Torts- Spring
Semester Outline (Professor Pruitt)
I. Proximate Cause
v
Proximate Cause
o
Negligence
§
Duty
§
Breach of Duty
§
Actual Cause
§
Proximate Cause
§
Damages
o
Not all actual causes are proximate causes
o
Proximate cause is about consideration of
fairness and justice. Juries are making
the decision whether it is fair the hold the ∆ liable for Π’s injuries.
o
Proximate cause checklist:
§
Substantial factor
§
Reasonable foreseeability of...
§
Direct connection between breach of duty and the
harm done—as opposed to intervening or superseding causes
§
Natural and continuous sequence
§
Remoteness (in time an place)
§
Risk- or loss-spreading function of tort law
(availability of insurance)
§
Common Sense
o
Foreseeability
§
Reasonable foreseeability= liability (Weirum)
·
Exceptions to the rule, no foreseeability needed
with regard to extent of injuries or damages (remember Vosburg- Eggshell
Π)
o
But does not apply to property damages
o
Ford
v. Trident Fisheries Co.
§
Π’s
husband killed when thrown overboard. Π claims that the ship owner was negligent in
not having proper lifeboat equipment.
§
Court
ruled that even though ∆ was negligent, but the husband disappeared in
water right away and the life boat couldn’t have saved him even if had proper
equipment.
o
§
Π’s
wife killed when she suddenly backed up her car from the driveway to the street
and was struck by ∆’s truck
§
Jury
found that ∆ was speeding at the time but his negligence was not the
legal (proximate) cause of the death.
·
Proximate
Cause Question: “But for D’s breach of duty in driving 53 in a 35 mph
zone, would the accident have occurred.”
§
Court
upheld. Even if ∆ was going within
the speed limit, the accident would have occurred anyways.
o
Loss of Chance Doctrine
§
Doctrine comes up often in medical malpractice
cases
§
“Loss of chance doctrine reflects an inescapable
tension between traditional demands of causation on the one hand and, on the
other, a concern for plaintiffs who, by the very nature of the claim, will
never have available to them anything but probabilities.”
§
Hamlin v. Bashline
·
Doctor failed to give EKG and expert testified
that patient would have had 75% chance of surviving if doctor had acted
properly.
·
“Whereas typically a plaintiff alleges that a
defendant’s act or omission set in motion a force which resulted in harm, the
theory of the present case is that the defendant’s act or omission failed in a
duty to protect against harm from another source.”
·
To resolve such issued, you have to ask whether
the harm would have resulted from the independent source even if ∆ had
performed his service in a non-negligent manner.
§
Restatement
323
·
One who
undertakes, gratuitously or for consideration, to render services to another
which he should recognize as necessary for the protection of the other’s person
or things is subject to liability to the other for physical harm resulting from
his failure to exercise reasonable care to perform his undertaking if:
o
His
failure to exercise such reasonable care increases the risk of such harm, or
o
The harm is suffered because of the other’s
reliance upon the undertaking.
§
Weymers v. Khera
·
Π
sick and admitted to ∆’s hospital and condition gets worse and Π has to go through kidney
transplant operation
·
Expert witness testified Π would have had 30 to 40 percent
chances of retaining the functions of her kidneys if propert care given by ∆
·
Supreme court ruled that loss of chance doctrine
cannot be applied to cases where death does not result.
·
Loss of chance is used as a substitute to
causation and extending it to this case will lower the importance of causation
in negligence actions
§
3 areas under loss of chance doctrine
·
Pure lost chance[1]
o
P can recover even though it was more likely
than tnot that he would have suffered the injury if the D had not been
negligent. But P must show only that D’s
care diminished his chance of survival or injury avoidance, no matter how
slight that diminution.
·
Proportional Approach
o
Like pure lost chance but P’s recovery is
limited to percent of chance lost multiplied by total amount of damages (e.g.
if 30% chance physical could have saved patient by rendering proper care,
decedent’s family gets 30% of the value of decedent’s life.
·
Substantial probability Approach
o
P must show substantial possibility that D’s
negligence caused his injury or death.
Substantial in most jurisdictions does not mean >50%
o
Foreseeability with regard to duty vs.
……….proximate cause
§
Duty element focuses on whether D’s conduct
foreseeably created a broader zone of risk that poses a general threat of harm
to others
§
Foreseeability with regard to proximate cause is
concerned with whether and to what extent the D’s conduct foreseeably and
substantially caused the specific injury that actually occurred.
o
Palsgraf v.
§
D’s guards pushed a man in the train who was
about to fall. The man’s package fell
and unbeknownst to anyone, it contained fireworks that exploded.
§
P who was standing on the other side of the
station was hit with scales loosened with the sound of the explosion.
§
Justice Cardozo’s majority opinion stated that
guards were negligent towards the man and not the plaintiff. D’s conduct did not involve any unreasonable
risk of harm towards the P.
§
Justice Andrew’s dissent: D had duty of due care
towards the whole society and such duty was breached when P was injured. This argument is similar to the “direct
causation” view.
o
§
D negligently caused an accident but no one
injured. P went to warn others but hit
by another driver.
§
D was held to be the proximate cause of P’s
injures because the other driver was not superseding. The waters had not calmed and P was still in
the zone of danger when injuries occurred.
