TORTS II OUTLINE
I. VICARIOUS LIABILITY - search for deep pockets. Impose
liability on one party for the actions of another: derivatively imposed.
Two ways to get the principle - vicarious liability action
and negligence action.
A. SCOPE OF EMPLOYMENT
Respondeat Superior Doctrine - employers are liable for the negligence of an
employee committed while the employee is acting within the scope of his
employment. An employee acts in the scope of his employment when he is doing
something in furtherance of the duties he owes to his employer and where the
employer is, or could be, exercising some control, directly or indirectly, over
the employee's activities.
1. Commuting to and from work is not under this doctrine.
2. Traveling during work is under this doctrine. Minor detours generally are
within the scope of employment. Frolics (goes to see mistress 30 miles away -no
3. An employee who uses his car during the course of his work (traveling
salesman) is acting in the scope of employment while driving home from his last
business appointment - since such a person is working and under his employer's
control from the time he leaves his house.
4. Lundberg v. State. Engineering technician was not acting in the scope of
his employment when he was involved in a traffic accident on the way from his
weekend home in Buffalo to his work-site 80 miles away.
5. Distinguish workers' compensation claim (job related) vs. scope of
employment for vicarious liability. The former is broader, making it easier to
obtain workers' compensation.
6. INTENTIONAL TORTS - normally held not within the scope of employment.
Exceptions for intent. tort liability to employer:
a) Force is authorized in the employment, e.g., bouncer
b) Friction is generated in the employment, e.g., bill collector
c) Employee is furthering employer's interest, e.g., removing a rowdy
B. WHY HAVE VICARIOUS LIABILITY?
1. Control/deterrence. Employer is in a better position to prevent
3. Risk allocation / spread costs/risks - rather than leaving damage all on
4. Enterprise (cost of doing business). Enterprise benefits, therefore it
should pay the costs.
C. INDEPENDENT CONTRACTORS
1. Employers are generally not liable for the torts of independent
contractors. An independent contractor is one who engages to perform a certain
service for another according to his own methods and manner, free from control
and direction of his employer in all matters connected with the performance of
the service except as to the result thereof.
2. The parties agree that the decisive test for determining whether a person
is an employee or an independent contractor is the right to control the physical
details of the work. Murrell v. Goertz (Newspaper delivery contractor held not
to be an employee of the newspaper. He had no direct contact with the newspaper
and was hired by another contractor.)
Other factors to distinguish employee from indep. contractor:
whether one employed is engaged in a distinct occupation or business,
whether this type of work is usually done by an employee,
skill required for the particular occupation,
who supplies the instruments and place of work,
length of time for which person is employed,
whether work is part of regular business of employer,
whether the parties believe they are creating the employer-employee relation,
whether principal is in business.
3. Exceptions where employer is liable for independent contractor:
a) where employer retains control over the aspect of the activity in which
the negligence occurs.
b) where the employer selects an incompetent contractor (includes no
liability insurance or underfunded)
c) where the work performance involves inherently dangerous activity, e.g.,
blasting. (strict liability).
d) The duty, because of public policy considerations, is simply nondelegable,
e.g., the duty of a business to keep its premises safe for customers; the duty
of a motorist to keep his car in safe working order.
Liability for Negligent Selection
Both is respondeat superior and independent contractor situations, the
employer may be liable for her own negligence is selecting an employee or
contractor (e.g., a hospital is liable for contracting with physician who
negligently treats hospital's patient). THIS IS NOT VICARIOUS LIABILITY.
D. NON-DELEGABLE DUTIES
1. A violation of a safety provision of the Vehicle Code does not make the
violator strictly liable for damage caused by the violation. The duty to
exercise reasonable care to maintain brakes so that they comply with the Vehicle
Code cannot be delegated. MALONEY v. RATH (lady takes car in for repair of
brakes, negligently installed, and involved in accident. Lady is REBUTTABLY
Since her duty to maintain her brakes in compliance with the provisions of
the Vehicle Code is nondelegable, the fact that the brake failure was the result
of her independent contractor's negligence is no defense. MALONEY v. RATH
In the past, Maloney (victim) could not sue the mechanic directly, because he
was not in privity of contract. Now under Third Party Beneficiary theory - could
file negligence suit. Mechanic's failure to exercise due care caused the
accident. By vicarious liability, could also sue Pete's Chevron. Maybe the
personal assets of owner, depending on incorporation status.
Does is make any difference that she is not strictly liable? Yes, ruling
still requires P put forth evidence of some negligence. If only strictly liable,
P would not have to show violation of the reasonable person standard.
2. Duties that are nondelegable: 1) relationship where one party placed in
care of another; 2) statutorily imposed duties; 3) involves enough danger /
public safety (automobile without brakes).
E. BUSINESS ASSOCIATIONS AND VICARIOUS LIABILITY
1. Partnerships - Each member of a partnership or joint venture is
vicariously liable for the tortious conduct of another member committed in the
scope and course of the affairs of the partnership or joint venture. Can collect
from partners' personal property
2. Limited Partnerships - limited partners can lose only their investment, as
distinguished from general partners, above, who can lose personal possessions.
3. Corporations - stockholders only lose investment. Officers and directors
may be personally liable.
F. OTHER FORMS OF VICARIOUS LIABILITY
1. Automobile Owner for Driver
The general rule is that an automobile owner is not vicariously liable for
the tortious conduct of another driving his automobile. However, many
jurisdictions have adopted the family car doctrine, which makes the owner liable
for tortious conduct by immediate family members in driving with the owner's
express or implied permission for a family purpose. Some states have passed
"permissive use" statutes, which extend vicarious liability beyond family
members to anyone who is driving with express or implied consent of owner. Also,
if owner is in the car. Omnibus insurance clause - courts are willing to impose
2. Negligent Entrustment
The owner may be liable for her own negligence in entrusting the car to a
(drunk, reckless) driver. THIS IS NOT VICARIOUS LIABILITY.
3. Driver of a car is not vicariously liable for negligence of manufacturer.
4. If two cars are involved in an accident and neither is negligent (e.g., a
stroke victim), then cannot collect.
III. STRICT LIABILITY
To establish a prima facie case for strict liability, the following elements
must be shown: 1) the existence of an absolute duty on D to make safe; 2) breach
of that duty; 3) breach was the actual and proximate cause of P's injury; 4)
Damage to P's person or property.
Challenge: figure out when fault (negligence) should be required vs. strict
liability. Choice affects how damages are assigned between competing innocent
1. Private party who harbors a wild animal, which by its very nature is
vicious and unpredictable, does so at his peril, and liability for injuries
inflicted by such animal is absolute. Denver v. Kennedy (? as long as the person
injured did nothing, voluntarily or consciously, to bring about the injury -
2. PUBLIC POLICY: Where a municipality maintains and operates a zoo for the
benefit of the public and in response to the public's obvious desires, keeping
and displaying animals commonly wild in nature is not an unreasonable or
unjustified act. Denver v. Kennedy Public Duty Exception - negligence must be
shown, although a high degree of care will be required.
