Introduction to Negligence 1) To recover for negligence, the plaintiff must establish each of the following elements by a preponderance of the

evidence (that is, by more than 50%) to establish a prima facie case: Dutylegally recognized relationship between the parties Standard of carethe measure of the duty owed Breach of dutyfailure to meet the standard of care Cause-in-factplaintiffs harm must have required next to the defendants breach of duty Proximate causethere are no policy reasons to relieve the defendant of liability Damagesthe plaintiff suffered a cognizable injury 2) Brown v. Kendall (defendant struck plaintiff in eye while trying to break up a dog fight by beating them with a stick) a) Established the negligence standard i) Plaintiff must come prepared with evidence (burden of proof on plaintiff) to show that ether the intention was unlawful, or that the defendant was in fault; for if the injury was unavoidable, and the conduct of the defendant was free from blame, he will not be liable b) Defendants act in parting the dogs was lawful, and he was using due care when he accidentally struck plaintiff in the eye The Standard of Care and the Reasonable Person Standard 1) The standard of care is the level of conduct demanded of a person so as to avoid liability for negligence. Failure to meet this standard is characterized as a breach of duty. 2) The most common standard of care in negligence law commands the defendant to act as would a reasonably prudent person in the same or similar circumstances. If the defendant does so, she is protected from negligence liability. a) What justifies the use of an objective standard in the reasonable person analysis? i) Concern that a truly subjective standard would be difficult to employ ii) Compensation rationale that those who are the most likely to cause harm should pay those they injure iii) Fairness concern that members of a community should be able to expect a certain level of behavior from those around them (1) Vaughan v. Menlove (defendant landowner piled hay in a way that created fire hazard to plaintiff and a fire did in fact occur) (a) The court found that defendants mental faculties and the fact that he had acted to the best of his judgment were irrelevant (b) If the court were to allow varying intellectual capabilities to control the reasonable person standard, there would be little to no uniform application 3) In order for the jury to decide whether the defendants conduct is unreasonable under the circumstances presented in the case, the judge instructs the jury to compare the defendants conduct to that of a reasonable person. The reasonable person cannot be expected to be infallible. Instead, the reasonable person should possess the weaknesses and frailties acknowledged by others in the community 4) Flexibility in the Reasonable Person Standard a) Emergency i) The jury may consider in its determination of the defendants reasonableness evidence that the defendant was acting under emergency conditions. Because the standard of care includes the
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circumstances under which the defendant was acting, it can take into account that the defendant acted during an emergency ii) The fact that the defendant was acting in an emergency does not necessarily exculpate the defendant from liability. A jury in determining the reasonableness of the defendants conduct must decide whether, in light of the emergency, the defendant acted as a reasonable person. When the defendant makes an error in judgment in an emergency situation, there will be no negligence liability provided that reasonable persons in that position could make a similar mistake. iii) What is an emergency?an event that requires a decision within an extremely short duration and that is sufficiently unusual so that the actor cannot draw on a ready body of personal experience or general community knowledge as to which choice of conduct was best iv) The emergency doctrine is unavailable where the defendants tortious conduct contribetud to the creation of the emergency b) Physical Conditions i) As a general principle, because they are easily measured and perceived as tangible, the defendants own physical qualities may be taken into account by the jury in the breach determination. Negligence law does not command that the blind see and the deaf hear. ii) Just because the partys physical condition is taken into account does not meant hat she will be exonerated. The jury will be asked to decide if a reasonable person with the same condition would have behaved like the defendant iii) Hammontree v. Jenner (defendant stricken by sudden seizure while driving crashed into plaintiffs bike shop) (1) There is no tort liability where the defendant is rendered unconscious with no warning of impending danger of unreasonable conduct putting her in that state (2) The court found no negligence where the defendant had an unforeseen epileptic seizure (a) While defendant had history of epilepsy, he had notified the DMV of his epilepsy, took prescription medication to control his epilepsy and since taking medication, had not had recent seizures iv) Roberts v. Ramsbottom (defendant suffered a stroke before setting out on a drive) (1) The court did not exculpate defendant from liability because though his consciousness was impaired, he was in sufficient possession of his faculties to have some degree of control over his driving. The court further explained that they would not accept as exculpation anything less than total loss of consciousness 5) Mental Conditions a) Virtually all US jurisdictions treat mental conditions entirely differently from physical conditions, making mental disability wholly irrelevant for purposes of negligence liability. Indeed, for the most part, the insane are head to a standard of sanity, because the reasonable person is deemed sane. Similarly, people with cognitive disabilities are held to a level of normal intelligence. b) Several justifications have been offered for this seemingly harsh rule: i) Mental disability is too hard to measure ii) Mental disability is easily feigned iii) An innocent plaintiff should be compensated iv) Imposing liability will make guardians take greater care of those who are mentally disabled c) Bashi v. Wodarz (defendant rear-ended a car, left the scene without stopping, and shortly thereafter collided with plaintiffs) i) Court did not exculpate defendant from liability when she claimed a sudden, unanticipated onset of mental illness because unless the actor is a child, his insanity or other mental deficiency does not relieve the actor from liability for his conduct which does not conform to the standard of a reasonable man under like circumstances
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6) The Child Standard of Care a) Children must exercise the care that a reasonable child of their actual age, intelligence, and experience would exercise i) While this is an objective standard in that it compares the child to an external standard of other children, it is far more subjective than the adult reasonable person standard as it allows the jury to consider the childs specific qualities such as experience and intelligence. Thus, a jury is permitted to consider that a child has subnormal intelligence, or has never been out of her small town b) Parents are rarely vicariously liable for their children; however, parents may be liable for their own negligence in permitting children to do something beyond their ability or in failing to exercise control over a dangerous child c) When children engage in adult activities or inherently dangerous activities, they are held to the adult reasonable person standard 7) Degrees of Negligence a) Courts and legislatures sometimes talk in terms of degrees of negligence. For example, it is at times stated that common carriers owe the highest duty of care toward their passengers or that, in some contexts because of the great danger involved, the defendant owes the highest duty of care to the plaintiff. The notion of highest degrees of care makes little sense. Such language cannot be justified in light of a standard of care requiring the defendant to act as a reasonable person under the same or similar circumstances. b) Indeed, a single, reasonable person standard is sufficiently flexible by itself to permit courts and juries to take into account the ultrahazardous nature of a tortfeasors activity c) Bethel v. New York City Transit Authority (plaintiff hurt on bus when seat collapsed under him) minority i) The previous rule for common carriers imposed upon them the duty of the exercise of the utmost care, so far as human skill and foresight can go for the safety of their passengers in transit ii) The court in this case realigned the standard of care required of common carriers with the traditional, basic negligence standard of reasonable care under the circumstances. d) Wood v. Groh (plaintiff accidently shot with defendants gun fired by his 15-year-old son) i) The court concluded that defendant owed the highest degree of care in safekeeping the handgun. Storage of the ammunition in the same location as the gun in this resulted in the gun being easily loaded and made it a dangerous instrumentality

The Determination of Unreasonableness: Breach of Duty, Custom, and the Role of the Jury 1) The Risk Calculus a) All conduct creates some risk. Negligence is not established just by showing that the defendant engaged in the risk-creating conduct that led to the plaintiffs injury. One may create risks and even cause harm without negligence liability as long as the conduct is reasonable. Negligence liability is only imposed where the defendant engages in unreasonable risk creation, that is, where the defendant creates risks that a reasonable person would not. b) A fundamental issue is how unreasonableness is to be assessed. Although there are various ways that unreasonableness could be measured, the approach that garnered the greatest support is that posited by Judge Learned Hand. He explained: i) The degree of care demanded of a person by an occasion is the resultant of three factors: the likelihood that his conduct will injure others, taken with the seriousness of the injury if it happens, and balanced against the interest which he must sacrifice to avoid the risk
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c) The plaintiff and the defendant will often have different views of probability, magnitude, and burden. It is ultimately for the trier of fact to undertake the balancing of these factors in order to assess the reasonableness of the defendants conduct d) United States v. Carroll Towing Co. (plaintiffs bargee was absent from the ship when the boat broke away from its moorings, rammed against a tanker puncturing a hole near the bottom, filled with water and sank, causing loss of plaintiffs cargo) i) Learned Hand negligence calculus: the owners duty to provide against resulting injuries is a function of three variables: (applied to the facts here, a vessel breaking away from her moorings) (1) The probability that she will break away (2) The gravity of the resulting injury, if she does (3) The burden of adequate precautions (a) Liability depends on whether B is less than L multiplied by P (whether B<PL) ii) Applied to the situation at hand, the likelihood that a barge will break from her fasts and the damage she will do, vary with the place and time e) Probability i) The probability factor seeks to measure the likelihood of the harm-causing occurrence taking place. Probability is different from foreseeability in that probability measures how foreseeable the harm causing event is ii) Adams v. Bullock (defendant runs a trolley wire; plaintiff boy, swung a wire, that contacted defendants trolley line, causing plaintiffs electrocution) (1) The defendant, in using an overhead trolley, was in the lawful exercise of its franchise. (2) While there was a duty to adopt all reasonable precautions to minimize the resulting perils, there is no evidence that this duty was ignored. (a) Only some extraordinary casualty, not within ordinary prevision, could make the trolley wire a thing of danger (b) No special danger at this bridge had warned the defendant that there was need of special measures of precaution. No like accident had occurred before. No custom had been disregarded. (c) Thus, ordinary caution did not involve forethought of this extraordinary peril iii) Braun v. Buffalo Gen. El. Co. (defendant had strung electric wires above a vacant lot, the wires were never inspected and fifteen years later a building was begun on the lot and plaintiff carpenter came into contact with the now-exposed wires and was electrocuted) (1) The court held that the defendant should be held liable because reasonable care and foresight would have apprehended that the premises over which the wires were strung might be so used as to bring people in contact with them, thus the defendant should have guarded against that contingency (a) Vacant lot in the midst of a thickly built-up section of a large city and it was reasonably to be anticipated that the lot would be improved iv) Greene v. Sibley, Lindsay, & Curr Co. (plaintiff tripped over kneeling mechanic) (1) Court held that there was no negligence on the mechanics fault because the mechanic was exerting the necessary ordinary prevision to be looked for in a busy world (a) He was doing a common and simple act in the plain sight of those around him. It was a matter of minutes or perhaps seconds. If the kneeling mechanic gave any thought to the plaintiff standing at his side, he must have known that she had seem him at work upon his job f) Magnitude of the Loss i) The magnitude of the loss looks at the likely harm flowing from the injury causing event when it occurs
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g) Burden of Avoidance i) Liability is typically imposed only upon a finding of reasonable means to make an activity safer. For example, while the value of railroads and the dangerous machinery needed by them to function properly is great, courts have imposed negligence liability of failing to use available and inexpensive devices to prevent probably harm. (1) Chicago, Burlington & Quincy R. Co. v. Krayenbuhl (railroad was liable for failing to use locks to prevent children from being harm when playing on its turntable) (a) The court decided based on a balancing test of the social utility of defendants conduct, the burden of eradicating defendants conduct completely and the burden of just lessening the possible injuries resulting from defendants conduct (b) The business of life is better carried forward by the use of dangerous machinery. Usually, the danger is insignificant when weighed against the benefits resulting from the use of such machinery. While the turntable can not be rendered absolutely safe because this would require discontinuance of its use, the use of a lock can lessen possible injuries and still provide its social utility ii) Further, because technology changes over time, conduct that was not negligent at one point may become unreasonable once reasonable means to lessen the danger become available iii) The plaintiff must show possible methods of avoidance/untaken precautions and how they could have actually prevented the harm (1) McCarty v. Pheasant Run, Inc. (plaintiff guest was assaulted in her room at defendants resort by an intruder who entered by a sliding glass door) (a) Plaintiffs theories of negligence included that the defendant should have made sure the door was locked before renting the room, or should have warned her to keep the door locked, or should have had more security guards on duty, etc. (b) Court held that evidence of hotel owner's negligence did not establish its liability to assaulted guest because plaintiff did not attempt to show that mishap could have been prevented by precautions of reasonable cost and efficacy and guest might have failed to take elementary precaution of locking sliding door before she left room (no showing of untaken precautions, needed to establish negligence)