§
The purpose of proximate cause is “to confine
the liability of a negligent actor to those harmful consequences which result
from the operation of the risk, or of a risk, the foreseeabiity of which
rendered the D’s conduct negligent.”
§
Class example: If P was attacked by a bear, then
D wasn’t going to be held liable because not foreseeable. Bear was going to be the superseding
intervening actor.
o
When a tough issue of proximate cause arises,
the court should leave it up to the jury to decide.
o
Texas & Pacific Ry v. McCleery
§
P injured when his truck hit by a train. Train at some point had speeded.
§
P argued that speeding was actual and proximate
cause of accident because if not speeded then wouldn’t have been there at that
time.
§
Court ruled actual cause but not proximate
cause.
o
Watson v.
§
Due to D’s negligence, its train derailed and
gasoline leaked to the streets. On
person threw match in the gasoline and fire erupted and P was injured.
§
Court said if the actor’s conduct was negligent
but innocent, then foreseeable and proximate cause. But if criminal conduct, then not foreseeable
and no proximate cause.
§
“If the intervening acts or conditions were of a
nature reasonably to have been anticipated, though they may have been acts of
the plaintiff himself, they do not cut off liability for D1. But if the intervening agency is so
unexpected or extraordinary as that he could not or ought not to have anticipated
it, he will not be liable and certainly he is not bound to anticipate the
criminal acts of others by which damage is inflicted.”
o
Subsequent Injuries
§
Subsequent accidental injuries are generally
considered foreseeable
§
E.g. D liable for further injuries suffered by P
when ambulance taking P to hospital for treatment, following collision with D,
was itself in a collision.
§
Health care provides usually held liable if the
patients in their care commit suicide.
o
Gorris v. Scott
§
D transporting P’s sheep and washed
overboard. D wasn’t complying with a
statute that was designed to protect animals from disease.
§
Statute was not designed to protect against the
type of damage that occurred.
§
Professor doesn’t know why this case is covered
under the causation category.
o
Morales v. City of
§
Gas station sold gasoline in unapproved
container and gasoline used to commit arson.
§
Π
claimed violation of statute, but statute designed to secure safety of gasoline
in container.
§
Actual cause- Yes, Proximate Cause= no. No
logical link.
o
§ 431 What Constitutes legal cause:
§
The actor’s negligent conduct is a legal cause
of harm to another if
·
His conduct is a substantial factor in bringing
about the harm
·
There is no rule of law relieving the actor from
liability because of the manner in which his negligence has resulted in the
harm.
o
§ 433 Considerations important in determining
substantial factor question
§
number of other factors that contribute in
producing the harm and extent of effect which they have in producing it
§
whether actor’s conduct has created a force in
active and continuous operation up to the time of the harm or created a
situation harmless unless acted upon by other forces (natural and continuous
sequence)
§
Lapse of time (remoteness in time)
o
Kinsman Case
§
Barge broke lose and resulted in flooding.
§
Court said just because low foreseeability of
great damage doesn’t relieve the ∆ from duty
§
Kinsman Formula:- Foreseeability + Directness +
same general sort = Proximate Cause
o
So far seen:
§
Foreseeing an individual P’s special
vulnerability (Vosburg)
§
Foreseeing that different P’s are vulnerable (Palsgraf)
§
Foreseeing the type of harm done (Kinsman)
o
Cases that move away from foreseeability to
direct cause and back to foreseeability and then again back to direct cause
(kind of)
§
Polemis Case
·
Unloading ship and D’s servant drops plant and
that leads to fire.
·
D breached a duty and some harm to ship was
foreseen.
·
“Once the act is negligent the fact that its
exact operation was not foreseen is immaterial.”
§
Wagon Mound (#1)
·
Moved away form Polemis
·
“For it does not seem consonant with current
ideas of justice that, for an act of negligence, however slight or venial,
which results in some trivial foreseeable damage, the actor should be liable
for all consequences, however unforeseeable and however grave, so long as they
can be said to be direct.”
§
Wagon Mound (#2)
·
Moving back towards direct cause
·
Court said that findings show that some risk of
fire would have been present to the mind of a reasonable man in the shoes of
the ship’s chief engineer
·
Real risk is one that would occur to the mind of
a reasonable man that he would not brush aside as far fetched.
II. Special Instances of Nonliability for Foreseeable
Consequences
v
Negligent Infliction of Emotional Distress
(NIED)
o
Primary victims vs. secondary victims
§
Example: Child hit by car while mother
witnessing across the street.
·
Primary victim: The child
·
Secondary Victim: The mother
o
NIED: When a secondary victim can recover for ∆’s
negligence
o
The Impact Rule of Mitchell v.
§
There could be no recovery for fright alone
without any impact.
o
Waube v.
§
Facts: Mother looking out the window and
witnesses her child getting hit by a negligent driver.
§
Holding: Can’t recover because not in the zone
of danger.
o
Dillion v. Legg
§
Facts: Daughter hit by negligent driver while
other daughter also on street but mother still on the sidewalk. Trial ct. said other daughter can recover for
NIED but mother can’t because not in the zone of danger. Supreme Court of California reversed.
§
Holding: Moved back to the reasonable
foreseeability rule.