3. Where animals kept for display to the public by a city are of a dangerous
propensity, there is a duty on the part of the City to protect the public from
unreasonable risk of harm which might be caused by such animals. Kennedy v.
Denver (girl gets finger bitten off by zebra, and city breached duty of care
owed to girl to allow her by erecting barrier which she could easily reach over
to come into contact with the zebras.) Liable only with fault/negligence, not
4. Domesticated (Nondangerous) Animals - Knowledge Required.
The owner of a domestic or inherently nondangerous animal (e.g., a dog or
cat) is not strictly liable for injuries it causes. Strict liability attaches if
owner has knowledge of that particular animal's dangerous propensities (i.e.,
propensities more dangerous than normal for that species, animal threatens
serious bodily harm or property damage to others). This rule applies even if the
animal has not actually injured anyone yet.
Exception: Some states have "dog bite" statutes, applicable only to dogs,
which impose strict liability in personal injury actions even without prior
knowledge of dangerous characteristics. Basically, these statutes reverse the
common law rule that every dog was entitled to one bite before it became known
to be an animal with dangerous propensities. The statutes make its keeper liable
for all damage or harm caused by the animal, unless the P was a trespasser, or
was committing a tort.
5. Licensees and Invitees - Landowner strictly liable.
6. Trespassers Must Prove Negligence - exception for vicious watchdogs
7. Trespassing Animals. The general rule is that the owner of animals that
are likely to stray and that do stray onto the land of another is strictly
liable for any damage caused by such animals. An exception to this rule was made
for domestic pets. Some (agriculture) jurisdictions - fencing in requirement;
some (livestock) jurisdictions - fencing out.
8. Damages flow from dangerous propensity of animal. Would include actual
medical out-of-pocket expenses, pain and suffering, lost wages, ? missed
vacation plans - debatable.
B. ULTRAHAZARDOUS OR ABNORMALLY DANGEROUS ACTIVITIES
1. Definition - An activity may be characterized as ultrahazardous or
abnormally dangerous if it involves (1) a substantial risk of serious harm to
person or property (2) no matter how much care is exercised. (3) Also, cannot be
common usage. Strict liability is imposed on those who engage in such
activities. Whether an activity is ultrahazardous is a question of law that the
court can decide on a motion for directed verdict.
2. Test - The courts generally impose three requirements in finding an
activity to be ultrahazardous:
(i) the activity must involve a risk of serious harm to persons or property.
(ii) The activity must be one that cannot be performed without risk of
serious harm no matter how much care is taken.
(iii) It must not be a commonly engaged in activity by persons in the
community. Example: In RYLANDS v. FLETCHER (1868), the House of Lords held a
mill owner strictly liable when a neighbor's mines were flooded by water
escaping from the mill owner's reservoir. This was considered an abnormal use in
"mining country." (Other examples include blasting, manufacturing explosives,
crop dusting, and fumigating).
The minority of courts that follow the R2T approach also take into account
the value of the activity and the appropriateness of the location.
3. The rule of RYLANDS is that one is strictly liable to adjacent landowners
when he brings an artificial and unnatural device (reservoir) onto his land, and
the unnatural device causes something to escape from the land and harm another's
land or property.
Blackstone emphasized damage caused by escaping forces. Cairns emphasized
If the water had accumulated naturally and run off onto adjoining land, there
could be no complaint. But here, D had constructed an artificial reservoir,
which burst and flooded P's coal mines.
This case is distinguishable from traffic and other cases that require proof
of a D's negligence for recovery. They involve situations where people have
subjected themselves to some inevitable risk. Here, there is no ground for
saying that P took upon himself any risk arising from the use to which D chose
to put his land.
Why need strict liability for RYLANDS: 1) did not know about caves, not
foreseeable. 2) hired competent contractor. 3) no vicarious liability for acts
of independent contractor. 4) concept of nondelegable duty (to build reservoir
in safe manner) did not exist yet.
Why no sue indep. contractor directly? Not in privity of contract.
When damage is done to personal property or even to the person - there must
be fault/negligence for liability.
4. Strict liability is appropriate for injuries caused by blasting, where Ds
blast a tree on D's property, and the explosion throws a piece of wood onto a
highway killing a woman. The deceased's right to safety is greater than D's
property right. P's injuries arose directly from D's activity. Strict liability
is imposed even for employers of independent contractors. SULLIVAN v. DUNHAM
Activity is taking place on their property and for their benefit, therefore
they must bear the loss vis-a-vis an innocent third party. Species of vicarious
liability here, nondelegable duty. Here we have damage from direct result, not
indirect result (concussion) so no proximate cause issue. If damage from
concussion, then negligence must be proven.
nondelegable duty for safe blasting.
5. If you store explosives, then you are strictly liable for any damages.
Even where thieves break in and deliberately set off explosives, the owner of
the business storing the explosives - even though without fault, rather than the
injured third party, should bear the loss. The use involved here was an
abnormally dangerous one. The court felt that breaking and entering by thieves
was foreseeable to owner, since thieves had previously broken into the warehouse
- owner on notice. Proximate cause solved. YUKON EQUIPMENT v. Fireman's Fund
We do not believe the Restatement (Second) should be used in cases involving
explosives. Why is Court reluctant to conclude this activity is not abnormally
The court, not a jury, should decide whether the activity is abnormally
dangerous - mixed fact and law decision, concern jury might get carried away.
The R2T factors suggest a negligence (reasonable person) standard that may
well be necessary where damage is caused by unique hazards and the question is
whether the general rule of absolute liability applies. Do not want to use
sic utere tuo ut alienum non laedas - be good to your neighbor, use property
so as not to harm others.
strict liability would still apply if the act was done negligently,
accidentally, or recklessly. Without prior notice, strict liability would end
with intentional acts by third parties - superseding acts.
6. The (First) Restatement allowed strict liability for ultrahazardous
activities. Those were activities that were not of common usage and whose risks
of serious harm could not be eliminated with utmost care.
The R2T allows strict liability for abnormally dangerous activities. Rather
than declaring the elements that must be met, the R2T proposes SIX factors to be
balanced in deciding strict liability for ABNORMALLY DANGEROUS ACTIVITIES: We
don't have to use all six. (1/6 rule)
1) Whether the activity involves a high degree of risk.
2) Whether the gravity of that risk is high.
3) Whether the risk can be eliminated with reasonable care.
4) Whether the activity is not a matter of common usage.
5) Whether the activity is appropriate to the place where it is being carried
6) Whether the value to the community is outweighed by the danger.
7. There may be strict liability imposed for damage caused by products,
depending on the theory used by a court in resolving such problems.
