty to help another, he has a duty to continue helping – undertaking must cause:

a.        Detrimental reliance: dissuasion of others who would offer help

b.       Worsening of the condition – increased risk of harm

2.        Failure to follow through with duty

3.        Inducement – not only must there be reliance by the pl, but such reliance must be induced

4.        Reasonable reliance

a.        Must be actual reliance for there to be a cause of action

b.       Must also have a reasonable alternative

c.        The reliance must be reasonable – if def gave reasonable notice to the public that he was discontinuing the act, pl has no reliance

                                                              ii.      Reliance can establish negligence as a matter of law

                                                            iii.      Rationale

1.        the def has made the pl worse off bc the pl has let down his guard and instead of taking normal precautions pl is induced to take fewer precautions

                                                            iv.      Negligence of another will not preclude the def from liability where the pl relies bc it is a separate issue – at most, the other negligent party can be held jointly and severally liable

b.       Third Party Beneficiaries

                                                               i.      Three arguments for liability and Crushing Burden problem

1.        Contract: court rejects bc liability, field of obligation and size of burden on def too great

2.        Statutory: rejects bc purpose is to regulate not protect

3.        Common Law Tort: rejects bc burden on def too big

                                                              ii.      Insurance Theory

1.        Insurance company in a better position to allocate the risks

2.        If both liable then double payments to pl – problems with this:

a.        Incentives: if liable will likely take the proper precautions

b.       Insurance company can escape liability by writing into policy that if another is negligent will not pay

                                                            iii.      Difficult to prove that things would be better if def had not undertaken

                                                            iv.      Good Samaritan statutes

1.        some state have enacted to protect rescuers from liability

2.        Creates immunity from liability, NOT a duty to act

3.        Rationale

a.        Wo protection from liability, it is safer from an economic standpoint to walk away then to try to help someone

b.       If you undertake and screw up, then can be held liable wo these statutes

4.        Should extend to all those who have no pre-existing duty

V.                  Special Relationships

a.        Lessor and Lessee

                                                               i.      Common Law Rule: landlord owes no duty to make the premises safe, it is the job of the tenant

1.        Rationale

a.        T is in possession and control so in a better position to discover the risk

b.       At common law, a lease was a conveyance so tenant took total control of the property

2.        Exceptions

a.        Undisclosed dangerous conditions known to the landlord but not tenant

b.       Conditions dangerous to persons outside the premises

c.        Premises leased for admission to the public

d.       Parts of land still under landlord’s control that the tenant can use

e.        Where landlord contracts to repair

f.         Negligence by landlord in making repair

                                                              ii.      Modern Rule: Landlord has a duty to exercise reasonable care towards tenants and guests

1.        Rationale

a.        Lease now viewed more of a contract than a conveyance

b.       Tort incentives placed on the landlord make the world safer

c.        Landlord can discover conditions easier and has incentive to make repairs

d.       Landlord can make repairs more efficiently and insure against damages

                                                            iii.      Criminal Activity

1.        Rule: landlord has duty to take measures which are wi his power and capacity, and which can reasonably be expected to mitigate risk of intruders assaulting and robbing tenants

2.        When arises

a.        Highly foreseeable

b.       In common areas

3.        When inside an apartment, landlord does not have a duty bc requires super foreseeability – however, when prior crimes, may still be liable

b.       Other Special Relationships

                                                               i.      Rule: Special relationships can give rise to a duty

                                                              ii.      Examples: innkeeper/guest, common carriers/passengers, shop owner/shopper, employer/employee, etc.

                                                            iii.      Factors giving rise to duty

1.        Voluntariness

a.        Department store not forced to enter into a relationship with a child

b.       Element of choice blunts the libertarian autonomy argument

c.        Problems with students and inmates

2.        Financial gain – def expects to benefit from the relationship

3.        Shared social expectations

c.        Special relationships and the duty to prevent harm to others

                                                               i.      Rule: there may be a duty to warn when someone in a unique relationship with a source of danger and doer learns that another is in danger of being seriously harmed – persons in danger must be ascertainable

                                                              ii.      Rationale

1.        Social interest in protection

2.        However, imposing duty harms doctor/patient relationship bc patient afraid to talk and doctor afraid to listen bc might be liable – also may cause doctors to start confining everyone

VI.                Strict Liability

a.        Writs

                                                               i.      Writ of Trespass: direct harm where fault did not have to be shown to be held liable

                                                              ii.      Writ of Trespass on the case: indirect harm where fault needed to be shown

b.       Absolute liability:

                                                               i.      Be careful when this term is used – might mean strict and not absolute

                                                              ii.      Absolute liability is strict liability wo defenses available

c.        Main Areas

                                                               i.      Trespass to land

                                                              ii.      Conversion – personal property taken from another and conversion occurs

                                                            iii.      Animals

1.        Domesticated: only strictly liable when dangerous known – allowed one bite

2.        Wild: strictly liable bc known to be dangerous

                                                            iv.      Nuisance

                                                             v.      Abnormally dangerous activities

d.       Abnormally dangerous activities

                                                               i.      Rule: one who carries on abnormally dangerous activities 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

                                                              ii.      Policies

1.        Fairness

a.        If def imposes risk on pl that are vastly different from the risks pl imposes on def, def should be strictly liable

b.       If risks imposed are roughly equal, the person who wants to go to courts will have the burden of proving negligence

2.        Cost Internalization: when a party engages in some dangerous activity, its enterprise should bear the cost of that activity, including injury costs

a.        As price charged for dangerous activities goes up, consumption/demand will go down, decreasing the total danger

                                                            iii.      Factors to determine if abnormally dangerous

1.        high degree of risk of some harm to the person, land, or chattel (probability)

