delman torts ii fall 2011

Torts II Outline Professor Delman Fall 2011

STRIC LIABILITYI. Animals

a. A possessor of a wild animal is subject to S/L to another for harm done by the animal to the other, even if exercised the utmost care.

b. The liability is restricted to harm that results from a dangerous propensity that is characteristic to the animal, of which the keeper knows or has reason to know.

c. Domestic animals: One is not S/L for injuries casued by a domestic animal unless the D has “scienter” or knowledge of the dangerous propensity of the animal.

d. Wild or domestic depends on the time and place it is kept. II. Injury to third parties

a. Licensees and invitees injured by wild or domestic animal may recover in S/L

b. Tresspassers generally cannot unless the landowner knows of their presence and fails to post a warning.

III. Abnormally dangerous activitiesa. One who carries on an abnormally dangerous activity is subject to liability

for harm to the person, land or chattels of another resulting from the activity although he has exercised the utmost care to prevent the harm.

b. Involves a risk of serious harm c. That cannot be eliminated no matter how much care is usedd. And is not a matter of common usage.

i. Three tests to see if activity is abnormally dangerouse. Rylands v Fletcher: Natural v Unnatural:

i. Analyze whether the usage is non-natural (non-customary)ii. And whether the activity is dangerous and inappropriate to the

place iii. In light of the place and its surroundingsiv. Man made + non-customary+ very dangerous = S/l

f. First Restatement i. Focuses whether the activity is per se ultrahazardous

ii. Involves risk of serious harm which cant be eliminated even with utmost care

iii. Not a matter of common usageiv. Does not focus on whether the activity is appropriate to locale

1. Can be appropriate even though not commong. Second Restatement

i. Broader terms, encompasses less extreme risks, applies to activities that cannot be made safe with reasonable care, allows the judge to

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consider social value of the activity and its location in deciding whether to impose strict liability.

ii. Six factors to determine the totality of the circumstances1. High degree of risk2. The risk is of serious harm3. Inability to eliminate risk with reasonable care4. Not a matter of common usage5. Inappropriate to place carried on6. Risk outweighs its utility (value to the community vs

dangerous unavoidable risks)IV. Defenses to S/L

a. Assumption of risk bars recovery in a S/L actioni. Analyze whether P knew of the danger and voluntary encountered

b. Contributory negligence not a defense to S/LV. 4 STEP APPROACH TO S/L PROBLEMS

a. Determine if within the class of animals or dangerous acivityb. Determine whether the harm suffered was within the inherent risk of the

activity. c. Analyze the foreseeable manner, and whether there were any intervening

events.

VICARIOUS LIABILITYI. The tortious conduct of one is imputed to the other based upon their relationship,

so the liability is indirect. II. Employee- respondeat superior: An employer is liable for the tortious acts of

employees who are acting within the scope of the employment. a. EE-ER: relationship exits where the ER maintains the right of control and

direct the manner and the means by which the details of the work are to be executed.

b. Scope of employment acting in some way to further employer’s business

c. Detour, or slight deviation is within scope of employmentd. Frolic, or substantial deviation is not within the scope (look if

foreseeable)e. Factors to determine the scope of employment deviation

i. Employee intentii. The nature, time, and place of deviation

iii. The time consumed in deviationiv. Work for which employee was hiredv. The incidental acts reasonably expected by employer

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vi. Freedom allowed to employee in performing responsibilitiesf. Majority: Control test

i. Conduct is within the scope of employment if it is subject to a right of control by the party to be vicariously liable

g. Minority- Benefit of the enterprisei. Even in the absence of a right of control, enterprise is vicariously

liable if employee’s conduct would have benefited the enterprise. h. The tort feasor is still liable for own tort, VL imposes additional liabilityi. Usually the underlying tort is negligence, but intentional can also be

within the scopeIII. Independent contractors: employer of IC in not vicariously liable for the torts of

the IC. a. ER-IC when IC does work according his own methods and judgment, is

not subject to ER except to the result of work, and has the right to dorect how and in what manner the work be performed.

b. 4 exceptions i. Nondelegable duties of the ER, arising out of some relationship

with public, or plaintiff which threaten risk of serious bodily injury.