8. If strict liability, then D's proffer of "all due care" is irrelevant.
9. Why do we impose strict liability for reservoir and blasting, but not for
steam boiler exploding (Losee v. Buchanan 1873)? Losee reasoning is that we have
to externalize some of the costs or these enterprises would not take place in
the first instance. If steamboiler had been operated negligently, then we would
have liability. Here steamboiler is a "natural use."
C. EXTENT OF LIABILITY
1. Scope of Duty Owed
As contrasted with negligence, the duty owed is an absolute duty to make safe
the animal, activity, or condition that is ultrahazardous, and liability will be
imposed for any injuries to persons or property resulting therefrom.
a. To Whom is the Duty Owed?
In most states, the duty is owed only to "foreseeable plaintiffs" - persons
to whom a reasonable person would have foreseen a risk of harm under the
circumstances. (Generally, strict liability will not be imposed on a D's
blasting that hurled rock onto a person so far away that no reasonable person
would have foreseen a danger. However, some courts find liability for all
blasting harm due to the intrinsic danger of D's activity).
b. Duty Limited to "Normally Dangerous Propensity"
The harm must result from the kind of danger to be anticipated from such
dangerous animal or ultrahazardous activity, i.e., it must flow from the
"normally dangerous propensity" of the condition or thing involved.
Example: D's toothless pet leopard escapes from its cage without fault on D's
part and wanders into a park, causing P to break her arm while trying to flee. D
is strictly liable to P.
Compare: D's gasoline tanker truck blows a tire without warning and hits
Pedestrian. D is not strictly liable to Pedestrian. However, if the truck then
crashed and exploded, and the explosion injured Bystander, D would be strictly
liable to Bystander.
2. Proximate Cause
D's liability can be cut off by unforeseeable intervening forces.
Contributory Negligence - no defense to strict liability unless P's
negligence was the cause of the ultrahazardous activity.
Assumption of risk - this defense may be asserted against a P who voluntarily
encounters a known danger and by his conduct expressly or impliedly consents to
the risk of the danger.
Comparative negligence. Some courts in comparative negligence jurisdictions
have been willing to reduce P's recovery to reflect the amount that his fault
contributed to his injury.
Injury within the risk created. For strict liability to be imposed, the
injury must have been within the group of risks that made the activity
1) Different risk. Example: D conducted blasting operations. P incurred
damage when his minks became frightened by the blasts and killed their kittens.
Since the danger of flying debris made the blasting ultrahazardous and since the
resulting harm was not from that which makes the activity ultrahazardous, strict
liability was not imposed.
2) Unforeseeable intervening cause. Even where the damage is within the
foreseeable risk, the majority holds that there is no strict liability if it was
brought about by an unforeseeable intervening cause, e.g., an act of God or the
intentional acts of third persons.
II. PRODUCTS LIABILITY
A. Common Law
At early English common law, defective product liability was grounded in
either tort or contract. Tort actions grounded in deceit - breach of assumed
duty. In Winterbottom v. Wright 1842, the court rejected the claim against a
coach repairman by a passenger injured when the coach collapsed (the repairman
had agreed with the owner to keep it in repair). The court felt the most absurd
and outrageous consequences would result if those not in privity of contract
were allowed to sue in contract. Pre-MacPherson, buyer had to have some privity
relationship to manufacturer (third party beneficiary) for warranty to apply.
Why privity? Foreseeable P.
EXCEPTION: hazardous poison, Thomas v. Winchester.
B. Intentional Acts as a Basis for Liability. If a manufacturer or supplier
of a chattel sells it with knowledge, or with reason to know, that it is
dangerous or defective, and fails to warn of the danger or defect, the party may
be liable for a battery to any person injured through use of consumption of the
product. The requisite intent is established by showing that the injuries
suffered were substantially certain to result from use of the chattel in the
condition as sold by the manuf. or supplier.
If no express warranty but a merchant - implied warranty of merchantability
for usual use. Can be implied warranty for particular purpose.
Person sells used tractor in noncommercial setting and says "engine is in
good working order" - innocent misrepresentation. Is he liable for negligent
misrep? If seller stated "no problems for 6 months" - express warranty, strictly
At common law, warranty actions were aimed at economic loss, not personal
injury. Applies whether manufacturer at fault or not.
(Strict liability - must show causation. Contributory negligence not a
- fit for intended purpose
Originally, liability limited to one who purchased product. This theory
D. INTRODUCTION TO MODERN LAW
1. Negligence as Basis for Product Liability. Foreseeable risk of harm. P has
recourse against manufacturers and suppliers of defective products on a
negligence theory of relief. Privity between the manufacturer and P is NOT
necessary for P to recover against the manufacturer. MACPHERSON v. BUICK MOTOR
CO. (P thrown from car when a wheel with defective wooden spokes collapsed.)
If a reasonable person would have foreseen that the product would create a
risk of harm to human life or limb if not carefully made or supplied, then the
manufacturer and supplier are under a duty to all foreseeable users to exercise
reasonable care in the manufacture and supply of the product.
Court defines "imminently dangerous" product as = any negligently made
product = any product. Still insisting on negligence, not strict liability.
2. Extensions of the MacPHERSON rule.
(i) Damage to the product sold resulting from its own defect
(ii) Damage to reasonably foreseeable nonusers in the vicinity of the
expected use of the product.
(3) Damage caused by defects in design as opposed to defects in manufacture.
(iv) Damage to property in the vicinity of expected use, where the product
itself is dangerous to life and limb because it is negligently made.
(v) Liability for products negligently manufactured but posing a foreseeable
risk to property only.
(vi) Liability of a processor of a product at an intermediate stage.
(vii) Liability of those who sell others' product as their own (including
dealers, distributors, and any other party in the chain of sale).
3. Res Ipsa Liability and Emergence of Strict Liability. Use of the doctrine
of res ipsa loquitur eased P's burden of proof. ESCOLA v. COCA COLA BOTTLING A
waitress was injured when a coke bottle exploded in her hand. The circumstances
of the injury are held to create a rebuttable presumption of negligence. COKE
tries to rebut suggesting reasonable inspection, but waitress wins. (In general,
reason P might have wanted to try on negligence theory of recovery: jury awards
are higher if you can prove fault.)
TRAYNOR's concurring opinion foreshadowed strict liability: Manufacturers
ought to be strictly liable for injuries caused to consumers by defective goods.
Public policy dictates that manufs. ought to pay the cost of the injuries they
cause. Why is res ipsa not sufficient? P might not win, but all the same policy
reasons apply. Why isn't warranty sufficient? It requires privity of K, would
not compensate bystanders.
Strict liability is also justified because the consumer is unable to inspect
closely modern complex products. The manu. can better bear the cost and control
the quality. Therefore, impose liab. on party best able to avoid (incentive),
and enterprise liability - internalize costs.