The Role of Custom 1) Custom typically refers to a well-defined and consistent way of performing a certain activity, often among a particular trade or industry. a) Trimarco v. Klein (plaintiff tenant cut when he fell through glass shower door in defendants apartment building) i) Where proof of an accepted practice (custom) is accompanied by evidence that the defendant conformed to it, this may establish due care, and to the contrary, where proof of a customary practice is coupled with a showing that it was ignored and this departure was a proximate cause of the accident, it may serve to establish liability ii) Proof of a common practice aids in formulating the general expectation of society as to how individuals will act in the course of their undertakings, and thus to guide the common sense of a jury when called on to judge particular conduct under particular circumstances (1) The mere fact that another person or landlord may have used a better or safer standard is not dispositive and it is for the jury to determine whether or not the evidence in the case does establish a general custom or practice. However, a common practice or usage is still not necessarily a conclusive test of evidence. The jury must still be satisfied with its reasonableness. Customs run the gamut of merit like everything else
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b) T.J. Hooper (tug sank in a storm, causing the loss of barges it was towing and their cargoes) i) If the tug had had a radio it would have learned about the storm in time to have avoided it ii) The tug owner sought to make the alleged lack of radios on most tugs the standard of care. Judge Hand did not allow this standard of care, because despite customs evidence, courts must in the end say what is requiredthere are precautions so imperative that even their universal disregard will not excuse their omission 2) Because evidence of a defendants compliance with custom does not establish the defendants due care, the jury is free to find customary negligence on the defendants part, determining that the entire custom itself is unreasonable. In fact, some customary practices may be so unreasonable that a judge will refuse to admit them, as where a defendant driver tries to show her excessive speed was consistent with the norm of the community The Roles of Judge and Jury 1) In addition to the critical issue of how unreasonableness is determined looms the related issue of by whom it is determined. It is now well-settled that the jury decides whether the defendant acted unreasonably, thereby breaching her duty, but this is not without exception or controversy 2) Even though the rule is that the jury decides the reasonableness issue, the principle is not absolute. Sometimes a judge makes the ultimate call. Most often this arises in the context of a directed verdict in which a judge concludes that, based on the evidence put forth by the plaintiff, no reasonable jury could find that the defendant was unreasonable i) Adams v. Bullock (plaintiff swinging wire came into contract with defendant trolley wires) (1) Judge Cardozo wrote for the court that no reasonable jury could find the defendants failure to insulate, bury, or reconfigure its trolley line wires to constitute unreasonable conduct. A judge may also conclude that the plaintiffs evidence so strongly shows breach that no reasonable jury could find the defendant acted reasonably 3) Worries about inconsistent results led to an intense debate centering on whether an approach could be fashioned that would lend greater predictability to the breach determination. Some jurists and scholars sought to do just that by advocating fixed standards of reasonableness set by the court whenever possible. Adherents to this viewpoint reasoned that this approach would reduce the possibility of arbitrary results, thus giving greater predictability and coherence to negligence law. 4) This approach was taken in Baltimore & Ohio Railroad Co v. Goodman (plaintiff, driving a truck, was killed by a train when he did not have a view of the train yet proceeded onto the tracks) a) Justice Holmes held that whenever motorists cross railroad tracks with an obstructed view, they are negligent unless they stop and get out of their vehicle to ensure that it is safe to cross. As Justice Holmes put it, though the question of breach generally is left to the jury, when the appropriate standard of conduct is clear, it should be laid down once and for all by the court 5) This fixed standard of reasonableness approach was short-lived. In Pokora v. Wabash Railway Co. (plaintiff was driving his truck across tracks when he had no view of the tracks until the train was so near that escape had been cut off), Justice Holmes replacement on the Supreme Court, Justice Cardozo, rejected the Holmes approach. a) Cardozo urged caution in framing standards of behavior that amount to rules of law. The Court noted that judge-created rules of law lack the flexibility to take into account unusual situations and could lead to irrational results, observing as an example that leaving ones car to observe obstructed railroad tracks could create more risk, not less. Further, completely identical fact patterns rarely arise in negligence cases b) The concerns expressed by Justice Cardozo have generally been followed, and it is now quite rare for a court to set a fixed standard of reasonableness. 6) Reasonable minds could differissue for the jury
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a) Andrews v. United Airlines, Inc. (plaintiff injured by luggage falling from defendants overhead compartment) i) The court found that the jurors were well equipped to determine whether United had a duty to do more than warn passengers about the possibility of falling baggage ii) A reasonable jury could find that United should have done more or it could find that United did enough. Either decision would be rational on the record presented, thus summary judgment was not appropriate

Proof of Breach 1) As a general matter, the plaintiff has the burden to prove each element of a negligence cause of action duty, breach, cause-in-fact, proximate cause, and damagesby preponderance of the evidence 2) Regarding breach, it is incumbent upon the plaintiff to put on enough evidence so that the jury can find that more likely than not, the defendant failed to act reasonably. To accomplish this, the plaintiff must put on evidence that enables a reasonable jury to determine without pure speculation that the defendant failed to use due care. 3) Slip and Fall Cases and the Role of Constructive Notice a) When a plaintiff slips and falls on the defendants property, the plaintiff must show more than the fact that she fell and was injured to prove the defendants breach. Most courts require the plaintiff to show that the condition on which she slipped existed long enough so that the defendant should have discovered it and should have remedied it i) Negri v. Stop and Shop, Inc. (plaintiff slipped and fell in defendant store) (1) The court held that there was insufficient circumstantial evidence to show that a slippery condition was created by jars of baby food which had fallen and broken a sufficient length of time prior to the accident to permit defendants employees to discover and remedy the condition ii) Gordon v. American Museum of Natural History (plaintiff slipped on white, waxy paper on defendants steps) (1) The court found that the plaintiff did not show evidence of defendants constructive notice of the waxy paper iii) Faricelli v. TSS Seedmans Inc. (1) The fact that a banana peel is black is not conclusive evidence that the slippery condition existed long enough to put defendant on notice b) Some jurisdictions permit the plaintiff to try to make a case without proof of actual or constructive notice on the part of the defendant. These courts recognize a mode of operation basis for liability by which the plaintiff bases the defendants liability on the methods used by the defendant to run the business. The plaintiff seeks to show that the way the business is operated creates foreseeable risk of harm, such that the defendants notice of a specific danger is rendered irrelevant i) Kelly v. Stop and Shop, Inc. (plaintiff fell on wet, slimy lettuce at defendants salad bar) (1) The court adopted the business practice or mode of operation rule. Under the rule, a customer need not establish actual or constructive notice when the business practice of the storein this case a self-service salad barprovided a continuous and foreseeable risk of harm to customers Res Ipsa Loquitur 1) Where res ipsa loquitur applies, a jury may infer that the defendant acted unreasonably without any other proof. The heart of res ipsa loquitur is that from the happening of the accident and the defendants
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2)

3)

4)

5) 6)

relationship to it, the plaintiff seeks to establish (1) that the harm-causing event was probably due to negligence; and (2) that the defendant was probably the culpable party. In order for the plaintiff to have the benefit of res ipsa loquitur, she must convince the jury to consider: a) Whether the accident is of a type that usually happens because of negligence b) Whether the instrumentality inflicting the harm was under the exclusive control of the defendant Byrne v. Boadle (plaintiff injured when a barrel of flour fell on him) a) Neither the plaintiff nor any of the witnesses testified as to anything done by the defendant that could have led to the barrel falling. b) The justice found negligence, even without direct proof of defendants negligence, stating A barrel could not roll out of a warehouse without some negligence, and to say that a plaintiff who is injured by it must call witnesses from the warehouse to prove negligence seems to me preposterous McDougald v. Perry (plaintiff driving behind a tractor-trailer hit when a spare tire came out of its trailer, crashing into the windshield of plaintiffs car) a) The court found that res ipsa applies even if there are possible non-negligent explanations for why a spare tire might fall out of its cradle i) In order to get the benefit of res ipsa loquitur, a plaintiff must persuade a jury that more likely than not the harm-causing event does not occur in the absence of negligence. The plaintiff does not have to eliminate all other possible causes for the farm, nor does the fact that the defendant raises possible non-negligent causes defeat plaintiffs effort to find res ipsa loquitur ii) The key is that a reasonable jury be able to find that the likely cause was negligence A powerful rationale for res ipsa loquitur has been that if forces a defendant who has the most understanding of how the harm-causing event came about to come forward with that information. Most jurisdictions permit a plaintiff to attempt to prove the defendants unreasonable conduct with evidence of specific wrongdoing as well as through the use of res ipsa loquitur