§
3 Foreseeability based guidelines:
·
whether P located near the scene of the
accident, as contrasted with one who was some distance away
·
whether shock resulted from direct emotional
impact upon P from the sensory and contemporaneous observance of the accident,
as contrasted with learning of it after its occurrence:
o
Did P see the accident? Her it?
·
Whether P and victim closely related.
§
Reasonable foreseeability: objective standard
o
Thing v. La Chusa
§
Abandoned the Dillon’s Foreseeability rule and
came up with a strict 3-part test:
·
Is P closely related to the injury/primary
victim?
·
Was P present at the scene of the injury
producing event at the time it occurred and then aware of injury to victim?
(There & Aware)
·
Was the emotional distress severe?
(disinterested observer comparison)
o
Direct Victims vs. bystanders
§
Bystander liability- liability to those who are
witnesses to impact but who do not suffer it themselves
§
Direct victims- P is not a bystander but rather
a direct victim suffering NIED, even though she suffers no impact, even though
arguably no one suffers impact. Direct victim by virtue of a pre-existing relationship/duty,
not a garden-variety, foreseeability-based duty.
·
There is still a primary victim but secondary
victim not viewed as bystander
o
Burgess v. Superior Court
§
Facts: Infant born with brain damage due to
doctor’s negligence
§
Holding: Court held that the mother was the
direct victim and not a bystander. There
was preexisting relationship between mother and ∆ and ∆ breached
this duty. Any harm to babyà
harm to mother.
o
Molein Case
§
Doctor falsely informed wife that she had
syphilis and husband should get testedà divorce
§
Doctor owned duty to both husband and wife so
husband was the direct victim.
§
Damages of NIED may be recovered in complete
absence of physical injury or impact to anyone. Incorrect information can be
the source of the breach.
§
THIS CASE IS AN ANOMALY!
o
Marlene F Case
§
Psychologist treating mothers and their children
molested children.
o
Johnson v. State
§
Π
falsely informed by hospital that mother dead.
§
o
Boyles v. Kerr
§
Friends recorded guy and girl having sex and
tape shown around campus.
§
§
There was no primary victim to piggy-back on.
v
Injury to Personal Relationships (Loss of
Consortium)
o Consortium: the right of one spouse to the company, affection and service of the other
o There is a primary victim who is not the Π in loss of consortium case
o Historically only husbands can recover for loss of consortium if wife injured
o But now both wives can also recover
o Feliciano
v. Rosemar Silver
§ Πs living together like married couple but not legally married.
§
o Borer
v. American Airlines Inc.
§ Children filed for loss of consortium for the injures suffered by mother
§ Court held children can’t recover for such damages and only reserved for husband-wife relationship.
v Prenatal Harm, Wrongful Birth and Wrongful Life
o Fetal Injury
§
Werling v.
·
A viable fetus falls under the wrongful death
statute. So if fetus born stillborn, Π can recover
§ A few states require the child to be born live in order for the wrongful death cause of action to accrue
o Wrongful Birth
§
Fassoulas v. Ramey
· Π didn’t want any more children with abnormalities so D performed a vasectomy on the husband but sill had one normal and one abnormal child
·
§ Most court agree with Fassoulas that parents cannot recover cost of raising healthy child
§ Minority of courts permit recover for full cost of raising healthy child
§ Middle ground: permit recovery for coast of raising child to the extent exceed benefits parents get from the child
o Wrongful Life
§ This is where children sure for harm, even pre-conception harm
§ Very few jurisdictions permit this cause of action. Most allow parents to recover under wrongful birth, but permit child to recover under wrongful life only for extraordinary expenses
§ According to most courts, life (even with birth defects) is preferable to non-life.
§
Turpin v. Sortini
· A suit brought on behalf of deaf child against ∆ for failure of ∆ to inform the parents that the child could be born deaf.
· Court ruled that general damages can’t be recovered because will be too speculative. How can we tell how the child would have been if ∆ not negligent because then child was not going to be born at all!
· But can recover for extraordinary damages and expenses that entail such birth defects.
v Purely Economic Injury
o Traditional Rule- no recovery for economic loss unless there is physical harm- to the person or property
o
Barber Lies v. Donau
§ Even the pure economic loss to Π was foreseeable, ∆ cannot be held liable.
§ Extending liability to pure economic loss will lead to limitless litigation.
§ Exceptions
· Damages for financial harm are awarded to those who suffer physical harm
· Financial harm awards to family members
· Financial harm associated with negligent misrepresentation or fraud (e.g. accountants)
o J’Aire
Corp. v. Gregory
§
Π
a restaurant owner sues ∆ for lost profits for ∆’s negligent slow
performance in repair work that cause Π loss of business
§ Held: Π may recover for loss of profits from ∆. Where a special relationship exists between the parties, a Π may recover for loss of expected economic advantage (K based).
§ Some factors to consider to see whether special relationship:
·
The extent to which the transaction was intended
to affect the Π
·
The foreseeability of harm to the Π
· The moral blame attached to the ∆’s conduct
·
Degree of certainty that Π suffered injury
· Closeness of connection between ∆’s conduct and injury suffered
· Policy of preventing future harm
§ According to the court, the above listed factors and the requirement of proximate cause are enough to limit liability and the fears of unlimited liability are false.
o 3-part test: Foreseeability +
§ instances where the risk of harm is foreseeable and closely connected with ∆’s conduct
§ where damages are not wholly speculative
§ injury is not part of Π’s ordinary business risk
o People
Express Airlines v. Consolidated Rail Corp.