Strict liability begins to emerge for food, drink, cosmetics - any product
with close bodily contact.
4. How do we tell for which products we compensate for injury? 1) Product
used properly, 2) adequately maintained, } Unreasonable danger
If renting a limousine or taking a taxi ride and brakes fail, cannot recover
under R2T § 402(A) for services. Can hold lessor of car liable, because it is
effectively a purchase - which is covered by R2T.
Someone uses screwdriver to open can, handle breaks. Intended use - no,
foreseeability - yes } depends on jurisdiction.
5. Consider manufacturing defects, design defects, and information/warning
a) R2T § 401 places a duty on dealers and distributors to reasonably inspect
their products that are inherently dangerous in normal use and to remedy, or
warn buyers against, such defects or dangers. The failure of the dealer to
inspect, however, does not relieve the manufacturer of its obligations since the
dealer's omissions are considered foreseeable.
b) R2T § 402 does not place such a duty on the dealer where the products are
manufactured by others and are not inherently dangerous to in normal use. In
such cases, the manufacturer is still liable under the MacPherson rule, and the
dealer maybe liable under the theory of warranty or the theory of strict
liability. But if the dealer discovers the defect, the common law rule will make
the dealer liable to any injured P who was not warned of the defect prior to the
sale. This failure to warn of the known defects will operate as an unforeseeable
intervening force with respect to the manufacturer's negligence and will relive
it of liability under a negligence theory.
c) The defenses available to a D under a typical negligence action (e.g.,
compar. negli., assump. of risk) may be raised by a D in a products liability
action grounded in negligence.
6. FOUR TESTS to determine whether product is defective:
(1) CONSUMER EXPECTATIONS - consumers have no choice on reinforcements,
location of gas tank, etc. Not good for design defects. Works well with cola
bottles, screwdrivers, and probably lathe tool in Greenman. No consumer ever
expects to be hurt with product. Therefore P will always win. But others argue
this test does not protect against obvious dangers.
(2) RISK/UTILITY - if risk inherent in the challenged design outweighs the
benefits. This shifts burden of proof to D to show his product is safe. Does not
always work in manufacturing defects. Applies to manufacturing defects via
inspectors or slowing down assembly line. True costs include not only cost of
safer alternative, but also good will and no forced recall and no punitive
(3) REASONABLE USE (negligence type).
(4) SAFER ALTERNATIVE
If we abandon the consumer expectations test, the consumer only has to show
that some product has injured him. Then manufacturer must prove it acted
7. CRONIN says whether manufacturing or design defect should not matter;
consumer must only show product is defective, (forget about unreasonably
B. DESIGN DEFECTS
1. Strict liability. The seller is held strictly liable for injuries caused
to the P irrespective of the seller's negligence or even his exercise of all
possible care. The rationale for this theory of liability is that the D is
considered better able to assume the risk of loss through insurance or otherwise
than is the innocent consumer.
2. R2T § 402(A) requires the product be in a defective condition unreasonably
dangerous. Users or consumers may recover for physical harm from sellers of the
product. MANUFACTURER not covered. P has burden of proof. Focus on product, not
conduct of manufacturer.
The defect in a design case is the result of a condition intended to exist by
the manufacturer. The P claims that a design choice carries a risk of harm in
P must prove the design is a defective condition that is unreasonably
dangerous (judged from reasonable consumer standard).
4. RISK/UTILITY test applied. BARKER v. LULL ENGINEERING (Col. 1987). Man
injured while operating a high-lift loader manuf. by Lull. P alleged the loader
was defectively designed. Calif. rejected the unreasonably dangerous language
and refused to apply a test based on consumer expectations: consumers have no
choice on reinforcements, location of gas tank, etc. Not good for design
defects. All products must meet ordinary consumer expectations for safety as a
bare minimum. A product may also be defective if its benefits are outweighed by
the risk of danger it creates.
Ordinary consumer would not expect a high lift to overturn when used under
normal conditions. Looking back with hindsight, ask whether a reasonable
manufacturer would have acted this way. Court prefers "foreseeable use" instead
of "intended use." If P shows injury caused by product, then D must justify his
design. Similar to Campbell, no handpole on bus. IN THESE TWO CASES PLUS CRONIN
WE SEE A TREND - Ps ARE ABLE TO GET TO THE JURY. California is focusing on
shifting the burden of proof to D.
COMMENT: Ordinarily, proof of a feasible alternative design is necessary to
prove the design defect case.
5. The crashworthiness doctrine - Man involved in motorcycle accident, in
which cycle had no leg guards. Absence of leg guards did not cause injury, but
aggravated it. (Concurrent cause situation). Court adopts "crashworthiness"
doctrine, under which a motor vehicle manufacturer may be liable in negligence
or strict liability for injuries sustained in a motor vehicle accident where a
manuf. or design defect causes or enhances injuries. Camacho v. Honda Motor Co.
Uses risk/utility test but does not shift burden: a) utility to user and
public as a whole. b) safety aspects - likelihood of serious injury. c)
availability of a substitute. d) manufacturer's ability to eliminate efficiently
unsafe characteristics. e) users awareness of the products danger.
Consumer expectations test is no good, because it excludes open and obvious
dangers. For these dangers, manufacturers would have no liability. It unjustly
imposes liability for latent defects but not for patent defects. (But really
does, because no consumer expects to get hurt.) OBVIOUSNESS of danger may still
be relevant for assumption of risk. CAMACHO v. HONDA MOTOR CO.
Turns focus away from consumer and looks solely at product.
6. How do we tell when to cut off liability? Loose button on shirt, eraser
breaks off pencil } usual proximate cause issues. For case where man gets shirt
sleeve caught in manufacturing equipment and is injured, consider suing the
manufacturer of the machine instead of the shirt manufacturer. Component part
manufacturer often do not know the intended purpose.
Misuse. If P misuses the product or engages in abnormal use that was not
foreseeable, D will not be held liable, even under a strict liability theory.
When is use abnormal? When P fails to follow D's directions and instructions.
Foreseeable misuse. Where an unusual or abnormal use should be anticipated by
D (e.g., sailor walking over containers used for transoceanic shipping was
injured when he fell through a defective container; this is abnormal but
foreseeable), strict liability may apply.
7. Hypotheticals: 1) Absence of anti-lock brake system as basis for
aggravating injuries? No recovery by assumption of risk, economic choice for the
consumer. 2) lawnmower without guard rail? By making the manufacturer liable, we
will force the safety innovation.
C. WARNING/INFORMATION DEFECTS
Tests: (1) hindsight test (more like strict liability), (2) Reasonably
foreseeable test (more like negligence): negligent warning, negligent testing,
research, sales, and promotion.
1. Two Reasons to WARN: 1) How to use product safely - intended use,
unintended use, preserve; 2) Warn of inherent dangers, e.g., cigarette warning.