Negligence per se 1) The negligence per se doctrine provides that in certain situations a criminal statute (or administrative regulation or municipal ordinance) may be used to set the standard of care in a negligence case. 2) There are several rationales for the negligence per se doctrine: a) Because the reasonable person is law-abiding, one who violates a criminal law is thus per se unreasonable b) Justifiable judicial decision to adopt the determination of a representative body which, through a deliberative body, defined what constitutes appropriate conduct in a specific context. Accordingly, under this view, a specific legislative standard replaces the more general reasonable person standard. 3) To determine whether the statute is appropriate to the negligence issue at hand, the judge must consider two things: a) Whether the statute was designed to protect against the type of harm suffered by the plaintiff b) Whether the class of persons designed to be protected by the statute includes the plaintiff i) Martin v. Herzog (plaintiff and husband, while driving without their headlights on, were struck by defendants automobile coming in the opposite direction) (1) The court held that plaintiffs failure to use their headlights was prima facie evidence of contributory negligence under negligence per se. Use of headlights was mandated by state law because headlights help guide and protect other travelers on the highway. The law established a duty for the plaintiffs to abide by, and they did not abide by it and did not have a good excuse for this, thus they breached their duty and were comparatively negligent ii) De Haen v. Rockwood Sprinkler Co. (radiator placed a foot away from unprotected hoistway on a construction project fell down the shaft and killed a man below)
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(1) Statute that required the erection of a barrier around the hoistway was violated. While the chief object of the statute was to protect workmen from the hazard of falling into the shaft, there were other hazards within the zone of apprehension. Because a safeguard was commanded, with no distinct enumeration of the hazards to be avoided, the court found the actual harm that occurred to have been one of the probable hazards that the statute sought to prevent iii) Di Ponzio v. Riordan (defendant gas station, in violation of an ordinance requiring that car engines be turned off while the car is being filled with gas, permitted a customer to leave his engine running while he pumped gasoline and went inside to pay for it; the vehicle inexplicably rolled backward and pinned plaintiff between two cars) (1) The court held that the violation of the ordinance, which was in the citys fire prevention code was irrelevant because its apparent purpose was to prevent fires and not to avoid injuries from moving vehicles 4) Role of Excuse: a) Tedla v. Ellman (two junk collectors were walking on the wrong side of the highway and were hit from behind by defendants car) i) Plaintiffs violated a statute that mandated that plaintiffs walk on the left side of the road. However, had they followed the statute, they would have put themselves in more danger because the left side of the road was very heavy traffic. It would be unreasonable that the legislature intended that a statute enacted for the preservation of the life and limb of pedestrians must be observed when observance would subject them to more imminent danger b) Many courts now recognize excuses for a partys violation of a statute if: (1) The violation is reasonable in light of the actor's childhood, physical disability, or physical incapacitation; (2) The actor exercises reasonable care in attempting to comply with the statute; (3) The actor neither knows nor should know of the factual circumstances that render the statute applicable; (4) The actor's violation of the statute is due to the confusing way in which the requirements of the statute are presented to the public; or (5) The actor's compliance with the statute would involve a greater risk of physical harm to the actor or to others than noncompliance (Tedla v. Ellman) (a) In practical effect, the finding of an excused violation frequently exculpates the defendant from liability because the excuse shows the reasonableness of the defendants conduct 5) Compliance with Statute a) Compliance with a statute is merely relevant evidence of reasonableness. Compliance does not establish due care. b) The rule that statutory compliance is merely evidence of due care has been criticized, especially in the context of governmental standards and administrative regulations. Some contend that compliance with a specific regulation of an expert governmental agency should establish due care. Notwithstanding this criticism, a drug manufacturer who places a warning on its product in compliance with governmental requirements may still be found negligent if a jury concludes that a reasonable company would have exceeded the governmental mandate. Duty 1) The element of duty establishes that there is a legally recognized relationship between the defendant and the plaintiff that obligates the defendant to act (or refrain from acting) in a certain manner toward the plaintiff.
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2) Whether a duty exists is largely a policy-based determination. The judge evaluates the policy arguments for or against finding a duty, ultimately determining whether the law will recognize a claim by the plaintiff against the defendant. 3) To determine whether a duty exists, a judge often balances such factors as: a) The foreseeability of the harm to the plaintiff; b) The degree of certainty that the plaintiff suffered injury c) The closeness of the connection between the defendants conduct and the injury suffered d) The moral blame attached to the defendants conduct e) The policy of preventing future harm; and f) The burden to the defendant and the consequences to the community for imposing a duty to exercise care with resulting liability for breach 4) Special Relationship a) Courts have imposed a duty to rescue when justified by a special relationship between the parties. Historically, these special relationships were narrowly construed, applying only where the plaintiff clearly entrusted his safety to the defendant. Thus, in the context of a common carrier-passenger, innkeeper-guest, and ship captain-seaman, courts found a special relationship. b) These special relationships have expanded to the point that they likely include employer-employee, school-student, and business-customer relationships, among others. c) There has been some judicial creativity in defining special relationships. In the case of Farwell v. Keaton, the court found that companions on a social venture had an implicit understanding that one would come to the aid of another if necessary. This decision is quite a departure from traditional special relationships. i) Farwell v. Keaton (defendant and deceased went out drinking, decedent was badly injured in a fight; the defendant came back for the decedent, drove him around, and left him passed out in a car where he eventually died) (1) The court held that companions on a social venture had an implicit understanding that one would come to the aid of the other if necessary (2) The court held broader than they needed to, they could have found an affirmative duty to act because of defendants prior undertaking to act, yet they broadened the duty to act because of the special relationship between defendant and plaintiff (a) While people generally have no obligation to intervene, once they do, a duty arises (b) Reliance to plaintiffs detrimenta duty will be found where the defendants unfinished rescue efforts have dissuaded others from helping or where the defendant has prevented others from assisting d) Randi v. Muroc Joint Unified School District (plaintiff alleged that school districts improperly recommended vice-principal for job at school, as he had prior charges or complaints of sexual misconduct and impropriety, and that as a result of defendants negligence, plaintiff was sexually assaulted by the vice-principal) i) The court held that the writer of a letter of recommendation owes to third persons a duty not to misrepresent the facts in describing the qualifications and character of a former employee, if making those representations would present a substantial, foreseeable risk of physical injury to the third persons ii) The court also held that in the absence of resulting physical injury or some special relationship between the parties, the writer of a letter of recommendation has no duty of care extending to third persons for misrepresentations concerning former employees iii) Letters, recommending Gadams for any position without reservation of qualification, constituted affirmative representations that strongly implied Gadams was fit to interact appropriately and safely with female students. These representations were false and misleading in light of
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defendants alleged knowledge of charges of Gadams repeated sexual improprieties. Further, sufficient causal connection was shown between the misrepresentation and the eventual harm suffered by plaintiff e) Pate v. Threlkel (defendant surgeon knew or should have known of the likelihood that patients adult children would contract the carcinoma involved because it was genetically transferable) i) The court imposed a duty on the surgeon to the plaintiffs child who alleged that her cancer would have been discovered sooner and been treatable if her mother had been told about the genetic situation. The obligation here was obviously for the benefit of certain identified third parties, the physician knew of the existence of those third parties, thus the physicians duty ran to those third parties f) Hawkins v. Pizarro (defendant physician incorrectly and negligently told his patient that he had tested negative for hepatitis C; some months later, she met, and married, a man who later tested positive for hepatitis C who brought suit against physician) i) The court did not impose duty of physician to patients future husband because his existence was not yet known at the time of the negligence (incorrect diagnosis) g) Hardee v. Bio-Medical Applications of South Carolina, Inc. i) A medical provider who provides treatment which it knows may have detrimental effects on a patients capacities and abilities owes a duty to prevent harm to patients and to reasonably foreseeable third parties by warning the patient of the attendant risks and effects before administering the treatment 5) Duty to Control a) While generally a person has no obligation to control another persons conduct to prevent harm to a third person, exceptions arise if there is a special relationship. The relationships giving rise to a duty to control require some relationship between the defendant and the third party, combined with knowledge of the need for control. b) Tarasoff v. Regents of the University of California (plaintiff killed by defendant psychologists patient, who had confided to defendant psychologist that he intended to kill plaintiff) i) The court held that once a therapist does in fact determine, or under applicable professional standards reasonably should have determined, that a patient poses a serious danger of violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger c) Thompson v. County of Alameda (county released James, a violent juvenile offender even though the county knew that he head threatened to kill some unidentified child in the neighborhood; within 24 hours James killed plaintiffs son, a boy in the neighborhood) i) The court found that the county did not owe a duty to plaintiff because there was no identified potential victim and warnings to the general public were unlikely to do much good. Further, a warning to the juveniles mother would likely have been ineffective because she would not be likely to inform other neighborhoods parents or children that her son posed a general threat to their welfare 6) Undertaking to Act and Reliance a) While people generally have no obligation to intervene, once they do, a duty arises. Under the traditional view, once a person undertakes to rescue, she must not leave the victim in a worse position. Under the more modern view, the rescuer is obligated to act reasonably once she has begun to act. b) A duty will be found where the defendants unfinished rescue efforts have dissuaded others from helping, or where the defendant has prevented others from assisting. 7) Police Duty to Protect and the Public Duty Doctrine a) Special duty issues often arise when the plaintiff seeks to recover from a government entity such as a police department, school district, or public transit authority. Under the public duty doctrine, a
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government actor performing improperly is not usually liable for individuals harmed by the misperformance, because any duty owed is limited to the public at large rather than to any specific individual b) Police departments are typically not liable for failing to protect individual citizens. i) Riss v. City of New York (plaintiff suffered severe injuries when acid was thrown in her face by assailant hired by her former boyfriend; plaintiff had asked for police aid on several occasions before to protect her from her former boyfriend and they failed to come to her aid) (1) The court found that the police owed no duty to plaintiff. In justifying the denial of a duty to an admittedly foreseeable plaintiff, the court explained: the amount of protection that may be provided is limited by the resources of the community and by a considered legislativeexecutive decision as to how those resources may be deployed. For the courts to proclaim a new and general duty of protection in the law of tort, even to those who may be the particular seekers of protection based on specific hazards, could and would inevitably determine how the limited police resources of the community should be allocated (and it is not up to the Courts to make this decision for the city) c) Because of discomfort with this no-duty rule, there has been some judicial creativity. The New York high court later circumvented its Riss decision and found a duty owing by the police to a child who was badly injured by her father, against whom a protected order had been issued because of his history of violence toward his ex-wife i) Sorichetti v. New YorkThe court distinguished from this case from Riss, finding a duty of the police to the plaintiff because of the existence of the protective order, the assailants known history of violence, and the fact that the police offers whom the victims mother contacted kept assuring her that action would be taken at some appropriate point d) Most courts have limited a finding of duty to situations where the defendant police undertook to act and created reliance, enlisted the aid of the plaintiff, or increased the risk of harm to the plaintiff i) Schuster v. City of New York (plaintiff provided information to the police that led to the capture of a noted criminal; shortly after he supplied the information to the police his life was threatened and three weeks later he was killed) (1) The court held that the police were under a legal duty to respond reasonably to plaintiffs request for protection because in this situation, the government was not merely passive, but active when calling upon persons to aid in information, thus as actors, police owed a duty to plaintiff Policy Bases for Invoking No Duty 1) Strauss v. Bell Realty Co. (plaintiff fell down stairs of apartment common area during blackout caused by defendants power failure; landlord, not plaintiff, had contracted with defendant for the light in the common area) a) The court refused to find a duty owing from the power company to the plaintiff because of concerns about excessive liability 2) H.R. Moch Co., Inc. v. Rensselaer Water Co. (plaintiff suffered property damage because the defendant water company, who had contracted with the city to supply water to the waters city fire hydrants, had failed to do so a) The court refused to find a duty by the defendant water company to the plaintiff, classifying the defendants breach as nonfeasance, the denial of a benefit, rather than the commission of a wrong b) The court decided this way to limit the scope of the defendants liability, possibility out of the recognition that water, as a necessity, must be kept affordable
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Intrafamily Duties 1) Broadbent v. Broadbent (plaintiff suffered severe brain damage when he sank to the bottom of a pool while defendant mother left the poolside and went inside to answer the phone) a) The court held that a parent is not immune from liability for tortious conduct directed toward his child solely by reason of that relationship b) However, a parent is not liable for an act or omission that injured his child if the parent acted as a reasonable and prudent parent in the situation would i) Special classification of the reasonable person standard in parental negligence casesthe reasonable parent standard 2) Bonte v. Bonte (child born alive sued her mother for catastrophic injuries sustained when her mother failed to use reasonable care in crossing the street and failed to use a crosswalk) a) The court held that the mothers negligence was actionable because a breach of the duty owed to the fetus could foreseeably cause serious harm to an unborn child Negligent Infliction of Emotional Distress 1) The road to recognition of emotional distress as a free-standing compensable harm has been a bumpy one. Because of general skepticism of emotional distress as an injury, and fear that permitting emotional distress recovery will lead to fraudulent claims, most judicial effort has gone toward constraining this cause of action. Courts have also been concerned about the possibility of potentially limitless claims flowing from a single negligent act. 2) Traditionally, as a prerequisite to recovery for emotional distress, the defendants negligence must have caused some form of physical impact on the plaintiffs person. Most states today only require that the plaintiff have been at risk of physical impact, sometimes referred to as being within the zone of danger. Most states also require that the victims mental distress be sufficiently severe to cause physical symptoms of the distress, but assertions of stomach trouble have sufficed as physical symptoms of distress a) Falzone v. Busch (plaintiff was sitting in her car on the side of the roadway when defendants negligently driven automobile veered across the highway and headed in the direction of her, so as to put her in fear of her safety, and as a direct result, plaintiff became ill and required medical attention) i) The court held that where negligence causes fright from a reasonable fear of immediate personal injury (even without impact), which fright is adequately demonstrated to have resulted in substantial bodily injury or sickness, the injured person may recover if such bodily injury or sickness would be regarded as proper elements had they occurred as a consequence of direct physical injury rather than fright b) Wooden v. Raveling i) Court allowed plaintiff property owner to recover for her emotional distress when defendants negligently driven car came up onto her property and nearly hit her c) Lawson v. Management Activities, Inc. (plaintiffs feared that a falling plane would crash into them) i) The court declined to follow Wooden, noting that plaintiffs fear had existed for a brief moment and because civilized life would not be possible if there were such a tortif tort damages were available for anything which could foreseeably cause our fellow human beings emotional distress, then who can stand? d) Gammon v. Osteopathic Hospital of Maine, Inc. (defendants negligently sent plaintiff a bag that was supposed to contain his fathers personal effects but which in fact contained a bloodied leg; plaintiff had nightmares, his personality was affected, and his relationship with his wife and children deteriorated)
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i) A defendant is bound to foresee psychic harm only when such harm reasonably could be expected to befall the ordinarily sensitive person (1) Eggshell plaintiff rule does not apply in these cases of emotional harm, the hurt feelings of the supersensitive plaintiff are not compensated ii) The court held that the defendant here reasonably should have foreseen that mental distress would result from his negligence and a jury could conclude that the hospital and mortician reasonably should have foreseen that members of Gammons family would be vulnerable to emotional shock at finding a severed leg in what was supposed to be the decedents personal effects, thus plaintiff could recover for his emotional distress due to defendants negligence 3) Bystander ActionsA separate development has been the gradual recognition of bystander recovery for negligently inflicted emotional distress. In these situations, the plaintiff is seeking to recover for her emotional distress suffered from the defendants physical injury to someone else. a) Portee v. Jaffee (plaintiff sought to recover damages for the emotional anguish of watching her young child suffer and die in an accident caused by defendants negligence) i) Followed the Dillon v. Legg decision ii) The court held that negligent infliction of emotional distress requires proof of the following elements: (1) The death or serious physical injury of another caused by defendants negligence (2) A marital or intimate familial relationship between plaintiff and the injured person (3) Observation of the death or injury at the scene of the accident, and (4) Resulting severe emotional distress (a) A defendants duty of reasonable care to avoid physical harm to others extends to the avoidance of this type of mental and emotional harm 4) Policy Considerations a) Arguments for expanding negligently inflicted emotional distress i) From an accident-avoidance perspective, failure to allow recovery for injuries caused by negligence fails to deter culpable behavior ii) As general tort principles favor placing the burden of accident cost on the actor responsible for the injury, denial of recovery fails to shift the cost of mental distress to the culpable defendant iii) To the extent that the tort system is viewed as a compensation system, the limits on recovery leave the injured victim uncompensated. While some of the loss may not have a clear economic cost, serious mental distress with physical manifestations often results in economic loss. b) Arguments for limitation on recovery for emotional distress i) Potentially large liability for imposing mental distress loss on defendants ii) The risk of fraudulent claims Wrongful Conception and Wrongful Birth 1) Wrongful Conception a) Wrongful conception cases usually arise due to a negligently performed sterilization or vasectomy procedure 2) Emerson v. Magendantz (defendant physician negligently performed a sterilization procedure and the plaintiff patient subsequently became pregnant and delivered plaintiff child from that pregnancy) a) The court held that negligent performance of a sterilization procedure is a tort for which recovery may be allowed b) The court adopted the limited-recovery rule as the measure of damages, which grants compensation to the plaintiffs for the medical expenses of the ineffective sterilization procedure, for the medical and hospital costs of the pregnancy, for the expense of a subsequent sterilization procedure, for loss of
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wages, and sometimes for emotional distress arising out of the unwanted pregnancy. They also include medical expenses for prenatal care, delivery, and postnatal care. c) The court would not grant rearing costs because the fact that parents forgo the option of releasing the child for adoption constitutes persuasive evidence that the parents consider the benefit of retaining the child to outweigh the economic costs of child-rearing d) The court noted that in the event of the birth of a physically or a mentally handicapped child, the parents should be entitled to compensation for emotional distress and special costs associated with bringing up a handicapped child would be recoverable i) If during a sterilization procedure a physician is on notice or should be on notice that the parents have a reasonable expectation of giving birth to a physically mentally handicapped child (genetic defects) then the entire cost of raising a child would be within the ambit of recoverable damages. 3) Wrongful Birth a) Wrongful birth actions typically arise when, due to negligent genetic counseling or a misdiagnosis about the condition of a fetus, an infant is born with a severe medical disability. In these cases, the plaintiffs are not suing due to an unwanted pregnancy, as in the wrongful conception context; rather, they are suing because of their loss to make an informed decision about whether to procreate or whether to carry a potentially impaired child to term. This latter aspectthat the injury to the plaintiff was depriving her of the chance to terminate a pregnancyhas made wrongful birth cases particularly controversial Vicarious Liability 1) Christenson v. Swenson (defendant, Burns employee, collided with plaintiffs motorcycle while driving to a caf on an unscheduled break) a) Birkner factors: Three criteria to determine whether an employee is acting within or outside the scope of his employment: i) The employees conduct must be of the general kind that employee is hired to perform, that is, the employee must be about the employers business and duties assigned by the employer, as opposed to wholly being involved in a personal endeavor ii) The employees conduct must occur substantially within the hours and ordinary spatial boundaries of the employment iii) The employees conduct must be motivated, at least in part, by the purpose of serving the employers interest b) The court found that reasonable minds could differ on whether Swensons trip to the Frontier Caf was motivated by the purpose of serving Burns interest (employee breaks benefit both the employee and the employer, employers receive the benefit of productive, satisfied employees; the break policy obviously placed a premium on speed and efficiency); whether Swenson was about Burns business when she was involved in the traffic accident (Burns employed Swenson as a guard to see and be seen thus traveling in a uniform heightened the secure atmosphere; Burns probably tacitly sanctioned the guards practice of obtaining lunch from the caf) 2) Lisa M. v. Henry Mayo Newhall Memorial Hospital (hospital technician sexually assaulted a patient) a) The court held that the assault was not a risk predictably created by or fairly attributed to the nature of the technicians employment, thus the hospital was not liable under vicarious liability 3) Baker v. St. Francis Hospital (caregiver at defendants facility banged a babys head against a blunt surface in frustration) a) The court held that the defendant facility would be vicariously liable for the caregivers conduct since it occurred in the court of the employment and was in furtherance of the job the caregiver was performing (job-related stimulus caused the assault) 4) Foster v. The Loft, Inc. (plaintiff customer at defendants bar was punched by bartender)
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a) The court found the defendant bar owner guilty for negligence in hiring because the bartender had a history of assault and battery with a knife and other related charges and the owner should have taken more care in hiring someone to deal with the public in a hectic environment 5) Roessler v. Novak (defendant radiologist took scans of plaintiffs abdomen and failed to include an abdominal abscess in his differential diagnosis, leading to plaintiffs suffering serious complications after surgery) a) The court held that even though the radiologist was an independent contractor, the hospital was still vicariously liable for his acts because the radiologist had acted with the apparent authority of the hospital b) An apparent agency exists if all three of these elements are present: i) A representation by the purported principal, representation by the apparent agent himself does not suffice ii) A reliance on that representation by a third person, and iii) A chance in position by the third party in reliance on the understanding 6) Maloney v. Rath (brake failure) a) The court concluded that the owner of the car should be held liable for the negligence of the garage mechanic who worked on the brakes, even though the owner had chosen a reputable mechanic and had no reason to suspect that the job had been badly done i) Responsibility for proper maintenance of such potentially dangerous property properly rests with the person who owns and operates the vehicle. That person selects the contractor and is free to insist upon one who is financially responsible and to demand indemnity from him 7) To determine whether independent contractors can be found to be acting like employees, the employment relationship is established through analysis of at least thirteen factors including: a) Whether the hiring party has the right to control the manner and means by which the hired party's job is accomplished; b) The skill required; c) The source of the instrumentalities and tools; d) The location of the work; e) The duration of the relationship between the parties; f) Whether the hiring party has the right to assign additional projects to the hired party; g) The extent of the hired party's discretion over when and how long to work; h) The method of payment; i) The hired party's role in hiring and paying assistants; j) Whether the work is part of the regular business of the hiring party; k) Whether the hiring party is in business; l) The provision of employee benefits; and m) The tax treatment of the hired party Cause in Fact/Actual Cause 1) But For Analysis a) For the defendant to be held liable, the plaintiff must establish that but for the defendants culpable conduct or activity the plaintiff would not have been injured 2) Substantial Factor Test a) The substantial factor test is used as a supplement to the but for test when redundant multiple causes would preclude liability under the but for analysis 3) Stubbs v. City of Rochester (plaintiff contracted typhoid fever but was unable to show that defendants contamination of the water supply was the cause of his typhoid fever)
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a) If two or more possible causes exist for plaintiffs harm, for only one of which defendant may be liable, plaintiff need only establish facts from which it can be said with reasonable certainty that the direct cause of the injury was the one for which the defendant was liable b) Here, the plaintiff was employed in the immediate locality where the water was contaminated, he drank the water daily, the consumption of contaminated water is a very frequent cause of typhoid fever, in the locality there were a large number of cases of typhoid fever and near to sixty individuals who drank the water and had suffered typhoid fever in that neighborhood appeared as witnesses on behalf of plaintiff i) Thus it was a reasonable inference that defendants conduct was the direct cause of plaintiffs injury 4) Zuchowicz v. United States (defendant admitted that its doctors/pharmacists had been negligent in directing plaintiff to ingest double the maximum authorized dosage of Danocrine, yet the defendants did not believe that this negligence was the cause of plaintiffs pulmonary hypertension and eventual death) a) Daubert factors to asses whether the reasoning or methodology underlying a scientific testimony is valid: i) Whether the theory can (and has been) tested according to the scientific method ii) Whether the theory or technique has been subjected to peer review and publication iii) In the case of a particular scientific technique, the known rate or potential rate of error iv) Whether the theory is generally accepted b) To say that Danocrine caused plaintiffs injuries is only half the storyfor the causation element to be met, the jury must be able to find that the defendants negligence was responsible for the injury i) Thus it must be determined that the overdose was the cause of plaintiffs death, not the mere exposure to Danocrine c) The court held that when a negative side effect is demonstrated to be the result of a drug, and the drug was wrongly prescribed in an unapproved and excessive dosage, the plaintiff who is injured has generally shown enough to permit the finder of fact to conclude that the excessive dosage was a substantial factor in producing the harm i) Timing of plaintiffs illness further corroborated the conclusion that the overdose (and not merely Danocrine) was responsible for her catastrophic reaction 5) Shifting the Burden of Proving Causation a) There are rare instances where courts will shift the burden of proof by requiring defendants to prove they were not the actual cause. From a moral perspective, the shifting of the burden appears appropriate because the plaintiff has already established fault for each of the defendants. The plaintiff is thus compensated by those bearing behavioral, if not causal, responsibility for the accident b) Summers v. Tice (plaintiff and defendants were hunting when both defendants fired in plaintiffs direction, one shot struck plaintiffs eye and another his lip, and it was impossible to figure out whose shot caused plaintiffs eye injury, the more serious of the two) i) Under a standard but for analysis the plaintiff would have been unable to prove more likely than not that either of the defendants was the cause of the injuryhowever, neither defendant was innocent, each having breached a duty of care to the plaintiff, and the cause of the injury was necessarily the responsibility of one of them ii) The court shifted the burden of proof to require the defendants to prove that they were not the cause of the injury. If the defendants were unable to exculpate themselves, as they were here, both defendants would be found liable as joint tortfeasors. However, plaintiff still had the burden of proof to show that both defendants had breached a duty of careonly the burden of proof regarding causation was shifted 6) Market Share Liability
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a) Some influential jurisdictions have extended and modified the principle of Summers v. Tice to create a theory based on market share liability. This theory pertains to suppliers of defective products where the plaintiff cannot prove which brand of the product she used. b) Hymowitz v. Eli Lilly & Co. (plaintiffs were injured by the drug DES ingested by their mothers during pregnancy; they sought relief against defendant DES manufacturers but were unable to show which manufacturers supplied their mothers, thus they were unable to show which manufacturers caused their injuries) i) The court formulated an avenue of relief for plaintiffs injured by DES because of the desire to achieve justice for the plaintiffs and overcome the inordinately difficult problems of proof. It would be unjust to say to these plaintiffs that because of the insidious nature of an injury that long remains dormant and because so many manufacturers, each behind a curtain, contributed to the devastation, the cost of injury should be borne by the innocent and not the wrongdoers ii) To determine how damages would be allocated among the DES manufacturers, the court adopted the market share theorylimiting a defendants liability to its market share would eventually result in its liability on the part roughly equal to the injuries it actually caused (1) Defendant manufacturers could not exculpate themselves by showing that they could not have supplied the drug to a particular plaintiff because liability here was based on the overall risk produced, and not causation in a single case (2) Liability is several only, not joint, which could prevent some plaintiffs from recovering 100% of their damages 7) Joint and Several Liability a) Joint tortfeasors are two or more individuals who either (1) act in concert to commit a tort, (2) act independently but cause a single indivisible tortious injury, or (3) share responsibility for a tort because of vicarious liability b) Under traditional common law, each such tortfeasor is jointly and severally liable for the plaintiffs total damages. This means that each individual is fully liable to the plaintiff for the entire damage award. If the plaintiff is unable to collect a co-tortfeasors portion of the liability, the tortfeasors from whom the plaintiff can collect are responsible for the other tortfeasors shares. The result is that a deep pocket defendant, who is partly responsible for the plaintiffs injury, may be required to pay all, or a disproportionate share, of the damages Proximate Cause Directness TestPolemis