2.        likelihood that the resulting harm will be great (loss)

3.        inability to eliminate the risk by exercising reasonable care (burden)

4.        extent to which the activity is a common usage

5.        inappropriateness of the activity in the location where it is performed

6.        activity’s value to the community v. dangerous attributes

                                                            iv.      Limitations

1.        pl must be harmed by the risk which makes the activity dangerous

2.        If injury is caused by an event which def has no reason to anticipate, he is excused from liability (such as acts of God)

3.        Conduct

a.        Contributory negligence is not a defense

b.       Comparative fault

                                                                                                                                       i.      Some courts allow juries to consider pl negligence to be assigned a percentage of fault

                                                                                                                                      ii.      Others say pl negligence is irrelevant

c.        Assumption of the risk

                                                                                                                                       i.      If jurisdiction has not merged assumption of the risk with comparative fault, it still applies as a complete defense

                                                                                                                                      ii.      Has to be voluntary and knowing

d.       Abnormally sensitive activities – def not strictly liable for harm caused by abnormally dangerous activity if the harm would not have resulted but for the abnormally sensitive character of the pl (no thin skull rule)

VII.              Products Liability

a.        Only applies to products, not services

b.       Old law

                                                               i.      Pl injured by a product could only bring case in negligence

                                                              ii.      The manufacturer only owed a duty to the retailer, with whom it had privity

                                                            iii.      Rationale

1.        Ease of administration: brightline rule makes enforcement easy

2.        Allows parties to privately negotiate standards of safety

3.        Places incentives on consumers to inspect property and make sure it is reasonably safe

                                                            iv.      Reason for departure

1.        Deterrence: economic incentive for manufacturer to exercise reasonable care

2.        Efficiency: do not want dangerous things to be cheap – increase costs of doing business, increase price of product, and lower demand for dangerous things

3.        Insurance: manufacturer in a better position to take the loss

4.        Fairness: consumer cannot protect self

c.        Warranties

                                                               i.      Strict liability concept

1.        Only showing required is that manufacturer made promise and did not follow through

2.        Does not have to prove that def knew or should have know warranty was false

                                                              ii.      Privity is not required

                                                            iii.      Types of warranties

1.        Express warranty - Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes a basis for the bargain creates an express warranty that the goods shall conform to the promise

a.        Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description

b.       Any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model

2.        Implied Warranty of Merchantability – a warranty that the goods shall be merchantable is implied in a contract for the sale if the seller is a merchant wrt goods of that kind

a.        Goods to be merchantable must be at least such as:

                                                                                                                                       i.      Pass wo objection in the trade under the contract description

                                                                                                                                      ii.      In the case of fungible goods, are of fair average quality

                                                                                                                                    iii.      Are fit for the ordinary purpose for which such goods are used

                                                                                                                                    iv.      Run of even kind, quality, and quantity wi each unit and among all units involved

                                                                                                                                     v.      Are adequately contained, packaged, and labeled as the agreement may require

                                                                                                                                    vi.      Conform to the promises or affirmations of fact made on the container or label if any

3.        Implied Warranty of Fitness – where the seller at the time of the contract has reason to know any particular purpose for which the goods are required and the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is an implied warranty that the goods shall be fit for such purpose

                                                            iv.      Exclusions of warranties

1.        Express: negation or limitation is inoperative to the extent that such construction is unreasonable

2.        Merchantability: language must mention merchantability and if written must be conspicuous

3.        Fitness: exclusion must be in writing and be conspicuous

4.        All implied are excluded by such expressions as:

a.        As is

b.       With all Faults

5.        Does not apply to used products (does however apply to reconditioned)

d.       Strict Liability

                                                               i.      Policies

1.        Loss Spreading

a.        Marginal disutility of loss: putting the burden of $1k loss on one person creates greater disutility than putting the burden of $1 on 1k persons

b.       How to spread

                                                                                                                                       i.      3rd party insurance: manufacturers buy more insurance and incorporate the added cost into the cost of the product

                                                                                                                                      ii.      1st party insurance: consumers buy more health, personal injury, and life insurance

                                                                                                                                    iii.      Governmental tax generating fund: mega loss spreading

2.        Deterrence

a.        Manufacturer in better position to prevent product related injuries than consumer – incentive to produce safer products, invest more money in safety

b.       Negligence not enough of a deterrent bc eventually it becomes economically sound just to pay the claims

3.        Cost Internalization

a.        Forces manufacturer to incorporate injury costs into pricing structure – total cost of doing business includes injury costs

b.       Reduces consumption of dangerous products generally – when price of product goes up, the demand go down and creates a market for safer alternative products

4.        Fairness

a.        Only consumers who purchase and enjoy the products share the increased costs

b.       Manufactures through advertising create demand for their products and make implied representations about safety upon which consumers rely, so only fair to compensate consumers when injured by the product

                                                              ii.      Restatement

1.        One engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect

2.        This is not absolute liability – pl still has to prove the product is defective

e.        Manufacturing defect

                                                               i.      Rule: A product contains a manufacturing defect when it departs from its intended design even though all possible care was exercised in the preparation and marketing of the product

                                                              ii.      Pl must prove:

1.        the product departed from its intended design

2.        the defect existed at the time it left the def control

                                                            iii.      pl does not have to prove why the defect occurred

                                                            iv.      Strict liability for this defect

f.         Design Defect

                                                               i.      Attacking the design of the product, not just one particular item but the entire line of items