2. Adequacy of warning. Whether D adequately tried to communicate a warning
to the ultimate user and whether the warning was adequate are questions of fact
for the jury. No clear rule for what is adequate. Jury must decide using a
reasonable person on notice - negligence, rather than strict liability standard.
Ps contend the danger posed by D's product when ingested by small children
was great enough to require more than small print "external use" and to the
"poison control center" and "keep all medicines out of the reach of children"
were sufficient to convey the message to an average adult that there is a risk
of serious harm if a child swallows the medicine. Hahn v. Sterling Drug (The
3. Duty to warn. A manufacturer has a duty to warn if it was foreseeable to
the manufacturer that the product would be used in a dangerous manner. There is
no duty to warn of an improper use that could not have been foreseen. Where
safety guards are removed from machine, and all safety devices on the switch
were permanently attached and did not require removal for any type of
maintenance, the circumstances did not make it foreseeable to parts manufacturer
that such misuse would occur. If the parts could be removed for maintenance and
cleaning, then it would be foreseeable that the shields would not be put back
on. Huber v. Niagara Machine
Difficult for component part manufacturer to communicate warning through
manufacturer to consumer. Ordinarily, failure to warn = negligence cause of
action. Workers compensation is only remedy against employer, therefore P in
this case is trying to sue someone else in product liability.
4. FABERGE COLOGNE CASE - manufacturer held liable for not warning that
cologne was flammable.
5. MACDONALD v. ORTHO PHARM. CORP As a general rule, the physician acts as an
intermediary to convey warning from manufacturer to patient. Learned
Intermediary Rule - for most prescription cases, manufacturer should warn
doctor, and then prescribing doctor must relay warning to patient or determine
if drug is appropriate. (Manufacturer can be directly liable to consumer for
breach of this duty -third party beneficiary.) However, in cases like the pill,
where patient has limited contact with doctor (annual refills, subsequent points
in time when alternatives can be chosen), this rule may not apply: providing
info. to doctor is not sufficient.
States may impose a higher duty to warn than the FDA. FDA does not preempt
state requirements. Where a trier of fact could reasonably conclude that a
manufacturer's compliance with FDA requirements did not adequate apprise oral
contraceptive users of inherent risks (strokes), the manufacturer should not be
shielded from liability by such regulatory compliance. The jury could have found
that the lack of reference to "stroke" breached D's common law duty to warn.
6. CIPOLLONE v. LIGGETT GROUP U.S. Supreme Court considered whether federal
statutes preempt state law in claim by woman who contracted cancer from smoking
cigarettes. Court finds federal law preempted state (common and legis) law on
(1) failure to warn, (2) neutralization of federally mandated warnings to the
extent those claims rely on omission or inclusions in respondent's advertising
or promotions. Claims for express warranty, intentional fraud and
misrepresentation, and conspiracy are NOT preempted. (Safer alternatives and
risk > utility claims not before the court) Family subsequently abandoned the
case due to lawyer costs; therefore, still no case where cigarette manufacturers
have been held liable.
Medical devices - liability is preempted by federal statute in certain cases.
7. Unavoidably unsafe products WHITE v. WYETH LABS This case concers a
manufacturer who knew about a product's dangerous propensity and a question
arises about the adequacy of its warning.
DTP vaccine is an unavoidably unsafe product, therefore D is not strictly
liable for injuries DTP causes. D provided adequate warning with its DTP vaccine
and thus is not strictly liable. Negligence can be used.
A manufacturer of an unavoidably unsafe product is not strictly liable
provided the product was "properly prepare, and accompanied by proper directions
and warning." Safer alternative? No manufacturer in the US was licensed by the
FDA at the time of events pertaining to this case to use other, safer vaccines
in the manufacture of DTP that would have immunized children against whooping
cough just as effectively and with less risk.
A manufacturer of an unavoidably unsafe prescription drug provides adequate
warning when "it reasonably discloses all risks inherent in the use of the drug
of which the manufacturer, being held to the standards of an expert in the
field, knew or should have known to exist."
D's warning was adequate, and perhaps even overly inclusive. In addition, the
FDA had reviewed and approved D's warning. Reasonable minds could only conclude
that the warning was adequate and therefore the issue should not have been
submitted to a jury. Court decides as a matter of law.
We are better off in society be requiring vaccines even though some children
will suffer dire consequences. Congress has set up a fund to compensate
immunization victims. If follow the tort route, P would have to contend with 1)
Comment K applies; 2) learned intermediary rule.
§ 402(A), comment K (Unavoidably unsafe products) only applies to known but
reasonable risks, e.g., rabies vaccine. It only applies to unknown risks.
Whether a product is "unavoidably unsafe" under Comment K is determined on a
case-by-case basis. Seems to impose a negligence standard.
Should Comment K apply to over the counter drugs? It would encourage the
manufacturer to bring new drugs to the market. The courts have no consensus.
Comment K = some products where a manufacturer can warn away its liability.
8. Know of danger. In order to hold a D liable for failure to warn,
additional burdens are imposed on the P. The P must prove that the D knew or
should have known of the danger.
A manufacturer who subsequently learns of a danger has a duty to give
adequate warning both to new users and past users to the extent possible to warn
of newly gained knowledge.
9. Held to knowledge of expert in field. FELDMAN v. LEDERLE LABS In
fulfilling the duty to warn, a manufacturer is held to a higher standard than
the information available in the scientific community. A manufacturer must be
held to the level of knowledge of an expert in the field in which it operates.
It must be held to know things that are reasonably obtainable. In addition, D
bears the burden of proving the absence of such information: burden shifting.
(drug caused discoloration of teeth)
Where you know of dangers or could/should have reasonably known, then strict
liability applies. The D has burden to prove the information for the warning was
not reasonably available, in strict liability cases. In this case, as
distinguished from Wyeth, the manufacturer did not know about the dangerous
effects. Therefore, he had no duty to warn. (Looking with hindsight, the
manufacturer would have included a warning about teeth discoloration.)
10. Applies Strict Liability with HINDSIGHT. BASHADA. Asbestos case. Knowing
what we know now, was the warning adequate? Seems unfair. Focus on product not
conduct: 1) spread the risks, 2) incentives for research, 3) reduce
administrability. Manufacturer stuck here with unknown risks. Imputes knowledge
backwards. BASHADA is the exception. So much asbestos litigation, that the
question of the point in time at which P learned of injury is irrelevant. A
reasonable manufacturer would not have known of the danger, and consequently,
had no way of knowing that it needed to warn of the danger, but the court says
that does not matter.
D. STRICT LIABILITY BEYOND PRODUCTS?
R2T § 402(a) requires that the D be a seller of goods in order for strict
liability to attach. Providers of services may only be held liable for
Provider of Service. HOVEN v. KELBLE. Where P's husband suffers a cardiac
arrest during a lung biopsy, strict liability DOES NOT apply to medical
malpractice. Strict liability would require virtual perfection in the area of
health care. (If a cure is known, it must be applied perfectly.) The standard
would be measured by "hindsight" after the injury occurred. Medical treatment is
at times experimental and is of great necessity. Strict liability would make it
less available to the public.
