Torts Notes Outline
I. Strict Liability: Liability without fault. Like neg., still have duty, breach, cause, and harm.
A. Animals-
1. Wild Animals- one that by custom is not devoted to the service of mankind. This liability is limited to damage caused by the dangerous propensity of the animal, so damage caused by tripping over a lion is not covered by strict liability.
Strict liability always applies.
2. Domestic Animals- one that by custom is devoted to the service of mankind at the time and place in which they are kept.
Strict liability only applies if the D knows of the animal’s dangerous propensities, hence the one bite rule.
3. Trespassory livestock- if livestock gets out and eats P’s crops, D shall absorb the loss.
B. Abnormally Dangerous/ Ultra Hazardous Activities- those activities that involve a risk of serious harm that cannot be eliminated by the exercise of due care. Trucking av-gas, blasting, harm from a non-natural use of land which causes harm.
[TX has misinterpreted the land use rule under Rylands v. Fletcher as to encompass strict liability for anything that escapes the land, thus has not adopted it.]
Strict liability always applies, regardless of care taken by D.
1. Duty [is it abnormally dangerous and if so, was it that dangerous propensity that caused the harm?]- A matter of law for the court to decide after looking at six (6) factors. [R. 2d § 520]. Any combination will work, court determines the weight to give each factor in each particular case. These 6 factors focus exclusively on the actions of D to first determine if there is a duty. After duty is found, then any contributory actions on part of P will be examined.
1. Risk of harm is great to the person, land, or chattels of others.
2. Likelihood of the harm that results from the risk will be great.
3. Inability to eliminate the risk by exercising due care.
4. Extent to which the activity is not a matter of common usage.
5. Inappropriateness of activity to the place where it is carried on.
6. Extent of the activity’s value to the community versus its dangerous attributes.
2. Causation [if answer to 1 is yes, then look at D’s actions]- P must prove actual and proximate cause, jury question.
3. Excuses [If D liable after step 2, then D looks for excuses, not defenses]- looking for responsibility from anyone but the Plaintiff. However, D is still liable, 3rd party action is no excuse, yet D can seek contribution damages from the 3rd party.
There is no opinion on excuses which are intentional acts of 3rd parties intended to bring harm, however, Treece thinks intentional acts will relieve D of liability. Jury will decide intentional issue, then judge will decide whether this intervening cause/excuse relieves liability; on exam, argue policy of why/why not SL should be imposed here. For the most part there are not many valid excuses.
4. Defenses- D then tries to present valid defenses to relieve liability; these are jury questions.
Assumption of the risk by P (consent) is a complete bar to recovery. Thus P has no COA if while driving a truck full of av-gas, it explodes and kills him. The assumption of the risk must have been: voluntary and unreasonable, and known of, not "should have known of" the danger.
Contributory Negligence is no bar to recovery, therefore the judge can refuse to let any evidence of contrib. neg. to be admitted.
Comparative Negligence/ fault may reduce a P’s recovery.
Acts of God and of third parties [except intent. maybe] usually no defense. [see excuses # 3.]
PLAINTIFF MUST PROVE AND WIN ALL 4 STEPS TO RECOVER FOR ANIMALS AND ABNORMALLY DANGEROUS ACTIVITIES.
C. Strict Products Liability [judicially created COA]- focused on condition of a product, not any conduct of party. Product must have had defect when it left the manufacturer’s hands. A jurisdiction can either have Warranty or § 402 (a) or both to deal with products liability. [TX has both]
1. Warranty- basically a tort COA through a K. The Implied or Expressed Warranty of merchantability; uses 2 year tort S.O.L. for these COA’s. This comes from the UCC § 2-314. This covers any natural person who may be reasonably be expected to use the product and is harmed by its defect. [horizontal privity]. Although not applicable to gifts or anything other than sales. If only economic loss, then always a warranty COA; if eco and personal, then a 402A.
2. § 402A- a commercial supplier [seller who is engaged in selling such a product] of a product "in a defective condition unreasonably dangerous" is strictly liable to all foreseeable plaintiffs for damages caused by the product’s dangerous defect. Product must reach consumer without substantial change to condition in which it was sold. 402A was made to pick up the cases were there was no sale, thus warranty not applicable.
Unreasonably Dangerous determined by the court after looking at consumer expectations, magnitude of risk posed by product, and whether product could be made safer while maintaining its utility [this includes technological as well as economical considerations].