§ Facts: ∆ negligently caused chemical spill that resulted in evacuation of neighboring businesses. Π suing for lost business.
§ Held: ∆ owes a duty of care to take reasonable measures to avoid the risk of causing economic damages, aside from physical injury, to particular Π or Πs comprising an identifiable class with respect to whom ∆ knows or has reason to know are likely to suffer such damages from its conduct.
§ Identifiable class
· Identifiable class more than just foreseeable class. An identifiable class of Πs must be particularly foreseeable in terms of the type of persons or entities comprising the class, the certaintly or predictability of their presence, the approximate number of those in the calss, as well as the type of economic expectations disrupted.
§ General foreseeability vs. Particular foreseeability
· Particular foreseeability is higher standard.
v
Contributory Negligence, Assumption of Risk,
Comparative Fault
o Contributory Negligence[2]
§ The principle behind this theory is that every person owes a duty of care not only to others but also to himself or herself
§ Use the same negligence test: Dutyà Breach of Dutyà ACà PCà Damages
§
Butterfield v. Forrester
·
Facts: ∆ negligently placed pole across
the road and Π, who was
riding horse violently, struck the pole. Π
could have avoided accident if riding carefully.
·
Holding: Π can’t recover for injuries.
The fact that ∆ was negligent will not relieve Π from the duty of practicing
reasonable care.
§ Contributory Negligence Basics
· Negligent acts of both arties may be contemporaneous
· Does not require the Π to see, recognize the ∆’s behavior—Π could be oblivious of ∆ and his behavior
· Does assess the reasonableness of the Π’s behavior
· Does assess whether Π was proximate cause of his harm
§
Davies v. Mann
· Facts: Π negligently shackled his donkey and left it to the side of road. ∆ driving wagon and struck and killed the wagon.
·
Holding: ∆ held negligent because had the last
clear chance to avoid the accident.
Even if the Π’s
act of fettering the donkey so as to prevent it from getting out of the way of
traffic was illegal…If the proximate cause of the injury was want of proper
conduct by the driver of the wagon, action against he ∆ could go
ahead. If jury found that accident could
have been avoided by exercise of ordinary care, they should find for the Π
§ Last Clear Chance: We want to incentivize people to act prudently and try to avoid accidents.
§
ONLY APPLY LAST CLEAR CHANCE DOCTRINE ON
EXAM AFTER Π’s NEGLIGENCE HAS BEEN ESTABLISHED
§ Restatement § 479- A Π whose negligence puts him in danger- in a helpless situation- can recover from ∆ who subsequently, acting negligently, harms the Π—on 2 conditions
·
Π
was helpless at the time the harm occurred and unable to avoid the harm AND
· ∆ negligently failed to take advantage of an existing opportunity to avoid the harm—even though he knew or should have known of the Π’s helplessness
§ Restatement § 480- A Π who, by exercise of reasonable vigilance, could discover the danger created by the ∆’s negligence in time to avoid the harm to him, can recover if, but only if, ∆
· Knows of Π’s situation, and
·
Realizes or has reason to realize that Π is inattentive and therefore
unlikely to discover his peril in time to avoid the harm, and
· Thereafter is negligent in failing to utilize with reasonable care and competence his existing opportunity to avoid the harm
§ Assumption of the risk
· Person who has voluntarily assumed a risk of harm arising from the negligent or reckless conduct of the ∆ cannot recover for such harm
· Express (Primary) Assumption of the Risk
o Where
Π expressly or by K
accepts the risk of harm
· Implied (Secondary) Assumption of the Risk
o Π who fully understands a risk of harm but nevertheless voluntarily chooses to enter or remain within area of that risk (Subjective Test)
§
Π
doesn’t assume the risk if ∆’s tortuous conduct lease Π with no reasonable alternative to
avoid harm (e.g. ∆ sets fire to Π’s house and Π
injured while trying to extinguish the fire)
· Assumption of risk Basics
o ∆ has created a risk prior to Π’s encounter (acts are sequential)
o Π understands and appreciates
the risk
o Π voluntarily encounters the risk
o No express assessment of the reasonableness of the Π’s decision to encounter the risk
§ Comparative Negligence/Fault
· Most jurisdictions replaced contributory negligence with comparative fault
· Under this system, Π’s recovery reduced by not completely eliminated.
§
Knight v. Jewett
·
Primary Assumption of the Risk:-
instances where there is no duty on the part of the ∆ to protect the Π from a particular risk.
· Secondary Assumption of the Risk:- instances where the ∆ owes a duty of care to the Π but the Π knowingly encounters a risk of injury caused by the ∆’s breach of that duty.
· Cases involving primary assumption of the risk have not merged with the comparative fault scheme and recovery is still completely barred. Secondary assumption of the risk has merged with comparative fault.
·
Question in this case whether ∆ breached a
legal duty of care towards the Π.
In an active sport such as the one
involved in this case, breach of duty only if participant intentionally injures
another player or engages in conduct that is so reckless as to be totally
outside the range of the ordinary activity involved in the sport. In this case, ∆ didn’t breach any duty
towards Π and therefore
this case falls under primary assumption of risk and Π’s recovery completely barred.