Foreseeability TestWagon Mound If a harm, though unforeseeable, is Whether the defendant should the direct result of defendants have reasonably foreseen, as a risk actions, then the defendant is of her conduct, the general liable for the harm consequences or type of harm suffered by the plaintiff

Scope of the Risk Test To be within the scope of the risk the harm actually suffered must be of the same general type as that which makes the defendants conduct negligent in the first instance

1) The plaintiff must prove that the defendants culpable conduct is the proximate cause of the plaintiffs injury. Even when the plaintiff establishes actual cause, courts will preclude recovery when the causal relationship between the defendants conduct and the plaintiffs injury is too attenuated, remote, or freakish to justify imposing responsibility on the defendant. The application of the proximate cause requirement is ultimately a policy question rather than the precise mechanical application of rules. 2) To a large extent the issue of proximate cause is a factual question for the jury.
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3) Benn v. Thomas (plaintiffs decedent, who had a history of coronary disease, died of a heart attack six days after suffering a bruised chest and fractured ankle in a motor vehicle accident caused by defendants negligence) a) The court held that a tortfeasor whose act, superimposed upon a prior latent condition, results in an injury may be liable in damages for the full disability. This rule deems the injury, and not the dormant condition, the proximate cause of the plaintiffs harm b) Once the plaintiff establishes that the defendant caused some injury to the plaintiff, the rule imposes liability for the full extent of those injuries, not merely those that were foreseeable to the defendant 4) Frame the risk as the plaintiff really broad; frame the risk as the defendant really narrow 5) Directness Test a) Under the direct test, the plaintiff is not concerned with establishing the foreseeability of the consequences, but must instead prove the absence of any intervening forces b) In re Polemis (defendants dropped a wooden board into a hold, causing a spark that ignited with the petrol vapors, starting a fire that resulted in the destruction of the ship) i) The court held that the injury, though unforeseeable, was a direct result of defendants actions, thus defendants were liable ii) The falling of the plank was due to the negligence of the defendants servants and the fire was directly caused by the falling of the plank. The court found it immaterial that the causing of the spark by the falling of the plank could not have been reasonably anticipated 6) Foreseeability Test a) Whether the defendant should have reasonably foreseen, as a risk of her conduct, the general consequences or type of harm suffered by the plaintiff b) Wagon Mound (defendant spilled oil into the bay and it concentrated near plaintiffs property; defendants set sail making no effort to disperse the oil; two days later, oil was ignited and a fire spread, causing extensive damage to the plaintiffs equipment; it was found that floating on the oil was a piece of debris on which lay some cotton waste or rage that had caught fire from motel metal falling from the wharf, and that this set the floating oil afire) i) Struck down Polemis as bad law because it did not seem just or moral that for an act of negligence, which results in some trivial foreseeable damage, the actor should be liable for all consequences however unforeseeable and however grave, so long as they can be said to be direct ii) The court held that the correct test for liability was whether the damage was of such a kind as the reasonable man should have foreseen 7) Scope of the Risk Test a) Defendants liability is only for harms that are of the sort that would be expected from the negligent activity b) Palsgraf v. Long Island Railroad Co. (plaintiff was standing on platform of defendants railroad; a train stopped and two men ran to catch it, one of the men jumped aboard the car but seemed unsteady, so defendant guard pushed him in from behind; in this act, the package the man was holding fell upon the rails, and it containing fireworks, caused an explosion that threw down scales at the other end of the platform, striking plaintiff) i) Justice Cardozo interpreted duty as a relational concept, explaining that if the conduct of the defendants guard was a wrong in its relation to the holder of the package was not a wrong in its relation to the plaintiff standing far awayrelatively to her it was not negligence at all ii) Cardozo found the railroad not liable for plaintiffs injury because plaintiff was not a foreseeable victim of the railroads apparent negligent handling of the package iii) Andrews dissent
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(1) Viewed a duty as owing to anyone injured by anothers unreasonable conduct; where an act itself is wrongful, it is wrong to the public at large 8) Modern Cases Involving Proximate Cause Analysis a) Doe v. Manheimer (the issue was whether a landowner may be liable in tort for damages arising from the rape of a pedestrian committed on the landowners property behind brush and trees that shielded the area from view from the nearby public sidewalk and street) i) The court found that yes, there was actual causation, because it is more likely than not that the injury would not have occurred, where it actually occurred, were it not for the shielding created by the overgrowth ii) However, under the liability-limiting proximate cause, defendant was not liable (1) The harm plaintiff suffered cannot reasonably be understood as within the scope of the risk created by the defendants conductto be within the scope of the risk, the harm actually suffered must be of the same general type as that which makes the defendants conduct negligent in the first instance. Landowner could not reasonably foresee that a condition on his property such as overgrown vegetation might provide a substantial inducement or incentive for the commission of a violent criminal assault b) Hines v. Garrett (train improperly carried 18-year-old plaintiff a mile past her stop, conductor told her to walk back to the depot even though he knew she would have to walk through a disreputable area) i) The court found the railroad liable for plaintiffs rape despite the fact that there was intervening criminal conduct 9) Policy Objectives Addressed by Proximate Cause a) Limits based on foreseeability appear proportionate to the culpability of the defendant and in this sense consistent with the notions of corrective justice. b) It also deters negligent conduct proportionate to the risks that should be foreseen and, conversely, does not over-deter socially useful conduct Defenses 1) Comparative Negligence a) Comparative negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, and which is a legally contributing cause co-operating with the negligence of the defendant in bringing about the plaintiff's harm i) For plaintiffs conduct to preclude her recovery, her negligence towards her own protection must be a cause-in-fact and a proximate cause of the accident resulting in injury ii) Contributory negligence is not a defense to intentional torts or willful, wanton, or reckless conduct b) Fritts v. McKinne (Plaintiff, driving drunk, was seriously injured in an accident; plaintiff later underwent surgery where defendant negligently struck an artery, causing plaintiff to bleed out and die; defendant asserted a comparative negligence defense based on the contention that plaintiff was injured while driving drunk) i) The court held that a physician may not avoid liability for negligent treatment by asserting that the patients injuries were originally caused by the patients own negligence. Those patients who may have negligently injured themselves are nevertheless entitled to subsequent non-negligent medical treatment ii) Interesting asideIntroduction of evidence plaintiffs history of substance abuse was thus irrelevant to defendants negligence, and the introduction of this evidence was extremely inflammatory and could have prejudiced the jury. Thus, where extremely inflammatory material may need to be introduced for the consideration of damages (substance abuse and life expectancy) then it may be necessary to bifurcate the trial of the liability and damages issues 2) Last clear chance doctrine
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a) The last clear chance doctrine constructs the court to ignore the plaintiffs contributory negligence if the defendants negligence occurred after the plaintiffs contributory negligence b) The doctrine is based purely on chronology. If the defendant was negligent after the plaintiff, the plaintiffs contributory negligence is ignored and the plaintiff can receive a complete recovery 3) Assumption of Risk a) A plaintiff who fully understands a risk of harm to himself or his things caused by the defendants conduct or by the condition of the defendants land or chattels, and who nevertheless voluntarily chooses to enter or remain under circumstances that manifest his willingness to accept it, is not entitled to recover b) Express Assumption of Risk i) Hanks v. Powder Ridge Restaurant Corp. (plaintiff signed waiver of liability at defendant snow resort, yet while snowtubing, the plaintiffs foot became caught between his snowtube and the manmade bank of the snowtubing run, resulting in serious injuries) (1) The court held that the waiver violated public policy, thus did not exculpate defendants from liability (a) In the context of sport skiing, it is consistent with public policy to place responsibility for maintenance of the land on those who own or control it, with the ultimate goal of keeping accidents to the minimum level possible. The defendants, not recreational skiers, have the expertise and opportunity to foresee and control hazards and to guard against the negligence of their agents and employees. They alone can insure against risks and effectively spread the costs of insurance amount their thousands of customers. (b) Skiers, on the other hand, are not in a position to discover and correct risks of harm, and they cannot insure against the ski areas negligence ii) Tunkl factors for determining whether exculpatory agreements violate public policy: (1) The agreement concerns a business of a type generally thought suitable for public regulation (2) The party seeking exculpation is engaged in performing a service of great importance to the public (3) The party holds himself out as willing to perform this service for any member of the public who seeks it (4) As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength (5) In exercising superior bargaining strength the party confronts the public with a standardized adhesion contract of exculpation (6) As a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents iii) Assumption of risk of negligent conduct is less likely to be invalidated except when there is such a gross disparity in bargaining power between the defendant and the plaintiff that the plaintiff has little choice but to assume the risk. Conversely, courts are likely to uphold express assumption of risk when the plaintiffs participation is clearly voluntary, such as the decision to engage in risky recreational pursuits c) Implied Assumption of Risk i) Murphy v. Steeplechase Amusement Park (plaintiff, watched a ride The Flopper and observed people standing on it, experiencing a sudden jerk, and being thrown to the floor; plaintiff got on the ride and suffered a fracture of his knee cap, for which he sues) (1) The court found the plaintiff had impliedly assumed the risk because the plaintiff had actual and conscious knowledge of the particular risk of falling by watching the experiences of others on the ride, and the name the Flopper further indicated the particular risk. The court noted
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that it would be a different case if the dangers inherent in the activity were obscure or unobserved d) The Firefighters Rule i) The general acceptance of the so-called firefighters rule precluding firefighters from suing for injuries sustained fighting negligent fires, suggests that certain professionals should not recover for injuries resulting from negligence that they are compensated to address. The firefighters rule is, in essence, a form of assumption of risk, and arguably, the compensation of such professionals already reflects the ordinary risks of negligently created fires inherent in their job. ii) Levandoski v. ConeThe court held that the firefighter rule was inapplicable beyond the scope of premises liability, thus allowing the police officer to collect from criminal suspect who caused officers injury when fleeing from the police. It was reasonably foreseeable that plaintiff could be injured in pursuing the fleeing defendant, thus defendant should be liable for plaintiffs resulting harms Strict Liability 1) Main categories of strict liability a) Strict liability for damage or injury caused by animals owned or possessed by defendant, and b) Strict liability for abnormally dangerous activities that pose an unavoidable risk of substantial harm to others even where the actor has exercised the utmost care 2) Factors to consider in determining whether an activity is abnormally dangerous and whether it should be subject to strict liability: a) Existence of a high degree of risk of some harm to the person, land, or chattels of others b) Likelihood that the harm that results from it will be great c) Inability to eliminate the risk by the exercise of reasonable care d) Extent to which the activity is not a matter of common usage e) Inappropriateness of the activity to the place where it is carried on, and f) The extent to which its value to the community is outweighed by its dangerous attributes 3) Rylands v. Fletcher (plaintiff was damaged by his property being flooded by water, which, without any fault on his part, broke out of a reservoir constructed on the defendants land by the defendants orders) a) The court held that the person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape i) This is regardless of whether the defendant is free from all blame, thus the defendant is strictly liable 4) Sullivan v. Dunham (defendant dynamited a tree on his land and the blast hurled a fragment of wood onto a highway where it struck plaintiffs decedent and killed her) a) The court held that the use of land is not absolute, it is limited by the higher right of others to the lawful possession of their property b) If the landowner cannot pursue his use of his property without the adoption of such dangerous means, he must abandon that mode of using his property or be held responsible for all damages resulting therefrom 5) Indiana Harbor Belt Railroad Co. v. American Cyanamid Co. (the issue was whether the shipper of a hazardous chemical by rail should be strictly liable for the consequences of a spill or other accident to the shipment en route) a) The court noted that if a tank car is carefully maintained the danger of a spill is negligible and if this is the case, there is no reason to move to a regime of strict liability i) Accidents can be prevented by taking care and when a lack of care can be shown in court, such accidents are adequately deterred by the threat of liability for negligence
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b) It is easy to see how the accident in this case might have been prevented by greater care on the part of those who handled the tank car of acrylonitrile. It is difficult to see how it might have been prevented at reasonable cost by a change in the activity of transporting the chemical. Therefore, this is not an apt case for strict liability.