Example: If apply an unsterile dressing, is physician liable? Probably not.
See MURPHY (holding pharmacist not strictly liable merely because he sells
prescriptions). Similarly, a dentist is not strictly liable for a needle which
breaks in a patient's jaw.
Applicable to legal services? Will vs. collision dispute. Expect fewer
nonenforceable wills to be drafted than collision cases to be won. But most
likely attorney will be subject to negligence suit anyway.
STRICT LIABILITY: focus on the product, not the conduct. Higher standards and
shifting burden of proof. California courts focus on shifting proof. BASHADA -
quintessential case: reasonable manufacturer would not have known of danger, but
court says that does not matter. The word "defective" seems to imply negligence.
A beautician has been held to be operating a commercial venture, therefore
she is strictly liable for applying injurious permanent solution. Distinguish
from providing medical services.
ISSUES: 1) itemize bills - charging for products, 2) makes a profit, 3) some
courts distinguish between medical vs. administrative services, 4) cost of
enterprise: girl dies in dentist's chair.
HAMMONTREE v. JENNER Epileptic driver suffers a seizure and crashes into a
store. Took elaborate precautions. In this case, neither party is at fault, and
driver held NOT liable. P would have done better to argue for strict liability
based on abnormally dangerous activity (generating risks as in the blasting
case), rather than argue that any stroke victim should be held liable for car
accidents (overly broad jury instruction). Court leaves the costs where they
1. Contributory Negligence. In a contrib. negli. jurisdiction, contributory
negligence is NO DEFENSE where the action is based on strict liability. But
where the user discovers/recognizes the danger, and nevertheless proceeds
unreasonably, then assumption of risk may be asserted as a defense. Of course,
contrib. negligence is always a defense in an action based on negligence.
2. Comparative Fault. DALY v. GENERAL MOTORS Strict liability is not absolute
liability. The manufacturer is only liable for the injuries it causes. Although
it appears that the court is mixing "apples and oranges," it is not. It is only
allocating the loss according to the percentage of causation that each party
contributed to the accident. The court therefore prefers to use the term
"comparative fault" rather than "comparative negligence." Comparative fault
applied in California to PROSPECTIVE injuries.
If P is responsible for part of the accident, then the manufacturer's strict
liability is offset by the P's percentage of fault.
Lack of attentiveness will NOT invoke comparative negligence. A product is
supposed to be manufactured with safety guards just for such inattentive uses.
Joint and several liability, especially when fault is attributed to a
nonparty, can have a big impact on recovery.
Argument against adoption of compar. fault to strict products liability
cases: The jury will be unable to reach a fair and just decision. The facts to
consider are too complex for a jury's ability. Jury must decide P's negligence
and D's strict liability.
F. WARRANTY / ECONOMIC HARM
1. Warranty as a basis for liability.
An express warranty is an (1) affirmation of fact or promise made by the
seller about the product sold which acts as an inducement to the purchaser to
buy the product. UCC § 2-213 states than an express warranty can be created by
such an affirmation of fact or promise, by any description of the product which
is made part of the (2) basis of the bargain, or by furnishing a sample or model
where the product is represented to conform to such sample or model. (3) The
affirmation or promise must be false. Words "guarantee" or "warranty" need not
appear anywhere in the transaction for such a warranty to arise. The affirmation
of fact or promise may be expressly included in the contract by written
representations or oral statements made by the supplier, or by a salesperson, or
through advertising, or otherwise. The courts have made an exception for
statements of opinion or "puffing language"; however, the risk that such a
statement may be construed by the courts as an express warranty is on the
seller, and the tendency has been to find that such statements are warranties
where such a construction is reasonable.
2. Personal injury. THE GOLFING GIZMO case. When P used the device, he swung
at the ball, the cord wrapped around the golf club, and the ball struck P in the
head. The ball had been sold with the statement "completely safe - ball will not
hit player." P sued under 4 theories of recovery.
The claim clearly states a common law misrepresentation action. The
statements made with the sale were clearly affirmations of fact. As such, they
are express warranties under the UCC: the UCC provision applies to personal
injury. Strict liability is also appropriate for this device. P also sued on
Misrepresentation - used the statutorily adopted parts of the Restatement §
402(b) to hold D liable. Restatement § 402(a) uses implied strict liability,
which states a seller is liable for harm caused by his product when sold in a
defective condition. § 402(b) uses express warranty to get the seller for any
justifiable reliance by buyer of any misrepresentation of material fact. NO
SCIENTER requirement; still liable for innocent misrepresentations.
Express Warranty - comes from statutory adoption of UCC by California. Note
difference between actual statement and "puffing." Broader than § 402(b),
because could include fact or opinion. Examples: "just as good" "You'll hit like
Jack Nicklaus" Maybe not: "good for lifetime"
Implied Warranty: 1) of Merchantability that the product will conform to the
promises or affirmations of fact made on the container or label, the goods are
of fair average quality and reasonably fit for the general purposes for which
they were sold; and 2) Fit for Intended Use - that the product will perform in
its (particular) intended manner. Where seller has reason to know the buyer is
purchasing for a particular purpose, the law implies a warranty in the sales
transaction that the goods are suitable for the special purpose of the buyer.
Strict Liability - P has proved that the product was defective in design and
that it caused the harm.
The golf gizmo may be an example of a product whose risk/utility ratio is so
low that perhaps it should never have been marketed. If the box had contained a
disclaimer against personal liability, it would be ineffectual. It would be
UNCONSCIONABLE to try to limit injury liability on consumer products.
3. ECONOMIC HARM
Pure economic loss. Using tort theories to recover damages when the only loss
is purely economic is difficult. Courts have generally been reluctant to allow
consumers to use strict products liability as a basis for recovery when the only
loss suffered is an economic loss. Section 402A of the R2T indicates that such
recovery is to be limited to "physical harm .... caused to the ultimate user of
consumer, or to his property."
Damage to the Product Itself. When the defect in the product causes the
product itself to be damaged and additional economic loss to be suffered, but no
other harm is caused, the majority rule refused to extend the applicability of
strict products liability.
Application to admiralty law. EAST RIVER v. TRANSAMERICA DELAVAL The
CHARTERED SHIPS case. Ship charterers tried to recover for lost profits and
repair costs. Court held P cannot recover in strict liability for a defective
engine turbine when the only loss is purely economic loss of damage to the
product itself. Tort theories are designed to protect the injured party from
dangerous conditions that could harm the P or his property. Where the loss is of
the product itself, the loss can more properly be covered by a bargained-for
exchange. Contract remedies, specifically here the warranty rights, are the
appropriate method of handling such problems.