                                                              ii.      Difficulties

1.        Cannot compare to others like it bc of defect

2.        Any decision has a global effect bc it applies to the entire product line

                                                            iii.      Risk Utility Test

1.        Would a prudent manufacturer have put this product design on the market if he knew of the danger

a.        Measure adequacy of design in terms of dangers the manufacturer must know or reasonably should have known at the time of making

b.       This is like the Hand Formula

2.        Factors – balancing test

a.        Usefulness and desirability of the product

b.       Availability of other safer products

c.        Likelihood and probable seriousness of danger

d.       Obviousness of danger

e.        Common knowledge and public expectations of danger

f.         Ability to avoid (warnings) or eliminate danger wo impairing the product’s use

                                                            iv.      Restatement: 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 by the seller (or other entity in the chain of distribution), and the omission of the alternative design renders the product nor reasonably safe

1.        This is like negligence

2.        pl must present an alternative design

3.        Harm must be foreseeable risk

                                                              v.      Imputed Knowledge

1.        Knowledge at the time of manufacture is like negligence

2.        Knowledge at the time of trial is strict liability

                                                            vi.      Alternative Design Test

1.        In some jurisdictions, alternative design is only one factor to be considered but can also be used as an independent test

2.        Pl has to introduce evidence of an alternative design

a.        This puts burden on pl to redesign product

b.       This allows def to attack pl design instead of defending own design

3.        What makes design reasonable

a.        Technologically feasible

b.       Similar in cost

c.        Effective

d.       Consumer Acceptance

4.        Restatement offers an out if no alternative design

a.        Circumstantial evidence can support an inference of product defect if the harm is the kind of thing that ordinarily occurs as the result of product defect

b.       However, does not allow for generic defects by taking off the market

                                                                                                                                       i.      Rationale

1.        market forces will take care of it – if too dangerous will not be a demand

2.        if government must decide then let the politically accountable take care of it

                                                          vii.      Open and Obvious Test

1.        In a few courts, this is an absolute defense

2.        In most jurisdictions, this is not an absolute bar to recovery, but a factor in the risk-utility test

a.        A product can be obviously dangerous but still not pass the risk-utility test

                                                         viii.      State of the Art – in keeping with the custom and industry

1.        Complying with governmental regulations will not preclude recovery but can be a factor considered

2.        Ask if the best scientific and medical technology that was practically and economically available at the time of design

3.        State of the art evidence shown by def is not usually an absolute defense but just a factor to be considered

                                                             ix.      Consumer Expectations Test

1.        Restatement: A product is considered to be defective if it did not provide a level of safety expected by a reasonable consumer

2.        Minority view:

a.        Consumer expectations are the primary test

b.       No need to show anything about a reasonable alternative design

3.        Majority view:

a.        This is a factor for the risk-utility test

4.        Problems with the test

a.        If danger is open and obvious, not likely to be found defective (results in minimal levels of safety)

b.       Manufacturer maybe able to get around obligations by warning things away

c.        How do you show reasonable expectations

d.       Whose expectations should be considered (buyer or pl)

                                                              x.      Crashworthiness

1.        Majority: design responsibility includes considering the possibility of wrecks and creating a design to make the car reasonably safe if it is in an accident

2.        Restatement: When a product is defective at the time of sale and the defect is a substantial factor in increasing the pl harm beyond that which would have resulted from other causes, the seller is subject to liability for the increased harm

a.        Burden is on the def to separate what harm would normally occur and what harm was caused by the defect

                                                                                                                                       i.      If able to separate, then only responsible for the harm caused by the defect

                                                                                                                                      ii.      If not able to separate, then responsible for all of the pl harm

                                                             xi.      Prescription Drugs

1.        Restatement: a prescription drug or other medical device is not reasonably safe due to defective design if the foreseeable risks of harm posed by the product are sufficiently great in relation to its foreseeable therapeutic benefits that reasonable health care providers would not prescribe the drug or medical device for any patient

2.        Prescription drugs are unavoidably unsafe products – special and more defense oriented standard bc drugs always cause a certain amount of harm (side effects)

3.        Manufacturing defect is still strict liability

4.        Rationale

a.        High benefit to society (drugs save lives)

b.       Difficult to redesign

                                                                                                                                       i.      Based on chemical formulas that yield different products when altered

g.       Warnings

                                                               i.      Restatement: A product is defective bc of inadequate instructions or warnings when the foreseeable risks 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

                                                              ii.      Rationale

1.        Based on consumer choice

a.        Warnings do not make the product safe, they just give people enough information to make a choice of whether or not to use

2.        Claims are recognized for the purpose of vindicating consumer choice and personal autonomy as much or more than for risk reduction

3.        Manufacturers are held liable bc they are in a better position to know the dangers

                                                            iii.      The ultimate consumer and any foreseeable user must be warned

                                                            iv.      Learned Intermediary Doctrine (Doctor/patient)

1.        Rule: Duty to warn patient of prescription drug risks falls on the prescribing doctor

2.        Rationale

a.        Warning is more effectively communicated one on one

b.       Doctor knows the education, sophistication, particular health risks of the patient better than the manufacturer

c.        We trust doctors as an intermediary to provide an adequate warning

3.        Exceptions

a.        Duty to warn may be shifted to manufacturer when the drug is the type where

                                                                                                                                       i.      Patient is actively involved in selecting the drug

                                                                                                                                      ii.      Doctor is a passive bystander – patient not regularly monitored by doctor

b.       Trend: the new mass marketing of drugs in commercials creates more pressure for manufacturers to warn consumers directly

4.        Restatement: A prescription drug or medical device is not reasonably safe because of inadequate warnings/instructions if reasonable warnings/instructions regarding foreseeable risks of harm are not provided to:

a.        Prescribing and other health care providers who are in a position to reduce the risks of harm in accordance with the instructions or warnings, or

b.       The patient when the manufacturer knows or has reason to know that the health care provider will not be in a position to reduce the risks of harm in accordance with the instructions or warnings