Defective condition has 3 categories:
i. Manufacturing Defect- one car was defective out of many.
ii. Design Defect- all cars of that model are defective.
iii. Marketing Defect- inadequate warnings on products about the dangers that seller knew or should have know.
IN MOST CASES, YOU SEE A DESIGN & MAN. COA TOGETHER.
HOW TO DEFINE "DEFECT" UNDER 402A:
i. Manufacturer’s viewpoint- look at what knowledge the manufacturer had of [or assumed to have!] the defect (risk), was it then reasonable to introduce product into stream of commerce. This is the consumer friendly approach.
ii. Consumer viewpoint [majority rule, used in 402A as well]- knowledge the average reasonable consumer would have. Product must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer with knowledge common to the community as to its characteristics.
iii. Risk-Utility (TX)- Once P shows injury by product, then burden shifts to D to prove there was no defect.
1. There was a safer alternative
2. That alternative would have prevented or reduced the risk of injury, w/out impairing the products utility.
3. The alternative was both technologically and economically feasible at the time it left the control of the manufacturer
iiii. Modified R/U-
If a court uses "risk utility" to define DEFECT, then they are smuggling in negligence to define defect.
In a warning case [marketing/failure to warn], then you measure the knowledge of the industry of the danger. Did they put that knowledge into their warnings? If not, then a defect is present.
Defenses under § 402A and Warranty [majority rule]- This evidence is available to use in comp. neg. jur. [TX], it is not a separate complete defense available to D, only takes away P’s award pending his fault %. [in TX, if P is 51% or more at fault then no recovery]
i. Assumed Risk- unreasonable, knowingly, and voluntary exposure to risk.
ii. Unforeseeable Misuse [unforeseeable to the seller]- almost always a jury question.
Negligence focuses on the conduct of the parties to see if liability exists; S.L. (Warranty and § 402A) focus on the condition of an object, then look to see if P’s conduct will lessen damages. For exam compare negligence to S.L. as well as warranty to § 402A.
In Texas, you can submit to the jury any COA that you have evidence of. [mult. COA] Thus you could submit to one jury a negligence, warranty, and 402A COA for one set of facts.
State of the Art Evidence: evidence of the industry knowledge at the time the manufacturer placed product in S of C. Some jur. [TX- Bailey v. Boatland? {ask Treece if this is still current] allow D to introduce this to prove he put out safest product he could. This pollutes the S/L analysis because it focuses on reasonableness of D instead of solely on the object/product in question.
Subsequent product improvement is not evidence that is admissible to prove a negligence COA. However, some courts will allow it in a S/L COA. Not admissible at all in Federal courts. Incorporate this into exam problem below.
Simply because you comply with government standards does not protect you from being sued in S/L. However, if you comply with a fed. Standard, then you can’t be sued for violation of a state standard, the fed. Standard pre-empts the state law.
Used car/product dealers are generally not liable for S/L unless they make specific promises, although they can be sued because they can easily indemnify manufacturer, unless the defect came after the vehicle left manufacturer’s hands then no 402A COA.
Goods that pass by service (blood) cannot be sued under § 402A, sales law, or warranty. Only can be sued in negligence. [broken dentists drill; can’t sue doctor or hospital for bad pacemaker, however probably can sue pacemaker manufacturer]
FOR EXAM, YOU ARE A STATE SUPREME COURT JUSTICE. WHAT RULES OF LIABILITY SHOULD BE USED FOR MANUFACTURER’S PRODUCT LIABILITY? SHOW 5 PROPOSALS. YOU HAVE NEGLIGENCE ALREADY, SO DO YOU NEED A PRODUCTS LIABILITY COA AS WELL?
Can implement a Statute of Repose in your proposals as well, it is sort of a modified SOL for product law, repose starts when you realize it (get injured). If you keep 402A, then you have to decide which definition of defect to use; you may use a different test for each defect [manufacturing, design, marketing]. Texas currently uses a bifurcated civil trial system. First stage determines if there is negligence, gross negligence, or defect, then second stage determines damages. Currently Texas allows P’s comparative negligence evidence at first stage during liability findings proceeding on D. Should we change and only allow P’s conduct at damage proceedings? Yes!!! If P is found to be 51% responsible at first stage, then he is barred from recovery.
Learned Intermediary Rule- creating an exception for someone who resembles a seller but for S/L will not be considered a seller.
Test for whether someone is categorized as a professional:
II. Nuisance- 2 types:
A. Public Nuisance: unreasonable interference with a right common to the general public; health, safety, peace. Suit is normally brought by the government to enjoin or get damages; or sometimes to seek an injunction to keep an expected pub. nuisance from happening. Lots of times these are "per se".
