Dangerous A.
Abnormally Activities 1. General Rule: One who carries on abnormally dangerous or ultra-hazardous activities is strictly liable (majority rule, includes NY), for any damage that proximately results from the dangerous nature of the activity 2. Defenses/Limitations on strict liability. a. Scope of risk b. Foreseeability c. Intervening Superseding Causes d. Assumption of Risk 3.
ii. "As-Is": disclaims implied warranty of merchantability and fitness iii. Limitations on liability (e.g., consequential damages) 1) These are subject to unconscionability. For example, limitation of personal injury for consumer goods is unconscionable iv. Requirement of a timely claim v. Statute of limitations Strict Product Liability: General Rule: There is strict liability for the sale of a product that is unreasonably dangerous to the end user's person or property if: a. Elements i. The product was defective ii. The defect existed at time of manufacture iii. The defect proximately and directly caused the injury b. Assessing "Defectiveness" i. Types of tests 1) Risk-utility analysis test (mostly design defect cases) 2) Consumer expectations test (manufacturing and warnings defects cases) 3) Seller's assumedknowledge test (manufacturing defects cases) Damages i. ii. iii.
B.
Products Liability 1. Negligence a. One who negligently manufactures a product is liable for any personal injuries foreseeably and proximately caused by its negligence. b. Defenses i. Statute of Limitations ii. Comparative/Contributory Negligence iii. Assumption of Risk 2. Warranty a.
Express i.
ii.
iii.
iv. v.
When manufacturer makes express representations intended to induce sales, The representation does not have to be in words-- conduct, pictures, etc. are sufficient. The product does not have to be defective, merely fail to perform as represented and thus cause harm Warranty must be some part of the bargain Warranty applies to manufacturer and retailer
c.
Personal injury recoverable Property damage recoverable Pure economic loss without personal injury is not usually recoverable in strict liability except perhaps in warranty actions.
b.
Implied i.
ii.
As a matter of law, goods are warranted for merchantability and fitness for a particular purpose For implied warranty, seller must be a regular merchant in these goods
d.
Defenses i.
ii.
c.
Defenses to breach of warranty claims i. Disclaimers 1) If any warranty is provided, then A) Some implied warranties cannot be disclaimed 2) Some disclaimers may be unconscionable (e.g., consumer product disclaiming responsibility for personal injury)
iii.
iv.
v.
vi.
Comparative negligence reduces, but not eliminates, recovery (NY and some states: still controversial) Assumption of risk (voluntarily, knowingly, and unreasonably) Unforeseeable misuse of the product. A foreseeable misuse still strict liability Federal law can pre-empt common-law causes of action for products liability Defect did not proximately cause the injury--intervening superseding cause Statute of Limitations
vii.
viii.
Buyer knows the risks and the manufacturer has complied with the regulations concerning the product (e.g., cigarettes) Unavoidably unsafe product whose benefits outweigh its risks (state of the art defense)
C.
Nuisance 1. Elements of nuisance a. Substantial interference with a public or private right b. Proof of unreasonable intent, negligence, abnormally dangerous activity 2. Remedies a. Damages b. Injunction c. Indemnification d. Abatement Private nuisance = substantial and unreasonable interference with owner's or possessor's rights to the enjoyment of the land. Plaintiff must have "an interest in the land" Public nuisance = unreasonable interference with a right that is common to the general public. An act or omission that obstructs or causes inconvenience or damage to the public in the exercise of common rights. Defenses to nuisance a. Contributory/comparative negligence in negligence and unreasonable intentional nuisance b. Assumption of Risk: Coming to the nuisance (type of assumption of risk). Partial defense. 3. c.
d.
3.
4.
e. f.
Damages is difference between actual value and it's represented worth, regardless of what the plaintiff paid ii. Actual value may be determined by the repair costs / expert testimony iii. Restatement 2nd 549 permits expectation damages proved with reasonable certainty iv. If the plaintiff makes a bad bargain and reliance damages exceed expectation damages, the courts will permit the plaintiff the option of recovering reliance damages v. Majority view among courts Flexibility theory: some jurisdictions allow the plaintiff to choose the type of damages, depending on strength of the proof and other Consequential damages: In many jurisdictions, plaintiff can recover for all damages proximately caused by the misrepresentation i. Exception: NY rule: recovery allowed only for pecuniary losses that are proximately caused by the misrepresentation Nominal damages are not available Punitive damages are available for moral turpitude and extreme dishonesty
i.
5.
Defenses a. Contributory negligence is not a defense to intentional misrepresentation b. Assumption of risk may be a defense c. The absence of a required element is a defense
D.
Intentional Misrepresentation 1. Elements (Note: a bad motive is not required) a. Misrepresentation or false representation of fact or opinion b. Scienter c. Intent to induce reliance: excludes incidental persons who rely d. Justifiable reliance e. Actual damages (courts split between reliance and expectation damages) 2. Damages a.
E.
Negligent Misrepresentation to Recipient 1. Elements--general elements; courts decide case by case (N.B., No scienter) a. Defendant has a duty (e.g., a business relationship) and plaintiff has right to rely b. Knowledge of the importance of the represented information c. knowledge of plaintiff's intended reliance on the misrepresentation d. knowledge that if information incorrect, Pl. may suffer personal or property damages e. Damages Defenses Contributory/comparative a. negligence b. Assumption of risk Damages a. Reliance damages
b.