Products Liability 1) Three types of product defect: (1) manufacturing, (2) design, and (3) warning or instructions Manufacturing Defect A product contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product Design Defect A product is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design and the omission of the alternative design renders the product not reasonably safe Inadequate Warnings A product is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, and the omission of the instructions or warnings renders the product not reasonably safe

2) Modern products liability was born in 1916 with MacPherson v. Buick Motor Co. In this famous decision, the New York Court of Appeals held that the manufacturer of any product capable of serious harm if negligently made owes a duty of care in the design, inspection, and assembly of the product. This duty extends not only to the immediate purchaser but to all persons who might foreseeably be affected by the product (no privity of contract required). Following MacPherson, a consumer or bystander who is injured in person or in property by these dangerous propensities may recover in damages from the manufacturer 3) Strict Tort Products Liability a) Until the mid-twentieth century, barriers obstructed a plaintiffs pursuit of negligence and warranty liability for product-caused injuries. The most fundamental obstacle to plaintiffs recovery in negligence is the requirement of manufacture or sale that the sellers conduct fell below the requisite due care under the circumstances. Such proof typically requires plaintiff to not only attain a familiarity with complex manufacturing designs or processes, but to be prepared as well to rebut the defendants claims that its practices, conforming with the actions of other producers in the same industry, did represent due care b) Thus, strict liability for defective products is the modern approach 4) Manufacturing Defects a) A manufacturing defect is a flaw in a product that is there by accident; the maker did not install deliberately and consciously. A product contains a manufacturing defect when the product departs
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from its intended design. This defect is the basis for liability even though all possible care was exercised in the preparation and marketing of the product. In other words, liability here really is strict. i) A harm-causing ingredient in a commercially prepared food product is treated the same as a manufacturing defect b) The strict liability element in modern products liability law comes precisely from the fact that a seller subject to that law is liable for defects in his product even if those defects were introduced without the slightest fault of his own for failing to discover them 5) Design Defects a) A defectively designed product is one whose risks could be avoided or eliminated by an alternative design. Just as negligence law compels plaintiffs to present a safer alternative course of action for defendants, products liability law ought to compel plaintiffs who complain of design defects to present a safer alternative way to make the same product (reasonable alternative designRAD) 6) Warning Defects a) Although a product could be unerringly designed, manufactured, and assembled, a seller may be liable if the product has a potential for injury that is not readily apparent to the user and carries no warnings of the risk or, where appropriate, instructions as to how to use the product safely b) Hood v. Ryobi i) Plaintiff claimed that defendant failed adequately to warn of the dangers of using the saw without the blade guards in place because he contends that he was unaware that removing the blade guards would permit the spinning blade to detach from the saw ii) The court disagreedRyobi provided warnings sufficient to apprise the ordinary consumer that it is unsafe to operate a guardless sawwarnings which followed, would have prevented the injury in this case iii) A clear and specific warning will normally be sufficientthe manufacturer need not warn of every mishap or source of injury that the mind can imagine flowing from the product (1) Some commentators have observed that the proliferation of label detail threatens to undermine the effectiveness of warnings altogether. As manufacturers append line after line onto product labels in the quest for the best possible warning, it is easy to lose sight of the labels communicative value as a whole c) The standard for an adequate warning is that it must be reasonable under the circumstances. A reasonable warning not only conveys a fair indication of the dangers involved, but also warns with the degree of intensity required by the nature of the risk. Among the Pittman v. Upjohn criteria for determining the adequacy of a warning are: i) The warning must adequately indicate the scope of the danger ii) The warning must reasonably communicate the extent or seriousness of the harm that could result from misuse of the product iii) The physical aspects of the warning must be adequate to alert a reasonably prudent person to the danger iv) A simple defective warning may be inadequate when it fails to indicate the consequences that might result from failure to follow it, and v) The means to convey the warning must be adequate d) Even the most explicit language may not suffice to satisfy the communication requirement (see Campos v. Firestone, suggesting that a jury might find that pictorial messages were required if the product was likely to be used by migrant workers who did not speak English) e) Moran v. Faberg i) Two teenagers decided to scent a candle by pouring cologne on it somewhat below the flame. As one did this, the cologne, containing 82% alcohol, instantly ignited causing serious burns to the other teenager.
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ii) The appellate court found the defendant negligent for failing to warn of the colognes flammability. Although this particular accident was unforeseeable, other similar accidents, such as a woman accidentally spilling the cologne onto a lighted candle, might warrant a warning. The cost of giving an adequate warning is usually so minimal, amounting only to the expense of adding some more printing to a label. 7) Escola v. Coca Cola Bottling Co. of Fresno a) Majority i) Although it is not clear in this case whether the explosion was caused by an excessive charge or a defect in the glass, there is a sufficient showing that neither cause would ordinarily have been present if due care had been used. Further, defendant had exclusive control over both the charging and inspection of the bottles. Accordingly, all the requirements necessary to entitle plaintiff to rely on the doctrine of res ipsa loquitur to supply an inference of negligence are present ii) The defendant presented evidence showing that it exercised caution by carefully regulating and checking the pressure in the bottles and by making visual inspections for defects in the glass at several stages during the bottling processyet, when a defendant produces evidence to rebut the inference of negligence which arises upon application of the doctrine of res ipsa loquitur, it is ordinarily a question of fact for the jury to determine whether the inference has been dispelled b) Justice Traynor dissent i) J. Traynor believed that it should now be recognized that a manufacturer incurs an absolute liability when an article that he has placed on the market, knowing that it is to be used without inspection, proves to have a defect that causes injury to human beings ii) Even if there is no negligence, public policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market. It is evident that the manufacturer can anticipate some hazards and guard against the recurrence of others, as the public cannot (1) The risk of injury can be insured by the manufacturer and distributed among the public as a cost of doing business. (2) It is to the public interest to discourage the marketing of products having defects that are a menace to the public. If such products nevertheless find their way into the market it is to the public interest to place the responsibility for whatever injury they may cause upon the manufacturer, who, even if he is not negligent in the manufacture of the product, is responsible for its reaching the market (3) It is needlessly circuitous to make negligence the basis of recovery and impose what is in reality liability without negligence because allowing res ipsa loquitur to find an inference of negligence causes sometimes innocent manufacturers to be found negligent for products that really are due the negligence of a sub-manufacture or a component part (4) Manufacturing processes, frequently valuable secrets, are ordinarily either inaccessible to or beyond the ken of the general public. The consumer no longer has means or skill enough to investigate for himself the soundness of a product. (5) Consumers no longer approach products warily but accept them on faith, relying on the reputation of the manufacturer or the trademark. Manufacturers have sought to justify that that faith by increasingly high standards of inspection and a readiness to make good on defective products by way of replacements and refunds. (6) Certainly there is greater reason to impose liability on the manufacturer than on the retailer who is but a conduit of a product that he himself is not able to test 8) Hot Coffee Intentional Torts
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Battery

Assault

False Imprisonment

Battery is an act Assault occurs that was intended to when the cause, and did in defendants acts fact cause, an intentionally cause offensive contact the victims with, unconsented reasonable touching of, or apprehension of trauma upon the immediate harmful body of another or offensive contact

The defendant unlawfully acts to intentionally cause confinement or restraint of the victim within a bounded area

Intentional Infliction of Emotional Distress The defendant, by extreme and outrageous conduct, intentionally or recklessly causes the victim severe mental distress

Conversion Defendants intentional act of dominion or control over a chattel which so seriously interferes with the right of another to control it