Sometimes courts allow private attorney’s to sue for enforcement of environmental laws. This occurs in liberal jurisdictions, known as the "private Attorney General."
Sometimes there is a private COA for a public nuisance, you have to define your client’s harm/damages as different in degree and/or nature from the public’s harm.
B. Private Nuisance: non-trespassory invasion of another’s property interest in their private use [quiet enjoyment]. Threshold is a person of reasonable sensitivities. These are almost always "in fact". P must be in poss. of land or have right to possession.
Some Technical terms relevant to both!
Nuisance in law ["nuisance per se"]- a zoning violation; constantly a nuisance.
Nuisance in fact- Burning rubber boots in your backyard; location a big issue to determine if a nuisance.
Nuisance can be either intentional, negligent, or unintentional yet actionable under rules of liability for negligent, reckless, or abnormally dangerous conduct. If negligent, then once D is put on notice it is considered intentional.
What Remedy? Injunction or damages? Court will "balance the equities" and decide, very discretionary for the courts here. One can get past and future damages for a permanent nuisance such as a refinery.
Some factors to consider in balancing:
There is also abatement, a self-help remedy. P enters D’s land and removes the nuisance; this is not available to a private P for a public nuisance.
No nuisance if a FSA holder constructs an eyesore on his property.
Spur v. Del Webb: Spur found to be a nuisance and injuncted against, however Del Webb had to pay to move Spur because Webb built to the lot. Very creative court here.
III. Defamation [2 types: slander- spoken, libel- written]- COA for bad speech, a 3 act play/analysis. If D can prove that statements are substantially true then he will get summary judgment.
A. Act 1- The elements of C/L defamation, P has burden to prove:
1. False,
2. Defamatory communication
3. Published to a 3rd person or party capable of understanding the defamatory meaning [no tort unless they can understand it (speak English)]. Minority rule will let P sue when he repeats the defamation made by D, "I was fired because they accused me of theft", however the Majority rule never allows P to sue for his own publication of defamation.
To meet Constitutional safeguards, P must prove someone knew it was false when they published it [further explained in Act 2].
A statement is defamatory if "it causes a person’s reputation to be lowered in the community where he lives, or causes people to shun or avoid him."
Cartoons or other political/rhetorical satire are too false to be real or defamatory. Only an unreasonable person would believe them to be real.
Opinions are not actionable. Factors to consider if something is an opinion: (1) specific language used, (2) whether statement is verifiable, (3) general context of the statement, (4) broader context in which the statement appeared. Name calling is always only an opinion.
As for group defamation, D liable only if a specific member can be understandably pointed out. Typically the group must be 25 or less persons for D to be potentially liable [Neiman Marcus case]. This is a question of law.
Publication is communication intentionally or negligently to one other than person defamed. Also one who fails to remove "in a reasonable time" defamatory matter on his property can be held liable for its continued publication.
One must be living in order to be defamed.
Corporations/partnerships can only sue if they can show loss of money, this is called "business disparagement."
Colloquium: "of or about me" when not specifically named "if reasonably understood" to be about you then you still have a COA. Treece thinks D should have more 1st Amendment protection here.
Single Publication Rule: if a publication is repeated many times in identical books, then one COA. But different editions bring new COA.
Broadcast Def. Rule- On radio or TV, it is slander, not libel, even if there is a script.
Types of bad speech: These soft per se rules will be changed in Act 2.
1. Slander per se- allegations of being a criminal, engaging in sexual misconduct (different standards for men and women), affecting business or trade, or having a disease. P entitled to presumed damages regardless of harm as well as actual damages [presumed damages do not require proof to get]. In TX, P must show NY Times malice to get presumed damages.
2. Slander Regular- all other, at C/L P had to prove injury to get damages for this area.
3. Libel per se- where you do not need to add any facts or evidence to prove the defamation [P entitled to presumed damages regardless of actual harm].
4. Libel per quod- where you have to add extrinsic words that can be intuitively seen in order to win [you do not get presumed damages here, you have to prove all your damages]. This would be colloquium or innuendo.
B. Act 2- Status of the Plaintiff Test. This is a matter of federal constitutional law, not a C/L or State Law issue as in Act 1.