ii. Negligence in selecting of supervising the ICiii. Inherently dangerous activities: calls for more than ordinary

caution, ONLY applies where harm is directly related to the risk that makes the activity dangerous (does not have to be abnormally dangerous)

iv. Illegal activities of ERc. Factors to determine EE or IC

i. Extent to which employer controls details of workii. Does a person have specialized training or skill

iii. Customs of the occupationiv. Who supplies the instrumentalities of workv. Length of time the employment to last

vi. Method of paymentvii. Whether the work being done is part of ER regular business

viii. Parties belief as to the nature of their relationshipMISREPRESENTATION

I. Also called deceit and fraudII. Intentional misrep., negligent misrep., strict liability misrep.

1. D’s misrepresentation of material fact2. Requisite state of mind3. Intent to induce reliance4. P’s justifiable reliance

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5. Damages6. Defenses

III. Misrepresentation of material facta. Misrepresentation is words or actions that create a false impression of

realityb. Common law: caveat emptor (no duty to disclose)c. Modern: D has duty to disclose if has knowledge of a defect and P could

not discover the defect by exercise of reasonable diligence. d. Material if

i. Reasonable person would attach importance to it before entering into the transaction, or

ii. D has reason to know that this particular P considers the information important.

e. Fact: has to be fact NOT opinionIV. Requisite state of mind

a. Intentional: Fraud/deceiti. D knew the misrepresentation was false

ii. D acted with reckless disregard for truth or falsityiii. Reckless if D was consciously aware of his lack of knowledge

about truth or falsityb. Negligent:

i. Failure to determine truth when there is duty owed to Pii. Duty to speak carefully

1. D knows the info is desired for a serious purpose2. P intends to rely on it3. If false P will be injured4. Relationship between the parties has the right to rely on the

otheriii. Do quick breach of the duty analysis

c. Strict liability:i. Rare circumstances

ii. Do not need to prove state of mind. V. Intent to induce reliance

a. P must prove that D wanted P to rely on the misrep. b. If direct communication easily satisfiedc. If indirect or to third parties, analyze

i. Majority rule: 1. Reason to expect reliance if

a. D knew that P or P’s class would relyb. D made representation wih that in midc. Linking conduct (some jurisd.)

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ii. Minority rule: Foreseeability1. If fraud, no class restriction on P2. If negligent, limited potential class of P

VI. Justifiable reliancea. P must establish that he relied on the representation made by D and his

reliance was reasonale or justifiabl. b. Actual reliance

i. Proves causation- the misrep must have caused P’s actionii. Material: something important to the ransaction that influenced P

c. Reasonable person would have relied on the misrep.i. Exception: If D knows P is gullible, judged form tha POV

d. Fact v Opinion: fact if you can prove at the time of making it to be true or false

i. P has no duty to investigate apparently reliable statementsii. Can’t ignore obvious warning signs

iii. Look for special knowledge of P which makes the reliance unjustifiable

iv. the relationship of the parties makes one to rely on the other’s good conscience

v. Prediction of future event is not actionablevi. Present intent to never perform in the future is fraud

VII. Damagesa. Actual damages are requiredb. Majority benefit of the bargain

i. Difference between the value of what P got and what would have gotten had the rep. be true(promised-received)

c. Minority out-of-pocket i. Difference between what P paid and what P got (amount paid-

actual value)VIII. Defenses:

a. Intentional misrep: assumption of risk onlyb. Negligent misrep: contributory negligence, comparative negligence,

assumption of the risk

PRODUCTS LIABILITYRefers to the liability of a seller of a tangible item which, because of a defect, causes injury to its purchaser, user, or bystander.

I. General rulea. Commercial seller who sells a productb. With a defective condition that is unreasonably dangerousc. Is liable for harm to persons or property caused by the defect.

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II. Commercial sellera. Product’s manufacturerb. Retailerc. Other person in the distributive chain d. Do not need privity between P and D

III. Defective condition (manufacturing, design, and failure to warn)a. Manufacturing defect the product is unreasonably dangerous if

i. The product unit differs from other units D manufactures; andii. Because of this deviation, the product is more dangerous than other

iii. Because the product deviated from the intended design1. The manufacturer is strictly liable even though all possible

care was exercised in preparation and manufacturing it. b. Design defect all of the similar products manufactured by D are the

same, and they all bear a feature whose design is itself defective and unreasonably dangerous (the design is poor or flawed)

i. Unreasonably dangerous tests1. Consumer expectation test the product is more dangerous

than would be contemplated by the ordinary consumer with ordinary common knowledge about its dangers.

a. What does the consumer reasonably expect knowing the quality, the dangers that are commonly known to be connected to this product or what the customer knows from the warning of the product.

ii. Imputed knowledge would seller have been unreasonable in selling the product if the seller had known of its harmful or dangerous condition.