                                                             v.      Latin Argument: adequate warnings do not foreclose liability bc people can still make mistakes and are not always rational

                                                            vi.      Compliance with regulations – if do not comply with federal regulations then liable but if do comply only a factor and does not preclude liability

                                                          vii.      Manner of warning

1.        Can be too inclusive or not inclusive enough

a.        Run the risk of over warning in which people will not pay attention to any of the warnings

2.        Warning must be able to communicate to a broad group of people w different education, sophistication, and reading abilities

                                                         viii.      Causation

1.        Pl must show would not have taken/used if properly warned

a.        Problem: do not know if pl is lying

2.        Presumption that warnings are heeded

a.        Many courts raise a rebuttable presumption that a good warning would have been read and heeded when the injured person dies

b.       Policies

                                                                                                                                       i.      Pressure on def to make warning better

                                                                                                                                      ii.      Pl should get something

                                                             ix.      When warning is adequate

1.        Courts reject imputing knowledge of today’s standard

a.        Unfair to the def

b.       Not a meaningful deterrent

c.        Creates strict liability

d.       No way to know the future

2.        Must warn of dangers known at time of manufacture

a.        Makes inquiry seem like negligence

b.       Restatement phrases duty in terms of negligence (foreseeable risks)

h.       Defenses

                                                               i.      Restatement

1.        Contributory negligence not a defense

2.        Assumption of the risk is a defense

                                                              ii.      Comparative Fault

1.        Majority Rule: some form of comparative fault is recognized as a defense to strict liability

a.        Problem: like comparing apples to oranges (negligence v. strict liability)

b.       Rationale: jury is competent in comparing the two

                                                                                                                                       i.      Usually negligence standard anyway (only strict with manufacturing defects)

                                                                                                                                      ii.      Does not dilute incentives bc not every pl will be negligent

2.        Restatement: establishes comparative fault as a defense but leaves the details to the particular states

3.        How to determine percentages

a.        Hand formula: utility of product with this design compared to the risk to the public of product with this design

b.       Foreseeable risks compared with pl deviation from standard of care

                                                            iii.      Assumption of the Risk

1.        Rule: one can agree to accept the dangers of a particular product

a.        Same rule for each jurisdiction wrt if they adopted assumption of the risk – whatever the rule in each jurisdiction is will apply in products liability also

2.        Rationale

a.        If you do not let the consumer have the choice to use a dangerous product and alleviate def liability, product may become too expensive

                                                            iv.      Misuse

1.        Three contexts where considered

a.        Consider if defective or not

                                                                                                                                       i.      If not dangerous when used properly then not defective

                                                                                                                                      ii.      Restatement comment: a product is not defective when it is safe for normal handling and consumption – if the injury results from abnormal handling the seller is not liable

b.       Proximate cause issue

                                                                                                                                       i.      It was not the defect that caused the injury but the pl misuse and this cuts off def liability

                                                                                                                                      ii.      This does not make much sense

c.        Comparative Responsibility

                                                                                                                                       i.      Like comparative fault or assumption of the risk

2.        Restatement: manufacturer’s obligation includes intended uses as well as foreseeable misuses of the product

3.        Comparative Fault: if misuse was foreseeable and therefore cannot be a defense, def should still be able to take pl comparative fault into account

i.         Preemption

                                                               i.      When Congress enacts afety legislation that it has intended to override state law pursuant to the Supremacy Clause in the Constitution then inconsistent state laws do not apply

                                                              ii.      Congressional Intent

1.        Presumption is that Congress did not intend for law to preempt state law

2.        Rationale

a.        Turns federalism on its head

b.       Tort law is traditionally an area for the states

3.        Intent to preempt must be made very clear

                                                            iii.      Difference bt compliance and preemption

1.        Preemption: complete defense – question of federal law

2.        Compliance: may or may not be a defense – question of state law

j.         Pure Economic Loss

                                                               i.      Rule: pl cannot recover damages for economic loss under strict products liability

1.        pl can only recover for physical injury to person or property

2.        could use contract rights to recover (warranties)

                                                              ii.      Restatement: harm to persons or property includes economic loss if caused by harm to

1.        the pl person

2.        the person of another when harm to the other interferes with a legally protected interest of the pl, or

3.        the pl property other than the defective product itself

VIII.            Damages

a.        Compensatory

                                                               i.      Basic Components

1.        Special damages (economic, proven by pay stubs, bulls and receipts)

a.        Past and future medical expenses

b.       Past and future loss earnings

2.        General Damages

a.        Past and future pain and suffering

b.       This is an umbrella for intangible losses such as emotional distress, disfigurement, etc.

                                                              ii.      Rationale

1.        put pl in the same position as before the accident

2.        Make pl as well off as possible

3.        Replace that which has been lost

                                                            iii.      Pain and Suffering

1.        Includes physical pain, fright, nervousness, grief, anxiety, shock, humiliation, indignity, embarrassment, apprehension, worry, mortification, terror, ordeal

2.        How to compute

a.        Per Diem: break down pain and suffering into a cost per unit of pain, then multiply by the total number of units

                                                                                                                                       i.      Pro: adds some form of precision, and def lawyer can always rebut the argument

                                                                                                                                      ii.      Con: gives a false illusion of precision, and pain may wane as years go on

b.       Jury Question

3.        Purpose

a.        No better way to compute pl loss

b.       Sends message to society that intangible loss is no less valuable than economic loss

4.        Consciousness

a.        Most courts say the pl must be conscious to get compensation

5.        Loss of enjoyment of life

a.        If instruction separate from pain and suffering then allows two possible ways to recover

b.       Majority says no separate instruction otherwise overcompensation may occur