1) Contributory negligence, recklessness, and assumption of the risk are not defenses to intentional torts 2) The word intent denotes that the actor (1) desires to cause consequences of his act, or that (2) he believes that the consequences are substantially certain to result from it a) Garratt v. Dailey (the court remanded to trial court the issue of whether a five-year-old boy was substantially certain the victim would fall while attempting to sit on a chair the boy had moved) 3) Mistake doctrine if a defendant intends to do acts which would constitute a tort, it is no defense that the defendant mistakes the identity of the property or person he acts upon. a) E.g., if A enters Bs land believing reasonably that it is As land, A is liable to B for trespass to land. So long as the defendant intends to enter the property, the fact that she mistook the identity of the property or other circumstances is irrelevant 4) Doctrine of Transferred Intentas long as the defendant held the necessary intent with respect to one person, he will be held to have committed an intentional tort against any other person happens to be injured; also applies where if, for example, the defendant intended to commit an assault and in fact struck the plaintiff, he will be deemed to have had the intent necessary for battery Battery 1) Battery is an act that was intended to cause, and did in fact cause, an offensive contact with or unconsented touching of or trauma upon the body of another, thereby generally resulting in the consummation of an assault 2) Offensive contacta bodily contact is offensive if it offends a reasonable sense of personal dignity 3) Intent to harm is irrelevantonce the defendant intends and accomplishes the offensive or harmful touching, she is responsible for harm caused by the battery even if minimal or no physical harm was actually intended a) Consequently, where a schoolboy playfully but without privilege slightly kicks a classmate without intending harm, he is responsible for the unexpected serious illness which resulted. Vosburg v. Putney 4) Suppose A, unlike an ordinary person, would be offended by a friendly pat on the back. If B innocently pats As back, the requisite intent to cause offensive or harmful contact is missing and there should be no liability even if A does find the contact offensive. Suppose, however, B continues to pat A in a context that most people would not find offensive, but A does. Should Bs knowledge of As hypersensitivity to contact constitute a battery? a) Restatement hasnt addressedif As hypersensitivity would result in physical injury, the tort of battery would more likely provide protection. What about where only psychological injury is claimed? 5) Policy rationale
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a) From a deterrent perspective, legal redress discourages wrongful contact and violent retaliation b) The historic willingness of courts to compensate for merely offensive contacts represents an extremely early acknowledgement that psychological injury is worthy of compensation 6) Picard v. Barry Pontiac-Buick, Inc. a) Plaintiff testified that defendant lunged at her and spun her around; placed his finger on the camera and asked who gave you permission to take my picture b) The court found that the defendant failed to prove his actions were accidental or involuntary. Therefore, defendants offensive contact with an object attached to or identified with plaintiffs body was sufficient to constitute a battery i) There are some things such as clothing or a cane or, indeed, anything directly grasped by the hand which are so intimately connected with ones body as to be universally regarded as part of the person. The defendants contact with the camera clutched in plaintiffs hand was thus sufficient to constitute a battery ii) Meaning of contact with another's person. (under Restatement notes) (1) In order to make the actor liable under the rule of battery, it is not necessary that he should bring any part of his own body in contact with another's person. It is enough that he intentionally cause his clothing or anything held or attached to him to come into such contact. So too, he is liable under the rule stated in this Section if he throws a substance, such as water, upon the other or if he sets a dog upon him. It is not necessary that the contact with the other's person be directly caused by some act of the actor. All that is necessary is that the actor intend to cause the other, directly or indirectly, to come in contact with a foreign substance in a manner which the other will reasonably regard as offensive. Thus, if the actor daubs with filth a towel which he expects another to use in wiping his face with the expectation that the other will smear his face with it and the other does so, the actor is liable as fully as though he had directly thrown the filth in the other's face or had otherwise smeared his face with it. So too, if the actor at a dignified social function, and for the purpose of making another appear ridiculous, pulls from under him a chair upon which he is about to sit, the actor is liable to the other under the rule of battery 7) Wishnatsky v. Huey a) The court agreed that when Wishnatsky attempted to enter the room in which Huey was conversing with Crary, Huey apparently reacted in a rude and abrupt manner in attempt to exclude Wishnatsky from that conversation. As a matter of law, however, Hueys rude and abrupt conduct did not rise to the level of battery. The bodily contact was momentary, indirect and incidental. An ordinary personnot unduly sensitive as to his personal dignity intruding upon a private conversation in Wishnatskys manner would have been offended by Hueys response to the intrusion. Assault 1) An assault is a physical act of a threatening nature or an offer of corporal injury, which puts an individual in reasonable fear of imminent bodily harm. It is plaintiffs apprehension of injury that renders a defendants act compensable. a) Only apprehension of immediate contact must be established, thus battery need not also be committed. Furthermore, an actual attempt to commit battery would not constitute a tortious assault unless the victim suffered apprehension of immediate contact 2) The damages recoverable are assault are those for the plaintiffs mental disturbance, including fright, humiliation, and the like, as well as any physical illness which may result from them. This apprehension must be the type of fear normally aroused in the mind of a reasonable person 3) Intent Requirement
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a) Because assault is an intentional tort, the defendant must desire or be substantially certain that her action will cause the apprehension of immediate harmful or offensive contact b) The accidental creation of such apprehension is not assault, but may constitute the much more recently created tort of negligent infliction of emotional distress 4) Apprehension a) The victim must perceive that harmful or offensive contact is about to happen to him. If the victim is attacked from behind or while asleep, there is no apprehension prior to contact and consequently, no assault b) Apprehension can be created, however, without the actual attempt to cause contact. For example, if the defendant uses an unloaded gun but intentionally leads the victim to believe the gun is loaded, assault occurs if the defendant fires at the victim, even though the defendant had neither the intent nor the ability to shoot the victim 5) Reasonable Apprehension a) Many judicial recitations of the elements of assault require the victim to suffer reasonable apprehension. The Restatement rejects this requirement 6) Picard v. Barry Pontiac-Buick, Inc. a) The plaintiff testified that she was frightened by defendants actions (subjective). A review of the attendant circumstances attests that such a reaction was reasonable (objective). The defendant admitted approaching plaintiff, and the photograph taken that day clearly showed defendant pointing his finger at plaintiff as defendant approached her. Because plaintiffs apprehension of imminent bodily harm was reasonable at that point, plaintiff has established a prima facie case of assault False Imprisonment 1) In false imprisonment, the defendant unlawfully acts to intentionally cause confinement or restraint of the victim within a bounded area. Accidental confinement is not included and must be addressed under negligence. It is generally held that the victim must be aware of the confinement at the time of the restraint. False imprisonment compensates for psychological, physical, and economic injury occasioned by the imprisonment. 2) In order for a false imprisonment to be present, there must be actual or legal intent to restrain 3) In the tort of false imprisonment, it is not enough for the plaintiff to have felt compelled to remain in the baking room in order to protect her reputation Lopez v. Winchells Donut House 4) Means of confinement or restraint a) Physical barrier i) The victim must be confined within an area bounded in all directions. It is not false imprisonment if the victim is free to proceed in any direction, even though she is prevented from going in the direction she wants b) Force or threat of immediate force i) The force may be directed at the victim, her family, companions, or property c) Improper assertion of legal authority (false arrest) i) The victim must submit to the arrest for it to constitute imprisonment 5) Lopez v. Winchells Donut House a) It is essential that the confinement be against the plaintiffs will and if a person voluntarily consents to the confinement, there can be no false imprisonment. Moral pressure, as where the plaintiff remains with the defendant to clear himself of suspicion of threat is not enough, nor are threats for the future. Any remedy for such wrongs must lie with the tort of the intentional infliction of emotional distress b) The court found that there was no false imprisonment i) Plaintiff voluntarily accompanied defendant to the baking room
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ii) Plaintiff stayed in the room in order to protect her reputation, she was never threated with the loss of her job iii) Plaintiff was never in fear for her safety and at no time was she prevented from exiting the room iv) Further, plaintiff was able to leave just by getting up and walking out 6) Marcus v. LiebmanThe court extensively examined the concept that threats of a future action are not enough to constitute confinement a) Here, the defendant psychiatrist threatened to have plaintiff committed to the state hospital, and the court found that this was a present threat, constituting false imprisonment, as opposed to a threat of future action. The court noted that plaintiff was already voluntarily committed to the psychiatric wing of a private hospital when the defendant made the threat to commit her to a state mental hospital and reasoned, At the time the alleged threat was made, plaintiff was already confined. It was certainly reasonable for plaintiff to believe that before her release from the private hospital, commitment procedures could have been concluded Intentional Infliction of Emotional Distress 1) Intentional infliction of emotional distress exists when the defendant, by extreme and outrageous conduct, intentionally or recklessly causes the victim severe mental distress a) Blended standard: objective and subjective 2) One who by extreme and outrageous conduct intentionally causes severe emotional distress to another is subject to liability for such emotional distress and if bodily harm to the other results from it, for such bodily harm. This rule also covers a situation where the actor knows that distress is certain, or substantially certain, to result from his conduct. 3) A cause of action will lie for emotional distress, unaccompanied by physical injury, provided four elements are shown: a) The wrongdoers conduct was intentional or recklessthis element is satisfied where the wrongdoer had the specific purpose of inflicting emotional distress or where he intended his specific conduct and knew or should have know that emotional distress would likely result b) The conduct was outrageous and intolerable in that it offends against the generally accepted standards of decency and morality. c) There was a causal connection between the wrongdoers conduct and the emotional distress d) The emotional distress was severe 4) It is for the court to determine, in the first instance, whether the defendants conduct may reasonably be regarded as so extreme and outrageous as to permit recovery, or whether it is necessarily so. Where reasonable men may differ, it is for the jury, subject to the control of the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability 5) Womack v. Eldridgeplaintiffs picture used in a child sex abuse case without any evidence showing that plaintiff could have been the abuser a) Plaintiff testified that he suffered great shock, distress, and nervousness because of defendants fraud and deceit and her wanton, willful and malicious conduct in obtaining his photograph and turning it over to Seiferts attorney to be used in court. He suffered great anxiety as to what people would think of him and feared that he would be accused of molesting the boys. He had been unable to sleep while the matter was being investigated. While testifying in the instant case he became emotional and incoherent. b) In the case at bar, reasonable men may disagree as to whether defendants conduct was extreme and outrageous, and whether plaintiffs emotional distress was severe. Thus, the questions presented were for a jury to determine. i) A reasonable person would or should have recognized the likelihood of the serious mental distress that would be caused in involving an innocent person in child molesting cases
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6) Intentional Interference with Family Relationships a) Tort of alienation of affections applies to behavior by which outsiders through any means drive a wedge between family members. Most states have abolished this action, through judicial decision or by the enactment or heart balm statutes that prohibit suits based on alienation grounds b) McDermott v. Reynolds i) Plaintiff attempted to avoid a statutory bar to claims for alienation of affections by arguing that defendant had flaunted outwardly his adulterous relationship with plaintiffs wife constituting grounds for an intentional infliction of emotional distress (a) The court rejected what it took to be a back-door effort to evade the statutory bar c) Compare with Doe v. Zwellingplaintiff successfully maneuvered around the abolition of claims for alienation of affections. i) Defendant therapist counseled plaintiffs wife and then separately saw plaintiff in an effort to resolve marital difficulties. Plaintiff confided intimate details of the couples relationship to defendant, insisting that they be kept confidential. Defendant used those details to malign plaintiff with his spouse and then entered into a relationship with her. After plaintiffs marriage fell apart, he sued alleging professional malpractice by the therapist. The court distinguished McDermott, identifying failing to keep intimate confidences and providing inappropriate therapy to a patient as harms independent of the marriage relationship 7) Constitutional limits to Intentional Infliction of Emotional DistressActual Malice Standard a) In Hustler Magazine v. Falwell, the Supreme Court held unconstitutional the determination that a parody advertisement in Hustler magazine could result in liability under intentional infliction of emotional distress. The mock advertisement, while clearly satirical, suggested Jerry Falwell, a nationally known religious and political leader of the Moral Majority, had his first sexual encounter with his mother in an outhouse. The majority held that a public figure could not recover without proving such statements were made with New York Times malice, i.e., with knowledge or reckless disregard toward the truth or falsity of the assertion. As the parody was never asserted to be truthful, and as it would not reasonably be interpreted as truthful by an ordinary reader, the Court found there could be no liability 8) Third-party recovery a) A third party may be able to recover for emotional distress if the defendant acts with a deliberate disregard of a high degree of risk that his conduct would cause severe distress to a third party b) Courts have usually awarded a third-party victim recovery only if, in addition to proving the elements of the tort, she is (1) a close relative of the primary victim; (2) present at the scene of the outrageous conduct against the primary victim; and (3) the defendant knows the close relative is present i) Similar to Portee factors, except there, the defendants conduct was negligent, not intentional Conversion 1) Conversion is an intentional act of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel 2) Kinds of interference that amount to conversion a) Acquiring possession b) Removal of goods c) Withholding goods d) Destruction of or alteration of the goods e) Assertion of ownership
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3) Thyroff v. Nationwide Mutual Insurance Co.plaintiff was fired and then denied access to computers and all electronic records and data; plaintiff was unable to retrieve his customer information and other personal information that was stored in the computers a) The court considered whether the common law cause of action of conversion applies to certain electronic computer records and data b) The expansion of conversion to encompass a different class of property, such as shares of stock, is motivated by societys growing dependence on intangibles. The court could not conceive of any reason in law or logic that the process of virtual creation should be treated any differently from production by pen on paper or quill on parchment. A document stored on a computer hard drive has the same value as a paper document kept in a file cabinet. It is generally not the physical nature of a document that determines its worth, it is the information memorialized in the document that has intrinsic value. c) The court held that the type of data that Nationwide allegedly took possession ofelectronic records that were stored on a computer and were indistinguishable from printed documentsis subject to a claim of conversion in NY Defenses to Intentional Torts 1) Consent a) Consent is a defense to intentional tort liability. If the asserted victim gives permission, what would otherwise be tortious is instead privileged. b) Consent by lawgenerally courts recognize by law consent to emergency medical treatment by health professionals when a victim is unconscious and unable to provide consent c) Hart v. Geyselplaintiffs decedent died as the result of a blow received in a prize fight i) Majority Rule (1) Where the parties engage in mutual combat in anger, each is civilly liable to the other for any physical injury inflicted by him during the fight ii) Minority Rule (1) Where parties engage in mutual combat in anger, the act of each is unlawful and relief will be denied them in a civil action; at least, in the absence of a showing of excessive force or malicious intent to do serious injury upon the part of the defendant iii) Rule Stated by this Court (1) One who engages in prize fighting, even though prohibited by law, and sustains an injury, should not have a right to recover any damages that he may sustain as the result of the combat, which he expressly consented to and engaged in as a matter of business or sport d) Invalidating manifestations of consent i) Incapacityage, mental capacity, and drug/alcohol incapacity can make consent manifestations invalid ii) Action beyond scope of consent (1) A consent to play football does not constitute a consent that the opposing team can bite an opponents arm or gouge an opponents eyes while tackling, as such conduct is not accepted in either the rules or the custom of the game (2) What constitutes the dimensions of the consent can often be a difficult issue of fact iii) Fraudconsent is invalid if it is induced by fraud that misrepresents an essential aspect of the interaction iv) Duressconsent procured under physical threat is not valid 2) Self-Defense
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a) Reasonable force can be used where one reasonable believes that such force is necessary to protect oneself from immediate harm. The defense is both objective and subjective. The defendant must sincerely believe the force is necessary for protection, but in addition must act reasonably. b) Courvosier v. Raymond i) Where a defendant, in a civil action, attempts to justify on a plead of necessary self-defense he must satisfy the jury, not only that he acted honestly in using force, but that his fears were reasonable under the circumstances, and also as to the reasonableness of the means made use of (1) No matter how honestly the defendant may have believed he feared for his life, that fear must also at least have been reasonable in the circumstances 3) Defense and Recovery of Property a) An individual is privileged to use reasonable force to prevent a tort against her real or personal property b) Posners reasonableness testPosner argued that neither blanket permission nor blanket prohibition of the use of deadly force to protect property is likely to be the optimal rule. Posner maintained that the dominant purpose of rules of liability is to channel peoples conduct, and in such a way that the value of interfering activities is maximized c) He proposed a reasonableness test to determine whether the use of deadly force is justified to protect property interests. The following considerations would be relevant: i) The value of the property at stake measured against the costs of human life and limb ii) The existence of an adequate legal remedy as an alternative to the use of force iii) The location of the property in terms of the difficulty of protecting it by other means iv) The kind of warning given v) The deadliness of the device used vi) The character of the conflicting activities vii) The cost of avoiding interference by other means d) Katko v. Briney i) The law has always placed a higher value upon human safety than upon mere rights in property, it is the accepted rule that there is no privilege to use any force calculated to cause death or serious bodily injury to repel the threat to land or chattels, unless there is also such a threat to the defendants personal safety as to justify a self-defense ii) Spring guns or other man-killing devices are not justifiable against a mere trespasser, or even a petty thief. They are privilege only against those upon whom the landowner, if he were present in person, would be free to inflict injury of the same kind iii) Facts: defendants home was several miles away form the scene of the incident (not an issue of man protecting his home and members of his family); defendant gave no explanation of why he used a loaded shell and set it to hit a person already in the house; tin was nailed over the bedroom window so the spring gun could not be seen from outside and no warning of its present was posted 4) Necessity a) Necessity is a defense which allows the defendant to interfere with the property interests (trespass) of an innocent party in order to avoid a greater injury. Private necessity exists when the individual appropriates or injures a private property interest to protect a private interest valued greater than the appropriated or injured party. Private necessity is an incomplete defense: the defendant is privileged to interfere with anothers property, but is liable for the damage b) In Ploof v. Putnam, a sudden storm arose, forcing the plaintiff to moor his boat on defendants dock. The landowners servant loosened the boat, causing the plaintiffs family and boat to be injured. The plaintiff and his family, under private necessity, were entitled to use the landowners dock to avoid the greater harm of personal injury to themselves and more severe property damage to their boat.
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Consequently, the landowner was liable for the servants wrongful use of force to expel the plaintiff and his family c) Vincent v. Lake Erie Transportation Co. Where the defendant prudently and advisedly availed itself of the plaintiffs property for the purpose of preserving its own more valuable property, the plaintiffs are entitled to compensation for the injury done i) Those in charge of the vessel deliberately and by their direct efforts held her in such a position that the damage to the dock resulted, and, thus having preserved the ship at the expense of the dock, the ships owners are responsible to the dock owners to the extent of the injury inflicted ii) Public necessity may require the taking of private property for public purposes; but under our system of jurisprudence, compensation must be made Defamation 1) The law of defamation is particularly intricate due to its unique blend of common law and First Amendment principles. At common law, defamation was a strict liability for tort. As such, a plaintiff could recover without proving any fault on the part of the defendant. Furthermore, the falsity of the allegedly defamatory statement was presumed 2) To create liability for defamation there must be: a) A false and defamatory statement concerning another; b) An unprivileged publication to a third party; c) Fault amounting at least to negligence on the part of the publisher; d) Either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication 3) Defamatory statementa communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him a) A defamatory statement is one that harms reputation by injuring a persons general character or causing personal disgrace. Typically, such communications accuse a person of immoral or criminal conduct. Mere insults, obvious jokes, hyperbole, or pure opinion cannot be the basis for a defamation action b) Romaine v. Kallingerthe mere allegation that plaintiff knows a criminal is not defamatory as a matter of law i) The threshold issue in any defamation case is whether the statement at issue is reasonably susceptible of a defamatory meaning. In assessing the language, the court must view the publication as a whole ii) In cases where the statement is capable of being assigned more than one meaning, one of which is defamatory, and another not, the question of whether its content is defamatory is one that must be resolved by the trier of fact c) Liberman v. Gelstein i) Not every imputation of unlawful behavior is slanderous per se. The law distinguishes between serious and relatively minor offenses, and only statements regarding the former are actionable without proof of damage. Defendants alleged statement that there is a cop on the take from Liberman charges a serious crimebribery, thus this statement is actionable under slander per se as charging plaintiff with a serious crime. However, harassment is a relatively minor offense and thus the harm to the reputation of a person falsely accused of committing harassment would be correspondingly insubstantialit is not slanderous per se to claim that someone committed harassment 4) Defamatory to whom?
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5)