A manufacturer in a commercial relationship has no duty under either a
negligence or a strict products liability theory to prevent a product from
injurying itself. Must sue in warranty under contract law. Don't want contract
law drowning in a sea of tort. Tort would defeat parties intent to contract.
Potentially limitless liability for subcharterers, etc.
May want to sue in tort to circumvent the problem of privity needed for
contract suit. Also, one can recover punitive damages in tort. Party bargained
away his contractual remedy. Price of charter reflects his assumption of risk;
therefore, suing in tort.
If harm to P or his property occurs, then can also recover for damaged
turbines as well. If plates break due to engine vibrations, proximate cause
Like percussion effects in blasting case.
Distinguish Far East from People's Express Airline, in People's Express no
other means to recover aside from tort liability, therefore court allows tort
recovery for purely economic losses. But Far East represents the majority view
in the U.S.
G. TENNESSEE'S PRODUCT LIABILITY STATUTE
1. Statute uses FORESEEABILITY rather than INTENDED-USE as test for
liability. Manufacturer not liable for unforeseeable, abnormal uses.
2. Consumer can sue for either defective condition or unreasonably dangerous
product. R2T § 402(a) requires both defective product AND unreasonably
3. Defective = unsafe for normal or foreseeable use; Unreasonably dangerous =
consumer expectations test, possibly Barker risk/utility test.
4. No liability if product is safe when it leaves the hands of the
manufacturer and unforeseeable changes occur.
5. No strict liability for product if the danger is an obvious danger.
6. Statute is ambiguous as to timing of knowledge for adequacy of warning:
imputed knowledge v. knowledge at the time of sale.
7. No strict liability if the government sets the standards and the
manufacturer complies with the standards.
8. Pharmacist is not liable because he is providing a service, Murphy, not a
sale. Also, to the extent the manufacturer seals the drugs in containers, the
pharmacist has no duty to inspect. Warranty claims exluded. If manuf. is
insolvent or can't be served, then can hold a pharmacist liable.
9. Statute of limitations: 6 years from date of injury, in any event within
10 years from date of purchase (could potentially bar DES-type claim > 10 years
to manifest) or within 1 year of after expiration of product life.
R3T - movement toward negligence and away from strict liability for product
Nuisance refers to interference by D with a right of P to the use of
enjoyment of property. Nuisances are types of damages or harm. It is best
considered as a field of liability rather than as a particular tort. Utility of
D's activity < harm to P's interests, or harm is greater than P should be
expected to bear without compensation. Each possessor of land is privileged to
use her own property or to conduct her own affairs at the expense of some harm
to her neighbors -if "unreasonable," then it will constitute a nuisance.
unreasonable all due care. Utility/harm comparison. Nuisance is a recurring
1. Kinds of Nuisance. There are two kinds of nuisances.
a. Public Nuisance refers to interference with a right common to the general
public. (health hazards, improper businesses, obstruction of public streets).
ELEMENTS: substantial harm, must injure public at large, most codified under
state law; Standing to Sue requires difference in kind, not degree. Example:
commercial fishermen may have an interest different from other public water
users and thus may be able to due a water polluter as opposed to a jet skier.
b. Private nuisance refers to an unreasonable and substantial interference
with the use or enjoyment of an individual's property interest in land. It is
distinguished from trespass in that it does not require a physical entry upon
P's premises. It follows from the principle that everyone should use her
property so as not to injure the property of another. No requirement for
ultrahazardous or abnormally dangerous.
2. Basis of Liability
a. Three bases: 1) Intentional conduct; 2) Negligence; or 3) Strict
b. Substantial interference. There must be a substantial interference with
the use and enjoyment of land that would be offensive to a reasonable person of
ordinary sensibilities. Harm to P outweighs the utility of D's conduct.
c. Locality. The nature of the locality becomes an important factor here. The
courts must determine what is a reasonable use within the context of custom of
3. Judicial Zoning -- BOOMER v. ATLANTIC CEMENT The residences of Boomer and
others (Ps) suffered damages from dirt, smoke, and vibrations emanating from
Atlantic Cement's (D's) large cement plant. Example of strict liability:
irrelevant if D exercised due care; liability without negligence. 1) Permanent
damages may be awarded in lieu of an injunction where the value of the
activities sought to be enjoined is disproportionate to the relatively small
damage caused thereby. Record servitude into title so that future purchasers are
aware. Factory cost $45 million and employed 300.
2) Permanent damages are fair because they fully recompense the damaged
property owner while at the same time provide an incentive to the business to
abate the nuisance and avoid suits by others. How does one compute? Difference
in value of property with and without the cement plant.
3) The granting of a short-term grace period in which to solve the problem
prior to issuance of the injunction is impractical and will lead to requests for
extensions. Furthermore, it puts the burden for correction of an industry-wide
problem on one private enterprise.
COMMENT: In the absence of a statutory ordinance, courts must resort to
COMMENT 2: The "unreasonable" issue in a nuisance action can be handled at
the remedy level as well. That is, if the P asks for an injunction but the value
of the D's activity is great, the court (as in this case) may deny the
injunction and permit the D to pay past damages plus future damages (for
permanent injury to the P's interest).
SPUR INDUSTRIES, INC v. WEBB DEVELOPMENT The operation of Spur's cattle
feedlot was both a public and a private nuisance to the citizens of Sun City,
who could have maintained an action to abate the nuisance. Webb, having shown a
SPECIAL INJURY in the loss of sales, had standing to bring suit to enjoin the
nuisance. Court issues permanent injunction against the feedlot.
P ordinarily has no remedy if P knowingly came to the nuisance. It does not
seem harsh to require a developer who has taken advantage of the lesser land
values in a rural area as well as the availability of large tracts of land on
which to build and develop a new town or city in the area, to indemnify those
who are forced to leave as a result. Webb must indemnify Spur for moving costs.
Who has standing to bring lawsuit for public nuisance: 1) public official, 2)
private person who is harmed in manner over and above the way the public is
DISTINGUISH Boomer: 1) public health risk here; 2) greater economic value
with city here, with the cement plant in Boomer.
4. Defenses to Nuisance Actions. The defenses available to the D depend upon
whether her conduct has been intentional or negligent, or whether she is deemed
strictly liable for the interference.
a. Contributory negligence is available only in situations where the nuisance
is based on the negligent acts of the D.
b. Assumption of risk is available in situations where the nuisance is based
on the negligent conduct of the D and where the nuisance is based on strict
c. Coming to the Nuisance.
5. Remedies: injunctions and damages, or both. In some jurisdictions, and
injured P may have the privilege of self-help to abate the nuisance. The P must
use only reasonable force to abate the nuisance; such force, under the
prevailing rule, does not include the infliction of bodily harm on anyone.