                                                            iv.      Adjustments

1.        Must discount for present value and take into consideration merit raises and inflation

2.        Adjust upward for inflation then discount to present value

3.        Ignoring adjustments may allow for a windfall for the pl

4.        Taxes

a.        Compensatory damages are not considered income for tax purposes but punitive are taxable

b.       However, discounting the tax from the award allows for less payment by the def so the def does not have to pay as much

5.        Computations

a.        PV(1.00) = 1.00/(1+i)n  where (1.00) is the award, i is the interest rate, and n is the number of years before you would get the dollar

b.       Interest rate has three components

                                                                                                                                       i.      Risk that the debtor will not pay back (risk of loss)

                                                                                                                                      ii.      Risk of inflation

                                                                                                                                    iii.      Value of having use of the money now

c.        Most courts say 2-3% for interest rate

d.       Inflation considered for both increase in pay and the interest rates

                                                             v.      Collateral Source Rule

1.        Common law rule: if the pl receives compensation from a source independent from a def or other tortfeasor, evidence of those payments is not to be admitted at trial

a.        Rationale

                                                                                                                                       i.      Def ought not to benefit from the pl thrift

                                                                                                                                      ii.      Dilutes deterrence if def payout is reduced

                                                                                                                                    iii.      Double recovery objection is diluted by the doctrine of subrogation

1.        Pl usually has to reimburse the collateral source for any amount he wins in court

2.        Examples of collateral sources

a.        Gratuitous help

b.       Medical/Auto insurance

c.        Worker’s compensation

d.       Government provisions (Medicare, Medicaid, etc.)

3.        Collateral sources cannot recover until pl is fully compensated

4.        Government

a.        Courts are divided in allowing recovery when government is collateral source and also tortfeasor

b.       Incentives standpoint: want the tortfeasor/government to feel the incentives

c.        Fairness standpoint: not fair to make the government pay twice although from different programs/departments

b.       Punitive Damages

                                                               i.      Types of behavior that justify punitive damages

1.        Willful disregard

2.        recklessness

3.        conscious desire to do harm

4.        something more egregious than recklessness

                                                              ii.      Rationale

1.        Punish def

a.        Sometimes def will not be prosecuted criminally or the state will lose bc the burden of proof is higher for criminal court

b.       Instead of placing punishment in state’s hands, the person who is actually injured has more control over punishment

2.        Deter def and other potential def

a.        There is under-use of the tort system

b.       Punitive damages help make up for all the compensatory damages that were not paid bc cases were not brought

                                                            iii.      Burden of Proof: pl must prove the above conduct by preponderance of the evidence – some jurisdictions require clear and convincing evidence

                                                            iv.      Limitations

1.        Some states have caps

2.        Some courts say it depends on def personal wealth

a.        Then the court can tell what a sufficient amount to punish def will be

b.       Very different from criminal law, were fines are specified by statute

3.        Constitutional concerns – 14th amendment due process argument

a.        Arises bc the damages are so open ended, and may result in vastly different awards depending on the jury

b.       There is no check on jury’s discretion

                                                                                                                                       i.      Some courts and legislature therefore have implemented checks on the jury’s discretion such as remittur and additur

                                                                                                                                      ii.      Defense attorneys should always raise this argument in objection to punitive damages

c.        State court can award damages in the aggregate for that state but not nationwide (BMW)

d.       Standard test: shocks the conscience

e.        Alternate test: deviates materially from what would be reasonable compensation

                                                             v.      Pl has a duty to mitigate damages

                                                            vi.      Georgia

1.        Products liability: no cap on punitive but 75% of an award goes to the state

a.        Complicates negotiations

b.       Now attorneys ask the judge to hold off on judgment after the jury verdict so that only the pl and def will negotiate a settlement and state cannot interfere

2.        All other cases: 250k cap on punitive unless:

a.        Def had a subjective desire to harm

b.       Def was drunk driver or on dope

                                                          vii.      Insurance

1.        Moral Hazard Problem

a.        If insurance companies cover punitives, will people feel they have free reign to go beat up people?

                                                                                                                                       i.      Market forces will take care of this – at some point insurance will become too expensive

c.        Incorrect Calculations

                                                               i.      When a tortfeasor makes an incorrect calculation, the courts generally say they did so at their own peril

                                                              ii.      This seems ok if egregious conduct but not fair when a simple mistake

                                                            iii.      If purposely concealing then no reason for def not to pay

d.       Spouses or Children

                                                               i.      Spouse: Generally most states allow the spouse of an injured person to bring an independent action for his own injuries

                                                              ii.      Parent: nearly all jurisdictions allow a parent to recover medical expenses incurred due to injury to the child – may also be an action for loss of companionship

                                                            iii.      Child: some (minority) courts allow a child to recover for loss of companionship or guidance where a parent is injured

                                                            iv.      Defenses

1.        Wrt 3rd parties, any defense that can be raised against the injured party can also be raised against a 3rd party

e.        Wrongful Death

                                                               i.      Two types of statutes

1.        Survival: governs whether the victim’s own right of recovery continues after his death

a.        Provides that when a victim dies, his estate may sue for those elements of damages that the victim himself could have sued for if he lived

b.       In many states, if death is instantaneous, there is no survival action at all, since all damages are sustained on account of or after the death

2.        Wrongful death: governs the right of the victim’s survivors to recover

a.        Most states allow a defined group to recover for the loss they have sustained by virtue of the decedent’s death (typically spouse and children – if none then parents)

                                                              ii.      Wrongful death elements of recovery

1.        economic support

2.        companionship and moral guidance

a.        Some states allow a parent to recover for loss of companionship when a child dies

3.        Some states also allow for grief

4.        Defenses

a.        def may asset any defense which he would have been able to use against the decedent if the decedent was still alive and suing in his own name