III. Products Liability
v
Three categories of cases depending on why
products caused harm
o
Manufacturing defect (or product defect)
o
Design defect
§
Shared by all units in the product line that
make them dangerous
·
E.g. Drugs case- whole unit had extreme side
effects
o
Marketing Defect
§
Product would be considered non-defective simply
if the manufacturer had attached proper warnings or instructions to avoid hidden
dangers (not obvious dangers)
v
Three doctrinal theories of liability
o
Negligence
o
Breach of Warranty
§
Express Warranty
§
Implied Warranty
o
Strict Liability
§
No fault- manufacturer may have acted with due
care but still liable
v
Negligence
o
Privity Requirement
§
Winterbottom v. Wright
·
Π
denied recovery because had no direct K with ∆
§
Privity requirement easedà no privity required
when dealing with an inherently dangerous product (Thomas v. Winchester)
§
Privity Requirement Abolished in MacPherson
v. Buick- Despite the fact that no privity between the parties, Π can recover. Privity replaced with foreseeability test. Also, Π doesn’t have to show that car inherently dangerous. As long as product was reasonably certain to place life and limb in peril
when negligently made, Π
can recover. Here ∆ had the duty
to perform ordinary and simple tests on the wheel of the car.
§
Modern Rule: One who negligently manufactures a
product is liable for any personal injuries proximately caused by his
negligence.
§
What if car wheel in MacPherson became defective
after the car bought, then that leads us to warranty law.
o
Same Negligence Test: Dutyà
Breach of Dutyà
ACà
PCà
Damages
v Warranty
o
Obligations imposed on sellers of goods, requiring
them to stand behind their goods’ quality
o
UCC
§
Express warranties Hankscraft
§
Implied warranties of merchantability (most
often used)- Henningsen
·
Good must be fit for the purposes such goods are
usually used.
·
Henningsen v.
o
Π’s
wife injured when steering wheel of car malfunctioned.
o
§
Implied warranties of fitness for a particular
purpose.
o
The fact that seller reasonably and honestly
believed his representations to be true, and in fact couldn’t have discovered
the defects is irrelevant.
v Strict
Liability
o
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.
o
A product is defective when:
§
It contains a manufacturing defect
·
Manufacturing defect when the product departs
from its intended design even though all possible care was exercised in the
preparation and marketing of the product.
§
Is defective in design
§
Is defective because of inadequate instructions
or warnings
o
Product can be held defective without specific
defect, when the incident:
§
Was of the kind that ordinarily occurs as a
result of a product defect; and
§
Was not, in the particular case, solely the
result of causes other than product defect existing at the time of sale or
distribution.
o
Elements of Strict liability
§
o
Unlike Negligence, strict liability test just
asks whether ∆ put onto the market an unreasonably dangerous
product. An inquiry into the result of
the process.
o
Union Pump v. Allbritton
§
Negligence requires a showing of proximate
cause, while producing
cause is the test in strict liability.
Foreseeability not required in producing cause.
§
A producing cause is an efficient, exciting, or
contributing cause, which in a natural sequence, produced injuries or damages
complained of, if any. Common to both
proximate and producing cause is causation in fact, including the requirement
that ∆’s conduct or product be a substantial factor in bringing about the
plaintiff’s injuries.
§
In this case, even if pump fire some how but for
cause, but not producing cause because fire had been extinguished and Π walking away when the injury
occurred. The pump fire did no more than
create the condition that made Π’s
injuries possible. Therefore, Π cannot recover based on strict
liability.
o
Restatement § 431 requires substantial factor-
means ∆’s conduct has such an effect in producing the harm as to lead
reasonable men to regard it as a cause, using that word in the popular sense in
which there lurks the idea of responsibility and not merely but fro harm.
v Affirmative
Defenses based on Π’s
conduct
o
Restatement § 17- When Π’s conduct fails to conform to
generally applicable rules establishing appropriate standards of care generally
applicable rules apportioning responsibility apply.
o
§
The concept of comparative causation. In appropriating damages, ask how much of
damage caused by defect in the product versus how much was caused by Π’s own actions. Under the comparative causation approach,
once the jury has determined that the product defect caused the injury, the
defendant is strictly liable for the harm caused by his defective product. The jury, however, would be instructed to reduce
the award of damages in proportion to the Π’s contribution to his own loss or injury.
§
Policy goals behind Strict Liability and
Comparative Fault
·
Relieve Π of proof problems assiciated with existing negligence and
warranty theories
·
Do away with all or nothing system
·
Prevent Π’s negligence from completely barring recovery
§
This important decision brings both of these
theories together
v Marketing
Defect: Failure to Instruct or Warn
o
If the danger is not open ad obvious,
manufacturers must warn of it, with considerable specificity.
o
Sheckells v. AGV Corp.
§
Facts: Π sustained head injuries in a motorcycle
accident. Π was wearing his helmet at the time.
§
Holding: ∆ liable for failure to warn that
helmets cannot protect at 30+ mph speeds.
Main issue was whether the danger was open and obvious. The test is whether the danger is obvious
to, or generally known by, foreseeable product user. In this case, testimony by expert witnesses
that average helmet user doesn’t know about this fact.
o
§ 2 A product is defective because 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 distributor, or a predecessor in
commercial chain of distribution, and the omission of instructions or warnings
render the product unreasonably safe.
o
Exam Writing Guidelines
§
Is product unreasonably dangerous?
