LIABILITY. STRICT Animals Wild Animals 1. Possessor 2. Wild Animal 3. With a dangerous propensity characteristic of wild animals of its class 4. Causation 5. Harm Defenses Plaintiff is a trespasser Maybe Act of God, acts of 3rd persons (Restatement 2nd says no) Not contributory negligence A/R Domestic Animals 1. Possessor 2. Domestic Animal 3. Possesses dangerous propensities abnormal to its class 4. Has reason to know of dangerous propensities 5. Causation 6. Harm Defenses Plaintiff is a trespasser Maybe Act of God, acts of 3rd persons (Restatement 2nd says no) Not contributory negligence A/R Abnormally Dangerous Elements 1. Abnormally dangerous activity (see factors below) 2. Causation 3. Harm Abnormally dangerous factors 1. existence of a high degree of risk of some harm to the person, land or chattels of others 2. likelihood that the harm that results from it will be great 3. inability to eliminate the risk by the exercise of reasonable care 4. extent to which the activity is not a matter of common usage 5. inappropriateness of the activity to the place where it is carried on
6. extent to which its value to the community is outweighed by its dangerous attributes Defenses Assumption of Risk Not Contributory negligence Not Acts of God Not Harm from 3rd parties
TRESPASS. Rule: Unauthorized intentional entry into the land of another - disruption of exclusive possession of the land - can occur with the tiniest particle - don't have to intend to be on someone else's land, just to be where you are - entry can be an object the defendant caused to be on another's land Remedies Injunction: only if plaintiff's rights outweigh the interests of society Damages Defenses Not Mistake of Fact
NUISANCE. Private Nuisance Rule: Unreasonable and substantial interference with plaintiff's interest in the land - can be negligent, abnormally dangerous or intentional - intentional: knew with substantial certainty that the interference would occur Unreasonableness of Intentional Invasion: if the gravity of the harm outweighs the utility of the actor's conduct, or the harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible Public Nuisance Rule: Conduct which substantially offends, interferes with, or causes damage to the public in the exercise of rights common to all - look at type of neighborhood, nature of the thing or wrong complained of, proximity to those alleging injury, frequency, continuity or duration, and the damage resulting
Who may sue: The state or a private individual with a special injury different in kind from that suffered by the public generally Remedies Either defendant stops or he pays (paying can turn the nuisance into a taking) Damages: if the harm has already occurred - no matter how small the harm is compared to the utility of the defendant's actions Injunction: the harm to plaintiff must outweigh the utility of the defendant's conduct - if gravity outweighs utility, enjoin - if utility outweighs gravity, no injunction but consider damages - if burden of damages will bankrupt the defendant, only a consideration (some courts don't care at all about this) Defenses Contributory negligence: when the claim is based on defendant's negligent maintenance of the nuisance Assumption of the risk: coming to the nuisance (more likely if the defendant's activity is more suitable for the area than the plaintiff's)
PRODUCTS LIABILTY. Warranty Express Elements 1. Express Statement 2. Material to the Transaction 3. Relied upon by the plaintiff 4. The breach of which caused 5. Harm Defenses No reasonable reliance: either because of puffing or because there was a warning that plaintiff should have seen No materiality Abnormal use (goes to contributory negligence and causation) Assumption of the risk: knowing and voluntary assumption Comparative Negligence Disclaimer Not no privity Implied
Warranty of Merchantability A warranty that goods shall be merchantable (i.e. fit for the ordinary purposes for which they are used) is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind Fitness for a Particular Purpose A warranty that goods are fit for a particular purpose where the seller knows that the buyer wants the goods for a particular purpose and the buyer relies on the seller's judgment to recommend a suitable product Defenses Assumption of the risk Comparative Negligence Disclaimer: a written disclaimer of the warranty of merchantability must be conspicuous Not no privity (except for warranty for a particular purpose only applies to the person who knew why the plaintiff bought the good) Not failure to recognize the defect Strict Products Liability Manufacturing Defect Rule: The seller of a product is liable for personal injuries caused by the product if the