1. Category 1:
Public officials(elected officials, cops)/figures(those who work to get into the spotlight, movie stars, those with value to their name or likeness- Tiger Woods)- If P tries to recover and is a category 1 plaintiff, he must prove that D had "actual malice." D only has this protection if the defamation in question is associated with P’s position [Governor, Police, etc.]. It also must be a material matter of substance, a little mis-quote that is insignificant will not necessarily warrant malice. By definition, this does not include spouses and children of PO/PF unless facts show they choose to be.
This also applies to limited purpose public figures- a little person who is (1) trying to get into the spotlight voluntarily for a (2) pre-existing specific cause (3) to further its resolution, such as the founder of MADD or GreanPeace. Defamation must apply to their "public figureness"- a question of law.
Actual Malice is defined by the NY times as "knowing falsity or reckless disregard of whether it was false or not." At time of publication D must have known [had scienter, the state of mind in a fraud case, knew it was false] it was false or entertained serious doubts as to truthfulness. P must prove this by clear and convincing evidence.
All these Plaintiffs can almost never win this COA, hard to prove the actual malice burden. SOME TEACHERS SAY IMPOSSIBLE TO PROVE.
All of SNL is rhetorical hyperbole, thus protected speech.
2. Category 2:
Private persons defamed on a matter of public concern [Gertz]. P must meet a fault or "negligence as to falsity" test, this is a lower threshold than NY Times malice. Can only get actual damages under this test, unless you prove NY Times malice.
IN ORDER TO GET PRESUMED AND/OR PUNITIVE DAMAGES FOR CATEGORY 1 & 2, P MUST MEET NY TIMES MALICE TEST BY CLEAR AND CONVINCING EVIDENCE. THIS REPLACES THE PER SE PRESUMED DAMAGES RULES IN ACT 1, RELEVANT TO THESE CATEGORIES OF P’S.
States can make it more difficult to bring defamation but can’t make it easier, which would lessen the strength of the 1st Amendment. Some States do not use Gertz, they use NY Times malice for everything.
FOR EXAM: UNDER NY TIMES AND GERTZ, WHAT ARE THE CONSTITUTIONAL RULES THAT LIMIT DEFAMATION? IS THIS THE BEST WAY TO ACCOMMODATE DEFAMATION WITH THE 1ST AMENDMENT? WHY? WHY NOT? HAVE WE PROTECTED 1ST AMENDMENT TOO MUCH AND THUS HURT PUBLIC OFFICIALS TOO MUCH? TREECE PROBABLY THINKS SO.
C. Act 3- Privileges: If information is absolutely privileged, then D will win no matter what.
1. Talking to spouse, lawyer, and priest considered no communication at all, thus no publication.
2. Reporters Privilege (Privilege of Record Libel, protects publisher, not who actually said it in the event it was false)- any statement made in any public proceeding can be reported so long as it is "Fair and Accurate" of what was actually said, protected regardless of whether what was said is true or false. This "Fair and Accurate" determination is a matter of law.
3. Judicial Privilege- anything filed in a lawsuit is privileged, considered public knowledge because lawsuits are open and public proceedings. This covers pleadings, testimony, evidence, depositions. Geographical, lawyers can only bash the other side while in court.
4. Legislative Privilege- Congress and State legislators fully protected. Speech and debate clause, this also applies to witnesses to legislative proceedings. This is a geographical privilege, only protected while they are in their respective chambers.
5. Executive Branch Privilege- Good for every member of that branch (incl. FBI and ATF) as long as tort was done in line of duty. Rank has no significance. Applicable to State officials as well although see below.
A minority rule exists under R. 2nd § 600 that for some qualified privileges, those dealing with family or inferior state officials, D can’t know its false or be negligent in thinking its false. The burden is on P to prove this.
IV. Invasion of Privacy Torts- 4 COA for privacy, though not really related in substance [people’s right to be left alone]. These are different than the constitutional right to privacy.
A. False light- enough if D portrayed P in a false light before the public, has to be objectionable to a reasonable person. P must prove D had NY Times malice here. One may also have a defamation claim here if the statement proves to be defamatory as well, however, P can recover on one COA only. Differs from defamation in that it only must be false, not defamatory. This is not a popular COA in TX, basically non-existent.
B. Tort of Commercial Appropriation- to benefit from another’s name or likeness without consent. A majority rule. Ex. Selling copy-cat merchandise of an NBA team or rock group. Even if you are not famous, you can get nominal damages. This is a property interest intended to protect a person’s endorsement value.
Upon the death of an individual, you can use their name or likeness unless that jurisdiction has a "right of publicity" statute which gives survivorship rights to the estate.