1. Imposes constructive knowledge of the risk on the manufacturer and then asks whether it would be unreasonable for the manufacture had actual knowledge of the risk.

iii. Risk- Utility test1. Usefulness and desirability of the product its utility to

the user as a whole2. Likelihood and severity of injury the likelihood that it

will cause injury and the probable consequences3. Availability of alternatives that will meet the same need

and not be unsafe4. Practicability 5. User’s ability to avoid danger6. User’s expectations7. Feasibility of manufacturer spreading the risk

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iv. P needs prove that the risk of harm was foreseeablev. Which could have been reduced or avoided by

vi. The adoption of a reasonable alternative design. c. Warning defect the maker has neglected to give a warning of a danger

in the product, and this lack of warning makes an otherwise safe product unreasonably dangerous.

i. Has to be conspicuous, complete, something that will effectively want the foreseeable user

ii. Manufacturer may not have to warn of an obvious danger, oriii. Miht have to warn of an allergy or unusual side if foreseeable to a

substantial number of people1. Ask to determine whether warning defect.

iv. Did the manufacturer know or should have known of the danger?v. Was he negligent in failing to communicate the warning?

1. Special casesa. Obvious hazards no duty to warnb. Sophisticated users can defend by saying the P

didn’t need a warningc. Prescription drugs it is the doctor’s duty to tell

the patientd. Post-sale duty to warnif the manufacture learns of

a defect after the sale has a duty to give a post-sale warning.

e. Causal link need to show a causal link between the failure to warn and the actual injury.

IV. Persons or propertya. Purchaserb. Userc. Bystander

V. Caused by the defecta. The product needs to leave the defendant in the manner in which it caused

the harmVI. Defenses

a. Comparative and contributory negligence are defensesb. Product misusec. Assumption of the riskd. Ignoring safety precautionse. Use for unintended purpose

DEFAMATIONI. Defamatory communication about P

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a. Adversely affecting plaintiff’s reputation (on its face or per quod?)b. Contains an element of obloquy (disgrace, verbal abuse)

i. External context – sometimes extrinsic evidence may be needed to explain why a statement is defamatory that does not appear to be on its face.

ii. Thus, P must introduce external evidence in 2 ways:1. Inducement – P pleads extrinsic evidence to support his

claim that a statement is known by certain persons to be defamatory in its meaning, AND

2. Innuendo – the P must then allege the meaning that he thinks flows from the combination of the statement and extrinsic evidence – it is not a fact

c. Reasonably interpreted as referring to P P must show that the statement was understood to refer to, though not necessarily aimed at, the P

i. colloquium – used to establish that the P is the person defamed1. supply information or evidence that leads one to believe

that the defamatory statement had to be about the P – external proof

2. if your name is referred to, then no need for colloquium3. equivalent of inducement and innuendo in proving

defamatory statementii. Group defamation look at the size of the group and to how

many was referred to in the statement. 1. If > 60, inclusive group can’t sue indefinite, unless

special circumstances2. If part of the group analyze why is it referred to P3. If personal to employee corp. can’t sue4. If affects the corporation can sue5. The use of name alone is insufficient… need more

II. FALSE Communication must be materially false a. If substantially true, not actionableb. Defendant can’t prove truth of specific instances alleged to have been

done by plaintiff with other specifics that didn’t happenc. can’t prove truth of specific instance by showing generally bad character

of plaintiffIII. PUBLICATION statement must reach at least one third party who

understands a defamatory thrust from the statementa. Negligent or intentional repetitionb. Single publication rule

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i. Repeater liability one who repeats a defamatory statement made by another is held to have published it and is liable as if the first person.