product is sold in a defective condition that is unreasonably dangerous to the user or consumer - manufacturing defect is a defect in that one particular product - Elements a. manufacture or sale by defendant b. existence of a defect c. causation Defect: No risk/utility analysis because the manufacturer already did it by choosing which design to put on the market - have to show that this product was different from all the others and that difference made it a dangerous defect (increased gravity or risk) Design Defect Rule: The seller of a product is liable for personal injuries caused by the product if the product is sold in a defective condition that is unreasonably dangerous to the user or consumer - design defect is a where all similar products manufactured by the defendant bear the feature whose design itself is defective - Elements a. manufacture or sale by defendant b. existence of defect (risk/utility analysis)
c. causation Risk/Utility Factors 1. Usefulness and desirability of the product (utility) 2. Likelihood of injury (risk) 3. Gravity of injury (risk) 4. Availability of other, safer products to meet the same need (utility and risk) 5. Obviousness of danger (risk) 6. Common knowledge and normal public expectation of the danger (risk) 7. Avoidability of injury by care in the use of the product (including the effect of instructions or warnings) 8. Ability to eliminate the danger without seriously impairing the product's usefulness or making it unduly expensive (utility) - the last five change the degree of usefulness, the likelihood and gravity of injury Defenses Express A/R Implied A/R: must be voluntary and knowing assumption Comparative Negligence Unavoidably Unsafe (what gives the product its utility is what makes it dangerous) State of the art defense can be used by both parties (plaintiff given the seriousness of the risk, this is what you should have done/ defendant what we have is the best/ plaintiff given that that is the best, you should not have done it at all) Abnormal Use use as contributory negligence, causation analysis Compliance with federal regulations not dispositive Not failure to recognize the defect Not a warning Drug Companies: unknown danger (may only be held for dangers they knew or should have about) known Failure to Warn Elements 1. Manufacture or sale by the defendant 2. Defect (because of no warning or ineffectual warning) 3. Causation Manufacturer has a duty to warn of non-obvious dangers (would a reasonable manufacturer, knowing the risks we know today, have put the product on the market?) Could the defendant have provided a warning that would have lowered the risk of harm? Unreasonable failure to warn made the product defective and unreasonably dangerous
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Defenses Abnormal Use
A/R Comparative Negligence Plaintiff didn't read only if not foreseeable Compliance with federal regulations not dispositive Not failure to recognize the defect Drug Companies: unknown danger (may only be held for dangers they knew or should have known about)
MISREPRESENTATION. Fraudulent Misrepresentation Elements 4. Representation of Fact 5. Untrue 6. Defendant intended to deceive (knows or believes not to be true, does not have confidence as to the truth, or reckless with regard to the truth) 7. Plaintiff believed, justifiably relied and was induced (material) 8. Resulting in a pecuniary loss Defenses Statement was true No reasonable reliance puffing, opinion rather than fact, buyer undertook an examination of the facts for himself No materiality Not contributory negligence if the defendant took action to prevent the plaintiff from discovering the problem plaintiff has no duty to investigate unless the falsity is obvious Negligent Misrepresentation Elements 1. Representation of fact 2. Defendant knows that it is for a particular purpose 3. Made for the benefit of another (the plaintiff) a. Duty: privity, special relationship 4. Who is known to rely and may be harmed if inaccurate 5. Statement is false and made without reasonable care - normally limited to commercial transactions Defenses No duty: no privity, no special relationship No justifiable reliance Contributory negligence: if a reasonable buyer would have checked out the facts