Yet if a story is newsworthy, you can write about it without worry. Ex. You can write someone’s biography without their permission.
Public officials have never had a COA under this. You can sell whatever you want about them. Treece thinks they will never have a COA under this. 1st Amendment protects political statements. Satire on a public official for commercial benefit is O.K.
There are protections under federal trademark law, dillusion of a product is not O.K., you cannot mess with the Mickey Mouse in any way. It is Disney’s property.
Damages for this COA: Damages, injunction, and money from unjust enrichment.
C. Intrusion upon Seclusion- One who intentionally intrudes upon the solitude or seclusion of another or his private affairs is liable for invasion of privacy if offensive to a reasonable person.
This includes eavesdropping, videotaping, wiretapping, and also drawing blood to check for HIV without consent. However, for the first 3, no protection when you are out in public.
D. Public Disclosure of private life/facts- widespread disclosure [5 or more people must have been told] of information concerning the private life of another. Must be highly offensive to a reasonable person and not of legitimate concern to the public. No COA for truthful information of public interest.
E. Damages- P can recover for:
1. The harm to his interest in privacy resulting from the intrusion.
2. Any proven mental distress from the invasion.
3. Special damages from which the invasion was the legal cause (pecuniary loss [money losses]).
V. Constitutional Torts- § 1983 Claims against someone’s constitutionally protected rights.
A. If a cop violates someone’s civil rights then he can be sued. However, respondeat superior does not apply. You can’t also sue the police dept. unless it had a policy, practice, or custom which causally led to the civil rights violation. There is no vicarious liability.
Simply a lapse in doing a good background check on the officer is not going to lead to liability on the dept.
Yet if the dept./school/office knew of problems through complaints and had held hearings on the matter and the Defendant continued employment, then the dept./school/office would be held liable for any future harm caused.
Under this COA, can get at least nominal damages if proved; however, no presumed damages.
B. Negligence is not enough- there must be an intentional or reckless disregard of an individual’s civil rights. Can only get the dept./school/office if the violator was acting under color of state law (as a state actor) of which a policy, practice, or custom causally led to the violation.
Returning a child to a bad home, child subsequently dies, could have been negligence on behalf of state but not intentional or reckless.
These cases are easy to plead but hard to prove. Massive difference in the evidence from negligence to intentional/reckless.
C. 14th Amendment/ Due Process Violations- determined by looking at the State law definition of "liberty" and "property". All property rights are determined by the state.
VI. Misuse of Legal Proceedings-
A. Civil Proceedings- § 674, elements to have this COA:
1. The proceeding you are suing on must have terminated in your favor.
2. There must have been lack of probable cause (D was not reasonable in filing the proceeding, lack of evidence- reasonable person standard).
3. D must have acted with malice (ill will, hatred, & spite).
4. You must have accrued special damages; in TX these do not include attorney’s fees or higher insurance costs (min. rule).
B. Criminal Proceedings- same as civil except as long as the person was not "mean-spirited" in filing this then they are privileged to this COA (just did it to piss you off or hurt you). If you have been indicted by a grand jury then there is probable cause. Criminal is NOT ON THE FINAL EXAM.
Short of a Statute allowing it, you can’t get attorney’s fees in USA when you win-majority rule.
Texas now has rule 13 which provides for sanctions if you file a lawsuit that you know is frivolous. However, if you know you are going to lose but are trying to change the law, then tell the court at the outset and you will not get sanctioned.
VII. Misrepresentation- A COA used to make the lie come true! In this COA, you keep the article/land and sue for damages to make the misrepresentation of it come true; plus you can sue for any emotional anguish that comes with the misrepresentation. § 531 & 533.
Elements:
1. False statement of fact made with Scienter. Have to be able to prove or disprove with outside evidence; cannot just be an opinion.
Scienter= knowing it was false or a negligent disregard of the truth.
2. D had to intend/expect P (or a certain class of P’s) to rely on the false statement to his detriment.
NOT just any foreseeable P but must be a specific P (or class of P’s).
There is no "transferred intent" on a fraud or deceit case.
If you sell someone some land for $ 25000 and tell them it is worth $ 50000 and it turns out to be only worth $ 5000, then they can sue you for $ 45000.
There is no contributory negligence defense here, the fool has a COA. I’ll sell you the Eiffel tower is actionable.
There is now a limited COA for negligent misrepresentation in some areas, § 552.
However, D has no duty to disclose facts, only has a duty not to conceal facts or things P would not find by his own reasonable investigation.