6)

7)

8)

9)

a) For the plaintiff to prevail in a defamation action, it is not necessary that she show that most people to whom the statement was communicated would have interpreted it in a defamatory fashion. Rather, it is enough for the plaintiff to show that a substantial minority would comprehend the defamatory nature of the communication. Statements not facially defamatory: inducement and innuendo a) Sometimes the defamatory impact can only be understood by the addition of extrinsic information. In such situations, the plaintiff is obligated to plead the extra facts needed to make the statement defamatory (inducement) or to explain the defamatory impact (innuendo) if it is not obvious Of and concerning plaintiff a) The plaintiff must show that the defamatory communication was understood as referring to her. If the plaintiff can show this, it is irrelevant that the defendant did not intend for the statement to refer to the plaintiff. Similarly, even if the defendant intended to create a fictional character, a defamation action will lie where recipients of the communication reasonably believed that the character is really the plaintiff Damages a) In most defamation cases, a plaintiffs reputational injury may be presumed, permitting the plaintiff to recover compensation without any proof beyond the defamatory nature of the communication. In the defamation context, such damages are called general damages b) There are situations, however, where the plaintiff must plead and prove a specific type of loss, called special damages, in order to prevail. Special damages are specific economic losses flowing from the defamation, such as lost profits. They must be pled with specificity. If the plaintiff proves these special damages, she may then recover general damages. Special damages, however, are often very hard to prove c) Whether a defamation plaintiff has to prove special damages depends on whether the defamation communication is considered libel or slander and, if slander, whether the defamation falls into a category denominated slander per se. The early common law treated libel as more harmful than slander and set up damage rules accordingly d) The Libel/Slander Distinction i) Slander is an oral utterance while libel is a more permanent expression, such as a writing, photo, statute or sculpture. However, modern forms of technology have challenged the libel/slander distinction Slander and Slander Per Se a) Where the defamation is characterized as slander, the plaintiff generally must meet the substantial burden of pleading and proving special damages. However, certain slanderous statements were deemed so horrible that reputational injury to plaintiffs could be presumed even without proof of special damages. b) There are four special slander per se categories i) Slanderous communications that directly call into question the plaintiffs competence to perform adequately in her trade or profession ii) Statements claiming the plaintiff has a current, loathsome disease such as AIDS or syphilis iii) Allegations of serious criminal misbehavior by the plaintiff, typically criminal activity involving moral turpitude iv) Allegations that the female plaintiff is unchaste; now possibly extended to encompass imputations of any serious sexual misconduct regardless of gender Libel a) Any libel plaintiff may recover general (presumed) damages i) Matherson v. Marchello
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(1) Action brought by plaintiffs, husband and wife, against the members of a singing group, as individuals and against their record company, alleging that statements made by defendants in a radio interview that we used to fool around with his wife and I don't think it was his wife that he got upset about, I think it was when somebody started messing around with his boyfriend that he really freaked out were defamatory (2) Defamation which is broadcast by means of radio or television should be classified as libel and the statements, which could have been interpreted to mean that plaintiff wife was having an affair with one of the defendants, and as imputing homosexuality, are libelous on their face, thus obviating any need to allege and prove special damages. 10) Common Law Defenses a) Substantial Truth i) If the communication in issue is true, there is no basis for a defamation action. However, proving the truth of a statement can be difficult and expensive, as any serious dispute necessitates a fullblown trial b) Retraction c) Privilege i) There are a few contexts that rely so heavily on unfettered discourse that the law provides immunity from defamation liability. These absolute privileges typically arise in governmental proceedings involving judicial, legislative, and executive communications. In the judicial context, statements made in court or in official court papers are privileged as long as they are relevant to the court proceedings ii) In addition, communications made privately by one spouse to another are absolutely privileged, as are television or radio stations obligatory broadcasts of a candidates response to another candidate pursuant to laws mandating equal access in the electoral process iii) Qualified/conditional privileges also play an important role in defamation litigation. Qualified privileges are based on the social utility of protecting communications made in connection with the speakers moral, legal, or social obligations. Thus, a person has a qualified privilege to protect her own interest, as where she is wrongly accused of a crime and, to exculpate herself, implicates another person iv) Additionally, where the defendant and the recipient of the information share a common interest, such as a group affiliation or a common employer, there is a qualified privilege to convey relevant information (Liberman v. Gelstein) 11) Burnett v. National Enquirer, Inc. a) The protection afforded by the statute (the plaintiff shall recover no more than special damages unless a correction be demanded and be not published or broadcast in substantially as conspicuous a manner in said newspaperpunitive damagers were recoverable only if plaintiff proved actual malice) is limited to those who engage in the immediate dissemination of news on the ground that the Legislature could reasonably conclude that such enterprises cannot always check their sources for accuracy an their stories for inadvertent publication errors b) Normal lead time for the National Enquirers subject matter was one to three weeks. Its owner did not generate stories day to day as a daily newspaper does c) National Enquirer was deemed not a newspaper then, and not subject to the protection of the statute; Burnett was allowed to collect punitive damages Defamation Causes of Action are Limited by First Amendment Considerations Public Concern Public Sullivan actual malice standardplaintiff Private Concern Sullivan actual malice standardplaintiff
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Official

must show that the defendant either knew that the state was false or recklessly disregarded whether the communication was false Sullivan actual malice standardplaintiff must show that the defendant either knew that the state was false or recklessly disregarded whether the communication was false Gertzplaintiff must show either special damages or defendants actual malice; plaintiff cannot recover general damages with no showing of actual malice

must show that the defendant either knew that the state was false or recklessly disregarded whether the communication was false Sullivan actual malice standardplaintiff must show that the defendant either knew that the state was false or recklessly disregarded whether the communication was false No constitutional considerations needed, plaintiff only need show a prima facie case of defamation

Public Figure

Private Person

1) Because defamatory speech is false speech, courts had repeatedly determined that the First Amendment played no role in the defamation context. Thus, defamation law was entirely defined by the state law without any constraints imposed by the Constitution. Things changed dramatically in 1964, however, when the Supreme Court determined that the Constitution affected the contours of defamation law in certain contexts 2) As the Courts constitutional defamation jurisprudence has developed, an analysis of a defamation case typically requires a consideration of the status of the plaintiff (whether she is a public official, public figure, or private person) and of the subject matter of the defamation (whether it is of public or private concern) 3) Public OfficialsNew York Times Co. v. Sullivan a) Focusing heavily on the importance of permitting criticism of government officers, the majority of the Court held that a public official plaintiff in a defamation action could prevail only where the public official shows that the defendant either knew that the statement was false or recklessly disregarded whether the communication was falsea fault standard known as actual malice b) The Court also required that this actual malice standard be proven by convincing clarity, which has been interpreted as requiring the plaintiff to establish actual malice by the heightened burden of proof of clear and convincing evidence c) Although providing significant First Amendment protection to the defendants, the majority did not provide an absolute privilege to defame public officials. Instead the Court in essence created a qualified privilege, a privilege that could be lost by clear and convincing evidence of actual malice. 4) Public Figures a) After Sullivan, the Court determined that public figures, like public officials, should have to prove actual malice in order to prevail in defamation actions. Substantial litigation has involved who constitutes a public figure for defamation purposes. The Court has recognized two general categories of public figure: an all-purpose figure, who is someone widely known, and a limited public figure, who is a person who either voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues related to that persons public figure status 5) Private Persons

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a) The current state of the law in the private plaintiff context requires that the subject matter of the defamation be analyzed to discern whether it deals with matters of public concern or matters of private concern i) Public concern (1) The Supreme Courts decision of Gertz v. Robert Welch lays out the applicable rules in the private person/public concern context. In Gertz the Court acknowledged that private plaintiffs should be able to recover more readily than public plaintiffs for defamation. The Court determined that states could permit private plaintiffs to recover damages for actual injury defined as proven impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering, under any standard other than strict liability. The Court held that the tougher fault standard of actual malice was appropriate when the plaintiff sought either presumed damages or punitive damages ii) Private concern (1) The constitutional interest is highly limited (or possibly absent) in a case involving a private plaintiff and a private matter 6) Actual Malice a) As defamation law now stands, public officials, public figures and private plaintiffs in cases of public concern in which they seek presumed or punitive damages must show clear and convincing evidence of actual malice. The fault standard of actual malice requires the plaintiff to prove that either the defendant knew of the falsity or was reckless as to the truth of falsity. b) While the Court has not expressly backed away from this actual malice definition, the Court has noted that a defendants deliberate decision not to acquire knowledge of facts that might confirm the probably falsity of a communication, the purposeful avoidance of the truth, could constitute actual malice

Privacy Torts Intrusion

One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns

Appropriation of Name or PictureRight of Publicity One who appropriates to his own use or benefit the name or likeness of another

False Light

Public Disclosure of Private Facts One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy if the matter publicized is of a kind that (1) would be highly offensive to a reasonable person, and (2) is not of legitimate concern to the public

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for the invasion of his privacy, if: (1) the false light in which the other was placed would be highly offensive to a regular person; and (2) the actor had knowledge of or acted in reckless disregard as to the falsity