CONSTITUTIONAL ANALYSIS. Private/Public Figure/Concern Private/Public Figure? 1. Look at nature of the figure a. Can the figure refute bad press? 2. Does a public controversy exist? a. Focus of public debate b. Generated widespread press c. Attracted public attention d. Changed public attitudes 3. What is the nature and extent of the individual's participation in the public controversy? a. Extent to which participation in the controversy is voluntary b. Extent to which there is access to channels of effective communication in order to counteract false statements c. Prominence of the role played in the controversy - if an involuntary public figure, on private matters treat as if private figure/concern - hard to tell whether corporations are public figures Private/Public Concern? 1. Involve many people? 2. Relationship of the plaintiff with the public 3. Is it a public controversy? Public Official/Public Concern Defamatory: exposes the person to public contempt or ridicule -must be false -burden on plaintiff to prove that the statements were made with actual malice: knew the statements were false or had reckless disregard for the truth (subjective: whether the defendant in fact entertained serious doubts as to the truth of the statements) About the plaintiff -whether the maker of the statement intended it to Private Figure/Public Concern Defamatory: exposes the person to public contempt or ridicule -must be false -burden on plaintiff to prove the defendant was negligent at least (in NY- grossly irresponsible) Private Figure/Private Concern Defamatory: exposes the person to public contempt or ridicule -must be false -burden on defendant to prove truth
About the plaintiff -whether the maker of the statement intended it to
About the plaintiff -whether the maker of the statement intended it to
refer to the plaintiff or whether a 3rd party would reasonably interpret it to refer to the plaintiff Publication -when any 3rd party hears it Damages -Actual Damages (Punitive) -Actual: loss of whatever the plaintiff would have received if his name was still good -Punitive: actual malice and state punitive rule Clear and convincing evidence
refer to the plaintiff or whether a 3rd party would reasonably interpret it to refer to the plaintiff Publication -when any 3rd party hears it Damages -Actual Damages (Punitive) -Actual: loss of whatever the plaintiff would have received if his name was still good -Punitive: actual malice and state punitive rule
refer to the plaintiff or whether a 3rd party would reasonably interpret it to refer to the plaintiff Publication -when any 3rd party hears it Damages -Actual Damages (Punitive) -Common law malice: ill will
Defenses Fair Comment: protection of a common interest, lost by a showing of malice (ill will) Fair Report of a Judicial Proceeding, lost by a showing of malice (ill will) Neutral reportage: correctly and neutrally reports charges made by one person against another, lost by a showing of malice (ill will) Opinion Substantially true (affirmative defense) Consent - absolute Judicial, Legislative, Executive proceedings - absolute Government official absolute
UNJUSTIFIABLE LITIGATION. Malicious Prosecution Elements 1. Defendant either commenced or continued a criminal proceeding against plaintiff 2. Proceeding terminated in plaintiff's favor a. A valid decision on the merits 3. No probable cause for the proceeding 4. Criminal proceeding was instituted in actual malice a. Willful, intentional and done in reckless disregard of the possible consequences Abuse of Process
Elements 1. An ulterior purpose 2. An act in the use of process which is improper in the regular prosecution of the proceeding a. After initiation b. Irregular process is whatever you say it is - Plaintiff can lose the first case and still bring this action (unlike MP)
INVASION OF PRIVACY. Right of Publicity/Commercial Appropriation: when someone commercially uses your personality to claim you use or endorse a product - has to be for personal profit, not just a newspaper - relates to a person of ordinary sensibilities Intrusion: go into someone's private life and reveal something about them - has to be a physical entry into the plaintiff's private place - highly offensive to a reasonable person Publication of Private Facts: saying something about someone's private life - not invasion if the publication is showing what the public would see by simply looking at the plaintiff - details that are highly private - would a reasonable person object to having those facts released about them? False Light: portraying someone in a false light - need falsity - reasonable person would be highly offended Defenses Legitimate public concern Consent Newsworthy No publicity has to be a certain sized group (general publication) Substantially true MASS TORTS. California possibly allows the defendants to opt out - bases responsibility on local market share - goes against reasoning for mass torts because with damages the defendant is supposed to symbolically pay for everything it has done to everyone (opting out undermines this) New York does not allow defendants to opt out - bases responsibility on national market share