·
Manufacturing defect?
·
Design defect?
·
If neither, may present a reasonable danger.
§
Is reasonable danger open and obvious to reasonably foreseeable
consumer?
§
If not open and obvious, duty to warn with adequate specificity.
o
MacDonald v. Ortho Pharm. Corp.
§
The birth control pills case. ∆ argued
that it warned Π’s
gynecologist of risks inherent in pills.
§
Holding:
o
We normally don’t assess drugs for design
defect—don’t ask if they are unreasonably dangerous. Question is whether they are the best we can
do.
o
Marketing cases fall under three categories:
§
Negligence—B<PL w/r/t warning
§
Strict Products liability—Product risky, ∆
know, ∆ pays
§
Absolute Liability—If product does harm, ∆
pays, period—whether ∆ knew of possibility product could do harm
o
Strict Liability vs. Absolute Liability
§
SL: D manufactured or supplied a defective productàDefective
product caused harmàD liableà Includes inquiry into
unreasonably dangerous (or reasonably safe) character of product
·
Negligence concepts creep in when determining
what is unreasonably dangerous
·
Marketing defect- stat of the art argument
·
Design defect- risk utility analysis
§
Absolute Liability
·
∆ manufactured or supplied any productàProduct
causes harmà∆
liable for harm, no further questions (state of the art and risk utility
irrelevant)
o
Majority of states accept state-of-the-art
evidence which refers to evidence about whether the particular risk was either
known or knowable by the application of scientific knowledge available at the
time of the manufacture and/or distribution
o
§
§
Reasoning: How can you warn when you don’t even
know of the danger. Knowledge, actual or
constructive, is a prerequisite to strict liability.
§
Negligence vs. Strict Liability
·
Negligence- requires a plaintiff to prove that
the manufacturer or distributor did not warn of
a particular risk for reasons which fell below the acceptable standard
of care. Under negligence analysis, risk
might be deemed low enough that warning of it (B) might be higher than PL.
·
SL- require a plaintiff to prove only that the
defendant did not adequately warn of a particular risk that was known or
knowable in light of the generally recognized and prevailing best scientific
and medical knowledge available at the time of manufacture and
distribution. As opposed to negligence,
in strict liability the reasonableness of ∆’s failure to warn is
immaterial. DON’T HAVE TO WARN IF RISK
OPEN & OBVIOUS
v Design
Defects
o
Cases where Π wins if he shows that design caused product to fail to
perform its intended function, rendered product unreasonably dangerous.[3]
o
McCormack v. Hankscraft
§
Facts: Π, 3 years old child, burnt when hot water escaped a vaporizer.
§
Holding: ∆ liable for Π’s injuries. Design defect based on negligence
theory. ∆ negligent in
manufacturing the vaporizer with a lid that was loose. Π
presented evidence that alternative and safer design was easily available. Also, failure to warn/marketing defect was
also negligence. Breach of implied
warrant based on illustration and language used in brochure.
§
Mother’s behavior not contributory negligence
because contributory negligence involves breach of duty towards oneself and not
towards the child.
o
Uloth v. City Tank Corp.
§
This case illustrates relationship between
marketing defect and design defect. Case
shows that one cannot warn
his way out of a bad design.
o
Restatement § 2, comment 1: “…In general, when a
safer design can reasonably be implemented and risks can reasonably be designed
out of a product, adoption of the safer design is required over a warning that
leaves a significant residuum of such risks…Warnings are not a substitute for the provision of a
reasonably safe design.”
o
Troja v. Black & Decker Manuf’g
§
Π
argued that saw should have been designed that guide fence shouldn’t have
easily come off.
§
§
·
Inherently unreasonable risks
o
E.g. Phipps case- gas pedal of car stuck to the
floor car or the exploding cigar case.
o
Design in such cases is inherently unreasonable.
·
Risks not inherently unreasonable—but may be
deemed unreasonable after analysis that considers a variety of factors (e.g.
air bags). Jury question. Some factors to consider:
o
Usefulness and desirability of the product
o
Safety aspects of the product— likelihood it
will cause injury and probably seriousness of injury
o
Manufacturer’s ability to eliminate unsafe
character of the product, without impairing its usefulness or making it too
expensive to maintain its utility
o
User’s ability to avoid danger by the exercise
of care in use of the product
o
User’s anticipated awareness of the danger
inherent in the product and their avoidability because of public knowledge or
obvious condition of product, or existence of suitable warnings or instructions
o
Feasibility on part of manufacturer of spreading
the loss by setting the price of the product or carrying liability insurance.
o
Restatement § 2
§
A product… (b) 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 and
the omission of the alternative design renders the product not reasonable safe.
o
Consumer Expectation Test
§
Heaton v. Ford Motor Co.
·
Π
injured when his truck struck a big rock and truck tipped over after Π kept driving for a long
distance.
·
Holding: case can’t go to jury because the event
in this case so out of the ordinary that jury can’t decide based on their
experience what they would expect under the given circumstances.
§
Consumer Expectation Rule
·
Where no evidence to prove exactly what sort of
manufacturing flaw existed or exactly how the design was deficient, the Π may nonetheless be able to
establish his right to recover, by proving that the product did not perform in
keeping with the reasonable expectations of the user.