Reliance damages i. The measure is the difference between actual value and the amount paid by the plaintiff ii. Minority view among courts (includes NY) Expectation damages
2.
3.
2
b. c.
Consequential damages Note: Expectation damages not available b.
F.
Innocent Misrepresentation--Strict Liability 1. Elements a. a factual misrepresentation b. Defendant has special means of knowledge related to its business c. Plaintiff intends to induce reliance upon the statement d. Plaintiff reasonably relied upon defendant's representation e. Note: RS2nd limits to sale, rental, or exchange transactions Defenses a. Assumption of Risk b. Contributory negligence not a defense e. 3. Damages a. Reliance damages
c.
d.
2.
damages (including mental and emotional distress, etc.) Punitive damages i. public concern-- recoverable only upon showing of actual malice ii. private concern--recoverable only upon showing of some type of fault Presumed damages i. public concern-- recoverable only upon showing of actual malice ii. private concern--can be awarded upon showing of some type of fault Nominal damages i. public concern--cannot be awarded ii. private concern--can be awarded upon showing of some type of fault Retraction statutes: timely retraction will bar plaintiff recovery i. available in 2/3 of states ii. intended to discourage defamation suits
G.
Defamation 1. Elements (all elements were in strict liability at common law except publication, but constitutional concerns have modified this) a. Defamatory and false statement--damaging to plaintiff's reputation b. Publication to a 3rd person--must be intentional or negligent c. Colloquium--proof that the statement refers to the plaintiff d. Injury to the plaintiff's reputation Defenses a. General Principles i. Common-law defamation: truth is an affirmative defense ii. Constitutional defamation: in some cases, the plaintiff bears the burden of proving falsity b. Types i. substantial truth ii. Consent by the plaintiff to publication iii. Privilege iv. Mitigation: Provocation by plaintiff is accepted in mitigation of punitive damages v. Mitigation: Prior bad reputation is accepted in mitigation of damages in many jurisdictions (including NY) Damages a. Compensatory damages--special (pecuniary) damages (except for plain slander) and actual H. Privacy = right to be left alone, kept from public scrutiny or unwanted publicity 1. appropriating for the defendant's advantage, the plaintiff's name or likeness focuses on property rights aspect of privacy a. Often concerns rights of publicity (e.g., right to benefit from one's activity) b. Damages: include nominal and special damages public disclosure of embarrassing private facts about the plaintiff Elements a. publicizing matters concerning another's private life b. highly offensive to a reasonable person c. with no legitimate public concern d. usually, must be highly publicized intrusion upon the plaintiff's seclusion or solitude: does not require publication a. requires intrusion into a private place, conversation, or matter b. must be highly offensive to a reasonable person publicity that places the defendant in a false light a. widespread publicity b. false statements made about the plaintiff c. statements are highly offensive to a reasonable person d. a showing of "actual malice" (higher standard than for defamation of private parties)
2.
2.
3.
4.
3.
3
e. f.
punitive damages available only upon showing of common-law malice Parody/humor usually not regarded as "false," so no actual malice
K.
Interference with existing contractual relationships: Actively inducing a party to violate an enforceable promise or other right, the breach of which is actionable 1. 2. 3. 4. Defendant must have had knowledge of the contract Defendant acted intentionally (not merely negligently) Note: If party has already broken or intended to break the contract, no cause of action accrues against defendant Exception: = Illegal contracts
5.
Remedies a. b. c.
Harms to privacy interests?? Mental and emotional distress typical of the loss of privacy Special (pecuniary) damages
6.
Defenses/Privileges a. Same as in Defamation L. Interference with prospective contractual relationships 1. The elements are the same as in interference with existing contractual relationships but the plaintiff bears the additional burden of proving not only interference but improper means of interference Damages a. plaintiff must show a pecuniary loss b. punitive damages available for intentional and unjustified interference Defenses a.
I.
Malicious Prosecution/Wrongful Institution of Civil Proceedings 1. Elements a. b. c. d. 2. Damages a. b. Criminal (civil) proceeding instituted by defendant against plaintiff Termination of criminal (civil) proceeding in favor of plaintiff absence of probable cause against plaintiff Malice
2.
3. compensatory and punitive damages (mental suffering, harm to reputation, etc.) Wrongful civil proceedings: in minority of jurisdictions, a showing of special injury to make these actions less common and more difficult
Privilege = a reasonable and disinterested person seeking to protect others can interfere in a contractual relationship (Brimelow v. Casson--dwarf and showgirl)
J.
Interference with Advantageous Relationships 1. Business relations/Injurious falsehood a. false statement intended to cause pecuniary damage b. statement concerns a property, product or business interest c. publication to a 3rd person d. malice in making publication ("actual malice" or spite) e. recovery of pecuniary loss only i. historically, courts used to ask for specific damages = proof of damages directly and naturally related to the injurious falsehood ii. modern trend: specificity of damage only required when reasonable to do so, and general business decline is acceptable if all other causes are reasonably excluded Defenses a. Privileges b. Truth c. Competitive business practices
2.
4