c. Internet provider immune when content comes from another sourcei. Liable for foreseeable repetitions

ii. Liable even when naming source or when denying beliefIV. FAULT

a. Fault (degree of fault depends on who the parties are and the type of speech involved)

b. Public or private plaintiff? (NY Times, Gertz)i. NY Times: must show actual malice for a public official to

recover under defamation in an issue of public concern. ii. Actual malice knowledge that it is false OR reckless disregard of

its falsity1. Must have sufficient evidence to permit the conclusion that

D in fact entertained serious doubts2. Higher standard than reasonable man3. “failure to investigate” is insufficient4. Need clear and convincing evidence

iii. Public figure those who put themselves in the particular public controversy

1. Limited voluntarily injects himself in partivular public controversy

2. All purpose individual who achieves such pervasive fame as to become public figure for all purposes

iv. Public officials 1. Public employees2. Candidates for office

c. Media or non-media defendant? (NY Times, Dun & Bradstreet)d. Speech of public or private concern? (Dun & Bradstreet)

i. Content, context, formii. Libel written or printed words

1. Libel per se: defamatory on its face2. Libel per quod not defamatory on its face

iii. Slander spoken words1. Slander: not defamatory on its face2. Slander per se: defamatory on its face

Defenses to Defamation Complete Privilege – absolute privilege for anything defamatory said in relation to

matter at issue

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Judicial Proceedings: applies to any communication made during litigation (including pleadings, discovery, by parties, attorneys, witnesses, jurors, judge,)

Legislative Proceedings: debate, voting, reports, committee work, official publications

Executive Communications: certain executive officers in the discharge of their duty

Conditional Privilege – must be exercised for proper purpose and in proper manner or will be lost(if acts primarily from malice) Privilege to defame to protect Δ’s own interest (publisher) Privilege to protect interest of a third party (old employer new employer) Privilege to protect a common interest (public mistake about a crime)

Abuse of conditional privilege Even if conditional privilege exists it may be abused

Actual malice Excessive publication

Public Figure/Official Private Figure

Public Concern

NYT – actual malice1. knowing or reckless

disregard2. presumed damages

Gertz – negligence1. some fault plus actual

damages2. unless NYT is

established, then presumed/punitive allowed

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NUISANCE Not a separate tort. Interference with public right OR interference with right to

use and enjoy propertyPublic

While exercising public right, plaintiff suffers substantial damage Damage is different in kind, not just greater in degree, than that suffered by

general public The defendant must have had control over the instrumentality at the time of

damagePrivate

An unreasonable interference with P’s use and enjoyment of his land. Action for Damages:

Has to be tortiouso Intentional: Negligent or reckless: Strict liability

Must show substantial Interferenceo If merely a small inconvenience there will be no recoveryo Affects property value

Has to be unreasonable Interferenceo An amount that would be unfair for plaintiff to suffer without

compensationo the harm to P outweighs the utility of D’s conduct

With Plaintiff’s Use and Enjoyment of PropertyAction for Injunction, add:

Defendant’s Use is UnreasonableBalancing the equities1.Tangible vs intangible harm2. Extent of harm 3. Utility of plaintiff’s right being interfered with4. Utility of defendant’s use 5. Burden on plaintiff of avoiding the harm 6. Hypersensitivity of plaintiff 7. Suitability of activity to the location 8. Relative economic hardship on the parties 9. Priority in time of respective uses 10. Defendant’s motive

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INVASION OF THE RIGHT OF PRIVACYAPPROPRIATION OF NAME OR LIKENESS

One who appropriates to his own use or benefit the name or likeness of another for benefit of D’s commercial advantage, is subject to liability to the other for invasion to his privacy.

1. Unauthorized use 2. Of plaintiff’s name or likeness 3. For defendant’s benefit 4. Causing damage to plaintiffINTRUSION

One who intentionally intrudes physically or otherwise upon the solitude or seclusion of another will be liable to P for invasion of his privacy if the intrusion would be highly offensive to a reasonable person

o No publication requiredo Ex. Taking photos, eavesedropping, examining personal files

1. Invasion2. Of plaintiff’s solitude (private place)3. Which would be offensive to a reasonable personPUBLIC DISCLOSURE OF PRIVATE FACTS

One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is

o Highly offensive to a reasonable person, ando Is not a matter of legitimate public concern.

Liability may attach even if the publication is true. Public disclosure of private facts is not actionable where the publication is

newsworthy. 1. Publicity2.Of plaintiff’s private facts3.The disclosure of which would be highly offensive to a reasonable personPublicity placing person in false light

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy if

o The false light in which the other was placed would be highly offensive to a reasonable person, and

o The actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter.

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delman torts ii fall 2011

Documents

extrinsic evidence

abnormally dangerous

utmost care

strict liability

ny times

private facts

causal link

unreasonably dangerous