·
Fist must ask:
Would the average consumer have fairly definite expectations about the
product performing in case like this? In Heaton, answer NO.
IV. Defamation
v Restatement
Definition- tending to harm the reputation of another as to lower him in the
estimation of the community or to deter a 3rd person from dealing
with him.
v Defamation
is not about hurting feelings
v Elements
of Defamation
o
Defamatory statement- Holds Π up to ridicule, obloquy; Lowers him
in the esteem of the community
o
Publication- communication to a third party
o
Identification of Π by name or otherwise
o
Harm- may be presumed in some cases
o
Falsity
v Defense-
Common Law
o
Where free expression outweighs interest in
reputation
o
Qualified- communications between persons who
share a common interest
o
Truth- formerly an affirmative defense
v General
opinion vs. defamatory statement
o
He is a womanizer v. he committed a sexual
assault
o
He is a thief vs. he stole my purse
v Youssoupoff
v. MGM
o
Newspaper listed that Π was raped by Russian monk. ∆ argued that no defamation because
article didn’t say that Π
did anything wrong.
o
Held: Defamation. Defamation more about what the community
thinks than whether the community is justified in thinking it. ∆’s article lowered the status of Π in the community.
v Relevant
Audience
o
Don’t need reaction to be measured by the entire
population. Sufficient if statement
perceived to be defamatory by a small community such as the one in which Π works. Generally don’t assess the community’s
morals—don’t look for right-thinking people.
v Nature
of communication
o
Communication need not be in words. Can be a photo, action, gesture, visual
representation. Misquotation can also be defamatory.
v Libel
v. Slander
o
Libel: written or other tangible medium. Libel per se means “on its face” without
reference to extraneous materials
o
Slander: Spoken, oral
§
4 categories of slander per se
·
Π
has committed crime
·
Π
has loathsome disease (e.g. HIV)
·
Statement damaging one’s business, trade,
profession
·
Statement that a woman is unchaste
o
Some cases where Π is libel proof- has no reputation to preserve
v Interpretation
of statement
o
If statement is capable of defamatory meaning
and non-defamatory meaning, Π
must prove that audience would take it in the defamatory sense
v Belli
v.
o
Facts: Newspaper article listed that Π (a famous trial attorney)
tricked the Florida Bar Association in paying for expensive clothing bills.
o
Holding: Statement defamatory. “We consider that the bare bones of the
article are capable of carrying the meaning that Π tricked and deceived the FBA out of hundreds
of dollars worth of clothes.” Hurts Π’s honesty as a trial
attorney.
o
Takeaway
§
Both judge and jury have roles in deciding defamatory
meaning. Judge determines whether
article capable of defamatory meaning and jury determines whether or not the
alleged libel bears the construction which the Π seeks to put upon it.
v Usually
epithets are not considered defamatory.
Words such as “bitch” or “bastard” are not taken literally.
v Smith
v. Atkins
o
Facts: ∆ (law professor) called Π (his student) a “slut” in
class. Π suffered ridicule and was ostracized by her classmates.
o
Holding: Π identified and defamatory statement published. Calling a girl a slut is defamatory per
se.
v Common
Law
o
No intent or recklessness necessary. Strict Liability—if you publish a statement
that defames someone, you were liable at common law.
§
Exception: When there is no intent to publish;
where publication occurs accidentally.
o
Defense of Truth
§
Truth is an absolute defense. Used to be affirmative defense under common
law but no falsity is part of Π’s
prima facie case.
v Changes
driven by the Constitution (1st Amendment vs. Defamation)
o
§
In order to recover damages, Π will have to show actual malice on
the part of the ∆. Actual malice
not linked to defamatory meaning but to the truth of falsity of the statement.
§
Ask: Did ∆ know or was reckless in regards
to the falsity of the statement?
§
Actual Malice is part of Π’s prima facie case.
o
Standardà Before used to be
preponderance of the evidence but after Sullivanà Convincing Clarity
Standard (higher standard)
o
Actual Maliceà usually requires cases
in which ∆ distorts or alters facts contained in sources, or fabricates
conversationsà
it is a subjective standard. Did ∆ know of the falsity or act with
reckless disregard of it.
o
Who is a public official?
§
Government officials who have, or appear to have
substantial responsibility for control over the conduct of government affairs
(e.g. candidates for public office, member of student senate of state U,
architect involved in constructing a public building, one carrying out a
function of government or if participating in acts related to matters in which
government has substantial interest)
o
Curtis Publishing v. Buttsà
extended actual malice standard to Public Figures.
o
Public officials & public figures have
sources of self-help
o
Rosenbloom v. Metromediaà
Plurality of S.Ct. said actual malice standard applies to private individuals
if statements relate to matters of general public interest[4]
o
Garrison v.
o
o
Gertz v. Robert Welch
§
Facts: Attorney representing a family in a
wrongful death lawsuit claimed to be part of Communist Party by a newspaper.
§
Holding: Π private individual and doesn’t have to establish actual
malice. According to the court, “states
should retain substantial latitude in their efforts to enforce a legal remedy
for defamatory falsehood injurious to the reputation of a private individual.” But if media ∆s, can’t use strict liability.
o
Most states apply negligence standardàIf
RPP would have known that statement is false?
Can even bring B<PL into the analysis.
o
Was Party Public or Private Figure?