Requirements at COMMON LAW: 1) false communication (P must prove falsity), 2)
publication, 3) defamatory meaning, 4) of and concerning a particular person, 5)
special damages (?) pecuniary damages. 5) person is alive - you cannot defame
INNOCENT CONSTRUCTION RULE - when words can be construed as innocent or
defamatory, court will construe an innocent meaning to ambiguous words. Court
decide according to the fair and natural meaning that would be given to words by
reasonable persons of ordinary intelligence.
Absence of defamatory meaning. ROMAINE v. KALLINGER
Only the most contorted reading of the offending language in this novel could
lead to the conclusion that it accused P of illegal drug use or criminal
associations. The reasonable meaning of the critical sentence, "Maria was eager
for news from Randi about a junkie they both knew who was doing time in prison,"
is that both women shared sympathy and compassion, not any predilection toward
or involvement in criminal drug activity.
Imputation of Homosexuality. THE GOOD RATS CASE
The first remark about P's wife is clearly libelous; it could have been
interpreted to mean that the club owner's wife was having an affair with one of
the Ds. The second comment on the club owner's homosexuality was also reasonably
susceptible of a defamatory connotation. The broadcast of statements over the
radio has a wide dissemination and a greater capacity for harm: treated as
libel. Special damages not required for recovery of damages due to defamatory on
1. Of and Concerning Plaintiff
a. Identification required. One of the basic elements of defamation is that
the statement be "of and concerning" the P. When extrinsic facts needed to
indicate that the P is the one intended, this additional area of proof is
referred to as colloquium.
b. Group libel. When a defamatory statement attacks members of a group
generally, it is difficult for any one member of the group to seek a remedy. In
order for any one member of such a group to recover: 1) % of the group: the
statement must be understood to include all or, in some cases, most of the
people in a group. It would be difficult, for example, for a member of a group
to recover if the statement included only "some" or "a few" of the group.
Success would be more likely for the P, if the statement referred to all of the
group. 2) size of the group must be small. As the size of the defamed group
increases, there is less chance for any one member of the group to recover. A
defamatory statement about "all lawyers" would not be the basis for a claim by
any one lawyer. Neiman Marcus Model case: group of 35 models/sales clerks at a
store held small enough to permit recovery for defamation.
2. Strict Liability and Damages
a. Libel. Defamation usually appearing in some written form or reduced to
some permanent, physical embodiment.
b. Slander. Slander is usually oral defamation - representations to the ear
rather than the eye. The principal character of slander is that it is in a less
physical form. Defamation through slander is not actionable without a showing of
special damages, except for the four classes of slander per se. Special damages
are usually a pecuniary loss.
c. Factors to consider in deciding between libel or slander: 1) The
permanency of the form; 2) the area of dissemination; 3) whether the publication
is deliberate or premeditated. R2T provides "broadcasting of defamatory material
by radio or television is libel, whether or not it is read from a script."
d. Slander - damages
SPECIAL DAMAGES must be alleged in the pleadings and proved by the evidence.
These damages are usually to recover pecuniary losses and had to be proven at
common law for action in slander to lie. GATEKEEPER function - once in the gate,
you can plead general damages. Under modern constitutional decision, P must
prove actual damages in many cases. Punitive damages are given only when claimed
in the pleadings and the evidence shows actual malice.
e. Slander per se - damages. Special damages do NOT have to proved for an
action in slander in four (and only four) situations: 1) D charges P has
committed a serious, morally reprehensible crime; 2) D imputes to P a presently
existing, loathsome, communicable disease (AIDS, leprosy, etc., but not
tuberculosis or insanity); 3) where D imputes to P conduct, characteristics,
etc., incompatible with the proper performance of P's business, trade, or
profession; 4) where D imputes unchastity to a female plaintiff.
f. Libel - damages
libel per se is libel that is defamatory on its face and needs no special
damages. Example: "John is a criminal."
libel per quod - is not defamatory on its face and requires proof of special
damages in order for any recovery to be allowed. Example: "John lives at 123
Fulsom street." Not libelous unless you know that is the address of the state
penitentiary. However, the libel per quod is in one of the four slander per se
categories, Wertheimer teaches that P doesn't have to prove special damages.
3. CONSTITUTIONAL PRIVILEGE
Since 1964, the tort of defamation is no longer always a strict liability
action. If P is public figure, he must prove (1) D knew statement was false or
(2) recklessly disregarded the truth or falsity. If P is private figure and the
matter is one of public concern, at least negligence must be proved.
NEW YORK TIMES v. SULLIVAN
Montgomery, Ala. commissioner sues the Times and Alabama ministers (to
prevent removal to federal court) for defamation over an advertisement with some
false statements in the Times. Most difficult proof for P in this case: "of and
concerning" him. A public figure must prove actual malice with convincing
clarity. A public official cannot recover damages for defamation unless he can
prove actual malice: (state of mind), (Prerequisite for both compensatory and
Actual malice - publishing with knowledge of falsity or reckless disregard
for investigating the truth. SUBJECTIVE TEST. reckless disregard = a reasonably
prudent person would not have published or would have done further
investigation. P must prove "clear and convincing evidence" (not merely
preponderance of evidence) of actual malice. ????
Protection of statements made in the exercise of a First Amendment freedom
has never depended upon the truth of the statement. A state case law rule
compelling a critic of official conduct to guarantee the truth of statements on
pain of a libel judgment imposes self-censorship and a dampening of free choice.
(then would not need privilege). State common law can violate the First
Amendment. $500,000 damage award - not clear if jury found malice or used
correct malice definition.
Insubstantial falsity probably would not trigger damages. Common law malice,
as distinguished from constitutional "actual malice" is ill will.
Why wouldn't shifting the burden of proof solve problem: 1) D still have to
prove case to get over jury qualms; 2) death by a thousand blows - shut down the
press due to having to litigate so many cases, even if they ultimately win.
RULE: News media (and probably private citizens) can defame public persons as
long as the publication occurs without the D's knowledge that the statement is
false and without reckless disregard of the truth by D.
Two ways to become public figure: 1) voluntarily inject yourself into the
public eye *** (more important of the two); 2) access to the media to present
your side of the story.
CURTIS PUBLISHING v. BUTTS
Georgia football coach alleged to have passed along game plan to Bear Bryant.
Butz brought libel case. Court decided he is not a public figure, therefore NY
Times actual malice standard does not apply. Court does extend NY
Dr. Michael A. S. Guth, Ph.D., J.D. is a Professor of Financial Economics and
Law for several universities with on-line degree programs and an attorney at law
in Tennessee. He writes legal briefs and appellate briefs for law firms as well
as his own clients. See
http://riskmgmt.biz/ On the retail side, his law practice seeks to empower
individuals to represent themselves in court without a lawyer. He assists these
pro se parties by drafting court documents (pleadings) and performing legal
http://riskmgmt.biz/prose.htm for contact information.
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