IX.                Defamation

a.        Definition: material is defamatory if it tends to harm the reputation of a person or lower that person in the estimation of others from associating with that person – generally though of in terms of reputations – protects a person’s interest in continuing willingness of others to associate with him

                                                               i.      Purpose: to protect one’s reputation

                                                              ii.      No survival right of actions – dies when the defamed person dies

                                                            iii.      Suffering emotional distress is irrelevant

b.       Rule: if no one could believe it, it does not hurt your reputations and therefore no defamation

c.        Types

                                                               i.      Libel: historically meant written, now needs to be permanent

1.        Per Se: defamatory on the face of the statement

a.        Presumed damages

b.       Can recover for damages even if no actual damages incurred

2.        Per Quod: extrinsic evidence makes the statement defamatory

a.        Must prove special damages

b.       Nothing is presumed – must show reputation harmed

                                                              ii.      Slander: spoken words; takes on a more temporary form

1.        Per Se: falls into one of the following categories and the damages are presumed

a.        Loathsome disease

b.       Criminal conduct/moral turpitude

c.        Sexual misconduct

d.       Undermining one’s reputation in business or trade

2.        Per Quod

a.        Must prove special damages

                                                            iii.      NOTE: when content of the statement is of public concern or involves a public figure, regardless of categorical distinctions, special damages must be proven

d.       Elements

                                                               i.      Publication

1.        communication seen or heard must be to a 3rd person

a.        Exceptions

                                                                                                                                       i.      If everyone present is defamed as a group then no defamation

                                                                                                                                      ii.      If said and no one hears, then no defamation (same with written)

2.        Negligence standard used for publication (def knew or had reason to know it would be published)

a.        So if something defamatory sent to someone who is blind, have reason to know a 3rd person would read to him – republication

                                                                                                                                       i.      Compelled Republication: if circumstances demand that pl repeat defamatory material, def can be held liable

                                                                                                                                      ii.      Institutional Republication: (such as library and bookstores) only liable where they knew or had reason to know that material was defamatory

1.        One who fails to remove defamatory material from premises may be liable if statements known to exist

b.       If A has no reason to know C will open letter to B, probably not liable

                                                                                                                                       i.      Form matters: if sending something like a fax, more likely to be seen by others then in an envelope marked private

3.        Majority rule: (Restatement position)

a.        If communication reaches a 3rd party other than person who is defamed, even if an agent of the defaming party, the statement is published

b.       Agents of a corporation are irrelevant if there is a communication bt two people – internal communications are publications

                                                                                                                                       i.      Defense allows certain statements if made with a legitimate business interest

4.        Minority Rule: corporation is viewed as one entity so if communication bt two people (such as president and secretary) no publication

                                                              ii.      Of and Concerning

1.        Rule: where a reasonable group of people would understand it as referring to the pl, a statement will be held to be of and concerning the pl – must have enough similarity to pl so that people could reasonably understand a statement refers to the pl

2.        Common Law Standard: strict liability – state of mind of def is irrelevant

3.        The larger the group referred to the harder to prove of and concerning – example:

a.        If said all lawyers in firm of 300 lie then less likely to be of and concerning

b.       If said all lawyers in firm of 3 lie then more likely to be of and concerning

c.        Definitely not defamatory when said all lawyers lie – too large and undefined group to be of and concerning

                                                            iii.      Defamatory Meaning

1.        Rule: words that would lower one’s reputation in the community or would deter 3rd persons from associating or dealing with the defamed party

a.        Does not require statement invite hatred or ridicule

b.       What has and has not been held defamatory:

                                                                                                                                       i.      Has: attempted suicide, liar, immoral, coward, drunk, etc.

                                                                                                                                      ii.      Has not: did not make concession with union, dead, overly cautious with money, no permanent address, labor negotiator, not taking communion in church, etc.

2.        No bright line test: what is defamatory changes with the times (example: communist)

3.        Strict liability

4.        Context Matters

a.        Might be defamatory in one context but not another (could be figurative)

b.       Substantial Truth Test: in order to claim the truth defense, must meet standard of substantial truth

                                                                                                                                       i.      Complete truth not needed

c.        Opinion

                                                                                                                                       i.      At common law, opinions are not defamatory

5.        Standard

a.        Does not have to be the majority of the community – pl can prevail if any respectable substantial minority would consider the remarks defamatory

b.       When statement simply offends some person with a peculiar view the majority says not defamatory

c.        The actual extent/number of people who hear/read the comment can be taken into account when assessing damages

6.        Figurative language

a.        When considered in the context under which the statement was made, figurative statements are not defamatory bc they do not deter others from dealing with you

b.       Policies

                                                                                                                                       i.      Public value of free discussion

                                                                                                                                      ii.      Does not really have to be fair to be allowed

7.        Fair Comment Rule

a.        If you accurately state facts and then give an opinion, the statement is not defamatory

b.       If facts are accurately recounted or are readily available, and then speaker’s opinion is given words are protects as fair comments

c.        Rationale

                                                                                                                                       i.      If the facts are property stated, defamation does not occur bc the reader can make own assumptions

d.       Policies

                                                                                                                                       i.      Public values of free discussion and opinions

                                                                                                                                      ii.      Does not really have to be fair to be allowed

                                                                                                                                    iii.      Not really used in light of constitutional rules

                                                            iv.      Damages

1.        Steps in Analysis

a.        Determine if the statement is libel or slander

b.       Determine if it is per se or per quod

                                                                                                                                       i.      Slander per se: in one of the 4 categories then presumed damages

                                                                                                                                      ii.      Slander per quod: must prove special damages

                                                                                                                                    iii.      Libel per se: most courts give presumed damages

                                                                                                                                    iv.      Libel per quod: proof of special damages needed

c.        If you are able to prove special damages you can also recover general damages

d.       Punitive damages: principles are the same as for any other tort – recoverable if the defamatory conduct is sufficiently egregious

e.        When defamatory statement is a matter of public concern, consider constitutional limits