§
2 Categories of Public Figures
·
all purpose (e.g. President)- mostly everything
is fair game
·
limited purposeàone who voluntary
injects himself or is drawn into a particular public controversy (e.g. school
board president, LSA president)àNot everything is fair game. If statements unrelated to their public status, then these individuals
treated as private persons.
§
Time, Inc. v. Firestone
·
Π
not public figure because didn’t thrust herself in public controversy. She had to go to the court to get a divorceà
didn’t have a choice.
§
Press cannot convert someone to a public figure
just by taking an interest in him.
·
Access to media must pre-date the alleged defamation. Access must be of a regular and continuing
nature.
§
Public v. Private Figures- Some Guidelines
·
Π
had access to channels of effective communication
·
Π
voluntarily assumed a role of special prominence in a public controversy
·
Π
sought to influence resolution or outcome of controversy
·
Controversy existed prior to publication of
defamatory statements and
·
Π
retained public figures status at time of alleged defamation.
o
Dun & Bradstreet v. Greenmoss
§
Backed off Gertz. Now private Π doesn’t need to prove actual malice even when it comes to
media ∆ when matter is not of public concern. In this case, Π’s credit report not of public concern.
§
Therefore, if Private Π vs. Media ∆, and matter not of
public concernà
STRICT LIABILITY COULD APPLY!
V. Invasion of Privacy
v 4
Varieties of Invasion of Privacy
o
Intrusion upon seclusion
o
Publication of private facts (mass publication)
o
False Light (confusingly similar to defamation)
o
Appropriation (we don’t cover this)
v Intrusion
upon Seclusion
o
This might be like trespass but trespass is
about protecting property interests.
This on the other hand is about protecting the mental and psychic well
being of the Π.
o
Intrusion upon private space of someone. But physical intrusion not needed. Can be observation from a distance (e.g. by
high-powered zoom camera lens, by eavesdropping, peeping into a window)
o
§ 652B- one who intentionally intrudes
physically or otherwise, upon the solitude or seclusion of another or
his private affairs or concerns is subject to liability to the other for
invasion of privacy, if the intrusion would be highly offensive to a reasonable
person.
o
Elements
§
Intent to intrude[5]
·
Not merely accidental or negligent
§
Intrusion or prying into seclusion, private
space or private matter (Act)
·
May include physical trespass but intrusion can
be from afar
§
Offensive to a reasonable person
§
Harm/Damages
o
What is private
§
May be a conversation (or other interaction)
between two persons (e.g. Husband/Wife)
§
May be an individual’s mutterings in private
§
May be information—financial, personal, sexual
photo, letter, financial statements)
o
Hamberger v. Eastern
§
Facts: ∆ (landlord) installed some voice
recording device in Πs’
(husband/wife) bedroom. ∆ argued
that didn’t hear anything.
§
Intentà not on appeal
§
Intrusionà yes, eavesdropping
enough—seems as if the mere presence of the equipment in the room enough for
the courtà
not a common rule.
§
Upon seclusion or private placeà
yes, marital bedroom
§
Highly offensive to reasonable personà
§
Harm?
o
Can also be invasion of privacy if someone goes
into someone’s else’s property to retrieve what the person owns. E.g. a phone company going into the house of Π to retrieve a phone owned by
the company.
o
CONSENT MATTERS!! Posner has held that fraud
does not vitiate consent!
o
Nader v. General Motors
§
§
II. Surveillance at the Bankà
Could be actionable if surveillance is so intrusive and ongoing that invasion
of privacy
§
III. Interviews with Nader’s friendsà
not actionable because if friends knew, not private anylonger.
§
Sending women to Nader and phone callsà
not actionable under invasion of privacy.
Perhaps actionable under IIED.[6]
o
Examples of intrusion by means other than
physical invasion
§
Eavesdropping
§
Unwanted telephone calls
§
Excessive surveillanceàGalella v. Onassis
§
Sexual harassmentà repeated, offensive
questions, comments and physical contacts an invasion of privacy
v Publication
of Private Facts
o
Rest § 652: Publicity Given to Private Facts
§
One who gives publicity to a matter concerning
the private life of another is subject to liability to the other for invasion
of his privacy, if the matter publicized is of a kind that
·
Would be highly offensive to a reasonable person
and
·
Is not of legitimate concern to the public
o
Publicity- must be a public disclosure (unlike
defamation, must be wide spread)
§
An invasion to state in a newspaper that Π doesn’t pay his debts. No invasion if the same said to Π’s employer.
o
Truth or falsity not relevant
o
Facts must be private
§
Not something left open to public eye/gaze
§
Yes, details of sexual relations or highly
personal portrayals of intimate, private characteristics
o
Offensive an objectionable to a reasonable
person or ordinary sensibilities (Objective Test)
o
Elements @ Common Law
§
Private Matter
·
Highly offensive and objectionable to person or
ordinary sensibilities[7]
·
Publicized widely
·
Strict Liability
[1] Only used in few rare jurisdictions.
[2] All jurisdictions have abandoned this defense.
[3] Courts do not device design defect devices in prescription drug cases.
[4] This was not a majority opinion and number of states have backed off from this.
[5] On the exam, don’t really have to focus on this part too much.
[6] Some courts have considered harassing phone calls to be invasion of privacy.
[7] This concerns the matter and not the act of publishing or how published.