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1) Intrusion a) The definition of the tort of intrusion is: one who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person b) Nader v. General Motors Corp. i) Mere gathering of information about a particular individual does not give rise to a cause of action under intrusion. Privacy is invaded only if the information sought is of a confidential nature and the defendants conduct was unreasonably intrusive ii) The plaintiff must show that the defendants conduct was truly intrusive and that it was designed to elicit information that would not be available through normal inquiry or observation iii) The plaintiff was accosted by girls with illicit proposals and received a number of threatening and harassing phone calls; neither of these activities, however offensive and disturbing, involved intrusion for the purpose of gathering information of a private and confidential nature c) Galella v. Onassis i) Secret service agents, charged by statute with protection of children of deceased president, were immune from liability for false arrest, malicious prosecution and interference with trade where they were acting within the scope of their duties ii) While Onassis was properly found to be a public figure and thus subject to news coverage, the photographers actions went beyond the reasonable bounds of news gathering, thus injunctive relief against photographers intrusion was warranted (1) However, the injunctive relief couldnt be too broad because there are still First Amendment rights of the press to consider along with the public figures right to privacy 2) Appropriation of Name or Picture and the Right of Publicity a) One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy b) The interest protected is the interest of the individual in the exclusive use of his own identity, in so far as it is represented by his name or likeness, and in so far as the use may be of benefit to him or to others. Although the protection of his personal feelings against mental distress is an important factor leading to a recognition of the rule, the right created by it is in the nature of a property right, for the exercise of which an exclusive license may be given to a third person, which will entitle the licensee to maintain an action to protect it c) The common form of invasion of privacy is the appropriation and use of the plaintiff's name or likeness to advertise the defendant's business or product, or for some similar commercial purpose. Apart from statute, however, the rule stated is not limited to commercial appropriation. It applies also when the defendant makes use of the plaintiff's name or likeness for his own purposes and benefit, even though the use is not a commercial one, and even though the benefit sought to be obtained is not a pecuniary one. Statutes in some states have, however, limited the liability to commercial uses of the name or likeness d) Zacchini v. Scripps-Howard Broadcasting Co. i) The broadcast of a film of petitioners entire act poses a substantial threat to the economic value of that performance (1) The act is the product of petitioners own talents and energy, the end result of much time, effort, and expense (2) If the public can see the act free on television, it will be less willing to pay to see it at the fair ii) There is no doubt that entertainment, as well as news, enjoys First Amendment protection. Petitioner does not seek to enjoin the broadcast of his performance; he simply wants to be paid for it
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iii) Dissent (1) The courts holding that the stations ordinary news report may give rise to substantial liability has disturbing implications, for the decision could lead to a degree of media self-censorship e) White v. Samsung Electronics, Inc. i) Court found that it is not important how the defendant has appropriated the plaintiffs identity, but whether the defendant has done so (1) Viewed separately the individual aspects of the advertisement say little; viewed together, they leave little doubt about the celebrity that ad is meant to depict ii) Considerable energy and ingenuity are expended by those who have achieved celebrity value to exploit it for profit (1) The law protects the celebritys sole right to exploit this value f) Winter v. D.C. Comics i) The right of publicity threatens two purposes of the Fifth Amendment: (1) Preserving an uninhibited marketplace of ideas and (2) Furthering the individual right of self-expression ii) The defendants depictions contain significant expressive content other than plaintiffs mere likenesses iii) The characters and their portrayals do not greatly threaten the plaintiffs right of publicity g) Comedy III Productions, Inc. v. Gary Saderup, Inc. i) When an artist is faced with a right of publicity challenge to his or her work, he or she may raise an affirmative defense that the work is protected by the First Amendment inasmuch as it contains significant transformative elements or that the value of the work does not derive primarily from the celebritys fame (1) The inquiry is whether the celebrity likeness is one of the raw materials from which an original work is synthesized, or whether the depiction or imitation of the celebrity is the very sum and substance of the work in question 3) False Light a) One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if i) The false light in which the other was placed would be highly offensive to a reasonable person, and ii) The actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed b) Cantrell v. Forest City Publishing Co. i) Eszterhas and plaintiff had published knowing or reckless falsehoods about the Cantrells ii) His article plainly implied that Mrs. Cantrell had been present during his visit to her home and that Eszterhas had observed her wearing the same mask of non-expression that she work at her husbands funeral. These were calculated falsehoods and the jury was justified in finding that Eszerhas had portrayed the Cantrells in a false light through knowing or reckless untruth c) Time, Inc v. Hill i) The court held that under constitutional guarantees of free speech and press, the defendant magazine publisher was entitled to instruction that verdict of liability in action brought under a right of privacy claim, wherein it was alleged that magazine falsely reported that play portrayed experience suffered at hands of escaped convicts by plaintiff and his family, could be predicated only on finding of knowing or reckless falsity in publication of article. Similar to actual malice required for defamation in Sullivan 4) Pubic Disclosure of Private Facts
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a) One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that i) Would be highly offensive to a reasonable person, and ii) Is not of legitimate concern to the public b) Haynes v. Alfred A. Knopf, Inc. i) Only sexual details are intimate details and as these were not divulged in the book, no intimate details were revealed about plaintiff (1) Revelations about plaintiffs heavy drinking, his unstable employment, his adultery, his irresponsible and neglectful behavior toward his wife and children were not intimate details according to Posner ii) Painful though it is for the plaintiffs to see a past they would rather forget brought into the public view, the public needs the information conveyed by the book, in order to evaluate the profound social and political questions that the book raises (newsworthiness) Business TortsInjurious Falsehood 1) Relationship of injurious falsehood to defamationThe action for injurious falsehood is obviously similar in many respects to the action for defamation. Both involve the imposition of liability for injuries sustained through publication to third parties of a false statement affecting the plaintiff. Despite their similarities, however, the two torts protect different interests and have entirely different origins in history. a) The action for defamation is to protect the personal reputation of the injured party; it arose out of the old actions for libel and slander. b) The action for injurious falsehood is to protect economic interests of the injured party against pecuniary loss; it arose as an action on the case for the special damage resulting from the publication. 2) What makes something commercial speechadvertisements, represents a product, desire for revenue motivates the speech 3) Although the torts of defamation and injurious falsehood protect different interests, they may overlap in some fact situations. This happens particularly in cases of disparagement of the plaintiff's business or product. If the statement reflects merely upon the quality of what the plaintiff has to sell or solely on the character of his business, then it is injurious falsehood alone. Although it might be possible to imply some accusation of personal incompetence or inefficiency in nearly every imputation directed against a business or a product, the courts have insisted that something more direct than this is required for defamation. a) On the other hand, if the imputation fairly implied is that the plaintiff is dishonest or lacking in integrity or that he is perpetrating a fraud upon the public by selling something that he knows to be defective, the personal defamation may be found. In this case, it is common to sue in defamation because the damages are more comprehensive. Action may be brought in the same suit for both torts, however, so long as the damages are not duplicated. 4) U.S. Healthcare, Inc. v. Blue Cross of Greater Philadelphia (advertising campaigns made disparaging remarks about their healthcare competitors) a) The court held that the allegedly defamatory statements made in comparative advertising campaigns of health insurer and health maintenance organization were commercial speech to which the heightened protection of First Amendment's actual malice standard (Sullivan) did not apply b) An action for commercial disparagement is meant to compensate a vendor for pecuniary loss suffered because statements attacking the quality of his goods have reduced their marketability, while defamation is meant to protect an entitys interest in character and reputation Intentional Economic HarmFraudulent Misrepresentation
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1) The tort of fraudulent misrepresentation consists of five elements: a) A material misrepresentation b) The defendant acted with the requisite scienter: she knew the statement was false or made it with reckless disregard as to its truth or falsity c) The defendant intended to induce reliance d) The misrepresentation caused plaintiffs justifiable reliance, and e) Pecuniary damages 2) Clear and convincing evidentiary standard (75%) 3) The tort of fraudulent misrepresentation or deceit provides for recovery for pure economic loss. The essence of the tort is an intentional or reckless misrepresentation which induces a victims reliance and causes economic damages 4) Traditionally, a failure to disclose was not a basis for liability under misrepresentation. There are, however, exceptions where this is a duty to disclose, especially in cases where the potential purchaser would be unlikely to discover the material fact a) Ollerman v. ORourke Co., Inc. i) The court held that the seller had a duty to disclose to the buyer than an underground well existed that would prevent construction upon the real estate ii) Interesting asideIt is harder to prove negligent misrepresentation because honesty is valued more than care in business transactions Intentional Economic HarmIntentional Interference with Contract 1) Elements of the tort of intentional interference with contract (also the same as interference with prospective economic relations): a) A valid contract or economic expectancy between the plaintiff and a third party b) Knowledge of the valid contract or economic expectancy by the defendant c) Intent by the defendant to interfere with the contract or economic expectancy d) Interference caused by the defendant e) Damages to plaintiff 2) The tort of intentional interference with contract allows recovery when the defendant intentionally interferes with a valid contract between other parties 3) The tort is applicable only to the intermeddler who disrupts a contract or other economic relationship between other parties and is not applicable to parties who may breach or disrupt their own contracts or economic relationships 4) Imperial Ice Co. v. Rossier a) The contract gave to plaintiff the right to sell ice in the stated territory free from the competition of Coker. By inducing Coker to violate his contract, defendant sought to further his own economic advantage at plaintiffs expense and such conduct is not justified b) Had defendants merely sold ice to Coker without actively inducing him to violate his contract, his distribution of the ice in the forbidden territory in violation of his contract would not then have rendered defendants liable c) It will necessary for the plaintiff to prove at trial that the defendant intentionally and actively induced the breach d) Why sue in tort law and not contract law? Can get punitive damages in tort claim but cannot in contracts claim i) Also, only have contractual relations with some people, but can get tort relationships with extracontractual third parties ii) Plaintiff could not bring a tort claim against Coker, only contract claim iii) Plaintiff could not bring a contract claim against Rossier since no contractual relationship
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iv) Emotional damages not available in contract claims, thus bring emotional damages under tort cause of action v) Some interferences by third parties go far enough to show breach, thus can claim both breach under contract claim and tortious interference with contract under tort claim vi) Sometimes no breach but the party is unable to perform under the contract because of onerous conditions put on them by a third party (1) Not a breach but tortious interference by third party vii) Take-away: look at all the possible causes of actions you have, sounding in tort or contracts, and know the difference between what the means and the ends of the different claims are 5) Google, Inc. v. American Blind & Wallpaper Factory, Inc. a) American Blind failed to prove tortious interference because they could allege only hope for an economic relationship and a desire for future benefit which is inadequate to satisfy the pleading requirements of the first element of the tort b) Even though American Blind had alleged relationships with repeat customers who probably will continue to see to visit its website and purchase its goods and services, this is too speculative to support the first element Damages 1) Personal Injury Damages a) Personal injury victims under tort law can be compensated for (1) medical expenses; (2) lost wages or impaired earning capacity; (3) other incidental economic consequences caused by the injury; and (4) pain and suffering 2) Mitigation or Doctrine of Avoidable Consequences a) Injured victims have a responsibility to act reasonably to limit or mitigate losses incurred. If a plaintiff fails to act reasonably to mitigate injuries, the defendant will not be held liable for incremental losses that otherwise could have been avoided. b) Failure to mitigate should be distinguished from a plaintiffs contributory or comparative negligence that contributed to causing the accident responsible for the injury. The unreasonable failure to wear a motorcycle helmet or seat belt is sometimes characterized as a lapse in anticipatory mitigation. The lack of a helmet doesnt contribute to an accident occurring but increases the likelihood incidental damages will result if an accident occurs. Nevertheless, many courts in comparative negligence jurisdictions allow such failures in reasonable anticipatory mitigations to be absorbed into comparative negligence. This allows the finder of fact discretion to allocate what is perceived as a fair portion of the damage attributable to a failure of anticipatory mitigation to the plaintiff 3) Loss of Consortium Damages a) Loss of consortium damages allow a widowed husband to get recovery for the economic loss of his wifes household services and intangibles such as the loss of companionship, comfort, and sexual services b) Recovery for loss of consortium is not automatic. The party seeking recovery for loss of consortium must prove her lossthat the tortious harm to her spouse has led to an impairment of what was a fulfilling and strong relationship. c) Further, the conduct of the initially injured party (contributory negligence) may affect consortium recovery because most jurisdictions view the consortium action as derivativearising out of the underlying negligence action d) Courts have been reluctant to expand consortium rights beyond spouses. There has been some recent movement toward expanding consortium recovery, to include parents and children 4) Wrongful Death Damages
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a) Under any wrongful death statute, the plaintiff is suing for loss suffered due to the tortuously inflicted death of a close relative. A surviving spouse, parents and children are typically permitted to bring an action. b) Initially, nearly all wrongful death statutes limited wrongful death recovery to pecuniary losses. The wrongful death plaintiff could only recover those relatively concrete monetary losses that the plaintiff would have received from the deceased. Today, most jurisdictions permit designated dependents to recover loss support and other benefits arising fro the tortious death. An increasing number of jurisdictions have expanded the scope of recoverable damages to include loss of consortium-type damages such as loss of companionship and affection 5) Punitive Damages a) In addition to compensatory damages, courts in most states award punitive damages against defendants who act with malice. Malice is generally defined to constitute ill will, hatred, or reckless disregard to the victims rights. b) Punitive damages are intended to provide both retribution for the defendants wrongful conduct and to deter such conduct in the future. c) Taylor v. Superior Court i) Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or malice, or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton ii) Defendant here was charged with repeatedly driving while intoxicated after his own experience had made him completely aware of the consequences of his act. Therefore, punitive damages were allowable against him in a drunken car accident because the second time was no accident d) Policy Arguments For and Against Punitive Damages i) The imposition of punitive damages remains highly controversial. Those opposed to punitive damages argue that it is duplicative of criminal punishment without the safeguards provided by criminal procedures, including the more rigorous burden of proof ii) The danger exists that large punitive damage awards in one action may diminish the defendants resources to adequately compensate victims in subsequent litigation

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