2.        Emotional Distress: you can recover for this provided that you first show that you have some relational harm – have to piggy back this on top of the defamatory claim, whether your claim is per quod or per se (easier to piggy back on per se)

3.        Special Damages

a.        Loss of job

b.       Loss of customers

c.        Loss of marriage

d.       Preventing the conferring of a benefit that otherwise would have been given

e.        Must show relational harm to prove special damages – emotional distress is not enough

4.        General/Presumed Damages

a.        Pl can get damages wo having to prove any special damages or loss of business when per se

b.       Still want to present evidence to increase possible award and chance of special damages

                                                             v.      Common Law Defenses

1.        Substantial truth

a.        Absolute defense

b.       Must be substantially true even if not 100% accurate

c.        Def has the burden of proof by a preponderance of the evidence

2.        Fair Comment

a.        Privilege in the public sphere

b.       Not used much anymore

3.        Consent

a.        Absolute privilege

4.        Privileges in the Private Sphere

a.        Def has the burden in showing that there was a privilege

b.       Freedom of speech does not protect def when he makes an untrue statement bc this is outside of the public sphere

c.        Communication made in furtherance of a legitimate interest of the speaker, recipient, or in their common interest

                                                                                                                                       i.      Balance Interest of legal, moral, social duty with the potential harm of the communication if turns out not to be true

                                                                                                                                      ii.      May make a difference if communication is volunteered or requested, and who made the request

                                                                                                                                    iii.      Typically, the def must be making a good faith statement

d.        Categories of legitimate interests

                                                                                                                                       i.      Statements made in the course of business

                                                                                                                                      ii.      Credit reports

1.        Majority: privileged – most states say that the balance weighs in favor of these being privileged bc there is a strong business interest in this information – furthers trade and business

2.        Minority: not privileged

                                                                                                                                    iii.      Self-defense – can say words to protect own reputation

                                                                                                                                    iv.      Publication to spouse regarding spouse’s conduct usually not privileged

e.        Ways to disqualify privilege

                                                                                                                                       i.      Actual Malice: if def (regardless of motive) knows information to be false or acts with reckless disregard to its truth or falsity

                                                                                                                                      ii.      Malice

1.        Bad motive

2.        when motives are mixed, if more than one motive, look at the dominant purpose of the communication

                                                                                                                                    iii.      Excessive Publication – telling more people than legitimately need to know (showing credit report to a bunch of people not involved)

5.        Privileges in the Public Sphere

a.        Judicial Proceedings

                                                                                                                                       i.      Absolute privilege – any statements made as part of judicial proceedings are not actionable, regardless of the speaker’s motives – this includes statements that are made in the complaint, by witnesses, etc (regardless of truth or motive)

                                                                                                                                      ii.      Policies

1.        Vigorous advocacy and freedom of speech for witnesses is socially useful

2.        Allows lawyers to vigorously represent clients

3.        Very valuable to the judicial process

4.        Other sanctions for lying in courtroom

5.        Do not need as many rules when dealing with lawyers and judges – less likely that judges and lawyers will say false/defamatory remarks

6.        professional standards of responsibility that will deal with the lawyers who lie

7.        person making statement is under oath so technically is not a lie

b.       Police: if you lie to the police, no slander – since you know that you will have to talk under oath later, that argues in favor of privilege (important to have absolute privilege in investigating crime, but maybe not when you are only investigating job performance)

c.        Reports of public proceedings/meetings – fair summary

                                                                                                                                       i.      Fair summaries of public proceedings are privileged as long as it does not convey a greater sting than the actual report

                                                                                                                                      ii.      Does not have to be completely accurate, just generally accurate and wo a greater sting

                                                                                                                                    iii.      Must be an unfair summary caused by the negligence of the speaker – must be a greater sting

                                                                                                                                    iv.      Policies

1.        discourse in democracy

2.        utility – fair comment enlightens mankind

6.        Constitutional Issues

a.        Constitutional law trumps statutes and common law on matters of public concern

b.       Policy: protects vigorous debate on matters of public concern

c.        Problem: line drawing

d.       New York Times Rule: public officials can only win for defamation when the statement relates to his official conduct and is made with actual malice

                                                                                                                                       i.      Not absolute as there is a greater need to protect in the public sphere

                                                                                                                                      ii.      The court could have decided this case under the doctrine of substantial truth

                                                                                                                                    iii.      Public Official: those governmental employees who have or appear to have substantial responsibility for or the control over conduct of public affairs

1.        Includes police officers and political candidates

2.        Do not include public school teachers

3.        Courts are split on whether a high school teacher is a public official

                                                                                                                                    iv.      The speech must actually pertain to the official conduct – this is interpreted very loosely by the court – it is very rare for the court to say that a fact is not relevant to person’s position as a public official

                                                                                                                                     v.      Burden of proof on pl to prove actual malice by clear and convincing evidence

                                                                                                                                    vi.      Policies

1.        Public debate should be uninhibited, robust, and wide open

2.        Democracy and self-government require free exchange of information, and the free exchange of ideas is needed so that people can self-govern – the people, not the government, posses the absolute sovereignty

3.        Unfair to make press bear cost of false statements bc they are not the principle beneficiary of making the statements

4.        Judicial system best suited to govern speech bc it allows dissenting voices, not just the majority

5.        Some false speech must be protected in order to allow breathing space avoiding self-censorship in fear of making a mistake

6.        do not want to create a situation of self-censorship

                                                                                                                                  vii.      Why have outer limits on what can be said:

1.        people have legitimate interests in their reputation

2.        do not want to discourage public officials from running for office

3.        free exchange is good bc it helps us self-govern, false information needs to have a filter on it bc we do not want a lot of false information floating around

e.        Butts Rule: public figures can only win for defamation if they can prove actual malice

                                                                                                                                       i.      Public Figure

1.        A person of general prominence, but not just anyone in the public finds to be interesting – private individuals involved in deciding public questions or shaping events in areas of conern to the public at large

2.        If person thrusts self into limelight then usually a public figure

3.        one can become a public figure involuntarily (Lewinsky)

4.        Cannot be a public figure as the sole result of a defamatory remark

5.        It is possible that a person may lose public prominence and as a result lose their status as a public figure

                                                                                                                                      ii.      Limited Purpose Public Figure: court may distinguish bt public and private aspects of a person’s life

1.        They will be hold to public figure standard for statements made about public life, but a private person standard for statements made about private life

                                                                                                                                    iii.      Policies

1.        Public figures have just as much influence over public affairs as public officials

2.        Have access to the media to respond and defend themselves

3.        Assume the risk by getting involved in public activities

4.        Still focus on the need for self-government

5.        Put up with a premium that is put on ignorance in order to allow breathing space and room for the free flow of ideas

f.         Gertz

                                                                                                                                       i.      Private individuals/private speech

                                                                                                                                      ii.      Rule: private individuals can win for defamation in speech regarding public concern by meeting a negligence standard (at least) on all elements of common law defamation – private individuals are not subject to the NY Times test

1.        Applies to media def

2.        Negligence

                                                                                                                                    iii.      Policies

1.        Recognizes legitimate state interest in protecting the reputation of private individuals

2.        Private persons need more protections, as they cannot rebut the defamation as easily

3.        Private persons have not assumed the risks associated with public life

4.        An accommodation bt constitutional and state interests

5.        Changes common law strict liability of of and concerning to negligence standard – also changes the strict liability defamatory content standard to negligence as well

                                                                                                                                    iv.      Def might be negligent regarding:

1.        the truth or falsity of the statement

2.        Publication

3.        Of and concerning

4.        Defamatory content

                                                                                                                                     v.      Damages

1.        if negligence is proven on all elements, then limited to actual proven damages

2.        When using the negligence standard, have to prove your damages

3.        Presumed and punitive damages only allowed where actual malice is proven

                                                                                                                                    vi.      Proving Negligence

1.        Some courts measure negligence of journalists against a reasonable person standard

a.        Allows evidence of the profession but is not dispositive

2.        Some courts will measure against the standards of the profession

3.        Restatement

a.        Time element: the more topical that a story is, the lower the standard

b.       How the story bears on matters of public concern – the more important the lower the standard

                                                                                                                                                                                                               i.      Sliding scale as to how closely it relates to self-government – the close the relation, the less checking that is required

c.        Likelihood of serious harm

4.        Some courts apply a cost benefit analysis measuring costs of investigation against the benefits of publication

                                                                                                                                  vii.      Virtually everything in the newspaper is of public concern

g.       Dun and Bradstreet

                                                                                                                                       i.      Rule: Private individuals/private content can win defamation by meeting the common law requirements

                                                                                                                                      ii.      This is outside the constitutional domain

                                                                                                                                    iii.      When pl is private and speech is of a private concern then no constitutional issues arise

                                                                                                                                    iv.      Allows presumed and punitive damages

                                                                                                                                     v.      Strict liability can apply

                                                                                                                                    vi.      Court here said that a credit report sent to only 5 people is not of public concern

h.       Hepps

                                                                                                                                       i.      Rule: when speech involves public figures, officials, or concerns then pl has burden of proof to show falsity

                                                                                                                                      ii.      Policies

1.        Where free speech is involved ties should favor the def

2.        Another way of protecting free speech

                                                                                                                                    iii.      Burden of proof

1.        Public pl: clear and convincing evidence

2.        Private pl/public concern: preponderance of the evidence

3.        Private pl/private concern: common law rules apply (def has to prove statement was true as a defense)

                                                                                                                                    iv.      Rationale

1.        logical: pl already has burden on proving the state of mind of the def and the evidence will overlap

2.        Pl should show that his reputation that he is trying to protect is deserved and that the statement is therefore false

i.         Fact v. Opinion

                                                                                                                                       i.      Milkovich: no constitutional protection for opinions

1.        Rationale

a.        Opinions can be used to express facts, even if couched in opinion form

b.       Def is protected anyway bc under Hepps it is hard to prove the falsity of a statement when it is made as an opinion (subjective)

c.        Other rules are sufficient to protect free speech

                                                                                                                                      ii.      Determining actionable remarks

1.        must be able to be proven false

2.        must be understood as truth by a reasonable person

                                                                                                                                    iii.      Considerations of context

1.        Milkovich: context only matters to the extent that it helps determine the understanding of the reasonable person – nothing beyond that – no constitutional privilege for opinion

a.        Pl still cannot recover except for false statements of facts, which is very hard to prove that someone’s opinion is false

b.       If a given statement can reasonably be interpreted as a statement of fact and the pl can prove that it is false, he can win

j.         Emotional Distress/Outrage

                                                                                                                                       i.      Hustler v. Falwell: parody – cannot sue for defamation unless statement is put forward as a true statement, and a parody is clearly not put forward as being a true statement

                                                                                                                                      ii.      Wrt public officials – no recovery can be had unless pl can prove statement was put forward as a fact and was made with actual malice (must be something that people would reasonably believe is a true statement)